OP(KAT) No.148 of 2021 (Against the order in OA (EKM) No.1433/2020, Kerala Administrative Tribunal, Addl. Bench, Ernakulam)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** **OP(KAT) NO. 148 OF 2021** **AGAINST THE ORDER IN OA (EKM) 1433/2020 DATED 16-10-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **(ADDL.BENCH, ERNAKULAM.)** ## **PETITIONERS/RESPONDENTS 1 TO 3 IN O.A (EKM) :** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DIRECTOR OF PANCHAYATS, PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM-695 033.** - **3 THE DEPUTY DIRECTOR OF PANCHAYATS PUBLIC OFFICE BUILDING, MUSEUM P.O., THIRUVANANTHAPURAM-695 033.** - **4 THE ACCOUNTANT GENERAL (A&E) OFFICE OF THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL.** **RESPONDENT/APPLICANT IN O.A(EKM) :** **VENUGOPAL S, S/O. D.SUKUMARAN NAIR, D.S.NILAYAM, EZHUPUNNA SOUTH P.O., PIN-688 537, NOW RESIDING AT KUTTYKKATTU HOUSE, 38/1131, (BMRA) 101, BALAKRISHNA MENON ROAD, EDAPPALLY, KOCHI, ERNAKULAM-682024.** **BY ADV.SRI. LINDON C. DAVIS.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) No.148 OF 2021 2 ## **ALEXANDER THOMAS & A.BADHARUDEEN, J J.** ## **------------------------------------------------** ## **O.P (KAT) No.148 OF 2021** _[Arising out of the impugned final order in O.A (Ekm) No.1433 of 2020 dated 16-10-2020 on the file of the KAT, Addl.Bench, Ekm.]_ ## **---------------------------------------------------Dated this the 7[th] day of July, 2021** ## **J U D G M E N T** ## **ALEXANDER THOMAS, J** Respondents 1 to 3 in O.A (Ekm) No.1433 of 2020 on the file of the Kerala Administrative Tribunal, Ernakulam Bench, being aggrieved by Ext.P2 final order dated 16-10-2020 rendered by the Tribunal in the said O.A, have approached this Court by filing the instant O.P under Articles 226 & 227 of the Constitution of India. 2. The prayer in the afore captioned O.P(KAT) is as follows { _See page Nos.7 & 8 of the paper book of the OP(KAT)_ } : _“ ….......... to set aside Exhibit P2 Order dated 16-10-2020 in OA (EKM) No.1433/2020, on the file of the Kerala Administrative Tribunal, Additional Bench, Ernakulam by allowing this original petition.”_ 3. Heard Sri.B.Unnikrishna Kaimal, learned Government Pleader appearing for the petitioners (State of Kerala and others) in the O.P/respondents 1 to 3 in O.A and Sri.Lindons C.Davis, learned counsel appearing for the respondent herein in O.P/applicant in O.A before the Tribunal. 4. The prayers in the instant Ext.P1 O.A(Ekm) No.1433 of O.P (KAT) No.148 OF 2021 3 2020, filed by the respondent herein before the Tribunal, are as follows { _See page No.18 of the paper book of the OP(KAT)_ } : - _i) To direct the respondents to forthwith disburse the DCRG of the applicant;_ - _ii) To direct the respondents to finalize the proceedings against the applicant initiated as per Annexure -A3, A5 and A7 within a time frame fixed by this Honourable Tribunal;_ - _iii) To direct the respondents to quantify the liability of the applicant and release the retirement benefits including full pension and its arrears, pension commutation and all other incidental benefits along with interest to the applicant;_ - _iv) and grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case including costs.”_ 5. The Tribunal after hearing both side, has rendered the impugned Ext.P2 final order in O.A(Ekm) No.1433 of 2020 dated 16-10-2020, whereby it has been ordered that in the light of the dictum laid down by the Full Bench of this Court in _**K.Chandran v.**_ _**Secretary, Local Self Government Department and others**_ _**[2020(5) KHC 273]**_ , the respondents in the OA are obliged to immediately disburse the DCRG due to the applicant, subject to liability if any, fastened on him in accordance with the said provision, within two months. Further, it is also ordered that the disciplinary proceedings initiated against the original applicant in the year 2015 as referred to in Annexure A3 memo of charges, shall be finalized by R-1 in the O.A without any further delay, at any rate, within three months, etc. 6. In the instant case, the respondent herein/original applicant was earlier working as Audit Supervisor in the Panchayat O.P (KAT) No.148 OF 2021 4 service. While in service, the State Government authorities concerned have issued Annexure