IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 WP(C).No. 35546 of 2005(F) -------------------------------------- PETITIONER: ------------------- A. FRANCIS, AGED 55 YEARS, SON OF FRANCIS A.JOSEPH, RETIRED CONDUCTOR, KERALA STATE ROAD TRANSPORT CORPORATION, KOLLAM, RESIDING AT INDU VEEDU, NEAR DURGA JUNCTION, KOTTAKKAKAM, KOLLAM-691 001. BY ADV. SRI.A.X.VARGHESE, ADV. SRI.A.V.JOJO. RESPONDENTS: ------------------------ 1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 2. THE EXECUTIVE DIRECTOR (VIGILANCE), KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVA, FORT, THIRUVANANTHAPURAM. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.35546/2005-F: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE SUSPENSION ORDER NO. VLD1-11202/2002 DTD. 25/04/2002 ISSUED TO PETITIONER BY R.2. EXT.P.2: COPY OF THE CHARGE SHEET NO. VLD1-11202/2002 DTD. 06/06/2002 ISSUED TO PETITIONER BY R.2. EXT.P.3: COPY OF THE ORDER DTD. 10/10/2003 PASSED BY KERALA STATE ROAD TRANSPORT CORPORATION APPELLATE TRIBUNAL, THIRUVANANTHAPURAM IN R.P. NO. 9/2003. EXT.P.4: COPY OF THE JUDGMENT DTD. 11/10/2004 OF THIS HONOURABLE COURT IN W.P.(C).26315/2004-G. EXT.P.5: COPY OF THE SAID ORDER NO. VLD1-035195 DTD. 04/12/2004 ISSUED TO PETITIONER BY R.1. EXT.P.6: COPY OF THE ORDER DTD. 07/05/2005 PASSED BY KERALA STATE ROAD TRANSPORT CORPORATION APPELLATE TRIBUNAL, THIRUVANANTHAPURAM IN R.P. NO. 33/2004. EXT.P.7: COPY OF THE SHOW CAUSE NOTICE NO. VLD1-035195/2003 DTD. 05/10/2005 ISSUED BY R.2. TO PETITIONER. EXT.P.8: COPY OF THE ENQUIRY REPORT DTD. 06/09/2005 OF THE ENQUIRY OFFICER, ASSISTANT ACCOUNTS OFFICER (FUNDS). EXT.P.9: COPY OF THE EXPLANATION DTD. 26/10/2005 SUBMITTED BY PETITIONER TO R.2. EXT.P.10: COPY OF THE ORDER NO. VLD1.035195/2003 DTD. 09/11/2005 ISSUED BY R.2. TO PETITIONER. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. K.BALAKRISHNAN NAIR, J. ---------------------------------------- W.P.(C)NO.35546/2005 ---------------------------------------- Dated this the 25th day of January, 2008 JUDGMENT The petitioner was a Conductor of the KSRTC. He was suspended from service by Ext.P1 order dated 25.4.2002 on the allegation of misappropriation of funds of the KSRTC by issuing dead tickets etc. He was served with Ext.P2 charge sheet dated 6.6.2002. He submitted reply to the said charge sheet denying the allegations against him. The disciplinary authority was dissatisfied with the reply. So, an enquiry was held into the misconduct of the petitioner. Based on the findings in the enquiry, the disciplinary authority imposed a punishment of removal from service by Order dated 29.11.2002. Petitioner appealed against that order. First respondent appellant authority affirmed the said punishment. He moved the KSRTC Appellate Tribunal by filing a revision. The said revision was allowed by Ext.P3 order dated 10.10.2003, setting aside the punishment. The second respondent disciplinary authority was directed to W.P.(C)35546/2005 2 reopen the enquiry and to allow him to cross examine one of the witnesses of the management and also to allow him to adduce defence evidence and to produce defence documents. Pursuant to the said order of the Appellate Tribunal, the enquiry was again completed and the punishment of compulsory retirement from service was imposed on him on 22.5.2004 by the disciplinary authority. Before the petitioner could prefer an appeal against the said order, the appellate authority initiated proceedings to review that order. The petitioner submits that when the said suo motu proceedings were pending, the second respondent modified the punishment of compulsory retirement from service as dismissal from service. On 2.8.2004, the petitioner filed a representation against the said punishment before the first respondent and thereafter approached this Court. This Court, by Ext.P4 judgment dated 11.10.2004, set aside the punishment order and directed the appellate authority to consider the matter. The first respondent, pursuant to the said judgment of this Court, issued Ext.P5 order dated 4.12.2004 imposing a punishment of W.P.