A. Rajan v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 1ST DAY OF JULY 2014/10TH ASHADHA, 1936 OP(KAT).No. 4241 of 2013 (Z) ----------------------------- AGAINST THE ORDER IN OA 2104/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 12-09-2013 ## PETITIONER(S)/PETITIONER: ------------------------------------------------ A.RAJAN, AGED 57 YEARS S/O.M.A.RAWTHER, THEKKEKARA HOUSE, PATHIRICKAL P.O. PATHANAPURAM (RETIRED -TALUK SUPPLY OFFICER, RANNY PATHANAMTHITTA) BY ADV. SRI.V.PHILIP MATHEW ## RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY DEPARTMENT OF FOOD & CIVIL SUPPLIES KERALA GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE COMMISSIONER OF CIVIL SUPPLIES, OFFICE OF THE COMMISSIONER OF CIVIL SUPPLIES THIRUVANANTHAPURAM - 695 001. 3. THE DIRECTOR OF CIVIL SUPPLIES, OFFICE OF THE COMMISSIONER OF CIVIL SUPPLIES THIRUVANANTHAPURAM - 695 001. BY SR. GOVERNMENT PLEADER SRI. C.R. SYAMKUMAR. THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 01-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 4241 of 2013 (Z) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 : COPY OF THE ORDER DATED 12.09.2013 PASSED BY THE TRIBUNAL IN O.A.NO.2104/2013 EXHIBIT P2 : COPY OF THE MEMORANDUM OF O.A. NO.2104/2013 ALONG WITH ANNEXURES. ANNEXURE 1 : COPY OF THE ORDER DATED 22.08.2012 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS COURT, PATHANAMTHITTA IN CRL.M.P.NO.771/12 IN CRL.APPEAL NO.124/12 ANNEXURE 2 : COPY OF THE MEMO OF CHARGES ISSUED TO THE PETITIONER BY THE 3[RD] RESPONDENT. ANNEXURE 3 : COPY OF THE ORDER DATED 21.3.2011 PASSED BY THE 2[ND] RESPONDENT. ANNEXURE 4 : COPY OF THE REPRESENTATION DATED 8.2.2013 SUBMITTED BY THE PETITIONER BEFORE THE 3[RD] RESPONDENT. ANNEXURE 5 : COPY OF THE ORDER DATED 28.5.2013 PASSED BY THE 3[RD] RESPONDENT. RESPONDENT(S)' EXHIBITS --------------------------------------- NIL // TRUE COPY // P.A. TO JUDGE sou. ## **(C.R.)** ## **K. M. JOSEPH & A.K.JAYASANKARAN NAMBIAR, JJ** **--------------------------------------------------------------------** O.P.(KAT) No. 4241 OF 2013 **--------------------------------------------------------------------** Dated this the 1[st] day of July, 2014 ## J U D G M E N T ## K.M. Joseph, J In this petition filed under Article 227 of the Constitution, the petitioner calls in question an order passed by the Kerala Administrative Tribunal, Thiruvananthapuram (herein after referred to as 'the Tribunal'). The Original Application was filed by him challenging Annexure A5 order, rejecting his request for disbursal of his DCRG and retirement benefits. 2. The petitioner retired from service while he was working as Taluk Supply Officer under the Civil Supplies Department. He was an accused in C.C. No.153 of 2008 on the file of the Chief Judicial Magistrate's Court, Pathanamthitta. He came to be convicted for offences punishable under sections 342, 332, 294(b) read with section 34 of Indian Penal Code. In appeal, he had obtained an order, dated 22.8.2012 suspending his conviction and sentence. Thereafter, he moved a claim for Death Cum Retirement Gratuity and other terminal benefits. By Annexure-A5, the said request was rejected. OP(KAT)4241/13 2 3. The Tribunal noticed that the criminal case arose out of manhandling a police constable in the Vigilance Wing of the Police who was posted to observe the proceedings as complaints were received against the said office regarding corruption. 4. Rule 3A(a) of Part III of KSR inter alia reads as follows: **“Rule 3A(a) :-** Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement, or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon. (b) payment of provisional pension made under clause (a) shall be adjusted against the final retirement benefits sanctioned to such employee upon conclusion of the aforesaid proceeding, but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specific period. **Note** : The grant of pension under this rule shall not prejudice the operation of Rule 59 when final pension is sanctioned upon conclusion of the proceeding.” OP(KAT)4241/13 3 It is also relevant to refer to Rule 3 at this juncture: “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.” 5. It becomes clear on perusal of the Rule 3 A(a) that the rejection of the request for DCRG and full pension, appears to be justified as found by the Tribunal. Learned counsel for the petitioner however, brings to our notice a Judgment reported in State of **Jharkhand and Others v. Jitendra Kumar Srivastava** **and Another** [2013 KHC 4628]. That was a case where the court took the view that executive instructions are not having statutory character and, therefore, cannot be termed as 'law' within the meaning of Article 300A of the Constitution. Placing reliance on the decision it is contended that the respondents could not withhold even a part of the pension or gratuity during the pendency of departmental or criminal proceedings. In this case, unlike the facts in the case before the Supreme Court, the matter is governed by a statutory rule, namely Rule 3A of Part-III KSR. Therefore the decision relied on by the petitioner has no 4 OP(KAT)4241/13 application. 