IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2801 of 2009(H)
1. C.M.KELU, S/O.CHATHU NAMBIAR,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. DEPUTY DIRECTOR OF EDUCATION,
3. DISTRICT EDUCATIONAL OFFICER,
4. ASSISTANT EDUCATIONAL OFFICER,
For Petitioner :SRI.P.K.SURESH KUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :03/11/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.2801/2009-H
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Dated this the 3rd day of November, 2009
J U D G M E N T
The petitioner is aggrieved by the refusal of the
respondent to regularise the period of suspension of the
petitioner and the non-fixation of his pay and other
retirement benefits in accordance with the pay revision
orders. The petitioner seeks for a direction to the
respondents to grant full pension and to disburse the
entire amount of D.C.R.G to the petitioner after correctly
fixing the pay and retiral benefits on the basis of an
order to be passed under Rule 56B of Part I K.S.R.
2. The petitioner herein had been working as
Assistant Teacher in an Aided U.P. School, namely, Perambra
A.U.P School and he retired from the school as on
31/03/2008. He was placed under suspension during
19/12/2003 to 07/09/2004 consequent to a disciplinary
proceedings initiated against him. The said disciplinary
action was finalised as per Ext.P1 order whereby the
punishment of barring of two increments with cumulative
effect was imposed.
3. Apart from the disciplinary proceedings, a
vigilance case has also been registered against him as
W.P.(C). No.2801/2009
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C.C.No.14/2004 which is pending before the Vigilance Court,
Kozhikode.
4. In view of the fact that the period of suspension
has not been regularised, he could not get the benefits of
pay revision, and the other retirement benefits have also
not been sanctioned to him.
5. In the counter affidavit, the stand taken is that
the petitioner was suspended pursuant to the registration
of the vigilance case against him. The allegation against
him is that he tried to make false entries in the ledger
sheets and Board sheets related to P.F account for the
period from 1984-85 to 1995-96. Suspension was revoked as
per Ext.P2 and he was reinstated in service without
prejudice to the vigilance action pending against him. It
is the case of the respondents that since the vigilance
case is pending, the period of suspension has not been
regularised and hence, his pay was not revised as per G.O.
(P).No.145/06. Provisional pension was sanctioned by
Assistant Educational Officer, Perambra. It is also stated
that the retirement benefits could not be sanctioned as the
period of suspension was not regularised.
6. The question is whether the period of suspension
can be regularised only after the conclusion of the
vigilance case pending against him.
W.P.(C). No.2801/2009
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7. According to the petitioner it is Rule 56B of Part
I K.S.R that will apply. It is therefore contended that in
terms of Rule 56B specific order has to be passed by the
competent authority without waiting for the conclusion of
the vigilance case. Rule 56B obliges the competent
authority to pass an order:
(a) regarding the pay and allowances to be paid to the
officer for the period of suspension ending with
reinstatement or the date of his retirement on
superannuation, as the case may be; and
b) whether or not the said period shall be treated as a
period spent on duty.
Sub-rule (6) is also important, which states as follows:-
“Where suspension is revoked pending
finalisation of the disciplinary or court
proceedings, any order passed under sub-rule
(i) before the conclusion of the
proceedings, against the officer shall be
reviewed on its own motion after the
conclusion of the proceedings, by the
authority mentioned in sub-rule (i) who
shall make an order according to the
provisions of sub-rule (3) or sub-rule (5),
as the case may be.”
W.P.(C). No.2801/2009
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In that view of the matter, it is upto the competent
authority to pass an order with regard to the
regularisation of the period of suspension and how the
period shall be treated. The same cannot be kept pending
till the finalisation of the vigilance case against him.
In the disciplinary proceedings, punishment has already
been imposed on him.
8. The next question is regarding the claim of the
petitioner for disbursal of D.C.R.G and other benefits.
The matter is governed by Rule 3A(a) of Part III K.S.R.
Going by the said rule, no gratuity or death-cum-retirement
gratuity shall be paid to the pensioner until the
conclusion of such proceeding and the issue of final orders
thereon. The issue is also covered by the decision of this
Court in Sreepath Bhatt v. Tahsildar [2004(3)KLT SN.17
C.No.22]. It was held thus:-
“Learned Government Pleader points out
that in terms of R.3A(a) of Part III K.S.R,
he is eligible to get a provisional pension
only. It is seen from R.3A(a) Part III
K.S.R that what is expressly prohibited by
that Rule is payment of D.C.R.G. Of course,
the rule says that the retired person shall
be paid a provisional pension. Since there
is no statutory prohibition against payment
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-:5:-of other benefits due to the petitioner, I
am inclined to direct the respondents to pay
the petitioner not only the provisional
pension admissible to him but also all
amounts other than Death-cum-Retirement
Gratuity, by way of terminal benefits.”
9. The learned counsel for the petitioner further
made a submission that going by Ext.P1, it can be seen that
there is no allegation that the actions of the petitioner
resulted in any loss. In the absence of any loss caused to
the Government, it is contended that, no recovery can be
effected against the D.C.R.G as evident from R.3(a) Part
III K.S.R. Note 2 thereon. It is therefore, submitted that
the D.C.R.G cannot be withheld.
10. The said contention is not correct in the light of
R.3A(a) of Part III K.S.R. It is a case where the judicial
proceeding is pending against the petitioner. The question
is whether in the light of the pendency of the vigilance
case before the Vigilance Court, the D.C.R.G can be
disbursed to him. In the light of the express provision
under R.3A(a) of Part III K.S.R, the same cannot be
disbursed.
11. What remains is the regularisation of the period
of suspension, sanction of arrears of salary consequent on
pay revision and other retirement benefits, if any. It is
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averred in para (5) of the counter affidavit that as no
decision was taken to regularise the period of suspension,
his pay was not revised as per G.O (P) 145/06 and,
provisional pension was sanctioned by the Assistant
Educational Officer, Perambra.
12. Therefore, there will be a direction to the
competent authority among the respondent to see that
appropriate orders are passed as regards regularisation of
the period of suspension and thereafter, regarding the
sanction of revised pay in terms of G.O.(P).No.145/2006 and
the claim for payment of retirement benefits excluding
D.C.R.G. Orders as above shall be passed within a period
of two months from the date of receipt of a copy of this
Judgment. Depending upon the same, the provisional pension
sanctioned will also be revised and the benefits like
retirement benefits other than D.C.R.G including the
arrears consequent on the pay revision orders in force
prior to his date of retirement will be disbursed.
The writ petition is allowed as above. No costs.
(T.R. Ramachandran Nair, Judge.)
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