IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 WP(C).No. 24988 of 2005(Y) -------------------------- PETITIONER(S): --------------- B.SURENDRAN, RETIRED FOREMAN, OFFICE FOF THE DEPUTY TRAFFIC MANAGER (P) COCHIN PORT TRUST, RESIDING AT THUNDIPARAMBIL HOUSE, VATHURUTHY, MATSYAPURI P.O. BY ADV. SRI.P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN RESPONDENT(S): --------------- 1. THE COCHIN PORT TRUST , WILLINGDON ISLAND, COCHIN 9, REPRESENTED BY ITS CHAIRMAN. 2. THE TRAFFIC MANAGER, OFFICE OF THE TRAFFIC MANAGER, COCHIN PORT TRUST, COCHIN 682 009. ADV. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI. P. GOPINATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 24988/2005. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF MEMO DT. 25-5-2005. EXT.P2 REPRESENTATION DT. 15-6-2005. EXT.P3 MEMORANDUM WITH STATEMENT OF ARTICLES OF CHARGES. EXT.P4 COPY OF COCHIN PORT EMPLOYEES (CC & A) REGULATIONS. EXT.P5 LETTER DT. 28-7-2005. EXT.P6 ORDER DT. 5-8-2005. EXT.P7 ORDER DT. 5-8-2005. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R2(a) ORDER IN I.A.995/2005 IN O.S.243/2005. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 24988 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th December, 2009. J U D G M E N T The petitioner entered the service of the Cochin Port Trust in 1969. He retired from service as Foreman on 31-5-2005. On 4-6- 2005, he was served with a suspension order dated 25-5-2005 stating that he is placed under suspension with immediate effect. Against the same, the petitioner filed Ext. P2 appeal before the Chairman, contending that since he is no longer an employee of the Cochin Port Trust, no disciplinary proceedings can be initiated or concluded against him. While that was pending, Ext. P3 memo of charges dated 30-6-2005 was served on him. Pursuant thereto, Ext. P6 order dated 5-8-2005 was issued to the petitioner appointing one Sri. T.V. Mathew, Assistant Traffic Manager, to enquire into the charges framed against the petitioner. Later, Ext. P7 order dated 5-8-2005 was also passed appointing Sri. C.T. Sudheer, Accountant as the Presenting Officer in the enquiry. The petitioner is challenging Exts.P1, P3, P6 and P7 seeking the following reliefs: “a) Issue a writ of certiorari or any other appropriate writ or order quashing and setting aside Exts.P1, P3, P6 and P7, as arbitrary, illegal and unsustainable. b) Hold that the petitioner cannot be proceeded against under Rule 12 of the Cochin Port Employees (Classification Control and Appeal) Regulation, 1964. c) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to disburse the petitioner's retiral benefits reckoning his service from 7-4-1969 to 31-5-2005 with interest on delayed payment.” 2. The contention of the petitioner is that since the entire proceedings were initiated subsequent to his retirement on 31-5- 2005, the proceedings are without jurisdiction. He points out that Ext. P3 charge memo has been issued under Regulation 12 of the W.P.C. No. 24988/05 -: 2 :- Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964. He has produced a copy of the Regulations as Ext. P4. According to him, under Regulation 3 thereof, the Regulations apply to the employees of the Board. The term “employee” is defined in Regulation 2(e) as meaning an employee of the Board and includes any such person on foreign service or whose services are temporarily placed at the disposal of the Board and also any person in the service of the Central or State Government or a local or other authority whose services are temporarily placed at the disposal of the Board. According to the petitioner, on retirement, the petitioner ceases to answer the said definition of “employee” and therefore, Ext. P4 Regulations do not apply to the petitioner. He further submits that Regulation 12 referred to in Ext. P3 charge memo relates to procedure for imposing major penalties. Major penalties are penalties specified in items (iv) to (vii) of Regulation 10. According to the petitioner, in the very nature of the penalties prescribed those penalties can be imposed only on an employee of the Cochin Port Trust still in service. Since those penalties cannot be imposed on the petitioner, it is a futile exercise to conduct an enquiry, is his contention. He also submits that it is settled law that a master cannot initiate disciplinary proceedings against a servant after the servant ceases to be a servant of the master, unless the rules applicable to the servant specifically retains a power on the master to initiate or continue disciplinary proceedings against the servant even after cessation of employment. According to him, the rules applicable to the employees of the Cochin Port Trust do not contain a provision whereby the Port Trust can continue or initiate disciplinary proceedings subsequent to the retirement of the employee. Therefore, the petitioner submits that the entire proceedings initiated against the petitioner are without jurisdiction and unsustainable. 