IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 WP(C).No. 9281 of 2008(E) ------------------------- PETITIONER(S): --------------- P.SURENDRAN NAIR,(FORMERLY ASSISTANT SUB INSPECTOR OF POLICE, C.B.C.I.D.SIG.I THIRUVANANTHAPURAM) NOW RESIDING AT HOUSE NO 9/3 JOTSNA APARTMENT, PADMAVATHY NAGAR, VELACHERY, CHENNAI-42. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.PRAMJI PAUL VAZHAPPILLY RESPONDENT(S): --------------- STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT VIGILANCE (A) DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF ORDER DT 15.3.01 P2 COPY OF G.O. DT 9.12.02. P3 COPY OF SHOW CAUSE DT 9.10.03 P4 COPY OF ENQUIRY REPORT DT 30.8.03. P5 COPY OF REPLY DT 19.1.04. P6 COPY OF G.O. DT 22.1.05. P6(A) COPY OF ORDER DT 10.2.05. P7 COPY OF PETITION DT 23.4.05 P8 COPY OF ORDER DT 10.4.07. P8(A) COPY OF LETTER DT 27.3.06 P8(B) COPY OF LETTER DT 31.10.06 // TRUE COPY // P.A. TO JUDGE P.N.Ravindran, J. ===================== W.P(C).No.9281 of 2008 ===================== Dated this the 6th day of November, 2008. JUDGMENT The petitioner was subjected to disciplinary enquiry while he was working as Assistant Inspector of Police in C.B. C.I.D., Thiruvananthapuram. By Ext.P1 order passed on 15.3.2001, the Additional Director General of Police placed him under suspension pending disciplinary enquiry. Later, a memo of charges dated 31.8.2002 was served on him. The Government thereafter referred the matter to the Vigilance Tribunal for enquiry by Ext.P2 order dated 9.12.2002. The Vigilance Tribunal conducted an enquiry in terms of the provisions contained in the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 and submitted Ext.P4 report dated 30.8.2003 to the State Government recommending imposition of the punishment of compulsorily retirement from service with effect from the date of his suspension. The Vigilance Tribunal had in Ext.P4 report noticed that the petitioner is due to retire from service on 31.1.2004. On receipt of Ext.P4 report, the Government issued Ext.P3 show cause notice dated 9.10.2003 calling upon the petitioner to show cause why the punishment of compulsory retirement from service should not be imposed on him. The petitioner objected to the said proposal in Ext.P5 reply dated 19.1.2004 wherein he also pointed out that he will retire from service on 31.1.2004. The WP(C) 9281/08. -: 2 :- Government kept the matter pending and nearly one year after the petitioner retired from service and passed Ext.P6 order dated 22.1.2005 removing the petitioner from service with effect from 15.3.2001, the date on which he was placed under suspension. The petitioner moved the Government in review and by Ext.P8 order passed on 10.4.2007, the review petition was dismissed. In this Writ Petition, the petitioner challenges Exts.P6 and P8 orders and seeks the following reliefs: “i. a writ of certiorari quashing/setting aside Exts.P6 and P8 orders. ii. a writ of mandamus to the respondents to issue orders declaring that the petitioner shall be entitled for all pensionary benefits based on his deemed retirement on 31.1.2004.” 2. The petitioner contends that as he retired from service on 31.1.2004, no order imposing punishment would have been passed by the Government or any other authority. It is contended that in the absence of rules which empower the Government to impose punishment after the employer-employee relationship ceases by reason of retirement from service, the Government was not competent to impose any punishment on the petitioner. The respondents contend that orders could not be passed before the petitioner retired from service due to the normal delay in conducting the proceedings and that the Government is competent to impose any punishment taking into account the gravity of the misconduct committed by the employee. WP(C) 9281/08. -: 3 :- 3. I have heard Sri.K.R.B.Kaimal, the learned Senior Advocate appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submits that in the light of the law laid down by the Full Bench of this Court in Xavier v. K.S.E.B. - 1979 K.L.T. 80 and by the Division Bench of this Court in Jayarajan v. State of Kerala - 2001(3) K.L.T. 929, the orders impugned in this Writ Petition cannot be sustained. This proposition is not seriously disputed by the learned Government Pleader appearing for the respondents, who attempted to sustain the impugned orders on the ground that as the disciplinary proceedings had been initiated prior to the petitioner's retirement from service, the Government was entitled to pass the impugned orders. 4. The Full Bench of this Court has in Xavier v. K.S.E.B. (supra) held that after retirement, disciplinary proceedings initiated against the Government servant can be continued only for the purpose of recovery of the pecuniary loss, if any, caused to the Government. In Jayarajan v. State of Kerala (supra), the Division Bench of this Court held that after retirement, it is not permissible for the disciplinary authority to proceed under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 and to impose any punishment. It was however, observed that power under Rule 3 of Part III of the Kerala Service Rules can be invoked notwithstanding the fact that the employee has retired from service. The Apex Court has in Bhagirathi Jena v. Board of WP(C) 9281/08. -: 4 :- Directors, O.S.F.C. and others - (1999) 3 S.C.C. 666, State of U.P. and another v. Shri Krishna Pandey - (1996) 9 S.C.C. 395 and Uco Bank and another v. Rajinder Lal Capoor - (2007) 6 S.C.C. 694 held that in the absence of any provision in the rules to the effect that the employee will be deemed to be in service on attaining the age of superannuation, the disciplinary authority cannot impose on the employee any punishment after his retirement from service. 5. In the instant case, though the disciplinary proceedings were initiated against the petitioner while he was in service and the Vigilance Tribunal submitted its report more than one year prior to the date of retirement of the petitioner, the Government did not choose to take steps to finalise the disciplinary proceedings. It was only on 22.1.2005, nearly one year after the petitioner retired from service that Ext.P6 order was passed imposing on him the punishment of removal from service. The petitioner ceased to be an employee of the Government on 31.1.2004. No provision of the service rules was brought to my notice, which stipulates that an employee facing disciplinary action will continue to remain in service till the disciplinary proceedings are finalised. There is no deeming provision also by which such employees are deemed to be in service. In the light of law laid down by the Apex Court and this Court, the orders impugned in this Writ Petition cannot be sustained. 6. For the reasons stated above, I quash Exts.P6 and P8 and declare that the punishment of removal from service imposed on the petitioner WP(C) 9281/08. -: 5 :- by Ext.P6 order was of no effect. The petitioner will be entitled to all consequential benefits as if he continued in service without the punishment of removal from service being imposed upon him. The respondents shall fix and pay to the petitioner all service benefits including pensionary benefits. This shall be done within four months from the date of receipt of a copy of this judgment. It is however clarified that the Government will be free to take steps under Rule 59(b) of Part III of the Kerala Service Rules. The Writ Petition is allowed as above. No costs. P.N.Ravindran, Judge. bps/ess 13/11