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IN THE KERALA ADMINISTRATIVE TRIBUNAL AT

THIRUVANANTHAPURAM
(CAMP SITTING, ERNAKULAM)
Present:

The Hon'ble Mr. Benny Gervacis, Member

Dated this the 5th of September 2O18

OA[EKM]-54O/2O18
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Applicant(s):

K.Kishore Kumar, aged 62 years, S/o.K.B.Nambiar.,,Residing at Flat

No.303. Garden Apartments, Thiruvangad.P.O, Thalassery, Kannur-670
103,Executive Engineer (Retired), Project Implementation Unit,
P.M.G.S.Y. District Panchayat,Kannur,Kerala -0

By Advs. ELVIN PETER P J

Respondent(s):

1) State of Kerala, represented by the Secretary to Government ,Local Self

Government Department, (LSGD), Secretariat,Thiruvananthapuram -695 001 ,
Kerala -0

2) The Secretary to Government ,Irrigation Department, Thiruvananthapuram-695

001, Kerala -0

3) The Chief Engineer ,Local Self Government Department, 3rd Floor, Revenue
Complex, Public Office Compound,Thiruvananthapuram, Kerala -695033

4) The Chief Engineer ,Irrigation & Administration, Public Office

Building,Thiruvananthapuram, Kerala -695033

5) The Vigilance & Anti-Corruption Bureau-represented by its

Director,Thiruvananthapuram-695001 , Kerala -0

Sri. Shyam Prasanth T S - Government Pleader for Respondents

This having been finally heard on 5th of September 2O18, the

Tribunal on the same day passed the following:
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BENNY GERVACIS, MEMBER

=========================================

OA[EKM]. NO. 540 OF 2018

==========================================

DATED THIS THE 5TH DAY OF SEPTEMBER 2018

ORDER

        The applicant, an Executive Engineer in the Local Self

Government Department, retired from service on attaining the age of

superannuation on 28.02.2003, is before this Tribunal aggrieved by the

non disbursement of his pensionary benefits. The applicant it is stated has

only been disbursed with a provisional pension. The DCRG, commutted

value of pension and regular pension has been withheld as per Rule 3A

Part III KSR. It is stated that on retirement of the applicant a Vigilance

Case, VC 3/2010/PKD was pending against the applicant. The applicant

was arrayed as 3rd accused in the above Vigilance case. It is stated that

the final report was filed in the above case on 15.09.2015 and the same

has been taken on file by the Enquiry Commission & Special Judge,

Thrissur as CC.33/15. It is submitted that Rule 3A Part III KSR was not

applicable as far as the applicant is concerned since the cause of action

had occurred more than 12 years prior to the date of institution of the

judicial proceedings and that no sanction was obtained from the

Government before the initiation of the judicial proceedings. It is submitted

that in such circumstances Rule 3A Part III KSR cannot be extended and
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the pensionary benefits due to the applicant cannot be withheld.

        2. The fifth respondent has filed its reply statement in the

matter. It is stated that a vigilance case was registered against the

applicant under Section 13(1)(d) read with Section 13(2) of the Prevention

of Corruption Act, 1988 and Section 477-A and Section 120-B IPC. The

applicant was arrayed as the third accused therein. It is stated that a final

report has been submitted in the above matter and the charge sheet has

been accepted and the case is numbered as C.C.33/2015. The above

criminal case is pending trial before the Enquiry Commissioner and

Special Judge, Thrissur.

        3. It is stated that the criminal proceedings had been initiated

against the applicant prior to his retirement and the charge sheet filed

immediately after his retirement from service and in such circumstances

there was no requirement for a previous sanction from the Government. It

is submitted that on an employee retiring from service with departmental or

judicial proceedings pending against him, the employee was only eligible

for a provisional pension till the conclusion of such proceedings and no

gratuity was also payable until the conclusion of such proceedings and

issuance of final orders thereon. It is stated that insofar as the final report

was filed in the matter it has to be treated that a judicial proceeding was

pending against the applicant and therefore the applicant was not entitled

for disbursement of the DCRG or full pension till the conclusion of the

criminal proceedings. The respondents seek for a dismissal of the Original

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Application.

        4. Heard both sides. Learned counsel on both sides reiterate

their respective contentions.

    5. It is pointed out by the counsel for the applicant that as per

Rule 3(c) Part III KSR if no judicial proceedings had been instituted while

the applicant was in service, then it can be instituted only with the sanction

of the government in respect of a cause of action which had arisen or had

taken place more than four years of such institution. It is pointed out that

the cause of action for the vigilance case was a contract during 2003-2004

in the Irrigation Department. The applicant, who had initially entered

service in the Irrigation Department, had joined the Local Self Government

Department in the year 2004. The applicant retired from the Local Self

Government Department on 28.2.2013. It is submitted that the judicial

proceedings as per the Explanation to Rule 3 Part III can only be treated

as one instituted on the date of submission of Annexure A6 final report and

this was beyond the period specified in Rule 3(c) Part III KSR and

therefore it has to be treated as if there was no valid judicial proceeding

pending against the applicant. Rule 3A(a) Part III KSR was therefore not

applicable in the present case and the applicant was entitled for

disbursement of the pensionary benefits including the DCRG amount.

