M. Salim v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021/17TH AGRAHAYANA, 1943 WA NO. 1595 OF 2021** **AGAINST THE JUDGMENT IN WP(C).NO.17236/2019 OF THE HIGH COURT OF KERALA** ## **APPELLANT/WRIT PETITIONER:** **M.SALIM, AGED 62 YEARS, ASST. EXECUTIVE ENGINEER (RETD.), SABANA MANZIL, KUTTICHIRA, NEAR PULIYATHU THAIKAVU, TKM COLLEGE P.O., KOLLAM-5.** **BY ADV SRI.S.A.RAZZAK** ## **RESPONDENT/RESPONDENT:** **KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-04.** **BY SRI.ANTONY MUKKATH, SENIOR GOVERNMENT PLEADER** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 1595 of 2021 2 ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ============================================== W.A. No. 1595 of 2021 [a _rising out of the impugned judgment dated 10.11.2021 in WP(C).No. 17236/2019_ ] ============================================== Dated this the 8[th] day of December, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. The appellant herein/writ petitioner has filed the instant Writ Petition (Civil) WP(C).No.17236/2019 with the following prayers: “ - _i. a writ of certiorari or other appropriate writ direction or order calling for the records leading to Ext. P1 charge memo and quashing the same:_ - _ii. a writ of mandamus or other appropriate writ direction or order directing the respondent to provide all terminal benefits such as full pension, leave surrender salary and pension commutation value sanctioned and due to petitioner de-hors departmental proceedings retained beyond limitation;_ - _iii. a writ of mandamus or other appropriate writ direction or order directing the respondent to provide 9% annual interest on all terminal benefits due to petitioner as on the date of retirement, for belated release;_ - _iv. such other writ, direction or order as this Hon' Court may deem fit and proper on the facts of the case and to allow this Writ Petition with the petitioners' costs;”_ 2. The learned Single Judge, after hearing both sides, has rendered the impugned judgment dated 10.11.2021 holding that in view of the pendency of proceedings of Vigilance and Anti Corruption Bureau and the 3 W.A. No. 1595 of 2021 departmental disciplinary proceedings against the petitioner pensioner, he is not entitled to get full pension, but only provisional pension as already sanctioned as per Ext.P-5, etc. Being aggrieved by the impugned judgment dated 10.11.2021 rendered by the learned Single Judge in the above WP(C), the petitioner/appellant has filed the instant writ appeal under Sec.5(i) of the Kerala High Court Act, 1958. 3. Heard Sri.S.A.Razzak, learned counsel appearing for the writ appellant/writ petitioner and Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondent Kerala State Electricity Board (KSEB). 4. In the instant case, the appellant has retired from service on 30.4.2016 while holding the post of Assistant Executive Engineer. It is the case of the respondent KSEB authorities that a vigilance case as V.C.No.4/2015 has been registered by the Vigilance and Anti Corruption Bureau (VACB), Kollam, in respect of certain allegations involving the appellant's service for the period from March, 2008 to March, 2010, and further that a departmental disciplinary proceedings was also pending, and memo of charges dated 26.5.2014 was in fact issued even before the retirement of the appellant on 30.4.2016. Hence, it is pointed out that in view of the mandatory provisions contained in the operative portions of W.A. No. 1595 of 2021 4 Rules 3 & 3A of Part III KSR, full pensionary benefits and DCRG cannot be granted to the appellant, and all what could be granted is only the provisional pension, which has already been sanctioned in terms of Ext.P-5 dated 29.11.2017, etc. 5. From a perusal of the pleadings and materials on record including the proceedings in the counter affidavit filed by the respodent KSEB, it is not discernible for anyone as to which is the vigilance case said to have been initiated by the VACB which is pending against the appellant. Hence, we passed a direction on the previous occasion giving last opportunity to the respondent KSEB in that regard. Today, when the matter has been taken up for consideration, Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondent KSEB would submit on the basis of instructions that initially a vigilance case as V.C.No.4/2015 of VACB, Kollam, was registered against the appellant for offences punishable under certain provisions of the Prevention of Corruption Act and the Indian Penal Code, in which the appellant has been arrayed as accused No.2 for the period from March, 2008 to March, 2010. Further, that the VACB, Kollam, has completed the investigation and has filed final report in the matter whereby the name of the appellant as accused No.2 has already been deleted from the final report/charge sheet, and the W.A. No. 1595 of 2021 5 Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, has taken cognizance of the offences alleged against other accused persons and calender case has been instituted which is pending as C.C.No.11/2021 on the file of said Court, in which the name of the appellant herein has been completely deleted. 