Rajendran S vs Kerala State Road Transport ...
2021 Latest Caselaw 2190 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

   WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                      WP(C).No.10246 OF 2020(E)


PETITIONER:

               RAJENDRAN S.,
               (DEPOT ENGINEER, KSRTC, CENTRAL WORKS, PAPPANAMCODE,
               RETIRED ON 31/10/2006), RESIDING AT SREE PADMAM,
               TC 53/378, R.K.N. LANE, MANKULAM ROAD,
               PAPPANAMCODE P.O., THIRUVANANTHAPURAM-695018.

               BY ADV. SHRI.K.P.RAJEEVAN

RESPONDENTS:

      1        KERALA STATE ROAD TRANSPORT CORPORATION,
               REPRESENTED BY ITS MANAGING DIRECTOR,
               TRANSPORT BHAVAN, FORT,
               THIRUVANANTHAPURAM,PIN-695023.

      2        THE MANAGING DIRECTOR,
               KERALA STATE ROAD TRANSPORT CORPORATION,
               TRANSPORT BHAVAN, FORT,
               THIRUVANANTHAPURAM,PIN-695023.

      3        THE MECHANICAL ENGINEER (WORKS),
               KSRTC, CENTRAL WORKS, PAPPANAMCODE,
               THIRUVANANTHAPURAM, PIN-695018.

      4        EXECUTIVE DIRECTOR (VIGILANCE),
               KERALA STATE ROAD TRANSPORT CORPORATION,
               TRANSPORT BHAVAN, FORT,
               THIRUVANANTHAPURAM, PIN-695023.

               R1-4 BY ADV. SRI.DEEPU THANKAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.10246 OF 2020(E)

                                2

                         JUDGMENT

Dated this the 20th day of January 2021

Petitioner is aggrieved of an order removing him from

service with retrospective effect, that too in 2019, though he

deemed to have retired on 31.10.2006.

2. The facts from the averments, reveal, that petitioner,

on 28.01.1978, entered into the service of Kerala State Road

Transport Corporation (KSRTC) as Chargeman. His recruitment

was through Public Service Commission. Period of probation as

Chargeman was successfully completed. He was, on 14.09.1992,

promoted as a Depot Engineer.

3. Learned counsel appearing on behalf of the petitioner

submitted that petitioner performed his duties with all his

dedication and without any demur. He submitted an application

for leave as per the provisions of Appendix XIIA of Part-I of

Kerala Service Rules for seeking employment abroad. Vide order

dated 15.09.1992 leave was granted to him for a period of five

year with effect from 17.09.1992. Later it was extended vide

order dated 22.08.1997. Petitioner was permitted to join on

29.07.1998 as Depot Engineer in the Neyyattinkara depot of the

KSRTC.

WP(C).No.10246 OF 2020(E)

4. Petitioner also applied for leave for seeking

employment abroad which was sanctioned on 09.10.1998. He

availed the leave from 10.10.1998 and was permitted to rejoin

after cancelling of un-availed portion of leave as per order dated

27.11.2000. The process of granting the leave continued and he

was readmitted on 19.08.2005. It was next contended that when

the petitioner joined his duty after employment abroad, some

amount on account of arrears of salary and other eligible benefits

were due to him from his foreign employer. Petitioner submitted

that he was suffering from rheumatic complaints and other illness

and applied for leave for three months ie., 25.08.2005 to

22.11.2005. But the leave was not granted. Faced with this

situation he submitted an application for voluntary retirement on

27.05.2006 (Ext.P6) but the same was not considered. However,

during the period of his service he was served with a Memo of

charges on 15.06.2006 (Ext.P7). Reply was submitted vide Ext.P8

dated 25.04.2007 and thereafter nothing was communicated

from the department regarding the appointment of the Enquiry

Officer nor the petitioner was called upon to join the enquiry

proceedings. Petitioner submitted a representation for release of WP(C).No.10246 OF 2020(E)

his pensionary benefits, but it resulted into passing of the

impugned order Ext.P12 whereby he was informed that he was

removed from service with effect from 25.08.2005. The

impugned order Ext.P12 has been passed on 18.04.2019 almost

thirteen years after the deemed date of superannuation.

5. In support of the contention he relied upon the

provisions of Rule 15 of the Kerala Civil Services (Classification,

Control and Appeal) Rules ('KCS (CC & A) Rules' for short), the

procedure for imposing of major penalty. For imposing a major

penalty including the removal a separate procedure is prescribed.

