GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS writ petition comes before us on a reference by a learned judge, who felt that the question raised in the petition had to be decided by a larger Bench.

(2.) THE petitioner retired from Government, service on 28/2/1979. At the time of retirement, he was holding the post of Lay Secretary and Treasurer, Women and Children Hospital, Alleppey, which post he took charge on 30-4-1976 afternoon. After retirement the Superintendent of the Women and Children Hospital , Alleppey, sent a communication Ext. P1 to District Medical Officer of Health, forwarding a non-liability certificate of the petitioner dated 28/9/1979. Death-cum-retirement gratuity for short D. C. R G. was not paid to the petitioner despite this communication. A few months later, the petitioner received a note, ext. P2 dated 3/12/1979 from the Director of Health Services saying that an amount of Rs. 2. 174. 39 should be withheld from the gratuity of the petitioner. On the basis of this note, the 2nd respondent Director of Health Services sent a communication to the District Treasury Officer, Ernakulam, forwarding a non-liability certificate of the petitioner. Ext. P3 dated 13/12/1979. Ext. P3 directs the District Treasury Officer to withhold an amount of Rs. 2189. 24 from the death-cum-retirement gratuity of the petitioner. Ext. P3 (a) is the non-liability certificate. Subsequently, the 3rd respondent, Accountant-General of Kerala, Trivandrum, sent a communication, Ext. P4, dated 4-3-1980 to the 2nd respondent directing him to withhold an amount of Rs. 2204. 09 from the death-cum-retirement gratuity of the petitioner. Aggrieved by this order, this petition is filed to quash Exts. P2, p3, P3 (a) and P4, and for a direction to the respondents to disburse the amount of Rs. 2204. 09 withheld from the death-cum-retirement gratuity of the petitioner.

(3.) WE will examine this contention presently. R. 3 with the relevant proviso reads as follows: "3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement. Provided that (a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during bis re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service; (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment, (i) shall not be instituted save with the sanction of the government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during bis service; (c) no such judicial proceeding, if not instituted while the employee was in service whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution; and (d) the Public Service Commission shall be consulted before final orders are passed. From a reading of the rule it is clear that the right reserved with the Government relates to withholding the pension or, a part of it. In this case, what is involved is not pension.