XAVIER Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THESE writ appeals were referred to a Full Bench to consider the question whether disciplinary proceedings started while an employee was in service can be continued after his retirement or termination of service. As the question has important and far-reaching effects on the service conditions of employees and disciplinary proceedings to be pursued against them, it was felt desirable and necessary that the matter should be considered and pronounced upon by a Full Bench. We shall first examine the facts in W. A. No. 294 of 1974 in which the main arguments were advanced. W. A. No. 294 of 1974 The appellant (writ petitioner) was a Superintending engineer of the Kerala State Electricity Board, who entered on 450 days' leave and retired voluntarily at the end of it on 15-1-1969. Normally he Should have retired on 30-7-1970. By Ext. P4 memo dated 16-12-1969 issued by the Board he was called Upon to answer certain charges of misconduct. Ext. P5 dated 13-1-1970 is a copy of his reply in answer. By Ext. P6 order dated 1-9-1971 the government referred the charges to the Tribunal for disciplinary proceedings under R. 3 of Part III, Kerala Service Rules, (K. S. R. for short) for enquiry and report. Ext. P7 is a copy of the summons issued by the Tribunal to the appellant. His writ petition was to quash Exts. P6 and P7, which was dismissed by the learned Judge. The learned judge was of the view that an "employee" for purposes of Regulation. 9 of the Kerala State electricity Board (Employees Disciplinary Proceedings Tribunal) Regulation. 1969 (referred to as the Regulations, for short) included an "ex-employee" and that R. 3 Part III of the K. S. R. only supported this conclusion.

(2.) ON behalf of the petitioner two contentions were raised: first that the petitioner having already retired on 30-7-1970 the proceedings commenced against him while in service could not be continued either under the Regulations of 1969 or under the Disciplinary Proceedings tribunal Rules, (the Tribunal Rules, for short ). Next, that in any event the board, under the Regulations, is the competent authority to decide the question of referring the case to the Disciplinary Tribunal and of requesting the government to formally make the reference; and that no such decision by the board and no request to the Government to formally make the reference had been formed or made in compliance with the Regulations.

(3.) WE shall examine the position from the point of view of R. 3, Part III, Chapter I of the K. S. R. That rule reads: "3. 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. Provided that (a) such departmental 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 this rule and shall be continued and concluded by the authority by which it was commenced the same manner as if the employee had continued in service; (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment, (i) shall not be instituted save with the sanction of the government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service; (c) no such judicial proceeding, if not instituted while the employee was in service whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution; and The Rule does not authorise the continuance of disciplinary proceedings as such, against a Government Servant after his retirement. Both on principle and on authority, such a position cannot be easily countenanced. It allows only a limited type of enquiry to be proceeded with, namely an enquiry in regard to withholding or withdrawing pension, or of ordering recovery from pension by reason of any misconduct or negligence during the period in service of the employee. Under clause (a) of the proviso to the rule, the departmental proceeding, if instituted during the service of the employee is to be deemed to be a proceeding under the Rule and may be continued and completed even after his retirement. To this limited extent alone is provision made under the rule for continuance of a disciplinary enquiry beyond retirement. That too is by transmuting it by fiction to be an enquiry under the rule. Beyond this, we cannot understand the rule as in any way permitting the authorities either to launch or to continue disciplinary proceedings after the retirement of the employee. That would be destructive of the concept of relationship of employer and employee which has Come to an end by reason of the retirement of the employee, beyond which, disciplinary control cannot extend. In S. Partap Singh v. State of Punjab (AIR. 1964 SC. 72) it was pointed out by the Supreme Court: "we should, however, add that we should not be taken to have accepted the interpretation which Dayal J. has placed on each one of the several rules which he has considered. Besides, we should not be taken to have accepted the submission of the learned Attorney-General who appeared for the respondent-State, that the provision in Art. 310 (1) of the Constitution that "members of a Civil Service of a State hold office during the pleasure of the Governor", conferred a power on the State Government to compel an officer to continue in service of the State against his will apart from service rules which might govern the matter even after the age of superannuation was reached, or where he was employed for a defined term, even after the term of his appointment was over. WE consider that to construe the expression "the pleasure of the Governor" in that manner would be patently unwarranted besides being contrary to what this Court said in State of Bihar v. Abdul majid,1954 SCR. 786 at p. 799: (AIR. 1954 SC. 245 at pp. 249-250 ). " The same principle was restated in The State of WEst bengal v. Nripendra Nath Bagchi (AIR. 1966 SC. 447 ). WE find the same principle being also repeated in B. J. Shelat v. State of Gujarat (AIR. 1978 SC. 1109 ).