3. A counter affidavit has been filed, wherein the Port Trust would take a contention that in exercise of powers under the Major W.P.C. No. 24988/05 -: 3 :- Pot Trust (Adoption of Rules) Regulation, 1964, the Cochin Port Trust, vide its resolution No. 23 dated 28-4-1973 adopted the Central Civil Services (Pension) Rules, 1972 and the said Rules are being followed in the Cochin port Trust. According to them, Rule 9 of the CCS (Pension) Rules authorises continuation of disciplinary proceedings initiated prior to retirement and also initiation of disciplinary proceedings after retirement of the employee for the purpose of withholding of pension, which power only has been exercised by the Port Trust by issuing the impugned proceedings. Counsel for the Port Trust would contend that such proceedings are perfectly valid and proper. 4. The contention is that by virtue of Rule 9, the Port Trust can continue the proceedings initiated by Ext. P1 suspension order and even initiate fresh disciplinary proceedings after retirement, which is authorised by Rule 9 of the CCS (Pension) Rules. Although in Ext. P3 charge memo Ext. P4 Regulations have been referred to, in fact, the proceedings have been initiated and continued under Rule 9 only. For the purpose of Rule 9, the procedure prescribed under the Regulations have been followed, is the contention raised. 5. Learned counsel for the petitioner would point out that the Port Trust has not chosen to prove their contention by producing the resolution referred to. Therefore, according to him, they cannot simply by filing an affidavit, claim that they are entitled to invoke Rule 9 of the CCS (Pension) Rules. It is further contended that even assuming that Rule 9 of the CCS (Pension) Rules are applicable, the same can be invoked only if the departmental proceedings were instituted prior to the petitioner's date of retirement. Here, according to the petitioner, since the suspension order was served on the petitioner after his retirement, the disciplinary proceedings cannot be deemed to have been instituted prior to the retirement of the petitioner. Therefore, Rule 9 is not applicable, is the contention. 6. I have considered the rival contentions in detail. W.P.C. No. 24988/05 -: 4 :- 7. Although, in the reply affidavit filed by the petitioner, it is denied that there is a resolution, since a statutory body has filed an affidavit stating that Resolution No. 23 dated 28-4-1973 has been adopted by the Port Trust adopting the Central Civil Services (Pension) Rules, 1972 for the employees of the Port Trust, I am inclined to accept the same as correct. Since the entire case of the respondents revolves round Rule 9 of the Central Civil Services (Pension) Rules, I deem it appropriate to extract Rule 9, which reads thus: “9. Right of President to withhold or withdraw pensioner (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement: Provided that the Union Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three hundred and seventy-five (Rupees One thousand two hundred and seventy-five from 1-1-1996 – see GID below Rule 49) per mensem. (2)(a) The departmental proceedings referred to in sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the President, that authority shall submit a report recording its findings to W.P.C. No. 24988/05 -: 5 :- the President. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment,- (i) shall not be instituted save with the sanction of the President, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the president may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) Deleted. (4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned. (5) Where the President decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule,-- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date on such date; and (b) judicial proceedings shall be deemed to be instituted-- (i) in the case of criminal proceedings , on the date on which the complaint or report of a Police Officer, of which the magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the Court.” (underlining supplied) Going by the said Rule, the departmental proceedings should have W.P.C. No. 24988/05 -: 6 :- been instituted prior to the date of retirement. Sub-rule (6)(a) stipulates that for the purpose of the Rule, a departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner or if the Government servant has been placed under suspension from an earlier date, on such date. Admittedly, the memo of charges was issued to the petitioner after his date of retirement. Therefore, the only question which has to be considered is whether the latter limb of the said Rule is applicable to the petitioner, namely, whether the petitioner has been placed under suspension from a date prior to his retirement. 