{"id":265163,"date":"2022-04-08T12:00:00","date_gmt":"2022-04-08T06:30:00","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=265163"},"modified":"2022-04-15T15:17:38","modified_gmt":"2022-04-15T09:47:38","slug":"can-employee-claim-death-cum-retirement-gratuity-where-a-criminal-appeal-in-corruption-case-is-pending-against-him-and-sentence-is-suspended-sc-answers","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/04\/08\/can-employee-claim-death-cum-retirement-gratuity-where-a-criminal-appeal-in-corruption-case-is-pending-against-him-and-sentence-is-suspended-sc-answers\/","title":{"rendered":"Can employee claim Death-cum-Retirement Gratuity where a criminal appeal in corruption case is pending against him and sentence is suspended?\u00a0 SC answers"},"content":{"rendered":"

Supreme Court: <\/strong>In an interesting case where the Division Bench of Sanjay Kishan Kaul*<\/strong> and M.M. Sundresh, JJ., was to answer whether pending criminal appeal, and with the sentence being suspended, could the DCRG be directed to be released on the construction of the applicable rules, the Bench resolved the issue against the employees and held there was not statutory mandate that DCRG should be released to the respondents pending consideration of the criminal appeal.<\/p>\n

The moot question before the full Bench of the Kerala High Court was whether on conviction in a criminal case for violation of integrity norms in performance of official duties and an appeal pending before the High Court, is the employee still entitled to the release of his Death-cum-Retirement Gratuity (DCRG). The High Court, by the impugned judgment had ruled in favour of the employees and had held that the recovery under Rule 3 of Kerala Services Rules could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.<\/p>\n

The Rules in Question <\/strong><\/span><\/h4>\n

The Rule 3<\/strong> of Kerala Services Rules reads as:<\/p>\n

\u201cwithholding 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\u2026\u201d<\/em><\/p>\n

Whereas, Rule 3A<\/strong> provides that:<\/p>\n

\u201c3-A. (a) Where any departmental or judicial proceedings is instituted under Rule 3 or where a departmental proceeding is continued under clause (a) of the proviso thereto, against an employee who has retired on attaining the age of compulsory retirement or otherwise he shall be paid during the period commencing from the date of his retirement to the date on which, upon conclusion of such proceeding final orders are passed, a provisional pension not exceeding the maximum pension which would have been admissible on the basis of his qualifying service up to the date of retirement, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension, but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceeding and the issue of final orders thereon.\u201d <\/strong><\/em><\/p>\n

Noticeably, Rule 3 in the KSR deems continuation of service in the case of a delinquent servant even after superannuation if any departmental or judicial proceedings are initiated, for the limited purpose of their finalisation. In the event of an order of dismissal being passed, even after retirement, the Government servant would have to forfeit his pension and DCRG.<\/p>\n

Impugned Judgment <\/strong><\/span><\/h4>\n

The High Court read the Rule 3 of the KSR as empowering the Government to punish the delinquent employee by withholding, withdrawing or reducing, for a specified period or permanently, the pension payable or to order recovery for any\u00a0 pecuniary loss, but again only from the pension. The Court opined that the same could not be done from the DCRG. While, Rule 3A of the KSR was opined to be only tailored towards the effective implementation of Rule 3 and could not have any separate or distinct consequences.<\/p>\n

Noting that the Rule 3A has two parts, the Court observed that the first part dealt with certain conditions on the disbursal of pension in the cases of a continuing proceeding while the second part allowed DCRG or gratuity to be withheld until the conclusion of the proceedings. By the impugned judgment, the second part was held to have an unnecessary penalising effect on an employee while proceedings are pending and would have onerous consequences if the proceedings ended in exoneration since the provision did not contemplate any modality for re-compensation if the DCRG is paid after a long period of time.<\/p>\n

Further, observing that Note 2 to Rule 3 provided that the word \u2018pension\u2019 did not include DCRG and, that that liabilities could be recovered from DCRG only after giving the employee a reasonable opportunity to explain, the Court held that the recovery under Rule 3 could only be against pension and not DCRG, and Rule 3A insofar as it permitted DCRG to be withheld was struck down.<\/p>\n

Analysis and Interpretation by the Court <\/strong><\/span><\/h4>\n

Noticeably, the State in its wisdom had preferred to await the outcome of criminal proceedings in the instant case and had not initiated any separate departmental proceedings. Rule 3 of the KSR provides that Government reserves to themselves the right to withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and all its ramifications. Further, the word pension is clarified by Note 2, as it would not include DCRG. Thus, DCRG and pension have been dealt with as separate aspects.<\/p>\n

However, on the further reading of Note 2, which provides that the liabilities fixed against an employee or a pensioner can be recovered from DCRG without the departmental\/judicial proceedings but after giving an employee or pensioner concerned a reasonable opportunity to explain, the Bench opined,<\/p>\n

\n

\u201cIf any part of DCRG was not supposed to be available for recovery of amounts, there would be no reason of inclusion of this aspect of DCRG in Note 2 and a view to the contrary would make the latter part of Note 2 otiose.\u201d <\/em><\/strong><\/p>\n<\/blockquote>\n

The Bench observed that Note 2 is further clarified by Ruling 3, which stipulates that Note 2 does not mean that the employee\u2019s or pensioner\u2019s consent should be obtained for recovering the liabilities from DCRG. What has been contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation. Thus, this Ruling No.3 also deals with the DCRG. Therefore, the important aspect before the Bench was whether Rule 3A is to be construed in the context of Rule 3 or should be read independently of itself. The High Court had sought to take a view that Rule 3A is in a sense assisting Rule 3 and does not have any independent existence. The Bench stated,<\/p>\n

\n

\u201cThe High Court, in our view, has introduced a new legislation by undertaking the exercise of reading down. We do believe that there is absolutely no need to do so when the language of the rule is so clear conveying its intended meaning without any ambiguity.\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n

Holding that it was a very restrictive view to disburse DCRG on account of the proceedings against a pensioner coming to an end, even where a conviction had arisen, specially where the convicted person has availed of the remedy of appeal, the Bench reiterated that an appeal is a continuation of the proceedings in trial and would be, thus, a continuation of judicial proceedings.\u00a0 Therefore, pendency of the appeal cannot disentitle the State from withholding the DCRG, considering that it is a hiatus period within which certain arrangements have to be made which would be dependent on the outcome of the appeal.<\/p>\n

Conclusion<\/strong><\/span><\/h4>\n

In the light of the above, the Bench concluded that Rule 3A could not be read in isolation nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement.<\/p>\n

Accordingly, the impugned judgment was set aside holding that it could not be opined that the DCRG would have to be released to the respondents pending consideration of the criminal appeal.<\/p>\n

[Local Self Government Department v. K. Chandran, 2022 SCC OnLine SC 318<\/b><\/a>, decided on 15-03-2022]<\/p>\n

*Judgment by: Justice Sanjay Kishan Kaul<\/strong><\/p>\n

\n

Kamini Sharma, Editorial Assistant has put this report together\u00a0<\/span><\/h4>\n","protected":false},"excerpt":{"rendered":"

