State of Kerala v. Suresh Prabhu P. S/o Purushothama Rao
2021-12-22
ALEXANDER THOMAS, VIJU ABRAHAM
body2021
DigiLaw.ai
JUDGMENT : ALEXANDER THOMAS, J. 1. The sole respondent herein has filed the instant Ext.P-1 Original Application, O.A. No. 544/2020 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the following prayers: “(1) To set aside the second part of the Exhibit P2 Final Order dated 30.10.2020 of the Kerala Administrative Tribunal in O.A. No. 544/2020. (2) Any other order or direction as this Honourable Tribunal may deem fit and proper in the facts and circumstances of the case.” 2. The Tribunal after hearing both sides has rendered the impugned Ext.P-2 final order dated 30.10.2020 finally disposing of the instant O.A. No. 544/2020 with the finding that there is no legal justification on the part of the respondents in the O.A. in withholding the pensionary benefits like DCRG, commuted value of pension, etc. in the light of the decision of the Full Bench of this Court in Chandran vs. Local Self Government Department, 2020 (5) KLT 669 (FB) and that the 1st respondent in the O.A. (State Government) in the Local Self Government Department, will consider Annexure-A3 representation dated 29.02.2020 filed by the applicant in the matter of his claim for release of full amount of DCRG, commuted value of pension, etc. and pass orders thereon, within two months, in the light of the abovesaid findings made by the Tribunal and to release the due pensionary benefits of the applicant, without any further delay, etc. It is this final verdict of the Tribunal at Ext.P-2 rendered in the above O.A. on 30.10.2020 that is under challenge in the instant Original Petition filed at the behest of the State of Kerala and the Panchayat Department under Articles 226 and 227 of the Constitution of India. The prayers of the instant original petition filed on 30.09.2021 are as follows: “(1) To set aside the second part of the Exhibit P2 Final Order dated 30.10.2020 of the Kerala Administrative Tribunal in O.A. No. 544/2020. (2) Any other order or direction as this Honourable Tribunal may deem fit and proper in the facts and circumstances of the case.” 3. Heard Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in the OP/respondents in the O.A. and Sri. Rajesh Pullikada, learned counsel appearing for the sole respondent in the O.P/sole applicant in the O.A. 4. A brief reference to the factual aspects in this case would be necessary.
Heard Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in the OP/respondents in the O.A. and Sri. Rajesh Pullikada, learned counsel appearing for the sole respondent in the O.P/sole applicant in the O.A. 4. A brief reference to the factual aspects in this case would be necessary. The applicant while holding the post of Panchayat Secretary had retired from service on 30.06.2018. While he was holding the post of Head Clerk in the Arattupuzha Grama Panchayat, a vigilance enquiry was instituted against him by the Vigilance and Anti-Corruption Bureau, Alappuzha, which was registered as Vigilance Enquiry, VE/02/2009/ALP, pertaining to allegations of irregularities in the implementation of the Tsunami Special SGRY Programme for 2005-2006 in Arattupuzha Grama Panchayat, Alappuzha Revenue District. Further that, from the averments in Para-6(ii) of the O.A. it is seen that an enquiry was ordered as per the directives of the State Government in the Vigilance Department as per G.O. (Rt.) No. 133/2016/Vig. dated 19.05.2016 and that the matter was referred to the Vigilance Tribunal, constituted in terms of the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 framed under the enabling provisions contained in the proviso to Article 309 of the Constitution of India. Further, it is averred that the said enquiry proceedings by the Vigilance Tribunal was concluded in the last sitting of the Vigilance Tribunal held in April, 2019 and that the enquiry report has been duly furnished by the Vigilance Tribunal to the competent authority of the State Government in the Vigilance Department and that thereafter no further action has been taken thereof. That, citing the pendency of the said enquiry proceedings, the applicant was sanctioned only provisional pension and his full DCRG amount has been withheld, by taking recourse to the provisions contained in Rule 3A of Part-III KSR. The complaint of the applicant is that he has been paid only a pittance amount as provisional pension and his full DCRG amount has been unlawfully withheld and that, even his plea for commutation of pension has been thus denied. Further it is averred by the applicant that the State Government has ordered as per Para-7 under Part-II of Annexure-A2 G.O. (P) No. 55/2019/Fin.
