K. Harilal v. University of Calicut

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 09TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** ## **WP(C).No.34459 OF 2015(F)** ## **PETITIONER:** **1 K.HARILAL, CALICUT UNIVERSITY PRESS, UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM DISTRICT, NOW RESIDING AT SUBRAHMANYA VILASAM, AMBALATHARA, POOTHURA P.O., THIRUVANANTHAPURAM - 695 026.** *** ADDL.P2 SREENIVASAN IRENE USHA, 2/1855 A, MUDRA APARTMENT, ERANHIPALAM, CIVIL STATION P.O., KOZHIKODE, PIN 673 020.** ***IS IMPLEADED AS ADDL.P2 AS PER ORDER DATED 20/02/2019 IN I.A.NO.1/2019.** **BY ADVS.** **SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY** ## **RESPONDENT:** **UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM DISTRICT, REPRESENTED BY ITS REGISTRAR.** **BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.34459 OF 2015(F)** **2** ## **JUDGMENT** **This writ petition was filed by a retired Assistant Superintendent of Calicut University, who died during the pendency of this writ petition on 26.12.2018. The additional petitioner no.2 got impleaded thereafter. This writ petition was filed challenging the order Ext.P7 by which the liability against the petitioner was fixed in the year 2015 and against the recovery ordered from his retirement benefits sanctioned in Exts.P8 and P9 pension payment orders.** **2. The deceased petitioner retired from service on 31.05.2007 while working as Assistant Superintendent in Calicut University. It is stated that disciplinary proceedings were initiated against the deceased alleging certain financial irregularities and he was placed under suspension as per order dated 14.02.2000, while he was working as Assistant Superintendent in the Calicut University Press. Eventhough he was re-instated as** **WP(C).No.34459 OF 2015(F)** **3** **per order dated 26.07.2001, he did not re-join duty and he was thereafter dismissed from service as per order dated 21.06.2002. Thereafter the Syndicate as per its decision 05.06.2004, resolved to direct the petitioner to adjust the advances drawn by him and to re-instate him thereafter. It is stated that he settled the advance drawn and thereafter he was re-instated as per Ext P3 order dated 27.07.2005. The period of his absence on account of suspension and dismissal till his reinstatement on 27.07.2005 was regularised as per Ext P6 order dated 03.12.2010. It was ordered that his pensionary benefits would be settled only after adjustment of all advances pending. Petitioner submitted that no further disciplinary proceedings were initiated against him after his re-instatement on 27.07.2005 till his retirement or subsequent to his retirement on 31.05.2007.** **3. In the meanwhile the Local Fund Audit Committee of Kerala Legislature had as per its** **WP(C).No.34459 OF 2015(F)** **4** **report dated 28.12.2004, recommended an enquiry into the loss sustained by the University in printing of text books during 2000-01 and to recover the loss from the responsible persons. The Sub Committee of the Syndicate conducted an enquiry into it and recommended to realise the loss of Rs.3,65,840/- from the two Press Superintendents in charge, the Foreman and the Binder who were in charge of the printing and binding during the relevant period. Syndicate accepted those recommendations. Thereafter based on the report of the standing committee of staff, the Syndicate in its meeting held on 13.05.2008 resolved to collect the loss from three persons i.e., from the petitioner, Sri.A.Rajagopal, Assistant Superintendent-in-charge and Sri.T.P.Varghese, General Foreman. Ext.P5 order dated 18.07.2008 was issued on the basis of the said decision.** **4. The University thereafter issued Ext.P7** **WP(C).No.34459 OF 2015(F)** **5** **order on 28.04.2015 by which a liability of Rs.24,01,303/- was fixed against the petitioner. This amount included Rs.3,65,840/- covered by Ext.P5 order also as Item No.10. Against item No.10, it was stated that the Syndicate Sub Committee constituted to enquire into the irregularities assessed the actual loss sustained as Rs.3,65,840/-; the Committee requested the LFAC to drop the direction to recover Rs.27,72,038/from the three accused persons including the petitioner and further recommended that Rs.1,21,827/- (one third of Rs.3,65,840/-) would be recovered at the time of release of pensionary benefits to him. It is stated that the above