Kerala High Court
State Of Kerala vs P.V.Pappan on 9 February, 2021
Author: Alexander Thomas
Bench: Alexander Thomas, T.R.Ravi
OP(KAT)No.231/2020 1
(CR)
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
OP(KAT).No.231 OF 2020
AGAINST THE ORDERIN OA (EKM) 1001/2017 DT.19.12.2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
PETITIONERS/RESPONDENTS IN OA:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
FINANCE (PENSION B) DEPARTMENT,
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 SENIOR ACCOUNTS OFFICER,
OFFICE OF ACCOUNTANT GENERAL (A & E)
THIRUVANANTHAPURAM 695 039
3 DEPUTY DIRECTOR OF PANCHAYAT,
KASARGOD 671 121
BY SRI.ANTONY MUKKATH, SR. GOVT.PLEADER
RESPONDENT/APPLICANT IN OA:
1 P.V.PAPPAN
S/O. VAVA, PULLYORATHU HOUSE,
CHAMBAKKALA P.O, KOTTAYAM 680 687
(RETIRED PANCHAYAT SECRETARY,
PULUPERIA GRAMA PANCHAYATH,
KASARGOD PIN 671 531].
OP(KAT)No.231/2020 2
ADDL.R2 TO R4 IMPLEADED
2 ADDL. R2.:
GIRIJA DEVI,
AGED 53, W/O. LATE P.V. PAPPAN,
CHIRAYIL HOUSE, CHAMAKKALA P.O.,
KOTTAYAM-686603.
3 ADDL. R3.
UTHARA P.P.,
AGED 23, D/O. LATE P.V. PAPPAN,
CHIRAYIL HOUSE, CHAMAKKALA P.O.,
KOTTAYAM-686603.
4 ADDL. R4.
URMILA P.P.,
AGED 22, D/O. LATE P.V. PAPPAN,
CHIRAYIL HOUSE, CHAMAKKALA P.O.,
KOTTAYAM-686603.
(ADDITIONAL R2 TO R4 ARE IMPLEADED AS PER ORDER
DATED 15/10/2020 IN IA 1/2020 IN OP(KAT) 231/2020)
R2-4 BY ADV. SRI.K.S.MADHUSOODANAN
R2-4 BY ADV. SRI.M.M.VINOD KUMAR
R2-4 BY ADV. SRI.P.K.RAKESH KUMAR
R2-4 BY ADV. SRI.K.S.MIZVER
R2-4 BY ADV. SRI.M.J.KIRANKUMAR
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 09-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT)No.231/2020 3
(CR)
ALEXANDER THOMAS & T.R. RAVI, JJ.
------------------------------------------------
O.P.(KAT) No.231 of 2020
[Arising out of the impugned final order dated 19.12.2018
in O.A.(Ekm) No.1001/2017 of KAT, Ekm.]
--------------------------------------------------
Dated this the 9th day of February, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned Original Petition (KAT) filed under Articles 226 and 227 of the Constitution of India are as follows: (See page 9 of the paper book of this OP).
"..... ..... to set aside Exhibit P5 order dated 19.12.2018 in O.A.(Ekm)No.1001/2017 on the file of KAT, Addl.Bench, Ernakulam by allowing the above OP(KAT). "
2. Heard Sri Antony Mukkath, learned Senior Government Pleader appearing for the petitioners/ State of Kerala, Accountant General and Deputy Director of Panchayat in the OP/respondents in the OA and Sri K.S.Madhusoodanan, learned counsel appearing for the legal representatives of the deceased sole respondent in the OP/sole applicant in the OA before the Tribunal.
OP(KAT)No.231/2020 4
3. The State of Kerala and others have filed the instant original petition under Articles 226 and 227 of the Constitution of India to challenge the impugned Ext.P5 final order dated 19.12.2018 rendered by the Kerala Administrative Tribunal, Ernakulam Bench in O.A.(Ekm.)No.1001/2017. The prayers in Ext.P1 OA(Ekm)No.1001/2017 filed by the deceased sole applicant in the Original Application, are as follows; (See page No.20 of this paper book).
