Kerala High Court
R.Ayyappan Pillai vs Kerala State Electricity Board on 7 October, 2010
Author: J.Chelameswar
Bench: J.Chelameswar, P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1194 of 2010()
1. R.AYYAPPAN PILLAI,LAKSHMINAGAR-11,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE DPEUTY CHIEF ENGINEER,
For Petitioner :SRI.S.A.RAZZAK
For Respondent :SRI. ASOK M.CHERIYAN, SC, KSEB
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :07/10/2010
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A. No.1194 of 2010
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Dated this the 7th day of October, 2010
JUDGMENT
J.Chelameswar, C.J.
The petitioner in W.P.(C) No.6868 of 2010 is the appellant herein. The writ appeal is preferred aggrieved by the judgment dated 19th May, 2010 in the abovementioned writ petition.
2. The appellant was in the service of the first respondent Kerala State Electricity Board. He retired from service on 31st July, 2009. During the period between 9.1.1987 and 27.9.1988 he was working as 'Cashier trainee'. The further details of his employment may not be necessary except to state that as part of such a duty the appellant had to handle certain monies belonging to the first respondent Board.
3. On 11.10.1988 it was detected that the appellant did not account for certain amounts of cash. There was shortage of an amount of `26091/-. Consequent upon the detection of such fact W.A.No.1194 of 2010
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the appellant was kept under suspension on 21.10.1988. An enquiry was ordered after a long lapse of almost five years on 30th July, 1993. The appellant continued under suspension until he was reinstated to service on 11.2.1994.
4. By the proceedings (Ext.P4) of the second respondent dated 2.9.1997 the appellant was called upon to remit an amount of `14020.15 along with interest, etc. obviously towards the recovery of the amount which could not be accounted for by the appellant. The amounts mentioned in the said document were remitted by the appellant.
5. However, the respondents could not conclude the disciplinary enquiry against the appellant. It must be mentioned that the charge memo itself was issued on 21.6.1997. The enquiry referred to in Ext.P4 document dated 2.9.1997 appears to be an administrative enquiry distinct from the disciplinary enquiry conducted against the appellant.
6. During the pendency of the said disciplinary enquiry, the appellant retired from the service. After his retirement the W.A.No.1194 of 2010
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appellant approached this Court by W.P.(C) No.6868 of 2010 praying as follows:
"i) issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to award and release Superannuation Pension in full reckoning petitioner's entire service as qualifying service;
ii) issue a writ of mandamus or other appropriate writ, direction or order directing the 2nd respondent to release the salary arrears for suspension period, leave surrender benefits, commuted value of full pension due along with DCRG admissible based on emoluments drawn on the date of retirement;
iii) issue such other writ, direction or order as this Hon'ble Court may deem fit and proper on the facts and in the circumstances of the case and to allow this Original Petition with the petitioner's costs."
7. By the judgment under appeal, a learned Judge of this Court held that the document under Ext.P4 dated 2.9.1997 is not an order imposing punishment on the conclusion of disciplinary enquiry. It is held at paragraph 4 as follows:
"........................ A reading of Ext.P4 indicates that by this order, all that the Board has done is to call upon the petitioner to remit the balance amount found to have been lost by the Board on account of the misconducts committed by the petitioner. In W.A.No.1194 of 2010
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my view, apart from recouping the loss the Board has suffered, this order does not lead me to infer that the recovery was as a punishment imposed in conclusion of the disciplinary proceedings. Therefore, I am not prepared to conclude that the disciplinary action has come to a close by Ext.P4 and that therefore, the respondents were not justified in issuing Ext.P6."
The learned Judge further held as follows:
"Therefore, unless there is some other liability due from the petitioner, there is absolutely no justification for not disbursing DCRG that is due to him. Therefore, it is directed that, if no other liability is outstanding from the petitioner, the DCRG that is due to the petitioner shall be released to him as expeditiously as possible, at any rate, within four weeks of production of a copy of this judgment. ....................
Needless to say that if final orders in the disciplinary proceedings are not passed within eight weeks as directed, further proceedings against the petitioner shall be discontinued and his terminal benefits shall be settled forthwith."