recommendation of the Syndicate sub Committee is under consideration of LFAC. Ext.P7, which contains the details of liabilities includes liabilities under various heads and the major portion of the liability i.e., a sum of Rs.27,72,038/- is towards the loss sustained to** **WP(C).No.34459 OF 2015(F)** **6** **University in connection with the printing of text books as per paragraph 107 as the first report of Local Fund Accounts Committee, 2004-06. It is stated that the LFAC recommended to find out the actual persons responsible for the irregularities noted in connection with printing of text books from the University press and also to recover the loss from the accused persons. As against that, it was stated that 1/3[rd] of Rs.27,72,038/- i.e., Rs.9,24,013/- is to be recovered from the petitioner apart from Rs.1,21,827/-, which is the 1/3[rd] of Rs.3,65,840/- found in the very same audit, as it was stated that the liability fixed by the Syndicate Sub Committee was not accepted by the LFAC.** **5. Petitioner challenges Ext.P7 proceedings pointing out that there is no provision allowing the University to fix the liability after a period of more than 7 years of retirement. Immediately after Ext.P7 order, the University issued Ext.P8** **WP(C).No.34459 OF 2015(F)** **7** **order on 15.07.2015 according sanction for payment of pensionary benefits to petiitoner and to recover the liabilities from his DCRG and other pensionary benefits and to recover the balance amount towards liabilities in instalments from the monthly pension of the petitioner in excess of Rs.4500/- till the entire liability is cleared.** **6. From Ext.P8 order it is seen that provisional pension was sanctioned to petitioner as per order dated 2.12.2011 at the rate of Rs.2400/- per month from 01.06.2007 and it was revised as per order dated 27.06.2012 as Rs.4500/per month from 01.07.2009. By Ext.P8 order, while sanctioning the terminal benefits to petitioner, the entire DCRG of Rs.2,38,300 sanctioned to him and a sum of Rs.2,13,919/- out of Rs.3,45,478/sanctioned towards commutation and the monthly pension in excess of Rs.4500/- were ordered to be recovered, based on Ext.P7 order fixing the liabilities. Monthly pension was sanctioned to him** **WP(C).No.34459 OF 2015(F)** **8** **at the rate of Rs.6304/- per month from 01.06.2007. It was also directed that the recovery towards liabilities would be effected from the pension/arrears of pension due to the petitioner.** **7. By Ext.P9 order issued on 28.09.2015 pension was revised at the rate of Rs.11,096/with effect from 01.07.2009, with directions to effect recovery from the arrears as well as from the monthly pension in excess of Rs.4500/- per month, as recommended by the Joint Director of Local Fund Accounts till the liabilities are cleared. The writ petition is filed in these circumstances pointing out that petitioner is getting only a sum of Rs.4,500/- per month.** **8. The learned counsel for the petitioner relied on the judgments** _**Somarajan Nair v. State of Kerala**_ **[2015(2) KLT 753] and** _**Ratheesh S.Nair v. State of Kerala and Others**_ **[2014 (2) KLJ 858] and argued that no liability can be fixed against a pensioner after a period of 3 years of his** **WP(C).No.34459 OF 2015(F)** **9** **retirement. It is also argued that recovery from pension can be ordered only if grave misconduct was found against a pensioner in proceedings initiated in accordance with Rule 3 of Part III KSR.** **9. The University has filed a statement, pointing out that the liability covered by Ext.P5 order was fixed within the permissible time. Ext.P5 order was issued on 18.07.2008 based on the enquiry conducted by the Syndicate Sub Committee whereby it was ordered to recover 1/3[rd] of the loss sustained to the University from the petitioner, out of the total liability of Rs.3,65,840/-. It is stated that the Syndicate Sub Committee had requested the Local Fund Accounts Committee to drop the direction to recover Rs.27,72,038/mentioned in Ext.P7 order.