NARAYANA PILLAI v. STATE OF KERALA, and connected respondents (WP(C). No. 11070 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934** **WP(C).No. 11070 of 2010 (G) ---------------------------** **PETITIONER(S): -------------** **NARAYANA PILLAI,S/O.KUTTAN PILLAI, MALAMPURATH HOUSE, THEKKETHUKAVALA P.O. KOTTAYAM DISTRICT.** **BY ADVS.SRI.LIJI.J.VADAKEDOM** **SRI.D.KISHORE** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REPRESENTED BY ITS SECRETARY,LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF PANCHAYAT, PATHANAMTHITTA.** **4. THE SECRETARY, ARUVAPPULAM GRAMA PANCHAYAT, ARUVAPPULAM P.O.,KONNI, PATHANAMTHITTA DISTRICT.** **R3 BY ADV. GOVERNMENT PLEADER SMT.M.P.SHEEBA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11070 of 2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXT.P1:**|**COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED**| |---|---| ||**18.12.2003 ISSUED BY 2ND RESPONDENT.**| |**EXT.P2:**|**COPY OF THE ORDER NO.D4-23044/03 DATED 31.12.2003 OF 2ND**| ||**RESPONDENT.**| |**EXT.P3:**|**COPY OF SERVICE PARTICULARS OF PETITIONER.**| |**EXT.P4:**|**COPY OF PROCEEDINGS NO.E2-6160/04(1) DATED 1.6.2009 OF 3RD**| ||**RESPONDENT.**| |**EXT.P5:**|**COPY OF PROCEEDING DATED 12.10.2009 OF 3RD RESPONDENT.**| |**EXT.P6:**|**COPY OF RELEVANT EXTRACT FINAL REPORT IN VACB CRIME 3/2004.**| |**EXT.P7:**|**COPY OF REPRESENTATION DATED 6.11.2009 SUBMITTED BY THE**| ||**PETITIONER BEFORE THE 3RD RESPONDENT.**| |**RESPONDENT'S EXHIBITS:**<br>**NIL**|| **/TRUE COPY/** **P.A. TO JUDGE** ## **VPV** ## **P.N.RAVINDRAN,J.** ------------------------------- W.P.(C) No.11070 of 2010 -------------------------------------Dated this the 21[st] day of May, 2012 ## **JUDGMENT** The petitioner retired from service on 31.1.2004, while he was working as Secretary of Aruvappulam Grama Panchayat in Pathanamthitta District. The petitioner had earlier served as Secretary in Perumvembu Grama Panchayat in Palakkad District during the period from 26.3.2002 to 10.6.2002. Alleging that while working as Secretary in Perumvembu Grama Panchayat he had committed defalcation and misappropriation of public funds, disciplinary action was initiated against him by issuing Ext.P1 memo of charges and statement of allegations of mis-conduct. After the memo of charges was served, an Enquiry Officer was also appointed. It was in such circumstances that the petitioner retired from service on 31.1.2004 on attaining the age of superannuation. 2. Upon retirement, the competent authority sanctioned a sum of Rs.1,275/- as provisional pension to the petitioner in terms of rule 3A of Part III of the Kerala Service Rules. After such provisional pension was sanctioned, the pay of the petitioner was revised and refixed as can be seen from Ext.P4 proceedings dated 1.6.2009 issued by the Deputy Director of Panchayats. This writ petition is filed mainly seeking a revision of the provisional pension pursuant to the pay W.P.(C) No.11070 of 2010 2 revision granted to him with effect from 1.1.2011. It is contended that under rule 3A of Part III of the Kerala Service Rules, payment of Death-Cum-Retirement Gratuity alone is prohibited, that the rule contemplates payment of provisional pension not exceeding the maximum pension admissible under the rules, that the petitioner has been sanctioned a sum of Rs.1,30,785/- as gratuity but in view of the statutory provisions it has not been paid, that the amount alleged to have been defalcated and misappropriated by the petitioner is only Rs.90820/- and therefore, there is no reason why the provisional pension should not be commensurate with the amount of pension which he is entitled to receive under the rules, having regard to the pay revision effected by Ext.P4 order dated 1.6.2009. Reliance is also placed on the decision of a learned single Judge of this Court in **Sreepath Bhatt v. Tahsildar [2004 3 KLT S.N.17 (Case No.22)]** in support of the said contention. 3. The third respondent has filed a counter affidavit dated 20.12.2010 wherein it is stated that the petitioner is being prosecuted in Vigilance Case No.3 of 2004 which is presently pending in the Court of the Enquiry Commissioner and Special Judge, Thrissur as C.C.No. 122 of 2008, the trial of the case is in progress and his pensionery benefits can be sanctioned only after the Vigilance Case is disposed of W.P.(C) No.11070 of 2010 3 and subject to its outcome. It is also stated that in view of the disciplinary action which has been initiated against the petitioner and the criminal case pending against him, he is also not entitled to payment of pension. The third respondent has also stated that the petitioner was placed under suspension during the period from 19.6.2002 to 31.12.2003, that the said period of suspension has not been regularised and therefore for that reason also, the superannuation pension payable to him cannot be finally determined. 