It is trite law that pension is a legal right available to an
employee on the basis of long years of service rendered by him and the said right can be taken away only after following due procedure. It is pertinent to note that even in a case where an employee is dismissed or removed for misconduct, insolvency or inefficiency, compassionate allowances amounting to 2/3rd of the pension can be granted in special circumstances. Further, Rule 6(c) provides that where a person, who has been granted pension on compassionate retirement dies, and his family is entitled to a family pension under Section 7 of Part III KSR. {Para 10}
11. On a close reading of the provisions of the KSEB Employees
(Classification, Control & Appeal) Regulations, I notice that orders
adverse to the interest of an employee are liable to be passed after
conduct of a due enquiry as provided in the said Regulations. Rule
6(a) of Part III, KSR provides that pension and death-cum-retirement
gratuity admissible to the employee on the date of such retirement is
liable to be granted to an employee by the competent authority
provided that the authority imposing the penalty may order reduction
if the circumstances of any particular case warrant such reduction.
Therefore, the question whether a particular case where compulsory
retirement is imposed warrants reduction in pension or gratuity or both
is to be specifically considered by the authority imposing the
punishment. According to me, it appears that such consideration
whether the penalty should result in any reduction in pension or
DCRG is a decision which has to be taken by the authority at the time of imposition of penalty itself. If not, the entire exercise of
appreciation of the factors which lead to the imposition of the penalty will have to be redone at a later point in time which, according to me, would be impermissible since that would amount to a re-appreciation of the facts involved and therefore to double jeopardy.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) NO. 9290 OF 2021
A.G.DINESH Vs THE KERALA STATE ELECTRICITY BOARD LIMITED
PRESENT
MRS. JUSTICE ANU SIVARAMAN
Dated this the 26th day of September, 2022
This writ petition is filed seeking the following prayers:
“i) To issue a writ of certiorari or such other appropriate
writ order or direction calling for the records relating to
Exhibit P9 and quash the same.
i) To direct the respondents to sanction and pay the full
amount of pension to the petitioner from the date of his
retirement on 17.11.2014 and continue to pay the same
every month.
iii) To direct the respondents to forthwith regularize the
suspension period of the petitioner from 21.6.2003 to
7.11.2006 as duty and pay all consequential benefits to him
within a prescribed time limit.
iv) To direct the third respondent to forthwith take a
decision on the arrears of salary and allowances due to the
petitioner as directed in Exhibit P9 order of the second
respondent within a prescribed time limit.”
2. Heard the learned counsel for the petitioner and the learned
standing counsel appearing for the respondents.
3. It is submitted by the learned counsel for the petitioner that the
petitioner, who was working as Senior Superintendent in the Kerala
State Electricity Board, was placed under suspension on 21.06.2006
on allegations with regard to assisting in theft of electricity by
consumer. It is submitted that a memo of charges was issued to him on
02.08.2006 to which the petitioner submitted his reply. Finding the
reply unsatisfactory, a disciplinary enquiry was ordered to be
conducted against the petitioner. The petitioner had been reinstated in
service on 07.11.2006, pending finalization of the disciplinary
proceedings. After conduct of the enquiry, an order was passed on
07.11.2014 imposing the penalty of removal from service on the
petitioner. The petitioner preferred an appeal before the 2nd respondent
as against the order of removal. By Ext.P1 proceedings dated
06.08.2015, the 2nd respondent considered the pathetic condition of the
family of the appellant and, taking a lenient view, decided to modify
the punishment of removal as compulsory retirement with effect from
the date of removal. It is contended that Ext.P2 Non Liability
Certificate was also issued to the petitioner stating that there are no
liabilities to the Board or the Government outstanding from the
petitioner. However, the retirement benefits were not disbursed to the
petitioner. The petitioner submitted Ext.P3 petition before the 2nd
respondent seeking the release of the retirement benefits.
4. It is submitted that on 25.10.2017, Ext.P4 order was passed by
the 2nd respondent contending that Rule 6(a) of Part III, KSR provides
power in the authority which passed the order of punishment to order
a reduction either in pension or DCRG or both. Therefore, the 2nd
respondent, after examining the entire file, decided to reduce 50% of
the eligible pension of the petitioner and settled his pensionary
benefits. It is submitted that the petitioner had submitted
representations against the said order which were rejected by Ext.P6.
The petitioner thereupon approached this Court filing W.P.
(C).No.6725/2020. This Court considered the contentions advanced on
either side and held as follows:
“5. Even when I hear Sri.M.K.Thankappan on the afore lines,
the fact remains that in Ext.P1, the competent Authority -
namely the Chairman and the Managing Director did not
mention anything about the reduction of the pension of the
petitioner but only modified his earlier punishment of removal
from the service as compulsory retirement. Obviously therefore,
when Ext.P1 is silent as regards the pension of the petitioner, it
is seriously doubtful whether Ext.P2 could have been issued by
the same Authority invoking the powers under Rule 6(a) Part III
of the KSR, particularly when the said Rule obligates the
Authority - while imposing the punishment - to deal with the
question of reduction of pension also. The fact that Ext.P1 is
silent is admitted and therefore, the acme question is whether
the Chairman and the Managing Director could have issued
Ext.P2 in such a manner, which, prima facie appears to impose
a double punishment on the petitioner.