Further it is averred by the applicant that the State Government has ordered as per Para-7 under Part-II of Annexure-A2 G.O. (P) No. 55/2019/Fin. dated 04.05.2019 that, only if a vigilance case is taken up for trial by the competent criminal court, can it be said that a judicial proceeding be said to be pending against the accused/delinquent employee concerned in terms of the provisions contained in Rule 3 Part-III KSR and that, mere institution of a vigilance enquiry cannot be treated as a vigilance case, unless the case is said to be on trial before the competent criminal court, etc. It appears that the tone and tenor of the contention of the applicant is that the proceedings if any, on the basis of the enquiry conducted by the Vigilance Tribunal as per the provisions contained in the Kerala Civil Services (Vigilance Tribunal) Rules, 1960, can be invoked for withholding pensionary benefits only if the trial thereof has started and that otherwise it cannot be treated as a judicial proceedings. In other words, the case of the applicant appears to be that, an enquiry proceedings conducted by the Vigilance Tribunal, as per the abovesaid Rules, cannot be invoked as a relevant ground for withholding full pensionary benefits and full DCRG amount to the applicant under Rule 3A of Part-III KSR, in as much as, the case is not pending trial before the said judicial Forum, etc. 5. Yet another contention that is raised by the applicant is that a Full Bench of this Court in the case in Chandran vs. LSG Department, 2020 (5) KLT 669 (FB), has held that the second limb of Rule 3A of Part-III KSR to the extent it authorizes the authorities concerned to withhold even the full DCRG amount merely on account of pendency of judicial proceedings or disciplinary proceedings within the meaning of the operative portion of Rule 3 Part-III KSR, is illegal, ultra-vires and unreasonable. The reason for the same being that, Note 2 to Rule 3 Part- III KSR has specifically defines the word ‘pension’ as used in the operative portion of Rule 3 Part-III KSR as not to include DCRG, etc.
The reason for the same being that, Note 2 to Rule 3 Part- III KSR has specifically defines the word ‘pension’ as used in the operative portion of Rule 3 Part-III KSR as not to include DCRG, etc. Hence, it was found by the Full Bench that, even if an adverse proceedings is finalized against the delinquent employee on the basis of a judicial proceedings or disciplinary proceedings, by passing final orders under the operative portion of Rule 3 Part-III KSR, then at best, what can be withheld is only the pension and not the DCRG and even the withholding of the pension shall not exceed 1/3rd of the full pension, etc. Even if the final adverse order that can be passed under Rule 3 Part-III KSR, can only lead to withholding of pension and not the DCRG amount. That the Full Bench has held in Chandran's case supra that the provision contained in the second limb of Rule 3A of Part-III KSR authorizing even to withhold of the full DCRG amount merely on account of pendency of proceedings in terms of the operative portion of Rule 3 Part-III KSR, is illegal, ultra-vires and unreasonable, etc. Further, a Division Bench of this Court in the decision in Travancore Devaswom Board vs. D. Sreekumar, (2021) SCC Online Ker. 2892 (DB), has held that the interim stay secured by the State in the SLP filed by them to impugn the judgment of the Full Bench of this Court in K. Chandran's case supra, will lead only to the situation of staying the enforcement of the directions of this Court rendered in that particular case and it will not have the effect of staying the ratio decidendi of the dictum laid down by the Full Bench of this Court in K. Chandran's case supra. In view of that aspect, it has been held that the Division Bench of this Court is legally bound to follow the dictum laid down by the Full Bench of this Court in K. Chandran's case supra, etc. In the light of the abovesaid well-settled position, this Court is of the considered view that the main finding made by the Tribunal in the impugned verdict that the respondents in the O.A. are legally obliged to disburse the full DCRG amount due to the applicant, is correct and tenable.
In the light of the abovesaid well-settled position, this Court is of the considered view that the main finding made by the Tribunal in the impugned verdict that the respondents in the O.A. are legally obliged to disburse the full DCRG amount due to the applicant, is correct and tenable. Further, it appears that the petitioners in the OP/respondents in the O.A. do not have any case that any liabilities, which should have been otherwise ascertained by any of the petitioner in the O.P. without recourse to the disciplinary proceedings/judicial proceedings, as referred to in the operative portion of Rule 3 Part-III KSR, have been finalized with due notice to the applicant, within the statutory outer time limit of three years from the date of retirement as mandated in Note 2 and Note 3 of Rule 3 Part-III KSR. The applicant has retired from service on 30.06.2018 and the outer time limit of three years from the date of retirement has expired in the instant case as early as on 30.06.2021. Even in the pleadings in the reply statement filed by the respondents in the O.A. before the Tribunal as well as in the pleadings in the present O.P. no case is set up that any such liabilities as referred to in Note 2 and Note 3 of Rule 3 Part-III KSR, have been duly finalized in compliance with the principles of natural justice as against the applicant, etc. Hence, the direction issued by the Tribunal that the applicant is entitled for the full amount of DCRG, does not call for any interference. The learned counsel appearing for the applicant has submitted that the applicant has also prayed for interest on the DCRG amount @ 8% p.a. as can be seen from the prayers in the instant O.A. 6. After hearing both sides, we note that the Tribunal has only made the main findings and has directed the respondents in the O.A. to consider and take decision on Annexure-A3 representation filed by the applicant, in the light of the findings of the Tribunal and no specific direction has been issued by the Tribunal for grant of interest. Further, the applicant has not challenged the abovesaid verdict of the Tribunal in the instant O.A. to the extent it has not dealt with the prayer for interest.