"i. Call for Ann-A12 from 1st respondent and set aside the same;
ii. Call for Anns.A8 and A10 from 2 nd respondent and set aside the same;
iii. Declare that the applicant is entitled to full pension from 1-9-2005, he having the qualifying service extended to 33 years 10 months and 11 days;
iv. Direct the respondents to disburse arrears of pension from 1-9-2005 to 26-12-2015 with interest;
v. Grant such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of the case including the costs of this Original Application."
4. After hearing both sides, the Tribunal has rendered impugned Ext.P5 final order dated 19.12.2018 in the above said OA (Ekm)No.1001/2017 and it was ordered that the 1 st respondent therein (Government of Kerala in the Finance Department) was directed to reconsider the matter and issue appropriate orders under Rule 120 of Part III KSR and sanction pensionary benefits to the original applicant from the date of his retirement. OP(KAT)No.231/2020 5
5. The original applicant was working as Panchayat Secretary in the Panchayat Department of the respondent State Government and while working as Secretary in the Puthige Grama Panchayat, Kasargod district, a vigilance case was registered against him, in which the competent Investigating Officer under the Vigilance and Anti Corruption Bureau had completed the investigation and filed the requisite charge sheet before the Court of the Enquiry Commissioner and Special Judge, Kozhikode and the said court has taken cognizance of the offences against the original applicant, which led to the pendency of Calendar Case, C.C.No.49/2003 on the file of the said Court of the Enquiry Commissioner and Special Judge, Kozhikode, in which the original applicant was arrayed as accused No.3 therein. During the pendency of the Vigilance Case at the FIR stage in V.C.No.9/2001 on the file of the Vigilance and Anti Corruption Bureau, Kozhikode, the competent authority had ordered to suspend the original applicant from service as per order dated 04.02.2002 and was later reinstated only on 20.5.2003. Thereafter, he had retired from service consequent to superannuation on 31.08.2005. Presumably, on account of the fact that the above said vigilance case which was by then at the OP(KAT)No.231/2020 6 Calendar Case stage, it appears that the competent authorities concerned had not taken any steps even to regularise the suspension period of the original applicant. It is much later that the Court of the Enquiry Commissioner and Special Judge, has rendered judgment dated 13.04.2010 in C.C.No.49/2003 whereby the original applicant herein, who is accused No.3 therein was acquitted by the said Court. Further, it appears that the competent authorities concerned were taking the stand that in view of the fact that the competent criminal court concerned, viz, the Court of the Enquiry Commissioner and Special Judge, Kozhikode has even taken cognizance, consequent to the filing of the final report/charge sheet in V.C.No.9/2001, which led to the pendency of C.C.No.49/2003, the original applicant is not entitled for full pensionary benefits, since judicial proceedings within the meaning of the operative portion of Rule 3 Part III KSR was pending and therefore pensionary benefits of the original applicant were liable to be withheld in view of the mandate contained in Rule 3A of Part III KSR. Be that as it may, the fact of the matter is that the competent authorities concerned had never regularised even the suspension period of the original applicant for the period from 4.2.2002 to 19.5.2003 and in such a fluid state OP(KAT)No.231/2020 7 of affairs, that even if the original applicant had filed the pension papers immediately after his retirement on 31.08.2005, the departmental authorities would have taken the usual stand that since even the last pay of the applicant could have been fixed only after the regularisation of the suspension period and in view of the pendency of the Calendar Case before the competent criminal court and in view of the mandate contained in Rule 3A of Part III KSR on account of the pendency of judicial proceedings as envisaged in the operative portion of Rule 3 Part III KSR, practically nothing would have turned out. It is on account of these factors that the original applicant had not formally submitted the papers for grant of pension immediately after his retirement. It is common ground that though the criminal