6. Even though I have recorded my preliminary observations as
afore, I am of the certain view that the Chairman and the
Managing Director must hear the petitioner also and then take
a fresh decision relating to his pension, since I cannot find
favour with Ext.P2 as it is presently framed.
In the afore circumstances and for the reasons above, I set
aside Ext.P2; and consequentially, direct the Chairman and the
Managing Director to take a fresh decision as regards the
pension of the petitioner, adverting specifically to the
applicable statutory provisions and also after affording an
opportunity of being heard to the petitioner - either physically
or through video conferencing - thus leading to an appropriate
decision thereon, as expeditiously as is possible, but not later
than six weeks from the date of receipt of a copy of this
judgment.”
Thereafter, the petitioner submitted Ext.P8 representation which
was ultimately decided by Ext.P9 order. The 2nd respondent after
considering the contentions of the petitioner found that Rule 6(a) of
Part III, KSR provides power to the authority who imposed the
punishment of compulsory retirement to make orders on whether the
pension or gratuity should be admitted in full or not. It was held that
since the 2nd respondent had imposed the punishment of compulsory
retirement by reducing the punishment of removal already inflicted on
the petitioner, the 2nd respondent was fully competent to pass an order
under Rule 6(a) of Part III, KSR reducing the pension. It was found
that the reduction of pension at the hands of pension sanctioning
authority, which is the Board in the instant case, would be required
only for reduction of pension under Rule 2 or 3 or Rule 59 of Part III,
KSR read with Regulation 12(2) of the KSEB Employees
(Classification, Control & Appeal) Regulations, 1969. It was therefore
found that since Rule 6(a) of Part III, KSR empowered the reduction
of pension by the same authority which imposes the punishment of
compulsory retirement, the orders passed by the 2nd respondent were
fully competent.
5. The learned counsel for the petitioner submits that Rule 6(a)
specifically provides that an employee who has been compulsorily
retired from service would be entitled to pension unless the authority
which imposes the punishment specifically directs the reduction of
pension or DCRG or both if the circumstances of any particular case
warrant such reduction. The specific case of the learned counsel for
the petitioner is that the question whether any reduction in pension or
DCRG is warranted in the particular facts and circumstances of a case
is a question which has to be decided by the competent authority at the
time when the punishment of compulsory retirement is being imposed,
which is the point in time where all the relevant documents and
materials are available with such authority and the petitioner is on
notice with regard to the punishment being imposed.
6. A detailed counter affidavit has been placed on record by the
respondents. It is contended by the respondents that a plain reading of
the Rule does not support the contention that an order of reduction of
pension or gratuity which the competent authority has the power to
order should be passed at the time when the punishment is being
imposed. It is contended that all the contentions of the petitioner have
been specifically adverted to and considered while passing Ext.P9
order. It is submitted that the Rule does not mandate that while issuing
orders of compulsory retirement, the competent authority should
specify therein itself the details of pension or death-cum-retirement
gratuity sought to be reduced under Rule 6(a). It is further contended
that Ext.P9 itself would show the circumstances under which the
orders came to be passed separately. It is submitted that the petitioner
had challenged the order of compulsory retirement imposed on him by
filing W.P.(C).No.26496/2015. It is in the meanwhile that the
petitioner had submitted representations for release of pensionary
benefits. The Chief Engineer (HRM) therefore pointed out that, as
compulsory retirement was awarded as penalty on proved offences,
necessary action has to be taken by the competent authority who
inflicted the punishment of compulsory retirement with regard to rate
of pension payable to the petitioner. It is submitted that, accordingly,
the Board had decided to reduce 50% of the eligible pension vide
proceedings dated 25.10.2017. It is contended that the entire aspects
of the matter had been considered and it was found that, in the facts
and circumstances of the instant case, an order of reduction in pension
is perfectly warranted. It is further stated that orders have been passed
treating the period of suspension as leave without allowance.
7. Having considered the contentions advanced on either side, I
notice that this Court in Ext.P7 judgment had specifically directed the
consideration of the contention raised by the petitioner that an order of
reduction of pension has to be passed when the question of penalty is
being considered and not thereafter. A reading of Rule 6(a) would also make it clear that the competent authority is to pass orders authorizing pension to an officer who is compulsorily retired from service
provided no orders are passed reducing the pension by the authority
which imposed the penalty of compulsory retirement.
8. The rule specifically reads as follows:-
“6. (a) An employee compulsorily retired from service by way of
penalty may be granted by the authority competent to impose
such penalty, pension and death-cum-retirement gratuity
admissible to the employee on the date of such retirement,
provided, however that the authority imposing the penalty of
compulsory retirement may order at reduction either in pension
or in death-cum-retirement gratuity or in both if the
circumstances of any particular case warrant such reduction.”
