High Court of KeralaSingle Judge2022-11-08Writ petition disposed with directions to re-no...

P.K. Mohankumar v. Travancore Devaswom Board

Case / Petition Number:WP(C) No. 27078 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ANU SIVARAMAN
Judgment Date: 2022-11-08
Court Decision / Holding: There will be a direction to the Travancore Devaswom Board to put the petitioner on notice and reconsider the pension withholding issue after hearing the petitioner, taking note of the decision taken by the Board in Exhibit P17. Appropriate orders shall be passed within three months from the date of receipt of a copy of this judgment.
Final Disposition: Writ petition disposed with directions to re-notify and reconsider the pension matter after hearing, in light of Exhibit P17, within three months; the petition is ordered accordingly.

Parties to the Case

Appellants / Petitioners

P.K. Mohankumar

Respondents

The Travancore Devaswom Board represented by the Secretary, Nanthencode, Trivandrum
The Secretary, Travancore Devaswom Board, Nanthencode, Trivandrum
The Devaswom Accounts Officer, Travancore Devaswom Board, Nanthencode, Trivandrum

Legal Representation & Advocates

Counsels for Petitioners

• C.S. Manilal
• Sri S. Nidheesh

Counsels for Respondents

• Shri. G. Biju, SC, Travancore Devaswom Board

Case Synopsis & Summary

This writ petition challenges the withdrawal of pension and retirement benefits of a retired employee of the Travancore Devaswom Board under Rule 2 of Part III Kerala Service Rules (KSR). Petitioner, who retired on 31.05.2008, had earlier sought pension revisions after provisional pension and DCRG were granted following a prior court order. While proceedings for revision of pension were underway (Exhibits P2–P3), an order dated 03.08.2018 (Exhibit P10) temporarily withheld arrears on the ground that the petitioner was convicted in a vigilance case (judgment dated 10.04.2017). The Board’s action was later set aside by this Court (Exhibit P12) on the ground that the Devaswom Accounts Officer was not competent to issue such a withholding order. Exhibit P14 notice concerning a hearing was issued, followed by Exhibit P16 (13.09.2019) withdrawing the pension under Rule 2 of Part III KSR. Petitioner contends lack of specific notice for the collateral action and points to a similar order (Exhibit P17) in another employee granting full pension and DCRG despite a similar conviction. Respondents contend the action follows Rule 2(b) (not 2(c)) and relies on conviction as a ground, arguing that no notice under Rule 2(c) is required in that scenario. The court concludes that though the petitioner was given notice, there are compelling reasons to reconsider in light of Exhibit P17 and directs the Board to re-notice, hear, and reassess the matter, within three months, taking Exhibit P17 into account. The petition is ordered accordingly.

Provisions of Law Cited

Rule 2(b) Part III Kerala Service RulesRule 2(c) Part III Kerala Service Rules (Sub-rule (i) of Rule 2(c))Rule 3 Part III Kerala Service Rules

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that withdrawing pension entirely under Rule 2 of Part III KSR was done without proper notice specific to the action and amounts to collateral proceedings. He relies on the Board’s Exhibit P17 order in a similar case granting full pension and DCRG, arguing parity and the need to consider the identical charges and pending appeal. The petitioner argues the prior orders (P10 and P12) show that the withdrawal has been misapplied and seeks reconsideration with due process and notice, directing the Board to take into account the decision in Exhibit P17.

Contentions of Respondents

The respondents submit that the action falls under Rule 2(b) of Part III KSR and is anchored on the conviction and other grounds; when the conviction arises, notice under Rule 2(c) is not required. They argue that Exhibit P16 was issued after due hearing and representation (Exhibits P14–P15), and the earlier orders (P12) show compliance within the powers of the Board. They contend that the Apex Court decision on gratuity with pending criminal or disciplinary proceedings has been reversed by the cited 2022 KHC judgment (Exhibit P17), thus requiring contemplation of the Board’s approach in light of that decision.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Secretary, Local Self Government Department and Others Etc. v. K.Chandran	2022 (2) KHC 523	Overruled	The judgment states that the decision in this case stands reversed by an Apex Court judgment, thereby overturning its principle.
W.A 1407/2019	W.A. 1407/2019	Mentioned Only	Exhibit P18 contains a Division Bench judgment of this Court dated 17.02.2021; it is referenced as an exhibit and not directly relied upon for the present ruling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944** ## **WP(C) NO. 27078 OF 2019** ## **PETITIONER:** P.K.MOHANKUMAR AGED 66 YEARS S/O.KARUNAKARAN, AMRITHANJALI, TC 10/13092, SWATHI LANE, PEROORKADA.P.O., TRIVANDRUM. BY ADVS. C.S.MANILAL SRI.S.NIDHEESH ## **RESPONDENTS:** 1 THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY THE SECRETARY, NANTHENCODE, TRIVANDRUM695003 2 THE SECRETARY TRAVANCORE DEVASWOM BOARD, NANTHENCODE, TRIVANDRUM695003 3 THE DEVASWOM ACCOUNTS OFFICER TRAVANCORE DEVASWOM BOARD, NANTHENCODE, TRIVANDRUM695003 BY ADV SHRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.27078 OF 2019 2 ## **JUDGMENT** ## **Dated this the 8[th] day of November, 2022** This writ petition is filed seeking the following reliefs: _“i. Issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P16 and quash the same as illegal._ _ii. Declare that Ext.P16 order is in violation of Sub Rule (i) of Rule 2(c) of Part III KSR.”_ 2. Heard the learned counsel for the petitioner and the learned counsel appearing for the Travancore Devaswom Board. 3. It is submitted by the learned counsel for the petitioner that the petitioner retired from service on 31.05.2008. When there was delay in paying the retirement benefits, the petitioner approached this Court, filing W.P.(C) No.29742 of 2011. It was contended therein that a criminal case is pending against the petitioner. The petitioner was granted provisional pension and DCRG as per Exhibit P1 judgment dated 10.03.2016 of this W.P.(C)No.27078 OF 2019 3 Court. Thereafter, the petitioner had submitted applications for payment of revised pension on account of the pension revisions effected by Exhibits P2 and P3. It is contended that by Exhibit P6 judgment, the requests of the petitioner were directed to be considered. While considering the said requests made by the petitioner pursuant to a contempt of court case filed by the petitioner, an order was passed by the Deputy Devaswom Commissioner (Audit) as Exhibit P10 on 03.08.2018, for temporarily withholding the release of arrears of pensionary benefits on the ground that the petitioner stood convicted in the vigilance case by judgment dated 10.04.2017. An appeal has been filed against the conviction and is pending before this Court. The petitioner challenged Exhibit P10 order before this Court. By Exhibit P12 judgment, this Court found that the Devaswom W.P.(C)No.27078 OF 2019 4 Accounts Officer was not competent to issue proceedings in the nature of Exhibit P10, withholding payments to the petitioner and directed the Board to take an appropriate action in the matter. Exhibit P10 order was set aside. 4. Thereafter, it is submitted that Exhibit P14 notice had been issued to the petitioner for a hearing to be conducted on 29.08.2019. Petitioner submitted Exhibit P15 representation. However, Exhibit P16 order was passed on 13.09.2019, invoking Rule 2 of Part III KSR, withdrawing the pension granted to the petitioner. The learned counsel for the petitioner would submit that the decision to withdraw the pension in its entirety has been taken without putting the petitioner specifically on notice of such action and that it has been passed in a collateral proceedings. It is further contended that in the case of an identically W.P.(C)No.27078 OF 2019 5 situated employee, Exhibit P17 order has been issued by the respondents, holding that the offence committed by the said employee, which, according to the petitioner is identical, does not amount to grave offence under Rule 3 of the KSR. It is submitted that full pension and all retirement benefits had been granted to the said employee. The learned counsel would also rely on Exhibit P18 judgment dated 17.02.2021 of a Division Bench of this Court. 5. A statement has been placed on record by the respondents. It is contended by the learned counsel for the respondents that a reading of Exhibit P12 judgment would make it clear that the petitioner was fully aware that the action proposed against him was under Rule 2 of Part III KSR. It is submitted that the omission to state so in Exhibit P14 notice would be of no consequence, because W.P.(C)No.27078 OF 2019 6 the petitioner had submitted Exhibit P15 detailed representation and his contentions on Rule 2, had been specifically considered. It is further contended that in case the order is being passed under Rule 2(b) of Part III KSR, the order is to be passed in the light of the judgment of the court relating to the conviction and that no specific notice in that regard is required and it is only where action is being taken on other grounds, apart from conviction for grave offence, that the question of issuance of notice under Clause (c) would arise. It is further contended that the decision that held the retirement gratuity cannot be withheld beyond three years even in case where criminal case or disciplinary proceedings are pending against a retired employee, stands reversed by a judgment of the Apex Court in **Secretary, Local Self Government Department and Others Etc. v.** W.P.(C)No.27078 OF 2019 7 **K.Chandran** [2022 (2) KHC 523]. 6. Having considered the contentions advanced, I notice that the petitioner had been put on notice pursuant to Exhibit P12 judgment and his arguments were heard before Exhibit P16 order was passed. However, it appears that in similar circumstances, another employee, who had faced conviction at the hands of the vigilance court on the very same charges and whose appeal is pending before this Court, had been granted the benefit of Exhibit P17 order dated 05.05.2021 by which the entire DCRG as well as full pension was granted to the said employee. Though it is submitted by the learned counsel appearing for the respondents that the requests of the employees were considered under different provisions of law and on the basis of the available material at the relevant time, I am of the opinion that in view of the contention that the W.P.(C)No.27078 OF 2019 8 charges against the employees were identical, the petitioner's case also requires a re-consideration, in the light of Exhibit P17. In the above view of the matter, there will be a direction to the Board to put the petitioner on notice and reconsider the issue after hearing the petitioner also, taking note of the decision taken by the Board in Exhibit P17. Appropriate orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. All other contentions are left open. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** SSK/08/11 W.P.(C)No.27078 OF 2019 9 ## **APPENDIX** ||**APPENDIX**| |---|---| |PETITIONER EXHIBITS|| |EXHIBIT P1|TRUE COPY OF THE JUDGMENT DATED 10.3.2016| ||IN WP9C)NO.29742/2011(P)| |EXHIBIT P2|TRUE COPY OF THE APPLICATION SUBMITTED BY| ||THE PETITIONER FOR GETTING THE REVISION OF| ||PENSION| |EXHIBIT P3|TRUE COPY OF THE COVERING LETTER DATED| ||11.7.2016 SENT BY THE PETITIONER TO THE| ||DEVASWOM ACCOUNTS OFFICER| |EXHIBIT P4|TRUE COPY OF THE PENSION BOOK OF THE| ||PETITIONER| |EXHIBIT P5|TRUE COPY OF THE REPRESENTATION DATED| ||23.10.2017 SUBMITTED BY THE PETITIONER TO| ||THE DEVASWOM ACCOUNTS OFFICER| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT DATED 13.6.2018| ||IN WP(C)NO.19553/2018| |EXHIBIT P7|TRUE COPY OF THE COVERING LETTER DATED| ||25.06.2018 TO THE 3RD RESPONDENT| |EXHIBIT P8|TRUE COPY OF THE ACKNOWLEDGMENT CARD| |EXHIBIT P9|TRUE COPY OF THE REMINDER LETTER DATED| ||7.8.2018 TO THE RESPONDENT DEVASWOM| ||ACCOUNTS OFFICER| |EXHIBIT P10|TRUE COPY OF THE ORDER OF THE 3RD| ||RESPONDENT DATED 3.8.2018| |EXHIBIT P11|TRUE COPY OF THE ORDER OF DEVASWOM BOARD| ||DATED 1/7/2011| |EXHIBIT P12|TRUE COPY OF THE JUDGMENT DATED 20.06.2019| ||IN WP(C)NO.31619/2018| |EXHIBIT P13|TRUE COPY OF THE COVERING LETTER DATED| ||9.7.2019 SENT BY PETITIONER TO THE BOARD| |EXHIBIT P14|TRUE COPY OF THE NOTICE OF HEARING DATED| ||19.8.2019 ISSUED BY THE BOARD TO THE| ||PETITIONER| |EXHIBIT P15|COPY OF THE HEARING NOTE SUBMITTED BY THE| ||PETITIONER TO THE BOARD| |EXHIBIT P16|TRUE COPY OF THE ORDER OF THE BOARD DATED| ||30.09.2019| |Exhibit P17|TRUE COPY OF THE PROCEEDINGS OF DEVASWOM| ||BOARD IN FAVOUR OF D.SREEKUMAR DATED| ||5.5.2021.| |Exhibit P18|TRUE COPY OF THE JUDGMENT IN W.A 1407/2019| ||DATED 17/2/2021| |SSK|//TRUE COPY// PA TO JUDGE|