Ramanan K. v. State of Kerala & Others

OP(KAT) No. 278 of 2021 - : 1 :- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943 OP(KAT) NO. 278 OF 2021** **AGAINST THE ORDER IN OA.NO.1626/2020 OF THE KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A.:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY IN CHARGE OF HOME AND VIGILANCE, GOVERNMENT OF KERALA, SECRETARTIAT, THIRUVANANTHAPURAM-695001, KERALA.** - **2 THE DISTRICT POLICE CHIEF AND COMMISIONER OF POLICE, KOLLAM CITY, OFFICE OF THE DISTRICT POLICE CHIEF AND COMMISSIONER OF POLICE, KOLLAM CITY, KOLLAM , PIN-6914001, KERALA.** - **3 THE ACCOUNTANT GENERAL (A & E) OFFICE OF THE ACCOUNTANT GENERAL (A & E), M.G.ROAD, THIRUVANANTHAPURAM, PIN-695001, KERALA.** **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER** ## **RESPONDENT/APPLICANT IN O.A.:** **RAMANAN K., AGED 60 YEARS, S/O KUNJUPANIKER, GRADE ASSISTANT SUB INSPECTOR OF POLICE, (Q 3493) (RTD), PARIPALLI POLICE STATION, KOLLAM, PIN-691574, RESIDING AT MIDHILA, AMBALAMUKKU, ELAMMAD P.O, AYOOR, KOLLAM , KERALA, PIN-691533.** **THIS OP(KAT) HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No. 278 of 2021 - : 2 :- ## ALEXANDER THOMAS & VIJU ABRAHAM, JJ. =============================================== OP(KAT) No. 278 of 2021 [ _arising out of impugned order dated 5.11.20 in O.A.No. 1626/2020 on the file of the KAT, Thiruvananthapuram Bench_ ] =============================================== Dated this the 13[th] day of October, 2021 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the above Original Petition (KAT) filed by the respondents in the O.A. (State of Kerala & 2 others) under Articles 226 & 227 of the Constitution of India are as follows: " - _i. To set aside the Exhibit P2 Interim Order dated 05.11.2020 of the Kerala Administrative Tribunal in O.A. No. 1626/2020._ - _ii. Any other order or direction as this Honourable Tribunal may deem fit and proper in the facts and circumstances of the case."_ 2. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P./respondents in the O.A. In the nature of the order proposed to be passed in this petition, notice to the sole respondent in the O.P./sole applicant in the O.A. will stand dispensed with. OP(KAT) No. 278 of 2021 - : 3 :- 3. The sole respondent in the O.P./applicant in the O.A. had preferred Ext.P-1 Original Application O.A. No. 1626/2020 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, with the following prayers: " - _i. To issue direction to the 1st, 2nd & 3rd respondents to release the eligible DCRG after re-validating Annexure A2 by the 3rd respondent in a time frame fixed by this Hon'ble Tribunal._ - _ii. To issue such other orders or directions as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."_ 4. The Tribunal, after hearing both sides, has rendered the impugned Ext.P-2 interim order dated 5.11.2020 in O.A.No. 1626/2020, wherein it has been ordered that the Death-cumRetirement Gratuity (DCRG) due to the applicant shall be disbursed by the respondents in the O.A. within two months. The Tribunal has placed reliance on the dictum laid down by the Full Bench of this Court in the case in _**K.Chandran v. Secretary, Local Self Government Department & others [2020 (5) KLT 669 (FB)**_ _**= 2020 (5) KHC 273 (FB)]**_ wherein it has been held that the provisions contained in Rule 3A of Part III KSR to the extent it permits withholding of the DCRG pending finalization of the OP(KAT) No. 278 of 2021 - : 4 :- departmental/judicial proceedings envisaged in terms of the operative portion of Rule 3 of Part III KSR is _ultra vires_ , illegal and unreasonable. This is so as, Note 1 to Rule 3 of Part III KSR exclusively provides that the word _'pension'_ appearing in the operative portion of Rule 3 of Part III KSR will not be inclusive of DCRG. The provision contained in Rule 3A of Part III KSR is only an interim arrangement for withholding of pension and DCRG till the finalization of departmental or judicial proceedings contemplated as per the provision of Rule 3 of Part III KSR. So, even if the departmental or judicial proceedings contemplated in terms of the operative portion of Rule 3 of Part III KSR are adversely finalized as against the pensioner concerned, still, there is no question of thereafter withholding DCRG and what at best could be done by the Government is only withhold the pension. This aspect mentioned hereinabove, is on account of the explicit statutory engraftment as per Note 1 to Rule 3 of Part III KSR that the word _'pension'_ appearing in the operative portion of Rule 3 of Part III KSR will not be inclusive of DCRG. Hence, in the light of these aspects, the Full Bench has held OP(KAT) No. 278 of 2021 - : 5 :- that it will be highly unreasonable and illegal to provisionally withhold the DCRG in terms of the engraftment contained in Rule 3A of Part III KSR, which is only an interim arrangement pending finalization of the main proceedings at Rule 3. 5. The State Government, being aggrieved by the Full Bench decision of this Court in _**Chandran's**_ case supra, has preferred an SLP(C) before the Apex Court, in which interim stay has been granted by the Apex Court as per Ext.P-3 order dated 14.12.2020 in SLP(C) Nos. 14881-14882/2020. The Division Bench of this Court in the judgment dated 17.2.2021 in W.A.No.1407/2019 in the case _**Travancore Devaswom Board & others v. D.Sreekumar**_ _**[2021 SCC Online Ker 2892]**_ , wherein the impact of the abovesaid Full Bench decision in _**Chandran's**_ case supra as well as the effect of the interim stay order granted by the Apex Court as against the operation and enforcement of the judgment in _**Chandran's**_ case supra has been considered. The Division Bench of this Court has held therein based on the various rulings of the Apex Court and this Court that the effect of the stay order is only to stay the implementation of OP(KAT) No. 278 of 2021 - : 6 :- judgment in that particular case, and that the same will not have the effect of staying the impact of the dictum or ratio decidendi laid down by the Full Bench in other pending cases. Hence, this Court has held that the Division Benchs and Full Benchs of this Court are bound by the ration decidendi laid down by the Full Bench in _**Chandran's**_ case supra. Of course, if the interim order passed in such SLPs were to the effect that the dictum laid down in the impugned judgment is not to be relied on in other cases, then things would stand on a different footing. In the instant case, what is stayed is only the operation and implementation of the judgment in that case alone. Hence, the Division Bench of this Court in the abovesaid reported judgment in _**Travancore Devaswom Board's**_ case supra has held that the Division Bench of this Court is bound to follow the dictum or ratio decidendi laid down by the Full Bench of this Court in _**Chandran's**_ case supra. Hence, the interim direction issued by the Tribunal to release the DCRG to the original applicant cannot be faulted with. 6. Further, it is also noted that in the instant case, the OP(KAT) No. 278 of 2021 - : 7 :- Vigilance Police had registered a vigilance case/crime against the original applicant, and the Vigilance Police had filed the final report/charge sheet in the instant case, and the Special Court constituted as per the Prevention of Corruption Act, has conducted the trial, and has already rendered a judgment convicting the respondent herein for the offences mentioned therein and has also sentenced him. Further, we are told that the respondent herein had preferred a Criminal Appeal in which the Appellate Court has admitted the case and had ordered as an interim measure to suspend the impugned sentence imposed on the respondent herein and to release him on bail, etc. A Division Bench of this Court in a subsequent judgment rendered on 9.3.2021 in OP(KAT) No.110/2019 in the case in _**R.Ajai Chandra v. The Director, Agricultural (E&A) Department & another [2021 (3) KHC 445]**_ has considered the impact of final judgment of the Criminal Court in the judicial proceedings referred to in Rule 3 of Part III KSR, and has held that where the Criminal Court has passed the judgment either acquitting or convicting the pensioner, then it will have the effect of OP(KAT) No. 278 of 2021 - : 8 :- terminating the judicial proceedings contemplated in Rule 3 of Part III KSR. The argument of the State that if criminal appeal is filed, then the institution of criminal appeal would amount continuation of original proceedings, and that therefore there is no obligation for the State Government to pass final orders under Rule 3 of Part III KSR even after final judgment of the Court has been repelled by this Court. It has been held that pension is a