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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, T.R. RAVI, JJ.
Travancore Devaswom Board – Appellant
Versus
D. Sreekumar – Respondent
W.A. No. 1407 of 2019
Decided On : 17-02-2021
Kerala Service Rules – Rule 3 – Indian Penal Code, 1860 – Sections 468, 471 and 201 – Prevention of Corruption Act – Sections 13, 15– Misconduct – Recovery of excess pension – Writ petitioner had earlier served the appellant Travancore Devaswom Board and he had retired from service of the appellant Devaswom Board while holding the post of Sub-Group Officer (Higher Grade) – Earlier while he was in service, the Vigilance and Anti-Corruption Bureau, Special Investigation Unit, under the Directorate of Vigilance and Anti-Corruption Bureau, Thiruvananthapuram, had registered a Crime as Vigilance Case, against him, in which the writ petitioner has been arrayed as the sole accused alleging commission of offences punishable under Sections 468, 471 and 201 of the IPC and Sections 15 read with Section 13(1)(d) of the Prevention of Corruption Act.
Finding of the court: It is ordered that the competent authority of the Travancore Devaswom Board may consider if necessary after securing necessary legal advice as to whether a case of grave misconduct or negligence as against the petitioner has been proved and found in Ext.P6 judgment, and the Board is prima facie satisfied they may issue show cause notice to the petitioner disclosing the basic factual aspects in that regard and calling upon the writ petitioner to give his written response thereof within a stipulated time. – Such show cause notice may be immediately issued by the Board to the writ petitioner without much delay preferably within a period of one month from the date of receipt of a certified copy of this judgment and the petitioner may give reply to any such show cause notice within two weeks thereafter and thereafter the competent authority of the Devaswom Board may afford reasonable opportunity of being heard to the writ petitioner through his authorised representative or counsel if any, and then may take a considered decision as to whether a case of grave misconduct or negligence as understood in Rule 3 Part III KSR is proved or found against the petitioner on the basis of Ext.P6 judgment of conviction of the criminal court and if so, the reasons thereof may be stated and then take a considered decision as to whether any order should be passed in terms of Rule 3 Part III KSR in the matter of withholding of pension of the petitioner and if so, to what extent and also bearing in mind that the maximum withholding cannot exceed 1/3rd of the pension that could be sanctioned to the pensionary concerned. – This process should be duly completed by the Government authority of the Travancore Devaswom Board within the outer time limit of two months from the date of production of a certified copy of this judgment. – Court make it clear that none of the observations herein above shall be construed even remotely as an expression of opinion on our part regarding the merits of the controversy in relation to the proceedings under Rule 3 Part III KSR and we have made the abovesaid orders and directions since the learned Single Judge has left the matter which might lead to the delaying of further proceedings and also in view of the specific stand taken by the appellant Devaswom Board in Para No. 4 of the Statement filed in this appeal. – Needless to say, it is for the competent authority of the appellant Board to independently exercise its discretion in the matter and if necessary after taking appropriate legal advice. – It is ordered that the impugned judgment rendered by Single Judge in W.P. (C) will stand modified as above.
Result: Writ Appeal Disposed of.
JUDGMENT :
ALEXANDER THOMAS, J.
1. The respondents in W.P. (C) No. 42482/2018, filed by the respondent herein (writ petitioner) have instituted the present intra court appeal under Section 5(i) of the Kerala High Court Act so as to impugn the judgment dated 03.04.2019 rendered by the learned Single Judge in W.P. (C) No. 42482 of 2018.
2. Heard Sri. C.K. Pavithran, the learned Standing Counsel for the Travancore Devaswom Board appearing for the appellants/respondents in the writ petition (civil) and Sri. T.B. Hood, the learned Advocate appearing for the sole respondent in the writ appeal/the sole writ petitioner.
3. The writ petitioner had earlier served the appellant Travancore Devaswom Board and he had retired from service of the appellant Devaswom Board while holding the post of Sub-Group Officer (Higher Grade) on 30.06.2015. Earlier while he was in service, the Vigilance and Anti-Corruption Bureau, Special Investigation Unit, under the Directorate of Vigilance and Anti-Corruption Bureau, Thiruvananthapuram, had registered a Crime as Vigilance Case, VC/2/2002/SIU against him, in which the writ petitioner has been arrayed as the sole accused alleging commission of offences punishable under Sections 468, 471 and 201 of the IPC and Sections 15 read with Section 13(1)(d) of the Prevention of Corruption Act.
4. Later, it appears that the Investigating Officer of the Vigilance and Anti-Corruption Bureau, Special Investigation Unit, Thiruvananthapuram, had completed the investigation in the said vigilance case and had submitted final report/charge sheet in VC/2/2002/SIU, and thereupon the competent criminal court concerned, viz. the court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, had taken cognizance of the offences alleged against the writ petitioner, which then led to the institution of Calendar Case, C.C. No. 11/2011. Further, it appears that during the pendency of the investigation of the vigilance case, the writ petitioner was suspended from service and later he was reinstated to the service. It is thereafter that the writ petitioner had retired from service on 30.06.2015. Ext.P-1 is the pension payment order dated 22.12.2015, issued in favour of the writ petitioner by the appellant Travancore Devaswom Board. Later, it appears that Ext.P-3 notice dated 05.01.2017 was issued by the appellant Board stating that since judicial proceedings within the meaning of Rule 3 Part-III Kerala Service Rules (KSR) was pending after the criminal court had taken cognizance on the final report/charge sheet filed by the vigilance police, the writ petitioner is entitled only for the benefit of provisional pension and not full pension, in view of the mandatory provisions contained in Rule 3A Part-III KSR and directions have already been issued as per Ext.P-3 that the excess pensionary amounts drawn by the writ petitioner on the basis of Ext.P-1, pension payment order will have to be refunded by him. Further it appears that the said direction in Ext.P-3 to the limited extent it involves refund and recovery of the excess pension amounts has already been stayed by this Court as per Ext.P-4 interim order dated 27.02.2017 in W.P. (C) No. 5946/2017, filed by the writ petitioner. It is stated that the said writ petition (civil) is still pending consideration.
5. Later, Ext.P-5 proceedings dated 04.08.2017 has been issued by the appellant Board ordering that the admissible total DCRG (Death Cum Retirement Gratuity) amount payable to the writ petitioner consequent to his retirement is Rs. 7,24,605/- and further it appears that the appellant Board authorities have no case that any liabilities as envisaged in Note 2 and Note 3 of Rule 3 Part-III KSR have been fixed or proposed to be fixed as against the writ petitioner. Later, the trial in the abovesaid Calendar Case, C.C. No. 11/2011 (arising out of the abovesaid VC/2/2002/SIU) had commenced and the criminal court concerned, viz. the court of Enquiry Commissioner, Thiruvananthapuram, has
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