Further, the applicant has not challenged the abovesaid verdict of the Tribunal in the instant O.A. to the extent it has not dealt with the prayer for interest. Hence, it may not be right and proper for us to direct that the applicant should be granted interest on the delayed payment of DCRG, in the present original petition proceedings, which is initiated at the behest of the State. Accordingly, it is ordered that the full amount of DCRG shall be duly released to the applicant within six weeks from the date of receipt of a certified copy of this judgment. However, liberty is accorded to the applicant to file representation before the respondents in the O.A. praying for grant of interest on the delayed payment of DCRG from the due date after the date of actual payment, etc. and the said plea of the applicant shall also be duly considered and orders passed thereon, within six weeks from the date of filing of such representation. Thereafter, in case the applicant has any legally justiciable grievances in that regard, he will be at liberty to work out his remedies, in the manner known to law. 7. The next issue is as to the payment of pension and commuted value of pension, etc. Based on the directions issued by this Court, the petitioners herein have filed a statement dated 20.11.2021 in this O.P. Therein it is stated that the Vigilance and Anti-Corruption Bureau had conducted a vigilance enquiry as V.E No. 2/2009/ALP to the abovesaid allegations due to partial execution of 19 road works in Arattupuzha Grama Panchayat under the SGRY (Tsunami Scheme) 2005-2006 of Arattupuzha Panchayat and 7 works under the Special Development Fund (MLA) linked to SGRY 2005-2006 of block panchayat Muthukulam, even after the release of the allotted quantity of food grain which amounts to 40% of the estimated cost, etc. and that the Government has sustained loss to the tune of Rs. 50,69,908/-. That, the vigilance enquiry conducted by the Vigilance and Anti-Corruption Bureau, Alappuzha in VE No. 02/2009/ALP has revealed that all the 19 works have been either partially executed or not executed at all and food grains allotted to each work have been diverted to the black market, etc.
50,69,908/-. That, the vigilance enquiry conducted by the Vigilance and Anti-Corruption Bureau, Alappuzha in VE No. 02/2009/ALP has revealed that all the 19 works have been either partially executed or not executed at all and food grains allotted to each work have been diverted to the black market, etc. Further that, the Vigilance & Anti-Corruption Bureau had submitted report in the abovesaid vigilance enquiry and thereafter, after considering the said report the competent authority of the State Government in the Vigilance Department has framed memo of charges against the applicant and has forwarded the case for determination to the Vigilance Tribunal constituted as per the Kerala Civil Services (Vigilance Tribunal) Rules, 1960. That, the Vigilance Tribunal has conducted a detailed enquiry in the matter and has furnished its final enquiry report to the Government in the Vigilance Department on 15.02.2020 with its recommendations. Further that the Vigilance Tribunal has found that the allegation is serious, but it may not be proper to inflict the extreme punishment of dismissal or removal from service upon the accused officers and recommended the following punishment: “To withhold Rs. 3,000/- from the monthly pension the 2nd accused namely the applicant herein for a period of 5 years under Rule 11(1) III of Kerala Civil Services (Classification, Control and Appeal) Rules 1960. The Government have accepted the recommendation of the Vigilance Tribunal and issued show cause notice to the applicant and specific remarks on the WSD from the part of Director of panchayath is awaiting.” 8. It may have to be borne in mind that the applicant has retired from service on 30.06.2018 and the report of the Vigilance Tribunal has been furnished to the Government only on 15.02.2020. Therefore, the question of imposing any major penalty would not arisen even otherwise, in as much as the jural relationship of employer-employee has been snapped consequent to the retirement of the applicant. The learned Senior Government Pleader submits that though the recommendation of the Vigilance Tribunal is to withhold Rs.
