Soman.V.V. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 11[TH] DAY OF JULY 2023 / 20TH ASHADHA, 1945 OP(KAT) NO.116 OF 2023** **AGAINST THE JUDGMENT DATED 04.12.2019 IN OA 2234/2019** **OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN - 695001** - **2 THE CHIEF CONSERVATOR OF FORESTS FOREST HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA, PIN - 695014** - **3 THE DEPUTY DIRECTOR OF PERIYAR FOREST DIVISION THEKKADY, IDUKKI, KERALA, PIN - 685509** - **4 THE ACCOUNTANT GENERAL(A&E) AGS OFFICE, THIRUVANANTHAPURAM, KERALA, PIN - 695001** - **5 THE SUB TREASURY OFFICER SUB TREASURY OFFICE, KATTAPPANA, IDUKKI, KERALA, PIN - 685508** - **6 CHIEF CONSERVATOR OF FOREST KOTTAYAM-THIRUVARP ROAD, NEAR BHEEMANPADI JUNCTION, KARAPUZHA, KOTTAYAM, KERALA, PIN - 686003** ## **SRI.B.UNNIKRISHNA KAIMAL, SR.GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT IN O.A:** ## **SOMAN.V.V.** **AGED 63 YEARS, S/O VELAYUDHAN, RETIRED HEAD ACCOUNTANT FROM THE OFFICE OF THE DEPUTY DIRECTOR OF PERIYAR FOREST DIVISION, FOREST DEPARTMENT, THEKKADY, IDUKKI, PIN 685509 RESIDENT OF VEZHAMPANTHUNDIYIL,** **OP(KAT) NO.116 OF 2023** **2** **KALVARIMOUNT.P.O,, KATTAPPANA, IDUKKI, KERALA - 685517** **BY ADVS. M.FATHAHUDEEN LINDONS C.DAVIS E.U.DHANYA(K/672/2006) N.S.SHAMILA(K/222/2016) CHINJU P. JOYIES(K/894/2016)** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 11.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.116 of 2023 1 ## **ALEXANDER THOMAS & C.JAYACHANDRAN, JJ.** **=================================** ## **O.P(KAT) No.116 of 2023** [ _arising out of the impugned judgment dated 04.12.2019 in O.A No.2234/2019 on the file of the KAT, Tvm. Bench_ ] **=================================** Dated this the 11[th] day of July, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The aforecaptioned Original Petition is directed against the impugned Ext.P-2 final order rendered on 04.12.2019 in O.A No.2234/2019. The petitioners herein are the respondents in the O.A and the sole respondent herein is the sole applicant in the O.A. 2. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P and Sri.Lindons C. Davis, learned counsel appearing for the respondent herein. 3. The prayers in the instant Ext.P-1 Original Application, ## O.A No.2234/2019, are as follows : - _“1. Direct the Respondents to process, forward and sanction the pension and other terminal benefits including DCRG of the applicant and disburse the same to the applicant without any further delay._ _2. Direct the Respondents to pay interest @9% per annum for the delayed payment of pension and other terminal benefits including DCRG._ _3. Such other and further reliefs as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”_ O.P(KAT) No.116 of 2023 2 4. The respondent/applicant in the O.A was essentially aggrieved by the non-disbursal of his pension and terminal benefits, including DCRG and he sought for direction for disbursal of the said terminal benefits with interest @9%. 5. The Tribunal, after hearing both sides, has rendered the impugned Ext.P-2 final verdict, allowing the main pleas of the applicant, to ensure that necessary steps are taken for regularization of the suspension period and then for disbursal of his pensionary benefits, etc. 6. A brief reference to the core facts of this case would be pertinent. The respondent herein/applicant in the O.A was working as Head Clerk in the Forest Department of the State Government and he had retired from service on 31.03.2011. The crucial aspects, relating to the institution of vigilance case against him by the Vigilance & Anti-Corruption Bureau, has not been disclosed by him in the above O.A. Now, it has come out from the pleadings of the O.P, that the vigilance enquiry was initiated at the behest of the Vigilance & Anti-Corruption Bureau and the vigilance investigation was completed and final report, by way of charge-sheet, was filed, O.P(KAT) No.116 of 2023 3 which led to the institution of Calendar Case, C.C No.159/2008 on the file of the Court of the Enquiry Commission & Special Judge (Vigilance), Kottayam. The Special Court concerned had taken cognizance and it is on this basis, that the Calendar Case was instituted as C.C No.159/2008 on the file of the Court at Kottayam. Later, on establishment of a new court at Muvattupuzha, C.C No.159/2008 was transferred to the latter court, where it has been re-numbered as C.C No.357/2016 on the file of the Court of the Enquiry Commission & Special Judge (Vigilance), Muvattupuzha. It is thereafter, that the respondent/applicant had retired from service on 31.03.2011. Earlier, the respondent had faced three suspension orders from service, viz., firstly from the period from 14.02.1991 to 29.04.1992, later for the period from 30.07.1997 to 02.07.1998 and subsequently, for the period from 05.10.2004 to 12.07.2007. After the institution of Calendar Case, C.C No.159/2008, the respondent had retired from service on 31.03.2011. It appears that the applicant had submitted his application for grant of pensionary benefits on 10.10.2018, as can be seen from Ext.P-14 in the present O.P. 7. Rule 3 Part III KSR confers the power of the Government to reserve to themselves the right of withholding or O.P(KAT) No.116 of 2023 4 withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if, in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. The proviso thereto envisages either departmental proceedings or judicial proceedings. In the instant case, it is common ground that no memo of charges for disciplinary proceedings has been issued against the original applicant. Hence, there is no necessity to ascertain about the pendency or otherwise of the departmental proceedings, as envisaged in Rule 3 Part III KSR. The question is as to whether any valid judicial proceedings, as envisaged in Rule 3 Part III KSR, was said to be pending against the respondent, so as to justify the stand of the Government in withholding the pensionary benefits. Explanation appended to Rule 3 Part III KSR, particularly, clause (b) thereof, would stipulate that a judicial proceeding shall be deemed to be instituted - O.P(KAT) No.116 of 2023 5 (i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance, is made, etc. 8. In the instant case, the Vigilance & Anti-Corruption Bureau, after exhaustive investigation has filed final report by way of charge-sheet, in which the competent Special Criminal Court has taken cognizance, which has led to the pendency of Calendar Case, C.C No.159/2008 on the file of the Court of the Enquiry Commission & Special Judge, Kottayam, which was later transferred to the Muvattupuzha Court. Therefore, it is evidently clear that though the exact date on which the Special Court had taken cognizance is not known with precision, since the calendar case is C.C No.159/2008, it can be stated with certainty that the Special Criminal Court has taken cognizance of the offence alleged in the abovesaid vigilance case on a day in the year 2008. Therefore, the judicial proceedings shall be deemed to be instituted, from the day on which the criminal court had taken cognizance in C.C No.159/2008, i.e., in the year 2008. The respondent/applicant in the O.A has retired from service only thereafter, on 31.03.2011. Hence, in view of the pendency of the judicial proceedings, as envisaged in the proviso to Rule 3 of Part III KSR, the Government is fully justified to withhold the pensionary benefits. The follow-out of Rule 3 Part III KSR is that by virtue of Rule 3A of Part III KSR, the Government has also the O.P(KAT) No.116 of 2023 6 right to withhold the pension and DCRG and pay only provisional pension, pending finalization of the abovesaid judicial proceedings now pending before the Vigilance court. The law in this regard is well-settled by the ruling of the Apex Court in the case in _**Secretary, Local Self Government Department** v._ _**K.Chandran**_ {[2022 (2) KLT 370(SC)] = [(2022) 12 SCC 104]}. Hence, the Tribunal has given the impugned directions only because the respondent has suppressed these vital material facts. Hence, the verdict of the Tribunal deserves interdiction. 9. However, it is made clear that, once the abovesaid judicial proceedings, now pending before the Vigilance court, is finalized, the case of the respondent should be considered for pensionary benefits. Needless to say, in such a case, where the criminal court convicts the respondent/applicant, then the Government will have to take a decision, as to the quantum of withholding of pensionary benefits and the Rule clearly stipulates that withholding of pension cannot exceed 1/3[rd] of the pension. If, on the other hand, the accused is acquitted by the criminal court concerned, in the finalization of the judicial proceedings, then the claim of the respondent for pensionary benefits should be O.P(KAT) No.116 of 2023 7 considered, in the light of the said acquittal. No further orders and directions are called for. 10. In that view of the matter, it is ordered that the impugned Ext.P-2 final order dated 04.12.2019, rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in O.A No.2234/2019, will stand set aside and consequently, the O.A will stand dismissed. Needless to say, we are told that the Government has already sanctioned provisional pension for the respondent. The provisional pension should be paid, in accordance with the provisions of the Rules to the respondent, till the finalization of the judicial proceedings. With these observations and directions, the above Original Petition will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** vgd O.P(KAT) No.116 of 2023 8 ## **APPENDIX OF OP(KAT) 116/2023** - **PETITIONERS' EXHIBITS** - **EXHIBIT P1 COPY OF THE ORIGINAL APPLICATION** **EXHIBIT P2 COPY OF THE FINAL ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 04.12.2019** **EXHIBIT P3 COPY OF LETTER NO.E2.1098/11 DATED 10.01.2012 OF THE DEPUTY DIRECTOR, PERIYAR EAST DIVISION, THEKKADY ALONG WITH REGISTERED ACKNOWLEDGEMENT CARD** - **EXHIBIT P4 COPY OF LETTER NO.TR1-1/2012 DATED 12.01.2012 OF THE RANGE OFFICER, THEKKADI** **EXHIBIT P5 COPY OF LETTER NO.E2.1098/11 DATED 07.09.2012 ISSUED BY THE DEPUTY DIRECTOR, PERIYAR EAST DIVISION, THEKKADY.** - **EXHIBIT P6 COPY OF LETTER NO.E2.1098/11 DATED 16.07.2014 ISSUED BY DEPUTY DIRECTOR, PERIYAR EAST DIVISION, THEKKADY.** **EXHIBIT P7** - **COPY OF LETTER NO.E2-2562/17 DATED 18.08.2017 OF THE DEPUTY DIRECTOR, PERIYAR EAST DIVISION THEKKADI** **EXHIBIT P8 COPY OF LETTER NO.TR1-632/2017DATED 22.08.17 ISSUED BY THE RANGE FOREST OFFICER, THEKKADI** **EXHIBI P9 COPY OF LETTER NO.E2.6907/17 DATED 27.07.2018 ISSUED BY THE DEPUTY DIRECTOR(PROJECT TIGER), PERIYAR EAST DIVISION, THEKKADI** O.P(KAT) No.116 of 2023 9 **EXHIBIT P10 COPY OF LETTER NO.E2.2562/17 DATED 13.09.2018 ISSUED BY THE DEPUTY DIRECTOR (PROJECT TIGER)** **EXHIBIT P11** **COPY OF THE LETTER NO.E2.2562/17 DATED 13.09.2018 ISSUED TO THE APPLICANT.** **EXHIBIT P13 COPY OF SUBMISSION DATED 2.10.2018 OF THE SECTION FOREST OFFICER, EDAPPALAYAM SECTION, THEKKADY** **EXHIBIT P14 COPY OF PENSION APPLICATION SUBMITTED BY THE APPLICANT DATED 10.10.2018.** **EXHIBIT P15** **COPY OF PROCEEDINGS IN ORDER NO.E22562/2017 DATED 09.10.2020 OF THE DEPUTY DIRECTOR (PROJECT TIGER), PERIYAR EAST DIVISION, THEKKADI.** **EXHIBIT P16 COPY OF PROCEEDINGS IN ORDER NO.E14261/14 DATED 27.01.2020 OF THE CHIEF FOREST CONSERVATOR, KOTTAYAM HIGHRANGE CIRCLE.**