Kerala High Court
The State Of Kerala,Represented By vs Sheela.K.R on 9 April, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
OP(KAT) NO. 23 OF 2025
AGAINST THE ORDER DATED 27.09.2024 IN OA NO.1111 OF 2024 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 THE STATE OF KERALA,REPRESENTED BY
THE SECRETARY TO GOVERNMENT, WATER RESOURCES
DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
KERALA, PIN - 695001
2 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, KERALA, PIN - 695001
BY ADV GOVERNMENT PLEADER SHRI SUNILKUMAR KURIAKOSE
RESPONDENT/S:
SHEELA.K.R,
AGED 60 YEARS, W/O SUNIL, RETIRED CHIEF ENGINEER, IRRIGATION
DEPARTMENT, OFFICE OF THE CHIEF ENGINEER PROJECT 1, WEST
HILL, KOZHIKODE, RESIDING AT V/440, CHANDRASSERIL HOUSE,
MOOTHAKUNNAM.P.O, ERNAKULAM DISTRICT, KERALA, PIN - 683516
BY ADVS
T.RAJASEKHARAN NAIR
GOPINATHAN NAIR
RESHMI G. NAIR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION
ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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-:2:-
2025:KER:31705
JUDGMENT 'C.R.'
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
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(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
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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
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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
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 up to the date of retirement, or if he was under
suspension on the date of retirement up to the date immediately preceeding 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.."
6. Rule 3 of Part III, KSR is the substantive provision
governing the authority of the Government to withhold the pension,
pending departmental or judicial proceedings. Rule 3A(a) of Part III,
KSR is the provision which enables the Government to pay a
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provisional pension when the Government decides, under Rule 3 of
Part III, KSR, to withhold pension.
7. The question that arises before us is whether an appeal
against acquittal would constitute pendency of judicial proceedings
as referred to under Rule 3 of Part III, KSR, and if so, whether the
Government can withhold the release of pension mechanically citing
the pendency of the appeal.
8. 'Pension' is a property. It cannot be deprived without a
legitimate request made in accordance with law and on valid reasons.
{See judgment of the Apex Court in State of Jharkhand v.
Jitendra Kumar Srivastava, [(2013) 12 SCC 210]}.
9. The purpose of Rule 3 of Part III, KSR, as seen from the
rule itself, is to recover any peculiar loss caused to the Government.
On acquittal, the accused is entitled to double presumption inasmuch
as he is entitled to presumption of innocence during the trial and also
presumption of innocence on his acquittal, even though the appeal is
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pending before the appellate court. The Apex Court in Chandrappa
v. State of Karnataka [(2007) 4 SCC 415] spoke about double
presumption as follows:
"16. It cannot, however, be forgotten that in case of acquittal, there is a
double presumption in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental principle of criminal
jurisprudence that every person should be presumed to be innocent unless he is
proved to be guilty by a competent court of law. Secondly, the accused having
secured an acquittal, the presumption of his innocence is certainly not weakened
but reinforced, reaffirmed and strengthened by the trial court."
10. The Apex Court in Muralidhar v. State of Karnataka
[(2014) 5 SCC 730] in para. 19 stated as follows:
"19. The High Court on consideration of the same evidence took a different
view and interfered with the judgment of acquittal without properly keeping in
mind that the presumption of innocence in favour of the accused has been
strengthened by their acquittal from the trial court and the view taken by the
trial court as to the credibility of Ext. P-22 and the evidence of PW 25, PW 30
and PW 36 was a possible view. The High Court while upsetting the judgment of
acquittal has not kept in view the well-established principles in hearing the
appeal from the judgment of acquittal."
11. In Chandran's case (supra), the Apex Court considered
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the same question in a matter where the Sessions Court convicted
the Government servant and was carried in appeal where the
appellate court suspended the sentence. In that circumstance, the
Apex Court held that the request for release of pension cannot be
acceded to, considering the objectives of Rule 3 of Part III, KSR. The
objectives of Rule 3 of Part III, KSR as elucidated by the Apex Court
in Chandran's case (supra) is as follows:
"28. We must keep in mind the very objectives of holding back pension or the
DCRG. One can be to recover the amounts found due from the delinquent
employee of any nature whatsoever after appropriate notice and proceedings.
The second eventuality is if an employee is dismissed from service. It can hardly
be doubted that in the second eventuality of the dismissal from service the
employee would lose all retirement benefits."
12. This Court in Union of India v. T. Karunakaran [2020
SCC OnLine Ker 17734] had occasion to consider the term judicial
proceedings as referred in Rule 69 of Central Civil Service (Pension)
Rules, 1972 and after referring to the judgment of Himachal Pradesh
and other High Courts held as follows:
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"5. In Surinder Kumar (supra) a Division Bench of the Himachal Pradesh High
Court was concerned with an order of suspension imposed upon an employee
following his detention in a criminal case. The court came to the conclusion that
there is no cause to continue the suspension of an employee when the criminal
charges which led to his detention in the first place have been found to be not
established. In Balak Singh Takur (supra) a learned single judge of the Madhya
Pradesh High Court has taken the view that the preferment of a criminal revision
or appeal against an order of acquittal cannot be treated as a continuation of the
trial or the pendency of a judicial proceeding. This finding was with specific
reference to the definition of 'Judicial proceeding' in Section 2(i) of the Code of
Criminal Procedure. It was held "A person so acquitted of the charges stand at
par with a person who is not being charged and was not subjected to a criminal
proceeding. The preferment of a criminal revision or an appeal against an
acquittal cannot be regarded as a continuance of the trial and cannot be treated
to be pendency of judicial proceeding as the initial presumption of innocence
gets re-enforced by the orders of acquittal." In S. Rajagopal (supra) a Division
Bench of the Madras High Court was considering the issue of regularization of
the suspension period following the acquittal, the suspension having been made
on account of either having been arrested and kept in custody or otherwise on
account of the Criminal proceedings. It was held that the term 'judicial
proceedings' in so far as criminal cases are concerned comes to an end when an
order of acquittal is passed. In Rajagopal (supra) the Division Bench of the
Madras High Court referred to Surinder Kumar (supra); State of West Bengal v.
