C.K. Sureshbabu v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** **OP(KAT).No.118 OF 2016(Z)** **AGAINST THE ORDER IN OA 1156/2013 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM 27.7.2016** ## **PETITIONER:** **C.K.SURESHBABU AGED 68 YEARS FOREST RANGE OFFICER (RETD), RESIDING AT THOPPIL HOUSE, SASTHAM KAVALA, NEDUMBAKKAD, CHERTHALA, ALAPPUZHA DISTRICT** **BY ADVS. SRI.M.SASINDRAN SRI.S.SHYAM KUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST AND WILDLIFE, SECRETARIAT, THIRUVANANTHAPURAM695001 2 THE DIVISIONAL FOREST OFFICER SOUTH WAYANAD DIVISION, KALPETTA, WAYANAD DISTRICT673121.** **SRI. K. SANDESH RAJA-SPL.G.P.-FOREST** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 16-07-2020, THE COURT ON 05-08-2020 DELIVERED THE FOLLOWING:** 2 O.P.(KAT).No.118/2016 ## **JUDGMENT** Dated this the 5[th] day of August, 2020 ## _**Shaffique, J**_ The petitioner filed O.A.No.1156/2013 before the Kerala Administrative Tribunal challenging an order passed by the Government dismissing the appeal filed by him, thereby confirming the order passed by the Divisional Forest Officer on 15.11.2012 adjusting DCRG of Rs.2,14,650/- towards the liability of Rs.2,38,581/- and calling upon him to remit the balance amount of Rs.23,931/-. The petitioner retired from the service of the Forest Department on 31.12.2003 while working as Forest Range Officer. In the year 2007, he approached the Lok Ayukta alleging that the DCRG amount due to him has not been paid after a considerably long period. While so, he was issued with notice dated 24.9.2007 to show cause why a liability of Rs.2,33,037/shall not be fastened on him. In the notice it is inter alia stated that there was loss/theft of timber, the value of which is computed at Rs.3,88,395/- and it is to be shared by the Forester as well as the Forest Range Officer, in the proportion 40% and 60% respectively. The said notice was followed by order dated 5.11.2007 by which liability had been imposed on the petitioner at Rs.2,38,581/-. This came to be challenged, which finally resulted in the order dated 3 O.P.(KAT).No.118/2016 15.11.2012 by the Divisional Forest Officer and the appellate order dated 17.5.2011 of the Government. The Tribunal after considering the respective contentions rejected the petitioner’s claim and confirmed the view of the Government. 2. Learned counsel for the petitioner would submit that though the petitioner had retired from service on 31.12.2003, no steps had been taken to determine the liability within a period of 3 years from the date of retirement, and therefore no such liability can be fastened on the petitioner. It was only when the petitioner moved the Lok Ayukta alleging maladministration against the respondent that steps were initiated by issuing notice dated 24.9.2007. It is contended that no proper enquiry was conducted in the matter. Mr. P.K. Thankachan, who was the Forester had furnished a reply to the show cause notice inter alia stating that he had not received 157 wood logs as alleged and what was received was only 152 wood logs and that too were scattered in and around Kalpetta Forest Range. One piece was stolen and it was reported to the Ambalavayal Police Station for which Crime No. 88/2003 was registered. 142 were transported to various depots by the then contractor Sri.I.K. Sulfikar and the balance had been kept in the Kuppadi depot. Therefore, according to Sri.Thankachan, there was no loss of any timber. The petitioner took charge of Kalpetta Range Office on 21.6.2002. The details of articles received under the head of timber do not include the quantity as alleged. It is therefore 4 O.P.(KAT).No.118/2016 submitted that the Tribunal committed serious error in approving the liability fixed on the petitioner. Learned counsel also placed before us Note 3 to Rule 3 of Part III KSR and contended that the Tribunal has misread the provisions to take a different view. Learned counsel for the petitioner also placed reliance on the judgment of a Division Bench of this Court in **Ratheesh S. Nair v. State of Kerala and Others** (2014 KHC 3030) and also another Division Bench judgment of this Court in **Geetha Padmini V. State of Kerala** (2020 (3) KLT 28). 