Therefore, the question of imposing any major penalty would not arisen even otherwise, in as much as the jural relationship of employer-employee has been snapped consequent to the retirement of the applicant. The learned Senior Government Pleader submits that though the recommendation of the Vigilance Tribunal is to withhold Rs. 3,000/- from the monthly pension of accused No. 2 (applicant herein), for a period of five years under Rule 11(1)III of KCS (CCA) Rules, the said recommendation of punishment should be seen as one in relation to a disciplinary proceedings as contemplated in Rule 3 Part-III KSR, in as much as the memo of charges was framed by the Government on 28.10.2013, before the retirement of the applicant on 30.06.2018 and that therefore, the said pre-retiral disciplinary proceedings will have to be legally treated as a post-retiral disciplinary proceedings within the meaning of the operative portion of Rule 3 Part-III KSR and that, the citing of the wrong provision as per the KCS (CCA) Rules, is of no consequence in as much as, in substance the Government has the power to conclude the abovesaid disciplinary proceedings, in terms of Rule 3 Part-III KSR, etc. Whereas, the contra contention raised by the applicant appears to be that the abovesaid proceedings before the Vigilance Tribunal, can be invoked against him for withholding of the pensionary benefits only if trial has been commenced and only then it can be treated as a judicial proceedings going by the directives of the Government in para.7 under Part-II of Annexure-A2 G.O. (P) No. 55/2019/Fin dated 04.05.2019, etc. For resolving this controversy, we have heard both sides and have also meticulously perused through the provisions contained in the Kerala Civil Services (Vigilance Tribunal) Rules, 1960. Rule 3(b) stipulates that a Tribunal shall consist of a person who has been or is eligible to be appointed as District & Sessions Judge or a person with not less than seven years experience in the conduct of criminal cases or disciplinary cases. Rule 4(1) thereof further stipulates that the Government may refer to the Tribunal any case or class of cases, which they consider, should be dealt with by the Tribunal.
Rule 4(1) thereof further stipulates that the Government may refer to the Tribunal any case or class of cases, which they consider, should be dealt with by the Tribunal. Rule 4(3) mandates that the Government may, at any stage before the hearing of arguments, for valid reasons transfer for trial any case pending trial before any Tribunal to any other Tribunal irrespective of his area of jurisdiction specified in sub-rule (a) of Rule 3, etc. Rule 5 of the Kerala Civil Services (Vigilance Tribunal) Rules, 1960 provides as follows: “Rule 5....... (a) If on a complaint or other information received and after such investigation, if any, as may be deemed necessary, the disciplinary authority or the appointing authority or any officer or authority empowered by Government in this behalf is satisfied that there is a prima-facie case for taking action against an officer before the Tribunal, the authority shall forward to Government all the records of the case. (b) The departmental authorities may also sent to the Government the records of cases other than of corruption which they think fit to be tried by the Tribunal and the Government shall decide whether they shall be tried by the Tribunal or not. (c) The Government may after examining such records and after making such consultations as may be deemed necessary, decide whether there is a prima-facie case against the officer. If they are satisfied that there is a prima-facie case against the officer, they shall frame definite charge or charges which shall be communicated to the Officer together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. The accused officer shall be required to submit within a reasonable time to be specified in that behalf, a written statement of his defence. The Government Servant may, on his request, be permitted to peruse or take extracts from the records pertaining to the case for the purpose of preparing his written statement; provided that the Government may for reasons to be recorded in writing, refuse him such access, if in their opinion such records are not strictly relevant to the case or it is not desirable in the public interest to allow such access.
After the written statement is received or if no such statement is received within the time allowed, the Government may, if they consider necessary forward records of the case to the Tribunal, to enquire into the charges: Provided that if the disciplinary authority or the appointing authority or any Officer or authority empowered by Government has already framed charges against the Officer concerned and his written statement obtained it shall not be necessary for Government to frame the same charges against the Officer and obtain his statement before the records of the case are forwarded to the Tribunal for enquiry. (d) When the Tribunal is seized of the case, all Departments of Government shall assist the Tribunal in the production of witnesses, in securing the necessary documents and in such other ways as the Tribunal may desire. (e) Government may appoint an appropriate authority by general or special order to present the case against an accused Government servant in disciplinary cases before the Tribunal. Where the Authority so designated is a legal practitioner, the accused Government servant concerned shall be allowed on request, to be represented by Counsel.” 9. A reading of the abovesaid provisions, more particularly, Rule 5(c) thereof would make it clear that, the Government may after examining the records and after making such consultation as may be deemed necessary, decide whether there is a prima-facie case against the officer and if the Government are satisfied that there is a prima-facie case against any officer, then the Government shall frame definite charge or charges which shall be communicated to the officer together with a statement of the allegations on which each charge is based and of any other circumstances on which it is proposed to take into consideration in passing of orders on the case, etc. Further, the accused officer shall be required to submit within a reasonable time, his written statement of defence, etc. Further, the last part of clause (c) of Rule 5 provides that, after the written statement is received or if no such statement is received within the time allowed, the Government may, if they consider necessary forward records of the case to the Tribunal, to enquire into the charges.