court had acquitted the original applicant by rendering the judgment in C.C.No.49/2003 as early as on 13.04.2010, the competent authority of the State Government in the Vigilance Department had issued Annexure A1 Government order GO(Rt)No.11/2013/Vig. dated 10.01.2013, ordering the regularisation and suspension period of the original applicant subject to certain conditions and the said order has been issued only as late as on 10.01.2013. It is thereafter that the Deputy OP(KAT)No.231/2020 8 Director of Panchayats, Kasargod has issued Annexure A2 proceedings dated 30.12.2013 fixing the pay of the original applicant consequent to the regularisation of the suspension period. Still further, the formal order sanctioning the pay fixation is ordered only as per Annexure A3 dated 13.08.2014. It is common ground that the original applicant had submitted his pension papers on 01.11.2013 even before the Deputy Director of Panchayats, Kasargod, had issued Annexure A2 order dated 30.12.2013 fixing his pay consequent to regularisation of the suspension period and the issuance of Annexure A3 order dated 13.08.2014 sanctioning his pay fixation. It may also be pertinent to note the stand of the petitioners herein/respondents in the OA, as made out in in para.No.3 of Ext.P4 reply statement dated 16.09.2017 (see page 60 of this paper book) filed by the 3 rd respondent in the OA/Deputy Director of Panchayats, Kasargod, that the said Deputy Director of Panchayats had sent office letters dated 12.12.2005, 15.02.2006, 26.05.2006, 17.08.2006, 30.12.2006, 03.04.2007, 17.08.2007, 06.10.2008 and 19.03.2010 requesting the applicant to submit the pension papers were issued. From this admitted case of the Deputy Director of Panchayats, it can be seen that all these communications sent by OP(KAT)No.231/2020 9 him to the original applicant was at a time, which is even prior to the rendering of the judgment by the criminal court acquitting the original applicant on 13.04.2010. The petitioners have no case that they had at any time regularised the suspension period of the original applicant so as to even enable the departmental authorities concerned to fix the last pay of the original applicant for the purpose of even consideration of grant of provisional pension in terms of Rule 3A of Part III KSR.
6. Even after the original applicant had submitted the requisite pension papers before the petitioners on 01.11.2013, no action was forthcoming from them and this impelled the the original applicant to approach the Kerala Administrative Tribunal, Ernakulam Bench by filing O.A.No.957/2016. The Tribunal after hearing both sides, passed a well considered final order as per Annexure A11 dated 21.02.2017 and it will be pertinent to extract paragraph 5 of Annexure A11 order of the Tribunal (see pages 43 and 44 of this paper book), which reads as follows;
"5. On consideration of the facts it is found that as on the date of retirement of the applicant a vigilance case CC 49/2003 was pending against the applicant. It is also noted that the applicant had been under prolonged suspension from 4.2.2002 to 19.5.2003. It is also noted that the vigilance case ended in an acquittal only on 13.4.2010 and the period of suspension was regularised by an order dated 10.1.2013 and the pay of the applicant was fixed and was sanctioned the arrears by an order dated 30.12.2013. It is noted that OP(KAT)No.231/2020 10 immediately on regularisation of the suspension period the applicant has submitted the pension papers on 1.11.2013. It is also to be noted that where a vigilance case is pending against an employee the employee would not be sanctioned his due pension. The pay of the applicant has been fixed and the arrears of salary was also disbursed only by Annexures A2 and A3 orders dated 30.12.2013 and 13.8.2014 respectively. The applicant has submitted his pension papers immediately after conclusion of the vigilance case and the regularisation of the suspension period. Therefore it was a case where a special order could be issued by the first respondent as per Rule 120 of Part III KSR. Even in cases where pension is sanctioned after three years of retirement even then the employee would be eligible for pension from the date of retirement provided the Government issues special orders to this effect. In view of the facts noted above this is a case wherein special orders had to be issued by the first respondent."
7. The above said observations and findings made by the Tribunal at Annexure A11 have become final and conclusive. No challenge has been made at the instance of respondents therein/petitioners herein as against the said findings and directions issued by the Tribunal in Annexure A11. The Tribunal held categorically that since the applicant has submitted his pension papers immediately after the conclusion of the criminal case and even before the regularisation of the suspension period, this is a fit case where the Government should not stand on technicalities based on Rule 120 of Part III KSR and that the Government is to immediately respond to the situation by passing special order as envisaged in Rule 120 of Part III KSR, so that pension is sanctioned to the original applicant with effect from the OP(KAT)No.231/2020 11 date of retirement and not from the date of his application for grant of pension. The petitioners herein/respondents therein have not made any challenge against the well considered findings and directions issued by the Tribunal in Annexure A11 final order, but in the same breath on the one hand petitioners herein decided not to challenge Annexure A11 order and have chosen to purportedly comply with it and in the same breath the petitioners have passed the impugned Annexure A12 G.O. (Rt)No.3230/2017/Fin. dated 06.04.2017 holding that the Government is not in a position to sanction pensionary benefits from the date of retirement of the original applicant. From a reading of Annexure A12, it can be seen that no reasons are stated as to why according to them special orders cannot be issued in terms of Rule 120 of Part III KSR. The Government has also not adverted to the above said crucial findings of the Tribunal, more particularly, paragraph No.5 at Annexure A11 final order. It can be seen that thus the Government has mechanically held that the Government is not in a position to sanction pensionary benefits to the original applicant from the date of his retirement and all what is stated therein is that the applicant had submitted pension papers only on 01.11.2013 and that there is no administrative OP(KAT)No.231/2020 12 delay in sanctioning pension on the part of the departmental authorities concerned. It is this order at Annexure A12 that is under challenge in OA(Ekm)No.1001/2017. The Tribunal has now rendered the impugned Ext.P5 final order dated 19.12.2018 allowing the main pleas of the original applicant in OA(Ekm)No.1001/2017 and it has been categorically held by the Tribunal in Ext.P5 order that the nothing would have materialised, even if the applicant had formally submitted his pension papers on his retirement on 31.8.2005 or immediately thereafter. Accordingly, the Tribunal has issued the aforesaid impugned directions in favour of the original applicant. It is this order at Ext.P5, which is under challenge in this original petition filed before this Court.
8. After hearing both sides, we are of the considered view that this was a case where the petitioners should not have challenged the order passed by the Tribunal in Ext.P5, more particularly, after the rendering the previous order of the Tribunal at Annexure A11. Further, in view of the admitted factual position, the stand of the Tribunal cannot be faulted in any manner and we are inclined to take the view that the said stand is a reasonable view in the matter, which should have been complied with by the OP(KAT)No.231/2020 13 petitioners without making any challenge thereto. Facts in this case are not disputed. It is common ground that the original applicant while was working as Secretary of the Grama Panchayat concerned, a vigilance case by way of FIR was registered against him as V.C.No.9/2001 in the year 2001 of the Vigilance and Anti Corruption Bureau, Kozhikode . It is also not in dispute that the Vigilance and Anti Corruption Bureau authorities have completed the investigation and have filed final report and charge sheet in the year 2003 in which the criminal court concerned (Court of Enquiry Commissioner and Special Judge, Kozhikode) has taken cognizance of the offences against the original applicant, which led to the pendency of Calendar Case, C.C.No.49/2003. It is also common ground that immediately after the registration of the vigilance case, the applicant had remained under suspension for the period from 04.02.2002 to 19.05.2003. It is thereafter that the applicant had retired from service on 31.08.2005. It is also not in dispute that the criminal case was pending for a long time, even thereafter and the judgment of acquittal was rendered by the criminal court only on 13.04.2010. It is not in dispute that since the original applicant was suspended from service on account of registration of a vigilance case, the competent authority to OP(KAT)No.231/2020 14 regularise his suspension period is the Government in the Vigilance Department. The Government in the Vigilance Department has taken steps to regularise the suspension period of the original applicant only as late as on 10.01.2013 as can be seen from Annexure A1 GO(Rt)No.11/2013/Vig. dated 10.01.2013 . It is only thereafter that even the Deputy Director of Panchayats, Kasargod could take steps to fix the applicant's pay, which has been done only on on 30.12.2013 by the issuance of Annexure A2 order. Still further, the