The crucial date for the commencement of a judicial proceeding is when a Magistrate takes cognizance of the offence based on a complaint or a report of a Police Officer, as per the provisions of the K.S.R. and the Police Act.

C.S. Rajan, J.

The petitioner retired from service on 31.8.1996 as Superintending Engineer in the Irrigation Department. As per Ext. PI order dated 21.1.1997 the third respondent admitted the pensionary claims of the petitioner including DCRG, family pension and commuted value of pension. By Ext. P2 dated 24.9.1996, the Superintending Engineer submitted to the second respondent the Non Liability Certificate in respect of the petitioner for the periods from 15.5.93 to 1.9.94,1.9.94 to 28.3.95 and from 5.4.95 to 18.9.95. By Ext. P3, the Superintending Engineer submitted to the second respondent the Non Liability Certificate for the period from 19.9.95 to 31.8.96. Thereafter by Ext. P4 dated 15.4.97 the second respondent sanctioned only a provisional pension being 75% of the full pension. This was on the basis of R.3A(a) of Part III of the K.S.R. Ext. P4 also stated that six cases are pending finalisation against the petitioner in the Vigilance branches of the Department. Therefore, the petitioner has filed this Original Petition to grant all the retirement benefits pursuant to Exts. PI to P3.

2. Statements have been filed on behalf of the second respondent and the Directorate of Vigilance and Anti-corruption Bureau, Thiruvananthapuram. The statements show that the Director of Vigilance Investigation has registered a criminal case against the petitioner along with others in the Vigilance Police Station, Ernakulam as per Crime Case No. 5/96 under S.13(2) read with S.13(1)(c) and (d) of Police Act. The case is under investigation. The statements further show that although the case has been registered during September, 1996, its investigation is still in the preliminary stage due to huge quantum of work to be undertaken towards its completion.

3. Sri. S. Subash Chandh, learned counsel appearing for the petitioner submits that there is nojudicial proceeding or departmental proceeding pending against the petitioner on the date of his retirement and therefore, the provisions contained in R.3A(a) are not applicable in the case of the petitioner. Therefore, it is necessary to refer to the relevant provisions contained in Part III of the K.S.R. According to R.3 the Government reserve the right of withholding or withdrawing a pension or any part of it, and the right of ordering the recovery from a pension 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. According to the proviso, such departmental proceeding, if instituted while the employee was in service shall be deemed to be a proceeding under this Rule and shall be continued and concluded by the authority after his retirement. The Explanation to the above rule prescribes when and how the departmental and judicial proceedings are instituted. The above explanation is re-produced hereunder:

"Explanation: - For the purpose of this Rule -

(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 cognizance is made; and

(ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court." R.3A(a) on which the respondents rely on reads as follows:

"3-A(a). Where any departmental or of judicial proceeding is instituted under R.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 a