3. On the other hand, the learned Special Government Pleader while supporting the stand taken by the Forest Department and the Government contended that the factual aspects were not disputed by the petitioner. There is no limitation for recovering the amount from the petitioner, in so far as loss has been suffered by the Government. He also referred to the judgment of a Division Bench of this Court in **Pappachan S. v. State of Kerala and Others** (2008 (4) KHC 740). The contention of the State is that a contractor Sri.P.K. Muhammed Basheer had felled certain timber and billets under the Wayanad Colonization Scheme. He committed breach of contract and abandoned the work which resulted in loss of Rs.1.393 crores to the Government as per the audit report of the Accountant General, pursuant to which action was taken to recover the loss from the Officers involved in the matter. In the Mahazar dated 12.7.1996 prepared in respect of Nenmeni Village, it was noticed that the 5 O.P.(KAT).No.118/2016 Foresters Sri.M.P. Aravindakshan and Sri.K. Damodharan Nair had taken on stock 163 pieces of wood out of which 47 pieces (11.097 M3) were lost. The loss occurred during the tenure of petitioner and Sri.P.K.Thankachan. Therefore it was decided to recover the loss from them. 4. The notice for recovering said loss has been issued for the first time on 24.9.2007 and the order had been passed fixing the liability on 5.11.2007. The petitioner had contended that he was working in the Kalpetta Range only from June, 2002 until 31.12.2003 and during his tenure there was no loss to the Government. In the order dated 5.11.2007, it was observed that as per Mahazar dated 12.7.1996, 163 pieces of timber were on stock, of which 6 pieces were stolen during the tenure of Sri.K.G. Anwar and Sri. A.C. Vijayakumar. From the balance of 157, 110 pieces were taken on 28.5.2003 and 2.6.2003. The balance is seen lost. It is further stated that in the letter issued by Sri.P.K.Thankachan, he had admitted that as on 28.5.2003, 157 pieces of wood were available in his custody. Accordingly, it was inferred that these two officers were the responsible persons during the relevant time. Learned counsel for the petitioner relied upon Annexure A4 the objection filed by Sri. P.K. Thankachan, in which he denied the fact that he had given any such letter admitting that he was in custody of 157 pieces of timber on 28.5.2003. It is therefore contended by the learned counsel for the petitioner that even on facts, no such liability 6 O.P.(KAT).No.118/2016 could have been mulcted on the petitioner, as the only reason for imposing a liability on the petitioner is based on a letter alleged to have been issued by Sri. P.K. Thankachan, whereas in his objection he has clearly stated that he did not give any such statement. The Mahazar which is the subject matter in issue was prepared as early as in 1996 and several officers were working as Forest Range Officers during the interregnum period. Learned counsel also points out on the basis of certain additional documents that from the main pass and subsidiary passes issued for transportation of timber, it is evident that Sri. P.K.Thankachan had filed a statement that all the 152 pieces were promptly transported to various depots. Petitioner received details regarding transport of timber from the Range Forest Office, Kalpetta under the Right to Information Act and the same were produced as Annexures 12 to 17 and according to the petitioner, it is rather evident that Sri.I.K. Sulfikkar had transported 172 logs of Rosewood from Nenmeni Village to the Government timber depot as evident from the transport pass dated 28.5.2003. Hence it is contended by the learned counsel that there is absolutely no material whatsoever to impose such a liability on the petitioner. 5. Primarily, the question to be considered is whether such a liability can be fastened on the petitioner after 3 years from the date of retirement. Rule 3 of Part III KSR with Notes 1 to 3 reads as under: “ **Rule 3.