M.S. Velayudhan v. The Managing Director, Kerala State Road Transport Corporation, Thiruvananthapuram, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **WEDNESDAY, THE 25TH DAY OF MAY 2011/4TH JYAISHTA 1933** **WP(C).No. 23830 of 2008 (J) ----------------------------------** ## **PETITIONER(S):** ## **-------------------** ## **M.S. VELAYUDHAN, AGED 60 YEARS,** **S/O SANKARAN, RESIDING AT CHACKALAPARAMBIL HOUSE KUMBALAM P.O., KOCHI 682 506, (CONDUCTOR RETIRED ON 31/05/2003,K.S.R.T.C., KODUNGALLUR).** **BY ADV. SRI.K.P.JUSTINE (KARIPAT)** ## **RESPONDENT(S):** **---------------------** **1. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN FORT P.O., THIRUVANANTHAPURAM -23.** **2. THE EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN,FORT P.O.,THIRUVANANTHAPURAM -23.** **3. THE APPELLATE AUTHORITY, KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN,FORT P.O.,THIRUVANANTHAPURAM -23.** **BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC SRI.JOHNSON P.JOHN, SC, KSRTC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-05-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **W.P.(C). NO. 23830/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE ORDER NO.VLD2/011313/2002 DATED 14/05/2002 ISSUED BY THE 2ND RESPONDENT.** - **P2: COPY OF THE CHARGE SHEET NO.VLD2-011313/02 DATED 08/07/02 ISSUED BY THE 2ND RESPONDENT.** - **P3: COPY OF THE WRITTEN STATEMENT OF DEFENCE DATED 14/08/2002 BY THE PETITIONER TO THE CHARGE SHEET.** - **P4: COPY OF THE ENQUIRY REPORT SUBMITTED BY THE 2ND RESPONDENT.** - **P5: COPY OF THE SHOW CAUSE NOTICE DATED 07/05/2003 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P6: COPY OF THE REPLY SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 30/05/2003** - **P7: COPY OF THE ORDER NO.VLD2/011313/2002 DATED 16/03/2003 ISSUED BY THE 2ND RESPONDENT.** - **P8: COPY OF THE APPEAL MEMORANDUM SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 01/08/2003.** - **P9: COPY OF THE ORDER DATED 26/10/2005 ISSUED BY THE 3RD RESPONDENT.** - **P10: COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 01/05/2002.** - **P11: COPY OF THE SHOW CAUSE NOTICE NO.VLD2/1/011313/2002 DATED 07/05/2003 SENT BY THE 1ST RESPONDENT.** - **P12: COPY OF THE JUDGMENT IN CIVIL APPEAL NO.6979/2004 DATED 23/05/2006.** - **P13: COPY OF THE STATEMENT GIVEN BY THE LADY PASSENGER TO THE ENQUIRY INSPECTOR.** - **P13: COPY OF THE REVIEW PETITION FILED BY THE PETITIONER BEFORE THE GOVERNMENT DATED** ## **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/** **P.A. TO JUDGE.** **svs** ## **C.T.RAVIKUMAR, J** **-----------------------------------W.P.(C) No.23830 of 2008 ---------------------------------Dated this the 25[th] day of May 2011** ## **JUDGMENT** The petitioner was a conductor under the Kerala State Road Transport Corporation. As per Ext.P1 order he was placed under suspension. Later Ext.P2 Charge Sheet was issued to him. On its receipt, the petitioner had submitted Ext.P3 Written Statement refuting the allegations. Dissatisfied with his explanation the disciplinary authority decided to conduct an enquiry and accordingly an Enquiry Officer was appointed. On culmination of the enquiry proceedings Ext.P4 report was submitted by the Enquiry officer. There upon Ext.P5 notice was served on the petitioner. It carries a proposal to remove the petitioner from service and the petitioner was required to show cause why the said punishment should not be imposed on him. There upon the petitioner has W.P.(C) No.23830 of 2008 2 submitted Ext.P6 explanation. After considering the said explanation and the enquiry report, the 2[nd] respondent imposed the penalty of removal from the service on the petitioner. Feeling aggrieved by Ext.P7 order of removal, petitioner preferred Ext.P8 appeal. As per Ext.P9, the appellate authority rejected the appeal and confirmed Ext.P7 order. The contention of the petitioner is that subsequently, he has preferred a review petition in terms of the provisions under Rule 34 of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 (for short 'KCS(CC&A), Rules) on 22.8.06. It is contended that no orders have been passed thereon. It is in the said circumstances that the petitioner has filed this Writ Petition challenging Exts.P7 and P9 and seeking issuance of a writ of mandamus commanding the respondents to disburse service benefits including pensionary benefits. 2. A Counter affidavit has been filed in this Writ Petition on behalf of the respondents. The petitioner has filed a reply affidavit and also an additional affidavit. 3. I have heard the learned counsel for the petitioner and also the learned Standing Counsel for the respondents. It is contended W.P.(C) No.23830 of 2008 3 that the petitioner had attained the age of superannuation on 31.5.03. In fact, the said fact was duly taken note of by the disciplinary authority in Ext.P7 order itself. Even after taking note of the said fact as per Ext.P7, the petitioner was imposed with the penalty of removal from service with effect from the date of suspension. Firstly it is contended by the learned counsel for the petitioner that since the petitioner has attained the age of superannuation on 31.5.03, the 2[nd] respondent should not have imposed penalty of removal from service on 13.6.2003 as per Ext.P7. It is contended that once an employee attained the age of superannuation he falls beyond disciplinary jurisdiction of the concerned authority, and in such eventuality a punishment could not be imposed against such a person even on continuation of disciplinary proceedings. That apart, it is contended that Ext.P7 order was passed by an incompetent authority. This contention is founded on the fact that the 2[nd] respondent was not his appointing authority or an authority above the appointing authority. 4. In the counter affidavit filed on behalf of the respondents, W.P.(C) No.23830 of 2008 4 it is contended that the Writ Petition itself is not maintainable on account of delay and laches. The petitioner cannot pursue a highly belated claim it is contended. According to the respondents, order of punishment was issued on 13.6.03 and the appeal preferred against the same was rejected, as per Ext.P9, on 26.10.05. It is almost about 3 years thereafter that the petitioner filed this Writ Petition. Therefore, this Writ Petition is liable to fail on that sole score, it is submitted. 5. Before adverting to the contentions raised by the petitioner, I think it appropriate to consider the contentions raised by the respondents regarding the maintainability of this Writ Petition. Admittedly, Ext.P7 Order was passed on 13.6.2003, and that the appellate order rejecting Ext.P8 appeal and confirming Ext.P7 order was passed on 26.10.05. As noticed hereinbefore, the specific contention of the petitioner is that he filed a review petition on 22.8.06 against Ext.P9. It is his contention is that the said review petition was filed under Rule 34 of the KCS (CC& A) Rules before the Secretary to Government of Kerala (Transport Department) on 22.8.06. The respondents did not refute the said contention in the W.P.(C) No.23830 of 2008 5 counter. That cannot be viewed very seriously on account of the fact that even going on by the contention of the petitioner, such a review petition was filed before the Secretary to Govt. of Kerala, and State of Kerala is not made a party to this Writ Petition. There is also no case for the petitioner that he had filed such a review petition through respondents or that a copy of the same was forwarded to the respondents. I do not think it necessary to delve into the matter any further. I am of the considered view that if at all there is any delay in approaching this Court, that aspect cannot be taken into consideration now, to non-suit the petitioner at this distance of time. If a Writ Petition is to be rejected on the ground of delay and laches, it has to be done at the time of admission and unless and otherwise, a right to raise that question is specifically reserved to the respondent that cannot be taken as a ground to dismiss the writ petition after its admission. This writ petition was admitted on 7.8.2008. There is no case for the respondents that entertaining the claims and contentions of the petitioner would affect any third party. True that, in respect of a belated claim in a service matter this court will not interfere with W.P.(C) No.23830 of 2008 6 such a proceedings if it would affect a third party who might have accrued the some right in the meanwhile. There is no such case for the respondents. Infact, there cannot any such case in view of the facts and circumstance of the case. The matter in issue is whether the order imposing penalty of removal from service on the petitioner as per Ext.P7 and Ext.P9 Order rejecting the appeal preferred against the said order are legally sustainable or not. 7. In view of the admitted position that the order of penalty of removal from service was imposed on the petitioner after he had attained the age of superannuation, I do not think that, it is a fit case deserving dismissal on the ground of delay. Therefore I am inclined to consider the writ petition on merits. 8. As already noticed hereinbefore the core contention of the petitioner is that the punishment of removal from service was imposed on him only after he had attained the age of superannuation on 31.5.2003. There cannot be any dispute with respect to the said position of law that once an employee attained the age of superannuation while continuing under suspension the employee employer relationship would cease to exist unless any order to the W.P.