George Satish A.R. v. Fertilizers and Chemicals Travancore Ltd. (FACT)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940 WP(C).No. 12504 of 2017** ## **PETITIONER:** **GEORGE SATISH A.R, B NO.12740, GENERAL MANAGER (FINANCE-II-RETIRED), FERTILIZERS AND CHEMICALS TRAVANCORE LTD.(FACT), HEAD OFFICE, ELOOR,UDYOGAMANDAL, ERNAKULAM-683 501.** **BY SRI.K.JAJU BABU,SENIOR ADVOCATE ADV.SMT.M.U.VIJAYALAKSHMI** **RESPONDENT(S):** **1. FERTILIZERS AND CHEMICALS TRAVANCORE LTD (FACT), REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, HEAD OFFICE, ELOOR, UDYOGAMANDAL, ERNAKULAM-683 501. 2. THE CHAIRMAN AND MANAGING DIRECTOR, FERTILIZERS AND CHEMICALS TRAVANCORE LTD.(FACT), CORPORATE OFFICE,ELOOR, UDYOGAMANDAL, ERNAKULAM-683 501. 3. THE CHIEF GENERAL MANAGER(HR), FERTILIZERS AND CHEMICALS TRAVANCORE LTD.(FACT), CORPORATE OFFICE,ELOOR, UDYOGAMANDAL, ERNAKULAM-683 501. R1 TO R3 BY SRI.E.K.NANDAKUMAR,SENIOR ADVOCATE ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts 12/4/2018** ## **WP(C).No. 12504 of 2017 (K)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXHIBIT P1 COPY OF THE PROCEEDING VIDE NO.CGM (HR) -CODATED 02.01.2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P2 COPY OF THE PROCEEDINGS VIDE REF.NO.CGM(HR)-DOCO2-079 DATED 28.3.2017 HANDING OVER THE CHARGE BETWEEN THE PETITIONER AND SRI.RADHAKRISHNAN** - **EXHIBIT P3 COPY OF THE PUNCHING OUT OF THE PETITIONER AT 16.31 ON 31.03.2017** - **EXHIBIT P4 COPY OF THE MEMORANDUM VIDE NO.CMD-CO-023** - **EXHIBIT P5 COPY OF THE INTIMATION GIVEN BY BLUE DART EXPRESS LTD. AND THE COVER CONTAINING THE EXT.P4 MEMORANDUM ISSUED TO THE PETITIONER** - **EXHIBIT P6 COPY OF THE COVER AND INVOICE FORWARDING INTIMATION VIDE NO. CGM (HR)-CO-088 DATED 31.3.2017 TO THE PETITIONER** - **EXHIBIT P7 COPY OF THE FACT EMPLOYEES (CONDUCT DISCIPLINE APPEAL) RULES 1977.** - **EXHIBIT P8 COPY OF THE RELEVANT EXTRACT OF VIGILANCE MANUAL PUBLISHED BY THE 1ST RESPONDENT** - **EXHIBIT P9 COPY OF THE PROCEEDINGS VIDE NO. CMD-CO-H21 DATED 30.05.2009 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P10 COPY OF THE OFFICE MEMORANDUM DATED 27/5/2002 ISSUED BY THE DEPUTY GENERAL MANAGER (IR)** - **EXHIBIT P11. COPY OF THE LETTER VIDE NO.016/C&F/011-3465 DATED** - **5/6/2017 OF THE DIRECTOR OF CENTRAL VIGILANCE COMMISSION.** **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A.TO JUDGE** **sts 12/4/2018** ## **P.V.ASHA, J.** ## **W.P.(C) No.12504 of 2017** ## **Dated this the 6[th] day of April, 2018** ## **JUDGMENT** The petitioner, who retired from service while working as a General Manger (Finance) on 31.03.2017, is aggrieved by the memo of charges, Ext.P4 issued to him on 31.03.2017 after he got relieved from the office at 04:30 p.m. 2. Even before the retirement, Ext.P1 notice was issued to petitioner intimating his retirement on 31.03.2017. Petitioner's case is that Ext.P4, memo of charge was issued to him at 09:30 p.m. By Ext.P2 proceedings he had handed over charge to Sri.R.Radhakrishnan, Deputy General Manager, in the proforma for handing over/taking over of charge on retirement/resignation. Relying on Ext.P3 details regarding punching, petitioner points out that he punched out at 04.31 p.m. on 31.03.2017 from the Head Office. Petitioner also states that after the sent off, petitioner was dropped at his residence at Kalamassery in the company car along with his colleagues in the Finance Department; thereafter the Junior Executive Secretary to 3[rd] respondent as well as Records Assistant came to the residence of the petitioner in order to confirm his presence at home; Ext.P4 memo of charges was served on petitioner thereafter by 09:30 p.m. On the W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** basis of information collected from the courier service, petitioner submits that article for delivery to petitioner was received in their office at 08:30 p.m. Apart from that he received Ext.P6 intimation also by registered post on 03.04.2017. 3. The case of the petitioner is that the FACT Employees (Conduct, Discipline and Appeal) Rules, 1977 (hereinafter referred to as 'the Rules') do not permit any disciplinary action against a person who retired from service and therefore the memo of charge Ext.P4 served on him after he was relieved on superannuation, cannot be permitted to proceed further and the respondents do not have any right to proceed against him after his retirement, on the basis of the said memo of charge. 