Allowed

Majeed K.S. v. State of Kerala

Kerala HC5 Oct 2020OP(KAT)/104/2020

Case brief

AI extract

What is this about?

The High Court allowed a petition challenging an Administrative Tribunal order that withheld full pension due to pending vigilance case. The Court held that since the Magistrate had not taken cognizance, judicial proceedings were not instituted, entitling the retiree to regular pension.

What did the court decide?

Government directed to pay regular pension and other pensionary benefits to the applicant.

Majeed K.S. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942

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OP(KAT).No.104 OF 2020

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AGAINST THE ORDER DATED 18.12.2019 IN OA (EKM) 2016/2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/APPLICANT IN OA:

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MAJEED K.S. AGED 56 YEARS S/O.SAIDUMUHAMMED.A.K., RESIDING AT PARAYIL HOUSE, KARUKADOM.P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT686691, (RETIRED FROM THE POST OF EXECUTIVE ENGINEER, K.P.I.P., DIVISION NO.1), IRRIGATION DEPARTMENT, PALAKKAD, PERALA-678591.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA SMT.T.S.LIKHITHA

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RESPONDENTS/RESPONDENTS IN THE OA:

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1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695033, KERALA.

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3 THE CHIEF ENGINEER, PROJECTS-1, CAUVERY HOUSE, WEST HILL, KOZHIKODE673005, KERALA.

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O.P.(KAT).No.104/2020

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4 THE ACCOUNTANT GENERAL ( A AND E), THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695039, KERALA.

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SRI. P.N. SANTHOSH- SR. G.P.

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(KAT).No.104/2020

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JUDGMENT

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Dated this the 5^th day of October 2020

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Shaffique, J

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This original petition has been filed by the applicant in O.A. (EKM).No.2016/2019 challenging the order dated 18.2.2019 passed by the Kerala Administrative Tribunal. The petitioner retired from service as Executive Engineer in the Irrigation Department on 30.4.2019. He was not paid his pension and other benefits including DCRG. Hence he sought for a direction to disburse the pension and other benefits due to him. It was the contention of the State that judicial proceedings is pending against the applicant. Having taken note of the aforesaid factual aspect, the Tribunal directed that the applicant should be paid provisional pension and that on dropping of further action in the vigilance case, his regular pension and DCRG should be sanctioned. It is further directed that the disbursement of DCRG shall be subject to the applicant executing a bond as provided under Ruling 5 to Rule 116 of Part III KSR.

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The original petition is filed inter alia contending that the Tribunal committed serious error in directing only payment of provisional pension. Learned counsel appearing for the petitioner submits that provisional pension is payable in terms of Rule 3A(a) of

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O.P.(KAT).No.104/2020

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Part III KSR. In order to invoke the aforesaid Rule, a judicial proceedings should be instituted in terms of Rule 3 of Part III KSR. As per explanation to Rule 3 of Part III KSR, (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted-(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 congnizance is made; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court. It is argued that in the present case, no such enquiry is pending and so far no final report is submitted before the Magistrate and hence Rule 3A(a) has no application and consequently the petitioner is entitled for the entire pension.

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Learned counsel also placed reliance on the judgment of the Apex Court in State of Jharkhand & Others v. Jitendra Kumar Srivastava & Another [(2013) 12 SCC 210]. That was a case in which Rule 43 (b) of the Bihar Pension Rules, 1950 was considered by the Apex Court. At Paragraph 13 it was held as under:

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“13. A reading of rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension, etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the Rules for withholding of the pension/gratuity

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O.P.(KAT).No.104/2020

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when such departmental proceedings or judicial proceedings are still pending.”

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The learned Government Pleader while supporting the order of the Tribunal would however submit that the petitioner had retired from service on 30.4.2019. Steps are being taken to finalise the vigilance case. Under such circumstances, there is justification on the part of Tribunal in directing provisional pension to be paid in terms of 3A(a) of Part III KSR.

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To recover any amount from the pension of a retired employee involved in a criminal case, he/she has to be found guilty in terms of Rule 3 of Part III KSR. However, if a departmental proceedings or judicial proceedings is instituted, the Officer concerned is paid a provisional pension in terms of Rule 3A(a) of Part III KSR.

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In the case on hand, admittedly there is no departmental action against the applicant. Even though an enquiry is being conducted and a crime has been registered in the vigilance case, the final report has not been filed before the Magistrate. So the admitted position is that, the vigilance court has not taken cognizance of the case. Cognizance can be taken only when a final report is filed. Therefore, Rule 3A(a) of Part III KSR has no application in the case. Hence, until such judicial proceeding is instituted as contemplated under the explanation to Rule 3, the petitioner is entitled for regular pension.

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O.P.(KAT).No.104/2020

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In the result, the order passed by the Tribunal shall stand modified to the extent directing the Government to pay regular pension to the petitioner and other pensionary benefits, of course, subject to the right of the Government to take appropriate action in accordance with law. The original petition is disposed of as above.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

True copy

JUDGE

P.A. To Judge

O.P.(KAT).No.104/2020

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE O.A.NO.2016 OF 2019 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM (ADDITIONAL BENCH AT ERNAKULAM)

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ANNEXURE-P1(A1) TRUE COPY OF LETTER NO.FP5-1130/2019 DATED 12.6.2019 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT. ANNEXURE P1(A2) TRUE COPY OF LETTER NO.P.R.2101939401/P9/4/1019457609 DATED 22.8.2019 SENT TO THE 3RD RESPONDENT BY 4TH RESPONDENT. ANNEXURE P1(A3) TRUE COPY OF THE LETTER NO.RTI32716/2019/DVACB DATED 7.11.2019 OF STATE INFORMATION OFFICER, DIRECTORATE, VACB, THIRUVANANTHAPURAM ADDRESSED TO THE APPLICANT. EXHIBIT P2 TRUE COPY OF THE FINAL REPORT DATED 19.2.2015 FILED BY THE INVESTIGATING OFFICER IN VC-12/2015/CRE.

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 18.12.2019 IN O.A.(EKM.) NO.2016/2019 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM (ADDITIONAL BENCH AT ERNAKULAM.)

Majeed K.S. v. State of Kerala

Case brief

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Majeed K.S. v. State of Kerala

Case brief

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