MANUEL T.M. v. KERALA WATER AUTHORITY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** ## **WP(C) NO. 21542 OF 2021** ## **PETITIONER/S:** MANUEL T.M. AGED 599 YEARS S/O. MATHEW, THAIPARAMBIL (H), KAPPADU P.O., KANJIRAPPALLY, KOLLAM-686 508, RETIRED AS HEAD SURVEYOR FORM THE OFFICE OF THE ASSISTANT ENGINEER, PROJECT AND PLANNING DEPARTMENT, KERALA WATER AUTHORITY, IDUKKI BY ADV NANDAGOPAL S.KURUP ## **RESPONDENT/S:** 1 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033 2 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033 3 ASSISTANT ENGINEER, OFFICE OF THE ASSISTANT ENGINEER, PROJECT AND PLANNING DEPARTMENT, KERALA WATER AUTHORITY, IDUKKI-688 002 4 THE FINANCE MANAGER & CHIEF ACCOUNTS OFFICER, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033 5 THE ACCOUNTS OFFICER (FUNDS), KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033 BY ADV SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 28.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21542 of 2021 -2- ## **JUDGMENT** Dated this the 28[th] day of February, 2022 The petitioner retired from the Kerala Water Authority as Heads Surveyor on 30.01.2017. After seven months of retirement to be precise on 18.05.2018, the petitioner was issued with a copy of his pension payment order. The petitioner's grievance is that his eligible DCRG is not being disbursed for reason of his implication as an accused in V.C.No.13 of 2019 pending before the court of the Enquiry Commission and Special Judge, Kottayam. Cognizance in the said case is taken based on the final report in VC No.3/2015/KTM, alleging commission of offences registered for the offence under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. The accusation is that the petitioner abused his official position by demanding and accepting illegal gratification of W.P.(C) No.21542 of 2021 -3- Rs.2,000/- from a consumer, for disconnecting an unused water connection and issuing disconnection certificate. 2. Learned Counsel for the petitioner relied on the Full Bench decision of this Court ## in _**Chandran v. Local Self Government Department**_ _**[2020(5) KLT 669 (F.B.)],**_ to contend that the punishment of withdrawal or reduction and recovery of quantified loss caused, could only be from pension and not from DCRG. It is contended that retirement benefits is no longer a bounty to be doled out at the whims and fancies of the employer and has acquired the status of property eligible for the protection under Article 300A of the Constitution of India. 2. Learned Standing Counsel for the Water Authority submitted that the petitioner has been sanctioned provisional pension of Rs.22,802/-. The Superintending Engineer, PPD Regional Office, ## W.P.(C) No.21542 of 2021 -4- Kochi, who is the pension sanctioned authority, reported about the vigilance case and informed that the office is not in a position to finalise the pension since non-liability certificate cannot be issued until the vigilance case is finalised. Therefore, the first respondent has withheld the DCRG and full pension due to the petitioner. Reliance is placed on the decision of the Apex Court in _**Managing Director, Mahandadi**_ _**Coal Fields Ltd. v. Sri.Rabindranath Choubey**_ _**[(2020) 18 SCC 71]**_ to contend that, imposition of penalty, quantification of liability and recovery from DCRG is possible even after an employee's retirement. 3. Indisputably, the only reason for withholding the petitioner's DCRG and payment of provisional pension alone is the pendency of a vigilance case. The question whether DCRG of retired employee could be withheld and recovery W.P.(C) No.21542 of 2021 -5- effected from pension was considered by the Full ## Bench in _**Chandran**_ (supra). After elaborate consideration, it was held as under; _“24. Even if the criminal appeals are rejected and the Government intends to proceed under Rule 3, the consequence of a punishment proposed can only be on the pension payable to the said individual and not on DCRG. Identical would be the consequence in the case of a disciplinary proceeding ending in the quantification of a loss caused or a civil proceeding in which a pecuniary loss is found recoverable. Coercive action could only be on the pension; which recovery, in the case of a judgment of a Civil Court could even be proceeded with against the assets of the pensioner. There could be no consequence as against the DCRG for the simple reason that the Rule does not provide for it. The withholding of DCRG pending departmental or judicial proceeding permitted in Rule 3A, is an arbitrary provision, sanctioning authoritarian defiance to the right of an employee to receive DCRG on retirement, depriving him of a rightful claim without any consequential power to partly or fully forfeit such eligible benefits, on finalization of the pending proceedings.”_ W.P.(C) No.21542 of 2021 -6- Even though the judgment in _**Chandran**_ is assailed before the Supreme Court and an interim order passed in those special leave petitions, a Division Bench of this Court has in _**TDB Represented by Secretary and Others v.**_ _**D.Sreekumar [2021 SCC OnLine Ker. 2892]**_ clarified that the interim order is applicable only to the judgments against which the SLPs are filed and with respect to other cases, the Division as well as Single Benches of this Court are bound by the Full Bench decision in _**Chandran**_ . 4. In _**Mahandadi Coal Fields Ltd,**_ the Apex Court held that, withholding of gratuity after superannuation due to pendency of disciplinary proceedings is permissible depending on the relevant rules governing the service conditions of an employee. The finding was entered in the content of Rule 34.2 of the CDA Rules, 1972 which provides for withholding of gratuity. Here, the W.P.(C) No.21542 of 2021 -7- relevant provision is Rule 3 of Part III KSR which provides only for withholding of pension and not, gratuity as held in _**Chandran.**_ The writ petition is hence allowed in part. The respondent is directed to disburse the entire amount of gratuity due to the petitioner within two months. The petitioner's liberty to agitate his grievance regarding non-disbursal of full amount of pension before the appropriate authority/forum, is left open. Sd/- ## **V.G.ARUN** ## **JUDGE** Scl/ W.P.(C) No.21542 of 2021 -8- ## **APPENDIX OF WP(C) 21542/2021** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PENSION PAYMENT ORDER DATED 18.05.2018 NUMBERED KWA /AO ( ESTT)/ PEN.9583/ COM/5669 Exhibit P2 TRUE COPY OF THE FINAL REPORT N CC NO.13/2019 ON THE FILES OF THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE ,KOTTAYAM Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 05.11.2020 SUBMITTED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 22.09.2021 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT