IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 4TH DAY OF MARCH 2010 / 13TH PHALGUNA 1931 WP(C) NO. 31855 OF 2009 PETITIONER/S: E.PHILIP, AGED 62 YEARS, RTD. JUNIOR ENGINEER, KSEB, S/O. JACOB RESIDING AT NADUTHODI PARAMBA,, KOOTTOLI, KOZHIKODE. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENT/S: 1 THE KERALA STATE ELECTRICITY BOARD REP. BY ITS CHAIRMAN, VYDHUTHI BHAVAN,, PATTAM, THIRUVANANTHAPURAM. 2 THE CHIEF ENGINEER (H.R.M.) VYDHUTHI BHAVAN, PATTOM,, THIRUVNANTHAPURAM. 3 THE CHIEF VIGILANCE OFFICER KERALA STATE ELECTRICITY BOARD,, VYDHUTHI BHAVAN, PATTOM,, THIRUVANANTHAPURAM. 4 THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD,, TRANSMISSION CIRCLE,, KANNUR. BY ADVS. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2- W.P.(C). No. 31855 of 2009 JUDGMENT The petitioner is a retiree from the Kerala State Electricity Board (for short 'KSEB'). He retired on 30.6.2001 while working as Junior Engineer in the Transmission Circle, Kannur. This writ petition is filed, mainly, seeking quashment of Ext.P4, which is an order of the 1st respondent whereby and whereunder the petitioner's retiral benefits were withheld pending final decision in Crl.Appeal No.1744 of 2003, by this Court. 2. The facts in brief, necessary for the purpose of disposal of this case are as follows:- While working as a Junior Engineer in Electrical Major Section, Pottammal in Kozhikode District, the petitioner was placed under suspension pursuant to his detention in police custody following detection of acceptance of illegal gratification from a consumer, in a trap set by the Vigilance and Anti-corruption Bureau, Kozhikode. He was re-instated in service on 19.6.2001 and as already noted, retired on 30.6.2001. In connection with the aforesaid incident a crime was registered against the petitioner as V.C.No. 5 of 1999 and later it was taken on the file of the Enquiry Commissioner and Special -3- W.P.(C). No. 31855 of 2009 Judge, Kozhikode as C.C.No.18 of 2000. In such circumstances, on his retirement he was granted only minimum pension as per Ext.P1 and his other retiral benefits were not paid. Later, as per judgment dated 13.10.2003 in C.C.No.18/2000 the petitioner was convicted and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.25,000/-, and in default of payment of fine he was ordered to undergo simple imprisonment for a period of one year. Against the judgment of conviction and sentence he filed appeal as Crl. Appeal No.1744 of 2003 and pending final consideration of the appeal the sentence imposed on him was suspended. On 17.12.2003 Ext.P2 notice was issued to him as to why the entire pensionary benefits should not be withheld permanently. Soon on its receipt he submitted Ext.P3 reply requesting not to withhold the provisional pension that is being paid to him and stated that its withholding would put him and his family to starvation. According to him, long later, Ext.P4 dated 7.8.2009 was served on him carrying the decision to withhold his pension permanently pending final decision in Crl.Appeal No.1744 of 2003 since he was convicted for a serious offence by the Vigilance Court. It is in the said circumstances that the captioned writ petition -4- W.P.(C). No. 31855 of 2009 has been filed. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSEB. 4. The core contentions of the petitioner is that Rule 2 of Part III of Kerala Service Rules (for short 'KSR') is inapplicable in his case as the cause of action was with respect to an alleged act done by him while in service. In other words, the said provision deals only with conditions for grant of pension and enjoining future good conduct as a pensioner for the same and therefore, it is applicable only to those pensioners who had done certain acts after he/she became a pensioner. So also, it is contended in terms of sub-clause 3 (b) of Rule 2, Part III of KSR consultation with the Public Service Commission is a pre-requisite for exercising the power and the said mandatory procedure was not followed. I am of the firm view that the contentions as above need not be gone into in deep at this stage and it is only proper and just to grant liberty to the petitioner to raise it appropriately, for various reasons. As on today, it cannot be said that the petitioner is not a convict as the Enquiry Commissioner and Special Judge convicted and sentenced him to undergo Rigorous -5- W.P.(C). No. 31855 of 2009 Imprisonment for three years and to pay a fine of Rs.25,000/- as per the judgment dated 13.10.2003 in C.C.No.18/2000. In Crl.Appeal No.1744/2003 this Court only suspended the execution of the sentence imposed on him. Now, a perusal of the impugned Ext.P4 order would show that what was ordered thereunder is that the decision to withhold the petitioner's pensionary benefits, though ordered on permanent basis, it is, in effect, subject to the final decision in Crl.Appeal No.1744/2003. In such circumstances, it is evident that in case of a favourable decision in the said appeal the decision in Ext.P4 would be revisited. That apart, the contention of the petitioner that Rule 2 of Part III KSR is inapplicable, cannot be accepted without a deep consideration as prima facie one cannot find fault with its application as what it provides is the power to withhold or withdraw a pension or part thereof, whether permanently or for a specified period if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. That apart the contention of the petitioner that it is applicable only if commission of serious crime or grave misconduct was while in service also cannot be accepted without a careful, deep consideration taking note of the nature of -6- W.P.(C). No. 31855 of 2009 provision under Rule 2 of Part III, KSR and also taking into account the fact that the petitioner's retirement from service was on 30.6.2001 and he was convicted and sentenced in C.C.No.18/2000 as per order dated 13.10.2003. 5. Hence, taking into account all such aspects, I am of the view that Ext.P4 would actually become final only subject to the outcome of Crl.Appeal No.1744/2003 and sometimes, a contingency to consider the above contentions of the petitioner may not become necessary. Hence, subject to such observations and leaving liberty to the petitioner to take all the above and other legal and factual contentions, in case it has become necessary this writ petition is dismissed. Sd/- C.T.RAVIKUMAR JUDGE das -7- W.P.(C). No. 31855 of 2009 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER SANCTIONING MINIMUM PENSION OF THE PETITIONER EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF THE REPLY OF THE PETITIONER EXHIBIT P4 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 7.8.09 RESPONDENT'S/S EXHIBITS: EXHIBIT R1(a) TRUE COPY OF THE CIRCULAR DATED 07.01.1985