IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 8723 of 2007(S) ------------------------- OA.593/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. INDIAN COUNCIL OF AGRICULTURAL RESEARCH, THROUGH ITS SECRETARY, KRISHI BHAVAN, NEW DELHI. 2. THE DIRECTOR GENERAL, INDIAN COUNCIL OF AGRICULTURAL RESEARCH, KRISHI BHAVAN, NEW DELHI. 3. THE DIRECTOR, INDIAN COUNCIL OF AGRICULTURAL RESEARCH, CENTRAL ARID ZONE RESEARCH INSTITUTE, JODHPUR, RAJASTHAN. BY ADV. SRI.P.JACOB VARGHESE, SC, ICAR RESPONDENT(S): --------------- 1. C.T.ABRAHAM, S/O. C.G.THOMAS, EX-LAND SURVEYOR AND HEAD DRAUGHTSMAN, CENTRAL ARID ZONE RESEARCH INSTITUTE, JODHPUR, RESIDING AT CHAKKUTHARA HOUSE, KURIANNUR P.O., THIRUVALLA, PATHANAMTHITTA DIST. 2. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, THROUGH ITS REGISTRAR, INDIRA NAGAR, SASTHA NAGAR, SASTHA TEMPLE ROAD, KALOOR, KOCHI-682 017. 3. UNION OF INDIA, REP. BY ITS SECRETARY TO GOVT. OF INDIA, MINISTRY OF AGRICULTURE, NEW DELHI. ADV. SRI.C.UNNIKRISHNAN, CGC FOR R3 ADV.SRI.P.GOPINATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, ALONG WITH WPC NO. 27950 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF ORIGINAL APPLICATION NO.593/04 OF CAT, ERNAKULAM BENCH. EXT.P2 TRUE COPY OF REPLY STATEMENT SUBMITTED BY THE PETITIONERS IN OA 593/04 OF CAT, ERNAKULAM BENCH. EXT.P3 TRUE COPY OF ORDER/JUDGMENT DT.22.9.06 OF CAT, ERNAKULAM BENCH IN O.A. 593/04. /TRUE COPY/ K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).Nos. 8723 & 27950 of 2007 S - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of February, 2009 JUDGMENT Balakrishnan Nair, J. W.P.(C) No. 27950 of 2007 The applicant in O.A.No. 593 of 2004 before the Central Administrative Tribunal, Ernakulam Bench is the writ petitioner. The respondents herein were the respondents in that Original Application. Challenging Ext.P6 order of the Tribunal in the said Original Application, this Writ Petition is filed. 2. The brief facts of the case are the following. The petitioner joined the service of the Indian Council of Agricultural Research(in short “the I.C.A.R.”) as Land Surveyor and Head Draughtsman in 1958. In 1975, he was granted leave for two years to go to Oman. On the expiry of the leave period, the petitioner requested for extension of leave. But, there was no response. Though, the respondents claimed W.P.(C).Nos. 8723 & 27950 of 2007 2 that they have issued letters to the petitioner to re-join duty, in his last known address, no such letters are available in the files. Finally, the petitioner was informed by communication dated 23.9.1981 that his services were terminated with effect from 25.11.1980. 3. Challenging the said order, he filed a Writ Petition before the Rajasthan High Court. The said writ petition was later transferred to the Jodpur Bench of the Central Administrative Tribunal as T.A. 17 of 1989. The said petition was allowed by the Tribunal by order dated 22.10.1992 quashing the termination order, with liberty to the respondents to take appropriate action in accordance with law. Later, an enquiry was held into the charge of unauthorised absence against the petitioner. The Enquiry Officer found that the charges were partly proved. Accepting the report, the Disciplinary Authority, by order dated 2.8.1996, dismissed the petitioner from service. He challenged the said order before the Principal Bench of the Central Administrative Tribunal by filing O.A.No. 1832 of 1997. During the pendency of the Original Application, he reached the age of superannuation on 31.1.1998. The Original Application was allowed by the Tribunal by W.P.(C).Nos. 8723 & 27950 of 2007 3 order dated 7.8.2000, setting aside the dismissal order and remitting the matter to the Disciplinary Authority, to take a fresh decision in the matter. Thereafter, he was served with a show cause notice, along with a copy of the enquiry report, on 7.4.2001, calling upon him to furnish his objections to the enquiry report. 4. The petitioner challenged the said notice by filing Original Application No. 80 of 2002 before the C.A.T. which was disposed of by the Tribunal by order dated 12.4.2002, directing the Disciplinary Authority to consider the reply of the petitioner. The Disciplinary Authority reconsidered the matter and issued Ext.P1 order dated 20.5.2002, dismissing the petitioner from service. Though, he filed O.A.No. 248 of 2002 before the Jodpur Bench of the Central Administrative Tribunal against that order, the same was withdrawn without prejudice to his right, to invoke the departmental remedy available to him against the dismissal order. 