property right, and that in terms of Article 300A of the Constitution of India, no one shall be deprived of his right to property save by the authority of law. Hence, the right to pension is a statutory right and a property right and can be curtailed or deprived only in accordance with law and through a procedure established by law, be it a parent act or a subordinate legislation. Since, there are no provisions in Rule 3 of Part III KSR envisaging that institution of an appeal after the conclusion of judicial proceedings by the Court of first instance, will amount to continuation of judicial proceedings in terms of Rule 3 of Part III KSR, and thus permitting the respondents not to pass final orders thereon, and to continue the proceedings further, and even would OP(KAT) No. 278 of 2021 - : 9 :- continue the temporary withholding of pension, etc is illegal and _ultra vires_ . It has been held that in a case where the pensioner has been convicted by the Criminal Court, the judicial proceedings will stand terminated, and then the State Government will have to finalize the proceedings in terms of Rule 3 of Part III KSR, after completing the statutory formalities therein, and after affording reasonable opportunity of being heard to the pensioner. This is equally so in a case where the pensioner is acquitted. 7. So also, it has been held that thereafter, the State Government will pass an order of withholding of pension should be passed as against the pensioner as envisaged in Rule 3 of Part III KSR, and if so, to what extent, but with a limitation that withholding of pension shall not exceed ¹/3[rd] of pension. So also, acquittal of the pension by the Criminal Court would also terminate the judicial proceedings and thereafter, the competent authority of the State Government will have to pass final orders in terms of Rule 3 of Part III KSR in such a case also. It has also been held that if the Appellate Court reverses the verdict of the Trial Court subsequently, then in a OP(KAT) No. 278 of 2021 - : 10 :- case of conviction, the Government will have to subsequently review the orders passed against the pensioner in the matter of withholding of pension, taking into account the subsequent judgment of the Appellate Criminal Court acquitting the pensioner accused. 8. Now, the main matter in the O.A. is pending before the Tribunal. So, it is for the Tribunal to take steps for final disposal of main matter in the present O.A. No.1626/2020 after affording reasonable opportunity of being heard to both sides, and after taking into account the legal principles mentioned hereinabove, and all other relevant aspects in the matter. At this stage, we are not prepared to hold that the interim order passed by the Tribunal directing the release of DCRG is in any manner legally wrong for the reasons mentioned hereinabove. 9. The Registry will forward copies of this judgment to the respondent herein, as well as to the Registry of the Kerala Administrative Tribunal, Thiruvananthapuram Bench, who is dealing with O.A. No.1626/2020 for necessary information. 10. The petition fails, and the O.P. will stand dismissed. OP(KAT) No. 278 of 2021 - : 11 :- However, the petitioners may ensure that the directions of the Tribunal in Ext.P-2 is complied with, within 6 weeks from the date of receipt of a copy of this judgment. With these observations and directions, the above Original Petition (KAT) will stand dismissed. Sd/- ALEXANDER THOMAS, JUDGE Sd/- VIJU ABRAHAM, JUDGE MMG OP(KAT) No. 278 of 2021 - : 12 :- ## **APPENDIX OF OP(KAT).NO. 278/2021** PETITIONERS' EXHIBITS **EXHIBIT P1 TRUE COPY OF THE O.A NO.1626/2020 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **ANNEXURE A1 TRUE COPY OF THE ORDER DATED 08.02.2017 IN CRL MA NO. 647/2017 IN CRL.A NO.109/2017 OF HE HONOURABLE HIGH COURT OF KERALA. ANNEXURE A2 TRUE COPY OF THE VERIFICATION REPORT NO.PR 2101653770/P-4/3/1516314211 DATED 27.12.2016 ISSUED BY 3RD RESPONDENT. ANNEXURE A3 TRUE COPY OF THE ABSTRACT IN JUDGMENT OF OP(KAT) 78/OF 2015 (Z) K.CHANDRAN V. THE SECRETARY LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA AND OTHERS.** **EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER OF THE TRIBUNAL DATED 05.11.2020 IN OA. 1626/2020.** **EXHIBIT P3 TRUE COPY OF THE SPECIAL LEAVE APPEAL (C)NO(S)14881-14882/2020 DATED 14.12.2020 OF THE HONOURABLE SUPREME COURT OF INDIA**