IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 22ND DECEMBER 2009 / 1ST POUSHA 1931 WP(C).No. 8551 of 2005(R) ------------------------- PETITIONER(S): --------------- A.V.SUBRAMANIYAN, SUTHRITHA, POOVANI TEMPLE ROAD, KOLAZHY, THRISSUR. BY ADV. SRI.N.ANILKUMAR RESPONDENT(S): --------------- THE CHAIRMAN, COCHIN PORT TRUST, WILLINGDON ISLAND, KOCHI 9. SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SMT.PRIYA MAHESH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 8551/05. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE VOLUNTARY RETIREMENT SCHEME DTD.11.11.92. P2. COPY OF THE APPLICATION DTD.22.2.93. P3. COPY OF THE DISMISSAL ORDER DTD.23.12.94. P4. COPY OF THE PETITION DTD.26.4.01. P5. COPY OF THE JUDGMENT IN O.P.No. 11963/96 OF THIS COURT. P6. COPY OF THE ORDER DTD.21.6.04. P7. COPY OF THE PENSION ORDER GRANTING CHIEF MECHANICAL ENGINEER DTD.18.8.04. P8. COPY OF THE PENSION ORDER IN RESPECT OF N.VENKITACHALAPATHY, DTD.24.8.04. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 8551 of 2005 ================== Dated this the 22nd day of December, 2009 J U D G M E N T The petitioner was a former employee of the Cochin Port Trust. On allegation of unauthorised absence without leave, disciplinary proceedings were initiated against him, which resulted in imposition of the punishment of removal from service. The petitioner challenged the disciplinary proceedings in O.P.No.11963/1996, inter alia, on the ground of violation of principles of natural justice, which resulted in Ext.P5 judgment, wherein, this Court was satisfied that the enquiry was vitiated for violation of principles of natural justice. But, since the petitioner only wanted voluntary retirement as per an application submitted by him seeking the same, which was also rejected, this Court, after setting aside the order imposing punishment, directed the Chairman of the Cochin Port Trust, to consider the matter afresh with notice to the petitioner. Thereafter, the matter was reconsidered and, by Ext.P6 order, the Chairman imposed on the petitioner the punishment of compulsory retirement, instead of removal from service. But, by Ext.P7 order, the petitioner was sanctioned only 2/3rd of the normal pension, which he would have been otherwise eligible, citing Rule 40(1) of the Central Civil Services (Pension Rules), which have been adopted by the Cochin Port Trust in respect of their w.p.c.8551/05 2 employees. The petitioner's contention is that simply because he has been imposed with the punishment of compulsory retirement, reduction of pension is not automatic, but the same can only be, if circumstances of the particular case so warrant. The petitioner points out that Ext.P7, which is the order reducing pension, does not state any reason whatsoever for reducing pension. Therefore, according to the petitioner, the petitioner is entitled to full pension. 2. A counter affidavit has been filed, wherein Ext.P7 has been sought to be justified on the ground that the petitioner was given a lesser punishment only on sympathetic consideration and, therefore, Rule 40(1) of the Central Civil Services (Pension) Rules would apply. 3. I have considered the rival contentions in detail. 4. Rule 40(1) reads of the Rules thus: “40. Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two- thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement.” 5. The Government of India has passed a decision on Rule 40 (1) as follows: “(1) Guiding principles for reduction of pensionary benefits under Rule 40(1). - Rule 40 prescribes the limit for retirement benefits which would be admissible to an officer on whom the penalty of compulsory retirement may be imposed. This form of penalty has been introduced to provide for cases in which the continuance of a Government servant in service is considered to be undesirable but the extreme penalties of removal or dismissal, with the consequent loss of pension, is considered w.p.c.8551/05 3 to be too severe. The intention is that, persons on whom the penalty of compulsory retirement is imposed should ordinarily be granted the full compensation pension and retirement gratuity, admissible on the date of compulsory retirement. Where, however, the circumstances of a particular case so warrant, the authority competent to impose the penalty of compulsory retirement may make such reductions in the pensionary benefits, within the limits prescribed, as it may think appropriate. In the case of a person governed by the New Pension Rules, reduction may be made either in the retirement gratuity or in the pension or in both.” From the above, it is clear that simply because the punishment of compulsory retirement is imposed on an employee, it does not automatically flow as an inevitable consequence that the pension should be reduced to 2/3rd. There should be cogent reasons for taking that decision, which should appear in the face of the order itself. 6. Ext.P7 reads thus: “Sanction has been accorded by the Chairman, Cochin Port Trust, for the grant of pension and gratuity to Sri.A.V.Subramanian, Manager compulsorily retired from service with effect from 18.01.1994, as per Chairman's proceedings No.P/S/35/04/S dated 21.06.2004 at a rate of two-third of the normal pension to which he would have been otherwise eligible, in accordance with Rule 40(1) of the Central Civil Service (Pension) Rules, 1972.” A very reading of Ext.P7 would show that absolutely no reason whatsoever has been mentioned therein in support of the decision to reduce 1/3rd of the petitioner's pension. From the disciplinary proceedings, I find that the only allegation against the petitioner is of unauthorised absence without leave for 41 days. I have my own doubts as to whether for such misconduct compulsory punishment itself would be a proportionate punishment. I am not called upon to w.p.c.8551/05 4 decide that question, since the petitioner has not challenged that punishment. In any event, I am satisfied that the said misconduct is no ground to reduce pension, especially in view of the fact that no reasons are mentioned in Ext.P7. Accordingly, Ext.P7 is quashed. I direct the respondent to give full pension of the petitioner. Arrears shall be paid within two months from the date of receipt of a certified copy of this judgment and the petitioner shall continue to be paid pension at full rate. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge