IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WA.No. 2773 of 2007() --------------------- AGAINST THE JUDGEMENTIN OP.7636/2001 Dated 20/06/2007 .................... APPELLANTS: RESPONDENTS ---------------------- 1. STATE OF KERALA REPRESENTED BY VIGILANCE DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, LAND REVENUE, THIRUVANANTHAPURAM 3. THE DISTRICT COLLECTOR, KASARAGOD. BY GOVERNMENT PLEADER SRI.K.SANDESH RAJA RESPONDENT: PETITIONER ----------------------- A.P.JANARDHANAN KULLA HOUSE, POST EDANAD, KUMBLA, KASARAGOD DISTRICT. BY ADV. SRI.K.SHRIHARI RAO SMT.N.SHOBHA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON 28/03/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- W.A. NO. 2773 OF 2007 ----------------------------------------- Dated 28th March, 2008. JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this Writ Appeal is whether a Government servant could be dismissed with retrospective effect from the date he was suspended from service. 2. The brief facts of the case are the following: The respondents in the writ petition are the appellants. The respondent herein was the writ petitioner. He, while working as a Village Officer in Maire, Kasaragod, was accused of demanding a bribe of Rs.1000/- from the beneficiary of a Government scheme. A trap was laid by the Deputy Superintendent of Police, Vigilance, Kasaragod and he was caught red-handed while receiving Rs.500/-, out of the total amount of Rs.1000/-, demanded by him. On the basis of the report of the Vigilance Police, the respondent was kept under suspension, by order dated 1.6.1995. The suspension took effect from 2.6.1995. The respondent was served with a memo of charges on 3.7.1996. WA NO.2773/2007 2 He submitted his written statement of defence. The Government referred the matter for enquiry to the Vigilance Tribunal, Kozhikode. The Tribunal submitted a report, finding him guilty and also recommending to award him the penalty of compulsory retirement, as provided under Rule 11(1)(vi) of Kerala Civil Services ( Classification, Control and Appeal) Rules, 1960. The Government finalised the disciplinary proceedings by Ext.P6 order dated 12.12.2000 and ordered that the respondent be compulsorily retired from service with effect from the date of suspension. The respondent challenged Ext.P6 by filing the writ petition, raising various grounds. The learned single Judge interfered with Ext.P6 to the extent it was given effect from the date of suspension, relying on the decision of this Court in Parappuram M.P. Co-op. Society v. Dy. Director, Dept. of D.D. [1999(1) KLT 121 (DB)]. It was ordered that the punishment will take effect only prospectively, that is, from 12.12.2000. The respondent was due to retire from service on 31.12.2000. As a result of the judgment of the learned Single Judge, the punishment will not, practically, affect him. So, the learned Single Judge did not consider the other points raised in the writ petition. The respondent did not file any appeal also, as he was satisfied with the judgment of the learned Single Judge. But, the respondents in the writ petition have filed this appeal, contesting the finding of the learned WA NO.2773/2007 3 Single Judge that the punishment cannot have any retrospective operation. 3. The learned Government Pleader Mr.K.Sandesh Raja, who appeared for the appellants submitted that the decision rendered by this Court in Parappuram M.P.Co-op. Society's case cannot be made applicable to Government servants, as their service conditions are entirely different from that of the employees of Co-operative Societies. He further submitted that the rules contained in the Kerala Service Rules mention about imposition of the punishment of compulsory retirement with retrospective effect. Special reference was made to Note 6 to Rule 56B of Part I, K.S.R. The learned Government Pleader also relied on the decisions of this Court in Venkiteswaran v. State of Kerala [1963 K.L.T. 1097], Narayana Murthy v. State of Kerala [1964 K.L.T. 180] and State of Kerala v. Gopalan [1979 K.L.T. 907], in support of his submissions. 4. The learned counsel for the respondent Mr.Shrihari Rao, apart from relying on the decision in Parappuram M.P. Co-op. Society's case (supra), also relied on the decision of this Court in Philipose v. State Bank of Hyderabad [2001(3) K.L.T. 378]. Reference was also made to Jeevaratnam v. State of Madras [AIR 1966 SC 951]. 