3. The Original Application has been opposed by the respondents. According to them, the applicant was compulsorily retired on proof of grave acts of mis-conduct on his part. He had committed misappropriation of huge sum of money. The acts of misappropriation was noticed while he was working in the SAI, Kozhikode. Then he was transferred to SAG, Alappuzha. There also he repeated the very same misconduct. Thus, disciplinary proceedings was initiated which ended in Annexure A1 order of compulsory retirement. It stands confirmed by Annexure A-2. Everything was done following procedural formalities which has become final and the applicant does not seek interference with those proceedings by this Tribunal. Incidentally, it is pointed out that on account of the acts of commission of misappropriation and criminal breach of trust, two cases - CC 326 of 2016 under Sections 409 and 420 IPC before the Judicial First Class Magistrate, Kozhikode and CC 71/2014 alleging offence under Sections 471, 409 and 420 IPC are pending before the Chief Judicial Magistrate, Alappuzha. So the respondents contend that the applicant does not deserve any sympathy and the O.A. is liable to be dismissed.

4. The learned counsel for the applicant submitted that the commutation of pension made by the respondents suo-motu is illegal. That was done without any application filed by the applicant nor he was subjected to any medical examination. In spite of submitting Annexures A-4 and A-5 representations, the illegality was not un-done and that prompted the applicant to approach this Tribunal. The learned counsel reiterated that the applicant did not file petition for commuting any portion of his pension and therefore, Annexure A3 order is illegal and liable to be interfered with.

5. On the other hand, the learned counsel representing the Standing Counsel for the respondents submitted that Annexure A-1 and Annexure A-2 orders have become final, following which recovery at the rate of Rs. 3,998/-per month is being effected from 1.1.2016. The learned counsel also invited my attention to Rule 9(1) of the Civil Services (Pension) Rules and submitted that the applicant does not deserve any indulgence from this Tribunal.

6. The facts are not in dispute. The applicant was working as Hostel Supervisor in the SAI. It appears that earlier he was in Military Service and was appointed under the respondents as an ex-service man. In the SAI, he has put in 21 years and 11 months service and then serious acts of mis-conduct in the form of misappropriation, breach of trust etc were noticed against him at Kozhikode centre. Then, he was transferred to Alappuzha. There also he repeated the very same mischiefs. Thus, he was kept under suspension, disciplinary proceedings was initiated and inquiry was conducted. Ultimately, by Annexure A-1 order, he was directed to be compulsorily retired from service; the amount lost to the Organisation was quantified as Rs. 12,08,188 which was directed to be recovered from him. The appeal preferred against that order was dismissed and ultimately, by Annexure A-3 order his pension was fixed besides Rs. 12,08,188 was recovered from him which includes commuted value of pension of Rs. 3,97,577/-.

7. Let us examine the vires of that part of Annexure A-3 order, by which his pension was unilaterally commuted and commuted value of pension was seized by the respondents. As rightly pointed by the learned counsel for the applicant, pension is the property of the employee accrued to him in recognition of the services rendered by him for long years. It is being paid 'as a measure of socio economic justice which inheres economic security in the fall of life of a person when his mental prowess is ebbing corresponding to aging process and therefore one has to fall back on his savings.'

8. It is also the settled position that right to get pension constitutes a right vested in an employee and any interference with that right will be a breach of that right. According to Article 300A of the Constitution, no person shall be deprived of his property save by authority of law. It is the lookout of the State that he is not deprived of the property. Pension cannot be treated as a bounty payable on the sweet will and pleasure of the government and the right to superannuation pension is a valuable right vested in a government servant. Character of pension as property cannot possibly undergo any mutation at the whim of a particular person or authority. This right to property cannot be taken away without due process of law as per the provisions of Article 300A of the Constitution. Even though opportunity had already been afforded to the officer on earlier occasion for showing cause against the imposition of penalty for lapse or mis-conduct on his part and he had been found guilty, nevertheless when a cut is sought to be imposed in the quantum of pension payable to the officer on the basis of misconduct already proved against him, further opportunity should be given. Further, the Apex Court has ruled in numerous occasions that by a mere executive order State has no power to withhold the right of the pensioner to receive the property vested in an individual.

9. In fact, the commuted value of pension does not form part of terminal benefits of an employee like pension, DCRG, Provident Fund amount etc. It is an independent amount, quantification of it depends upon the option exercised by the applicant.

10. Even though it was claimed by the respondents that procedures under Rule 9 of the CCS (Pension) Rules were followed, no evidence is forthcoming in support of the same. Even in that case, commuted value can be decided only on the specific application of the pensioner. Without his junction, pension cannot be commuted.

11. At the first part, it is to be stated that, before ordering reduction in pension and recovery of an amount of Rs. 3,97,577 as commuted value of pension, no opportunity was given to the applicant. Secondly, even though it was stated that Rule 9 of the CCS (Pension) Rules was followed, no document is forthcoming. In fact, the respondents have not raised any tenable reply against the formidable arguments raised by the applicant. It is the specific case of the applicant that a portion of his pension was commuted behind his back, without giving any application. That has not been controverted at all in the reply statement. On the other hand, the allegations against the applicant that he had misappropriated so much amount etc. have been reiterated. I have no doubt that the allegations against him are very serious, he had caused loss of more than Rs. 12 lakhs to the Organisation which is bound to be recovered from his possession. But that can be done only through procedures known to law.

12. Thirdly, the order has been passed without realising the true purport and import of commutation of pension. In my reading, commutation is the process of procuring the value of a certain percentage of pension in lump in advance by the employee, in lieu of reduced pension which he agrees to accept in future. A Division Bench of the Allahabad High Court has observed in Suresh Chandra v. State of U.P and others (MANU/UP/0799/1987 : 1988 (4) SLR 527) that commutation of pension implies payment of a lump sum to a government servant in lieu of reduced pension which he agrees to accept in future. It involves an understanding between the employer and the employee that the lump amount shall be paid at the time of superannuation for sacrificing a portion of monthly pension, the lump shall be refunded piece meal, in monthly instalments, over a period of time. It also postulates an independent procedure to be followed as provided under the provisions of CCS (Commutation of Pension) Rules. Here the respondents have no case that any such procedure was followed. In other words, the pensioner within the time limit should make an application to the pension sanctioning authority intending to commute a particular percentage of his pension. That should be followed by an option exercised by the pensioner. It involves application of mind by the pension sanctioning authority. Put it other words, if the pensioner wants to commute a percentage of pension, he should make an application, the application should be considered by the sanctioning authority and a formal order should be issued permitting him to commute a percentage of pension, maximum of which is 40%. Here, no such procedure has been followed. As rightly pointed out, commutation has been done suo-motu by the third respondent, without any application moved by the applicant. Further, the commuted value of pension amounting to Rs. 3,97,577/- was recovered towards the amount due from the applicant and credited to the account of the respondents in breach of Articles 300A of the Constitution. Thus, it does not require much research to say that the procedure followed by the 3rd respondent is illegal and requires to be interfered with.

13. The Original Application is allowed. The Annexure A-3 order to the extent of fixing commuted value of pension at Rs. 3,97,577 and recovering the same from the applicant is quashed. The amount shall be refunded to him within a period of two months from today. Similarly, the recovery effected from his pension from 1.2.2016, at the rate of Rs. 3,998/- towards commuted value shall also be worked out and refunded to him, within a period of two months. However, the prayer for paying interest at the rate of 12% is declined.

14. The Original Application is allowed as above. It is made clear that this order shall not stand on the way of the respondents proceeding against the applicant for recovering the loss sustained by them, in accordance with law. No costs.

(Dated this the 10th day of November, 2022)

List of Annexures

© Manupatra Information Solutions Pvt. Ltd.