** The Government reserve to themselves the right of 7 O.P.(KAT).No.118/2016 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 reemployment after retirement: Provided that - (a) such departmental proceedings, if instituted while the employee was in service, whether before his retirement or during his 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 his service; (c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted, save with the sanction of the Government, 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. **Explanation** .- For the purpose of this rule- 8 O.P.(KAT).No.118/2016 (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of police officer on which the Magistrate takes cognizance is made; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the Court. **Note 1** .- As soon as proceedings of the nature referred to in this rule are instituted the authority which institutes such proceedings should without delay intimate the fact to the Audit Officer. The amount of pension withheld under this rule should not ordinarily exceed one-third of the pension originally sanctioned. In fixing the amount of pension to be so withheld, regard should be had to the consideration whether the amount of the pension left to the pensioner in any case would be adequate for his maintenance. **Note 2** .- The word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cumretirement gratuity payable to him without the departmental / judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. **Note 3.** - The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.” 6. This is a case in which no departmental or judicial proceeding was pending against the petitioner at the relevant time on his superannuation. As matters stand now, no such departmental 9 O.P.(KAT).No.118/2016 proceedings is possible as the period of 4 years is already over. As per Note 2, the word 'pension' used in this rule does not include DCRG. However, it is further stated that liabilities fixed against an employee or pensioner can be recovered from the DCRG payable to him without the departmental/judicial proceedings referred to in the rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3 was inserted to the statute on 15.4.1986 which indicates that the liability should be quantified either before or after retirement and intimated to him before retirement, if possible, or after retirement within a period of three years on becoming pensioner. Rule 3 apparently refers to recovery of amounts in regard to pecuniary loss caused to the Government, if it is found so, either in a departmental or judicial proceedings. In this case, no such proceedings had been taken against the officer and therefore the main part of Rule 3 has no application. Note 2 clearly indicates that DCRG does not come within the word 'pension' and in respect of DCRG, a provision had been made that the liability fixed against an employee or a pensioner can be recovered from the DCRG even without a departmental or judicial proceedings referred to in Rule 3, but after the employee/pensioner is given a reasonable opportunity to explain. Therefore, the Government's right to recover amount from DCRG is independent of Rule 3 and the Notes indicate that such a liability can be fixed even without a departmental/judicial proceedings. But any liability or loss, 10 O.P.(KAT).No.118/2016 either to be recovered from the pension or from the DCRG has to be quantified in the case of employee who had retired, after retirement and within a period of three years of becoming a pensioner. Note 3 only permits fixing of liability invoking the said provision within the three year period. In other words, only if the liability has been fixed within the 3 year period after retirement, any amount can be recovered from the DCRG. 7. The Division Bench in **Pappachan S.