formal order sanctioning pay fixation has been rendered only on 13.08.2014 as can be seen from Annexure A3. It is common ground that the original applicant had submitted pension papers 01.11.2013, immediately after the issuance of the Annexure A1 order dated 10.01.2013. Annexure A5 is a Government circular No.77/2011/Fin. dated 02.11.2011 issued by the competent authority of the State Government in the Finance/Pension Department and clause 5 of Annexure A5 would stipulate that steps should be taken for sanctioning pension to all retirements immediately, except in cases involved in vigilance proceedings/judicial proceedings. It is also stated in clause 6 of Annexure A5 that if there is any delay on the part of the pension sanctioning authorities concerned to sanction the pension, then OP(KAT)No.231/2020 15 strict action would be taken against them in all cases, except in cases involving vigilance proceedings/judicial proceedings. So, it can be seen that even if the applicant had filed pension papers immediately after his retirement on 31.08.2005, nothing could have materialised except that the pension paper would have been received and would have been processed and that the departmental authorities concerned could have definitely taken the stand that since the vigilance case has not been finalised by the competent court and that the competent authority to regularise the suspension period of the applicant in a case like this would be only the competent authorities in the Vigilance Department as the suspension of the applicant was on account he being implicated in a vigilance case. Further that, there cannot be any dispute that even in such a case, Vigilance Department would have taken the stand that they can even consider or contemplate passing order to regularise the suspension period of an incumbent like the applicant only after the criminal court passes final verdict in the criminal proceedings concerned. In the instant case, judgment of acquittal was rendered only on 13.04.2010. Even thereafter, none of the authorities have moved their little finger, except all of them in unison blaming that the applicant has not cared to submit the OP(KAT)No.231/2020 16 pension papers immediately after his retirement on 31.08.2005. Though the judgment of acquittal was rendered as early as on 13.04.2010, we fail to understand as to why the competent authority of the Statement Government in the Vigilance Department has taken about three years in passing Annexure A1 order only as late as on 10.01.2013. Further, we fail to understand as to why the Deputy Director of Panchayats has not taken expeditious action to fix the last pay of the applicant which is seen done only as late as on 13.12.2013 as per Annexure A2, which is after the expiry of the lapse of 11 long months after the issuance of Annexure A1 G.O. dated 10.01.2013. Thereafter, the formal order sanctioning the pay fixation is made only as late as on 13.08.2014 as per Annexure A3. So, it can be seen that there is delay of more than 9 months even in issuing Annexure A3 fixation sanction which is only a formality, after the issuance of Annexure A2 order dated 30.12.2013. So, it appears that even after the judgment of acquittal by the criminal court in favour of the original applicant, the State/Departmental authorities concerned have not moved their little finger with any expedition and has been sitting on the papers and has passed the above said orders only in the year 2013 upto August 2014, whereas the original applicant, immediately OP(KAT)No.231/2020 17 after being made aware about the issuance of Annexure A1 order of regularisation on 10.01.2013, has filed the pension papers on 01.11.2013, even before the issuance of Annexure A2 order dated 30.12.2013 and Annexure A3 order dated 13.08.2014. In the normal way of functioning of the Government Departments, which we have come across in many cases, the consistent plea would be that they can take steps to fix the pension papers of an incumbent only after being aware about the last pay that is legally entitled to him. Hence, many Departmental authorities would have taken the ordinary stand in these cases that they could have applied their mind for taking steps for sanctioning the pensionary benefits like the instant case only after the issuance of the formal order sanctioning the pay fixation, which in this case was as late as on 13.08.2014, as the consistent plea of the officials concerned would be that they are unable to process the claim for sanction of pension without knowing the last pay of the incumbent concerned. So, in the instant case, prima facie, we are of the firm view that even the scenario as envisaged in Rule 120 of Rule 3 Part III KSR may not actually arise. Rule 120 of Part III KSR coming under Section 1 Chapter IX of Part III KSR reads as follows.
"Rule 120. The preceding Rule applies to ordinary, not to special cases. If, under special circumstances a pension is OP(KAT)No.231/2020 18 granted after three years an employee has retired, retrospective effect should not be given to it without the special orders of the Government which granted it; in the absence of special orders, such a pension takes effect only from the date of sanction. No Government sanction is necessary, if the pension is granted within three years from the date of retirement."
