SYED MOHAMMED RAWTHER Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner was issued with Ext. P1(a) charge memo and Ext. P-1(b) statement of allegations dated 29-1-1987. He received the same on 31-1-1987. He retired from service on the same day. He was found guilty of the charges and he was served with Ext. P3 show cause notice dated 28-5-1988. To that he gave Ext. P-4 explanation dated 12-11-1988. Ext. P-5 order was passed by the respondents reducing his pension by permanently withholding Rs.393/- per mensum, restricting the total amount of reduction to 1/3 of his pension. His entire gratuity amount of Rs.45,000/- was directed to be adjusted towards the loss caused by him to the Travancore Sugars and Chemicals Limited, Thiruvalla where he was working as Director and General Manager.

(2.) Main contention of the petitioner is that the reduction in the pension cannot be sustained as before passing Ext. P-5 order there was no consultation with the Public Service Commission as enjoined under R.3(d) of Part III of the Kerala Service Rules. R.3 enables the Government to withhold or withdraw pension or any part of it, whether permanently or for a specified period, 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. R.3(3) makes it incumbent upon the authority to consult the Public Service Commission before final orders arc passed. This is a mandatory Rule and violation of the same cannot be salvaged by getting the consent of the Public Service Commission subsequently. Learned Government Pleader's submission that the failure to consult the Public Service Commission cannot be taken as a circumstance to quash Ext. P-5 order and this Court can remit the matter to the respondents to rectify the mistake cannot be countenanced as the Rule clearly lays down that Public Service Commission will have to be consulted before final orders are passed. The defect in passing Ext. P-5 order cannot be cured by this Court remitting the matter to the respondents and directing them to consult the Public Service Commission. When the Rule enjoins the Authority to act in a particular manner it has to be acted in that manner itself and if that has not been done the lacuna cannot be filled up later. In view of the failure to consult the Public Service Commission before passing Ext. P-5 order it has to be necessarily held that the reduction in pension cannot have any justification.

(3.) With regard to the withholding of the death cum retirement gratuity amount consultation with the Public Service Commission is not necessary. Contention of the petitioner is that he was denied of oral hearing and thus R.6(5) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 has been violated. R.6(5) states that if the number of the service desires to be heard in person, he shall be so heard or if he so desires or the Inquiry Officer deems it necessary or any higher authority so he directs an oral inquiry shall be held by the Inquiry Officer and at such inquiry evidence shall be heard as to such of the allegations as are not admitted and the member of the services charged shall be entitled to cross examine the witnesses, to give evidence in person and to have such witnesses called as he may wish. In Ext. P4 petitioner denied all the allegations in the memo of charges and the show cause notice and requested that if his explanation is found not satisfactory an oral enquiry under R.6(5) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules may be conducted so that he can prove his innocence. That opportunity was denied to the petitioner. R.6(5) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules has to be read along with proviso to R.3 of the Kerala Service Rules. The proviso is to the effect that the department proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under R.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. Read so it is not possible to accept the contention of the Government Pleader that the petitioner being a retired Officer cannot claim for an oral enquiry as contemplated under R.6(5) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules. Even though R.6(5) mentions only about the member of the service, it cannot be denied to the petitioner on the ground that he is no longer a member of the service. In view of the proviso to R.3 of Part III of the Kerala Service Rules where it is made clear that the department proceedings, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee be deemed to be a proceeding under R.3 and shall be continued and concluded by the authority in the same manner as if the employee had continued in service respondents cannot take the stand that Ext. P5 order cannot be challenged merely on the ground that oral hearing was denied to him as R.6(5) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules does hot make any mention about the right of a retired employee for oral hearing. As R.6(5) has to be read along with the proviso to R.3 of Part III of the Kerala Service Rules and oral hearing was denied to the petitioner despite his specific request for the same the order directing the adjustment of the entire gratuity amount of Rs.45,000/- due to the petitioner towards the loss caused by him to Travancore Sugars and Chemicals Ltd., Thiruvalla cannot be sustained.