IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 WP(C).No. 10770 of 2006(F) -------------------------------------- PETITIONER : ---------------------- M. GEORGE PAULOSE, S/O. GEORGE, MULLOOR HOUSE, KADUNGASSERY WEST, NAYARAMBALAM. BY ADV. SRI.S.SREEKUMAR RESPONDENTS : ------------------------- 1. CHAIRMAN, COCHIN PORT TRUST, COCHIN-9. 2. THE CHIEF MECHANICAL ENGINEER, COCHIN PORT TRUST, COCHIN-9. ADVS. SRI.K.ANAND (A.201) FOR R1 & R2 SMT.LATHA KRISHNAN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DSV/- WP(C).No. 10770 of 2006(F) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : COPY OF THE JUDGMENT IN O.P.NO.13784/1994 DATED 01.02.2005 EXHIBIT P2 : COPY OF ORDER DATED 31.07.2005 OF THE 1ST RESPONDENT EXHIBIT P3 : COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P4 : COPY OF NOTIFICATION DATED 05.07.2004 OF MINISTRY OF SHIPPING (PORT WING) EXHIBIT P5 : COPY OF FORM-L NOTICE DATED 16.01.2006 EXHIBIT P6 : COPY OF THE PENSION ORDER DATED 17.01.2006. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE DSV/- S.SIRI JAGAN, J. ================== W.P.(C).No. 10770 of 2006 ================== Dated this the 14th day of December, 2011 J U D G M E N T The petitioner was an employee of the Cochin Port Trust. Pursuant to disciplinary proceedings, the punishment of dismissal from service was imposed on the petitioner. By Ext.P1 judgment, this Court directed the Chairman of the Port Trust to reconsider the question of punishment to be imposed on the petitioner. Thereafter, the Chairman reconsidered the matter and, by Ext.P2 order, converted the punishment of dismissal into that of compulsory retirement. Pursuant thereto, the petitioner was sanctioned retirement benefits as per Exts.P4 and P5. But from his pension and DCRG, one-third was deducted. Apart from that, the subsistence allowance paid to the petitioner also was deducted. According to the petitioner, both are unsustainable. The petitioner further contends that prior to entering regular service, the petitioner had casual service for the period from 1968 to 1974. According to him, as per Ext.P4 order of the Government of India, such service also is liable to be considered as qualifying service for retirement benefits. The petitioner, therefore, seeks the following reliefs: “(i) call for the records leading to Ext.P5 and P6 and quash the same by issue of a writ of certiorari or other writ order or direction. (ii) issue a writ of mandamus or such other appropriate writ of (sic) order or direction, directing the respondents to grant full pensionary benefits to the petitioner considering Ext.P3 w.p.c.10770/06 - : 2 :- representation.” 2. A counter affidavit has been filed by the 2nd respondent, wherein the stand taken is that as per Rule 40 of Central Civil Services (Pension) Rules, 1972, which is applicable to the employees of the Cochin Port Trust also, on compulsory retirement as a penalty, the authority competent to impose such penalty can reduce pension or gratuity or both, at a rate not less than one-third. It is in accordance with the powers under the said rule, one-third of the pension and gratuity has been reduced. It is further submitted that the period of suspension was ordered to be treated as non-duty and that is why the subsistence allowance has been reduced from the retirement benefits. Regarding the claim for reckoning of casual service in accordance with Ext.P4 Government order, it is submitted that Ext.P4 order being prospective, the same is applicable only to those persons who entered service after the date of Ext.P4. 3. I have considered the rival contentions in detail. 4. Rule 40 of the Central Civil Services (Pension) Rules, 1972, reads 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. xxx xxx xxx” w.p.c.10770/06 - : 3 :- In view of the same, it is competent for the 1st respondent to reduce pension and gratuity to the extent of one-third, which only has been done by Exts.P5 and P6. Therefore, I do not find any merit in the challenge of the petitioner against the reduction of one-third of his pension and gratuity. 4. But I find merit in the contention of the petitioner that subsistence allowance cannot be recovered from an employee even if, pursuant to suspension, punishment has been imposed on him. The fact that the period of suspension has been ordered to be treated as non-duty is no ground to recover subsistence allowance already paid to him. The Kerala Payment of Subsistence Allowance Act expressly prohibits forfeiture of any subsistence allowance paid to a suspended employee. As such, I find that the deduction of subsistence allowance from the petitioner's retirement benefits is unsustainable. In the above circumstances, the petitioner is entitled to refund of the subsistence allowance, which has been deducted from his retirement benefits. 5. I do not find any merit in the contention of the respondents that Ext.P4 is applicable only to persons who entered service subsequent to Ext.P4. Ext.P4 does not say so. I can construe the same only as applicable to those employees who retired from service after issue of Ext.P4 order. Ext.P4 is dated 5.7.2004. Although Ext.P2 was issued on 31.7.2005, the petitioner was actually dismissed from w.p.c.10770/06 - : 4 :- service in 1993. Pursuant to Ext.P1 judgment that dismissal only was converted into compulsory retirement from service with effect from the date of dismissal, which is 4.3.1993. Since his compulsory retirement is much prior to Ext.P4, the petitioner is not entitled to the benefit of Ext.P4. 6. In the above circumstances, this writ petition is disposed of with the following directions: Exts.P5 and P6 to the extent the same reduce the petitioner's pension and gratuity by one-third is confirmed. But the deduction of subsistence allowance paid to the petitioner is set aside. It is also declared that the petitioner is not entitled to the benefit of his casual service in accordance with Ext.P4. In implementation of the above directions, orders shall be passed and the subsistence allowance deducted from the retirement benefits paid to him, within one month from the date of receipt of a certified copy of this judgment. If other retirement benefits have not been paid to the petitioner, the same shall also be paid to the petitioner within that time. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.10770/06 - : 5 :-