6. In view of above submission, there cannot be any two views that the pendency of above vigilance case cannot be cited as a ground for withholding full pensionary benefits and DCRG even going by the provisions contained in Rules 3 & 3A of Part III KSR. That apart, it is seriously open to doubt whether the said enquiry proceedings would be time barred in view of the fact that the cognizance has been taken in the year 2021 for the institution of calender case C.C.No.11/2021 and the allegation period is from March, 2008 to March, 2010, and the time barred period of 4 years even in the case of judicial proceedings is over. That apart, there is no question of securing granting any sanction in terms of proviso (b) (i) of Rule 3 Part III KSR, would save the situation inasmuch as, even admittedly, the appellant has been completed deleted from the accused array. Further, _prima facie_ , it appears that said sanction as envisaged in proviso (b) (i) of Rule 3 Part III KSR, cannot merely be a sanction to prosecute public servant in terms of Sec.19 of the Prevention of Corruption Act or Sec.197 of W.A. No. 1595 of 2021 6 the Code of Criminal Procedure, and _prima facie,_ what may be required is a considered application of mind by the authority concerned like the KSEB to decide as to whether sanction should be granted even to get over the time bar for the deemed continuance of judicial proceedings as envisaged in proviso (b) (i) of Rule 3 Part III KSR. 7. We need not get into those issues for the simple reason that the appellant has already been completed deleted from the accused array in above vigilance case/calender case. Suffice to say, the said vigilance case aspect could not longer be a ground to prolong the process of benefits due to be granted to the appellant. We are now told that the full DCRG has already been paid by the respondent KSEB to the appellant. 8. It is by now well settled by the Full Bench of this Court in the decision _**K.Chandran v. Secretary to Government, Local Self Government Department [2020 (5) KLT 669 = 2020 (5) KHC 273]**_ that in view of the definition of _'pension'_ as appearing in the operative portion of Rule 3 of Part III KSR as per Note 2 thereof as to include only pension and not DCRG, what could be finally withheld even by passing final order under Rule 3 Part III KSR would only be the pension and not the DCRG. In view of this position, the Full Bench has held that the temporary withholding of DCRG by taking recourse to the second limb of Rule 3A Part W.A. No. 1595 of 2021 7 III KSR is illegal, _ultra vires_ and unreasonable etc and full DCRG will have to be disbursed to the incumbents even if departmental proceedings or judicial proceedings in terms of the operative portion of Rule 3 Part III KSR are pending against them. 9. Of course, liabilities that may be otherwise ascertained without recourse to departmental proceedings or judicial proceedings as envisaged in Note 2 & Note 3 of Rule 3 Part III KSR would be deducted after following the due procedure and strict compliance of the principles of natural justice, but within an outer time limit of 3 years as mandated in Note 3 of Rule 3 Part III KSR. Here, it appears that it is the c0mmon ground of both sides that no such liabilities in terms of Note 3 of Rule 3 Part III KSR have been alleged against the appellant and the full DCRG amount were already been granted to the appellant. Therefore, the only issue is as to the appellant has prayed for interest at the rate of 9% p.a. on all retirement benefits/terminal benefits favourable to him. Hence, we are of the considered view that the respondent shall grant interest at the rate of 6% p.a. to the appellant for the full amount of DCRG for the period from one month from the date of retirement of the appellant ( 1.6.2016) up to the date of actual disbursal of full DCRG amount. What now remains is the issue relating to the pensionary benefits. W.A. No. 1595 of 2021 8 10. Sri.S.A.Razzak, learned counsel appearing for the writ appellant would assert on the basis of instructions that what has been now sanctioned and actually disbursed to the appellant as per Ext.P-5 is only a pittance and not the 90% of full pension that has already paid in cases of this nature, even citing Rule 3A of Part III KSR. 11. Sri.S.A.Razzak, learned counsel appearing for the writ appellant would invite our considered attention to the contents of Ext.P-5 proceedings sanctioning provisional pension, wherein it has been admitted that the last drawn pay of the appellant at the time of his retirement was Rs.1,05,380/in the pay scale of Rs.57220-104880, and what has been sanctioned to him under the guise of provisional pension is a pittance amount of Rs.8,500/per month w.e.f. 1.5.2016 as can be seen from a reading of the contents of Ext.P-5, more particularly given on internal page 2 thereof _[See page 37 of the paper book of this W.A.]_ . 12. We are told that ordinarily, in such cases where provisional pension is sanctioned, it will be in the region of 75% to 90% or so of the full pension. Even in the matter of passing of final order withholding pension by finalization of the proceedings under the operative portion of Rule 3 Part III KSR, there is a specific statutory mandate that the amount of pension that has been withheld, cannot at any rate exceed one third of the full pension W.A. No. 1595 of 2021 9 due. Hence, we would order that the respondent KSEB authorities will immediately take steps to ensure that the eligible provisional pension shall be sanctioned to the appellant for the period from 1.5.2016 onwards as per the norms governing the field, and _prima face_ , we are not in a position to countenance the plea of the respondent KSEB that the small amount of Rs.8,500/- paid to the appellant is the proper provisional pension which is due to him from 1.5.2016. This is more so taking into account the fact that it is admitted in Ext.P-5 that the total last pay of the appellant as on the date of retirement of the appellant was Rs.1,05,380/- in the pay scale of 57220104880. Hence, the respondent KSEB authorities will immediately sanction the proper provisional pension amounts due to the appellant for the period from 1.5.2016 onwards and arrears of differential of said provisional pension amounts should carry interest at the rate of 7% from the respective due date up to the date of actual payment. 