N.P. Paul v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935** ## **WP(C).No. 15574 of 2013 (V)** **----------------------------** **PETITIONER(S): ------------------------** **N.P.PAUL, SENIOR ASSISTANT (RETIRED), KERALA STATE ELECTRICITY BOARD, RESIDING AT "NADUVATH", KOTTAPPADY.P.O., KOTHAMANGALAM-686 695, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SHRI.A.K.MATHAI, S/O.LATE KORA, AGED 58 YEARS, RESIDING AT ADAPATT HOUSE, KOTTAPPADY.P.O., ERNAKULAM-686 692.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** **RESPONDENT(S):** **----------------------------** ## **1. KERALA STATE ELECTRICITY BOARD,** - **VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004, REPRESENTED BY BY ITS SECRETARY.** ## **2. THE CHIEF ENGINEER,** **(HUMAN RESOURCE MANAGEMENT), KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** ## **3. THE CHAIRMAN,** - **KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.** **R1 TO R3 BY ADV. SRI.K.S.ANIL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **WP(C).No. 15574 of 2013 (V)** **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **----------------------------------------** **EXHIBIT-P1 COPY OF THE MEMO NO.EB4/PENSION/10-11/324 DATED 31.5.2010 ISSUED TO THE PETITIONER BY EXECUTIVE ENGINEER,KERALA STATE ELECTRICITY BOARD,MUVATTUPUZHA.** **EXHIBIT-P2 COPY OF THE ORDER NO.ERVS,3/6/2010/868 DATED 6.9.2011 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P3 COPY OF THE APPEAL DATED 5.7.2012 FILED BEFORE THE IST RESPONDENT.** **EXHIBIT-P4 COPY OF THE JUDGMENT DATED 14.9.2012 IN WP(C)21356 OF 2012.** **EXHIBIT-P5 COPY OF THE ORDER NO.VIG/AI/4342/2010/2840 DATED 24.12.2012 ISSUED BY THE 3RD RESPONDENT ALONG WITH COVERING LETTER DTD. 30/01/2013.** **RESPONDENT(S)' EXHIBITS:** **------------------------------------------** ## **N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **A.V. RAMAKRISHNA PILLAI, J.** ======================== W.P.(C) No.15574 of 2013 -------------------------------------------Dated this the 3[rd] day of March, 2014 ## **JUDGMENT** Aggrieved by the imposition of major punishment of removal from service of the petitioner as per Ext.P2 after the petitioner has demitted his office as Senior Assistant of the respondent Board, the petitioner has come up before this Court. 2. The petitioner who was working as Senior Assistant under the first respondent Board submitted an application for half-pay leave from 2.5.2009 to 20.12.2009. Thereafter, he applied for extension of leave and retired from service on 31.5.2010 as per Ext.P1. The grievance of the petitioner is that after his retirement, Ext.P2 was issued as a punishment of removal from service with retrospective effect. The petitioner alleges that Ext.P2 order imposing major penalty after retirement is void and totally without jurisdiction. His further case W.P.(C) No.15574/13 -2- is that he who was abroad was not served Ext.P2 and on coming to know about Ext.P2, he preferred Ext.P3 statutory appeal before the first respondent. As there was delay in disposing of the same, the petitioner filed a petition before this Court and that writ petition was disposed of as per Ext.P4 judgment directing the first respondent to dispose of the appeal within a time frame. Accordingly, the same was disposed of as per Ext.P5 order confirming Ext.P2. The grievance of the petitioner is that both the authorities have not considered the crucial issue raised by the petitioner that disciplinary action after his retirement on 31.5.2010 and imposition of major penalty of removal from service as per Ext.P2 is _perse_ illegal and totally without jurisdiction. Thus, he approached this Court. 3. In the counter affidavit filed by the respondent, it is contended that the petitioner who had applied for W.P.(C) No.15574/13 -3- eligible leave on personal grounds for the period 2.5.2009 to 20.12.2009 and went abroad without obtaining sanction from the Board. This according to the respondent was revealed on verification of the passport of the petitioner. Therefore, disciplinary action was initiated against the petitioner under the KSEB (CC&A) Regulation Act,1969 and memo of charges was issued to him to show cause and the same was returned undelivered by the postal authorities with the remarks that 'Addressee out of India'. Therefore, notice was published in local dailies and an enquiry was proceeded with. Later, he was terminated from service with retrospective effect. This, according to the respondents was as per KSEB (CC&A) Regulation Act, 1969 and in conformity with the principal of natural justice. Thus, they have justified the stand taken by the Board against the petitioner. The respondent had also taken a W.P.(C) No.15574/13 -4- contention that the petitioner being an employee of a private sector undertaking who abandoned the employment is not entitled to claim protection under Article 311 of the Constitution of India and no disciplinary proceedings is necessary to remove him from the service. 4. I have heard the learned counsel for the petitioner and the learned Standing Counsel for respondents _quite in extenso_ . The petitioner is relieved of his duties with effect from 31.5.2010 AN consequent on his retirement from service on superannuation. The stand taken by the respondents is that as the Board found that the absence of the petitioner was unauthorized, memo of charges was issued to him and as the same was returned unserved with the endorsement 'Addressee out of India'. It was published in the local dailies. According to the learned counsel for the petitioner, the memo of charges were published in local dailies long after his retirement W.P.(C) No.15574/13 -5- and it was on 14.9.2010. The main argument advanced by the learned counsel for the petitioner is that after his retirement, disciplinary proceedings and imposition of major penalty is totally illegal and without jurisdiction. It is evident from Ext.P3 appeal that this aspect was specifically contended by the petitioner. Disciplinary proceedings in the first respondent are governed by the provisions of the Kerala State Electricity Board Employees (Clarification, Control and Appeal) Regulation 1969. The provisions of Kerala Service Rules (KSR) are also applicable to the employees of the first respondent Board. Alleging unauthorized absence from 2.5.2009 and removal from service with retrospective effect from 2.5.2009 on retirement of the petitioner, the masterservant relationship ceased to exist from 31.5.2010. A Full Bench decision of this Court in **Xavier** v. **Kerala State Electricity Board,** (1979 KLT 80) held that W.P.(C) No.15574/13 -6- disciplinary proceedings cannot either be launched or continued after retirement of the employee. Of course, subject to the permissibility under the rules, proceedings can continue for withholding/withdrawing/recovery from pension. In two subsequent decisions in **Jayarajan** v. **State of Kerala** (2001 (3) KLT 929) and **Samuel Parakkal** v. **State of Kerala** , this Court has reiterated that no penalty can be imposed after retirement. The learned counsel for the petitioner invited my attention also to the decision of the Supreme Court in **UCO Bank** v. **Rajender Lal Capoor** (2007 (6) SCC 694). There, it was observed in clear terms that order of dismissal or removal from service can be passed only when an employee is in service. In the absence of any express statutory provision, imposing a major penalty of removal from service after his retirement on 31.5.2010 as per Ext.P2 is ultra vires and the same shall not be allowed to stand. It W.P.(C) No.15574/13 -7- is also pointed out by the learned counsel for the petitioner that the petitioner was not paid any salary from 2.5.2009 even though he retired from service on superannuation as per Ext.P1 dated 31.5.2010. In the light of the legal position stated above, the writ petition is disposed of quashing Exts.P2 and P5. However, this shall not be a bar in continuing proceedings for holding/ withdrawing or recovery from the pension of the respondent if it is permissible under law. ## **A.V. RAMAKRISHNA PILLAI JUDGE** kvr/