R. Ayyappan Pillai v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933** **WP(C).No. 13977 of 2011(V)** **----------------------------------------** **PETITIONER(S):** **-------------------------** **R.AYYAPPAN PILLAI, LAKSHMI NAGAR - 11, THEKKEVILA, KOLLAM.** **BY ADV. SRI.S.ABDUL RAZZAK** **RESPONDENT(S):** **----------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM - 04.** **2. THE DEPUTY CHIEF ENGINEER (HRM) II KSEB, PATTOM P.O., THIRUVANANTHAPURAM - 04.** **3. THE DEPUTY CHIEF ENGINEER, KSEB, CIRCLE OFFICE, KOLLAM - 691 001.** **R1 TO R3 BY ADV.SRI.PULIKOOL ABUBACKER, SC, KSEB SRI.K.S.ANIL, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Kss** ## **WPC.NO.13977/2011 V** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF SUSPENSION ORDER DTD. 21/10/1988 BY R1.** - **P2: COPY OF CHARGE MEMO DTD. 26/07/89 BY R3.** - **P3: COPY OF MEMO DTD. 28/06/1997 BY R3 TO PETITIONER.** - **P4: COPY OF EXPLANATION STATEMENT DTD. 15/07/1997.** - **P5: COPY OF FINAL ORDER DTD. 02/09/1997 BY R2.** - **P6: COPY OF JUDGMENT IN CC 244/93 DTD. 30/03/2005.** - **P7: COPY OF PENSION SANCTION ORDER DTD. 05/01/2010.** - **P8: COPY OF PENSION PAYMENT ORDER DTD. 08/01/2010.** - **P9: COPY OF JUDGMENT DTD. 19/05/2010 IN WPC.NO.6868/2010.** - **P10: COPY OF SHOW CAUSE NOTICE DTD. 19/06/2010.** - **P11: COPY OF PETITIONER'S REPLY DTD. 07/07/2010.** - **P12: COPY OF ORDER DTD. 14/07/2010 BY R3.** - **P13: COPY OF REVISED PENSION ORDER BY R1.** - **P14: COPY OF JUDGMENT DTD. 07/10/2010 ON WA.NO.1194/2010E** - **P15: COPY OF PETITIONER'S REPRESENTATION DTD. 15/10/2010.** - **P16: COPY OF ORDER BO (MF) NO.3272/2010 (LA(S)III/2692/2010 DTD. 15/12/2010 OF 1ST RESPONDENT.** - **P17: COPY OF REPRESENTATION DTD. 30/12/2010.** - **P18: COPY OF BO (CM) NO.266/2011 LA (S)III/2692/2010 DTD. 21/01/2011 OF 1ST RESPONDENT.** - **P19: COPY OF PENSION ORDER NO.EBPS 24/2421/2009 DTD. 24/02/2011 OF 2ND RESPONDENT.** - **P20: COPY OF DCRG ORDER DTD. 07/03/2011 BY R1.** - **P21: COPY OF APPLICATION DTD. 20/04/2011 FOR INFORMATION.** - **P22: COPY OF REPLY DTD. 30/04/2011 FOR R1.** - **P23: COPY OF STATEMENT OF ARREARS BASEDON EXHT.P16.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 13977 of 2011 --------------------------------Dated this the 24th day of November, 2011 ## JUDGMENT Petitioner retired from service of the 1[st] respondent Board as Overseer with effect from 31.7.2009. While working as Cashier in the Board he was kept under suspension, from 21.10.1988 to 11.2.1994, based on an alleged charge of defalcation of Board's money. In the domestic enquiry conducted he was found guilty of causing loss to the Board. Ext.P3 show cause notice proposing disciplinary action was issued, to which the petitioner submitted Ext.P4 reply. In the meanwhile, on the basis of the remittance made with respect to the amount of loss sustained, the criminal case registered against the petitioner was withdrawn and he was acquitted, as evident from Ext.P6 judgment. 2. After retirement, the petitioner was sanctioned with provisional pension only to the extent of 80%, because the disciplinary action was pending. Exts.P7 and P8 are the orders issued in this regard. Exts.P7 and P8 were challenged before WPC.13977/2011 2 this court in WP(C).No.6868/10. In Ext.P9 judgment this court directed the disciplinary authority to finalise the proceedings expeditiously, within 8 weeks from the date of production of the judgment. It was directed to release the DCRG due to the petitioner, if no other liability is outstanding, within four weeks. Pursuant to Ext.P9, Ext.P10 show cause notice was issued proposing punishment of barring two increments with cumulative effect for two years and recovery of the monetary value equivalent to 3 times of the amount of increments, from the pensionary benefits due to the petitioner. Further it was proposed to treat the period of suspension as leave without allowances making it clear that such period will not be counted for any purpose. Petitioner submitted Ext.P11 objection to the proposal. But in Ext.P12 order the 2[nd] respondent had confirmed the punishment as proposed. Ext.P13 is the consequential order issued giving effect to Ext.P12. 