5. We will refer to the decisions cited by the appellants, first. The WA NO.2773/2007 4 decision in Venkiteswaran v. State of Kerala [1963 K.L.T. 1097] was rendered in a case wherein it was considered whether the termination of the service of a Government servant could be given effect from the date of his suspension. The petitioner therein was suspended from service on 13.11.1956. He was compulsorily retired from service by order dated 1.8.1961 with retrospective effect from 13.11.1956. It was contended on behalf of the petitioner that the retrospectivity given to the said order is illegal. After considering the rival contentions of the parties, a learned Single Judge of this Court (Vaidialingam, J.) held as follows: “99. In my opinion, if an officer has not been placed under suspension pending an enquiry, it may be that the authority will have no power to pass an order either dismissing him from service or removing him from service or compulsorily retiring him from service with effect from an anterior date. Under these circumstances, an order passed in any one of the manners indicated above can be intended to take effect only from the date on which the order is actually passed. But in my view, in cases where an officer, as in this case, has been placed under suspension, pending an enquiry by virtue of the powers vested in the Government under the relevant rules, there is full jurisdiction in the Government to pass an order either dismissing or removing or compulsorily retiring the officer from service with effect from the date of the original order placing him under suspension. Such an order cannot certainly go anterior to the date of placing an officer under suspension. But otherwise, I do not see any illegality in such orders being passed by the State Government and effect being given to those orders.” 6. The decision in Narayana Murthy v. State of Kerala [1964 WA NO.2773/2007 5 K.L.T. 180] was also one concerning the validity of an order retiring compulsorily a Government servant with retrospective effect from the date of suspension. Madhavan Nair, J., speaking for the Division Bench presided by M.S.Menon, C.J., held as follows: “13. Counsel contended that a removal with retrospective effect as has been done in the appellant's case is not warranted in law. No law, nor decision to support that proposition has been cited before us. Hemanta Kumar Bhattacharjee v. S.N. Mukherjee (AIR 1954 Cal. 340) cited at the Bar relates to suspension of a suspected officer. No analogy can be drawn between that and the case of removal of a proved delinquent. The caution administered by Sinha, J. (as he then was) in AIR 1956 SC 559 'arguments by analogy may be misleading' seems to us to be very apt here. It is then contended that a removal with retrospective effect implies a 'legal fiction' that none but the Legislature can make. We need only point out that the legal fiction in adoption prevalent in Hindu Law had no legislative origin. In Joseph John's case (AIR 1955 SC 160) the officer was suspended on December 22, 1949, pending enquiry into the charges against him and was removed from service by an order dated October 1, 1951, with effect from the date of his suspension. The Supreme Court, by a Full Court judgment, has upheld that order. Though the decision may not be a precedent as such, it is an indication that in their Lordships' view there was no patent irregularity in the order. Cases of dismissal of officers, suspended pending enquiry and subsequently found delinquent, with retrospective effect from the date of their suspension are so numerous that it is now assumed as implied in an order of suspension that in case the charges are found true the officer is likely to be dismissed as from the date of his suspension. In the show WA NO.2773/2007 6 cause notice, Ext.P7, the appellant has been expressly told of the Government's proposal to dismiss him with effect from the date he was placed under suspension. He took no exception to the order being made retrospective. In strictness, an order consequential on a misconduct may relate to the time when the misconduct was committed. There is no illegality in the order of compulsory retirement of the appellant from the date he was placed under suspension pending enquiry into his misconduct, which came to be proved against him.” 7. The decision in P.Joseph John v. State of Travancore-Cochin [AIR 1955 SC 160] mentioned in the above decision arose out of a Full Bench decision of the Travancore-Cochin High Court, concerning the validity of the removal from service of an officer of the T.C. Government. He was removed from service with retrospective effect from the date of suspension. The T.C. High Court upheld the order of the Government. The Constitution Bench of the Apex Court, by the above judgment in Joseph John (supra), dismissed the appeal. It is true that both the courts did not specifically consider the validity of the retrospectivity given to the order, as the said point was not raised or argued. 