Further, the last part of clause (c) of Rule 5 provides that, after the written statement is received or if no such statement is received within the time allowed, the Government may, if they consider necessary forward records of the case to the Tribunal, to enquire into the charges. Proviso to Rule 5(c) further stipulates that if the disciplinary authority or the appointing authority or any officer or authority empowered by the Government has already framed charges against the officer concerned and his written statement obtained, then it shall not be necessary for the Government to separately frame the same charges against the officer and obtain his statement before the records of the case are forwarded to the Tribunal for enquiry., etc. Rule 5(d) further conceives that when the Tribunal is seized of the case, all departments of Government shall assist the Tribunal in the production of witnesses in securing the necessary documents and in such other ways as the Tribunal may desire, etc. 10. Rule 8 further provides as follows: “Rule 8....... (1) Notwithstanding any thing contained in rules 15 and 16 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 and in rule 17 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, the procedure prescribed in sub-rules (2) to (10) and (14) shall be adopted by the Tribunal in conducting enquiries. (2) As soon as the records relating to the case referred to it are received by the Tribunal, it shall inform the accused Government servant the date, time and place of inquiry and whether the accused Government Servant may be represented by a legal practitioner, if he so desires. (3) The Tribunal may, during the course of the inquiry if it deem necessary, add to, amend, alter or modify the charges framed against the accused Government servant in which case the accused shall be required to submit within a reasonable time to be specified in that behalf any further written statement of his defence. (4) The enquiry shall be commenced at the appointed time and place and the examination of witnesses shall be continued as far as possible from day-to-day and shall be completed within six months from the date of commencement of examination of witnesses except in cases where the accused for unavoidable reasons is not able to file written statement or examine defence witnesses.
At the enquiry, oral and documentary evidence on behalf of the prosecution should be first adduced and the accused Government servant or his representative including a legal practitioner, where one is permitted, shall be entitled to cross-examine the prosecution witnessess. (5) At the close of the prosecution evidence, the person charged shall, if he so desires, file a written statement along with a list of witnesses whom he wishes to examine. He shall for the purpose of preparing his defence be permitted to peruse the official records which he may specify, provided that such permission shall not be granted if, for reasons to be recorded in writing, in the opinion of the Tribunal, such records are not relevant for the purpose or it is against the public interest to grant such permission. (6) The oral and documentary evidence produced by the Government servant shall then be adduced. The prosecution shall be entitled to cross-examine the defence witnesses including the accused Government servant, if he elects to give evidence. (7) The Tribunal may, at any stage, put in question to the witnesses adduced by the prosecution or by the defence and to the accused Government servant and also may examine of its own accord any witness at its discretion. (8) As each witness is examined, the statement of the witness shall be reduced to writing and at the conclusion of his evidence it shall be read over to him and signed by him in the presence of the Tribunal. (9) After all the evidence is recorded, the person charged will be entitled to advance the necessary arguments either orally or in writing or both and the prosecution will have a right of reply. (10) After all the evidence and the arguments have been heard the Tribunal shall records its findings in respect of each charge and in case the accused Government servant is held guilty of any charge, it shall recommend to Government the punishment to be imposed. Where an accused officer is found not guilty of any charge and has been under suspension during the enquiry, the Tribunal shall also state whether the accused conduct in respect of the charges and during the conduct of the trial has been such as to justify the period of suspension being treated wholly or in part, as duty.
