JUDGMENT Chandrasekhara Menon, J. The petitioner who is a retired Head Constable impugns in this proceedings the decision indicated in Ext. P-3 for withholding out of his gratuity a sum of Rs. 1289.60 which is alleged to be the monetary value for “unexpired portion of punishment�. While in service he had been awarded the following punishments: 1. Increment withheld for 1 year with cumulative effect. 2. Increment withheld for 1 year without affecting future increments. 3. Increment withheld for 2 years without affecting future increments. 4. Reduced as a Police Constable for 2 years with effect from 12th October 1963, 5. Increment barred for 6 months without cumulative effect. 6. Increment withheld for 1 year with cumulative effect. 7. Increment withheld for 2 years with cumulative effect. 8. Increment postponed for 6 months without cumulative effect. How the Controller of Accounts, Kerala, came to the con­clusion that the monetary value equivalent to the unexpired period of punishment is Rs. 1289.60 is given in Ext. P-3 as follows: “On 1st April 1962 his pay can be fixed at Rs.61. Next increment due on 1st April 1963 has been withheld due to the first punishment. On 12th October 1963 he has been reverted as Police Constable and can be restored as Head Constable on 12th October 1965. On 1st January 1966 his pay can be fixed at Rs. 101. The next increment becomes due on 24th July 1967 after excluding the period of suspension from 18th November 1966 to 11th April 1967 and the period of leave from 24th May 1967 to 23rd July 1967. The latter period has been excluded because an increment accruing during the period of leave can be given effect to only on return from leave. By withholding the increment which fell due on 24th July 1967 till 31st March 1968 the punishment No. 2 is given effect to for 8 months and 8 days. His pay on 1st April 1968 to 1st July 1968 can be regulated as follows:-— 1-4-1968 .. Rs. 107 1-7-1968 .. Rs. By withholding the increment which fell due on 24th July 1967 till 31st March 1968 the punishment No. 2 is given effect to for 8 months and 8 days. His pay on 1st April 1968 to 1st July 1968 can be regulated as follows:-— 1-4-1968 .. Rs. 107 1-7-1968 .. Rs. 118 By withholding the increment due on 1st July 1969 till 1st September 1969 (date of retirement) he would have suffered the punishment No. 2 for another two months, Monetary value of equivalent to the unexpired period of punish­ment has to be worked out as shown below: Amount Rs Punishment No.2 (unexpired period 1 months) 10.40 Punishment No. 3 I year 12x6 II year 12 X12 72.00 144.00 Punishment No.4 already implemented .. Punishment No.5 6x6 36.00 Punishment No.6 for 4 * 8/30 months @ Rs. 6. Punishment No.7 for 22/30 month @ Rs. 7. 4 * 8/30 X6X3 7 * 22/30 X7X3 I year 12x7x3 II year 12x14x3 76.80 152.40 252.00 504.00 Punishment No.8 6x7 42.00 1289.60 According to the petitioner, withholding of gratuity is illegal, arbitrary, ultra vires and unconstitutional and amounts to deprivation of property under article 31(1) of the Constitution of India. It is contended that such with­holding is not warranted by service rules. He puts forward the plea that ‘pension’ which includes ‘gratuity’ and ‘death-cum-retirement gratuity’, cannot be withheld or with­drawn in part or in whole, permanently or for a specified period, except under particular contingencies contemplated by rule 3 of the Rules governing pension. A right of ordering recovery from a pension, which includes gratuity, arises only when any pecuniary loss, according to him, is caused to Government. None of the contingencies contemplated by the said rule has arisen in the instant case. The petitioner also contended in the Original Petition chat the monthly pension fixed now at Rs. 66 is clearly erroneous. According to him, he is entitled to more than that amount. However, at the time of hearing, in regard to monthly pension, no argument as such was put forward. In the counter filed on behalf of the State, which is the 1st respondent in the case, it is contended that the petitioner retired voluntarily from service with effect from 1st September 1969. However, at the time of hearing, in regard to monthly pension, no argument as such was put forward. In the counter filed on behalf of the State, which is the 1st respondent in the case, it is contended that the petitioner retired voluntarily from service with effect from 1st September 1969. On scrutiny of his service book at the time of verification of his pension case, it was found that a number of punishments such as increment bar, reduction in rank, suspension, etc., had been imposed on him, but the orders could not be fully given effect to. It is stated that in such cases, recovery of the monetary value equivalent to the amount of increments ordered to be withheld has to be made as provided in rule 15 (h) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958. It is thus that the monetary value of the unexpired portion of punishments to be recovered from the petitioner was correctly fixed at Rs. 1,289-60. It is alleged further in the counter affidavit, that the recovery of monetary value of the punishments was necessitated mainly due to the prema­ture retirement of the petitioner from service at his request, and that none of the punishments was awarded after the retirement of the petitioner from service. Therefore, it is urged, that the recovery is perfectly valid and legally per­missible under the rules. How the pension was fixeed at Rs. 66 is also indicated in paragraph 2 of the counter­-affidavit. Rule 15 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958 empowers the imposing of penalties for good and sufficient reasons and as provided under the rules upon the members of the services. Rule 15(1) (g) deals with the punishment