After the receipt of the enquiry report, disciplinary authority is

required to follow the procedures of natural justice and serve a

copy of the report of the enquiry authority and take action, if any,

in accordance with law. Rule 3 of part-III of the Kerala Service

Rules enables the Government to withhold or withdraw pension in

respect of the circumstances prescribed therein with an

explanation that the departmental proceedings shall be deemed

to be instituted on the date on which the statement of charges

was issued to the employee or pensioner or if the employee had

been under suspension, from an earlier date. In support of the WP(C).No.10246 OF 2020(E)

contention he relied upon the judgment of this Court dated

04.06.2014 rendered in W.P.(C).No.22231/2006 titled as

Y.Xaviour Solomon v. Kerala State Road Transport

Corporation wherein in an identical situation, the Court held that

the major punishment as contemplated under Rule 15 of KCS (CC

& A) Rules cannot be imposed on an employee, that too after

thirteen years of the deemed date of superannuation, except that

the department has the power to continue with the enquiry as

per Rule 3(A) of Part III of KSR. No pecuniary loss has been

caused to the department, therefore, the pension cannot be

withheld. Reliance has been laid to circular of the Government

dated 07.03.1990 issued by the Department of Personnel &

Administrative Reforms (Advice - C) Department. It has come to

the notice of the Government regarding certain instances where

disciplinary actions initiated against the Government servants for

serious misconduct, dereliction of duty etc., could not be finalised

due to their retirement on superannuation. It was decided that

the disciplinary authorities will take special care to ensure that

the disciplinary cases pending against the Government servants

are finalised expeditiously in any case, before the concerned WP(C).No.10246 OF 2020(E)

Government servant retire from service on superannuation.

Petitioner was served with a memo of charges on 15.06.2006 and

his date of retirement was 31.10.2006 and urged this Court for

quashing of Ext.P12 with a further direction to the 2 nd respondent

to release his pensionary benefits.

4. Per contra, learned counsel appearing on behalf of

Sri.Deepu Thankan submits that they do not deny the factum of

granting of leave and the rejection of the leave as well as the

service of the charge sheet on 15.06.2006, but, submits that no

such reply as proposed to be projected before this Court vide

Ext.P8 had been received in the office. petitioner never retired

from the service and therefore, his removal from the service on

receipt of the enquriy report with retrospective effect was in

accordance with the Rules and Law. He remained on unauthorised

absence for years and therefore, was deemed to be removed

from service with effect from 25.08.2005. No explanation to the

charge sheet had been received. He had been taking leave

intermittently during the service for taking employment abroad in

the name of medical issues. It is a grave misconduct. The circular

do not apply to the case in hand; the order is justified and urged WP(C).No.10246 OF 2020(E)

this Court for dismissal of this writ petition.

5. I have heard the learned counsel for the parties and

appraised the paper book. It would be appropriate to extract the

copy of the circular:

PERSONNEL & ADMINISTRATIVE REFORMS (ADVICE-C) DEPARTMENT CIRCULAR No.20426/Adv. C3/89/P&ARD. Thiruvananthapuram, 7th March, 1990.

Sub: - Public Services - Disciplinary action against Government servants - Finalisation before retirement - Instructions Issued.

Certain instances have come to the notice of Government in which the disciplinary action initiated against Government servants for serious misconduct, dereliction of duty etc., could not be finalised due to their retirement on superannuation.

Disciplinary action under the Kerala Civil Services (Classification, Control and Appeal) Rules can be initiated and continued against the Government servants, only till they remain in the service under Government. The penalties contemplated in Rule 11 of the above rules cannot be imposed on them after their retirement. So far as a retired Government servant is concerned, the possible action that can be taken against him is to withhold or withdraw pension or any part of it whether permanently or for a specified period from him and to order recovery from pension of the whole or part of any pecuniary loss caused to Government if in a departmental or Judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement, as provided under rule 3, Part III, Kerala Service Rules.

WP(C).No.10246 OF 2020(E)

In the above circumstance, all the Disciplinary Authorities will take special care and ensure that the disciplinary cases pending against the Government servants are finalised expeditiously in any case, before the concerned Government servant retire from service on superannuation.

By order of the Governor, LIZZIE JACOB, Secretary to Government."

6. Rule 15 of KCS (CC & A) Rules envisage imposition of

penalty and a separate procedure is prescribed in respect of any

employees who were issued with a show cause notice during the

service for imposition of major penalty, the disciplinary authority,

has to comply with the procedure ie., to supply the copy of the

enquiry report and for imposition of penalty (major) show cause

notice is required. The applicability of the aforementioned Rule

has not been controverted, therefore, I do not intend to pextract.

7. The reply of respondent do not spell out as to whether

the department had appointed Enquiry Officer and inquiry, if any,

culminated into receipt of enquiry report on behalf of the

disciplinary authorities. Pleading is not only vague and but

evasive. There can be a case wherein employees served with a

charge sheet is required to be intimated whether reply filed to WP(C).No.10246 OF 2020(E)

the charge sheet was not found favourable and the department

intended to continue with enquiry by appointing an Enquiry

Officer. There is no such pleading to that effect or any whisper of

any enquiry report. The reply is also bereft of any particulars

whether Enquiry Officer, if any, had submitted a report which was

supplied to the petitioner or service of any show cause notice

before imposition of major penalty memo. In fact, in the

judgment cited supra this Court had an occasion to ponder upon

the provisions of Rule 15 and found that the relationship of

employer-employees ceases to exist and the major penalty of

retired employee cannot be imposed. For the sake of brevity

paragraphs 6 and 7 of W.P.C.No.22231/2006 dated 04.06.2014

are extracted herein below:

