IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 WP(C).No. 32206 of 2008(H) -------------------------- PETITIONER(S): --------------- C.L.ANTONY CIRCLE INSPECTOR OF POLICE (RETIRED)CHIRAKKAL HOUSE, AYROOR P.O. VIA.KURUMASSERY, ERNAKULAM -683579 BY ADV. SRI.T.R.RAJESH RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, VIGILANCE (A) DEPARTMENT, THIRUVANANTHAPURAM. 3. THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM BY GOVT. PLEADER SMT.ANU SIVARAMAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.32206 of 2008 ------------------------------- Dated this the 3rd November, 2008. J U D G M E N T The petitioner is a pensioner. He attained the age of superannuation on 28.2.2003. While the petitioner was working as Circle Inspector of Police, he was placed under suspension by order passed on 6.9.1997. An enquiry into the charges levelled against the petitioner was held, he was found guilty of the charges and the punishment of compulsory retirement from service was imposed on him. The order imposing punishment was passed by the State Government. The petitioner challenged the order imposing the punishment of compulsory retirement in O.P.No.4826 of 2002. By Ext.P1 judgment delivered on 25.2.2003, though this Court declined to interfere with the order imposing punishment on the merits, the order was set aside on a technical ground, viz., that it was passed by the appellate authority, and, therefore, the petitioner's right of appeal was denied. The petitioner attained W.P.(C) No.32206 of 2008 2 the age of superannuation on 28.2.2003, three days after Ext.P1 judgment was delivered. In Ext.P1 judgment, this Court had reserved liberty with the authorities to proceed afresh in accordance with law, if they are so advised. The State of Kerala carried the matter in appeal. By Ext.P2 judgment delivered on 25.5.2005, the said appeal was dismissed holding that the order imposing punishment should have been passed by the Inspector General of Police and not by the Government. Thereafter, the Government issued Ext.P3 order dated 25.9.2006 cancelling the order of compulsory retirement. 2. After the petitioner retired from service, the pensionary benefits were sanctioned to him. According to him, pensionary benefits were sanctioned without taking into account the period during which he was placed under suspension and the period from the date of compulsory retirement till the date of superannuation. Aggrieved by the said fact, the petitioner had earlier moved this Court by filing W.P.(C) No.24248 of 2008, pointing out that notwithstanding his requests, time bound higher W.P.(C) No.32206 of 2008 3 grade promotions have not been given to him and the period during which he was out of service has not been regularised. By Ext.P6 judgment delivered on 12.8.2008, I had disposed of the said Writ Petition with a direction to the State Government to consider the request made by the petitioner as regards those aspects and pass orders thereon, after notice to and affording him an opportunity of being heard, within three months from the date of receipt of a copy of the judgment. It was clarified that if the petitioner is aggrieved by the decision taken by the Government, it will be open to him to challenge the same in other appropriate proceedings. 3. After Ext.P6 judgment was delivered, the Government issued Ext.P10 show cause notice dated 10.9.2008 to the petitioner calling upon him to show cause why the period of suspension from 6.9.1997 till the date of retirement, i.e., 28.2.2003, shall not be treated as leave without allowances, in terms of Rule 56(B) of Part I, K.S.R. Ext.P11 is the reply submitted by the petitioner to the said show cause notice. W.P.(C) No.32206 of 2008 4 4. Meanwhile, steps had also been initiated against the petitioner under Rule 59(b) of Part II K.S.R. Ext.P4 is the show cause notice dated 9.2.2007 issued by the Government calling upon the petitioner to show cause why the provisional decision to reduce 50% of his monthly pension should not be confirmed. The petitioner objected to the same by Ext.P5 representation. By Ext.P12 order passed on 27.3.2008, the Government ordered reduction of petitioner's pension by Rs.500/= per month. The petitioner has, in this writ petition, challenged Ext.P10 show cause notice and Ext.P12 order passed by the Government. 5. The petitioner contends that as the respondents have not taken note of his service after 6.9.1997 for the purpose of grant of terminal benefits, the Government was not justified in issuing Ext.P10 show cause notice or in passing Ext.P12 order. The petitioner further contends that in the absence of a report from the subordinate authorities, the Government could not have on its own reduced the pension solely based on the earlier order W.P.(C) No.32206 of 2008 5 imposing punishment passed by the Government. The petitioner challenges Ext.P10 on the ground that the second respondent is not the disciplinary authority and that the disciplinary authority is the Inspector General of Police, as held by this Court in Exts.P`1 and P2 judgments. 