D. Sreekumar v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** ## **WP(C).No. 42482 of 2018** ## **PETITIONER:** **D. SREEKUMAR AGED 58 YEARS S/O.DIVAKARAN PILLAI, SREEVILASOM HOUSE, MEMANA, OACHIRA, KOLLAM - 690 525.** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** ## **RESPONDENTS:** |**1**|**TRAVANCORE DEVASWOM BOARD**| |---|---| ||**REPRESENTED BY ITS SECRETARY, NANDANCODE,**| ||**KOWDIAR P.O., THIRUVANANTHAPURAM - 695 003.**| |**2**|**DEVASWOM COMMISSIONER**| ||**TRAVANCORE DEVASWOM BOARD, NANDANCODE, KOWDIAR**| ||**P.O., THIRUVANANTHAPURAM - 695 003.**| |**3**|**DEVASWOM ACCOUNTS OFFICER**| ||**TRAVANCORE DEVASWOM BOARD, NANDANCODE, KOWDIAR**| ||**P.O., THIRUVANANTHAPURAM - 695 003.**| ||**BY ADV. SRI.C.K.PAVITHRAN, SC, TDB**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.42482/18 2 ## **JUDGMENT** - 1.This writ petition is filed seeking directions to the respondents to disburse the Death cum Retirement Gratuity (for short DCRG) and commuted value of pension due to the petitioner. The petitioner seeks grant of 12% interest on the DCRG amount from 1.7.2015 till the date of disbursal. - 2.Heard learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 3.The petitioner had retired from service as Sub Group Officer (Higher Grade) on 30.6.2015. It is submitted that the retirement benefits were sanctioned to the petitioner by Exhibits P1 and P2 communications. While so, by Exhibit P3 proceedings dated 5.1.2017, the petitioner was informed that in view of pendency of a criminal case against the petitioner as C.C.No.11/2011 before the Vigilance Court, Thiruvananthapuram, the petitioner was entitled only to provisional pension in terms of Rule 3A of Part III KSR. The petitioner challenged Exhibit P3 notice in W.P.(C).No.5946 of W.P.(C).No.42482/18 3 2017 and by Exhibit P4, stay of recovery of amounts already paid was ordered by this Court. It is submitted that the criminal case against the petitioner has ended in Exhibit P6 judgment dated 24.10.2017. It is stated that though the petitioner was found guilty of the offence under Section 15 read with Section 13(1)(d) of the Prevention of Corruption Act, the petitioner was found not guilty in respect of the offences under Sections 468, 471 and 201 IPC and was acquitted of those offences. The learned counsel for the petitioner submits that the offence under Section 15 of the P.C.Act is only with regard to the attempt made by the petitioner to forge documents to procure promotion. It is stated that no such promotion had, as a matter of fact, been procured by the petitioner, since the alleged offence was detected even before the promotion could be obtained. It is submitted that the petitioner had been kept under suspension thereafter and that in the above circumstances, no loss whatsover was caused to the Board. The petitioner was later reinstated in service and retired from service. It is stated that the judicial proceedings against the petitioner having culminated in Exhibit P6 W.P.(C).No.42482/18 4 judgment and in view of the fact that no loss of any nature had been alleged, the petitioner is entitled to release of DCRG. The learned counsel for the petitioner places reliance on the decision of the Division Bench of this Court in **State of Kerala v. Muraleedharan Nair** [2015 (3) KLT 755] to contend that DCRG is liable to be withheld only for recovery of loss which has occurred to the employer and the provisions for withholding or withdrawal of pension as contained in Rule 2 and 3 do not take in DCRG and the petitioner is therefore entitled to release of the amount towards DCRG, in the light of Exhibit P6. - 4.A counter affidavit has been placed on record by the 1[st] respondent. It is contended therein that the petitioner had been initially granted full pension, but on noticing that C.C.No.11 of 2011 was pending before the Enquiry Commissioner and Special Judge, Thiruvananthapuram at the time of his retirement, only provisional pension had been granted to the petitioner. It is stated that DCRG was withheld in terms of Rule 3A, Part III KSR and no amounts could be W.P.(C).No.42482/18 5 granted to the petitioner as DCRG, since Rule 3A speaks about 'conclusion' of the judicial proceedings. In view of the fact that an appeal has been preferred by the petitioner and judicial proceedings against the petitioner is still continuing, he is not entitled to DCRG until the conclusion of the judicial proceedings as laid down in Rule 3A(a) of Part III KSR. 5.The learned standing counsel appearing for the respondents would also rely on the decision of the Division Bench in **State of Kerala v. Muraleedharan Nair** [2015 (3) KLT 755] to contend that until the conclusion of the judicial proceedings against the petitioner, no DCRG is liable to be paid. - 6.I have considered the contentions advanced on either side. It is the specific case of the petitioner that in the instant case there is no question of any pecuniary loss occasioned to the Devaswom Board on account of the offence, if any, committed by the petitioner. It is submitted that the charges against the petitioner were that he forged documents in an attempt to procure promotion. It is stated that it is clear from a reading W.P.(C).No.42482/18 6 of Exhibit P6 that there is no allegation that the petitioner had procured any promotion and that any financial loss had occurred to the Board on account of any action. It was contended that in view of the clear language of Rule 2 and 3 of Part III KSR and the specific exclusion as provided in Note 2 thereto, the petitioner's DCRG would be liable to be released, since the conviction of the petitioner would not entail any pecuniary loss to the Board. 7.Having considered the contentions advanced on either side, I am of the opinion that in view of the findings of the Division Bench in **Muraleedharan Nair's** case (supra) to the effect that the withholding of DCRG under Rule 3A is specifically to see whether there is any loss caused to the department which is liable to be recovered from the petitioner's DCRG and in view of the fact that in the instant case, there is no pecuniary loss alleged, the DCRG due to the petitioner is liable to be released. With regard to the commuted value of pension, I am of the opinion that such proceedings will have to wait till the conclusion of the proceedings in toto and an order, if any, to be W.P.(C).No.42482/18 7 passed by the respondents in accordance with law in terms of Rules 2 and 3 of Part III KSR. Though the learned counsel for the petitioner has made a claim for interest with effect from 10.7.2015, I am of the opinion that in view of the clear interdiction contained in Rule 3A of Part III KSR, no interest is payable to the petitioner on the DCRG withheld by the respondents. The writ petition is, therefore, ordered directing the release of the DCRG to the petitioner within a period of three months from the date of receipt of a copy of this judgment. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.42482/18 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PENSION PAYMENT ORDER ISSUED TO THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 18/01/2016 SENT BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 05/01/2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27/02/2017 IN W.P.(C) NO.5946/2017.** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 04/08/2017 SENT BY THE 2ND RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 24/10/2017 IN C.C.NO.11/2011 OF THE COURT OF ENQUIRY COMMISSION AND SPECIAL JUDGE, THIRUVANANTHAPURAM.** **EXHIBIT P7** **TRUE COPY OF THE ORDER DATED 16/11/2017 IN CRIMINAL M.A.NO.6005/2017 IN CRIMINAL APPEAL NO.1044/2017.** True copy PS to Judge