"6. Learned counsel for the petitioner also placed reliance on a decision of this court in Bhaskaran Pillai, G V. Devaswom Commissioner and others (1997 (2) ILR Kerala 765). It is held therein that, when an employee retires from service, the master and servant relationship ceases. Thereafter the master has no authority to take any disciplinary action. It is observed that in such context Rule 3 of Part I KSR provides that any disciplinary action taken while the employee is in service can be continued after his date of superannuation. But the above proceedings can only culminate in an order by which recovery can be ordered from his pension and it cannot end in any punishment enumerated in the KCS (CC & A) Rules.

WP(C).No.10246 OF 2020(E)

7. In a recent decision the position was again reiterated in Ayyappan Pillai V. K.S.E.B. (2010 (4) KLT SN 65) (C.No.77)). It is held that on the termination of employment the employer loses disciplinary control over the employee, as the employer-employee relationship comes to an end. But the State can retain some authority to deal with those erstwhile employees under Rule 3 of Part III KSR to withhold the pension of a former employee either totally or partially. Such withdrawal can be either permanent or for a specific period in the contingencies mentioned in the said Rule."

8. While deciding the aforementioned case, it was held

that the department is not precluded from initiating the enquiry

under Rule 3 of KSR ie., for withholding or reduction of pension in

case of any monetory loss. But, the counter do not reveal that

actions of the petitioner had resulted into any monetory loss.

Explanation to Rule 3 though envisages that the deemed date of

enquiry would be the service of charge sheet/memo charge which

was served on 15.06.2006 when the petitioner was in service. It

is not a case of the respondent the petitioner continued to report

for duty in the absence of order of retirement. He deemed to

have retired on the date of his attaining superannuation. The

question which revolves now is whether in such circumstances he

is entitled to receive the pension due to him. I cannot remain WP(C).No.10246 OF 2020(E)

oblivious that the petitioner had obtained intermittent leaves for

taking employment abroad which was granted of course without

salary. But his last leave was cancelled and he was served with

the charge sheet. I am of the view that since the stand of the

department do not reveal any compliance of Rule 15 though the

charge sheet was served under Rule 15. For the reason

aforementioned the impugned order Ext.P12 is not sustainable

and is fallacious. Accordingly, the same is quashed.

The writ petition is allowed. The respondents are directed to

take a call on the release of the pension due to the petitioner in

accordance with law and afford an opportunity of hearing in case

they intend to comply with the provisions of Rule 3. Let this

exercise be undertaken within a period of three months from the

receipt of certified copy of this judgment.

Sd/-

AMIT RAWAL

JUDGE nak WP(C).No.10246 OF 2020(E)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF PAGE NUMBERS 1, 8,13 AND 23 OF THE SERVICE BOOK OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF ORDER NO.

D.DIS.56696/GL1/92/RTC DATED 15/09/1992 ISSUED BY THE RESPONDENT CORPORATION.

EXHIBIT P3 A TRUE COPY OF ORDER NO.44539/GL2/RTC DATED 22/08/1997 ISSUED BY THE RESPONDENT CORPORATION.

EXHIBIT P4 A TRUE COPY OF ORDER NO.D.DIS(GL2) 53046/98/RTC DATED 09/10/1998 ISSUED BY THE RESPONDENT CORPORATION.

EXHIBIT P5 A TRUE COPY OF ORDER NO.3489/GL2/2002/RTC DATED 31/08/2002 ISSUED BY THE RESPONDENT CORPORATION.

EXHIBIT P6 A TRUE COPY OF THE REQUEST OF VOLUNTARILY RETIREMENT SUBMITTED BY THE PETITIONER ON 27/05/2006.

EXHIBIT P7 A TRUE COPY OF THE MEMO OF CHARGE NO.VLC1-08917/2006 DATED 15/06/2006 WITH STATEMENT OF ALLEGATION.

EXHIBIT P8 A TRUE COPY OF REPLY TO THE MEMO OF CHARGES DATED 25/04/2007 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF KSRTC.

EXHIBIT P9 A TRUE COPY OF REPRESENTATION DATED 20/11/2007 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P10 A TRUE COPY OF REPRESENTATION DATED 25/03/2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P11 A TRUE COPY OF REPRESENTATION DATED 31/03/2019 FILED BY THE PETITIONER WP(C).No.10246 OF 2020(E)

BEFORE THE 2ND RESPONDENT.

EXHIBIT P12 A TRUE COPY OF ORDER NO. VLC1-01144/19 DATED 185/04/2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P13         TRUE COPY OF JUDGEMENT IN WPC
                    NO.22231/2006 DATED 4/6/2014 OF THIS
                    HON'BLE COURT

EXHIBIT P14         TRUE COPY OF JUDGEMENT DATED 10/2/2015
                    IN W.P.C 20038/2003