Rajendran S. v. Kerala State Road Transport Corporation and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942** ## **WP(C).No.10246 OF 2020(E)** ## **PETITIONER:** ## **RAJENDRAN S.,** **(DEPOT ENGINEER, KSRTC, CENTRAL WORKS, PAPPANAMCODE, RETIRED ON 31/10/2006), RESIDING AT SREE PADMAM, TC 53/378, R.K.N. LANE, MANKULAM ROAD, PAPPANAMCODE P.O., THIRUVANANTHAPURAM-695018.** **BY ADV. SHRI.K.P.RAJEEVAN** ## **RESPONDENTS:** - **1 KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM,PIN-695023.** - **2 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM,PIN-695023.** - **3 THE MECHANICAL ENGINEER (WORKS), KSRTC, CENTRAL WORKS, PAPPANAMCODE, THIRUVANANTHAPURAM, PIN-695018.** - **4 EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, PIN-695023.** **R1-4 BY ADV. SRI.DEEPU THANKAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.10246 OF 2020(E)** **2** ## **JUDGMENT** ## **Dated this the 20th day of January 2021** Petitioner is aggrieved of an order removing him from service with retrospective effect, that too in 2019, though he deemed to have retired on 31.10.2006. 2. The facts from the averments, reveal, that petitioner, on 28.01.1978, entered into the service of Kerala State Road Transport Corporation (KSRTC) as Chargeman. His recruitment was through Public Service Commission. Period of probation as Chargeman was successfully completed. He was, on 14.09.1992, promoted as a Depot Engineer. 3. Learned counsel appearing on behalf of the petitioner submitted that petitioner performed his duties with all his dedication and without any demur. He submitted an application for leave as per the provisions of Appendix XIIA of Part-I of Kerala Service Rules for seeking employment abroad. Vide order dated 15.09.1992 leave was granted to him for a period of five year with effect from 17.09.1992. Later it was extended vide order dated 22.08.1997. Petitioner was permitted to join on 29.07.1998 as Depot Engineer in the Neyyattinkara depot of the KSRTC. **WP(C).No.10246 OF 2020(E)** **3** 4. Petitioner also applied for leave for seeking employment abroad which was sanctioned on 09.10.1998. He availed the leave from 10.10.1998 and was permitted to rejoin after cancelling of un-availed portion of leave as per order dated 27.11.2000. The process of granting the leave continued and he was readmitted on 19.08.2005. It was next contended that when the petitioner joined his duty after employment abroad, some amount on account of arrears of salary and other eligible benefits were due to him from his foreign employer. Petitioner submitted that he was suffering from rheumatic complaints and other illness and applied for leave for three months ie., 25.08.2005 to 22.11.2005. But the leave was not granted. Faced with this situation he submitted an application for voluntary retirement on 27.05.2006 (Ext.P6) but the same was not considered. However, during the period of his service he was served with a Memo of charges on 15.06.2006 (Ext.P7). Reply was submitted vide Ext.P8 dated 25.04.2007 and thereafter nothing was communicated from the department regarding the appointment of the Enquiry Officer nor the petitioner was called upon to join the enquiry proceedings. Petitioner submitted a representation for release of **WP(C).No.10246 OF 2020(E)** **4** his pensionary benefits, but it resulted into passing of the impugned order Ext.P12 whereby he was informed that he was removed from service with effect from 25.08.2005. The impugned order Ext.P12 has been passed on 18.04.2019 almost thirteen years after the deemed date of superannuation. 5. In support of the contention he relied upon the provisions of Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules ('KCS (CC & A) Rules' for short), the procedure for imposing of major penalty. For imposing a major penalty including the removal a separate procedure is prescribed. After the receipt of the enquiry report, disciplinary authority is required to follow the procedures of natural justice and serve a copy of the report of the enquiry authority and take action, if any, in accordance with law. Rule 3 of part-III of the Kerala Service Rules enables the Government to withhold or withdraw pension in respect of the circumstances prescribed therein with an explanation that the departmental proceedings shall be deemed to be instituted on the date on which the statement of charges was issued to the employee or pensioner or if the employee had been under suspension, from an earlier date. In support of the **WP(C).No.10246 OF 2020(E)** **5** contention he relied upon the judgment of this Court dated 04.06.2014 rendered in W.P.