Dismissed

Jayakumar A.O v. the Secretary

Kerala HC2 Nov 2020OP(KAT)/367/2020

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a petition challenging the Kerala Administrative Tribunal's order to continue disciplinary proceedings against a retired officer. The Court held that proceedings initiated before retirement can be continued under Rule 3 of Part III Kerala Service Rules even after retirement, allowing for pension reduction.

What did the court decide?

The original petition filed by the retired Administrative Assistant against the Kerala Administrative Tribunal's order was dismissed.

Jayakumar A.O Vs the Secretary — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942

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OP(KAT).No.367 OF 2020

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AGAINST THE ORDER IN OA 808/2019 DATED 03-03-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/APPLICANT IN THE O.A.:

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JAYAKUMAR A.O., AGED 61 YEARS, S/O.ANTONY NADAR, ADMINISTRATIVE ASSISTANT (RETIRED), OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM, NOW RESIDING AT 'BHARANI', HOUSE NO.E-11(A),SIVAJI LANE,KODUNGANOOR(P.O), THIRUVANANTHAPURAM,PIN-695 013.

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BY ADV. SRI.GOPAKUMAR R.THALIYAL

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RESPONDENTS/RESPONDENTS IN THE O.A.:

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1 THE SECRETARY,

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GENERAL EDUCATION, STATE OF KERALA, THIRUVANANTHAPURAM,PIN-695 001.

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2 THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM,PIN -695001.

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3 THE DIRECTOR OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM,PIN-695 003.

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4 THE TREASURY OFFICER, PENSION PAYMENTS TREASURY, THIRUVANANTHAPURAM,PIN-695 001.

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OTHER PRESENT:

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SRI. P.N. SANTHOSH- SR. G.P.

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).No.367 OF 2020

JUDGMENT

Shaffique, J

The original petition is filed challenging an order passed by the Kerala Administrative Tribunal in O.A.No.808/2019.

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The applicant/the petitioner herein, a retired Administrative Assistant in the General Education Department, challenged Annexure-A6 order passed by the Government imposing reduction of pension @ `500/- per month pursuant to the disciplinary action taken against him. The Tribunal, after considering the respective contentions, observed that there is some irregularity in taking the proceedings and accordingly Annexure-A6 order was set aside and liberty was granted to the first respondent-the Secretary, General Education, to proceed against the applicant from the stage of receipt of written statement of defence and to finalise the proceedings under Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 ['KCS (CC&A) Rules,1960', for short]. The main contention urged by the petitioner is that no proceedings could have been initiated and finalised under Rule 15 of the KCS (CC&A) Rules 1960, insofar as the petitioner retired from service on 30.09.2015.

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OP(KAT).No.367 OF 2020

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Apparently this is a case in which Annexure-A3 memo of charges along with statement of allegations were issued to the petitioner on 18.09.2015 under Rule 15 of KCS (CC&A) Rules, 1960. Once a person retires from service while disciplinary action is pending against him, Rule 3 and proviso (a) of Part III KSR applies, which reads as under:

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The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement.

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Provided that

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(a). such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employement, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authroty by which it was commenced in the same manner as if the employee had continued in service;

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The proviso (a) to Rule 3 of Part III KSR states that, departmental proceedings if instituted while the employee was in service, after his retirement shall be deemed to be a proceeding under Rule 3 and shall be continued and concluded by the authority by which it was commenced and in the same manner as if the employee had continued in

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OP(KAT).No.367 OF 2020

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service. Insofar as the proceedings were initiated against the delinquent officer prior to his retirement, proviso (a) to Rule 3 of Part III KSR applies to the fact situation, in which event, it shall be open for the Government to continue the proceedings against the pensioner.

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The learned counsel for the petitioner however would contend that the Tribunal could not have directed to continue the proceedings under Rule 15 of KCS (CC&A) Rules 1960. He placed reliance on a Division Bench judgment of this Court in K.M.Mohammed v. State and Others [ 1993 (1) Kerala Law Journal 59. T he question considered in the said case was whether the enquiry under Rule 15 of KCS (CC&A) Rules 1960, is permissible after the retirement of a delinquent officer. This court found that no such proceeding could be initiated or continued after retirement of an employee. However it was made clear that nothing contained in the judgment will operate to preclude the respondents from taking any action against the petitioner under Rule 3 of Part III of KSR, if such a course is considered necessary. Paragraph 9 of the judgment reads as under :

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In this view, we have to quash the disciplinary proceedings taken against the petitioner in Exts.P2 and P7

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OP(KAT).No.367 OF 2020

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and we prohibit the authorities to proceed with the enquiry under Rule 15 of the Rules. But before parting with the case, we must make it clear that though we have now prohibited the authorities to continue the disciplinary proceedings initiated against the delinquent officer under Rule 15 of the Rules, we feel that it is our obligation to make it clear that nothing contained in this judgment will operate to preclude the respondents from taking any action against the petitioner under Rule 3 of Part III of the Kerala Service Rules, if such a course is considered necessary.

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Therefore the impact of proviso (a) to Rule 3 of Part III KSR makes it rather clear that the department proceedings can be continued under the said Rules. There cannot be any doubt about the proposition that once an officer had retired, Rule 15 proceedings cannot be initiated. But the fact remains that once disciplinary action is initiated prior to retirement, the deeming provision under Proviso (a) to Rule 3 of Part III KSR squarely applies to the factual situation.

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Yet another judgment relied upon is Prafulla Chandra Mohapatra v. State of Orissa and Others [1993 (1) SCC 564]. In the aforesaid case, fresh disciplinary proceedings were initiated after retirement. The said case has no application to the factual aspects involved in the present case.

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In Jayarajan v. State of Kerala (2001 (3) KLT 929), yet

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OP(KAT).No.367 OF 2020

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another Division Bench of this Court had occasion to consider whether the disciplinary proceedings initiated against a delinquent officer should be continued after his retirement from service under Rule 15 of the KCS (CC&A) Rules and it was held as under:

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“6. The main contention urged before us is that the proceedings to impose a penalty under Rule 15 cannot be continued against him after his retirement from service. It is also submitted that the proceedings could not be continued under Rule 3 of Part III of Kerala Service Rules in the absence of any allegation of pecuniary loss to the Government. We are inclined to accept the contention of the appellant that after his retirement, it is not permissible to proceed against him under Rule 15 for the purpose of imposing a major penalty, but we are of the view that the proceedings can be continued against him under Rule 3 of Part III Kerala Service Rules.”

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In that case, when the disciplinary proceedings were challenged by the delinquent officer, the same came to be quashed by the learned Single Judge and direction was issued to conclude the proceedings in accordance with Rule 15 of the KCS (CC&A) Rules. The Division Bench held that the proceedings against the appellant can be continued under Rule 3 of Part III KSR instead of Rule 15 of KCS (CC&A) Rules.

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By virtue of proviso (a) to Rule 3 of Part III KSR, any

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OP(KAT).No.367 OF 2020

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proceeding initiated against an employee in service and who has retired later is deemed to be a proceeding under Rule 3 and shall be continued and concluded by the authority by which it was commenced “in the same manner as if the employee had continued in service”. Rule 15 of the KCS (CC&A) Rules lays down a procedure for imposing major penalty and one of the major penalty provided under Rule 11(1)(ix) is reduction of pension. Rule 3 of Part III KSR contemplates withholding or withdrawing pension or any part of it, whether permanently or for a specified period, and also the right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to Government. Therefore, once an employee retires from service, the penalty that can be imposed is only under Rule 3, even in a case where proceedings had been initiated under Rule 15 while he was in employment. However, there is a procedure contemplated under Rule 15 to conduct enquiry. When the Tribunal directed the 1^st respondent to finalise the proceedings under Rule 15 of the KCS (CC&A) Rules 1960, it only indicated completion of the procedural aspects involved in the enquiry. Even otherwise, if at all a direction had been issued to comply with Rule 15, as far as a retired employee is concerned, it is deemed to be a

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OP(KAT).No.367 OF 2020

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proceeding under Rule 3 and has to be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service. Therefore, there is no difference in the procedure to be followed by the competent authority. The only aspect would be once an employee had retired from service, subsequent disciplinary action shall amount to be one under Rule 3, in which event, the only punishment that can be imposed is as contemplated under Rule 3 and not with reference to major penalties as mentioned in Rule 15.

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In the above circumstances, we do not find any error being committed by the Tribunal in directing enquiry to be continued from the stage of submission of written statement of defence. The continuation of the said proceeding is legally permissible, in the light of proviso (a) to Rule 3 of Part III KSR. The original petition is, therefore, dismissed.

A.M.SHAFFIQUE, JUDGE

sd/-

GOPINATH P., JUDGE

AMV/04/11/2020

OP(KAT).No.367 OF 2020

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APPENDIX

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PETITIONERS EXHIBITS :

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EXHIBIT P1	COPY OF THE ORIGINAL APPLICATION NO.808/2019 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P.-A1	COPY OF THE FIR NO.1378/2015 OF FORT POLICE STATION, THIRUVANANTHAPURAM
EXHIBIT P1-A2	COPY OF ORDER SUSPENSION ORDER DATED 30.06.2015.
EXHIBIT P1-A3	COPY OF THE MEMO OF CHARGES DATED 18.09.2015.
EXHIBIT P1-A4	COPY OF THE JUDGMENT IN S.T.NO.2176/2015 PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, THIRUVANANTHAPURAM.
EXHIBIT P1-A5	COPY OF THE GOVERNMENT ORDER NO.4141/2018 DATED 11.10.2018.
EXHIBIT P1-A6	COPY OF THE GOVERNMENT ORDER NO.4856/2018/G.Edn. DATED 21.11.2018.
EXHIBIT P1-A7	COPY OF THE ORDER NO.EBI/98543/2015/DPI DATED 16.02.2019.
EXHIBIT P1-A8	COPY OF THE PENSION PAYMENT ORDER OF THE PETITIONER.
EXHIBIT P1-A9	COPY OF THE REPRESENTATION DATED 06.12.2018.
EXHIBIT P1-A10	COPY OF THE ORDER NO.515C2/2015 DATED 23.03.2015.
EXHIBIT P2	COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 15.10.2015.
EXHIBIT P3	COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 23.01.2016.
EXHIBIT P4	COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 21.03.2017.
EXHIBIT P5	COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT IN ORIGINAL APPLICATION NO.808/2019 DATED 23.11.2019 WITH OUT DOCUMENTS
EXHIBIT P6	COPY OF THE ORDER IN O.A.NO.808/2019 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 03.03.2020.
RESPONDENTS EXHIBITS	NIL
	TRUE COPY P.A.TO JUDGE

Jayakumar A.O v. the Secretary

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Jayakumar A.O v. the Secretary

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