3. In the meanwhile, the petitioner challenged Ext.P9 judgment in appeal. The Division Bench in Ext.P14 judgment (WA No.1194/10) found that, on termination of the WPC.13977/2011 3 employment, the employer will loss disciplinary control over the employee and the legal relationship of employer and employee will come to an end. But under Rule 3 of part III of the Kerala Service Rules (KSR) the employer may retain some authority to deal with the erstwhile employees to the extent of withholding pension, either totally or partially, on a permanent basis or for a specified period. Evaluating Rule 3, the Division Bench observed that, such contingencies are either when the erstwhile employee is found guilty in a departmental proceeding of grave misconduct or when such findings are recorded in a judicial proceedings. Referring to Sub Rule (a) of Rule 3 it was observed that, the Rule authorises continuation of a pending departmental proceedings, even after retirement of an employee, against whom the proceedings was initiated while he was in service. On the facts of the case this court found that, it is open to the 1[st] respondent to conclude the enquiry for the limited purpose of deciding the question regarding withholding of pension either totally or partially. In Ext.P14 this court observed that, pension is only an amount payable to the erstwhile employee for WPC.13977/2011 4 satisfactory service rendered by such employee. Reference was made to Rule 59 of Part III KSR in this regard. However, in Ext.P14 judgment this court had set aside Ext.P12 to the extent it declared that the period of suspension will be treated as leave without allowances and that it will not be counted for any purpose. But it was clarified that the respondents will be free to take such appropriate actions as permissible under law, against the petitioner. 4. Consequent to Ext. P14, the 1[st] respondent had issued Ext.P16 proceedings according sanction for compliance of the directions contained in the judgment. In Ext.P16 the 1[st] respondent clarified that Ext.P12 is not sustainable and the suspension period should be treated as eligible service and should be counted for pensionary benefits. The 2[nd] respondent was directed to take necessary steps in this regard. 5. Subsequently, the 1[st] respondent Board had issued another order, Ext.P18, through which a reduction in the pension by 10% for a period of 10 years was ordered, in exercise of Rule 3 of Part III of KSR. In Ext.P18 it is stated that the misconduct WPC.13977/2011 5 on the part of the petitioner has been proved. Finding that the petitioner was paid subsistence allowance for a period of 5 ½ years, it was observed that, if the petitioner is exempted from any punishment it will convey a wrong signal to similarly situated incumbents. Therefore the 2[nd] respondent was directed to take necessary steps to effect the reduction in pension. Ext.P19 is the consequential order issued sanctioning pension, commutation benefits, and DCRG due to the petitioner. A revised commutation of DCRG was also issued by the 1[st] respondent as per Ext.P20. 6. Exts.P21 and P22 are respectively the application submitted by the petitioner under the Right to Information Act and its reply obtained. Based on those documents the petitioner contended that the benefits have not been computed properly by reckoning the period of suspension as eligible service and refixation of pay and allowances due on that basis. From Ext.P22 reply it is evident that while computing the benefits, the period of suspension was reckoned as eligible service only for computation of pension. But pay and allowance due for the said WPC.13977/2011 6 period was not paid, is the dispute. 7. Challenge in this writ petition is mainly against Ext.t. P18 order through which reduction of pension was effected. The petitioner is also raising challenges against the anomalies/irregularities in the computation of pension, DCRG and other benefits, based on the decision for regularisation of the period of suspension as eligible service . The petitioner is also seeking to quash Ext.P16 order to the extent it impliedly deny increments due based on regularisation of the period of suspension. As a consequential relief the petitioner is seeking directions to revise the pension reckoning the annual increments fallen due during the period of suspension and for a recomputation of the pension based on the average emoluments admissible on such refixation of pay and for release of such benefits. 