8. Hence the appeal.
9. During the pendency of the appeal a further order dated 14.7.2010 came to be passed by the second respondent herein. It is recorded in the said order that in the enquiry all the charges levelled against the accused were proved. Therefore, the second respondent ordered that the period of suspension undergone by the W.A.No.1194 of 2010
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appellant shall not be counted for any purpose. In other words, a punishment of suspension from service was awarded. Relevant portion of the said order reads as follows:
"However taking into consideration of the fact that the accused is a Pensioner, and more than one punishment is against natural justice, this authority feels that both barring of increments and treating of suspension period as L W A at a time are undesirable, and hence it is hereby ordered to finalize the proceedings by treating the suspension period as Suspension itself, and the period will not be counted for any purpose. No other punishments are ordered."
10. Sri.S.A.Razzak, learned counsel for the appellant argued that in view of the fact that the appellant was allowed to retire from service on 31.7.2009, the legal relationship of employer and employee between the first respondent and the appellant came to an end and therefore the appellant is beyond the disciplinary control of the first respondent except to the extent indicated under Rule 3 of Part III of the Kerala Service Rules. The said rule reads as follows:
"3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether W.A.No.1194 of 2010
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permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement:
Provided that -
(a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service;
(b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment.-
(i) shall not be instituted save with the sanction of the Government;
(ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service;
(c) no such judicial proceedings, if not instituted while the employee was in service wether before his retirement or during his re-employment, shall be instituted, save with the sanction of W.A.No.1194 of 2010
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the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution; and
(d) the Public Service Commission shall be consulted before final orders are passed.
Explanation.- For the purpose of this rule -
(a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and
(b) a judicial proceeding shall be deemed to be instituted -
(i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance is made; and
(ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court."
Admittedly these rules framed under Article 309 of the Constitution were adopted by the first respondent which is a statutory Board.
11. We do see force in the submission made by the learned counsel for the appellant. On the termination of employment, the employer loses disciplinary control over the employee. Their legal relationship of employer-employee comes to an end on the termination of the employment. However, in the case W.A.No.1194 of 2010
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of employment under the State, the State by appropriate law may retain some authority to deal with its erstwhile employees. Rule 3 of Part III of the Kerala Service Rules is such a law which authorises the State to withhold the pension of a former employee either totally or partially. Such withholding could be either permanent or for a specified period in the contingencies mentioned in the said rule. Such contingencies are (1) the pensioner is found guilty in a departmental proceeding of grave misconduct or negligence during the course of his service or (2) in a judicial proceeding such a finding is recorded. Further it is required under sub-rule (a) of Rule 3 of the Kerala Services Rules that the departmental proceedings referred to under Rule 3 need not have been concluded while the employee was in service. Sub-rule (a) of Rule 3 authorises the continuation of a pending departmental proceeding even after the retirement of the employee against whom proceedings were initiated.
12. In the instant case, admittedly, departmental proceedings were initiated while the appellant was in the service of W.A.No.1194 of 2010
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the first respondent Board. Therefore, the authority of the first respondent to continue the pending departmental proceeding against the appellant is undoubted. But the course of action open to the first respondent on the conclusion of such an enquiry is limited, i.e. it could only have ordered the withholding of pension either partially or totally as already indicated earlier. It may also be mentioned here that it is a well established principle that in the matters of employment under the State pension is an amount payable to the erstwhile employee of the State for the satisfactory service rendered by such an employee. A principle which found expression in Rule 59 of Part III of the Kerala Service Rules.
13. In the circumstances, the decision of the first respondent evidenced by the proceedings dated 14.7.2010 not to count the period spent by the appellant under suspension for any purpose, in our opinion, is not sustainable. Therefore, the order dated 14.7.2010 insofar as it declares that the period of suspension of the appellant herein will not be counted for any purpose is declared to be illegal. We make it clear that we are not interfering W.A.No.1194 of 2010
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with the finding of guilt of the appellant recorded in the said order. It is open to the respondents now to take such other appropriate action as is permissible to them under law against the appellant.
Writ appeal is disposed of as above.
J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns