R.3 of Part III of the Kerala Service Rules allows recovery from a pension only if a pensioner is found guilty of grave misconduct or negligence during the period of service, and recovery is made to recompense the Government for the loss caused by the pensioner.

1. The petitioner was an Assistant Engineer in the Mechanical subdivision of the Public Health Engineering Department, Trivandrum. Under him worked one Govindan Nair who was the Chief Driller. Certain charges were framed against the petitioner as well as against Govindan Nair. The charges against the petitioner read as follows:

"I, That you, Shri P. Kolappa Pillai, while employed in Government service as Assistant Engineer, Mechanical Sub Division, P.H.E.D., Trivandrum, failed to exercise proper check and supervision over the maintenance of log books of vehicles and pump house engines by the Chief Driller and facilitated malpractices and misappropriation by the Chief Driller Shri M. Govindan Nair, of consumable articles such as petrol, diesel oil, etc., to the tune of Rs. 12537.53 causing loss to Government,

II. That you tailed to check-measure the repairs alleged to have been effected on the vehicles by Shri M. Govindan Nair, Chief Driller, and thereby enabled him to manipulate measurement books, vouchers etc., and to misappropriate spare parts of vehicles."

2. The charge memo is dated 10-11-1970 (Ext.P1). The petitioner retired on 25-5-1973. Till then the charges were not proceeded with. However, on 26-6-1973 the Government referred the matter to the Tribunal for Disciplinary Proceedings to conduct an enquiry. The Tribunal found that charge No. II was not proved against the petitioner. On charge No. I the Tribunal stated:

"Charge No.1 against Al is proved to the extent that he failed to supervise A2 (Govindan Nair) in the maintenance of log books of vehicles and pump house engines by A2 and facilitated malpractices and misappropriation by A2".

3. As regards Govindan Nair the Tribunal found:

"A2 is guilty of charge No.I. He is also guilty of charge No. II to the extent that he falsified and fabricated the records and accounts with the intention of dishonestly misappropriating petrol and diesel required for the running of pump bouses as discussed under Charge No. II against him. Prosecution has not succeeded in proving the actual amount misappropriated by A2 under charge No. II. Charge Nos. III and IV are not proved against A2."

4. I have referred to the Tribunal's finding regarding Govindan Nair only to show that there was no finding as to the amount misappropriated by him. As against the petitioner who was Al before the Tribunal there was no specific charge that he misappropriated any amount or that he caused any specific loss to the Government.

5. The question is whether the Government was justified in ordering under Ext. P5 dated 10-4-1978 as follows:

"They accept the advice of the Commission and order that (i) a sum of Rs. 5/-p.m. be reduced permanently from the pension of Sri P. Kolappa Pillai, Assistant Engineer (retired; P.H.E.D., Trivandrum, and (ii) "

The contention of the petitioner is that, insofar as there is no finding of loss to the Government, R.3 of Part III of the Kerala Service Rules cannot avail the Government to make the order which it has passed. In answer to this contention the Government Pleader points out that in the light of the decisions of this Court, particularly in Vasudevan v. Secretary to Government (Vigilance (B) Department (1979 KLT. 489), the Government can withhold or recover any amount even without proving actual loss. This is because, the Government Pleader submits, the proceedings under the Kerala Civil Services (Classification, Control & Appeal) Rules is transmuted, as pointed out by this Court in 1979 KLT.-489, as a proceeding under the Kerala Service Rules.

6. It is true that the proceeding is transmuted but only "for the limited purpose contemplated by R.3 of Part III of the K.S.R "(1979 KLT. 489, 492). The limited purpose for which power is conferred on the Government under R.3 of Part III of the K S.R. is what is stated in that rule:

"The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified perio