Krishna Pannikkar v. University of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 6TH DAY OF MARCH 2018 / 15TH PHALGUNA, 1939** **WP(C).No. 2457 of 2015** ## **PETITIONER:** **KRISHNA PANNIKKAR, S/O.KUTTAN PANIKKAR, AGED 64, BINU SADANAM, PERINGAMMALA, KALLIYUR POST, THIRUVANANTHAPURAM.** **BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.V.S.THOSHIN** ## **RESPONDENTS:** **1. THE UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, UNIVERSITY OFFICE, THIRUVANANTHAPURAM - 695001.** **2. THE REGISTRAR, ADMINISTRATOR, KERALA UNIVERSITY, THIRUVANANTHAPURAM - 695001.** **3. THE VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM - 695001.** **4. THE HONOURABLE UPA LOK AYUKTA, REPRESENTED BY THE REGISTRAR, KERALA LOK AYUKTA, THIRUVANANTHAPURAM - 695001.** **R1-R3 BY ADVS. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA R4 BY ADV. SMT.RENU D.P., SC, LOK AYUKTA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.1.2018, THE COURT ON 06.03.2018 DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 2457 of 2015 (F)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**P1-**|**THE TRUE COPY OF THE ORDER DATED 18.8.2005 IN WPC NO.24528/05 OF**| |---|---| ||**THIS COURT**| |**P2-**|**THE TRUE COPY OF THE ORDER DATED 17.2.07 NO. AD.AIII/1/PP/28276/06**| ||**DATED 17.2.07**| |**P3-**|**THE TRUE COPY OF THE COMPLAINT BEFORE THE 4TH RESPONDENT FILED BY**| ||**THE PETITIONER**| |**P4-**|**TRUE COPY OF THE ORDER DATED 23.5.2013 OF THE 4TH RESPONDENT**| |**P5-**|**THE TRUE COPY OF THE CERTIFICATE ISSUED BY HIS DOCTOR DATED**| ||**21.12.2014**| ## **RESPONDENT(S)' EXHIBITS** ## **NIL** **TRUE COPY P.S. TO JUDGE** **EL** **7.3.2018** ## **ANU SIVARAMAN, J.** ## **----------------------------------------------W.P(C).No.2457 of 2015** ## **----------------------------------------------Dated this the 6[th] day of March, 2018** ## **JUDGMENT** This writ petition is filed seeking the following reliefs: - _“i. to call for the records leading to Ext.P4, order dated 23.5.13 in complaint No.342/12 of the 4[th] respondent and quash the same by a writ of certiorari._ - _ii. to pass a writ of mandamus commanding the respondents to release the DCRG and pay full pension from the date of retirement, i.e., 30.9.05 to the petitioner with interest.”_ 2. It is submitted that the petitioner had retired from service on 30.9.2005. It is stated that his death-cum-retirement gratuity and other pensionary benefits are withheld on the reason that there is a crime registered against him for the offences punishable under Sections 489B and 489C read with Section 34 IPC. It is submitted that only provisional pension is being paid to the petitioner on the ground that judicial proceedings are pending against him. The petitioner had approached the Lok Ayukta with Exhibit P3 complaint but the same was dismissed by Exhibit P4 on the ground that Rule 3A 2 WP(C).2457/15 of Part III KSR provides that only provisional pension shall be paid in cases where judicial proceedings are pending against the employee concerned. The petitioner contends that he has suffered a stroke and is in dire financial constraints. It is stated that this Court has held that mere pendency of a departmental or judicial proceeding unconnected with his employment is insufficient to attract Rule 3A of Part III KSR. It is stated that the decisions of this Court in _**Aravindaksha Panicker v. Accountant General**_ [2007(4) KLT 1031] and _**Haseena Mansoor v. State of Kerala**_ [2010(2) KLT 981] are authorities on the point that the pensionary benefits can be withheld only for the periods statutorily provided in Rule 3. It is further contended that the power to withhold DCRG and pensionary benefits under Rule 3A of Part III KSR is dependant on the institution of a departmental or judicial proceeding under Rule 3. The wording of Rule 3 would further make it clear that the departmental or judicial proceeding has to be with regard to grave misconduct or negligence “during the period of his service”. 3. A statement has been filed on behalf of the University contending that the petitioner was placed under suspension 3 WP(C).2457/15 with effect from 18.2.1989 for his involvement in counterfeiting of 10 rupee currency notes and a crime had been registered against the petitioner. It is stated that he was reinstated in service as per the decision of the Syndicate. In the meanwhile, investigation was completed and the petitioner was named as accused No.6 in a charge sheet filed before the Judicial First Class Magistrate-I, Nedumanagad. The petitioner was again placed under suspension on 1.8.2005. The petitioner retired on superannuation on 30.9.2005 while under suspension. He was granted subsistence allowance and he is drawing the same on the date of his retirement. It is further stated that as per Statute 19(B) of Part III of Chapter 4 of the Kerala University First Statutes, 1977, an employee can be suspended when any criminal offence is under investigation or trial. It is stated that the University had initiated disciplinary proceedings by framing formal charges against the petitioner. He retired from service before any orders could be passed. It is stated that provisional pension had been paid to the incumbent with effect from 1.10.2015 and DCRG and full pension were not paid due to the pendency of the judicial proceeding in terms of Rule 3A of Part III KSR. It is stated that a liability certificate dated 12.2.2007 4 WP(C).2457/15 was issued to the petitioner but DCRG is not released because of the pendency of the judicial proceeding. 4. I have considered the contentions advanced. It is not in dispute before me that the provisions of Rules 3 and 3A of Part III KSR are applicable to the petitioner who was an employee of the University of Kerala. The respondents rely on Rule 3A of Part III KSR to contend that only provisional pension is to be paid to the petitioner because a judicial proceeding is pending against him. Rule 3A provides that where any departmental or judicial proceeding 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 his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension on the basis of the qualifying service upto the date on which he was placed under suspension but no gratuity or DCRG shall be paid until the conclusion of such proceedings and the issue of final orders thereon. It is further stated that payment of provisional pension shall be adjusted against the final 5 WP(C).2457/15 retirement benefits sanctioned upon conclusion of the proceedings. 