A3 memo of charges along with statement of allegations dated 18-03-2015 against the original applicant for initiating disciplinary proceedings. The said disciplinary proceedings against him has not been finalized and he had retired from service on attaining superannuation age on 31-05-2018. Whereupon the respondents in O.A have issued Annexure A1 pension payment order dated 16-08-2018 sanctioning only provisional pension and withholding DCRG in purported invocation of the powers under Rule 3A of Part III KSR on the ground that the disciplinary proceedings as contemplated in the operative portion of Rule 3A Part III KSR is pending against him even after retirement. The matter is no longer res integra and is covered by the dictum laid down by the Full Bench decision of this Court in _**K.Chandran's**_ case supra _**[2020(5) KHC 273 (F.B)] ,**_ wherein the Full Bench of this Court has held that the latter provision in Rule 3A of Part III KSR to the limited extent it authorizes withholding of even DCRG merely on account of the disciplinary or judicial proceedings pending in terms of Rule 3 Part III KSR is an illegal and ultra vires. Since Note 2 of Rule 3 Part III KSR has explicitly stipulated that the word 'pension' used in Rule 3 shall not include DCRG, there is no question of withholding the DCRG even O.P (KAT) No.148 OF 2021 5 if Rule 3 proceedings are detrimentally finalized as against the applicant inasmuch as what can be withheld in terms of Rule 3 is only the pension and not the DCRG. Hence it was held that even the temporary withholding of DCRG, is illegal and ultra vires and is a meaningless exercise. Being aggrieved by the judgment rendered by the Full Bench decision of this Court in _**Chandran's**_ case supra, the State Government Authorities have preferred SLP(Civil) Nos.1488114882 of 2020 before the Apex Court, in which the interim order has been passed by the Apex Court on 14-12-2020, ordering that in the meanwhile, the operation of the impugned order passed by the High Court shall remain stayed etc. These aspects have also been elaborated in a subsequent judgment of the Division Bench of this Court rendered on 27-01-2021 in O.P(KAT) No.418 of 2020 in the case _**State of Kerala & Ors. v. Ajitha C.K [2021(2) KHC 1 (DB)]**_ . Certain other aspects of the matter in relation to the applicability of Rule 3 and Rule 3A of Part III KSR have been dealt with in yet another judgment of the Division Bench of this Court in _**Ajai Chandra.R v. Director, Agricultural (E&A) Department & Another [2021(3) KHC 445 (DB)].**_ A Division Bench of this Court in decisions as in the judgment dated 17-01-2021 in W.A No.1407 of 2019, has considered the effect of the dictum laid down by the Full Bench of this Court in O.P (KAT) No.148 OF 2021 6 **Chandran's** case supra and has also held the effect and consequence of the interim stay order granted by the Apex Court as against the judgment of the Full Bench in the decision in _**Chandran's**_ case supra and on the basis of the decisions of the the Apex Court and this Court cited therein, has held that the interim stay order granted in the said SLP will only have the effect of staying and keeping in abeyance the actual implementation and enforcement of the directions in the judgment impugned in those cases and will not have the effect of staying the dictum laid down by the Full Bench in that case and that the Division Bench of this Court is obliged to follow the dictum laid down by the Full Bench of this Court, in similar cases (reported in _**Ajai Chandra.R v. Director, Agricultural (E&A) Department & Another[2021(3) KHC 445]**_ . 7. Hence following the reasonings and conclusions already rendered by the Division Bench of this Court in the judgment dated 171-2021 in W.A No.1407 of 2019 _**[(2021 (SCC) Online Ker.2892) Travancore Devaswom Board represented by its Secretary**_ _**v. D.Sreekumar]**_ , we are of the view that the submission made by the learned Government Pleader that the Tribunal has committed a serious error in having followed the dictum laid down by the Full Bench of this Court in _**Chandran's**_ case supra despite the stay order O.P (KAT) No.148 OF 2021 7 granted by the Apex Court as per the interim order dated 14-12-2020, etc. is not sustainable. Hence, we are