IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WA.No. 8 of 2008 ------------------------ AGAINST THE JUDGEMENT IN O.P. NO. 27840/2002. .................... APPELLANTS/ RESPONDENTS: --------------------------------------------- 1. THE DISTRICT COLLECTOR, KASARAGOD. 2. THE ACCOUNTANT GENERAL (A&E), TRIVANDRUM. 3. THE SUB TREASURY OFFICER, KASARAGOD. BY GOVERNMENT PLEADER. RESPONDENT/ PETITIONER: ----------------------------------------- A.P.JANARDHANAN, KULLA HOUSE, POST EDANAD, KUMBLA, KASARAGOD DISTRICT. BY ADV. SRI.K.SHRI HARI RAO. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.A.No.8 of 2008 ======================== Dated this the 19th day of March, 2008. JUDGMENT Balakrishnan Nair,J. The appellants are the respondents in the writ petition. The respondent is the writ petitioner. He was a Village Officer working in Kasaragod District. The Vigilance police set a trap and the writ petitioner was caught while receiving bribe from the beneficiary of a Government scheme. He was placed under suspension on 1.6.1995 by Ext.P1 order. After framing the charge against the petitioner the matter was referred to the Vigilance Tribunal. The Tribunal submitted the enquiry report finding the writ petitioner guilty of the charges, but it was suggested to impose the penalty of compulsory of retirement from service. The Government after taking into account the relevant materials and in consultation with the Public Service Commission, imposed the punishment of compulsory retirement from service by Ext.P2 order dated 12.12.2000. The punishment WA 8/08 -: 2 :- order was given retrospective effect from 2.6.1995. The retrospectivity given to the punishment order was challenged in O.P.No.7636 of 2001. The learned single Judge allowed that original petition. The Government filed W.A.No.2773 of 2007 against the said judgment. The said writ appeal is pending before this Court. 2. The District Collector, Kasaragod as the competent authority directed to recover Rs.1,81,688/- from the D.C.R.G. of the petitioner. The said amount was the subsistence allowance paid to him from 2.6.1995 to 30.11.2000. The Accountant General informed the Sub Treasury Officer, Kasaragod to recover the amount from his D.C.R.G. by Ext.P3 communication dated 8.8.2002. This writ prtition was filed challenging Ext.P3. The learned Judge quashed Ext.P3 and held that no recovery could be made from the amount paid to him by way of subsistence allowance. The aggrieved Government has preferred this writ appeal. 3. Heard the counsel on both sides. It is common case that the recovery of subsistence allowance from the pensionary benefits is governed by Note 6 of Rule 56B of Part, K.S.R. The WA 8/08 -: 3 :- said Note reads as follows: "If an officer under suspension is compulsorily retired with retrospective effect from the date of suspension, the pension due to the officer from the date of such retirement to the date of the order compulsorily retiring him shall be withheld if the rate of pension is lower than or equal, to the rate of subsistence allowance granted to him. In case the pension happens to be higher than the subsistence allowance granted, the difference shall be paid to the officer. Note 6 shall be deemed to have come into force with effect from 22nd August, 1960." The Government decision under the above note says that the term 'pension' used therein does not include D.C.R.G. 4. In view of the above position, the recovery directed to be made as per Ext.P3 from the D.C.R.G. is illegal. So, we find nothing illegal with the decision of the learned single Judge to the extent it quashes recovery of D.C.R.G. as per Ext.P3. But it is clarified that the powers of the Government or the competent authority to adjust the subsistence allowance paid to him towards pension in view of the above quoted Note 6 to Rule 56B of Part I, WA 8/08 -: 4 :- K.S.R. will not be affected by the judgment of the learned single Judge. The powers in this regard can be exercised if so advised. It is made clear that it will be subject to the final judgment in W.A.No.2773 of 2007 in which the validity of the decision of the Government to compulsorily retire the writ petitioner with retrospective effect is under challenge. The terminal benefits admittedly due to the first respondent herein, according to the Government, shall be released to him within two months from the date of receipt of production of a copy of this judgment. Writ appeal is disposed of as above. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 22/3