(C)35546/2005 3 compulsory retirement from service on the petitioner. The petitioner challenged Ext.P5 order before the KSRTC Appellate Tribunal. The Tribunal by Ext.P6 order dated 7.5.2005 set aside Ext.P5 order and remanded the case to the second respondent disciplinary authority with certain directions. In the meantime the petitioner attained the age of superannuation on 31.3.2005. Pursuant to Ext.P5, the disciplinary authority issued Ext.P7 show cause notice along with Ext.P8 enquiry report proposing to impose the penalty of removal from service. He submitted Ext.P9 explanation. Considering the said explanation, the second respondent disciplinary authority again passed Ext.P10 order imposing the punishment of removal from service. This writ petition is filed challenging Ext.P10 mainly on the ground that no punishment could have been imposed on him invoking the disciplinary jurisdiction of the second respondent after his superannuation on 31.3.2005. The respondents have filed a detailed counter affidavit. They are supporting the impugned order. W.P.(C)35546/2005 4 2. Heard the learned counsel on both sides. The learned counsel for the petitioner relied on the Full Bench decision of this Court in Xavier v KSEB (1979 KLT 80). He also relied on the decision of this Court in Raghavan Pillai v Travancore Devaswom Board (1980 KLT 782). Those decisions laid down the principle that once superannuation takes place, there is no employee-employer relationship and the employer has no disciplinary jurisdiction over the delinquent and no punishment can be imposed. 3. The rules governing the disciplinary action of the employees of the KSRTC are Kerala Civil Services (Classification, Control and Appeals) Rules 1960. As per the said rules, once the employee retires, no punishment under Rule-15 of the rules could be imposed on a delinquent employee. But, of course, the KSRTC can exercise its powers to withhold or withdraw his pension or a part of it, whether permanently or for a short period invoking powers under Rule-3 of Part III KSR. The said provisions are also adopted by the KSRTC. This position is W.P.(C)35546/2005 5 supported by various decisions of this Court including the one in Jayarajan v State of Kerala (2001(3) KLT 929). But, the learned counsel for the KSRTC submitted that the petitioner was responsible for the delay in concluding the disciplinary proceedings. He also canvasses the position that once the punishment is set aside and a fresh punishment is imposed, the same will relate to the original date of punishment. I think it is difficult to accept the contentions of the learned counsel for the KSRTC. Even if the petitioner is responsible for the delay in concluding the disciplinary proceedings, the same will not enable the KSRTC to impose any punishment on him under Rule-15 of the Classification, Control and Appeal Rules, after his retirement. Further, once the punishment of dismissal or removal from service is set aside, an employee in service can be dismissed or removed from service only prospectively. Therefore, the contentions of the learned counsel for the KSRTC cannot be accepted. 4. In the result, the impugned order Ext.P10 is quashed. W.P.(C)35546/2005 6 This will not affect the powers, if any, of the KSRTC to take action against the petitioner under Rule-3 of Part III KSR. The KSRTC shall decide whether it can and whether it should proceed against the petitioner as per Rule-3 of Part III KSR, within two months from the date of production of a copy of this judgment; otherwise the terminal benefits due to him shall be released to him, as per the priority list of pensioners. K.BALAKRISHNAN NAIR, JUDGE css/