8. Sri.S.A. Rassak, learned counsel for petitioner, raised vehement arguments assailing Ext.P18. According to him, through Ext.P16 the 1[st] respondent Board had already concluded the disciplinary action, as permitted under Ext.P14 judgment, in WPC.13977/2011 7 exercise of power vested under Rule 3 of Part III, KSR. Therefore no further order could have been issued effecting reduction of pension, is the contention. According to him, Ext.P18 will amount to a review of the earlier decision of the Board, for which it has no power. He draws my attention to the provisions contained in the Kerala State Electricity Board Employees (Classification Control and Appeal) Regulations 1969. Referring to Regulation No.35 and 36 it is argued that , the suo motu power is vested on the Board is only to review any of its orders on principles of law, on application made by the party. He placed reliance on a decision of the Honourable Supreme Court in ## **Assistant Commercial Taxes Officer vs. Makkad Plastic** **Agencies (2011 4 SCC 750)** wherein in order to contend that, unless a statute creates power of review and enables review of a decision taken earlier, any exercise of power of review under the guise of clarification /modification/ correction, is not permissible. Contentions are to the effect that, on the facts of the case, an exercise of power vested under Rule 3 of part III KSR alone was possible, because there existed no WPC.13977/2011 8 circumstances under which the power vested nder Rule 2 and Rule 59 of Part III KSR could have been exercised. So Ext.P18 cannot be considered as one issued in exercise of any power other than one contemplated under Rule 3, especially in view of the findings in Ext.P14 judgment that since the disciplinary action was pending on the date of retirement, the Board can exercise only the power vested in Rule 3 of Part III. 9. Question arising for consideration is as to whether Ext.P16 was a culmination of disciplinary proceedings, and as to whether Ext.P18 is a review of that order. The Division Bench in Ext.P14 had clearly observed that, the disciplinary proceedings was pending as on the date of retirement and the only course left to the respondents is to finalise the same in exercise of power vested under Rule 3 of Part III, KSR. If Ext.P16 is considered as an order through which the disciplinary proceedings has been culminated, probably I may have to accept the argument that Ext.P18 is a review, which is beyond the powers vested on the Board. But whether the contents of Ext.P16 will in any manner indicate that it is an order passed in exercise of power vested WPC.13977/2011 9 under Rule 3, is the question. 10. In the reference portion of Ext.P16 it is mentioned as “ _compliance of Judgment - sanction - Orders issued”_ . From the contents it is revealed that, the 1[st] respondent had taken note of the directions contained in Ext.P14 judgment and found that Ext.P12 order to the extent it treated the period of suspension cannot be counted for any purpose, is unsustainable and illegal. Further, in view of the observations in Ext.P14 that it is open to the respondents to take such other appropriate actions as permissible under law, the Board only accorded sanction for taking steps in compliance with Ext.P14 judgment. The Board ordered that the period of suspension shall be treated as eligible service and shall be reckoned for pension. It is pertinent to note that Ext.P16 is only a proceedings addressed to the 2[nd] respondent and even a copy of that proceedings was not endorsed to the petitioner. There is absolutely no discussion at all regarding any scope for imposition of reduction in the pension. The wordings in Ext.P16 that, it accorded sanction for compliance of Ext.P14 judgment and specifically issued direction to the 2[nd] WPC.13977/2011 10 respondent to take necessary steps, will clearly indicate that the 1[st] respondent had only delegated the matter to the 2[nd] respondent, after clarifying that in view of the findings contained in Ext.P14 judgment the decision taken in Ext.P12 is not sustainable and that the period of suspension should be treated as eligible service and should be accounted for pensionary benefits. Therefore the contention that Ext.P16 is an order of the Board through which the disciplinary action was culminated, cannot be accepted. 