(C).No.22231/2006 titled as _**Y.Xaviour Solomon v. Kerala State Road Transport Corporation**_ wherein in an identical situation, the Court held that the major punishment as contemplated under Rule 15 of KCS (CC & A) Rules cannot be imposed on an employee, that too after thirteen years of the deemed date of superannuation, except that the department has the power to continue with the enquiry as per Rule 3(A) of Part III of KSR. No pecuniary loss has been caused to the department, therefore, the pension cannot be withheld. Reliance has been laid to circular of the Government dated 07.03.1990 issued by the Department of Personnel & Administrative Reforms (Advice – C) Department. It has come to the notice of the Government regarding certain instances where disciplinary actions initiated against the Government servants for serious misconduct, dereliction of duty etc., could not be finalised due to their retirement on superannuation. It was decided that the disciplinary authorities will take special care to ensure that the disciplinary cases pending against the Government servants are finalised expeditiously in any case, before the concerned **WP(C).No.10246 OF 2020(E)** **6** Government servant retire from service on superannuation. Petitioner was served with a memo of charges on 15.06.2006 and his date of retirement was 31.10.2006 and urged this Court for quashing of Ext.P12 with a further direction to the 2[nd] respondent to release his pensionary benefits. 4. Per contra, learned counsel appearing on behalf of Sri.Deepu Thankan submits that they do not deny the factum of granting of leave and the rejection of the leave as well as the service of the charge sheet on 15.06.2006, but, submits that no such reply as proposed to be projected before this Court vide Ext.P8 had been received in the office. petitioner never retired from the service and therefore, his removal from the service on receipt of the enquriy report with retrospective effect was in accordance with the Rules and Law. He remained on unauthorised absence for years and therefore, was deemed to be removed from service with effect from 25.08.2005. No explanation to the charge sheet had been received. He had been taking leave intermittently during the service for taking employment abroad in the name of medical issues. It is a grave misconduct. The circular do not apply to the case in hand; the order is justified and urged **WP(C).No.10246 OF 2020(E)** **7** this Court for dismissal of this writ petition. 5. I have heard the learned counsel for the parties and appraised the paper book. It would be appropriate to extract the copy of the circular: ## **PERSONNEL & ADMINISTRATIVE REFORMS (ADVICE-C) DEPARTMENT CIRCULAR** ## **No.20426/Adv. C3/89/P&ARD. Thiruvananthapuram, 7th March, 1990.** Sub: - Public Services - Disciplinary action against Government servants - Finalisation before retirement - Instructions Issued. Certain instances have come to the notice of Government in which the disciplinary action initiated against Government servants for serious misconduct, dereliction of duty etc., could not be finalised due to their retirement on superannuation. **Disciplinary action under the Kerala Civil Services (Classification, Control and Appeal) Rules can be initiated and continued against the Government servants, only till they remain in the service under Government. The penalties contemplated in Rule 11 of the above rules cannot be imposed on them after their retirement.** So far as a retired Government servant is concerned, the possible action that can be taken against him is to withhold or withdraw pension or any part of it whether permanently or for a specified period from him and to order recovery from pension of the whole or part of any pecuniary loss caused to Government if in a departmental or Judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement, as provided under rule 3, Part III, Kerala Service Rules. **WP(C).No.10246 OF 2020(E)** **8** In the above circumstance, all the Disciplinary Authorities will take special care and ensure that the disciplinary cases pending against the Government servants are finalised expeditiously in any case, before the concerned Government servant retire from service on superannuation. By order of the Governor, **LIZZIE JACOB,** Secretary to Government.” 6. Rule 15 of KCS (CC & A) Rules envisage imposition of penalty and a separate procedure is prescribed in respect of any employees who were issued with a show cause notice during the service for imposition of major penalty, the disciplinary authority, has to comply with the procedure ie., to supply the copy of the enquiry report and for imposition of penalty (major) show cause notice is required. The applicability of the aforementioned Rule has not been controverted, therefore, I do not intend to pextract. 7. The reply of respondent do not spell out as to whether the department had appointed Enquiry Officer and inquiry, if any, culminated into receipt of enquiry report on behalf of the disciplinary authorities. Pleading is not only vague and but evasive. There can be a case wherein employees served with a charge sheet is required to be intimated whether reply filed to **WP(C).No.10246 OF 2020(E)** **9** the charge sheet was not found favourable and the department intended to continue with enquiry by appointing an Enquiry Officer. There is no such pleading to that effect or any whisper of any enquiry report. The reply is also bereft of any particulars whether Enquiry Officer, if any, had submitted a report which was supplied to the petitioner or service of any show cause