of the view that the Tribunal was fully right in holding that the withheld DCRG amount is to be immediately released to the original applicant. Further, it is also made clear that as a matter of fact, the competent authority concerned has finalized other liabilities as referred to in Note 3 of Rule 3 Part III KSR which could have been finalized without resort to the judicial or departmental proceedings referred to in the operative portion of Rule 3 Part III KSR and such liabilities have been duly finalized after granting reasonable opportunity of being heard to the original applicant and before the expiry of the outer time limit of three years from the date of retirement as mandated in Note 3 to Rule 3 Part III KSR, then such liability amounts so quantified and finalized with due prior notice to the petitioner and within the said 3 year period can also be adjusted as against the DCRG amount. But on the other hand, if as a matter of fact, the above said statutory procedure contemplated in Note 3 to Rule 3 part III of KSR in finalizing and quantifying the liabilities with due prior notice to the original applicant before the expiry of the outer time limit of three years from the date of retirement, which period has expired on 31-05-2021, then the full DCRG amount will have to be released to the petitioner. O.P (KAT) No.148 OF 2021 8 8. The only other direction issued by the Tribunal is that the competent authority of State Government shall finalize the disciplinary proceeding pending against the petitioner as referred to in Annexures A3 and A5, within three months, etc. The Full Bench decision in **Chandran's** case supra has only dealt with the legality of withholding DCRG by invoking the provision in Rule 3A Part III KSR. However, the competent authority concerned is fully at liberty to finalize the proceedings contemplated in terms of Rule 3 Part III KSR and as mentioned in Annexures A3 and A5, without any further delay. Taking note of the aspect that the disciplinary proceedings has been initiated as early as in the year 2015 and also taking into account of fact that the original applicant has also retired from service in May 2018, the Tribunal was well within its powers to have the insisted that the said disciplinary proceedings referred to in Annexures A3 and A5 will have to be finalized in accordance with Rule 3 Part III KSR with all expedition and without any further delay. 9. Taking note of the pendency of this OP, it is ordered that the petitioners may pay the due DCRG amount to the respondent as aforesaid within six weeks from the date of receipt of a copy of this judgment and the disciplinary proceedings referred to in Annexures A3 and A5 may be finalized in accordance with the Rule 3 Part III KSR O.P (KAT) No.148 OF 2021 9 within three months from the date of receipt of a copy of this judgment. To that limited extent, the impugned directions and orders of the Tribunal will stand modified. No other interference is called for. With these observations and directions the Original Petition will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **A.BADHARUDEEN, JUDGE** amk O.P (KAT) No.148 OF 2021 10 ## **APPENDIX OF OP(KAT) 148/2021** ## **PETITIONERS' ANNEXURES :** **Annexure A1 TRUE COPY OF THE PENSION PAYMENT ORDER WITH RESPECT TO THE PETITIONER AS PER APPLICANT NO.1018384414 DATED 16.8.2018. Annexure A2 TRUE COPY OF THE VERIFICATION REPORT NO.P.R 2101810666 BY THE 3RD RESPONDENT. Annexure A3` TRUE COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS NO.EPB2/2015/LSGD DATED 18.3.2015 ISSUED BY THE SPECIAL SECRETARY. Annexure A4 TRUE COPY OF THE DRAFT OF THE REPLY SUBMITTED BY THE APPLICANT BEFORE THE IST RESPONDENT. Annexure A5 TRUE COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS (NO.7910 EPB2/15.LSGD) DATED 11.5.2015. Annexure A6 TRUE COPY OF THE REPLY DATED 13.11.2015. Annexure A7 TRUE COPY OF THE LETTER NO.EPB2/87/2018/LSGD DATED 7.5.2019 ISSUED BY THE SPECIAL SECRETARY. Annexure A8 TRUE COPY OF THE LETTER DATED 10.7.2019 OF THE APPLICANT. Exhibit P1 TRUE COPY OF THE OA(EKM) NO.1433/20 ALONG WITH ITS ANNEXURES. Exhibit P2 TRUE COPY OF ORDER IN OA(EKM) NO.1433/2020 DATED 16.10.2020. Exhibit P3 TRUE COPY OF THE STAY ORDER DATED 14.12.2020 IN SPECIAL LEAVE TO APPEAL (C) NOS.14881-14882/2020.**