Somasekhara Menon vs State of Kerala and Another

Balakrishna Eradi, J.—The Appellant before us had filed O.P. No. 2987 of 1977 before this Court challenging the disciplinary proceedings initiated against him as per the orders evidenced by Exts. P-1, P-3 and P-5 passed by the State Government and praying for the issuance of a writ of prohibition restraining the 2nd Respondent -- the Director of Municipalities, Trivandrum from conducting the disciplinary enquiry against the Appellant-Petitioner in pursuance of the directions contained in Exts. P-1, P-3 and P-5. Our learned brother Vadakkel, J. before whom the original petition came up for preliminary hearing at the admission stage disposed it of finally after recording certain assurances given to the court by the law and Liaison Officer who took notice on behalf of the Respondents. The Appellant contends that the impugned proceedings are totally illegal and without jurisdiction and that they ought to have been quashed by the learned single Judge.

The Appellant who will hereafter be referred to as the writ Petitioner, was employed in the service of the State Government as a 1st Grade Municipal Commissioner. He retired from service on superannuation on 31st March 1976. Thereafter, on 2nd April 1976 a memo of charges dated 20th March 1976 was served on the Petitioner requiring the Petitioner to show cause why disciplinary action as contemplated under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as the Rules) should not be taken against him in respect of the allegations of misconduct enumerated therein. Ext. P-1 is a copy of the memo of charges together with the statement of allegations annexed thereto. In response to Ext. P-1 the writ Petitioner put in a detailed statement of defence where in he specifically raised inter alia the contention that Respondents had no jurisdiction to initiate disciplinary proceedings against him under Rule 15(2)(a) of the Rules after he had already retired from the service of the Government. Without prejudice to the said preliminary objection relating to jurisdiction, the Petitioner also set out in detail in the said representation his explanation in respect of the various charges. Ext. P-2 is a copy of the said explanation filed by the Petitioner. Thereafter the Government passed the order Ext. P-3 dated 11th May 1977 directing that a formal enquiry under Rule 15(2)(b)(iv) of the rules be conducted into the allegations against the Petitioner by the Director of Municipalities. Paragraphs 3 and 4 of the order Ext. P-3 read as follows:

The explanation submitted by Sri Somasekhara Menon has been examined by the Government. The explanation is not satisfactory. As the charges against him are very grave, the Government decide that a formal enquiry be conducted under Rule 15 of the K.C.S. (CC and A) Rules, 1960.

Accordingly Government hereby, under Rule 15(2)(b)(iv) of the K.C.S. (CC and A) Rules, 1960, empower the Director of Municipalities to conduct the enquiry. He will submit the enquiry report to Government within 3 months.

From a reading of Ext. P-3 it becomes obvious that the Government had either totally ignored or impliedly overruled the objection raised by the Petitioner that the disciplinary proceedings as such could not be commenced after his retirement from service. What has been done under Ext. P-3 is to hold the explanation of the Petitioner to be unsatisfactory and to direct under Rule 15(2)(b) of the rules a formal disciplinary enquiry to be conducted against the Petitioner.

On receipt of Ext. P-3 the Petitioner again made a detailed representation to the State Government as per Ext. P-4 dated 31st May 1977 reiterating his contention that the Government had no jurisdiction to order a disciplinary enquiry to be conducted against the Petitioner under Rule 15(2)(b)(iv) since the Petitioner had retired and was no longer in the service of the Government. Without prejudice to the aforesaid contention the Petitioner also submitted in Ext. P-4 that the Director of Municipalities who had been empowered to conduct the enquiry was very much prejudiced against the Petitioner for certain personal reasons and that the Petitioner bona fide feared that he would not have a just and impartial enquiry from the said officer. In reply to Ext. P-4 the Petitioner was informed by the Special Secretary to Government, Local Administration and Social Welfare Department as per the communication Ext. P-5 dated 20th July 1977 that the Government saw no reason to allow the Petitioner''s request and that the orders issued in Ext. P-3 will stand. It is after receipt of Ext. P-5 informing the Petitioner about the Government''s decision to continue the disciplinary proceedings against him that the Petitioner came up to this Court seeking the relief aforementioned.