8. Ext. P1 is the suspension order, which reads thus: “Whereas a disciplinary proceedings against Sri. B. Surendran, Foreman DTM (P) Division is contemplated in connection with Crime Case No. 266/2004 to 269/2004, crime registered by the Palarivattom Police Station and pending trial at JFMC1, Ernakulam, the undersigned in exercise of the powers conferred by Sub-Rule (1)(a) & (b) of Rule 9 of the Cochin Port Employees (Classification, Control & Appeal) Regulation 1964, hereby place the said Sri. B. Surendran, Foreman, under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force the headquarters of Sri. B. Surendran should be Cochin and the said B. Surendran shall not leave the headquarters without obtaining prior permission of the undersigned.” Although, it is dated 25-5-2005, admittedly, the same was served on the petitioner only on 4-6-2005. The argument of the learned counsel for the Cochin Port Trust is that since Ext. P1 stipulates that the petitioner is placed under suspension with immediate effect, he is deemed to have been under suspension with effect from the date of Ext. P1, namely, 25-5-2005, which is prior to his date of retirement. I am unable to accept this argument. Admittedly, the petitioner was allowed to continue in service till his date of retirement namely, 31-5-2005. Nothing prevented the respondents from serving the W.P.C. No. 24988/05 -: 7 :- suspension order personally on the petitioner while he was in office. Instead, they chose to sent Ext. P1 dated 25-5-2005 by post suspending the petitioner with immediate effect, which the petitioner received only on 4-6-2005. Having allowed the petitioner to continue in service without suspension till the date of retirement, I am unable to accept the contention that the petitioner was placed under suspension with effect from any date prior to his date of retirement. I am of opinion that the words 'with immediate effect' would mean the date of receipt of the suspension order, which is clearly beyond the date of retirement. As such, since the disciplinary proceedings against the petitioner did not commence prior to his date of retirement, it could not have been continued under Rule 9(2)(a) of the CCS (Pension) Rules, in which event, the proceedings initiated against the petitioner is clearly without jurisdiction. 9. Of course, the learned counsel for the respondents would rely on sub-rule (b) of Rule 9, which authorises initiation of disciplinary proceedings subsequent to the retirement also; but, that can only be after complying with the conditions stated therein. The said rule prescribes three conditions. There is no averment whatsoever in the counter affidavit that those three conditions have been satisfied. Even assuming that the rule should read mutatis mutandis by replacing the word 'President' with 'Chairman' of the Port Trust, then also there should be sanction from the Chairman of the Port Trust, which has not been produced. Ext. P3 charge memo refers to four crimes registered against the petitioner. The Port Trust should prove that the events which gave rise to those crimes took place within four years immediately prior to the institution of the proceedings . Ext. P3 does not disclose anything as to the date when the events which led to the registration of crimes arose. The third condition prescribed is that the Chairman of the Port Trust has appointed any particular authority to conduct the disciplinary proceedings against the petitioner. Therefore, the respondents have W.P.C. No. 24988/05 -: 8 :- not been able to satisfy me that the three conditions stipulated in the Rule have been satisfied. Since they rely on the Rules, the onus is on the respondents to prove the conditions also, in which they have sadly failed. That being so, the respondents could not have validly invoked Rule 9 of the CCA (Pension) Rules for the purpose of continuing initiating the disciplinary proceedings against the petitioner by Ext. P1. 10. Accordingly, Exts.P1, P3, P6 and P7 are quashed. It is declared that the petitioner cannot be proceeded against either under Cochin Port Employees (Classification, Control and Appeal) Regulations, 1964 or under Rule 9 of the Central Civil Services (Pension) Rules. 11. The petitioner seeks a direction to the respondents to disburse the retirement benefits due to the petitioner. But, the respondents have produced Ext. R2(a) order from the Principal Munsiff, Kochi, whereby, the Port Trust has been restrained from disbursing the retirement benefits due to the petitioner and the petitioner from collecting the retirement benefits from the Cochin Port Trust. That being so, the disbursal of retirement benefits can only be in accordance with the decision of the Munsiff in O.S. No. 243/2005. The writ petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/