6. I have considered the submissions made at the Bar by Sri.T.R.Rajesh, the learned counsel appearing for the petitioner. The petitioner was removed from service by the Government. That order was set aside on the short ground that the disciplinary authority is the Inspector General of Police and not the Government. Exts.P1 and P2 judgments have become final and the Government have by Ext.P3 cancelled the order of compulsory retirement. It was the Vigilance Department which imposed on the petitioner the punishment of compulsory retirement from service. Therefore, I find no merit in the challenge to Ext.P10 show cause notice, on the ground that it is not one issued by the Home Department, but by the Vigilance Department. The petitioner was punished by the Vigilance W.P.(C) No.32206 of 2008 6 Department and it also ordered reinstatement. Since the petitioner has retired from service, no punishment could be imposed on him after Exts.P1 and P2 judgments. The only question that remains to be done after Exts.P1 and P2 judgments and Ext.P3 Government Order is to pass orders regarding the manner in which the period during which he was kept out of service following the suspension and later removal from service should be regularised. 7. In the instant case, the petitioner was suspended by the Government, the memo of charges was also issued by the Government and the order imposing punishment was also issued by the Government. Therefore, the Government alone can take a decision as to whether the suspension of the petitioner was unwarranted or whether the period during which he was out of service should be regularised as duty or not, having regard to the seriousness of the charges levelled against him and the reasons which weighed with this Court in setting aside the punishment imposed on him. W.P.(C) No.32206 of 2008 7 8. As regards Ext.P12, it is evident from Ext.P1 judgment as confirmed by Ext.P2 that this Court had not gone into the merits of the finding of fact entered by the Government that the petitioner had in violation of the Government Servants Conduct Rules engaged in a business without the previous sanction of the Government. The order imposing punishment was not set aside on the merits, but on a technical ground. The Government was thus aware that the petitioner was guilty of misconduct. It was founded on that misconduct that Ext.P4 show cause notice was issued proposing reduction of pension. The petitioner was given an opportunity to object to the proposal therein. He submitted a detailed objection, and thereafter, Ext.P12 order was passed. In these circumstances, it cannot be said that the Government had no information before it as regards the work and conduct of the petitioner and therefore, the Government could not have, in the absence of a report from the subordinates, taken a decision in the matter. In my opinion, even without receiving a report from the subordinate authorities W.P.(C) No.32206 of 2008 8 regarding the work and conduct of an employee, the Government can, considering the materials before it, reduce the pension. In the instant case, the pleadings disclose that the Government had before it the entire files relating to the disciplinary action initiated against the petitioner, wherein one of the allegations was that he was engaged in a business without the permission of the Government. The finding of guilt arrived at by the Enquiry Officer was not set aside by this Court, though the order imposing punishment was set aside on a technical ground. In these circumstances, it cannot be said that the Government had not material before it, when it passed Ext.P12 order. 9. As held by the Full Bench of this Court in Raveendran Nair v. State of Kerala (2007 (1) KLT 605 (FB), even in cases where no loss is caused to the Government, the Government have the authority to withhold or withdraw the whole or any part of the pension either permanently or for a specified period. The petitioner was also afforded an opportunity to object to the proposal to reduce pension before W.P.(C) No.32206 of 2008 9 Ext.P12 order was passed. Since the Government have the power and competence and the order reducing the pension was passed after notice to the petitioner, the petitioner cannot successfully assail Ext.P12. The Writ petition accordingly fails and is dismissed. However, it is clarified that I have not pronounced upon the merits of the objections filed by the petitioner to Ext.P10 and that I have only repelled the challenge made by the petitioner in this Writ petition to Ext.P10, on the ground that it is one issued by an incompetent authority. If the petitioner is aggrieved by the order passed pursuant to Ext.P10, it will be open to him to challenge the same in other appropriate proceedings, except on the ground of want of competence. P.N.RAVINDRAN, JUDGE nj.