of withholding of increments. Rule 15(1) (h) states that recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to, can be imposed as a punishment. Member of the service has been defined in rule 3 of the said Rules. Member of the service, means, a member of the Kerala Police Service or the Kerala Police Subordinate Service, as the case may be. Member of the service has been defined in rule 3 of the said Rules. Member of the service, means, a member of the Kerala Police Service or the Kerala Police Subordinate Service, as the case may be. Therefore, in the matter of imposition of penalties under rule 15 such penalties could be inflicted only as long as the person conti­nued to be a member of the service; after his retirement such a punishment cannot be imposed. Mr. K. Sukumaran, learned Government Counsel for the Department invited my attention to a decision of a learned Single Judge of this Court, Justice M. U. Isaac in Sivaraman Nair v. State of Kerala 1971 K.L.J. 817 there, His Lordship was considering punishments that could be imposed under rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. The relevant clauses in the Rule which had come up for consideration before His Lordship were clauses 3 and 4 which read as follows:— “ (iii) Withholding of increments or promotion; Note:—(1) Withholding of increments or promotion referred to may be either permanent or temporary for a specified period. (2) Temporary period of withholding of increments shall not be less than 3 months and the temporary period of withholding of promotion shall not be less than six months and both shall not be for more than three years. If the period is not specified in the order it will be deemed to be 3 months in the case of temporary withholding of increments and 6 months in the case of temporary withholding of promotion. Temporary withholding of increments shall mean withholding of increments without cumulative effect i.e., it shall not have the effect of postponing future increments. (3) Withholding of promotion shall not entail loss of seni­ority in that grade. (4) An officer whose- promotion is withheld, “shall, if and when promoted to a higher grade or higher time-scale subsequently, on promotion, take his place at the bottom of the higher grade of higher time-scale. (3) Withholding of promotion shall not entail loss of seni­ority in that grade. (4) An officer whose- promotion is withheld, “shall, if and when promoted to a higher grade or higher time-scale subsequently, on promotion, take his place at the bottom of the higher grade of higher time-scale. (iv), (a) Recovery from pay of the whole or part of any pecuni­ary loss caused to a State Government or the Central Government or to a local authority by negligence or breach of orders; (b) recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to.� In that case the petitioner retired from the State Govern­ment service as a Tahsildar on 4th August 1967. While he was in service the District Collector, Ernakulam, the third respondent, framed two charges against him. One was dated 30th June 1966 for delaying Land Acquisition Proceedings and the other was dated 29th December 1965 for utilising the services of a suspended Village Assistant. The petitioner therein was found guilty of the charges. For the former charge he was imposed by the order Ext. R-3, in that case dated 15th April 1967, the penalty of withholding increments of his salary for two years with cumulative effect. For the latter charge he was imposed by the order Ext. R-4 dated 4th June 1967, the penalty of withholding increment for six months with cumulative effect. It was then realised that by virture of the fact that he retired from service on 4th August 1967, the above punishments could not be enforced. Thereupon, a show cause was issued to him by the concerned authority, requiring him to show cause why an amount of Rs. 2850 being the monetary value equivalent to the amount of increments ordered to be with­held as per Exts. R-3 and R-4, should not be recovered in a lump from the arrears of pay and allowances due to him. The petitioner sent a reply stating that he did not receive orders imposing the penalties and that under the relevant rule of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, the amount demanded was not recoverable from him. This contention was rejected by the authority, who made a direction for recovery of the sum of Rs. 2850 from the petitioner in that Original Petition. This contention was rejected by the authority, who made a direction for recovery of the sum of Rs. 2850 from the petitioner in that Original Petition. There, His Lordship stated— “Ext. R-3 and R-4 are penalties imposed under clause (iii); and they have become final. The main contention of the petitioner is that after such a penalty has been imposed, and it has become final, there is no question of imposing any further or any alternative penalty. He contends that the penalties mentioned in clause (iv) are independent and different from the one mentioned in clause (iii), and that the disciplinary authority has no power to alter the penalty imposed under one clause into a penalty under another clause. On behalf of, the respondents, it is submitted that the penalty provided in sub-clause (b) of clause (iv) is not an independent penalty; but it is one that can be imposed as an alternative to the penalty provided in clause (iii), if imposition of such an alternative punishment becomes necessary. On a careful reading of clauses (iii) and (iv) of sub-rule (1) of Rule II, it appears to me that what is provided in sub-clause (b) of clause (iv) is not a penalty by itself. It is a provision to enforce the penalty of withholding increments ordered under clause (iii), when the said penalty as such cannot be given effect to. Sub-clause (b) of clause (iv) speaks of the amount of increments ordered to be withheld. Such an order can be passed only under clause (iii). It is, therefore, clear that sub-clause (b) of clause (iv) relates to the penalty imposed under clause (iii); and it provides that, if the said penalty cannot be enforced, the monetary value equivalent to the amount of increments ordered to be withheld may be recovered from the guilty Government servant. The juxtaposition of sub-clause (b) under clause (iv) causes some amount of confusion. This sub-clause should have come under clause (iii) which provides for withholding of increments.