4. The respondents have filed a counter affidavit stating that the petitioner being a General Manager, was expected to be on 24 hours' duty. In Paragraph 6 of the counter affidavit, it is stated that the Department of Fertilizers as per letter dated 18.07.2016 sought a detailed Investigation Report from the Chief Vigilance Officer of the Company in respect of the allegations of irregularities with respect to a tender awarded to M/S NSS & Company for lifting the Gypsum. There were allegations as to collusion of some officials with the tenderers. The Department of Fertilizers obtained a report as per letter dated W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** 06.10.2016 and directed the Company to take disciplinary action against the then Chief General Manager (Marketing), Chief General Manager (Finance), Deputy General Manager (Marketing Operations), Deputy General Manager (Special Products), General Manager (Finance) and Deputy General Manager (Internal Audit). Petitioner was then the General Manager (Finance) and petitioner is one among the officers against whom penalty was recommended and the memo of charge was issued in the above circumstances. The charge sheet was received at the office of the Disciplinary Authority i.e., Chairman and Managing Director of the Company, around 06:00 p.m on 31.03.2017 and immediately thereafter the memo of charge was served to the petitioner through a messenger, who is Senior Personal Secretary to Chief General Manager (HR), at about 07:00 p.m. on 31.03.2017. It is stated that petitioner refused to accept the same. 5. Therefore, it is the case of the respondents that though petitioner's superannuation was on 31.03.2017, since the memo of charge was served on petitioner by 07:00 p.m. on the day of superannuation itself proceedings can be continued against him, under Rule 32 of the Rules (Ext.P7). It is also stated that the duty time of Management employees is 24 hours a day and therefore based on the memo of charge, which was served on him by 07.30 PM, can be acted W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** upon. Producing the report of messenger as Ext.R1(b), it is stated that the memo of charge Ext.P4 was served on the party by 07:20 p.m. The respondents assert that petitioner can be proceeded against under Rule 32 of the Rules. 6. Petitioner has filed reply affidavit asserting that memo of charge was served on him only at 09:00 p.m. It is stated that since the charge sheet itself was served to the petitioner after petitioner was relieved from the duties of the General Manager, no proceedings can be initiated against him. 7. The learned Senior Counsel appearing for the petitioner pointed out that in the absence of a rule permitting initiation of disciplinary action after the retirement, Ext.P4 is liable to be set aside. It is pointed out that the retirement benefits due to petitioner are withheld on account of the memo of charge. Pointing out Ext.P8 proceedings regarding the manner in which the charge sheet is to be served, it was stated that Ext.P4 was served on the petitioner only after he was relieved. 8. The learned Senior Counsel for the petitioner relied on the judgments of this Court in _**Xavier v. KSEB**_ **:** _**1979 KLT 80; Bhaskaran Pillai v. Devaswom Commissioner**_ **:** _**1997 (1) KLT 428; Union of India v. George : 2003 (3) KLT 387**_ , etc whereas W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** the learned Senior Counsel appearing for the respondents relied on the judgment in _**Delhi Development Authority V H.C. Khurana**_ **:** _**(1993) 3 SCC 196**_ , pointing out that nature of allegations raised against the petitioner requires continuance of the disciplinary action after his retirement. 9. I have heard the learned Counsel on either side. 10. On consideration of the rival contentions, it is clear that the memo of charge was served on the petitioner only after 07:00 p.m. The General Manager or any employee cannot be expected to work for 24 hrs on the date of his retirement, that too after he got relieved after handing over charge as per Ext.P2 proceedings. Therefore, there cannot be any doubt over the fact, that the memo of charge was served on the petitioner subsequent to his retirement from service. If that be so, as there is no provision in the Rules which provides for initiation of any disciplinary action after the retirement, the respondents do not have any authority to proceed with Ext.P4 memo of charges. The relevant portion of Rule 32 of Rules reads as follows: _“32. (i) Disciplinary proceedings, 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 proceeding 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.”