5. The petitioner filed an appeal against Ext.P1 before the statutory Appellate Authority, namely the Secretary, Indian Council of Agricultural Research. The said appeal was dismissed by Ext.P2 order W.P.(C).Nos. 8723 & 27950 of 2007 4 dated 30.10.1003. He attempted a revision against that order before the Director General of Indian Council of Agricultural Research. The said revision petition was dismissed by Ext.P3 order dated 25.5.2004. 6. Aggrieved by Exts.P1 to P3, the petitioner filed O.A.No. 593 of 2004 before the Ernakulam Bench of the Central Administrative Tribunal. The copy of the Original Application is Ext.P4. The petitioner, mainly, contended that since he had already crossed the age of superannuation on 31.1.1998, thereafter the Disciplinary Authority could not have dismissed him from service. Of course, the proceedings under Rule 9 of the Central Civil Services (Pension) Rules could have been initiated and continued against him or the pending proceeding could have been converted into a proceeding under the said rule. But, even after superannuation and termination of employer-employee relationship, the Disciplinary Authority proceeded to impose the penalty of dismissal. The same was without jurisdiction. The orders of the Appellate and Revisional authorities are also equally bad, it was contended. W.P.(C).Nos. 8723 & 27950 of 2007 5 7. The respondents filed a detailed reply statement, resisting the prayers in the Original Application, a copy of which is produced as Ext.P5. The Tribunal, after hearing both sides, upheld the dismissal order, but directed to pay subsistence allowance from 25.11.1980 to 20.5.2002 to the petitioner. It was also ordered that while computing the subsistence allowance, the pay revision orders issued in the meantime should be taken into account. Aggrieved by the finding of the Tribunal that the dismissal of the petitioner was valid, this Writ Petition was filed. 8. The respondents have also filed a Writ Petition (C)No.8723 of 2007, challenging the direction of the Tribunal to pay subsistence allowance for certain period after the date of his superannuation. The respondents are also aggrieved by the direction to reckon the pay revision orders issued in the meantime for the purpose of computing the subsistence allowance. They also raised an untenable contention that the cause of action for the petitioner/applicant arose in Jodpur and therefore, the Original Application before the Central Administrative Tribunal, Ernakulam Bench was not maintainable. W.P.(C).Nos. 8723 & 27950 of 2007 6 9. We will first consider the grievance of the petitioner/applicant against the impugned order, Ext.P6, of the Central Administrative Tribunal. It is a well settled position in law that an employee is beyond the reach of disciplinary jurisdiction of the employer, once he retires from service. Of course, express statutory provisions could be framed to retain the employee even after superannuation for the purpose of continuing the disciplinary proceedings and for inflicting usual punishments like dismissal, removal from service etc. It is common case that the petitioner and other employees of the I.C.A.R. are governed by the service rules applicable to Central Government employees. The learned Standing Counsel for the I.C.A.R. has failed to point out any provision in the Rules applicable to Central Government employees, which enables the Disciplinary Authority to keep a delinquent in service beyond the date of superannuation, so as to enable the said authority to inflict a punishment of dismissal from service. 10. We notice that the only provision, which enables the Central Government to take action against a retired Government Servant, W.P.(C).Nos. 8723 & 27950 of 2007 7 irrespective of whether the action was initiated before his retirement or after, is Rule 9 of the CCS (Pension) Rules. A perusal of the Rule would show that no such power, as claimed by the Disciplinary Authority in this case, is available to it under the Rule. The learned Standing Counsel for the I.C.A.R. placed reliance on Government decision No.8 under the said Rule, which reads as follows: “(8) Disciplinary proceedings can continue after retirement even in case where there is no pecuniary loss to Government. - The question whether disciplinary proceedings pertaining to a serious or grave act of misconduct/negligence committed by a Government servant can be continued or instituted in terms of Rule 9 of CCS (Pension) Rules, 1972, or other corresponding rules, even if no pecuniary loss was caused to the Government, has been the subject matter of a number of Court/Tribunal cases. Because of the fact that divergent views were expressed by different Courts and the Benches of the Central Administrative Tribunal, this issue was referred to a Full Bench of the Central Administrative Tribunal in case of Amarjit Singh v. Union of India (Administrative Tribunal Reporter, 1988 (2) CAT 637). W.P.