8. The decision in State of Kerala v. Gopalan [1979 K.L.T. 907] was also concerning the retrospective effect given to a dismissal order. The Division Bench followed the aforementioned two decisions and held as follows: WA NO.2773/2007 7 “This appeal is by the State which has been seriously aggrieved by that part of the judgment of the learned Judge in O.P.No.4594 of 1976 which stated that an order of dismissal cannot take effect from the anterior date of suspension of the employee which was directed pending enquiry into the disciplinary proceedings. The respondent was placed under suspension on 14.8.1963 for certain irregularities and misconduct which were the subject-matter of enquiry and disciplinary proceedings against him. These resulted in finding the respondent guilty. An order of dismissal was passed on 8.6.1976 to take effect from 14.8.1963, the date on which the respondent was placed under suspension. The learned Judge held that this was not permissible, and was indeed illegal, on the only ground that being an executive order, the order of dismissal cannot take effect from a date anterior to the one on which it was made. The learned Judge's attention was called to two decisions of this Court in Venkiteswaran v. State of Kerala (1963 K.L.T. 1097) and Narayana Murthi v. State of Kerala (1964 K.L.T. 180). Referring to these decisions, the learned Judge stated that this Court was moved mainly by two considerations, namely, that an order of dismissal deprives the employee of the past as well as the future benefits, and an order of reinstatement restores those benefits to him. Further these cases noticed that in the show cause notice the petitioners in those cases had been expressly told that the dismissal was to take effect from the date of suspension and had not raised any objection. While these considerations are undoubtedly noticed in the two decisions, we are afraid that the learned Judge has missed the principle and the ratio behind the decisions. The decisions themselves – and indeed many other cases too – have recognised that in cases of disciplinary proceedings taken against an employee, the contract of service can be put an end to by a suspension pending enquiry. It has been well- recognised that the suspension pending enquiry is part of a disciplinary power possessed by the employer against the employee [vide R.P.Kapur v. Union of India (AIR 1964 SC 787) and B.R.Patel v. State of Maharashtra (AIR 1968 SC 800)]. That being so, there is no retrospective effect in the proper sense of the term in ordering a dismissal with effect WA NO.2773/2007 8 from the anterior date on which the suspension was ordered. The two decisions of this Court in Narayana Murthi v. State of Kerala (1964 K.L.T. 180) and Venkiteswaran v. State of Kerala (1963 K.L.T. 1097) are directly in point and the learned Judge should have followed those decisions.” (Gopalan Nambiyar,C.J.) The statement that by suspension pending enquiry the contract of service can be put to an end does not lay down the correct legal position, in view of the decisions of the Apex Court in R.P.Kapur v. Union of India [AIR 1964 SC 787], State of M.P. v. State of Maharashtra [AIR 1977 SC 1466] and O.P.Gupta v. Union of India [(1987)4 SCC 328]. It is only an obiter dicta and even if it is eschewed, the above quoted decision will survive, as it was rendered relying on two earlier decisions of this Court. 9. Now, we will advert to the decision cited by the learned counsel for the respondent. In Parappuram M.P. Co-op. Society [1999(1) K.L.T. 121 (DB)], a Division Bench of Court held as follows: “5. One of the grounds mentioned in Ext.P7 to interfere in the order of dismissal is that second respondent was retrospectively dismissed. It is well settled law that an employee can be dismissed only prospectively and not retrospectively. (Nepal Chandra Guchalt v. District Magistrate (1986 II LLJ 71). But, it has been held by the courts that retrospective order will not be void and it will be deemed to have been effective from the date of dismissal, ie., prospectively (Sudhir Ranjan Haldar v. State of West Bengal – 1961 II LLJ 283).” WA NO.2773/2007 9 The first decision relied on by the Division Bench is a Single Bench decision of the Calcutta High Court. The second decision in Sudhir Ranjan Haldar v. State of West Bengal was considered by this Court in Venkiteswaran v. State of Kerala [1963 K.L.T. 1097]. This Court declined to follow it, on the ground that the said decision does not state any reason for the proposition laid down against dismissal from service with retrospective effect. Going through the said decision of the Calcutta High Court, we also agree with the above view expressed by this Court in Venkiteswaran on that decision. The decision in Nepal Chandra Guchalt was rendered, relying on the decision in Sudhir Ranjan Haldar. So, we decline to follow Nepal Chandra Guchalt. Further, we notice that the decision in Parappuram M.P. Co-op. Society concerns the service conditions of the employees of Co-operative Societies. A decision in their case cannot be mechanically applied to the Government servants. 