State of Kerala and others v. R. Muraleedharan Nair

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 ``` ``` RP NO.934 OF 2015 ``` ``` AGAINST THE JUDGMENT DATED 19.06.2015 IN WA NO.1396 OF 2010 OF HIGH COURT OF KERALA ``` ``` REVIEW PETITIONERS/APPELLANTS IN W.A.: ``` - **`1 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FOREST, THIRUVANANTHAPURAM.`** - **`2 THE DIVISIONAL FOREST OFFICER, FOREST DIVISION, IDUKKI.`** - **`3 THE ACCOUNTANT GENERAL OF KERALA THIRUVANANTHAPURAM.`** ## **`BY SMT.B.VINITHA, SENIOR GOVERNMENT PLEADER`** ``` RESPONDENT/RESPONDENT: ``` - **`1 R.MURALEEDHARAN NAIR, S/O.RAMAN PILLAI, AGED 59 YEARS, EDATTU HOUSE, POONJAR POST, PANICHIPARA, KOTTAYAM DISTRICT, (FORESTER RETIRED) PONMUDI SECTION, IDUKKI DISTRICT (DECEASED)`** - **`* ADDL R2 PRASANNAKUMARI AGED 71 YEARS, W/O. LATE R MURALEEDHARAN NAIR, RESIDING AT EDATTU HOUSE, POONJAR P.O., KOTTAYAM – 686585.`** ``` * ADDL R3 ASHA SANTHOSH AGED 49 YEARS, D/O.LATE R MURALEEDHARAN NAIR, RESIDING AT KASHNIKUNNEL HOUSE, PALA, KOTTAYAM – 686575. ``` ``` * ADDL R4 ASWATHY M, AGED 44 YEARS, D/O. LATE R MURALEEDHARAN NAIR, RESIDING AT EDATTU HOUSE, POONJAR P.O., KOTTAYAM – 686585. ``` 2 **Review Petition No.934 of 2015** ``` (*ADDL R2 TO R4 ARE IMPLEADED AS LEGAL HEIRS OF R1 AS PER ORDER DATED 10.06.2024 IN IA NO.1/24 IN RP NO.934/15) ``` ``` BY ADV K.SANDESH RAJA ``` ``` THIS REVIEW PETITION HAVING COME UP FOR HEARING ON ``` ``` 01.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 **Review Petition No.934 of 2015** ## **ORDER** ## **Dated this the 01[st] day of August, 2024** ## Harisankar V. Menon, J. The appellants in W.A.No.1396 of 2010 are the petitioners in this review petition. The respondent in the writ appeal is the 1[st] respondent herein also. Respondents 2 to 4 are impleaded as legal heirs of the 1[st] respondent as per order dated 10.06.2024 in I.A.No.1 of 2024 in R.P.No.934 of 2015. 2. The short facts necessary for the disposal of this review petition are as under: The 1[st] respondent herein filed W.P.(C)No.23882 of 2007 praying for issuing a direction to the respondents in the writ petition to disburse the DCRG due to him. He retired from service on 31.12.2002 while working as a Forester. He contended that he was entitled to gratuity to the extent of Rs.1,75,824/-, which was not paid. A learned Single Judge, by a judgment dated 19.05.2010, after referring to a statement filed on behalf of the 2[nd] respondent in the writ petition that there is a total liability of Rs.6.5 lakhs with respect to six cases, wherein the petitioner in the W.P.(C) was also involved, directed the DCRG to be released since liability as against 4 **Review Petition No.934 of 2015** the petitioner in the W.P.(C) was not fixed within the permitted period of three years. 3. Against the above judgment of the learned Single Judge, W.A.No.1396 of 2010 was filed. In this appeal, the appellants-respondents relied on the provisions of Rule 3A(a) of Part III Kerala Service Rules (for short ‘KSR’) to contend that DCRG need not be paid on account of the pending disciplinary proceedings. Reliance was also placed on the judgment of this Court in **Aravindaksha Panicker v. Accountant General [2007** **(4) KLT 1031]** and pointed out that the said judgment does not lay down the correct proposition of law, requiring reconsideration. 4. By judgment dated 19.06.2015, W.A.No.1396 of 2010 is disposed of. In the said judgment, a Division Bench found no anomaly with respect to the statutory provisions under Rules 3 and 3A(a) since they were operating in different fields and therefore cannot be the basis for overlooking a specific statutory provision permitting withholding of DCRG during pendency of departmental or judicial proceedings. It was found that though a pensioner can claim DCRG amount under normal circumstances immediately after retirement, the statute prohibits payment of DCRG if he is involved in any disciplinary proceedings, which are continued even 5 **Review Petition No.934 of 2015** after retirement or in any judicial proceedings while he is a pensioner. Ultimately, in paragraph No.31 of the judgment, Division Bench noticed the submission made from the side of the learned Government Pleader that departmental proceedings have already been completed during the pendency of the appeal and in the absence of any fixation of liability, the 1[st] respondent herein is entitled to the DCRG amount. Thus W.A.No.1396 of 2010 was dismissed. 5. The appellants in W.A.No.1396 of 2010 have filed the captioned review petition contending that the observations in paragraph No.31 of the judgment with respect to the statement made by the Government Pleader that on completion of the departmental proceedings, there is no fixation of liability, is factually incorrect. It is pointed out in the review petition that though the submission with respect to the conclusion of the departmental proceedings during the pendency of the writ appeal was correct, the further observation with respect to “in the absence of any fixation of liability” is not correct. Reliance is placed on Annexure I proceedings of the Divisional Forest Officer, Munnar, dated 15.07.2010, by which liability to the extent of Rs.1,78,795/has been fixed against the 1[st] respondent herein, wherefore it is 6 **Review Petition No.934 of 2015** pointed out that the liability fixed is higher than the DCRG claim of Rs.1,75,824/- on account of which the respondent is required to pay Rs.2,971/- to the State towards the liability. In such circumstances, the observations in paragraph No.31, referred above, as well as in the last paragraph of the judgment by which W.A.No.1396 of 2010 is stated to be dismissed are sought to be reviewed. 6. We have heard the learned Senior Government Pleader for the review petitioners-appellants and the learned counsel for the respondents. 7. The learned Senior Government Pleader relies on the provisions of Rules 3 and 3A of Part III KSR. She points out that by virtue of the provisions of Rule 3A, the appellants were justified in proceeding against the DCRG component. 8. Per contra, the learned counsel for the respondents contends that the provision of Rule 3A would not be applicable to the case at hand insofar as the disciplinary proceedings have already been concluded and DCRG can be withheld only during the pendency of the proceedings. 9. We have considered the rival submissions as well as the documents placed on record. 7 **Review Petition No.934 of 2015** 10. The only point to be considered in this review petition is as to whether the judgment dated 19.06.2015 in W.A.No.1396 of 2010 requires to be reviewed in any manner on the basis of the proceedings dated 15.07.2010 of the Divisional Forest Officer, referred to above. 11. It is true that by the said proceedings, a liability of Rs.1,78,795/- is fixed against the respondent herein. The Division Bench, while disposing of the writ appeal has summarised the applicability of Rules 3 and 3A of Part III KSR in paragraphs 25 and 26 as under: “25. There is no ambiguity in the statutory provisions under Rule 3 and Rule 3A on account of the following reasons; (i) Rule 3 primarily concerns recovery of amount from the pension of an employee which does not include DCRG when there is a departmental or judicial proceeding pending against him. Note 2 of Rule 3 permits the Government to recover any liability fixed on the employee from the DCRG even without a departmental or judicial proceeding. This process can be done after giving notice to the employee/pensioner. Such fixation of liability in terms of Note 3 has to be done before retirement or within three years from the date of retirement. (ii) Rule 3A contemplates a different situation where the departmental or judicial proceeding is pending against a pensioner at the time of his retirement. He 8 **Review Petition No.934 of 2015** is given provisional pension till the conclusion of proceedings. But, DCRG will not be paid till conclusion of the said proceedings. (iii) It is therefore apparent that both the provisions contemplates different situations as stated above. Further, there is no reason for the courts to take a different view from the literal construction given to the words in the statute. (iv) As far as Ruling No.5 in Rule 116 is concerned, it contemplates a situation different in which no departmental/judicial proceeding is pending against the pensioner. (v) Rule 59B of Part III also operates in a different field where the Government is given a right to reduce the pension if the service of the employee was not found to be satisfactory. 26. All these statutory provisions operate in different fields and cannot be the basis for overlooking a specific statutory provision which permits withholding of DCRG during the pendency of departmental or judicial proceedings.” 12. The amount that is being withheld was the DCRG component alone. As regards the application of Rule 3, Note 2 of Part III KSR specifically says that pension does not include DCRG. However, liabilities fixed against an employee or pensioner can be recovered from the DCRG payable to him without departmental or judicial proceedings after giving notice to the pensioner or employee. But here, the time limit under Note 3 – quantification of the liability and intimation within a period of 3 years would become 9 **Review Petition No.934 of 2015** applicable. Here, the petitioner retired from service on 31.12.2002 and the quantification admittedly is on 15.07.2010. Therefore, reliance cannot be had on Rule 3 for sustaining the steps taken by the appellants herein. As regards Rule 3A, though the same operates in a different situation, the provisions only interdict payment of DCRG till such time the departmental proceedings are pending. Here, the proceedings are already concluded and Rule 3A does not provide for realisation of the dues from the DCRG. 13. In view of the above propositions, culled out from the judgment of the Division Bench, sought to be reviewed, we find no reason to review the judgment dated 19.05.2010 in W.A.No.1396 of 2010 on the basis of Annexure I proceedings of the Divisional Forest Officer, Munnar, dated 15.07.2010. Therefore, the captioned review petition is dismissed. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** Skk//17.07.2024