� I do not demur from these observations of the learned Judge. However, for applying clause 4, the person concerned should have continued to be a Government servant. No proceedings. The juxtaposition of sub-clause (b) under clause (iv) causes some amount of confusion. This sub-clause should have come under clause (iii) which provides for withholding of increments.� I do not demur from these observations of the learned Judge. However, for applying clause 4, the person concerned should have continued to be a Government servant. No proceedings. under rule 15 of the Kerala Police Departmental Inquiries, Punishment and, Appeal Rules, nor under rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, could be proceeded and completed against the person, unless he continues to be in service. No doubt, some observations in paragraph 7 of the Judgment of the learned Judge in the aforementioned case would indicate that the order for recovery from pay to the extent necessary of the monetary value equivalent to the amount of increment ordered to be withheld where such an order cannot be given effect to could be made after retirement in cases where the penalty of withholding of the increments had been made before retirement. I cannot agree with those observations. In the ordinary course, I would have referred the matter to a Division Bench in the circumstances, but even on the basis of the said decision as the order impugned in the present proceedings cannot be upheld, I am not making such a reference. In the case before Justice Isaac, the recovery was so made from the arrears of pay and allowances due to the petitioner in that case. And before such recovery was thought, a show cause notice has also been issued to the petitioner therein. In the instant case, the recovery is sought from the gratuity and no show cause notice in the matter had been issued to the petitioner before such recovery was ordered. In this connection I would refer to rule 3 of the General Rules in section 1 of Chapter I of Part III of the K.S.R.— “3. In the instant case, the recovery is sought from the gratuity and no show cause notice in the matter had been issued to the petitioner before such recovery was ordered. In this connection I would refer to rule 3 of the General Rules in section 1 of Chapter I of Part III of the K.S.R.— “3. The Government reserve to themselves the, right of with­holding or withdrawing a pension or any part of it, whether permanent 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; Provided that— (a) such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employ­ment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment— (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) the Public Service Commission shall be consulted before final orders are passed. 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 officer or pensioner or if the officer 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 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. Note: —(1) As soon as proceedings of the nature referred to in this rule are instituted the authority which institutes such proceedings should without delay intimate the fact to the Audit Officer. The amount of pension withheld under this rule should not ordinarily exceed one-third of the pension originally sanctioned. In fixing the amount of pension to be so withheld regard should be had to the consideration whether the amount of the pension left to pensioner in any case would be adequate for his maintenance. (2) The word ‘pension’ used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an officer can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the officer concerned a reasonable opportunity to explain�. The Government could recover from the pension the whole or any part of any pecuniary loss caused to the Government if in any governmental or judicial proceeding the petitioner is found guilty of grave misconduct or negligence during the period of his service including services rendered upon re-employment of retirement. The pecuniary loss therein is the result of the grave misconduct or negligence on his part. The liability referred to in note (2) to the rule could also mean only a liability of any pecuniary loss caused to Government on account of pensioner’s grave misconduct or negligence. Though in the matter of recovery from the death-cum-retirement gratuity payable to an officer no departmental or judicial proceeding referred to in rule 3 is necessary, the note itself would indicate that the officer concerned should have been given a reasonable opportunity to explain. In the instant case, the records would indicate that he was not given any opportunity to explain. In the instant case, the records would indicate that he was not given any opportunity to explain. Nor is the liability concerned, a liability of the nature referred to in rule 3. Therefore, the petitioner’s contentions have to be accepted. I allow this Original Petition, quash Ext. P-3. As regards recovery from gratuity the petitioner should be paid the gratuity due to him in accordance with law. The Original Petition is thus allowed, but in the circumstances without costs.