9. In the instant case, the order reducing the punishment of
removal to compulsory retirement had been passed by the appellate
authority as early as on 06.08.2015. The entire records of the enquiry
along with the appeal submitted by the petitioner were available with
the 2nd respondent when Ext.P1 order was rendered. However, after
adverting to the gravity of the charges proved against the petitioner,
but taking a lenient view, the 2nd respondent decided to modify the
punishment of removal as compulsory retirement with effect from the
date of removal from service. There was no decision taken in Ext.P1
to order reduction of pension. It is admitted that a writ petition had
been filed by the petitioner as against Ext.P1, pending the same, the
petitioner had preferred Ext.P3 representation seeking release of
pensionary benefits. It is thereafter that Ext.P4 order was passed on
25.10.2017.
10. It is trite law that pension is a legal right available to an
employee on the basis of long years of service rendered by him and
the said right can be taken away only after following due procedure.
It is pertinent to note that even in a case where an employee is
dismissed or removed for misconduct, insolvency or inefficiency,
compassionate allowances amounting to 2/3rd of the pension can be
granted in special circumstances. Further, Rule 6(c) provides that
where a person, who has been granted pension on compassionate
retirement dies, and his family is entitled to a family pension under
Section 7 of Part III KSR.
11. On a close reading of the provisions of the KSEB Employees
(Classification, Control & Appeal) Regulations, I notice that orders
adverse to the interest of an employee are liable to be passed after
conduct of a due enquiry as provided in the said Regulations. Rule
6(a) of Part III, KSR provides that pension and death-cum-retirement
gratuity admissible to the employee on the date of such retirement is
liable to be granted to an employee by the competent authority
provided that the authority imposing the penalty may order reduction
if the circumstances of any particular case warrant such reduction.
Therefore, the question whether a particular case where compulsory
retirement is imposed warrants reduction in pension or gratuity or both
is to be specifically considered by the authority imposing the
punishment. According to me, it appears that such consideration
whether the penalty should result in any reduction in pension or
DCRG is a decision which has to be taken by the authority at the time of imposition of penalty itself. If not, the entire exercise of
appreciation of the factors which lead to the imposition of the penalty will have to be redone at a later point in time which, according to me, would be impermissible since that would amount to a re-appreciation of the facts involved and therefore to double jeopardy.
12. In the above facts and circumstances, I am of the opinion that
the impugned order rejecting the claims of the petitioner is
unsustainable. The same is therefore set aside. There will be a
direction to the respondents to pay the pensionary benefits due to the
petitioner, taking note of the fact that the order of compulsory
retirement imposed on the petitioner by Ext.P1 did not provide in any
reduction in pension. The monetary benefits with arrears thereof shall
be calculated and released to the petitioner within a period of three
months from the date of receipt of a copy of this judgment. The
request of the petitioner for regularizing the period of suspension as
duty, as also the grant of arrears thereof, shall be considered by the
respondents with notice to the petitioner. Appropriate orders shall be
passed within a period of 3 months from the date of receipt of a copy
of this judgment.
This writ petition ordered accordingly.
Sd/-
ANU SIVARAMAN
JUDGE
NP
WP(C) NO. 9290 OF 2021
13
APPENDIX OF WP(C) 9290/2021
PETITIONER’S EXHIBITS
EXHIBIT P1 TRUE COPY OF ORDER NO.VIG/A1/4695/06 DATED
06/08/2015 BY R2.
EXHIBIT P2 TRUE COPY OF NON LIABILITY CERTIFICATE DATED
29/3/2016.
EXHIBIT P3 TRUE COPY OF PETITION DATED 17/7/2017 BY
PETITIONER.
EXHIBIT P4 TRUE COPY OF ORDER NO.VIG/A1/4695/2006/2772 DATED
25/10/2017 BY R2.
EXHIBIT P5 TRUE COPY OF PETITION DATED 20/12/2019 BY
PETITIONER.
EXHIBIT P6 TRUE COPY OF LETTER DATED 12/2/2020 FROM CHIEF
VIGILANCE OFFICER.
EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 16/12/2020 IN WP(C)
6725/2020.
EXHIBIT P8 TRUE COPY OF PETITION DATED 22/1/2021 BY
PETITIONER.
EXHIBIT P9 TRUE COPY OF ORDER NO.VIG/A1/4695/2006/401 DATED
23/2/2020 BY R2.
EXHIBIT P10 TRUE COPY OF CIRCULAR NO.65/94/FIN. DATED
26/11/1994.
EXHIBIT P11 TRUE COPY OF SUSPENSION ORDER DATED 21/6/2006.
EXHIBIT P12 RUE COPY OF REINSTATEMENT ORDER DATED 7/11/2006.
EXHIBIT P13 TRUE COPY OF ORDER DATED 23/1/2017 BY R2
REGULARISING SUSPENSION.
RESPONDENTS’ EXHIBITS: NIL
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