IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 8866 of 2007(E)
1. R.RAJA GOPALAN,
... Petitioner
Vs
1. TRAVANCORE DEVASWOM BOARD,
... Respondent
For Petitioner :SRI.G.SUDHEER
For Respondent : No Appearance
The Hon'ble MR. Justice K.K.DENESAN
Dated :28/03/2007
O R D E R
K.K. DENESAN, J.
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W.P.(C) No. 8866 OF 2007 E
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Dated this the 28th March, 2007
J U D G M E N T
The petitioner retired from the service of the
respondent-Board, on 31-3-2004, while working as
Assistant Secretary. The grievance sought to be
redressed through this writ petition pertains to the
non-payment of commuted value of pension due to him.
The respondent has not accorded sanction for payment of
commuted value of pension. According to the
petitioner, he is entitled to commute his pension in
accordance with the rules and upon such commutation he
is entitled to receive the amount thus sanctioned,
immediately on his retirement.
2. The respondent has filed a counter affidavit.
The respondent states that but for a vigilance enquiry
pending against the petitioner, the entire terminal
benefits including commuted value of pension would have
been paid to him, by this time. Ext. R1(b)
communication received from the Vigilance and Anti-
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corruption Bureau, Thiruvananthapuram addressed to the
Secretary of the respondent shows that “no vigilance
case is pending against the petitioner”. What is going
on is a vigilance enquiry. Ext. R1(b) further says
that that enquiry may or may not result in the
registration of a case. As matters now stand, the
vigilance is not in a position to express any definite
opinion as to what would be the outcome of the
vigilance enquiry.
3. Counsel for the petitioner submits that
pendency of the vigilance enquiry will not come within
the purview of the expression ‘judicial proceeding’ in
Rule 3A(a) of Part III of Kerala Service Rules, and
therefore, the respondent is acting illegally by its
refusal to sanction the commuted value of pension,
thereby depriving the petitioner of a substantial
amount he is entitled to, towards terminal benefits.
Rule 3A(a) aforesaid reads:
“Rule 3-A.(a) Where any departmental or
judicial proceeding is instituted under Rule
3 or where a departmental proceeding is
continued under clause (a) of the proviso
thereto, against an employee who has retired
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on attaining the age of compulsory retirement
or otherwise, he shall be paid during the
period commencing from the date of his
retirement to the date on which, upon
conclusion of such proceeding final orders
are passed, a provisional pension not
exceeding the maximum pension which would
have been admissible on the basis of his
qualifying service upto the date of
retirement or if he was under suspension on
the date of retirement, upto the date
immediately preceding the date on which he
was placed under suspension, but no gratuity
or death-cum-retirement gratuity shall be
paid to him until the conclusion of such
proceeding and the issue of final orders
thereon.”
4. Counsel for the respondent submits that the
amount is withheld in the light of the communication
received from the Vigilance and Anti-Corruption Bureau
to the effect that enquiry into alleged
misappropriation of funds is going on.
5. Heard both sides.
6. The only question for consideration is whether
the petitioner who retired from service on 31-3-2004 is
entitled to get commuted value of pension and whether
there is legal sanction for withholding that amount.
It is not disputed that the service rendered by the
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petitioner is pensionable, and further, that he is
entitled to commute a portion of the pension sanctioned
to him. However, the respondent-Board would argue that
it is justified in withholding payment of the same,
pending vigilance enquiry.
7. Now 3 years have elapsed since the retirement
of the petitioner. Rule 3 of Part III, K.S.Rs.
empowers the respondent to withhold D.C.R.G. pending
enquiry into allegations involving any pecuniary loss
sustained by the Board by the negligence or other
culpable action or omission on the part of its
employees or pensioners. Even in such cases the
liability shall be fixed after notice to them within a
maximum period of 3 years from the date of retirement
of the employee. The respondent has no case that
action under Rule 3 has been taken or is pending
against the petitioner. The only provision on which
reliance can be placed by the respondent is Rule 3A(a)
of Part III, K.S.R. If departmental proceedings had
been instituted and the same is continued, the above
mentioned rule empowers the respondent to withhold
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terminal benefits including D.C.R.G., commuted value of
pension and even pension. The retired employee will be
entitled to receive only a provisional pension. But,
the said Rule will be attracted only in cases where
departmental or judicial proceedings have been
instituted and are pending against the retired
employee. Admittedly, no departmental proceedings are
pending. What is pending is a vigilance enquiry. The
vigilance has not registered a crime case and has not
commenced any investigation as contemplated by the
provisions of the Code of Criminal Procedure.
‘Vigilance enquiry’ will not come, even remotely,
within the ambit of the expression judicial
proceedings.
8. Therefore, it is evident that no judicial
proceeding has either been instituted or is pending
against the petitioner. The resultant position is
that the petitioner is entitled to demand that the
respondent shall pass orders sanctioning commuted value
of pension and that the amount thus sanctioned shall be
disbursed to him. It is so declared.
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9. The writ petition is allowed. There shall be
an order directing the respondent to sanction and
disburse the commuted value of pension legitimately due
to the petitioner, as expeditiously as possible, at any
rate, within two months from the date of receipt of a
copy of the judgment.
K.K. DENESAN
JUDGE
jan/