13. Now, what remains is the issue relating to the claim of the appellant for full pension. 14. Sri.Antony Mukkath, learned Senior Government Pleader appearing for the respondent KSEB would point out that admittedly, the memo of charges have been issued on 26.5.2014 for departmental/disciplinary proceedings by the respondent KSEB, even W.A. No. 1595 of 2021 10 though the period of allegation is from March, 2008 to March, 2010 and since, the said memo of charges have been issued on 26.5.2014, well before the retirement of the appellant on 30.4.2016, the time bar envisaged in proviso (b) (i) of Rule 3 Part III KSR will not apply in the instant case, and the respondent KSEB authorities is obliged to finalize proceedings for which a reasonable time may be granted by this Court. 15. Per contra, Sri.S.A.Razzak, learned counsel appearing for the writ appellant would submit on the basis of instructions that the so called disciplinary/departmental proceedings are vitiated by inordinate and unexplained long delay and laches on the part of the respondent KSEB authorities inasmuch as, the allegation period is pertaining to March, 2008 to March, 2010, and the amount alleged is a small amount, and that the VACB, Kollam, has conducted a comprehensive enquiry of the self same allegations and has found that not even an iota of evidence could be collected against the appellant, and they have been constrained to file a refer report in the case of the appellant, and the final report/charge sheet has been filed only as against the other co-accused persons. It is the admitted case of the respondent KSEB authorities, and as can be seen from the materials in abovesaid Calender Case C.C.No.11/2021 now on the file of the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram, W.A. No. 1595 of 2021 11 which has arisen out of Vigilance Case V.C.No.4/2015 of VACB, Kollam, etc. 16. _Prima facie,_ it may appear that the allegation pertaining to vigilance case and departmental proceedings may pertain to same aspects or may be overlapping. There is no credible explanation by the respondent KSEB as to why it has taken so long to finalize the abovesaid departmental proceedings, though the allegation period is from March, 2008 to March, 2010, and memo of charges have been issued on 26.5.2014. We are now in December, 2021, and about 4½ years have elapsed after the retirement of the appellant on 30.4.2016. Any further delay on the part of respondent KSEB authorities to finalize the proceedings, would be nothing short of flagrant violation of the sacrosanct property rights guaranteed to the appellant in terms of Article 300A of the Constitution of India. This is so, as it is trite that _'pension'_ is no longer a bounty to be paid by the employer, but is the hard earned property right of the pensioner, and no one can take away or deprive a person his right to property, including right to pension save by authority of law. Any further proceedings, we are afraid, should be nothing but arbitrary. However, as a last chance, we would give 4 months' time to the competent authority of respondent KSEB to finalize the proceedings in terms of Rule 3 of Part III KSR on the abovesaid memo of charges dated 26.5.2014, said to have been issued as disciplinary or departmental W.A. No. 1595 of 2021 12 proceedings. If the abovesaid proceedings are not finalized within an outer time limit of 4 months as above, then, the abovesaid proceedings by way of memo of charges will stand abated and will stand automatically quashed without any further orders from this Court. In that case, the appellant shall be given full pension due to him, after deducting the proper provisional pension to be paid to him. The question of interest at that stage is left open to be raised and decided in the appropriate stage. Further, it is also ordered that the appellant may co-operate with the abovesaid disciplinary proceedings pursuant to memo of charges dated 26.5.2014. 17. The directions and orders of the learned Single Judge as per the impugned judgment in the above WP(C) will stand modified and substituted as above. With these observations and directions, the above Writ Appeal will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE **==> picture [29 x 15] intentionally omitted <==** VIJU ABRAHAM, JUDGE MMG W.A. No. 1595 of 2021 13 ## **APPENDIX OF W.A.NO.1595/2021** |**PETITIONER'S **|**EXHIBITS:**| |---|---| |**EXHIBIT P1**|**PHOTOCOPY OF CHARGE MEMO NO. DATED 26-5-2014.**| |**EXHIBIT P2**|**PHOTOCOPY OF ORDER FOR REINSTATEMENT DATED**| ||**9-2014.**| |**EXHIBIT P3**|**PHOTOCOPY OF PETITIONER'S EXPLANATION TO**| ||**CHARGE MEMO DATED 26-5-2014.**| |**EXHIBIT P4**|**PHOTOCOPY OF PETITIONER'S REPRESENTATION DATED**| ||**23-11-2016.**| |**EXHIBIT P5**|**PENSION PAYMENT ORDER DATED 29-11-2017.**| |**EXHIBIT P6**|**PHOTOCOPY OF DCRG ORDER DATED 23-1-2017.**| |**EXHIBIT P7**|**PHOTOCOPY OF AUTHORIZATION FOR DCRG DATED**| ||**9-2-2017.**| |**EXHIBIT P8**|**PHOTOCOPY OF REPRESENTATION DATED 27-2-17.**| |**EXHIBIT P9**|**PHOTOCOPY OF NO-LIABILITY CERTIFICATE DATED**| ||**3-5-2017.**| |**EXHIBIT P10**|**PHOTOCOPY OF AUTHORISATION DATED 30.11.2017 TO**| ||**RELEASE DCRG.**|