** (supra) has stated that a reading of Rule 3 would show that there is a time limit fixed for fixing the liability against a pensioner. It was further observed that service rules are silent as to what will happen if the liability is not fixed within the said time limit. Reference is made to Ruling Nos. 5 and 6 of Rule 116 of Part III KSR and it was observed that it is possible to recover the amount by filing a suit against the retired employee. As per Ruling No.5, if the liability is not fixed within one year of retirement, the DCRG has to be released and in terms of Ruling No.6, if the amount is released as provided under Ruling No.5 and if action under Rule 3 cannot be initiated due to expiry of time limit prescribed, civil suit can be filed for pecuniary loss caused to the Government. Proceeding further, the Division Bench observed that since the Government can file civil suit within a period of 30 years and as liability has been already fixed, it is not proper to direct the Government to release the DCRG due to the petitioner. It is observed 11 O.P.(KAT).No.118/2016 that the creditor has the right to adjust the amount of debt towards the liability and hence relief was not granted to the petitioner. However, permission was granted to the Government to file a suit or to initiate proceedings under Kerala Public Accountants Act, 1963 within the specified time and if no such proceedings has been initiated, the DCRG shall be released to the petitioner with 6% interest from the date of retirement, i.e., 1/12/1998. 8. In the case of **Ratheesh S. Nair** (supra), the Division Bench held that in terms of Rule 116 Ruling No.5, the DCRG has to be released within one year. It was further held that once the time limit specified under Note 3 to Rule 3 of Part III KSR is over, the Government has no authority to decide as an adjudicator as to what would be the liability of a particular pensioner. Government can, as provided under Ruling No.6, only reserve its right to sue in a civil court. In **Geetha Padmini** (supra) also, a Division Bench of this Court held that Note 3 to Rule 3 of Part III KSR, bars fixation of liability and recovery from DCRG after a period of 3 years from the date of retirement. If the liability is fixed beyond the 3 year period, the fixation of liability is bad. 9. In the light of the legal aspects involved in the matter, it is rather clear that the show cause notice dated 24.9.2007 and order dated 5.11.2007 were passed beyond the period of limitation and therefore such fixation of liability cannot be fastened on the petitioner, in terms of Note 3 to Rule 3. As rightly observed in **Ratheesh S. Nair** 12 O.P.(KAT).No.118/2016 (supra) and **Pappachan S.** (supra), remedy of the Government is only to file a suit. 10. Learned Special Government Pleader however submits that it shall be open for the Government to recover the amount by invoking the provisions of the Kerala Public Accountants Act, 1963. Even the Public Accountants Act provides for an enquiry into the claim when there is objection from the side of the respondent. We are not expressing any opinion regarding the right of the Government to invoke the said provision. The finding in **Pappachan S.** (supra) that the creditor has a right to adjust any amount due to the debtor is well settled. But as far as DCRG is concerned, it is the law that it can be adjusted towards a liability of a Government servant only if the liability is fixed within three years from the date of retirement. 11. Regarding the right of the Government to sue for recovery of money or to take any other steps under the provisions of the Public Accountants Act, we do not want to express any opinion. But we make it clear that the findings rendered in the order dated 5.11.2007 is totally without jurisdiction and beyond the period of limitation and therefore, the said findings cannot give any right to recover any amount from the petitioner. In so far as the liability is disputed, it has to be fixed independently, _dehors_ the findings in the said order dated 5.11.2007 or the appellate order. 12. In the light of the aforesaid discussion, we are inclined to 13 O.P.(KAT).No.118/2016 allow the original petition. Accordingly, O.P.