A government servant is entitled to pensionary benefits upon acquittal, regardless of pending appeals, as acquittal confirms innocence and prohibits arbitrary withholding of pension.

JUDGMENT :

A.Muhamed Mustaque, J.

The point that arises for consideration is whether a Government servant who retired while a criminal case was pending is entitled to pensionary benefits on acquittal, despite the Government having preferred an appeal against such acquittal, and the same is pending before the Court. This point arises in the context of Rule 3 of Part III, KERALA SERVICE RULES (KSR).

Brief facts involved in this case are as follows:

2. The respondent, who was the applicant before the Tribunal, retired from the service of the Water Resources Department on 31/05/2020 as Chief Engineer. The respondent was granted only a provisional pension under Rule 3A(a) of Part III, KSR due to the pendency of criminal proceedings. At the time of retirement, an appeal was pending before the High Court against the judgment, dated 17/10/2018, of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur, acquitting the respondent. The prosecution alleged that the respondent, along with the other accused, misappropriated Rs. 86,558.55/- by committing forgery and making false entries in the ‘M’ book. It was categorically found by the Vigilance Court that the prosecution failed to prove that the respondent, along with the other accused, made false entries in the ‘M’ books. Accordingly, the respondent was acquitted. Since the respondent was not paid pensionary benefits even after her acquittal in the year 2018, she approached the Tribunal seeking the release of gratuity and pensionary benefits due to her. The Tribunal allowed her prayers. The State has come up with this original petition challenging the Tribunal’s order.

3. The learned Government Pleader, pointing out Rules 3 and 3A(a) of Part III, KSR and placing reliance on judgment of the Apex Court in The Secretary, Local Self Government and v. K. Chandran [ 2022 (2) KHC 523 ] argued that since an appeal is pending, which is a continuation of the trial proceedings, the respondent is not entitled for pension. Per contra, the learned counsel for the respondent placed reliance on Chandran’s case (supra) and argued that the respondent has been found innocent, and the presumption of that innocence will continue, and therefore, Rule 3 or 3A of Part III, KSR cannot be relied on to deny the pensionary benefits due to the respondent. It is further submitted by the learned counsel for the respondent that more than 3 years have lapsed since the respondent’s retirement, and no liability certificate has also been issued. Therefore, the respondent is entitled to all pensionary benefits.

4. We shall now advert to the relevant portion of Rule 3 of Part III, KSR.

“3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement..”

5. It is also appropriate to refer to the relevant portion of Rule 3A of Part III, KSR.

“3-A.(a) (b) Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the p