JUDGMENT :

The petitioner, while serving as Overseer in the KSEB Limited, was suspended from service on 16.11.2019. The charges levelled against the petitioner were the registration of a crime and unauthorised absence from duty. Against the order of suspension, petitioner preferred an appeal before the Suspension Review Committee (Lower). By Exhibit P2 order dated 25.4.2020, the appeal was allowed and the petitioner directed to be reinstated in service. Accordingly, petitioner was reinstated under Exhibit P3 order dated 30.4.2020. The petitioner retired from service on 30.05.2020, exactly one month after his reinstatement. Thereafter, the disciplinary proceedings initiated against the petitioner was finalised by Ext.P4 order dated 23.06.2020 and a penalty of withholding of one increment for six months was imposed on him. Even though the petitioner challenged that order in appeal, the appeal was closed, affirming the finding of the disciplinary authority and observing that the penalty will be reconsidered as and when the criminal case pending against the petitioner is finalised. The petitioner is being disbursed with only half his eligible pension and on enquiry, he was informed that full pension will be paid only after the culmination of the criminal case. The prayer in this writ petition is to direct the respondents to disburse full pension to the petitioner.

2. Learned counsel for the petitioner submitted that, except full pension, all other retirement benefits have been disbursed, Denial of full pension is illegal, since pension can be withheld only if judicial proceedings was instituted prior to the petitioner’s. retirement. In support of the contention, reliance is placed on Explanation (b) to Rule 3 of Part III K.S.R. and the decision in Paulose v. State of Kerala [1998 (1) KLT 117].

3. Heard Advocate Ravikrishnan for the petitioner and Standing Counsel K.S.Anil, for the KSEBL.

4. The moot question is whether mere pendency of a criminal case can result in withholding of pension. Under Rule 3 of Part III KSR the Government has the power to withhold or withdraw the pension or any part of it if the pensioner is found guilty of grave misconduct or negligence during a departmental or judicial proceeding. Rule 3A of Part III KSR stipulates that where any departmental or judicial proceeding is instituted under Rule 3 against an employee who has retired, he shall be paid only provisional pension till the conclusion of such proceeding. The ancillary question therefore is whether judicial proceedings instituted against the petitioner prior to his retirement. To find the answer, reference should be made to Explanation (b) to Rule 3 of Part III. As per Explanation b(i) of Part III, in the case of criminal proceedings, the judicial proceedings shall be deemed to be instituted on the date on which the complaint or report of the Police Officer, on which the Magistrate takes cognizance, is made. This position has been categorically laid down in Paulose's case (supra).

5. In the instant case, Crime No. 685/2019 was registered against the petitioner at the Parassala Police Station on 30.05.2019 for offences under Section 406, 420, 468 and 471 read with 34 of IPC. The final report was filed on 16.04.2021 and the jurisdictional Magistrate took cognizance of the offences on 18.01.2022. The petitioner having retired from service on 30.05.2020, much prior to the filing of the final report and taking cognizance, the respondents cannot rely on Rule 3A of Part III K.S.R. to contend that the petitioner is entitled only for provisional pension.

6. The learned Standing Counsel for the respondents would submit that the position would change if the petitioner is convicted in the criminal case, which argument I find to be in tune with Rule 3 of Part III KSR.

7. Having thus carefully scrutinised the Explanation to Rule 3 and the wording of Rule 3A(a) of Part III K.S.R and the decision in Paulose, I find that, presently the respondents cannot withhold the petit