IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :
THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 RP.No. 1206 of 2009(M) ---------------------AGAINST THE JUDGEMENT/ORDER IN OP.8318/2001 Dated 24/03/2009 ....................
REVIEW PETITIONER(S): PETITIONER
--------------------------------
N.J.SUSAMMA, ARASSARKADAVIL, MARARIKULAM NORTH, S.L.PURAM, ALAPPUZHA. BY ADV. SRI.JOSHI N.THOMAS
RESPONDENT(S): RESPONDENTS
--------------------------
1. THE MANAGER, ST.MICHAELS COLLEGE, CHERTHALA.
2. THE PRINCIPAL, ST.MICHAELS COLLEGE, CHERTHALA.
3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, (ALAPPUZHA), ERNAKULAM.
GOVERNMENT PLEADER SHRI.K.RAMESH
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
S.SIRI JAGAN, J.
==================
R.P.No. 1206 of 2009 in O.P.No.8318/2001
==================
Dated this the 5[th] day of July, 2010 O R D E R
In this review petition, the petitioner in O.P.No. 8318/2001 seeks
review of my judgment dated 24.3.2009 in that original petition. The judgment reads as under:
“The 1[st] respondent initiated disciplinary proceedings against the petitioner which ended in imposition of punishment of removal from service by Ext.P9 order. The same is challenged by the petitioner primarily on the ground that Ext.P9 order was passed by the Manager, who was also a witness in the enquiry which culminated in Ext.P9 order. The learned counsel for the petitioner submits that in O.P.No.4184/2001 another employee, who has also been proceeded against for similar misconducts, challenged the similar punishment imposed on him, on identical ground which was allowed by a learned Single Judge of this Court. That was reversed by a Division Bench in W.A.No.1678/2003. However, the Division Bench converted the punishment into one of compulsory retirement instead of removal from service. The counsel for the petitioner submits that the petitioner would also be satisfied with the same relief.
2. After hearing, I am of opinion that in view of the facts and circumstances of the case, the punishment can be modified as done by the Division Bench. Accordingly, Ext.P9 would stand modified to the extent of holding that instead of removal from service, the petitioner would be deemed to have been compulsorily retired from service with effect from 18.1.2001.
The original petition is disposed of as above.”
2. The petitioner tried a writ appeal, viz., W.A.No.2129/2009,
which was dismissed by the following judgment:
“The appellant is the Writ Petitioner. The Writ Petition was filed by her challenging the punishment of removal from service imposed on her by the first respondent, Manager. When the Writ Petition was heard, the learned counsel for the petitioner brought to the notice of the learned Single Judge that in a similar matter (W.A.No.1678/2003), the Division Bench has converted the punishment of removal from service into one of compulsory retirement, and the petitioner would be satisfied if the very
2
r.p.1206/09
same relief is granted in her case also. In the light of the above submission, the learned Single Judge converted the punishment of removal from service into one of compulsory retirement and disposed of the Writ Petition.
2. This Writ Appeal is filed against the said judgment. We think, this appeal is not maintainable. Though, several prayers were made in the writ petition, the petitioner pressed only for one relief and that was granted by the learned Single Judge. Therefore, this Writ Appeal is dismissed as not maintainable. The rights, if any, of the appellant to move the learned Single Judge for review, will not be affected by this judgment.”
It is thereafter, the petitioner has filed this review petition seeking review of my judgment dated 24.3.2009.
3. The petitioner raises two grounds for review of my judgment. The first is that the counsel appearing for the petitioner at the time of hearing of the original petition, mistakenly submitted before this Court that in O.P.No.4184/2001 the misconducts alleged against the petitioner in that original petition were similar to the misconducts alleged against the petitioner in the original petition, which is factually incorrect. The second is that in view of Rule 60(a) of Part I of the Kerala Service Rules, the punishment of compulsory retirement could not have been validly imposed on an employee who did not attain the age of 55 years.
4. I have heard the learned counsel for the petitioner.
5. I do not find any merit in both grounds raised for review of
my judgment. The first ground is better appreciated in the light of the charges against the two employees. The charges against the petitioner
3
r.p.1206/09
in O.P.No.4184/2001 are available Ext.P11 judgment produced by the
## petitioner along with I.A.No.10542/2004, which are as follows:
“1. Misconduct during working hours by engaging in matters alien to duty and distracting and obstructing staff members in their duty at their place on 5.7.2000 a.n.