(C) No.23830 of 2008 7 contrary is passed in terms of the relevant provisions of law. In the absence of such order on attainment of the age of superannuation the concerned person would fall beyond the disciplinary jurisdiction of that authority. If that be so, after the attainment of age of superannuation without any order retaining him service for the purpose of continuation of disciplinary proceedings it should have been and could have been continued only for certain limited purposes specifically provided under the relevant rules. If on account of the alleged action on the part of the employee, any loss has been sustained, for the purpose of quantifying it, the proceedings could have been continued, that too, subject to the relevant law in that matter. The employee- employer relationship already stood severed on attainment of the age of superannuation and thus, he ceased to be a member of service. Then, how could he be removed from service ? There is no case for the respondent that an order of retention, as mentioned earlier, was issued and he was paid the subsistence allowance thereafter. In that view of the matter, Ext.P7 order is liable to be interfered with. In fact, a scanning of Ext.P7 itself would reveal the facts that petitioner's date of birth is 11.5.1948 and he would W.P.(C) No.23830 of 2008 8 attain the age of superannuation on 31.5.03 were duly taken note of by the disciplinary authority while issuing Ext.P7 order. When once such facts were taken note of, the disciplinary authority should have refrained from imposing a penalty of removal from service on the petitioner whilst should have continued with the proceedings, if so decided, only in accordance with law. The said illegality escaped the attention of the Appellate authority. At this distance of time, no further action based on the proceedings already initiated, is possible. I am of the view that, the said impugned orders are liable to be set aside on that ground. I am fortified in my view by a Division Bench decision of this court in _**Ayyappan Pillai R**_ . v. _**Kerala State Electricity Board and Another**_ reported in **2010 (4) KHC 330 (DB)** . In the said decision, it was held that upon the termination of employment, the employer would lose disciplinary control over the employee. In the case before the Division Bench the concerned appellant was suspended from service alleging misappropriation of money and was later re-instated in to the service. Disciplinary proceedings continued thereafter. It was during the pendency of disciplinary proceedings that the said appellant retired from W.P.(C) No.23830 of 2008 9 the service of his employer viz., the Kerala State Electricity Board. In this case, the termination of employment occurred not on account of retirement from service on attaining the age of superannuation whilst on account of attainment of the age of superannuation while the petitioner was continuing under suspension. Admittedly, no action whatsoever was done by the employer, permissible under law, to retain the employee-employer relationship. In view of the said decision Exts.P7 & P9 cannot be sustained. In the said circumstance, there is absolutely no necessity to consider the rest of the contentions raised in this Writ Petition. In view of the discussion made above Exts. P7 & P 9 are set aside. Taking into account the fact that the petitioner had already attained the age of superannuation, the respondent shall take appropriate steps to sanction pensionary benefits to the petitioner as if he had retired from service on 31.5.2003. For the said purpose the respondents shall pass appropriate orders regularising the period of suspension till 31.5.2003 in accordance with law. Since this court is interfering with the impugned orders only on the aforesaid ground, I am of the view that the petitioner is not entitled to any other consequential W.P.(C) No.23830 of 2008 10 reliefs including arrears of salary. However, on such regularisation it shall be counted for other service benefits for the purpose of computation of pensionary benefits. The respondents shall sanction the pensionary benefits taking into account the observations and directions made hereinbefore and disburse the same to the petitioner expeditiously. However, in the light of the decision of the Hon'ble Apex Court in _**Union of India and others**_ **V.** _**Tarsem Singh**_ reported in **(2008) 8 SCC 648** the petitioner will not be entitled to the arrears of pension for any period prior to three years from the date of filing of this writ petition. ## **C.T.RAVIKUMAR JUDGE** ma