4. I heard Sri.D.Kishore, learned counsel appearing for the petitioner and Smt.M.P.Sheeba, learned Government Pleader appearing for respondents 1 to 4. I have also gone through the pleadings and the materials on record. Shorn of details, the claim made by the petitioner is that as rule 3A of Part III of Kerala Service Rules prohibits only payment of Death-Cum-Retirement Gratuity and contemplates payment of provisional pension not exceeding the maximum pension which is admissible on the basis of his qualifying service, the respondents ought to have revised the provisional pension sanctioned to him having regard to the revision and refixation of pay with effect from 1.1.2011. In short, the contention raised by the learned counsel for the petitioner is that as the rule contemplates payment of provisional pension not exceeding the regular pension admissible to W.P.(C) No.11070 of 2010 4 him, there is no reason why he cannot be paid the full amount of pension admissible under the rules as provisional pension especially in view of the fact that the amount alleged to have been misappropriated is covered by the gratuity sanctioned to him. On the other hand, the learned Government Pleader appearing for the respondents contended that the period during which the petitioner was placed under suspension has not been regularised, that the disciplinary action initiated against the petitioner has not been finalised, that he is also being prosecuted in a vigilance case and therefore, the petitioner cannot seek or be granted the full amount of pension admissible under rules. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Rule 3A of part III of Kerala Service Rules relied on the learned counsel on both sides reads as follows: "3A. (a) 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 not exceeding the maximum W.P.(C) No.11070 of 2010 5 pension which would have been admissible on the basis of his 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 specified period." 6. A Division Bench of this Court in **State of Kerala v. Kuttan Pilla [2003 (3) KLT S.N.16 (Case No.23)]** held that if disciplinary proceedings are pending, in view of rule 3A(a), the employee concerned is entitled only to provisional pension and not to gratuity till the proceedings are finalised. Therefore, a direction for pensionary benefits cannot be issued. In the instant case, it is not in dispute that the petitioner is being paid provisional pension in tune with the stipulations contained in rule 3A of Part III of Kerala Service Rules. The only dispute is regarding the quantum of provisional pension. Provisional pension of Rs.1,275/- per mensem was sanctioned to him before his pay was revised and refixed with effect from 1.2.2004. Such provisional pension was paid pursuant to the direction issued by this W.P.(C) No.11070 of 2010 6 Court in W.P.(C) No.31663 of 2004. Ext.P3 pension payment order discloses that the quantum of provisional pension was fixed having regard to the fact that the last pay drawn was Rs.5,625/- per mensem. Ext.P4 order discloses that the pay of the petitioner was fixed at Rs.6,050/- on 1.1.2000 and at Rs.6,450/- with effect from 1.1.2001. His last drawn pay which was taken into account for the purpose of payment of provisional pension has gone up. The allegation in Ext.P1 memo of charges is that petitioner misappropriated the sum of Rs.90,820/-. The gratuity already sanctioned to the petitioner is admittedly much more than the said amount. In view of the fact that the pay of the petitioner has been revised, the gratuity payable to him will certainly gone up. In such circumstances, as the amount of gratuity exceeds the amount alleged to have been misappropriated, I am of the opinion that the respondent should pay to the petitioner arrears of salary and allowances pursuant to the pay revision effected by Ext.P4 order. Needless to say, the provisional pension payable to him will also have to suitably revised. I accordingly dispose of the writ petition with a direction to the competent authority among the respondents to disburse to the petitioner arrears of salary and allowances pursuant to Ext.P4 order dated 1.6.2009. Needful in the matter shall be done and arrears W.P.(C) No.11070 of 2010 7 disbursed expeditiously and in any event within an outer limit of two months from the date on which the petitioner produces a certified copy of this judgment before the Director of Panchayats. The competent authority shall thereupon suitably revise the provisional pension sanctioned to the petitioner and disburse the arrears within another two months. Sd/- **P.N.RAVINDRAN JUDGE** /TRUE COPY/ P.A. To JUDGE vpv