9. There cannot be any quarrel in the stipulation in Rule 119 of Part III KSR that an ordinary pension is taken from the date on which the pensioner ceased to be borne on the establishment. However, it is qualified with the condition that apart from special orders an ordinary pension is payable from the date on which the pensioner ceased to be borne on the establishment. Therefore a combined reading of Rule 119 and Rule 120 of Part III KSR would indicate that according to understanding of the rule making authority Rule 119 applies to ordinary cases. Under special cases and if under special circumstances a pension is granted long after the employee has retired, retrospective effect should not be given to him without special order of the Government which granted it and in the absence of special order the said pension takes effect only from the date of sanction as per Rule 120. Strictly speaking, the adverse scenario envisaged in the second limb of Rule 120 of the Part II KSR would come into play only if the reasons for the delay in submitting the pension papers is solely on account of the fault of the pensioner concerned and that if he had submitted the OP(KAT)No.231/2020 19 pension papers immediately after his retirement, there was no legal impediment whatsoever for the authorities concerned to consider and pass orders on the sanction of pension, etc. In the instant case, since even the regularisation of the suspension period has been rendered long after the judgment of acquittal and even the formal orders regarding determination of last pay and pay fixation has been done only as late as on 30.12.2013 as per Annexure A2 and on 13.8.2014 as per Annexure A3 order. The Tribunal has rightly held that nothing would have materialised, even if the applicant had submitted the pension immediately thereafter.
10. The learned Senior Government Pleader would point out that in a case like this, the incumbent would have submitted pension papers so that the departmental authorities concerned could have taken immediate steps to sanction at least provisional pension as envisaged in Rule 3 Part III KSR and the last pay prior to the regularisation could have been taken as the last pay of the incumbent concerned. Those matters may be relevant in the domain of consideration for provisional pension. We are now mainly concerned with the legality and correctness of the direction issued by the Tribunal at Ext.P5 which are in relation to matters OP(KAT)No.231/2020 20 concerning the grant of full pension to the original applicant after his acquittal and after conclusion of the judicial proceedings as envisaged in the operative portion of Rule 3 Part III KSR. Therefore, in the light of these aspects, if at all any special order was required as envisaged in Rule 120 on account of the long, unexplained and inordinate delay on the part of the authorities concerned in issuing Annexure A1 order dated 10.01.2013, Annexure A2 dated 30.12.2013 and Annexure A3 order dated 13.08.2014 even after the judgment of acquittal being rendered as early as on 13.04.2010, it was the bounden obligation of the State authorities including the petitioners herein to act upon with all expedition after receiving the pension papers of the applicant on 1.11.2013. Therefore, without standing on any technicalities, the Tribunal has shown the light to the State authorities by rendering of a well considered verdict in the previous round of litigation which culminated in Annexure A11 final order dated 21.2.2017 in O.A.(Ekm)No.957/2016 filed by the original applicant on the previous occasion. As observed hereinabove, the said findings of the Tribunal, more particularly, para.No.5 of Annexure A11 about the steps to be taken further in the matter has not been challenged by the petitioners in the manner known to law. After accepting OP(KAT)No.231/2020 21 those findings of the Tribunal, it is not right and proper for the petitioners to again take the stand that they are not in a position to sanction pension in favour of the original applicant from the date of his retirement, but only from the date of submission of his pension papers.