(KAT).No.118/2016 is allowed as under: (i) Impugned order dated 27.7.2016 in O.A.No.1156/2013 is set aside and the original application is allowed. (ii) Order dated 5.11.2007 (Annexure 3), order dated 15.11.2012 (Annexure 8) and appellate order dated 17.05.2011 (Annexure 10) stands set aside. (iii) The amount payable to petitioner as DCRG shall be given back within one month from the date of receipt of a copy of this judgment. The said amount of DCRG shall carry interest at the rate of 6% per annum from 1.1.2004 till payment. ## **Sd/-** **A.M.SHAFFIQUE** **JUDGE** kp **Sd/-** True copy **JUDGE** ## **GOPINATH P.** P.A. To Judge 14 O.P.(KAT).No.118/2016 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE ORDER IN O.A.NO.1156 OF 2013 DATED 27.7.2016.** - **EXHIBIT P2 A TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION, (O.A.NO. 1156 OF 2013) FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ALONG WITH ANNEXURES.** - **ANNEXURE A1 A TRUE COPY OF THE RECEIPT OF REVISED PENSIONARY CLAIMS ISSUED BY THE ACCOUNTANT GENERAL OF KERALA DATED 23.1.2006.** - **ANNEXURE A2 A TRUE COPY OF THE NOTICE DATED 24.9.2007 ISSUED BY THE 2ND RESPONDENT FIXING LIABILITY ON THE APPLICANT WITH REGARD TO LOSS OF TIMBER.** - **ANNEXURE A3 A TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 5.11.2007.** - **ANNEXURE A3(A) A TRUE ENGLISH TRANSLATION OF ANNEXURE A3. ANNEXURE A4 A TRUE COPY OF THE REPLY GIVEN BY MR.P.K.THANKACHAN AGAINST THE ANNEXURE A2 SHOW CAUSE NOTICE.** - **ANNEXURE A4(A) A TRUE ENGLISH TRANSLATION OF ANNEXURE A4. ANNEXURE A5 A TRUE COPY OF THE TRANSFER CHARGE REPORT OF THE APPLICANT, WHEN HE TOOK CHARGE OF THE OFFICE OF THE FOREST RANGE OFFICER, KALPETTA, ON 21.6.2002.** - **ANNEXURE A6 A TRUE COPY OF THE ORDER OF THE HON'BLE LOK AYUKTA DATED 26.4.2010 IN COMPLAINT NO.1827 OF 2007.** - **ANNEXURE A7 A TRUE COPY OF THE APPEAL FILED BY THE APPLICANT AGAINST THE ANNEXURE A3 OF THE 2ND RESPONDENT.** - **ANNEXURE A8 A TRUE COPY OF THE LETTER DATED 15.11.2012. ANNEXURE A9 A TRUE COPY OF THE CHELLAN RECEIPT. ANNEXURE A10 A TRUE COPY OF THE ORDER DATED 17.5.2011 SERVED ALONG WITH THE ANNEXURE A8.** 15 O.P.(KAT).No.118/2016 **ANNEXURE A11 A TRUE COPY OF THE GOVERNMENT ORDER DATED 27.3.2012. ANNEXURE A12 A TRUE COPY OF THE MAIN PASS ISSUED IN CONNECTION WITH TRANSPORTATION OF WOOD LOGS ALLEGED TO BE LOST, FROM THE WCS, NENMENY VILLAGE.** **ANNEXURE A13 A TRUE COPY OF THE FIRST SUBSIDIARY PASS IN THE ANNEXURE A12 MAIN PASS. ANNEXURE A13(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A13. ANNEXURE A14 A TRUE COPY OF THE SECOND SUBSIDIARY PASS IN THE ANNEXURE A12 MAIN PASS. ANNEXURE A14(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A14. ANNEXURE A15 A TRUE COPY OF THE THIRD SUBSIDIARY PASS IN THE ANNEXURE A12 MAIN PASS. ANNEXURE A15(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A15. ANNEXURE A16 A TRUE COPY OF THE FOURTH SUBSIDIARY PASS IN THE ANNEXURE A12 MAIN PASS. ANNEXURE A16(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A16. ANNEXURE A17 A TRUE COPY OF THE FIFTH SUBSIDIARY PASS IN THE ANNEXURE A12 MAIN PASS. ANNEXURE A17(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A17. ANNEXURE A18 A TRUE COPY OF THE SIXTH SUBSIDIARY PASS IN THE ANNEXURE A12 MAIN PASS. ANNEXURE A18(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A18. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 17.8.2014 EXHIBIT P4 A TRUE COPY OF THE PROCEEDING DATED 6.7.2011.** **EXHIBIT P5 A TRUE COPY OF THE MINUTES MEETING DATED 13.08.2009. EXHIBIT P6 A TRUE COPY OF THE REPLY RECEIVED TO RIGHT TO INFORMATIONS.** **EXHIBIT P6 A A TRUE COPY OF THE REPLY RECEIVED TO RIGHT TO INFORMATIONS.** ## **RESPONDENT'S/S EXHIBITS:** 16 O.P.(KAT).No.118/2016 **EXHIBIT R1(A) TRUE COPY OF THE CHARGE LIST CONTAINING 163 PIECES OF ROSEWOOD.** **EXHIBIT R1(B) TRUE COPY OF THE CHARGE LIST CONTAINING 94 PIECES OF ROSEWOOD.** **EXHIBIT R1(C) TRUE COPY OF THE CHARGE LIST OF SRI.P.K.THAKACHAN, FORESTER, IN RESPECT OF 163 PIECES.** **EXHIBIT R1(D) TRUE COPY OF THE FORM V PASS ISSUED BY THE PETITIONER.** **EXHIBIT R1(E) TRUE COPY OF THE MEASUREMENT LIST WITH ABSTRACT OF 172 PIECES OF TIMBER TRANSPORTED, WHICH WAS VERIFIED WITH FORM III STOCK REGISTER BY SRI.P.K.THANKACHAN AND SRI.K.D.SASIDHARAN, FORESTERS AND CHECK MEASURED BY THE PETITIONER.**