Supreme Court: In an interesting case where the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., was to answer whether <\/p>\n","protected":false},"author":67011,"featured_media":265176,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,9],"tags":[49095,2680,2673,9091,49096,37161,49094,9081,13961,5271,4501],"class_list":["post-265163","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-casebriefs","category-supremecourt","tag-anti-corruption","tag-bribe","tag-corruption","tag-criminal-proceedings","tag-death-allowance","tag-departmental-inquiry","tag-employment-law","tag-gratuity","tag-ipc","tag-pension","tag-services"],"yoast_head":"\nCan employee claim Death-cum-Retirement Gratuity where a criminal appeal in corruption case is pending against him and sentence is suspended?\u00a0 SC answers | SCC Times<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.scconline.com\/blog\/post\/2022\/04\/08\/can-employee-claim-death-cum-retirement-gratuity-where-a-criminal-appeal-in-corruption-case-is-pending-against-him-and-sentence-is-suspended-sc-answers\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Can employee claim Death-cum-Retirement Gratuity where a criminal appeal in corruption case is pending against him and sentence is suspended?\u00a0 SC answers\" \/>\n<meta property=\"og:description\" content=\"Supreme Court: In an interesting case where the Division Bench of Sanjay Kishan Kaul* and M.M. 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Babu and V. Chitambaresh, JJ. allowed a petition preferred by the State against the order of Administrative Tribunal granting disbursal of full retirement benefits to an employee who had a criminal case pending against him. Respondent herein, an Additional Tahsildar, was suspended\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":196990,"url":"https:\/\/www.scconline.com\/blog\/post\/2018\/06\/19\/government-entitled-to-withhold-leave-encashment-of-an-employee-pending-criminal-or-departmental-proceedings\/","url_meta":{"origin":265163,"position":1},"title":"Government entitled to withhold leave encashment of an employee pending criminal or departmental proceedings","author":"Bhumika Indulia","date":"June 19, 2018","format":false,"excerpt":"Patna High Court: The Division Bench comprising of Rajendra Menon, CJ, and Ravi Ranjan J., held in a challenge made by the petitioner that withholding his gratuity and encashment of earned leaves was valid if, at the time of superannuation, departmental or criminal proceedings were pending. In a nutshell, the\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":294279,"url":"https:\/\/www.scconline.com\/blog\/post\/2023\/06\/09\/determination-of-gratuity-from-date-termination-of-employment-kerala-high-court\/","url_meta":{"origin":265163,"position":2},"title":"Gratuity determined as per date of termination of employment, not the date of sanction or actual disbursement: Kerala High Court","author":"Ridhi","date":"June 9, 2023","format":false,"excerpt":"Kerala High Court suggested the petitioner to choose between Payment of Gratuity Act, 1972 and Kerala State Housing Board Employees' (Pension and other Retirement Benefits) Regulations, 1990 for claim of gratuity or DCRG, since he cannot have gratuity under one with the ceiling limit payable under another Act.","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"kerala high court","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/06\/kerala-high-court.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/06\/kerala-high-court.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/06\/kerala-high-court.webp?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2023\/06\/kerala-high-court.webp?resize=700%2C400&ssl=1 2x"},"classes":[]},{"id":334277,"url":"https:\/\/www.scconline.com\/blog\/post\/2024\/11\/01\/suspension-of-sentence-fine-conditions-facts-nature-of-offence-supreme-court-legal-news\/","url_meta":{"origin":265163,"position":3},"title":"Suspension of sentence of fine with or without conditions depends on facts of each case and nature of the offence: SC","author":"Sucheta","date":"November 1, 2024","format":false,"excerpt":"\u201cAppellate Courts must also keep in mind that the conditions imposed while suspending sentence of fine, should not be such that they are impossible to comply with, for such condition may amount to defeating the appellant\u2019s right of appeal against the order of conviction.\u201d","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"suspension of sentence","src":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/11\/oka.webp?resize=350%2C200&ssl=1","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/11\/oka.webp?resize=350%2C200&ssl=1 1x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/11\/oka.webp?resize=525%2C300&ssl=1 1.5x, https:\/\/i0.wp.com\/www.scconline.com\/blog\/wp-content\/uploads\/2024\/11\/oka.webp?resize=700%2C400&ssl=1 2x"},"classes":[]},{"id":67501,"url":"https:\/\/www.scconline.com\/blog\/post\/2016\/09\/08\/gratuity-can-be-withheld-during-pendency-of-criminal-proceedings\/","url_meta":{"origin":265163,"position":4},"title":"Gratuity can be withheld during pendency of criminal proceedings","author":"Saba","date":"September 8, 2016","format":false,"excerpt":"Allahabad High Court: Deciding a petition filed against the order of the Superintendent of Police, District Jalaun in withholding the payment of gratuity amount and holding that the petitioner was entitled to only interim pension due to pendency of criminal case, the Court held that gratuity can be withheld where\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":248827,"url":"https:\/\/www.scconline.com\/blog\/post\/2021\/05\/28\/jk-hc-bail-cannot-be-granted-on-the-ground-of-delay-unless-the-matter-was-pending-for-5-years-or-more\/","url_meta":{"origin":265163,"position":5},"title":"J&K HC | Bail cannot be granted on the ground of delay unless the matter was pending for 5 years or more","author":"Editor","date":"May 28, 2021","format":false,"excerpt":"Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Puneet Gupta, JJ., dismissed the application seeking suspension of sentence and for grant of bail to the applicant\/appellant on the ground of delay. The applicant had submitted that he had been put in jail for more than\u2026","rel":"","context":"In "Case Briefs"","block_context":{"text":"Case Briefs","link":"https:\/\/www.scconline.com\/blog\/post\/category\/casebriefs\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"amp_enabled":true,"_links":{"self":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/posts\/265163","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/users\/67011"}],"replies":[{"embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/comments?post=265163"}],"version-history":[{"count":0,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/posts\/265163\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/media\/265176"}],"wp:attachment":[{"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/media?parent=265163"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/categories?post=265163"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.scconline.com\/blog\/wp-json\/wp\/v2\/tags?post=265163"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}