The communication Ext. P-5 reads:

In your petition cited, you have raised the following two points against the orders in G.O. Rt. 1387/77/LA and SWD dated 11th May 1977 by which a detailed enquiry by the Director of Municipalities has been ordered on the allegations against you:

As you have already retired from service, Government have no jurisdiction to order an enquiry against you;

The enquiry against you may be ordered to be held by any other officer of appropriate rank since the Director of Municipalities is personally prejudiced against you.

As regards the first point, I am directed to inform you that since the provision in Rule 3 of Part III K.S.R. enables the continuance of disciplinary proceedings against a retired employee, your contention is untenable and the request is rejected.

In support of the second point, the contentions raised by you have been considered by Government. It is seen that a penalty inflicted on you on a particular charge by the Director of Municipalities has subsequently been set aside by the Government but it cannot be stated that due to this the director is prejudiced against you because instances of Government setting aside the orders of the heads of departments are several. The other instances cited by you cannot also be cited to say that the Director of Municipalities is prejudiced against

In the circumstances, I am directed to inform you that Government see no reason to allow your request. The orders issued in the G.O. Rt. No. 1387/77/LA and S.W.D. dated 11th May 1977 will stand.

5 The Petitioner contends that the disciplinary proceedings initiated against him under Ext. P-1 for the imposition of a major penalty under Rule 15 of the rules on the basis of the charges of misconduct set out in that memo cannot be pursued against him after the Petitioner had retired from service on 31st March 1976. It is pointed out that even the memo Ext. P-1 was served on the Petitioner only on 2nd April 1976 after he had already retired Relying on the pronouncements of the Supreme Court laying down that disciplinary proceedings for the imposition of any penalty cannot be initiated or even continued against a Government servant after he has ceased to be in Government service by reason of his having been permitted to retire therefrom, counsel for the Petitioner argued that the action taken by the Government as per Exts. P-1, P-3 and P-5 is wholly without jurisdiction. This contention was sought to be met by the Government Pleader by urging that under Part III of the Kerala Service Rules it is competent for the Government to take action against a retired officer to withhold or withdraw his pension or any part of it permanently or for a specified period and also to order the recovery from an officer''s pension of the whole or part of any pecuniary loss caused to Government if in a departmental or judicial proceeding the pensioner is found to be guilty of grave misconduct or negligence during the period of his service. It was further argued that the proviso to the said rule indicates that the departmental proceeding against such an officer, if it had been instituted while he was in service, can be continued even after his retirement as a proceeding under Rule 3 in the same manner as if the employee continued in service. We are not impressed with this contention urged by the Government Pleader because, far from manifesting any intention to continue the proceedings as one under Rule 3 of the K.S.R. and thereby limiting its scope as a proceeding only for withholding or with drawal of pension etc. what has been done by the Government under Ext. P-5 is to wholly reject the objections raised by the Petitioner and direct that the orders issued as per Ext. P-3 dated, 11th May 1977 will stand. It has to be remembered that what was ordered under Ext. P-3 was the conduct of a formal disciplinary enquiry against the Petitioner under Rule 15 of the rules for the imposition of a major penalty on the basis of the charges referred to therein. The continuance of such an enquiry under Rule 15 against a retired officer is certainly not warranted in law. (See State of Punjab Vs. Khemi Ram, . Hence we find there is force in the argument advanced by the Appellant''s counsel that the learned single Judge ought not to have disposed of the writ petition by merely recording a submission made by the law and Liaison Officer that the proceeding will be continued against the Petitioner only in accordance with the rules.

Accordingly we set aside the judgment under appeal, allow the original petition and quash Exts. P-3 and P-5. A writ of prohibition will issue against the Respondents directing them to forbear from taking any action against the Petitioner in continuation of the disciplinary proceedings initiated against him under Ext. P-1 under Rule 15(2)(b)(iv) of the rules. It is made 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.

The appeal is allowed to the extent indicated above. The parties will bear their respective costs.