Where an accused officer is found not guilty of any charge and has been under suspension during the enquiry, the Tribunal shall also state whether the accused conduct in respect of the charges and during the conduct of the trial has been such as to justify the period of suspension being treated wholly or in part, as duty. (11) xxx xxx xxx (11A) xxx xxx xxx (12) xxx xxx xxx (13) xxx xxx xxx (14) Where the Government Servant concerned has absconded or where the Tribunal for any other reason to be recorded in writing is satisfied that the Government servant concerned is deliberately avoiding the proceedings before the Tribunal the enquiry may proceed in the absence of the Government Servant concerned as far as in accordance with the procedure and with such modification as may be deemed necessary by the Tribunal, in the circumstances of the case. (15) The Government shall either consider the report of the Tribunal and the records of the enquiry, or send these to the concerned disciplined authority, for further action and final disposal in accordance with the relevant rules relating to the consideration and disposal of the report of an Inquiring Authority in respect of the Government Servant.” 11. Rule 8 deals with the modalities of conduct of the enquiry proceedings/trial by the Vigilance Tribunal. Sub-Rule (10) of Rule 8 provides that after the evidence and the arguments have been heard, the Tribunal shall record its findings in respect of each charge and in case the accused Government servant is held guilty of any charge, it shall recommend to Government the punishment to be imposed, etc. and where an accused officer is found not guilty of any charge and has been under suspension during the enquiry, the Tribunal shall also state whether the accused conduct in respect of the charges and during the conduct of the trial has been such as to justify the period of suspension being treated, wholly or in part, as duty, etc. 12. Sub-Rule (15) of Rule 8 provides that the Government shall either consider the report of the Tribunal and the records of the enquiry, or send these to the concerned disciplinary authority for further action and final disposal in accordance with the relevant rules relating to the consideration and disposal of the report of an Inquiring Authority in respect of a Government servant, etc.
Thus a reading of the abovesaid provisions contained in KCS (Vigilance Tribunal) Rules, 1960, would make it clear that the proceedings are essentially and substantially of the nature of disciplinary proceedings and not of a judicial proceedings. The memo of charges has to be framed either by the competent disciplinary authority/ appointing authority/authorized officer or by the competent authority of the State Government. But there should be materials before the competent authority of the Government to consider the aspects and to take a decision as to whether a prima-facie case is made out for framing of charges, etc. But, the power to frame the memo of charges is not on the Tribunal but on the competent authority of the State Government or the competent disciplinary authority/appointing authority, etc. The fact finding enquiry relating to the correctness or otherwise in the memo of charges is to be determined by the Tribunal, in accordance with the enquiry procedure dealt with in the abovesaid Rules. Fair opportunity will have to be given to the delinquent employee concerned and the Tribunal will have to submit its final report in the matter, as to whether the evidence discloses that the guilt of the delinquent is established as against all or any of the charges. Thereafter, the Vigilance Tribunal would also be empowered to make specific recommendation as to the nature of the punishment that may be considered by the appropriate authority like the State Government, disciplinary authority, etc. Once the Vigilance Tribunal completes the enquiry proceedings and submits its final enquiry report to the State Government, it is for the State Government either to finalize the proceedings in the manner known to law or to forward the matter to the competent disciplinary authority/appointing authority, etc. who will have to then finally dispose of the case, in accordance with law. So in short, the substantial nature of the proceedings with the Tribunal is the one in relation to disciplinary proceedings and not judicial proceedings. True that the rules have used the word ‘trial’ to be conducted by the Tribunal, in some of the provisions of the rules. That by itself does not make the proceedings before the Tribunal as a judicial proceedings.
True that the rules have used the word ‘trial’ to be conducted by the Tribunal, in some of the provisions of the rules. That by itself does not make the proceedings before the Tribunal as a judicial proceedings. What is meant by the said word ‘trial’ as amplified in certain provisions of the abovesaid rules is that, the Tribunal is a quasi-judicial Forum, who will have to enquire into the guilt or otherwise of the charges against the delinquent, in a fair and impartial manner. A person, who has been or is eligible to be appointed as District and Sessions Judge or a person with not less than seven years' experience in the conduct of criminal cases or disciplinary cases alone can be considered for appointment, as can be seen from a reading of Rule 3 (b) of the KCS (Vigilance Tribunal) Rules, 1960. So, the word ‘trial’ used in the KCS (Vigilance Tribunal) Rules, 1960 will have to be understood from the abovesaid contextual aspects of the matter. The Statute mandates that the Tribunal will have to conduct the enquiry in a fair and judicious manner, etc. So, merely because the word ‘trial’ has been used in some of the provisions of the abovesaid Rule, will not by itself convert the nature of the proceedings as a judicial proceedings. 13. In the instant case, the Vigilance and Anti-Corruption Bureau, Alappuzha had conducted enquiry registered as V.E. No. 2/2009/ALP and submitted their report in the matter to the Government after consideration of the materials and has decided to frame memo of charges against the applicant on 28.10.2013 and has forwarded the case for determination by the Vigilance Tribunal. The Vigilance Tribunal has completed the enquiry and has submitted final enquiry report to the Government on 15.02.2020 with the finding that the applicant (A2) is guilty of the charges mentioned in the said report and that the penalty of withholding of Rs. 3,000/- per month from the monthly pension of the applicant may be appropriately imposed on him for a period of five years. So in the instant case it can be seen that memo of charges has been framed by the Government against the applicant as early as on 28.10.2013, which is well before the retirement of the applicant on 30.06.2018.
3,000/- per month from the monthly pension of the applicant may be appropriately imposed on him for a period of five years. So in the instant case it can be seen that memo of charges has been framed by the Government against the applicant as early as on 28.10.2013, which is well before the retirement of the applicant on 30.06.2018. The proceedings before the Vigilance Tribunal has also been duly completed and final report has been submitted on 15.02.2020, which is after the retirement of the applicant. Rule 3 Part-III KSR reads as follows: “Rule 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 reemployment after retirement: Provided that: (a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, 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 employee had continued in service. (b) such departmental proceeding, if not instituted while the employee 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. (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 employee during his service. (c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution.
(c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, in respect of a cause of action which arose or an event which took place more than four years before such institution. (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 employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date. (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. (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 pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. Note 2: The word ‘pension’ used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee (or pensioner) 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 employee (or pensioner) concerned a reasonable opportunity to explain. Note 3: The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.” 14.
Note 3: The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.” 14. A reading of Rule 3 Part-III KSR would make it clear that 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 proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, etc. Clause (a) of the proviso appended to Rule 3 would mandate that such departmental proceedings, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceedings under Rule 3 and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service, etc. Clause (b) of the said Proviso deals with the situation where, the departmental proceedings has not been instituted while the employee was in service and we are not concerned with those aspects. We have already held that the proceedings before the Vigilance Tribunal is not a judicial proceedings but a disciplinary proceedings. Hence, the other provisions of Rule 3 Part-III KSR dealing with judicial proceedings are not relevant and germane in the facts and circumstances of this case. The core of the matter is that clause (a) of the Proviso to Rule 3 Part-III KSR, would envisage the continuance of a pre-retiral disciplinary action, even after retirement, but the same shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service, etc.
The core of the matter is that clause (a) of the Proviso to Rule 3 Part-III KSR, would envisage the continuance of a pre-retiral disciplinary action, even after retirement, but the same shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service, etc. Further, clause (a) of the Explanation appended to Rule 3 Part-III KSR would provide that 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, etc. So in the instant case, the disciplinary proceedings/departmental proceedings can be said to be pending on and with effect from the date of issuance of the memo of charges of the applicant on 28.10.2013, which is before the retirement of the applicant. Hence, there cannot be any doubt that the departmental proceedings within the meaning of the operative portion of Rule 3 Part-III KSR, has been pending against the applicant even after his retirement from service on 30.06.2018 in relation to the above memo of charges. So, the proceedings under Rule 3 Part-III KSR will have to be finalized, in the manner known to law. Until then, the Government has the right to withhold the full pension and the pensioner need to be paid only the provisional pension, as envisaged in Rule 3A Part-III KSR. True that the withholding of the DCRG is legally wrong. But withholding of the pension and payment of only provisional pension, pending finalization of proceedings in terms of Rule 3 Part-III KSR, cannot be said to be illegal or ultra-vires. Hence, we are not in a position to accept the contention of the applicant that a direction should now be issued, so that the entire full pensionary benefits, including commuted value of pension, should also be disbursed to him apart from the full amount of DCRG. However we note that the final enquiry report has been furnished by the Vigilance Tribunal to the Government as early as on 15.02.2020. More than 22 long months have elapsed thereafter.
However we note that the final enquiry report has been furnished by the Vigilance Tribunal to the Government as early as on 15.02.2020. More than 22 long months have elapsed thereafter. We are kept in the dark as to the reasons for the long delay on the part of the Government in finalizing the proceedings even after the recommendations made by the Vigilance Tribunal in the final enquiry report. The lock down consequent to the Covid-19 pandemic issues commenced only from 24th March, 2020 onwards. At least after one year since the lock down, steps for finalization could have been undertaken. There has been inordinate delay and laches on the part of the Government. Hence, the applicant has made out a serious case regarding the inordinate delay and laches on the part of the Government in finalizing proceedings. The recommendation made by the Tribunal is to withhold Rs. 3000/- per month from the monthly pension of the applicant for a period of five years. We queried as to whether copy of the final enquiry report furnished by the Vigilance Tribunal has been duly given to the applicant. Both sides are not in a position to apprise this Court about this crucial factual aspect. However, we are apprised by the learned Senior Government Pleader that he has been given a copy of the final enquiry report of the Tribunal. Hence, it is ordered that the copy of the abovesaid final enquiry report with all the annexure thereto, shall be immediately furnished to the counsel for the respondent herein and receipt in that regard may also be obtained. The applicant may file his reply statement of defence before the competent authority of the State Government. Thereafter, the competent authority of the State Government will afford reasonable opportunity of being heard to the applicant and then, may take a decision on the abovesaid findings and recommendations made by the Tribunal in the matter of the proposal for withholding of Rs. 3,000/- from the monthly pension of the applicant for a period of five years, etc. and final orders shall be passed thereon, without any further delay, at any rate, within an outer time limit of three months from the date of production of a certified copy of this judgment. In meanwhile, it is ordered that the full pension due to the applicant as deducted by Rs.