Hari Ramalu; (2000) 3 LLN 638; Chandu Ram v. State of H.P.; 2009 SCC OnLine
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HP 1303; State of Haryana v. Banwari Lal; 2010 SCC OnLine P&H 183, Chief
Commissioner of Land Administration A.P, Hyderabad v. R.S. Ramakrishna Rao;
(2010) 2 ALD 773, R.C. Dubey v. M.P. State Electricity Board; 2013 SCC OnLine
MP 1004 and held:--
"19. Reverting to the case on hand, perusal of the judgment in ACB Case
No. 3/2006, dated 31.03.2008, on the file of the Special Judge and Presiding
Officer of Fast Track Court, Vadodara, shows that the petitioner was acquitted
on merits and that the Court, after considering all the facts, held that there
is no cogent and reliable evidence and that the complainant himself was not
clear. The Court has further held that averments made by the prosecution
cannot be accepted and resultantly, when there was no evidence, the
petitioner is entitled to be acquitted.
20. While that be the clear finding recorded in the judgment, acquitting
the petitioner, under the premise of appeal, being filed and pending, against
the order of acquittal, the petitioner cannot be deprived of the regularisation
of the suspension period, endlessly. Disposal of the appeal may take a long
time. The petitioner is stated to have retired from service. There is no
certainty that the State would be satisfied, even if the appeal in the High
Court fails. If the State chooses to prefer a further appeal to the Hon'ble
Supreme Court, the Department may again contend that the appeal is
pending before the Apex Court. Thus, if the arguments of the respondents 2
and 3 have to be accepted, then there is no finality to the judgment of
acquittal. In the light of the discussion and decisions considered, the further
contention of the learned counsel that Vigilance has not given a clearance,
cannot be countenanced"
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13. The rule has to be interpreted based on its purpose. In
Chandran's case (supra), in para.28 itself, the Apex Court reiterated
the object behind Rule 3 of Part III, KSR. The Government cannot
withhold pension merely citing the pendency of judicial or
departmental proceedings. On acquittal by the criminal court, a right
is created on the retired Government servant to claim pension. The
judicial proceedings referred to under Rule 3 of Part III, KSR can only
be related to the proceedings till the conclusion of the trial and
pronouncement of the judgment by the trial court. That means, once
innocence is declared upon acquittal, the Government cannot rely on
Rule 3 of Part III, KSR citing pendency of appeal even though an
appeal is technically a part of judicial proceedings. The law never
intends to enable the Government to withhold pension till the
conclusion of all judicial proceedings. The purpose of the rule is to
give an opportunity to the Government to establish and prove the
guilt of a Government servant at the first instance and not to merely
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rely on the statutory right to file an appeal or other proceedings
thereon and thereby prolong the proceedings. The term "judicial
proceedings" under Rule 3 of Part III, KSR has a restricted meaning,
referring only to the conclusion of the trial and is not related to any
other subsequent remedy available thereafter. In the absence of
departmental proceedings, the Government cannot withhold
pensionary benefits based on the invocation of appellate or revisional
remedies available thereafter.
Accordingly, the original petition is dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
ms
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APPENDIX OF OP(KAT) 23/2025
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE RELEVANT PORTION, IE, PAGES 1 TO
4 AND 28 TO 30 OF JUDGMENT DATED 17.10.2018 IN CC
NO.06/2010 OF THE COURT OF THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE, THRISSUR
Annexure A2 TRUE COPY OF THE JUDGMENT DATED 02.07.2018 OF
HONOURABLE HIGH COURT IN OP(CRL) 321/2018
Annexure A3 TRUE COPY OF THE ORDER DATED 25.01.2019 OF THE
TRIBUNAL IN OA(EKM) NO.14/2019
Annexure A4 TRUE COPY OF THE ORDER DATED 27.08.2019 OF THIS
TRIBUNAL IN OA(EKM) NO.14/2019
Annexure A5 TRUE COPY OF THE ORDER DATED 18.03.2020 OF THIS
TRIBUNAL IN OA (EKM) 14/2019
Annexure A6 TRUE COPY OF THE G.O(RT)NO.227/2020/WRD DATED
16.03.2020
Annexure A7 TRUE COPY OF THE G.O(RT)NO.304/2020/WRD DASTED
14.05.2020
Annexure A8 TRUE COPY OF THE APPLICANT'S LETTER DATED
21.12.2022 TO THE 1ST RESPONDENT
Annexure A9 TRUE COPY OF THE LETTER NO.1923982/PEN-
A2/87/2022/FIN DATED 13.05.2022 FROM ADDITIONAL
CHIEF SECRETARY TO ACCOUNTANT GENERAL (A&E)
Annexure A10 TRUE COPY OF THE PPO NO.1122246998 DATED
20.07.2022
Exhibit P1 A TRUE COPY OF THE O.A NO.1111/2024
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE
SECOND RESPONDENT ON 12.09.2024
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Exhibit P3 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE
KERALA ADMINISTRATIVE TRIBUNAL ON 27.09.2024
