IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 13810 of 2008(R) ------------------------------------ PETITIONER : ---------------- V.N.RAGHAVAN,MAJESH BHAVAN, M.L.A ROAD,P.O UDAYAMPEROOR, VIA TRIPUNITHURA,KOCHI-682 307. BY ADV. SMT.CHINCY GOPAKUMAR SRI.VARGHESE THOMAS RESPONDENTS : ------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN,THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVAN,THIRUVANANTHAPURAM. 3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,MANJERI. 4. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION,PERINTHALMANNA. 5. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY,GOVT.SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.K.S.ANIL, SC, KSEB FOR R1-4 SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13810 of 2008(R) APPENDIX PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF THE ORDER DATED 06.04.2005 OF THE 2ND RESPONDENT EXT.P2: TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE HIGH COURT OF KERALA IN CRL.M.A.NO.5357/07 IN CRL.APPEAL NO.812/07 EXT.P3: TRUE COPY OF THE SHOW CAUSE NOTICE DT.05.10.2007 ISSUED BY THE 3RD RESPONDENT EXT.P4: TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER ON 29.11.2007 EXT.P5: TRUE COPY OF THE ORDER DT.07.03.2008 PASSED BY THE 2ND RESPONDENT FORWARDED BY THE 4TH RESPONDENT ON 04.04.2008 -TRUE COPY- P.A. TO JUDGE pac P.N.Ravindran, J. ===================== W.P(C).No.13810 of 2008 ===================== Dated this the 18th day of December, 2008. JUDGMENT Heard Smt. Chincy Gopakumar, the learned counsel appearing for the petitioner and Sri.Ashok M.Cherian, the learned standing counsel appearing for respondents 1 to 4. 2. The petitioner is a former employee of the Kerala State Electricity Board, hereinafter referred to as the “Board” for short. He retired from service on 31.3.2000 while he was working as Assistant Executive Engineer in the Electrical Major Section at Wandoor in Malappuram district. Shortly before the petitioner retired from service, a vigilance case was registered against him alleging that he had accepted a sum of Rs.500/- as illegal gratification from an applicant who had sought electricity connection. Thereupon he was placed under suspension with effect from 14.1.2000. In the criminal case, the Enquiry Commissioner and Special Judge found the petitioner guilty, convicted him and sentenced him to undergo rigorous imprisonment for two years and to pay fine. The judgment of conviction and sentence passed by the trial court is under challenge in Criminal Appeal No.812 of 2007 on the file of this Court. WP(C)13810/08 -: 2 :- 3. Shortly after the petitioner was convicted by the trial court, the third respondent issued Ext.P3 show cause notice dated 5.10.2007 calling upon the petitioner to show cause why he should not be terminated from service. The petitioner submitted Ext.P4 reply dated 29.11.2007 inter alia pointing out that he is no longer in service, that he retired from service on superannuation in the year 2000 itself and that the judgment of conviction passed by the trial court is pending in appeal in this Court. The second respondent thereupon issued Ext.P5 order dated 7.3.2008 removing the petitioner from service with effect from 14.1.2000, the day on which he was arrested by the Vigilance and Anti Corruption Bureau, Malappuram. In this Writ Petition, the petitioner challenges Ext.P5. The petitioner contends that no punishment can be imposed on him after 31.3.2000, the day on which he retired from service. The petitioner relies on the decision of the Full Bench of this Court in Xavier v. Kerala State Electricity Board - 1979 K.L.T. 80 and of the Apex Court in Uco Bank and another v. Rajinder Lal Capoor - (2006) 7 SCC 694 in support of the said contention. 4. The respondents have filed a counter affidavit contending inter alia that as the petitioner was convicted by the criminal court, they are entitled to dismiss or remove him from service. The Full Bench of this Court has in Xavier v. Kerala State Electricity Board (supra) after analysing the case law on the point held that after retirement, the disciplinary action initiated against an employee cannot be continued WP(C)13810/08 -: 3 :- except for the limited purpose of recovery of the loss, if any caused to the Government. The Apex Court has in State of Punjab v. Khemi Ram - A.I.R. 1970 SC 214 and in V.P.Gindroniya v. State of M.P. - A.I.R. 1970 S.C.1494 held that if disciplinary action is to be taken against an employee, it must be taken before he retires from service and that the proper course to follow is to suspend the employee before his retirement and refuse to permit him to retire so as to complete the disciplinary proceedings. A similar view has been taken by the Apex Court in Uco Bank and another v. Rajinder Lal Capoor (supra). 5. In the instant case, the petitioner admittedly retired from service on 31.3.2000. No provision in the service rules governing the employees of the Board which empowers the Board to permit an employee to continue in service for the purpose of completing the disciplinary proceedings initiated against him was brought to my notice. The Board admittedly permitted the petitioner to retire from service on 31.3.2000. After 31.3.2000, there is no employer - employee relationship between the petitioner and the Board and therefore the Board could not have exercised disciplinary control over the petitioner. In the light of the authoritative pronouncements of the Full Bench of this Court and of the Apex Court, the order passed by the second respondent dismissing the petitioner from service cannot be sustained. The Writ Petition is accordingly allowed and Ext.P5 is quashed. It is declared that the entitlement of the petitioner for pensionary benefits as per the rules will WP(C)13810/08 -: 4 :- depend on the outcome of Criminal Appeal No.812 of 2007 pending in this Court. P.N.Ravindran, Judge. ess 20/12