(C).Nos. 8723 & 27950 of 2007 8 The Full Bench, after examining the matter at length, have held that institution/continuance of the proceedings is not dependent upon any pecuniary loss being occasioned to the Government. Even in the absence of any pecuniary loss, the pension of a pensioner can be withheld or withdrawn in whole or part, after following the prescribed procedure, for an act of misconduct/negligence committed while in service.” The said decision is concerning the point whether action under Rule 9 could be taken or action taken earlier could be continued under Rule 9, even in the absence of any pecuniary loss sustained by the Government. Even in the absence of any pecuniary loss, proceedings can be initiated or continued under Rule 9. The said position is settled by the decision of the Apex Court in Union of India v. B.Dev ((1998) 7 SCC 691). 11. The decision No.8 of the Central Government quoted above has nothing to do with the point, which is decided in this case. The Central Administrative Tribunal has come to the conclusion that dismissal order can be validly passed against the petitioner even after W.P.(C).Nos. 8723 & 27950 of 2007 9 his superannuation, mainly relying on the decision of the Apex Court in Union of India v. V.B. Hajela ((1997) 10 SCC 531) and the decision of the Full Bench of the Central Administrative Tribunal in Amarjit Singh v. Union of India (Administrative Tribunal Reporter, 1988 (2) CAT 637). 12. We went through the decision of the Apex Court in Hajela's case (supra). We notice that the point, which arose for decision in that case was whether the direction to pay subsistence allowance was from the date of dismissal or the date of superannuation. The dismissal in that case was set aside after the employee concerned reached the age of superannuation. We found nothing in that decision, which supports the view taken by the Central Administrative Tribunal. We also notice that the decision of the Full Bench of the Central Administrative Tribunal does not support the finding of the Ernakulam Bench of the Tribunal. Both these decisions were misread by the Tribunal. We found no authority in law for the decision of the Central Administrative Tribunal on this point, that is, whether an employee, after his retirement, can be dismissed from service. W.P.(C).Nos. 8723 & 27950 of 2007 10 13. Therefore, the impugned order of the Tribunal is set aside. It is made clear that this judgment will not affect the rights, if any, of the respondents to take proceedings against the petitioner under Rule 9 of the CCS (Pension) Rules. We notice the contention of the learned counsel for the petitioner that at this distance of time, it is not possible to initiate fresh proceedings against the petitioner. Since it was not an issue before the Central Administrative Tribunal, we do not propose to go into that contention. If the respondents propose to take any action, the competent authority among the respondents shall take the decision to proceed under Rule 9 within a period of one month from the date of production of a copy of this judgment before them. If no such decision is taken, the terminal benefits due to the petitioner, including arrears of any allowance payable to him, shall be computed and released to him in accordance with law, within four months from the date of production of a copy of this judgment i.e., within three months after the time granted to the respondents to consider whether any other action should be taken against the petitioner. W.P.(C).Nos. 8723 & 27950 of 2007 11 14. This Writ Petition is allowed as above. Needless to say, if any action as contemplated under Rule 9 of the CCS (Pension) Rules is proposed to be taken against the petitioner, the respondents shall release the provisional pension under Rule 69 of the said Rules, including arrears thereof, within one month from the date of production of a copy of this judgment i.e., simultaneous with the decision, if any, to proceed against the petitioner. W.P(C).No. 8723 of 2007 15. In view of the judgment in W.P.C.27950 of 2007, this writ petition is dismissed. (K. BALAKRISHNAN NAIR) Judge (M.L. JOSEPH FRANCIS) Judge tm