notice before imposition of major penalty memo. In fact, in the judgment cited _supra_ this Court had an occasion to ponder upon the provisions of Rule 15 and found that the relationship of employer-employees ceases to exist and the major penalty of retired employee cannot be imposed. For the sake of brevity paragraphs 6 and 7 of W.P.C.No.22231/2006 dated 04.06.2014 are extracted herein below: “6. Learned counsel for the petitioner also placed reliance on a decision of this court in **Bhaskaran Pillai, G V. Devaswom Commissioner and others (1997 (2) ILR Kerala 765)** . It is held therein that, when an employee retires from service, the master and servant relationship ceases. Thereafter the master has no authority to take any disciplinary action. It is observed that in such context Rule 3 of Part I KSR provides that any disciplinary action taken while the employee is in service can be continued after his date of superannuation. But the above proceedings can only culminate in an order by which recovery can be ordered from his pension and it cannot end in any punishment enumerated in the KCS (CC & A) Rules. **WP(C).No.10246 OF 2020(E)** **10** 7. In a recent decision the position was again reiterated in **Ayyappan Pillai V. K.S.E.B. (2010 (4) KLT SN 65) (C.No.77)).** It is held that on the termination of employment the employer loses disciplinary control over the employee, as the employer-employee relationship comes to an end. But the State can retain some authority to deal with those erstwhile employees under Rule 3 of Part III KSR to withhold the pension of a former employee either totally or partially. Such withdrawal can be either permanent or for a specific period in the contingencies mentioned in the said Rule.” 8. While deciding the aforementioned case, it was held that the department is not precluded from initiating the enquiry under Rule 3 of KSR ie., for withholding or reduction of pension in case of any monetory loss. But, the counter do not reveal that actions of the petitioner had resulted into any monetory loss. Explanation to Rule 3 though envisages that the deemed date of enquiry would be the service of charge sheet/memo charge which was served on 15.06.2006 when the petitioner was in service. It is not a case of the respondent the petitioner continued to report for duty in the absence of order of retirement. He deemed to have retired on the date of his attaining superannuation. The question which revolves now is whether in such circumstances he is entitled to receive the pension due to him. I cannot remain **WP(C).No.10246 OF 2020(E)** **11** oblivious that the petitioner had obtained intermittent leaves for taking employment abroad which was granted of course without salary. But his last leave was cancelled and he was served with the charge sheet. I am of the view that since the stand of the department do not reveal any compliance of Rule 15 though the charge sheet was served under Rule 15. For the reason aforementioned the impugned order Ext.P12 is not sustainable and is fallacious. Accordingly, the same is quashed. The writ petition is allowed. The respondents are directed to take a call on the release of the pension due to the petitioner in accordance with law and afford an opportunity of hearing in case they intend to comply with the provisions of Rule 3. Let this exercise be undertaken within a period of three months from the receipt of certified copy of this judgment. ## **Sd/-** ## **AMIT RAWAL** **JUDGE** nak **WP(C).No.10246 OF 2020(E)** **12** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF PAGE NUMBERS 1, 8,13 AND 23 OF THE SERVICE BOOK OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF ORDER NO. D.DIS.56696/GL1/92/RTC DATED 15/09/1992 ISSUED BY THE RESPONDENT CORPORATION.** **EXHIBIT P3 A TRUE COPY OF ORDER NO.44539/GL2/RTC DATED 22/08/1997 ISSUED BY THE RESPONDENT CORPORATION.** - **EXHIBIT P4 A TRUE COPY OF ORDER NO.D.DIS(GL2) 53046/98/RTC DATED 09/10/1998 ISSUED BY THE RESPONDENT CORPORATION.** - **EXHIBIT P5 A TRUE COPY OF ORDER NO.3489/GL2/2002/RTC DATED 31/08/2002 ISSUED BY THE RESPONDENT CORPORATION.** **EXHIBIT P6 A TRUE COPY OF THE REQUEST OF VOLUNTARILY RETIREMENT SUBMITTED BY THE PETITIONER ON 27/05/2006.** - **EXHIBIT P7 A TRUE COPY OF THE MEMO OF CHARGE NO.VLC1-08917/2006 DATED 15/06/2006 WITH STATEMENT OF ALLEGATION.** - **EXHIBIT P8 A TRUE COPY OF REPLY TO THE MEMO OF CHARGES DATED 25/04/2007 SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR OF KSRTC.** **EXHIBIT P9 A TRUE COPY OF REPRESENTATION DATED 20/11/2007 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P10 A TRUE COPY OF REPRESENTATION DATED 25/03/2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P11 A TRUE COPY OF REPRESENTATION DATED 31/03/2019 FILED BY THE PETITIONER** **WP(C).No.10246 OF 2020(E)** **13** **BEFORE THE 2ND RESPONDENT. EXHIBIT P12 A TRUE COPY OF ORDER NO. VLC1-01144/19 DATED 185/04/2019 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P13 TRUE COPY OF JUDGEMENT IN WPC NO.22231/2006 DATED 4/6/2014 OF THIS HON'BLE COURT EXHIBIT P14 TRUE COPY OF JUDGEMENT DATED 10/2/2015 IN W.P.C 20038/2003**