(1.) A short but interesting question has been raised in this writ petition. Can a Government servant, after his retirement from service, be visited with a penalty in departmental proceedings in this case withholding of the increments in the pay of the petitioner for a period of three years without cumulative effect on the basis of a charge alleging irregularities in the discharge of his official duties while still in service. The charge was laid and explanation called for before he had retired from service.
(2.) THE petitioner was a Deputy Tahsildar, the allegation was that in the matter of accounting the cash collection under the Revenue recovery Act the petitioner had committed certain irregularities. THE charge memo had been issued to him on 9th February 1972. He filed a detailed written statement explaining away the charges on 29th May 1972. He retired from service on 6th July 1972. On 4th May 1973, nearly 10 months after the retirement the District Collector issued the order impugned in this O. P. which states: "the increment in pay of Sri T. G. Peter, retired deputy Tahsildar be withheld for a period of three years without cumulative effect on the proved charges. THE District Collector also directs that the monetary value of the increments withheld will be recovered by adjustment from the D. C. R. G. due to the retired officer. " Taking into account the provisions of the Kerala Civil services (Classification, Control and Appeal) Rules, 1960 (shortly stated the rules) by themselves, there cannot be any doubt that the impugned order Ext. P-3, cannot be sustained. R. 11 provides for imposition of penalties which states that penalties specified therein could be imposed on a Government servant. A government servant as defined in R. 2 (d) of the Rules means, 'a person who is a member of a service, State or subordinate or who holds a civil post under the kerala Government and includes any such person on foreign service or whose services are temporarily placed at the disposal of any other Government, central or State or a local or other authority and also any person in the service of any other Government, Central or State, or a local authority whose services are temporarily placed at the disposal of the Kerala Government. THErefore, a person retired from Government Service will not come within the ambit of this definition. In contrast, it will be useful to note in this connection R. 23 of the same Rules which entitles every member of service State or subordinate to file appeals against an order imposing any of the penalties mentioned in R. 11 and where it is specifically stated that the expression'member of a service includes a person who has ceased to be a member of that service. THErefore, when once a penalty is imposed on a Government servant, even after his retirement, within the period of limitation as fixed in r. 25, he can file an appeal. However, there is nothing in the aforementioned rules by which after retirement a person who had been in government service could be punished for misconduct alleged to have been committed while in government service.
There is one provision in the Kerala Service Rules, r. 3 in S. I Chapter I of Part III, which comes up for consideration in this context. It states: "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 officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) Such departmental proceeding, if not instituted while the officer 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 officer during the service; (c) no such judicial proceedings, if not instituted while the officer 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 look place more than four years before such institution; and (d) the Public Service Commission shall be consulted before final orders are passed. Explanation: For the purpose of this rule (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner or if the officer has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted (i) in the case of a criminal proceedings, on the date on which the complaint or report of police officer which the Magistrate takes cognisance, is made; and (ii) in the case of a civil proceedings, on the date of presentation of the plaint in the court. " It has to be seen whether on the basis of this rule the impugned order could be sustained. To me, it appears, it cannot be sustained. This rule is for the purpose of making good any pecuniary loss to the government which might have resulted from the grave misconduct or negligence of the officer concerned, during the period of his service. That cannot be made use of for upholding an order withholding the increments, imposed as a punishment as such for misconduct and not for recovery towards any pecuniary loss caused to government. Moreover it is clear from the Rule itself that the order contemplated therein is one to be passed by the government itself. The ruling given by the government under this rule is also relevant in this connection. That states: "according to proviso (a) under this rule departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. A doubt was raised as to whether in the case of an officer whose case falls within the purview of the proviso and proceedings against whom were instituted by an authority subordinate to government, order for withdrawal withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings. The function of the disciplinary authority is only to reach a finding on the charges and to submit a report recording its findings to the government. Government will then consider the findings and take a final decision. In case government decide to take further action under R. 3 the government will serve the person concerned with a show cause notice specifying the action proposed to be taken under this rule and the person concerned will be required to submit his reply to the show cause notice within such time as may be specified by the government. The government will consider the reply in consultation with the Public Service Commission and pass necessary orders in the name of the Governor". It is not possible to maintain Ext. P 3 on the basis of the aforementioned Rule in the K. S. R. also. Therefore, Ext. P-3 is illegal and without jurisdiction. The O. P. is allowed, but in the circumstances of the case without costs. . .;