_ 11. Admittedly there is no other provision which permits the W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** respondents to proceed against the petitioner after retirement from service. In _**H.C.Khurana's**_ case (supra), relied on by the learned Senior counsel for the respondents, the apex court was considering the question whether sealed cover procedure can be adopted by the Departmental Promotion Committee, before the charge sheet was actually served on the employee, when the employer claimed that the DPC met in November 1990, after the charge sheet was already dispatched on 13.07.1990 and it could not be served because the employee was on medical leave and could be served on him only in January 1991. The apex court found that since the DPC met while the effort to effect personal service of charge sheet was going on, it was not necessary to adopt sealed cover procedure. In that case, the relevant office memorandum governing the procedure to be adopted by the DPC reads as follows: _“Government servants in respect of whom disciplinary proceedings are pending or decision has been taken to initiate disciplinary proceedings”._ The judgment in that case was delivered in the context aforementioned. In paragraph 9 of the judgment the apex court further examined the question “what is the stage, when it can be said that a decision has been taken to initiate disciplinary proceedings,” referring to the relevant office memorandums dated 12.1.1988, W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** 14.09.1992, etc dealing with the procedure for adopting sealed cover procedure. In that context it was held that delay if any in the service of the charge sheet to the Government servants after it has been framed and dispatched does not have the effect of delaying initiation of the disciplinary proceedings as the information to the Government servant of the charges framed against whom by service of charge is not a part of the decision making process of the authorities for initiating the disciplinary proceedings. Therefore I am of the view that the judgment in the aforesaid case cannot be applied in the factual circumstances of the present case. The office memorandums referred to in those case are not at all relevant in the present case. Admittedly the memo of charges itself is issued on 31.3.2017. In the present case it is Ext.P7 regulation which is applicable. The respondents cannot act contrary to those regulations. 12. Rule 32 of the Rules permits initiation of disciplinary proceedings only against those employees who are in service. It permits the respondents to continue only those proceedings which are already instituted. Institution of disciplinary proceedings cannot be equated to the decision making process mentioned in the office memorandum, which means disciplinary proceedings have already been initiated or started. W.P.(C) No.12504/17 **==> picture [14 x 9] intentionally omitted <==** 13. It is relevant to note that the Full Bench of this court had in the judgment in _**Xavier's**_ case (supra), after considering the provisions in clause 2 and 6 of Kerala State Electricity Board (Employees Disciplinary Proceedings Tribunal) Regulations, 1969 and the provisions in Rule 3 of Part III KSR (as it existed then) held that in the absence of any action under Regulation 6(C) which permitted only Government to refer a case to the Tribunal, the respondents did not have any authority to proceed against a person after his retirement, especially when the regulations were applicable only to the employees alone. In _**Bhaskaran Pillai's**_ case (supra), a learned Single Judge of this Court, set aside the penalty of compulsory retirement imposed after retirement with effect from date of suspension, in a disciplinary action initiated while the employee was in service. This court, following the Full Bench judgment in _**Xavier's**_ case held that the Devaswom Board does not have any authority to impose such a penalty after retirement, as the rules do not authorise for the same. In the light of these judgments also, as argued by the learned Senior Counsel for the petitioner, there cannot be any doubt that an employer cannot have any authority to proceed with disciplinary action except in accordance with rules and in the absence of any rules, disciplinary action cannot be taken after retirement and it cannot be continued if it was not W.P.(C) No.12504/17 :9: ## instituted before retirement. Therefore Exts.P4 to P6 are only to be set aside. There shall be a direction to the respondents to sanction and disburse all the retirement benefits due to the petitioner within a period of one month from the date of receipt of a copy of the judgment. The Writ Petition is accordingly allowed. **P.V.ASHA JUDGE** ww/rkc