IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 WP(C).No. 2801 of 2009(H) ------------------------------------- PETITIONER: ------------------- C.M.KELU, S/O.CHATHU NAMBIAR, SANTHI NIVAS, UNNIKKUNNUMCHALIL, PERAMBRA, KOZHIKODE DISTRICT. (ASSISTANT TEACHER (RETD), PERAMBRA AUP SCHOOL). BY ADVS. MR.P.K.SURESH KUMAR, SMT.P.JAYALAKSHMI. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. DISTRICT EDUCATIONAL OFFICER, VADAKARA, KOZHIKODE DISTRICT. 4. ASSISTANT EDUCATIONAL OFFICER, PERAMBRA, KOZHIKODE DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR. V.T.K. MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2801/2009-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. A6/1604/2001 DTD. 03/04/2001 ISSUED BY THE R.3. EXT.P.2: COPY OF THE NO.B3-32000/03 DTD. 06/10/2004 ISSUED BY THE R.2. EXT.P.3: COPY OF THE PROCEEDINGS DTD. 07/06/2008 OF THE ACCOUNTANT GENERAL'S OFFICE, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.2801/2009-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ 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 -:2:- 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 -:3:- 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 -:4:- 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 W.P.(C). No.2801/2009 -: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 W.P.(C). No.2801/2009 -:6:- 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.) ms