Damodaran Vikraman v. Secretary, Corporation of Cochin

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 14TH DAY OF MARCH 2016/24TH PHALGUNA, 1937 WP(C).No. 8913 of 2012 (L) --------------------------- PETITIONER: ---------- DAMODARAN VIKRAMAN AGED 64 YEARS S/O.DAMODARAN, PATTATHIL PARAMBU COLONY KACHERIPADY, PALLURUTHY, KOCHI-6. BY ADVS.SRI.K.S.MADHUSOODANAN SRI.THOMAS CHAZHUKKARAN SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SMT.M.A.RUXANA RESPONDENT: ----------- SECRETARY CORPORATION OF COCHIN, ERNAKULAM-682 011. R1 BY ADV. SRI.V.V.JOSHI,SC,COCHIN CORPORATION R1 BY ADV. SRI.K.P.JUSTINE(KARIPAT)SC,COCHIN CORPN BY SRI.P.K.SOYUZ,SC,COCHIN CORPORATION THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **APPENDIX** ## PETITIONER(S) EXHIBITS EXHIBIT P1- PHOTOCOPY OF THE NOTICE BEARING NO.WZH.9/82/2005 ISSUED BY ASSISTANT HEALTH OFFICER, MATTANCHERY ZONAL OFFICE. EXHIBIT P2- PHOTOCOPY OF THE REPRESENTATION TO THE RESPONDENT BY THE PETITIONER DATED 6.7.11. EXHIBIT P3- PHOTOCOPY OF THE REPRESENTATION TO THE RESPONDENT DATED 25-5-09. EXHIBIT P4- PHOTOCOPY OF THE NOTICE DATED 4-6-12, BEARING NO.WZH9/273/04. EXHIBIT P5 - PHOTOCOPY OF THE EXPLANATION DATED 7-6-12 TO THE RESPONDENT. EXHIBIT P6 - PHOTOCOPYY OF THE REMOVAL ORDER BEARING NO.WZH9/273/04 DATED 6-7-12. RESPONDENTS' EXHIBITS NIL //TRUE COPY// PA TO JUDGE ## **A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.8913 of 2012 ---------------------------------------Dated this the 14[th] day of March 2016 ## **J U D G M E N T** Petitioner was employed as a contingent employee of the Corporation from 01/04/1976 onwards. He was unauthorisedly absent since 01/04/2000. Subsequently, disciplinary action was initiated against him. But, no action was taken pursuant to the charge memo submitted. He retired from service on 30/06/2008. In the meantime, petitioner was served with a letter from the Corporation intimating his date of superannuation and calling upon him to submit the pension papers. 2. Since no action was taken in the matter, petitioner submitted Ext.P3 representation dated 25/05/2009 requesting for treating the period of absence as leave and to pay him the pensionary benefits. By Ext.P4 dated 04/06/2012 he was called upon to submit an explanation as to why further proceedings should not be taken in regard to unauthorised absence and the charge memo issued against him. Petitioner submitted Ext.P5 reply stating that he could not attend duty on account of various reasons narrated therein and he denied the charge of W.P.C.No.8913/2012 -: 2 :- unauthorised absence. Ext.P6 order dated 06/07/2012 has been passed dismissing him from service effective from 01/04/2000. Ext.P6 is under challenge wherein the petitioner contends that no punishment of major misconduct can be imposed after his date of retirement. 3. Learned counsel placed reliance upon the judgment of the Division Bench in **Jayarajan v. State of Kerala** [2001(3) KLT 929]. In that case, charge memo was issued on an employee alleging that he was lying unconscious and in a fully drunken state. While considering the question as to whether disciplinary action should continue after the date of superannuation, it was held at paragraphs 6 and 7 as under: _“6. The main contention urged before us is that the proceedings to impose a penalty under R. 15 cannot be continued against him after his retirement from service. It is also submitted that the proceedings could not be continued under R. 3 of Part III of Kerala Service Rules in the absence of any allegation of pecuniary loss to the Government. We are inclined to accept the contention of the appellant that after his retirement, it is not permissible to proceed against him under R. 15 for the purpose of imposing a major penalty, but we are of the view that_ W.P.C.No.8913/2012 -: 3 :- _the proceedings can be continued against him under R. 3 of Part III Kerala Service Rules. The contention of the appellant that the charges levelled against him do not disclose allegations of cause of monetary loss to the Government appears to be not correct. The appellant who is to be a vigilant sentinel guarding the checkpost was found lying unconscious in a drunken state. Therefore, at the relevant time the smugglers could have merrily carried on their activities unhindered by anyone. The same would definitely cause loss of revenue to the State. Therefore, the contention that his misconduct did not result in loss of revenue to the State cannot be accepted. Further, the power under R. 3 for reducing pension can be exercised even in the absence of allegation of pecuniary loss to the Government. The relevant portion of R. 3 reads as follows:_ _**“3.** The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether 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 reemployment after retirement.”_ W.P.C.No.8913/2012 -: 4 :- _A close scrutiny of the Rule would show that the Government reserve to themselves two rights:-_ _(1) the right to withhold or withdraw a pension or any part of it whether permanently or for a short period;_ _(2) the right to order recovery from pension of the whole or any part of the pecuniary loss caused to the Government. These two rights are distinct and separate. The first right could be exercised even in the absence of any pecuniary loss to the Government."_ _X X X X_ _"7. In view of the above, we confirm the judgment of the learned single Judge with a slight modification. The proceedings against the appellant shall be continued against him under R. 3 Part III Kerala Service Rules instead of R.15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. In every other respects, the judgment under appeal is confirmed."_ 4. On the other hand, learned counsel for the respondent Corporation submits that they are entitled to proceed with the disciplinary action and it is only a continuation of the proceedings taken earlier. W.P.C.No.8913/2012 -: 5 :- 5. It is not in dispute that after a charge memo was issued to the petitioner while he was in service on the allegation of unauthorised absence, no further steps were taken to complete the disciplinary action. Disciplinary action now taken pursuant to Ext.P6 is after the date of superannuation. As held by the Division Bench in **Jayarajan** (supra), steps could be taken under Rule 3 of Part III of Kerala Service Rules, when there is any pecuniary loss caused to the Government or when the pensioner is found to be guilty of grave misconduct. In the present case, there was no reason to continue the disciplinary action on the mere allegation of unauthorised absence. It is not a case of grave misconduct or where any monetary loss has been caused to the Corporation. No such reasons have been stated in the show cause notice or charge memo. Under such circumstances, Ext.P6 is illegal and is liable to be set aside. In the result, i) The writ petition is allowed and Ext.P6 is set aside. ii) It is declared that the petitioner was in service of the Corporation from 01/04/1976 to 01/04/2000. W.P.C.No.8913/2012 -: 6 :- iii) Petitioner shall be entitled for pension and other benefits taking into consideration his service from 01/04/1976 to 01/04/2000 and all the benefits due to the petitioner shall be paid within a period of three months from the date of receipt of a copy of this judgment. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr //True Copy// PA to Judge