Bhaskara Hegde vs State of Kerala and Others

K. Thankappan, J.—The Petitioner has approached this Court for a direction to the Respondents to disburse his D.C.R.G and full pensionary benefits.

The Petitioner retired from service on 31st January 2002 while working as Special Tahsildar (LR), Kanhangad, Nileshwar. The grievance of the Petitioner is that only provisional pension has been granted to him so far.

The learned Government Pleader appearing for the Respondents submits that the Petitioner was not granted D.C.R.G. and full pensionary benefits as a Vigilance Case, V.C. No. 10 of 2000 was pending against him before the Vigilance and Special Judge, Kozhikode and the charge levelled against him was under the Prevention of Corruption Act for accepting a bribe of Rs. 500. In paragraph 5 of the counter-affidavit filed for and on behalf of the first Respondent, it is stated as follows:

It is humbly submitted that, the averment that the Petitioner was being victimised in frivolous vigilance prosecution is not true. He is being prosecuted on the basis of evidence. The Petitioner is not being prosecuted against for imposition of major penalty. D.C.R.G. has not been paid since disciplinary action against the Petitioner is continuing as provided in Rule 3A(a) Part III, K.S.R''s.

Hence, according to the Respondents, as per the provisions contained in Rule 3A(a), Partin of the Kerala Service Rules, the Petitioner is not entitled for D.C.R.G. or full pension. Rule 3A(a), Part III of the Kerala Service Rules reads as follows:

Where any departmental or judicial proceeding is instituted under Rule 3 or where a departmental proceeding is continued under Clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise, he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension ''which would have been admissible on the basis of his qualifying service upto the date of retirement or if he was under suspension on the date of retirement, upto the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.

Rule 3A(a) is introduced with a view to implement Rule 3, Part III of the Kerala Service Rules. Rule 3 reads as follows:

The Government reserve to themselves the right of withholding or 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 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.

From a reading of Rule 3, it can be seen that the Government reserves the right of withholding or withdrawing pension of an employee or any part thereof to adjust the loss caused to the Government. Rule 3 of the Kerala Service Rules is interpreted by this Court in the decision reported in George v. Tahsildar, Cochin 1992 (2) KLT 919. In paragraph 5 of the Judgment, this Court held as follows:

As per this rule, Government has got the right of withholding or withdrawing a pension and right to order recover from the pension whole or part of any pecuniary loss caused to the Government. This power of the Government can only be exercised for recovering the pecuniary loss caused to the Government. If the misconduct alleged against the Government servant is not one causing pecuniary loss to Government, no proceeding as contemplated by Rule 3 or Clause (a) of the proviso to that rule can come into operation.

In Jayarajan v. State of Kerala 2001 (3) KLT 929, this Court held that the power under Rule 3 of the Kerala Service Rules for reducing pension can be exercised on the allegation of pecuniary loss to the Government.

On a reading of the decisions referred to above as well as Rule 3 of the Kerala Service Rules, this Court is of the view that the very purpose of Rule 3 is for adjusting the loss sustained by the Government due to the action of a Government employee. Mere pendency of a criminal proceeding against an employee will not cause loss to the Government. Therefore, this Court is of the view that the Petitioner is entitled to D.C.R.G. and full pensionary benefits. Hence, there will be a direction to the Respondents to disburse the D.C.R.G. and pensionary benefits to the Petitioner within three months from the date of receipt of a copy of this Judgment.

The Original Petition is allowed as above.