K.S. Radhakrishnan, J.

Can a portion of the death-cum-retirement gratuity be withheld after retirement without initiating any disciplinary proceedings while in service, is the question that has come up for consideration in this case.

2. Petitioner retired from the service of the Cochin Devaswom .Board as Devaswom Assistant Commissioner on 31.1.2003. An amount of Rs.1,67,937/- was sanctioned to him towards death-cum-retirement gratuity; but was not disbursed for want of non liability certificate. Cochin Devaswom Board by its proceedings dated 15.4.2004 provisionally fixed Rs.30,603/- as the liability of the petitioner. Sanction was accorded by the Devaswom Board, vide order dated 14.6.2004 to disburse the death-cum-retirement gratuity withholding an amount of Rs.30,603/-. Petitioner is aggrieved by the said order and has approached this Court seeking a direction to the Devaswom Board to issue non liability certificate and to disburse the entire amount of death-cum-retire merit gratuity with interest.

3. Devaswom Board has filed a statement on 1.3.2004 suiting that without finalizing the liability, balance amount of death-cum-retirement gratuity cannot be disbursed. Reply affidavit has been filed by the petitioner contending that the Board has no legal right to withhold the death-cum retirement gratuity since no departmental proceeding was initiated against him before retirement and no liability was fixed. Counsel took us through the various provisions of the Kerala Service Rules and also referred to the decisions of this Court in Director of Health Service v. Paul, 1992 (1) KLT 313, Sreedharan Pillai v. State of Kerala, 1997 ILR (2) Ker. 468, and Gopinathan Nair v. State of Kerala, 1992 (1) KLT 859. Counsel appearing for the Board referred to R.3(b) of Chapter 1 of Part III Kerala Service Rules and contended that even after retirement departmental proceeding can be initiated against an employee. Reference was-also made to the decision in Sosamma v. L.P. School, Parpacode, 2001 (2) KLT SN 30, Jayarajan v. State of Kerala, 2001(3) KLT 929, and Clement Lopez v. State of Kerala, 1998 (2) KLT SN 62. Counsel for the petitioner took us through the entire facts of the case and contended that the, attempt to with held part of the death-cum-­retirement gratuity amount is mala fide and only to wreck vengeance on the petitioner.

4. We are in this case concerned only with the question whether the Board has the right to withhold portion of the death-cum-retirement gratuity in a case where no departmental proceeding was initiated while the Petitioner was in service. The rule which is applicable to consider the question is R.3, Chapter 1 of Part III KSR. Relevant portion of the same is extracted below:

3. 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 and rendered upon re-employment, after retirement.

Provided that-­

(a) such department proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall-be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service;

(b) such departmental proceeding, if not instituted while the employee was in service whether before his retirement or during-his re-employment

(i) shall not be instituted-save with the sanction of the Government.

(ii) shall not be in respect of any event which took place more than four years before such institution; and

(iii) shall be conducted by such authority and in such p