10. The next decision cited by the learned counsel for the respondent was in Philipose v. State Bank of Hyderabad [2001(3) K.L.T. 378]. In the said decision, it was held as follows: “4. It is true that if the charge sheet was issued before the retirement, the respondent Bank may be able to continue the proceedings in view of the service Rules. But retrospective dismissal or retirement order in the nature as in Ext.P5 cannot WA NO.2773/2007 10 be passed as petitioner has completed the full years of service and again another five years extended service because of his efficiency and he completed the extended period also. The matter is covered by a Supreme Court decision in Jeevaratnam v. State of Madras (AIR 1966 SC 951). There it is stated that if a retrospective dismissal order is passed, it is severable and it will act only prospectively. Here Ext.P5 order was passed only after 7.5 years of actual retirement of the -petitioner, that too after the extended period of service. Therefore, retrospective compulsory retirement will not be justified in any facts of the case.” We notice that the above decision is one rendered in the background of the special facts of the case. Further, it is a decision dealing with the service conditions of the Bank employees. 11. The learned counsel also relied on the decision in Jeevaratnam v. State of Madras [AIR 1966 SC 951]. We notice that in the said decision, the question whether the dismissal order could be given retrospective effect, was not a point raised for decision before the Hon'ble Supreme Court. In that case the dismissal order was passed on 17.10.1950 with effect from 20.5.1949. A suit was filed by the appellant, seeking a declaration that the order dismissing him from service was illegal and void. The trial court dismissed the suit. The High Court of Madras affirmed it. The relevant portion of the appellate judgment of the Apex Court in that case reads as follows: “(3) Counsel for the appellant next contended that the WA NO.2773/2007 11 order of dismissal dated October 17, 1950 having been passed with retrospective effect is illegal and inoperative. Counsel for the respondent submitted (1) the order of dismissal with retrospective effect as from the date of the suspension is valid in its entirety, and (2) in any event, the order is valid and effective as from October 17, 1950. The High Court accepted the first contention, and declined to express any opinion on the second contention. In our opinion, the second contention of the respondent is sound, and in this view of the matter, we decline to express any opinion on the first contention. Counsel for the appellant conceded that if the respondent's second contention is accepted, the appeal must fail. (4) The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. The two part of this composite order are separable. The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service. (5).................................... Our attention is drawn to similar observations in Sudhir Ranjan Haldar v. State of West Bengal, AIR 1961 Cal. 626. With respect, we are unable to agree with this line of reasoning. An order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to WA NO.2773/2007 12 the valid and severable part of the order.” (Emphasis supplied) In the above decision also, the question whether Government servants could be dismissed with retrospective effect from the date of suspension, in the light of the relevant service rules applicable, was not specifically considered or decided. The Madras High Court upheld the dismissal order with retrospective effect in its entirety. The Apex Court assumed for arguments sake that the retrospective operation of the dismissal order is invalid and held that at any rate the order will operate prospectively. We also notice that the Apex Court in this decision declined to uphold the reasoning of the Calcutta High Court in Sudhir Ranjan Haldar (supra). 12. Going by the above decisions, we are of the view that there is no binding precedent of any court that a Government servant cannot be dismissed with retrospective effect. We also notice that there are at least two Division Bench decisions, Narayana Murthy (supra) and Gopalan (supra) of this Court, taking the contrary view. Now, we will refer to the relevant Rules. We notice that the Government Servants Conduct Rules, 1960 define the various misconducts from the part of Government servants. The K.C.S. (CC&A) Rules, 1960 deal, inter alia, with conduct of disciplinary proceedings, imposition of penalty, etc. Rule 10 of the said Rules deals WA NO.2773/2007 13 with suspension. Rule 11 deals with various penalties. Compulsory retirement is a penalty provided under Rule 11(1)(vi). Rule 15 provides the procedure for holding enquiry for imposition of a major penalty. 13. The provisions of the Kerala Service Rules (K.S.R.) also deal with certain matters connected with disciplinary proceedings, like payment of subsistence allowance, etc. Rule 24 of Part I, K.S.R., provides that an officer continuously absent for five years shall be removed from service, following the procedure laid down in K.C.S. (CC&A) Rules, 1960. Rule 24A deals with termination of service of persons not joining duty, who have availed leave without allowance to take up employment abroad or for joining spouse, following the procedure laid down in the K.C.S. (CC&A) Rules, 1960. Note 5 under Rule 56B of Part I, K.S.R., deals with dismissal or removal from service of an officer from the date of suspension. The said note reads as follows: “If an officer under suspension is dismissed or removed with retrospective effect from the date of suspension no recovery should be made of the subsistence allowance already paid to him, and arrears of subsistence allowance, if any, due to him upto the date of the order dismissing or removing him should be paid to him. The arrears of subsistence allowance due to the officer should not be adjusted against any amounts due from him to Government.” WA NO.2773/2007 14 Note 6 of the said Rule deals with compulsory retirement with retrospective effect from the date of suspension. The said note reads as follows: “If an officer under suspension is compulsorily retired with retrospective effect from the date of suspension, the pension due to the officer from the date of such retirement to the date of the order compulsorily retiring him shall be withheld, if the rate of pension is lower than or equal to the rate of subsistence allowance granted to him. In case the pension happens to be higher than the subsistence allowance granted, the difference shall be paid to the officer.” Rule 96A of Part I, K.S.R., deals with disciplinary action against a Government servant, who is not in permanent employment, for not rejoining duty after the leave period. 14. So, the above provisions in the K.S.R would show that the Government, which is the author of the Rules and also the disciplinary authority of the respondent, had contemplated dismissal or removal from service with retrospective effect. Compulsory retirement from service with retrospective effect as a punishment was also within the contemplation of the Government. The above provisions in the K.S.R also form part of the disciplinary code applicable to a Government servant. We notice that there is no challenge to the above statutory provisions. Therefore, if, in an appropriate case the Government impose the punishment of compulsory retirement with retrospective effect, the same cannot be treated as illegal or WA NO.2773/2007 15 unauthorised. There is no binding precedent of this Court or of the Apex Court, concerning the invalidity of imposition of a punishment with retrospective effect, on a Government servant working under the State of Kerala. Even assuming Jeevaratnam's case (supra) had considered whether retrospective effect could be given to a dismissal, the same can only be a decision concerning service conditions of Government servants working under the erstwhile Madras Government. So, the said decision cannot have any application to the facts of this case. In the result, we reverse the judgment of the learned Single Judge, to the extent it holds a punishment of compulsory retirement cannot be awarded with retrospective effect. 15. The learned counsel for the respondent tried to sustain the challenge against Ext.P6 on other grounds. On facts, we notice that the respondent was given all opportunity to defend himself before the Vigilance Tribunal. He was represented by counsel. The Tribunal after following the procedure prescribed by