Narayanan Vasu v. State of Kerala and Kerala State Electricity Board

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937 WP(C).No. 12648 of 2013 (E) ---------------------------- PETITIONER(S): -------------------------- NARAYANAN VASU, AGED 70 YEARS S/O.KELAN NARAYANAN, AMBATT VAYALIL VEEDU VELLATHOOVAL P.O., IDUKKI DISTRICT. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM THIRUVANANTHAPURAM - 695 004. R2 BY ADV. SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12648 of 2013 (E) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1. TRUE COPY OF THE SHOW CAUSE NOTICE DATED 12.09.2006 ISSUED TO PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P2. TRUE COPY OF THE SHOW CAUSE NOTICE DATED 18.11.2008 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P3. TRUE COPY OF THE PENSION PAYMENT ORDER ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4. TRUE COPY OF THE PENSION CERTIFICATE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5. TRUE COPY OF THE REPLY DATED 16.04.2009 SUBMITTED BY THE PETITIONER. EXHIBIT P6. TRUE COPY OF ORDER DATED 05.06.2009 ISSUED BY THE 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS: NIL --------------------------------------- TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 12648 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13[th] day of January, 2016 ## J U D G M E N T The petitioner is aggrieved with Ext.P6 order dated 5.6.2009. The petitioner contends that the delay was occasioned in challenging the order since the petitioner had entrusted a Lawyer at Devikulam, who was also practicing before this Court and the Lawyer had assured him that the case was filed and the same was pending. The Lawyer is said to have expired and when the petitioner enquired about the case, he was surprised to find that the case was not filed at all. It is stated that the petitioner then obtained the files from the office of the Lawyer and entrusted another Lawyer who has filed the present writ petition. This Court is not prima facie satisfied with the aforesaid explanation for the delay occasioned,however, it has to be noticed that the cause of action is the reduction of pension ordered which reduced the WPC.No.12648/2013 : 2 : pension drawn by the petitioner even at the time of filing of the writ petition. The same would be a recurring cause of action which would enable the petitioner in agitate the cause at any point of time. The only rider would be, in such circumstance, the relief would be confined to three years prior to the filing of the writ petition as has been declared by the Hon'ble Supreme Court in 2007(9) SCC 274 (Shiv Dass v. Union of India and Others). Even the said rider need not be applied here since the order of June 2009, was challenged by the present petition filed on 20.05.2013. 2. The allegation levelled against the petitioner was manipulation of date of birth in the records; thus continuing for about 10 years more than his actual date of superannuation. A complaint was said to have been filed by a third party to the Kerala State Electricity Board, the employer, even prior to the retirement of the petitioner; by one K V Jose, in the year 2002. WPC.No.12648/2013 : 3 : The petitioner retired on 31.03.2003. The complaint is said to have been taken up for consideration after the retirement and a memo was issued at Ext.P1 dated 12.09.2006. Nothing was done in the matter and further notice was issued on 18.11.2008 wherein the petitioner was called upon to explain as to the alleged manipulation of date of birth. Subsequently the petitioner was issued with Ext.P6 order wherein the reduction of pension was ordered. 3. The learned Standing Counsel for the Board submits that the action has been taken under Rule 59 of Part III of the Kerala Service Rules (hereinafter referred to as “KSR”). Rule 59 of the KSR speaks of an award of full pension and by clause (b) stipulates that if the service has not been thoroughly satisfactory, the Government may make such reduction, as they think proper. The allegation against the petitioner was not that the service was not satisfactory, but the petitioner having WPC.No.12648/2013 : 4 : manipulated the date of birth to continue in service for an additional ten years after the actual date of superannuation. Ruling No.2 under Rule 59 also indicates that in the case of retired employees, no proceedings could be taken under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 and in the case of pensioners, Rule 59 (b) has to be applied in which event, no elaborate enquiry is necessary and it would be sufficient that the employee be given an opportunity to explain and vindicate himself. 4. At the outset, it is to be noticed that the complaint as is indicated in Ext.P6 order was received by the Board on 22.11.2002; one year before the retirement of the petitioner. At that point of time, definitely proceedings could have been taken and in such circumstance, a domestic enquiry would be necessitated. However, the Board thought it fit to issue a memo only after three years of the retirement of the petitioner, in the WPC.No.12648/2013 : 5 : year 2006. Again, nothing was done for two years and further notice was issued by Ext.P2 in the year 2008. Hence it cannot be said that the present case was one which comes under Rule 59, since the complaint was received while the petitioner was in service and the Board failed to take timely action on the complaint. 5. Further it is to be noticed that the complaint with respect to the manipulation of date of birth has not been substantiated properly. The complaint was on the ground that the petitioner's younger brother, who was also an employee of the Board, retired after three years and the petitioner was the second of the siblings and the said younger brother the eighth son. It is an admitted fact that the date of birth of both the petitioner and his brother entered in the service records was not on the basis of any authenticated documents. The learned Standing Counsel also submits that both were based on horoscopes, as was the practice WPC.No.12648/2013 : 6 : in vogue then. In such circumstance, it could always be a case of the younger brother having indicated a wrong date of birth. Be that as it may, the manipulation having been not proved and having not been substantiated, by an authenticated document acceptable as valid evidence of the date of birth, other than that entered in the service records, the finding of manipulation borders on being a mere surmise. 6. Also as noticed above, the complaint was one which was received prior to retirement and the Board waited till his retirement to initiate action under R 59(b). 2011 (2) KLT 277 (Ponnamma Vs. Secretary to Government) was a case in which disciplinary proceeding was initiated prior to retirement but without concluding the same it was decided to invoke R59(b), after retirement. This Court found that when such proceeding was commenced before retirement then the same had to be brought to its logical conclusion. Here too the Board could have WPC.No.12648/2013 : 7 : taken procedings prior to retirement, the failure to do so has not been explained. 7. Further the finding is that loss is caused to the Board, by the petitioner continuing for 10 years beyond the alleged date of superannuation, which by itself is specious. The computation of loss is arrived at by calculating the salary drawn by the petitioner during the said period. The Board cannot have a case that the petitioner did not work during the period, he continued in service. The salary paid was for the work done and otherwise for the allegation of continuance for ten years after the alleged date of superannuation, no other allegation of unsatisfactory service has been raised. 8. The petitioner has been visited with serious consequence of reduction of pension, without any valid cause. In such circumstance, Ext.P6 order would stand set aside. The petitioner would be entitled to receive the full pension as he was WPC.No.12648/2013 : 8 : drawing prior to such reduction effected as per Ext.P6. The arrears shall be computed and paid within a period of three months from the date of receipt of a certified copy of this judgment and the petitioner would be entitled to regular pension from this month onwards. Writ petition is disposed of. No costs. Sd/- ## (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge