Jayachandran G.S. v. The Principal Secretary, General Education Department, Secretariat, Thiruvananthapuram & Others

**WP(C) NO. 24175 OF 2020** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA, 1943 WP(C) NO. 24175 OF 2020** ## **PETITIONER/S:** JAYACHANDRAN G.S. AGED 56 YEARS, S/O. GEORGE, SAMSKRITI PAZHAYA ROAD, MALAYINKEEZHU P O, THIRUVANANTHAPURAM – 695571. BY ADVS. R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH ## **RESPONDENTS :** 1 THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM – 695001. 2 DEPUTY DIRECTOR OF EDUCATION OFFICE OF DEPUTY DIRECTOR OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 3 SUB TRESURY OFFICER MALAYINKEEZHU, MALAYINKEEZHU PO, THIRUVANANTHAPURAM – 695571. 4 HEADMASTER ST.JOHN'S HIGHER SECONDARY SCHOOL, UNDANCODE, CHERIYAKOLLA P.O., THIRUVANANTHAPURAM - 695504. 5 KERALA STATE FINANCIAL ENTERPRISES LTD., REPRESENTED BY ITS MANAGING DIRECTOR, BHADRATHA, MUSEUM ROAD, P.B.NO.510, THRISSUR - 680002. **WP(C) NO. 24175 OF 2020** **2** 6 SPECIAL DEPUTY TAHSILDAR(R.R) OFFICE OF SPECIAL DEPUTY TAHSILDAR(R.R), K.S.F.E LTD, AKSHYA SHOPPING COMPLEX, NEYYATTINKARA P O, THIRUVANANTHAPURAM – 695121, 7 AJAYAN L AKSHAYA, PONGUVILA, MULLUVILA P.O, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM – 695033. BY ADVS. SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SHRI.SALIL NARAYANAN K.A., SC, KSFE LTD. SRI. BIJOY CHANDRAN, SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 24175 OF 2020** **3** **“CR”** ## **JUDGMENT** The petitioner, while being employed as High School Assistant (SS) at St. John Higher Secondary School, retired from service on 30.4.2020. The Death Cum Retirement Gratuity (DCRG) of Rs.13,60,260/- due to the petitioner, sanctioned as per Ext.P1, has been withheld on account of Exhibit P5 Non-Liability Certificate issued by the Head Master of the School. It is mentioned in Exhibit P5 that liability to the tune of Rs.3,48,562/- stands outstanding in the name of the petitioner in view of a prohibitory order issued by the KSFE. This has led the petitioner to approach this Court with this Writ Petition. 2. The petitioner contends that the 7th respondent is a distant relative of the petitioner. While the petitioner and his wife were in service, they stood as sureties to various chitty loans availed by the 7th respondent from the KSFE, the 5th respondent. At the time of standing as a surety, an employment certificate signed by the petitioner and attested by the Headmaster of the School, who is the drawing officer, was presented before the 5th respondent. The undertaking so given by the petitioner permitted recovery from the monthly salary at source and from the terminal and other benefits. According to the petitioner, the terminal and other benefits mentioned in the employment certificate will not cover the DCRG. In view of **WP(C) NO. 24175 OF 2020** **4** the specific stipulation under Ruling No.1 of Chapter I of Part-III KSR, the amount due from an employee to Government Companies, Local Bodies, Cooperative Societies etc, though not treated as Government dues, can be recovered from the DCRG payable, only with the consent in writing of the employee and not otherwise. In the said circumstances, the petitioner is stated to have approached the 2nd respondent and submitted Ext.P7 representation requesting that the entire amount of DCRG be released dehors the liability shown in Ext.P5. The grievance of the petitioner is that the respondent failed to take appropriate action on his representation. It is in the said circumstances that the petitioner is before this Court seeking the following reliefs:- - i. To issue a writ of mandamus or any other appropriate writ order or direction to respondents to disburse the entire amount of DCRG sanctioned to a tune of Rs.13,60,260/- dehors of Ext.P5 within such time fixed by this Hon’ble court. - ii. To issue a writ of mandamus or any other appropriate writ order or direction to the respondents to recall Ext.P5 and issue NLC of petitioner free of any liability towards K.S.F.E Ltd. within such time fixed by this Hon’ble Court. 3. A statement has been filed for and on behalf of the 5th respondent. It is stated that the petitioner along with his wife Smt. Lucy V.R, and another lady by the name of Ratnamma C., had stood as sureties for the loan availed by the 7th respondent. As the principal borrower failed to remit the amount, the KSFE initiated steps to recover the same from the **WP(C) NO. 24175 OF 2020** **5** guarantors. The petitioner proceeded against the property of the 7th respondent and secured a decree in his favour. Later, the property was purchased by the petitioner by initiating execution proceedings. It is further stated that the petitioner had signed and handed over Annexure-R5(A) Employment Certificate and had also consented to have the recovery effected from his salary at source and also from his terminal benefits. It is further stated that the petitioner had an option to pay the amount under the ASWAS 2020 scheme and if that option was exercised, the petitioner would be required to remit only an amount of Rs.1,41,072/-. The respondent would further state that the petitioner had given his express consent and no provisions of the KSR was violated. 4. Sri. R.T. Pradeep, the learned counsel appearing for the petitioner submitted that the surety bond executed by the petitioner is confined to recover from his monthly salary. The learned counsel would urge that no consent in writing was given by the petitioner to recover from the DCRG. Reliance is placed on Rule 3 of Chapter I in Part III of the KSR and it is argued that the provisions stipulate that consent in writing has to be specifically given to proceed against DCRG and the consent to recover from the terminal benefits would not suffice. The learned counsel would refer to the judgment of a learned Single Judge of this Court in the judgment dated 29.10.2012 in W.P.(C) No.20346/2008 and it was argued by the learned counsel that in view of the prohibition in Ruling No.1 withholding or **WP(C) NO. 24175 OF 2020** **6** withdrawing pension or from the recovery of any amount from DCRG payable to Government employees unless a specific consent writing is given in effect. 5. Sri.Salil Narayanan, the learned counsel appearing for the 5th respondent, would point out that there is no merit in the submissions advanced by the learned counsel. The employment certificate which contains the agreement for recovery from salary was produced and it is submitted that the petitioner had in fact consented in writing and the contrary contentions are baseless. The learned counsel would refer to the law laid down in Manni v. Divisional Forest Officer and Another [2008 (4) KLT 955] and it is contended that such consent need not be in favour of the department in all cases. Even consent given to creditor organisations like KSFE or Bank unconditionally agreeing for recovery from retirement benefits would be sufficient complaint of Ruling I of Rule 3 of Part III KSR. 6. I have considered the submissions. I find that by an interim order dated 21.12.2020, taking note of the submission of Sri Salil Narayanan, the learned standing counsel appearing for the KSFE, that the amount can be reduced from 3,76,056/ to Rs 1,41,072/ if the petitioner is prepared to pay the reduced amount before 31.12.2020, had issued directions to the District Treasury Officer to show the liability as Rs.1,41,072/ and consequent to the same, the petitioner had remitted the said amount. There was a further direction that if the petitioner was to succeed in this Writ Petition, the amount paid by the petitioner by virtue of the interim order will be refunded. **WP(C) NO. 24175 OF 2020** **7** Now the question is whether the contention raised by the petitioner and detailed above can be sustained under law. 7. The contention of the petitioner is that he had only agreed to recover the amount from his monthly salary and no consent in writing was given to recover from DCRG. The learned counsel also tries to explain that even in Part-III of KSR, though pension and DCRG come under common nomenclature of retirement benefits, they have been treated distinctly. It is contended that terminal benefits will not include DCRG and if recovery were to be made from the DCRG it had to be specifically mentioned. 8. Ext.R5(A) is the employment certificate signed by the Drawing Officer detailing the salary and the service of the petitioner. The employment certificate also contains an agreement for recovery from salary signed by the petitioner. The same reads as follows: ## Agreement for recovery from salary I, Jayachandran G.S., HSA, St. Xavier’s HSS, Peyad, Edu. Dpt. (Name, Designation, Office and Department) hereby agree that in case of default of payment of monthly instalments in Chitty/HP/Loan No. held/availed by me Sri./Smt. L. Ajayan in the Kanjiramkulam Branch of the KSFE Ltd., recoveries of such amounts as may be fixed by the company from time to time may be made from my salary and also from my terminal and other benefits. **WP(C) NO. 24175 OF 2020** **8** Signature of the employee with date I agree to effect the above recoveries. Signature Name Designation of the Drawing Officer Place Date ## 9. It would be appropriate to extract Rule 3 as it exists in KSR along with the notes and rulings, hereinbelow: Rule 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 reemployment after retirement: ## Provided that- - (a) such departmental proceeding, 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 reemployment,- **WP(C) NO. 24175 OF 2020** **9** - (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 reemployment, shall be instituted save with the sanction of the Government, in respect of 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- - (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 the 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 **WP(C) NO. 24175 OF 2020** **10** without delay intimate the fact to the Audit Officer. The amount of pension withheld under this rule should not ordinarily exceed onethird 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-cumretirement gratuity. Liabilities fixed against an employee [or pensioner] can be recovered from the death-cum-retirement 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. ## RULING NO.1 Amounts due from a Government employee [or pensioner] to Government Companies, Local Bodies, Co-operative Societies, etc., though not treated as Government dues may be recovered from the death-cum-retirement gratuity payable to him with his consent in writing. ## RULING No.2 According to proviso (a) under this rule, 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. A doubt was raised as to whether in the case of an employee whose case falls within the purview of the proviso and **WP(C) NO. 24175 OF 2020** **11** proceedings against whom were instituted by an authority subordinate to Government, order for withdrawal/withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings. The function of the Disciplinary Authority is only to reach a finding on the charge and to submit a report recording its findings to the Government. Government will then consider the findings and take a final decision. In case Government decide to take further action under Rule 3 the Government will serve the person concerned with a show-cause notice specifying the action proposed to be taken under this rule and the person concerned will be required to submit his reply to the show-cause notice within such time as may be specified by the Government. The Government will consider the reply in consultation with the Public Service Commission and pass necessary orders in the name of the Governor. The above procedure in regard to the issue of show-cause notice will also apply to a case where the Governor functions as the Disciplinary Authority] ## RULING No.3 The Note 2 above does not mean that the employee’s [or pensioner’s] consent should be obtained for recovering the liabilities from the death-cum-retirement gratuity payable to him. What is contemplated is only a communication of such liabilities to him so as to enable him to submit his explanation before the recovery is effected. It should be specifically stated in the communication that if no reply is received within 30 days of its issue, it will be presumed that employee [or pensioner] has no explanation to offer and that further action will be taken on that basis. 10. Rule 3 of the KSR says that the Government has the right to withhold or withdraw a pension or any part of it, either permanently or for a specified period, if, in a departmental or judicial proceeding, the pensioner is **WP(C) NO. 24175 OF 2020** **12** found guilty of grave misconduct or negligence during the period of his service, including service rendered upon reemployment after retirement. The right is reserved for recovering the pecuniary loss caused to the Government. Note 2 specifically provides that the word ‘Pension’ used in the Rule does not include DCRG. It also says that liabilities fixed against an employee (or Pensioner) can be recovered from the DCRG payable to him without the departmental /judicial proceeding referred to in the Rule but after giving the employee (or pensioner) concerned a reasonable opportunity to explain. Ruling No.1 says that an amount due from a Government employee (or pensioner) to Government companies, local bodies, cooperative societies etc. though not treated as Government dues may be recovered from the DCRG payable to him with his consent in writing. Note 2 has been further explained in Ruling No.3 to the effect that Note 2 does not mean that the employees (or pensioners) consent should be obtained for recovering the liabilities from the DCRG payable to him. What is contemplated is only communication of such liabilities to him so as to enable him to submit his explanation before the recovery is effected. 11. In the case on hand, the petitioner has in fact executed an agreement for recovery from salary and he has issued a consent in writing agreeing to effect the recoveries from his salary at source and also from his terminal and other benefits. In Manni (supra), a learned Single Judge of this Court had occasion to observe thus: **WP(C) NO. 24175 OF 2020** **13** W.P.(C) is filed challenging retention of petitioner's retirement benefits, particularly DCRG, pursuant to request for recovery made by K.S.F.E. Counsel for the petitioner contended that though petitioner signed security documents standing as surety for another colleague for releasing loan amount by KSFE to him, he was not aware of the consequences. Government Pleader submitted that petitioner in the format issued by the company stood as surety unconditionally agreeing for recovery from his salary and retirement benefits which obviously include DCRG, if the borrower defaults payments. Admittedly defaulter has not made payments and recovery is initiated pursuant to the request made by K.S.F.E. in terms of security bond executed by the petitioner. Even though counsel for the petitioner submitted that in order to recover from DCRG, petitioner has to express his consent, I do not think such consent should always be in favour of the department. In other words, even consent given to creditor organisation like K.S.F.E. or Bank unconditionally agreeing for recovery from his retirement benefits will be sufficient compliance of Ruling 1 of R. 3 Part III K.S.R., which authorises recovery for Government companies and other financial institutions based on consent given by the parties. In this case, consent for recovery is admittedly given to KSFE in the form of security bond executed by the petitioner. Therefore there is compliance of Rule above referred and therefore petitioner cannot challenge recovery proceedings in the form of attachment of DCRG benefits. 12. I respectfully concur with the observations above. The reliance placed by the learned counsel appearing for the petitioner on the unreported judgment in W.P.(C) No.20346/2008 will not render any assistance to the **WP(C) NO. 24175 OF 2020** **14** petitioner. The said judgment was rendered while deciding the question as to whether an amount due to a Cooperative Society from a member could be recovered from the DCRG under Section 37 of the Cooperative Societies Act, 1969. The learned Single Judge relied on the judgment of a Division Bench of this Court in Surendran v. Mavelikkara Primary Cooperative Bank Ltd. [2005 (4) KLT 619], wherein the issue that was posed was whether the amount due to a Cooperative Society from its member can be recovered from the Death cum Retirement Gratuity (DCRG, for short), under S.37 of the Cooperative Societies Act, 1969. The incidental question was whether such dues can be recovered from DCRG under R.3 Part III, Kerala Service Rules. The Division Bench went on to hold that the language of the statute is clear and plain and it shows that the term "salary" used in Section 37 of the Act refers to periodical and monthly recurring payment to be made to the employee while in service, it will not be permissible for the court to insert, interpolate or substitute any word or expression such as "DCRG" into the provisions, to expand the meaning of the term "salary”. It was however held that consent of the employee is an essential factor to effect any recovery from DCRG and such consent shall be in writing also. In the absence of any such consent in writing, no recovery can be effected from DCRG which is payable to the employee. In the said case, no written consent was obtained from the employee to recover the dues from DCRG and it was in the said circumstances that it was held that the amount due cannot be recovered **WP(C) NO. 24175 OF 2020** **15** from DCRG under Note 1 to R.3 of Part III of KSR. The same is not the situation in the instant case. As held by this Court in Manni (supra), even consent given to creditor organisations like KSFE or Bank unconditionally agreeing for recovery from his retirement benefits will be sufficient compliance of Ruling 1 of R.3 Part III KSR, which authorises recovery for Government companies and other financial institutions based on consent given by the parties. In this case, consent for recovery is admittedly given to KSFE in the form of a security bond executed by the petitioner to recover the amount from salary at source and also from the terminal benefits. I hold that there is sufficient compliance with the rules and hence, the challenge raised by the petitioner cannot be sustained. 13. Now coming back to the remittance made by the petitioner pursuant to the interim order dated 21.12.2020, I make it clear that the KSFE would be entitled to retain the amount of Rs.1,41,072/- and appropriate the same towards the dues of the petitioner. Sri. Salil Narayanan, the learned Counsel, fairly submitted that there will not be any further liability on the petitioner, in view of the payment already affected in terms of the interim order. The said submission is recorded and this Writ Petition will stand disposed of. Sd/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** **ps/17/11/2021** **WP(C) NO. 24175 OF 2020** **16** ## **APPENDIX OF WP(C) 24175/2020** PETITIONER(S) EXHIBITS : EXHIBIT P1 THE COPY OF THE ORDER DATED 2.7.2020 BY WHICH HE WAS SANCTIONED WITH D.C.R.G TO A TUNE OF RS.13,60,260/- BY THE OFFICE OF ACCOUNTANT GENERAL. EXHIBIT P2 THE COPY OF THE ORDER DATED 20.10.2004 IN COMPLAINT NO.847/2004 BY KERALA LOK AYUKTA. - EXHIBIT P3 THE COPY OF THE JUDGMENT DATED 5.10.2012 IN WP(C) NO. 16373/2012. - EXHIBIT P4 THE COPY OF THE PROHIBITORY ORDER DATED 4.11.2019 BY 6TH RESPONDENT FORWARDED TO THE SCHOOL OF PETITIONER. EXHIBIT P5 THE COPY OF NON LIABILITY CERTIFICATE DATED 5.8.2020 BY 4TH RESPONDENT. - EXHIBIT P6 THE COPY OF THE NOTICE DATED 26.08.2020 EXTENDING THE BENEFIT OF ASWAS 2020 BY LIMITING THE LIABILITY TO RS.1,64,985/- EXHIBIT P7 THE COPY OF THE REPRESENTATION DATED 7.8.2020 BEFORE 2ND RESPONDENT. RESPONDENT(S) ANNEXURES : ANNEXURE R5A THE COPY OF THE EMPLOYMENT CERTIFICATE SUBMITTED BY THE PETTIONER, GRANTING CONSENT TO RECOVER FROM HIS TERMINAL BENEFITS.