Kerala High Court
State Of Kerala vs Venugopal S on 7 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
OP(KAT) NO. 148 OF 2021
AGAINST THE ORDER IN OA (EKM) 1433/2020 DATED 16-10-2020 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
(ADDL.BENCH, ERNAKULAM.)
PETITIONERS/RESPONDENTS 1 TO 3 IN O.A (EKM) :
1 STATE OF KERALA, REPRESENTED BY THE
SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF PANCHAYATS,
PUBLIC OFFICE BUILDING, MUSEUM P.O.,
THIRUVANANTHAPURAM-695 033.
3 THE DEPUTY DIRECTOR OF PANCHAYATS
PUBLIC OFFICE BUILDING, MUSEUM P.O.,
THIRUVANANTHAPURAM-695 033.
4 THE ACCOUNTANT GENERAL (A&E)
OFFICE OF THE ACCOUNTANT GENERAL (A&E),
THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL.
RESPONDENT/APPLICANT IN O.A(EKM) :
VENUGOPAL S, S/O. D.SUKUMARAN NAIR, D.S.NILAYAM,
EZHUPUNNA SOUTH P.O., PIN-688 537, NOW RESIDING AT
KUTTYKKATTU HOUSE, 38/1131, (BMRA) 101, BALAKRISHNA
MENON ROAD, EDAPPALLY, KOCHI, ERNAKULAM-682024.
BY ADV.SRI. LINDON C. DAVIS.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P (KAT) No.148 OF 2021
2
ALEXANDER THOMAS & A.BADHARUDEEN, J J.
------------------------------------------------
O.P (KAT) No.148 OF 2021
[Arising out of the impugned final order in O.A (Ekm) No.1433 of 2020 dated 16-10-2020
on the file of the KAT, Addl.Bench, Ekm.]
----------------------------------------------------
Dated this the 7th day of July, 2021
JUDGMENT
ALEXANDER THOMAS, J
Respondents 1 to 3 in O.A (Ekm) No.1433 of 2020 on the file of
the Kerala Administrative Tribunal, Ernakulam Bench, being
aggrieved by Ext.P2 final order dated 16-10-2020 rendered by the
Tribunal in the said O.A, have approached this Court by filing the
instant O.P under Articles 226 & 227 of the Constitution of India.
2. The prayer in the afore captioned O.P(KAT) is as follows
{See page Nos.7 & 8 of the paper book of the OP(KAT)} :
" ............. to set aside Exhibit P2 Order dated 16-10-2020 in OA
(EKM) No.1433/2020, on the file of the Kerala Administrative
Tribunal, Additional Bench, Ernakulam by allowing this
original petition."
3. Heard Sri.B.Unnikrishna Kaimal, learned Government
Pleader appearing for the petitioners (State of Kerala and others) in
the O.P/respondents 1 to 3 in O.A and Sri.Lindons C.Davis, learned
counsel appearing for the respondent herein in O.P/applicant in O.A
before the Tribunal.
4. The prayers in the instant Ext.P1 O.A(Ekm) No.1433 of
O.P (KAT) No.148 OF 2021
2020, filed by the respondent herein before the Tribunal, are as
follows {See page No.18 of the paper book of the OP(KAT)} :
i) To direct the respondents to forthwith disburse the DCRG of the
applicant;
ii) To direct the respondents to finalize the proceedings against the
applicant initiated as per Annexure -A3, A5 and A7 within a time
frame fixed by this Honourable Tribunal;
iii) To direct the respondents to quantify the liability of the applicant
and release the retirement benefits including full pension and its
arrears, pension commutation and all other incidental benefits
along with interest to the applicant;
iv) and grant such other and further reliefs as this Hon'ble Court may
deem fit and proper in the circumstances of the case including costs."
5. The Tribunal after hearing both side, has rendered the
impugned Ext.P2 final order in O.A(Ekm) No.1433 of 2020 dated
16-10-2020, whereby it has been ordered that in the light of the
dictum laid down by the Full Bench of this Court in K.Chandran v.
Secretary, Local Self Government Department and others
[2020(5) KHC 273], the respondents in the OA are obliged to
immediately disburse the DCRG due to the applicant, subject to
liability if any, fastened on him in accordance with the said provision,
within two months. Further, it is also ordered that the disciplinary
proceedings initiated against the original applicant in the year 2015 as
referred to in Annexure A3 memo of charges, shall be finalized by R-1
in the O.A without any further delay, at any rate, within three months,
etc.
6. In the instant case, the respondent herein/original
applicant was earlier working as Audit Supervisor in the Panchayat
O.P (KAT) No.148 OF 2021
service. While in service, the State Government authorities concerned
have issued Annexure A3 memo of charges along with statement of
allegations dated 18-03-2015 against the original applicant for
initiating disciplinary proceedings. The said disciplinary proceedings
against him has not been finalized and he had retired from service on
attaining superannuation age on 31-05-2018. Whereupon the
respondents in O.A have issued Annexure A1 pension payment order
dated 16-08-2018 sanctioning only provisional pension and
withholding DCRG in purported invocation of the powers under Rule
3A of Part III KSR on the ground that the disciplinary proceedings as
contemplated in the operative portion of Rule 3A Part III KSR is
pending against him even after retirement. The matter is no longer res
integra and is covered by the dictum laid down by the Full Bench
decision of this Court in K.Chandran's case supra [2020(5) KHC
273 (F.B)] , wherein the Full Bench of this Court has held that the
latter provision in Rule 3A of Part III KSR to the limited extent it
authorizes withholding of even DCRG merely on account of the
disciplinary or judicial proceedings pending in terms of Rule 3 Part III
KSR is an illegal and ultra vires. Since Note 2 of Rule 3 Part III KSR
has explicitly stipulated that the word 'pension' used in Rule 3 shall
not include DCRG, there is no question of withholding the DCRG even
O.P (KAT) No.148 OF 2021
if Rule 3 proceedings are detrimentally finalized as against the
applicant inasmuch as what can be withheld in terms of Rule 3 is only
the pension and not the DCRG. Hence it was held that even the
temporary withholding of DCRG, is illegal and ultra vires and is a
meaningless exercise. Being aggrieved by the judgment rendered by
the Full Bench decision of this Court in Chandran's case supra, the
State Government Authorities have preferred SLP(Civil) Nos.14881-
14882 of 2020 before the Apex Court, in which the interim order has
been passed by the Apex Court on 14-12-2020, ordering that in the
meanwhile, the operation of the impugned order passed by the High
Court shall remain stayed etc. These aspects have also been elaborated
in a subsequent judgment of the Division Bench of this Court rendered
on 27-01-2021 in O.P(KAT) No.418 of 2020 in the case State of
Kerala & Ors. v. Ajitha C.K [2021(2) KHC 1 (DB)]. Certain
other aspects of the matter in relation to the applicability of Rule 3 and
Rule 3A of Part III KSR have been dealt with in yet another judgment
of the Division Bench of this Court in Ajai Chandra.R v. Director,
Agricultural (E&A) Department & Another [2021(3) KHC
445 (DB)]. A Division Bench of this Court in decisions as in the
judgment dated 17-01-2021 in W.A No.1407 of 2019, has considered
the effect of the dictum laid down by the Full Bench of this Court in
O.P (KAT) No.148 OF 2021
Chandran's case supra and has also held the effect and consequence
of the interim stay order granted by the Apex Court as against the
judgment of the Full Bench in the decision in Chandran's case supra
and on the basis of the decisions of the the Apex Court and this Court
cited therein, has held that the interim stay order granted in the said
SLP will only have the effect of staying and keeping in abeyance the
actual implementation and enforcement of the directions in the
judgment impugned in those cases and will not have the effect of
staying the dictum laid down by the Full Bench in that case and that
the Division Bench of this Court is obliged to follow the dictum laid
down by the Full Bench of this Court, in similar cases (reported in
Ajai Chandra.R v. Director, Agricultural (E&A)
Department & Another[2021(3) KHC 445].
7. Hence following the reasonings and conclusions already
rendered by the Division Bench of this Court in the judgment dated 17-
1-2021 in W.A No.1407 of 2019 [(2021 (SCC) Online Ker.2892)
Travancore Devaswom Board represented by its Secretary
v. D.Sreekumar], we are of the view that the submission made by
the learned Government Pleader that the Tribunal has committed a
serious error in having followed the dictum laid down by the Full
Bench of this Court in Chandran's case supra despite the stay order
O.P (KAT) No.148 OF 2021
granted by the Apex Court as per the interim order dated 14-12-2020,
etc. is not sustainable. Hence, we are of the view that the Tribunal was
fully right in holding that the withheld DCRG amount is to be
immediately released to the original applicant. Further, it is also made
clear that as a matter of fact, the competent authority concerned has
finalized other liabilities as referred to in Note 3 of Rule 3 Part III KSR
which could have been finalized without resort to the judicial or
departmental proceedings referred to in the operative portion of Rule
3 Part III KSR and such liabilities have been duly finalized after
granting reasonable opportunity of being heard to the original
applicant and before the expiry of the outer time limit of three years
from the date of retirement as mandated in Note 3 to Rule 3 Part III
KSR, then such liability amounts so quantified and finalized with due
prior notice to the petitioner and within the said 3 year period can also
be adjusted as against the DCRG amount. But on the other hand, if as
a matter of fact, the above said statutory procedure contemplated in
Note 3 to Rule 3 part III of KSR in finalizing and quantifying the
liabilities with due prior notice to the original applicant before the
expiry of the outer time limit of three years from the date of
retirement, which period has expired on 31-05-2021, then the full
DCRG amount will have to be released to the petitioner.
O.P (KAT) No.148 OF 2021
8. The only other direction issued by the Tribunal is that the
competent authority of State Government shall finalize the
disciplinary proceeding pending against the petitioner as referred to in
Annexures A3 and A5, within three months, etc. The Full Bench
decision in Chandran's case supra has only dealt with the legality of
withholding DCRG by invoking the provision in Rule 3A Part III KSR.
However, the competent authority concerned is fully at liberty to
finalize the proceedings contemplated in terms of Rule 3 Part III KSR
and as mentioned in Annexures A3 and A5, without any further delay.
Taking note of the aspect that the disciplinary proceedings has been
initiated as early as in the year 2015 and also taking into account of
fact that the original applicant has also retired from service in May
2018, the Tribunal was well within its powers to have the insisted that
the said disciplinary proceedings referred to in Annexures A3 and A5
will have to be finalized in accordance with Rule 3 Part III KSR with
all expedition and without any further delay.
9. Taking note of the pendency of this OP, it is ordered that
the petitioners may pay the due DCRG amount to the respondent as
aforesaid within six weeks from the date of receipt of a copy of this
judgment and the disciplinary proceedings referred to in Annexures
A3 and A5 may be finalized in accordance with the Rule 3 Part III KSR
O.P (KAT) No.148 OF 2021
within three months from the date of receipt of a copy of this
judgment. To that limited extent, the impugned directions and orders
of the Tribunal will stand modified. No other interference is called for.
With these observations and directions the Original Petition will
stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A.BADHARUDEEN, JUDGE
amk
O.P (KAT) No.148 OF 2021
APPENDIX OF OP(KAT) 148/2021
PETITIONERS' ANNEXURES :
Annexure A1 TRUE COPY OF THE PENSION PAYMENT ORDER
WITH RESPECT TO THE PETITIONER AS PER
APPLICANT NO.1018384414 DATED 16.8.2018.
Annexure A2 TRUE COPY OF THE VERIFICATION REPORT
NO.P.R 2101810666 BY THE 3RD RESPONDENT.
Annexure A3` TRUE COPY OF THE MEMO OF CHARGES ALONG
WITH STATEMENT OF ALLEGATIONS
NO.EPB2/2015/LSGD DATED 18.3.2015 ISSUED
BY THE SPECIAL SECRETARY.
Annexure A4 TRUE COPY OF THE DRAFT OF THE REPLY
SUBMITTED BY THE APPLICANT BEFORE THE
IST RESPONDENT.
Annexure A5 TRUE COPY OF THE MEMO OF CHARGES ALONG
WITH STATEMENT OF ALLEGATIONS (NO.7910
EPB2/15.LSGD) DATED 11.5.2015.
Annexure A6 TRUE COPY OF THE REPLY DATED 13.11.2015.
Annexure A7 TRUE COPY OF THE LETTER
NO.EPB2/87/2018/LSGD DATED 7.5.2019
ISSUED BY THE SPECIAL SECRETARY.
Annexure A8 TRUE COPY OF THE LETTER DATED 10.7.2019
OF THE APPLICANT.
Exhibit P1 TRUE COPY OF THE OA(EKM) NO.1433/20
ALONG WITH ITS ANNEXURES.
Exhibit P2 TRUE COPY OF ORDER IN OA(EKM)
NO.1433/2020 DATED 16.10.2020.
Exhibit P3 TRUE COPY OF THE STAY ORDER DATED
14.12.2020 IN SPECIAL LEAVE TO APPEAL
(C) NOS.14881-14882/2020.