6. Learned counsel for the petitioner would then contend that the charge against the petitioner cannot be treated as so grave as to warrant denial of pensionary benefit and withholding of DCRG. In support of the said contention, learned counsel refers to Rule 28(b) Note.-(i) of KS and SSR which, inter alia, reads as follows : Rule 28(b) **Note** .-(i) Officers under suspension and Officers against whom criminal proceedings are pending in a Sessions Court or in any other higher Court for grave offences like murder, dacoity, etc. and Officers against whom departmental proceedings are taken for the imposition of a major penalty under the disciplinary rules applicable to them should not be included in the select list. But the suitability of such an Officer for promotion should be assessed at the relevant time by the Departmental Promotion Committee and a finding reached whether, if the Officer had not been suspended or the criminal proceedings/departmental proceedings had not been pending against him, he would have been recommended/selected for promotion. Where a select list is prepared the Departmental Promotion Committee shall also make a finding as to what the position of the Officers in that list would have been but for the suspension or the criminal proceedings/departmental proceedings against him.[1] [The findings as to the suitability and the place in the select list of the officer should be recorded separately and attached to the proceedings. The Proceedings of the Departmental Promotion Committee need only contain a note, “The findings are recorded in the attached sheet of paper”]. The authority competent to fill the vacancy should be separately advised to fill the vacancy only on a temporary basis.[2] [Officers OP(KAT)4241/13 5 against whom vigilance or departmental proceedings are taken after the charges have prima facie been established in a preliminary enquiry should not be included in the select list. But, the cases of such Officers should also be assessed. The question of including them in the select list shall be considered when the result of the enquiry is known. However officers against whom departmental proceedings are taken for the imposition of a minor penalty may be included in the select list provisionally if they are found suitable but for the pendency of disciplinary proceedings initiated against them.” 7. He would submit that the offences are not grave. He also submitted that, in fact, on a Writ Petition submitted by him, this court had directed consideration of his case for promotion. Next he would submit that apart from the fact that conviction and sentence are suspended, the departmental proceedings also have been concluded by barring one increment and therefore this is a fit case where Annexure A5 should not have been issued and pensionary benefits should have been released to him. 8. Per contra, learned Government Pleader would draw our attention to a decision of a Full Bench reported in **Raveendran Nair v. State of Kerala** [2007(1) KLT 605] wherein the court took a view that even without any pecuniary loss caused to Government, on account of misconduct proved against a pensioner, Government has the right to withhold or withdraw pension or any part of it, whether permanently or for a specified OP(KAT)4241/13 6 period. That apart we also notice that what is provided in Rule 3A, is that where any departmental or judicial proceedings is instituted, under Rule 3, no gratuity or DCRG shall be paid and until the conclusion of the proceedings and issue of final orders thereon, the employee is only entitled to provisional pension. Therefore, we have to consider what is the meaning of judicial proceedings instituted under Rule 3 to attract Rule 3A(a). As far as Rule 3 is concerned, what is provided is a right to the Government to withhold or withdraw pension and also a right to order recovery in whole or part of any pecuniary loss. Thereafter the conditions are provided thereunder namely of in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, which will include service rendered upon re-employment after retirement. Therefore judicial proceedings must reveal grave misconduct or negligence during the period of his service. What is relevant for the purpose of Rule 28 (b) may not assume relevance as far as Rule 3A is concerned. That apart, the charge found against the appellant is manhandling of a Police Constable in the Vigilance Wing of the Police. We are not prepared to accept the contention that such a charge if proved, would not amount to a grave misconduct. We feel that although the appeal OP(KAT)4241/13 7 is pending, and even though the conviction and sentence are suspended, in view of Rule 3A, Annexure A5 is to be supported. Therefore clearly Rule 3A is attracted and Annexure A5 is perfectly justified and the direction sought to discharge the full pension is completely misconceived. The Original Petition is only to be dismissed and we do so. Sd/- **K. M. JOSEPH, JUDGE** Sd/- **A.K.JAYASANKARAN NAMBIAR, JUDGE.** Sou. // True copy //