2. Gravely disrespectful behaviour and unwarranted remarks about colleagues and Superiors of the College.
3. Conduct and behaviour unbecoming to a Senior Superintendent of the college and disedifying to students and staff.”
The charges against the petitioner are available in Exts.P1 and P4,
which read thus;
## Ext.P1:
## “MEMO OF CHARGES AND SHOW CAUSE NOTICE
Charges against Smt.N.J.Susamma, Last Grade Staff, St.Michael's College, Cherthala:
I. It has been reliably brought to the attention of the Manager that you, Smt.N.J.Susamma, Last Grade Staff of the College, have committed acts of offences such as:
Dereliction of Duty, insubordination to Superiors and negligence in fulling responsibilities.
II. You are required to show cause, if any, why disciplinary action as contemplated under the Kerala Civil Services Rues 1960 should not be taken against you. You are also allowed 15 days from the date of receipt of this communication to submit your written statement of defence. If no such statement is received within the said period the matter will be proceeded with on the presumption that you have no defence.
III. A statement of allegations on which the above charges are based is given below:
## STATEMENT OF ALLEGATIONS
You have not duly executed the works assigned to you as per Office Order No.01/02/2000 dated 23.6.2000 and continued in your attitude of indifference.
4
r.p.1206/09
You have failed to act in compliance with Orders B5/1/2000 dated 15.4.2000 and B5/292000 dated 17.4.2000.
Hence you (sic) great negligence and irresponsibility in service disregard to execute Orders from the Superiors amounting dereliction of duties and insubordination.
Thereby you are depriving the Institution of the benefit of the legitimate, due and necessary service excepted of you as Last Grade Staff of the College.
Moreover, your inappropriate behaviour is a cause of dismay.”
## Exhibit.P4:
## MALAYALAM PORTION
5
r.p.1206/09
A reading of the two sets of the charges would go to show that if at all, the charges against the petitioner in this review petition are graver than those against the petitioner in O.P.No.4184/2001. Therefore, there is absolutely no merit in the contention of the petitioner that the advocate who was appearing at the time of argument of the original petition mistakenly submitted before this Court that the charges against the two employees were similar. The petitioner would contend that in fact it was admitted by the respondents in their counter affidavit dated 10.8.2004 that the charges are not similar. The sentences relied upon by the petitioner are as follows:
“....The petitioner was conscious about my evidence and its nature and did not raise any objection about it Ext.P11 relates to a separate and independent enquiry against another. The enquiry conducted against the delinquent related to separate charges....”
I am of opinion that the said sentences do not mean that the charges
are not similar. It only means that the charges were separate and enquiry was also separate. As such, there is no merit whatsoever in the first ground raised by the petitioner.
6. The second ground is nothing but preposterous. The petitioner relies on Rule 60(a) of Part I of the Kerala Service Rules in support of her contention. That rule reads as under:
“60(a). Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.”
6
r.p.1206/09
It does not require much racking of brains to perceive that Rule 60(a) operates in a totally different sphere. That relates to age of retirement of an employee and does not relate to imposition of compulsory retirement as a punishment. The petitioner relies on a decision of the Supreme Court in _Hans Raj v. State of Punjab_ (AIR 1985 SC 69) and a decision of this Court in _Mahadevan v. Reserve Bank of India_ [1988 (1) KLT 495]. Both decisions do not relate to the case where the punishment of compulsory retirement is imposed on a delinquent employee. I say that the contention is preposterous because if such a contention is accepted, then no punishment of compulsory retirement can be imposed on any employee insofar as no person would be in service after attaining 55 years of age. The punishment of compulsory retirement can be imposed only on an employee who is in service. Therefore, there is absolutely no merit in the second contention also.
7. The petitioner raises another contention that the object of reducing the punishment of one of compulsory retirement was to enable the petitioner to get retirement benefits. I do not think so. The only intention in reducing the punishment is to impose a lesser punishment on the petitioner than that of dismissal from service. The petitioner would get the retirement benefits only if the petitioner is eligible for retirement benefits going by the period of her service. That she would get only if she has put in minimum qualifying service. The
7
r.p.1206/09
petitioner also relies on Rule 6(a) of Part III of KSR in support of her claim. Rule 6(a)thus:
“ **6.** (a). An employee compulsorily retired from service by way of penalty may be granted by the authority competent to impose such penalty, pension and death-cum-retirement gratuity admissible to the employee on the date of such retirement, provided, however, that the authority imposing the penalty of compulsory retirement may order a reduction either in pension or in death-cum-retirement gratuity or in both if the circumstances of any particular case warrant such reduction.”
If at all, the said rule runs counter to the argument of the petitioner. That rule also makes abundantly clear that a person, who is imposed with the punishment of compulsory retirement, would be eligible for retirement benefits only if the same is admissible to the employee on the date of such retirement. Therefore, there is no merit in that contention also. As such, the petitioner has not made out any grounds for review of my judgment dated 24.3.2009. Accordingly, this review petition is dismissed.
sdk+
Sd/S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
