IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 WP(C).No. 33511 of 2008(M) ------------------------------------------ PETITIONER(S): ------------------------ M.GANGADHARAN, VILLEGEMAN (RETD) VILLAGE OFFICE, THEKKIL, KASARAGOD DISTRICT, POORNIMA NIVAS, AZHEEKKAL (VIA) POST KANNUR - 9. BY ADV. MR.S.MUHAMMED HANEEFF RESPONDENT(S): --------------------------- 1. THE DISTRICT COLLECTOR, KASARGODE. 2. THE ACCOUNTANT GENERAL (A&E) THIRUVANANTHAPURAM. 3. STATE OF KERALA, REP. BY ITS SECRETARY REVENUE (D) DEPARTEMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.33511/2008 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELIEIVING ORDER ISSUED BY THE TAHASILDHAR TO THE PETITIONER DTD. 15/01/1996. P2: COPY OF THE ORDER DTD. 16/08/2005 IN CRL.M.A.NO.13440/05 IN CRL.APPEAL NO.1385/05 OF THIS HON'BLE COURT. P3: COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE GOVERNMENT TO THE PETITIONER DTD. 12/05/2006. P4: COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DTD. 8/08/2007. P5: COPY OF THE ORDER ALONG WITH THE COVERING LETTER ISSUED BY THE 1ST RESPONDENT THROUGH THE TAHASILDAR DTD.4/10/2008. P6: COPY OF THE ORDER DTD. 20/02/2009 IN CRL.M.A.NO.1877/2009 IN CRL.APPEAL NO.1385/2005 OF THIS HON'BLE COURT. P7: COPY OF THE RECEIPT IN FORM NO.42 ISSUED FROM THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, KOZHIKODE ON 26/06/2009 EVIDENCING PAYMENT OF FINE AMOUNT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN ==================== W.P. © No. 33511 of 2009 – M ==================== Dated 18th August, 2009 JUDGMENT The petitioner entered service as Villageman in the Revenue Department on 2.2.1971. He retired from service on 31.1.1996 on attaining the age of superannuation. While the petitioner was in service, he was prosecuted for the offences punishable under section 13 (1) (d) read with section 13 (2) of the Prevention of Corruption Act, 1988 and sections 420 and 468 read with section 120-B of the Indian Penal Code. Since the said case was pending trial at the time of his retirement, upon retirement, the petitioner was sanctioned only payment of provisional pension under rule 3A of Part III, Kerala Service Rules. Long after he retired from service, by judgment delivered on 25.7.2005, the Court of the Enquiry Commissioner and Special Judge, Kozhikode convicted and sentenced him to undergo rigorous imprisonment for three W.P.(C) No.33511/2008 2 years and to pay fine. The petitioner thereupon filed Crl. Appeal No.1385 of 2005 in this Court challenging the judgment of conviction and sentence. By Ext.P2 order passed on 16.8.2005, a learned single Judge of this Court suspended the execution of the sentence and ordered enlargement of the petitioner on bail on his executing a bond for Rs.50,000/- with two solvent sureties for the like sum, to the satisfaction of the trial court. 2. While matters stood thus, the Government issued Ext.P3 notice dated 12.5.2006 calling upon the petitioner to show cause why action as contemplated under rule 2 of Part III, Kerala Service Rules should not be taken against him to withdraw his pension permanently. On receipt of Ext.P3 show cause notice, the petitioner submitted Ext.P4 reply dated 8.8.2007. The Government thereafter issued G.O. (Rt.) No.1919/08/RD dated 10.6.2008 withdrawing the pension sanctioned to the petitioner permanently. Thereupon, the District Collector, Kasaragod issued Ext.P5 order dated 20.9.2008 ordering withdrawal of the monthly pension W.P.(C) No.33511/2008 3 sanctioned to the petitioner permanently. The said order was communicated to the petitioner along with a letter dated 4.10.2008 sent by the Tahsildar, Kasaragod. This writ petition was thereupon filed challenging the Government order dated 10.6.2008 and Ext.P5 order passed by the District Collector. 3. The petitioner thereafter filed Crl.M.A. No.1877 of 2009 in Crl.Appeal No.1385 of 2005 praying for stay of the judgment of conviction passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode in C.C.No.26 of 2000. By Ext.P6 order passed on 20.2.2009, this Court stayed the operation of the judgment of conviction and sentence passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode in C.C. No.26 of 2000, subject to the condition that the petitioner shall deposit the entire fine amount within one month from that date. On the petitioner’s application, the time fixed for depositing the fine amount was extended up to 30.6.2009 and the fine amount was accordingly remitted on 26.6.2009 as can be seen from Ext.P7 receipt. This writ petition was thereupon amended W.P.(C) No.33511/2008 4 challenging the Government order dated 10.6.2008 and Ext.P5 order passed by the District Collector in implementation of the Government order. The petitioner contends relying on the decision of a learned single Judge of this Court in Sudheer v. KSRTC (2004 (3) KLT 217) that in view of Ext.P6 order passed by this Court staying the judgment of conviction and sentence passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode, the Government are bound to reconsider the matter. 4. I heard Sri.S.Muhammed Haneef, the learned counsel appearing for the petitioner and Sri.Antony Mukkath, the learned Government Pleader appearing for the respondents. Ext.P5 discloses that it was because of the judgment of conviction and sentence passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode in C.C.No.26 of 2000 that the Government directed withdrawal of the monthly pension sanctioned to the petitioner. In Sudheer v. KSRTC (2004 (3) KLT 217), a learned single Judge of this Court held that where the judgment of conviction and sentence is stayed W.P.(C) No.33511/2008 5 by the appellate court on appeal, the second proviso to rule 18 of Part II of the Kerala State and Subordinate Services Rules, 1958 should not be invoked to dismiss the convicted an employee from service. It was held that the appointing authority will have to await the outcome of the appeal before invoking the second proviso to rule 18 of Part II of the Kerala State and Subordinate Services Rules, 1958. In my opinion, applying the same line of reasoning, as the judgment of conviction and sentence passed by the Court of the Enquiry Commissioner and Special Judge, Kozhikode has been stayed by this Court by Ext.P6 order passed on 20.2.2009, though such order of stay was passed after the Government order dated 10.6.2008 was issued, the Government should reconsider the decision taken by them. I accordingly dispose of this writ petition with a direction that in the event of the petitioner filing an appropriate representation before the Secretary to Government, Revenue Department producing along with it a copy of Ext.P6 order passed by this Court and a certified copy of this judgment, the W.P.(C) No.33511/2008 6 Government shall hear the petitioner and take a decision thereon expeditiously and, in any event, within two months from the date on which the petitioner moves the Government by filing a representation. The entitlement of the petitioner to receive arrears of provisional pension that was withheld following the Government order dated 10.6.2008 and to continue to receive provisional pension will depend on the order to be passed by the Government. If the decision of the Government is adverse to the petitioner, it will be open to him to challenge the same in other appropriate proceedings. The contentions of the petitioner on the merits are kept open. P.N.RAVINDRAN Judge app