    6. The learned Government Pleader relies on the judgment of

the Division Bench of the Hon’ble High Court in State of Kerala and
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another v. R.Muraleedharan Nair, 2015 (3) KLT 755. Relying on the

above judgment it is submitted that an employee, who retires from service

with a pending judicial or departmental proceeding, is entitled only for

disbursement of provisional pension and he was not eligible for

disbursement of DCRG or gratuity amount till the conclusion of the judicial

proceedings. It is pointed out that judicial proceeding was instituted

against the applicant before his retirement from service and therefore

there was no necessity for obtaining sanction from the Government. The

learned Government Pleader therefore seeks for dismissal of the Original

Application.

    7. The rival submissions made at the Bar, the pleadings on both

sides and the materials on record are considered. The applicant retired as

an Executive Engineer from the Local Self Government Department on

28.2.2013. As on the date of retirement a vigilance case, VC-3/2010, was

pending against the applicant. A final report in the above vigilance case

was filed as per Annexure A6 dated 15.9.2015. On the above final report

being filed, the applicant has been charge sheeted and the vigilance case

is taken on files by the Court of Enquiry Commissioner and Special Judge,

Thrissur as CC-33/2015. The above vigilance case is pending trial.

    8. It is noted that as per Rule 3A(a) Part III KSR an employee,

who retires from service with a departmental or judicial proceeding

instituted against him under Rule 3 Part III KSR, was eligible only for a

provisional pension and no gratuity or DCRG was payable to him till the
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conclusion of such proceedings. Rule 3A(a) Part III KSR is extracted

herein:

“3A (a) Where any departmental or judicial

proceeding is instituted under rule 3 or where a

departmental proceeding is continued under clause

(a) of the proviso thereto, against an employee who

has retired on attaining the age of compulsory

retirement or otherwise, he shall be paid during the

period commencing from the date of his retirement to

the date on which, upon conclusion of such

proceeding final orders are passed, a provisional

pension not exceeding the maximum pension which

would have been admissible on the basis of his

qualifying service upto the date of retirement, or if he

was under suspension on the date of retirement, upto

the date immediately preceding the date on which he

was placed under suspension, but no gratuity or

death-cum-retirement gratuity shall be paid to him

until the conclusion of such proceeding and the

issue of final orders thereon.”

        9. As per the above provision the departmental or judicial

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proceedings pending against an employee was to be one instituted under

Rule 3 Part III KSR. A reference to Rule 3 is therefore called for. The

“Explanation” to Rule 3 is extracted herein:

“Explanation :- For the purpose of this rule –

(a) A departmental proceeding shall be deemed

to be instituted on the date on which the statement of

charges is issued to the employee or pensioner or if

the employee has been placed under suspension

from an earlier date, on such date; and

(b) A judicial proceeding shall be deemed to be

instituted—

(i) in the case of a criminal proceeding, on the date

on which the complaint or report of police officer on

which the Magistrate takes cognizance is made; and

(ii) in the case of a civil proceeding, on the date of

presentation of the plaint in the Court.”

As per the above explanation a criminal proceedings can be deemed to

be instituted only with effect from the date on which a complaint or report

of the Police Officer, on which the Magistrate takes cognizance, is made.

In other words, a criminal proceedings could be treated as being instituted

against the employee on a final report being filed and the Magistrate taking
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cognizance of the offence. In the present case, a final report Annexure A6

has been preferred on 15.9.2015. The judicial proceedings could be

considered as instituted against the applicant only with effect from the

above date, ie., 15.9.2015. However, it is to be noted that the applicant

had not chosen to approach this Tribunal or to take legal recourse for

disbursement of his retirement benefits immediately on his retirement.

The applicant has preferred this Original Application in the year 2018, five

years after his retirement as on which date a final report had been duly

filed in the mater and the vigilance case charge sheeted and numbered as

CC-33/2015. In view of the embargo in Rule 3A(a) Part III KSR, insofar as

a judicial proceeding was pending against the applicant, the applicant is

not entitled to the pension or DCRG and was only entitled for a provisional

pension which is being duly disbursed to the applicant.

    10. The contention raised placing reliance on Rule 3(c), though

attractive at the first blush, however, it has to be taken note of that the

vigilance case had been registered against the applicant while he was in

service and as on the date of preferring of this Original Application, the

above criminal case was charge-sheeted against the applicant and was

pending trial in C.C.33/2015. The reliance placed on Rule 3(c) to put forth

a contention that since the criminal case was instituted in respect of an

incident which took place more than four years before such institution, the

consent of the Government was necessary and therefore it has to be

treated as if there was no criminal proceedings at all, cannot be

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countenanced at this extent of time.

        The Original Application therefore fails and is accordingly

dismissed.

BENNY GERVACIS,

MEMBER

ahg.
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APPENDIX

OA[EKM]-54O/2O18

APPLICANT'S ANNEXURES:

True copy of the order No. P-

Annexure A1- 03/2101393116/1/P/13/10/70201991 dated 7.9.2013 of the
Accountant General (A&E) Kerala, Thiruvananthapuram.

True copy of the R.O (Rt) No. 1023/2010/WRD dated

Annexure A2-
17.8.2010.

True copy of the judgment dated 16.9.2010 in W.P (C) No.

Annexure A3-
27747/2010 of this Hon'ble Court .

True copy of the G.O (Rt) No. 4039/10/LSGD dated

Annexure A4-
29.12.2010.

True copy of the communication No. E1/2700/2011/CE/LSGD

Annexure A5-
dated 6.1.2011 to the Project Engineer, P.A.U., Kannur.

True copy of the final report in VC 3/2010/PKD filed by the

Annexure A6-
Vigilance Officer.

True copy of the order dated 10.12.2014 in O.A. No.

Annexure A7- 475/2014 of this Hon'ble Tribunal (as per in M.A. (EKM) No.
1650/2018.