11. Even after the Tribunal has rendered the present impugned Ext.P5 final order on 19.12.2018, the story has not ended there. The petitioners have filed the present OP(KAT) before this Court on 13.07.2020, which is one year and 7 months thereafter. Further, it appears that the beneficiary of Annexure A11 and Ext.P5 final orders of the Tribunal is no more with us and he has died on 23.7.2019. Therefore, this Court has permitted the impleadment of the legal representatives of the deceased sole respondent in this OP/sole applicant in the OA before the Tribunal as additional respondents 2 to 4, who are the widow aged 53 years and two daughters aged 23 and 22 years respectively of the deceased sole respondent. Widow and children of the deceased pensioner is now awaiting eagerly for justice. We fail to understand as to why the petitioners, after accepting Ext.P5 final order of the Tribunal and instead taking bonafide steps to imbibe the spirit and substance of the directions of the Tribunal OP(KAT)No.231/2020 22 therein, have driven the widow and children of the deceased pensioner to this Court. In the light of these aspects, we are of the firm view that prima facie the rigour of Rule 120 may not apply in a case like the instant one. But assuming that the hypertechnicalities or technicalities as understood by the administrators, require the issuance of a special order by the Government as envisaged in Rule 120, then, the petitioners should have acted with all expedition by taking into account the substance of the directions issued by the Tribunal in Annexure A11 as well as in Ext.P5 and should have issued a special order so that the original applicant is granted pension from the date of his retirement. Even after the rendering of Ext.P5 final order by the Tribunal as early as on 19.12.2018, the petitioners have not cared to challenge the impugned order. On the other hand, after the expiry of long one year and 7 months that they had chosen to file the present original petition before this Court as late as on 13.7.2020. Even before that, unfortunately, the pensioner is no more and he died on 23.7.2019. We are sure that at least at this late stage, the petitioners being the State of Kerala, the Accountant General and the Deputy Director of Panchayats will rise upto the occasion and imbibe the substance and spirit of the OP(KAT)No.231/2020 23 directions issued by the Tribunal both at Annexure A11 and at Ext.P5 and then do the necessary to ensure that the necessary much needed succor is given to the widow and daughters of the deceased pensioner without any further delay.
12. The petitioners have raised yet another strange technical contention based on Rule 135 of Part III KSR, which reads as follows:
"Rule 135. Lapses and Forfeiture.- If a pension remains undrawn for more than Three years the pension ceases to be payable."
13. It is pointed out that Rule 135 Part III KSR deals with lapses and and forfeiture and it stipulates that if a pension remains undrawn for more than three years, the pension cease to be payable. We have already dealt with in detail the state of affairs in a fluid state whereby even the departmental authorities would not have been unaware about the exact and precise last pay of the applicant without regularisation of the suspension period and the issuance of the Government orders for the last pay and sanction of pay fixation, etc. for the purpose of the grant of pensionary benefits, after the termination of the criminal proceedings as understood in Rule 3 Part III KSR. The jurisdictional facts required for the invocation of Rule 135 of Part III KSR would arise OP(KAT)No.231/2020 24 only in a case where the pension has been duly sanctioned and for no justifiable reasons the incumbent is not actually drawing the benefits of the said sanctioned pensionary benefits and if that scenario occurs or the pension remained undrawn for more than three years, then only the resultant situation of cessation of the pension will come into play. The said Rule 135 of Part III KSR can have no application even in the remotest manner in the facts and circumstances of this case and hence we repel the said contention raised by the petitioners based on Rule 135 of Part III KSR.
14. Moreover, to a specific query raised by us, both the learned Senior Government Pleader and Sri K.S.Madhusoodanan, learned counsel appearing for the respondents would submit that now the entire disbursal of pensionary benefits are done electronically by remitting the amounts concerned directly to the account of the pensioner/ beneficiary concerned as in the case of salaries of Government employees. If that be so, prima face, the factual scenario of the pensioner not actually drawing the pension amounts after its sanction, may not arise at all after the dramatic change of the very methodology of disbursal and release of pensionary amounts due to the pensioners concerned. At any rate, the above said Rule 135 OP(KAT)No.231/2020 25 of Part III KSR has no application to the facts and circumstances of this case.
15. Further, there is a cardinal aspect of the matter, which is that it is well established that pension is a property of the pensioner and the right to property guaranteed in Article 300A of the Constitution of India, can be deprived only in accordance with a procedure established by law, which is just, fair and reasonable. We do not have the slightest doubt that in the instance, the deprivation of the property right of the applicant on the basis of the above said aspects, cannot be said to be on the basis of a procedure, that is just, fair and reasonable. Hence the impugned action is illegal and is also ultra vires the provisions in Article 300A of the Constitution of India.
16. Taking note of these aspects, we would only trust and hope that the petitioners would certainly rise upto the occasion to ensure that hypertechnical pleas are given a go-by and the necessary much needed succor is given to the widow and daughters of the deceased pensioner without any further delay.