11. While considering contents of Ext.P18 it is evident that the Board had further examined the matter in detail and arrived at a conclusion that the misconduct on the part of the petitioner has been proved. Taking note of the aspect that, if the petitioner is exempted from any punishment that will convey a wrong signal to similarly situated incumbents, a decision was taken to reduce the pension. Learned counsel for petitioner pointed out that, the contents of Ext.P18 will indicate that such an action was taken only based on advice of the Legal Adviser, who was the Enquiry officer in the disciplinary proceedings. But it is evident that WPC.13977/2011 11 before issuing Ext.P18 an opportunity was afforded to the petitioner. But he has not raised any such objection. Therefore, I find no infirmity with Ext.P18 order which is issued in exercise of power vested under Rule 3 of Part-III, K.S.R, in confirmity with the findings in Ext.P14 judgment. 12. Even though the petitioner raised contentions against the extent of the reduction ordered in Ext.P18, as not justifiable and disproportionate, I am of the considered opinion that in exercise of jurisdiction vested under Article 226 this court may not be justified in examining those aspects. The guilt of misappropriation of Board's money stand proved. Merely because the petitioner retired from service before imposition of punishment, will not in any manner reduce the gravity of the misconduct and offence. Hence I find no justifiability or unreasonableness in the extent of reduction ordered. 13. Further grievance voiced is regarding denial of due benefits while computing pension, DCRG and other benefits Admittedly, in Ext.P16 the Board passed order directing to treat the period of suspension as eligible service and it should be WPC.13977/2011 12 counted for pensionary benefits in view of Ext.P14 judgment. Consequently, under normal circumstances, such period should be reckoned for all purpose of service benefits, except for payment of salary for such period. All the increments falling due within the said period of suspension are liable to be reckoned for the purpose of refixing salary which the petitioner is entitled as on the date of reinstatement. Hence the refixation of salary for the relevant periods is a normal corollary which is to be followed on the decision to treat the period of suspension as eligible service. The petitioner will be eligible to get all emoluments based on such refixation. Consequently all benefits such as pension, commutation, DCRG etc., also need be refixed. From Ext.P22 reply given under the Right To Information Act it is evident that while computing pension, DCRG and other benefits such refixation of the pay as on the date of reinstatement has not been reckoned. It is also evident that the petitioner will be eligible for arrears of pay and allowances if any due on the basis of such refixation and revision of his pay and allowances, for the period of service after reinstatement. In the counter affidavit WPC.13977/2011 13 filed on behalf of the respondents only a vague statement is made to the effect that, the period of suspension has been treated as eligible service and counted for pensionary benefits. It is stated that the period is not treated as duty and hence orders were not issued to release the balance pay and allowances. But as observed, evidently the fixation made is erroneous and incorrect. Under such circumstances I am of the view that the matter requires reconsideration and refixation need be effected. 14. In the result, the writ petition is disposed of on the following terms: - (i) Challenge against Ext.P18 fails and the reduction of pension imposed through Ext.P18 is upheld. - (ii) The challenge with respect to Ext.P19 is found to be sustainable. The 2[nd] respondent or the Accounts Officer of the 1[st] respondent Board as the case may be shall reconsider Ext.P19 and shall refix the pay and allowances due to the petitioner from the date of his reinstatement onwards, (i.e : from 11.2.1994 onwards) till the date of his retirement. On the basis that the petitioner is eligible for WPC.13977/2011 14 increments if any falling due during the period of his suspension. The arrears of salary and other benefits consequent to such refixation as well as pension, DCRG and other benefits recomputed on the above basis shall be paid to the petitioner at the earliest possible, at any rate within a period of 2 months from the date of receipt of a copy of this judgment. The petitioner will produce a copy of this judgment before the 2[nd] respondent for an early compliance of the directions. ## **C.K.ABDUL REHIM, JUDGE.** pmn/okb WPC.13977/2011 15 WPC.13977/2011 16 WPC.13977/2011 17