The right to obtain pensionary benefit is a right to property, and any losses caused to the State or Board must be protected.

A. Muhamed Mustaque, J.

1. The petitioner entered in the service of Kerala State Pollution Control Board as Assistant Engineer on 28.07.1978. The petitioner thereafter was promoted on higher cadre and finally was appointed as full time Member Secretary of the Kerala State Pollution Control Board on 16.04.2005. While petitioner officiating Member Secretary, he was appointed as Chairman of the Board. The date of superannuation of the petitioner was on 31.03.2010. The petitioner was appointed as Chairman of the Board on 31.08.2009. The petitioner was removed from the post of Chairman as per Government order dated 20.11.2010. Petitioner was able to continue after the superannuation on account of his appointment as Chairman of the Board. The petitioner was terminated in terms of Rule 5(3) of Water (Prevention and Control of Pollution) Act, 1974. Petitioner approached this Court for disbursal of pensionary benefits.

2. In this matter, a third party got impleaded as per I.A. No. 14381 of 2014. He points out that at his instance, petitioner along with others were trapped while accepting bribe of Rs. 15,00,000/-. It is further submitted that petitioner challenged his removal from service as per I.A. No. 11235 of 2010 and same was dismissed. It is also submitted that Government has granted permission for him to initiate criminal action against the writ petitioner. The intervener opposed granting terminal benefits to the petitioner.

3. The Board filed a counter affidavit through Member Secretary. In the counter in para 5, it is stated as follows:

"As the petitioners service for the period from 01.04.2010 to 21.11.2010 was not treated as re-employment, he continued to receive the same salary which he was receiving earlier. Hence Government was also addressed to consider the same to fix the salary for the above period vide letter No. PCB/E2/949/10 dated 07.12.2011 which is produced herewith and may be marked as Ext. R2(d)"

It is also stated in the counter, Board has sanctioned provisional pension to the petitioner with effect from 22.11.2010. In the counter affidavit filed by the Board, it would reveal that Board could not pay the pensionary benefits to the petitioner on account of the delay in responding to their request by the Government for treating the period from 01.04.2010 to 21.11.2010.

4. The right to obtain pensionary benefit is a right to property as stated in the judgment of the Supreme Court in State of Jharkhand v. Jitendra Kumar Srivastava (2013 (3) KLT 782(SC)). There is no proceeding concluded against the petitioner for declining pensionary benefits. The criminal case against the petitioner is also not concluded. If any loss is caused to the State or Board on account of payment of terminal benefits, same has to be protected. Therefore, with a liberty to recover the same and without prejudice to the ongoing criminal prosecution, petitioner shall be paid his terminal benefits. The petitioner's claim for reckoning the period from 01.04.2010 can be decided only after obtaining the views of the Government.

In the light of the above, the following directions are issued:

"(i) The terminal benefits shall be paid to the petitioner, treating the date of superannuation on 31.03.2010, within a period of two months from the date of receipt of a copy of this judgment.

(ii) The benefit of the period from 01.04.2010 till 20.11.2010 can be reckoned only based on the decision of the Government.

(iii) Government shall take a decision for reckoning the period from 01.04.2010 till 20.11.2010 within a period of four months.

(iv) The payment of terminal benefits will not exculpate the petitioner from any of the criminal charges levelled against him nor will absolve him from any liability to the State or to the Board from proceeding for recovery."

The Writ Petition is disposed of. No costs.