5. A learned single Judge of this Court in **Aravindaksha Panicker v. Accountant General** [2007(4) KLT 1031] had held that DCRG has to be released after a period of three years even if disciplinary proceedings or judicial proceedings are pending against the incumbent. However, a Division Bench of this Court in its decision in _**State of Kerala v. Muraleedharan Nair**_ [2015(3) KLT 755] held that there is no ambiguity in the statutory provisions under Rules 3 and 3A and Rule 3 does not relate to the payment of DCRG in a case where departmental proceedings or judicial proceedings as provided in Rule 3 are pending against the employee. It was stated that Notes 2 and 3 of Rule 3 of Part III KSR do not apply to a case covered by Rule 3A. Considering the provisions of Rules 59 and 116 of Part III KSR, this Court held that the judgment of the learned single Judge in _**Aravindaksha Panicker's case (supra)**_ is not good law and that where judicial or departmental proceeding as provided in Rule 3 are pending against a Government servant, he would be entitled only to provisional pension till the conclusion of such proceedings. A 6 WP(C).2457/15 Full Bench of this Court in **Raveendran Nair v. State of Kerala** (2007 (1) KLT 605) has held that even without any pecuniary loss, the Government can withhold or withdraw pension on account of proven misconduct. 6. The case of the petitioner in this case is that the judicial proceeding pending against him has nothing to do with his service under the University and as such, it is not a judicial proceeding instituted under Rule 3 of Part III KSR. Rule 3 provides that 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. The requirement of Rule 3 therefore is that the petitioner should be found guilty of grave misconduct or negligence during the period of his service in a departmental or judicial proceeding. ## 7. Rule 2 of Part III KSR reads as follows: 7 WP(C).2457/15 _“_ _**2. (a) Future good conduct shall be an implied condition of every grant of a pension** .- The Government may by order in writing, withhold or withdraw a pension or part thereof whether permanently or for a specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct._ _(b) Where a pensioner is convicted of a serious crime by a Court of Law action under clause (a) shall be taken in the light of the judgment of the court relating to such conviction._ _(c) In a case not falling under clause (b), if the Government under clause (a) considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under clause (a),_ _(I) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of the notice or such further time not exceeding fifteen days as may be allowed, his explanation for such misconduct._ _(ii) The Public Service Commission shall be_ _consulted before final orders are passed._ _**Explanation.** - In this rule, the expression “serious crime” includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923) and the expression “grave misconduct” includes the communication or disclosure of any secret official code or password or any sketch, plan, model, rule note, document or information, such as is mentioned in Section 5 of the said Act (which was obtained while holding office under_ 8 WP(C).2457/15 _the Government) so as to prejudicially affect the interest of the general public or the security of the State.”_ 8. The limitation contained in Rule 3A with regard to limiting of the pensionary benefits to provisional pension alone is applicable in cases where departmental or judicial proceeding is instituted under Rule 3 and is pending against the employee. Rule 3 is specifically with regard to withholding or withdrawing of pension and the right of ordering the recovery from pension. For Rule 3 to be operational, the pensioner should be found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment. Rule 2 provides that where a pensioner is convicted of a crime, orders can be passed by the Government withholding or withdrawing pension in the light of the judgment relating to such conviction. The power under Rule 2 is general in nature. It is only in cases where departmental or judicial proceeding are pending against an employee in terms of Rule 3, or deemed to be so pending that Rule 3A comes into play. In all other situations, the rule applicable is Rule 2. If there is a conviction, the pension can be recalled, withdrawn or reduced. The only special circumstances where the pension can be withheld even without a conviction or finding of guilt is 9 WP(C).2457/15 where there is a judicial or departmental proceeding pending against the employee which has reference to his misconduct or negligence during the period of his service. 9. In the instant case, the allegation is that a crime had been registered against the petitioner in the year 1989. The petitioner retired from service on 2005. Even after more than 12 years of retirement, he continues to subsist on provisional pension with no other amounts being sanctioned. It has to be understood that our system of criminal jurisprudence provides that a person is to be presumed innocent until proven guilty. The petitioner therefore cannot be kept in a state of suspended animation for more than a dozen years after his retirement. While it is true that counterfeiting or complicity in an offence involving counterfeit, is not conduct becoming of a University employee, I am of the definite opinion that the petitioners pensionary benefits cannot be continued to be withheld on the ground that there is a case registered in 1989 still pending trial against him. The proper course of action in the situatuon would be to release the pensionary benefits due to the petitioner prospectively and to await the verdict in the criminal case to either release all arrears to him or to take steps for 10 WP(C).2457/15 stopping or withholding of pension under Rule 3, depending on the outcome of the criminal case. The respondents are therefore directed to release the DCRG and to sanction and disburse the full pension due to the petitioner in accordance with law within four months from the date of receipt of a copy of this judgment. It is made clear that the release of pensionary benefits due to the petitioner will not stand in the way of the University taking any action against the petitioner in terms of Rule 2A, in case the petitioner is convicted in the criminal case now pending against him. The writ petition is ordered accordingly. sd/- ## **ANU SIVARAMAN** **JUDGE** _vgs_