and final orders shall be passed thereon, without any further delay, at any rate, within an outer time limit of three months from the date of production of a certified copy of this judgment. In meanwhile, it is ordered that the full pension due to the applicant as deducted by Rs. 3,000/- per month shall be fixed as the provisional pension to be paid to the applicant and arrears thereof, should also be released to the applicant, without any further delay, at any rate, within an outer time limit of two months from the date of production of a certified copy of this judgment. The Government may also consider the plea of the applicant for provisional grant of commuted value of provisional pension to be reckoned on the basis as full pension as deducted by Rs. 3,000/- per month and orders may be passed on the said plea of the applicant for release of commuted value of pension on a provisional basis, etc. The aspects relating to the final commutation value of pension that may be payable to the applicant, will be subject to the decision to be taken by the Government on the abovesaid recommendations of the Vigilance Tribunal, as above. Further, it is made clear that in case the order that may be passed by the Government on the recommendation of the Vigilance Tribunal is in any manner adverse to the applicant, then he will be at liberty to take recourse to appropriate remedies against the same, in the manner known to law. 15. To sum up, the following directions and orders are passed: (i) The Full amount of DCRG due to the applicant shall be immediately released by the petitioners in the OP/respondents in the O.A. without any further delay, at any rate, within a period of six weeks from the date of production of a certified copy of this judgment. (ii) The applicant will be at liberty to raise the plea for grant of interest on the delayed payment of gratuity, which is to be duly considered by filing such representation in that regard before the State Government, who shall consider the same and pass orders thereon, within a period of six weeks from the date of filing of such representation.
Thereafter, in case the applicant has any legally justiciable grievances in relation to the issue of interest on the DCRG, it is for him to work out his remedies, in the manner known to law. (iii) The action of the State Government and the department in withholding the full pension and paying only provisional pension, cannot be said to be illegal or ultra-vires in view of the pendency of the disciplinary proceedings pursuant to the memo of charges framed by the Government on 28.10.2013. However, there is strong force in the contention of the applicant that there has been inordinate delay and laches on the part of the authorities concerned in finalising the abovesaid proceedings in relation to the recommendations of the Vigilance Tribunal. The competent authority concerned will ensure that copy of the final enquiry report of the Vigilance Tribunal is immediately furnished to the applicant, as stated above and the applicant may also file his reply statement or defence thereto, along with the supporting materials. Thereafter, the competent authority of the State Government will afford reasonable opportunity of being heard to the applicant and take a final decision on the recommendation of the Vigilance Tribunal regarding the findings and the proposed punishment to withhold Rs. 3,000/- per month from the monthly pension of the applicant for a period of five years, etc. and final orders thereon on the said issues shall be duly passed by the State Government within an outer time limit of three months from the date of production of a certified copy of this judgment. In the meanwhile, the competent authority among the petitioners will ensure that provisional pension is fixed in the case of the applicant, as full pension as deducted by Rs. 3,000/- per month and arrears in that regard from the date of retirement of the applicant till date, should be released to him, within two months from the date of production of a certified copy of this judgment. (iv) The Government may also consider the plea of the applicant for provisional grant of commuted value of pension, by reckoning his pension as full pension minus Rs. 3,000/- per month and orders may be passed on the said plea of the applicant for grant of commuted value of pension on a provisional basis as above.
(iv) The Government may also consider the plea of the applicant for provisional grant of commuted value of pension, by reckoning his pension as full pension minus Rs. 3,000/- per month and orders may be passed on the said plea of the applicant for grant of commuted value of pension on a provisional basis as above. Needless to say, any such step will be subject to the final decision of the Government on the recommendation of the Vigilance Tribunal in the matter of withholding of pension, as mentioned above. In case the applicant has any legally justiciable grievances in relation to the final order to be passed by the Government in the abovesaid proceedings under Rule 3 Part-III KSR, then the applicant will be at liberty to work out his remedies against the same, in the manner known to law. 16. The directions and orders of the Tribunal, will stand modified and substituted as above. 17. With these observations and directions, the above Original Petition, will stand finally disposed of.