17. For these reasons, we find that the original petition is OP(KAT)No.231/2020 26 devoid of any merit. The impugned Ext.P5 final order was rendered by the Tribunal as early as on 19.12.2018. The time limit for compliance of the said directions was two months, has expired long ago. Hence, we order that the petitioners will immediately take steps to ensure that the directions of the Tribunal at Ext.P5 are complied with, without any further delay, at any rate within an outer limit of six weeks from the date of production of a copy of this judgment. To that limited extent alone the impugned final order Ext.P5 would stand modified.
18. The learned counsel for the original applicant will ensure that certified copy of this judgment is forwarded to the 1 st petitioner State of Kerala by registered speed post with acknowledgment due and photocopies of the judgment are forwarded to petitioners 2 and 3 by registered speed post with acknowledgment due and the time limit of six weeks would start running from the date of receipt of the copies of the judgment. The learned Senior Government Pleader will also ensure that copies of the judgments are duly forwarded to all the petitioners by the Secretary of the Office of the Advocate General immediately, for necessary information.
OP(KAT)No.231/2020 27
With these observations and directions, the above original petition will stand dismissed. However we desist from ordering payment of cost in this case.
Sd/--
ALEXANDER THOMAS, JUDGE Sd/-
T.R. RAVI, JUDGE dsn OP(KAT)No.231/2020 28 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OA (EKM) NO. 1001/2017 ANNEXURE A1 PHOTOCOPY OF THE G.O(RT) NO. 11/2013/VIG DATED 10-01-2013 ISSUED BY THE 1ST RESPONDENT.
ANNEXURE A2 TRUE COPY OF FIXATION ORDER NO.
B1/9669/2013 DATED 30-12-2013 ISSUED BY
THE 3RD RESPONDENT
ANNEXURE A3 PHOTOCOPY OF THE FIXATION APPROVAL ORDER
NO. LF/K.S.D.5-628/2014 DATED 13-08-2014
OF DEPUTY DIRECTOR, LOCAL FUND AUDIT,
KASARGOD
ANNEXURE A4 PHOTOCOPY OF DELAY CONDONATION PETITION
DATED 19-08-2014 OF THE APPLICANT
ANNEXURE A5 PHOTOCOPY OF CIRCULAR NO. 77/2011/FIN
DATED 02-11-2011
ANNEXURE A6 PHOTOCOPY OF THE ORDER NO. G.O(P) NO.
236/2014/FIN DATED 21-06-2014 ISSUED BY
THE 1ST RESPONDENT
ANNEXURE A7 PHOTOCOPY OF ORDER NO. EP B1-38715/15 WW
1 (FINANCE) DATED 12-11-2015 ISSUED BY
THE 1ST RESPONDENT
ANNEXURE A8 PHOTOCOPY OF VERIFICATION ORDER NO. P.R
2101653219/P-1/12/1016283339 DATED 01-02- 2016 ISSUED BY 2ND RESPONDENT.
ANNEXURE A9 PHOTOCOPY OF VERIFICATION REPORT DATED 10-03-2016 OF THE SENIOR ACCOUNTS OFFICER, ANNEXURE A10 PHOTOCOPY OF LETTER DATED 11-03-2016 ACCOUNTS OFFICER ACCOUNTS GENERAL (A&E) THIRUVANANTHAPURAM ANNEXURE A11 PHOTOCOPY OF THE ORDER NO. O.A(EKM) 957/2016 DATED 21-02-2017 OF THE HON'BLE TRBUNAL (EKM), BENCH OP(KAT)No.231/2020 29 ANNEXURE A12 PHOTOCOPY OF THE ORDER NO. G.O(RT) 3230/2017/FIN DATED 06-04-2017 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT ANNEXURE R1(A) TRUE COPY OF THE GO(RT) NO. 3230/FIN DATED 06-04-2017.
EXHIBIT P3 REPLY STATEMENT FILED BY THE 2ND
RESPONDENT
EXHIBIT P4 REPLY STATEMENT FILED BY THE 3RD
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE ORDER IN O.A(E) NO.
1001/2017 DATED 19-12-2018.