** **10. Heard the learned Counsel appearing on both sides. The order Ext.P7 fixing liability was issued only on 28.04.2015 after more than 8 years** **WP(C).No.34459 OF 2015(F)** **10** **of the retirement. There is no quantification of such a huge liability with notice to petitioner except in respect of Ext.P5 proceedings. At any rate in the event of such a quantification, recovery can be ordered only from DCRG. In order to recover any amount from pension, the respondent ought to have followed the provisions contained in Rule 3, Part III of KSR which provides 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 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**_ **WP(C).No.34459 OF 2015(F)** **11** _**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, savewith 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.**_ _**(d) The Public Service Commission shall be consulted before final orders are passed.”**_ ## **11. The respondent University does not have a** **WP(C).No.34459 OF 2015(F)** **12** **case that any disciplinary proceedings were pending against the petitioner at the time of retirement or that any such proceedings were initiated against him within a period of 4 years of his retirement in which any grave misconduct was found proved against him, as provided under Rule 3 Part III of KSR and any pecuniary loss was found caused by him in such an enquiry. No recovery can be effected from pension or pension commutation or arrears of pension, except after conducting an enquiry under Rule 3 as in the case of major penalty proceedings in which grave misconduct or pecuniary loss was found. Therefore the recovery ordered in Exts.P8 and P9 proceedings from the pension, commutation pension and arrears of pension are without authority and illegal.** **12. No liability except the one covered by Ext.P5 is fixed against the deceased within three years of his retirement. By Ext.P5 order issued** **WP(C).No.34459 OF 2015(F)** ## **13** **on 18.07.2008, liability found was 1/3[rd] of Rs.3,65,480/-, which comes to Rs.1,21,827/-. There is nothing in Ext.P7 which would show that any other item of liability found in it was fixed with notice to the deceased petitioner within three years of his retirement in accordance with Note 3 read with Note 2 to Rule 3, according to which the liability should have quantified with notice to the pensioner and intimated to him within a period of three years of retirement. No such liability other than that in Ext.P5 is fixed within 3 years as ordered in Ext.P7. Note 2 permits recovery of the quantified amount of liability from DCRG alone provided such quantification is within the time limit. Therefore the only recovery which can be effected from DCRG is the amount covered by Ext P5.** **13. The respondents do not dispute the application of Rule 3 Part III of KSR on the nonteaching staff of the University. Statute 2 of** **WP(C).No.34459 OF 2015(F)** **14** **Chapter IV of Calicut University First Statute 1975 provides that the provisions contained in KSR will apply to the teaching and Non-teaching staff of the University** _**.**_ **As long as no disciplinary proceedings were initiated and a punishment of withholding of pension was awarded or pecuniary loss was found to have sustained in a duly conducted enquiry, the order Ext.P7 and the recovery ordered from the pensionary benefits is without authority, except to the extent it relates to a sum of Rs.1,21,827/- covered by Ext.P5, which can be recovered from his DCRG.** **Therefore Ext.P7 is set aside, except to the extent it relates to a sum of Rs.1,21,827/-. Consequent to this, the recovery ordered in Exts.P8 and P9 shall also stand set aside except to the extent of recovery of Rs.1,21,827/-. It is** **declared that the deceased petitioner was entitled to the entire pensionary benefits sanctioned in Exts.P8 and P9 along with arrears** **WP(C).No.34459 OF 2015(F)** **15** **without effecting any recovery except a sum of Rs.1,21,827/-. Therefore there shall be a direction to the respondents to disburse the entire benefits sanctioned towards the pensionary benefits to the additional petitioner after deducting a sum of Rs.1,21,827/-. She shall also be granted family pension in proportion to the monthly pension for which the deceased was entitled. The arrears of retirement benefits shall be disbursed to her within a period of three months from the date of receipt of a copy of this judgment. The question of interest is left open.** **This writ petition is allowed to the above** **extent.** **Sd/-** **P.V.ASHA JUDGE** ww **WP(C).No.34459 OF 2015(F)** **16** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPORT OF ENQUIRY INTO THE CHARGES AGAINST SRI.K.HARILAL, ASST. SUPERINTENDENT OF THE UNIVERSITY PRESS DATED 15/11/2000.** **EXHIBIT P2 TRUE COPY OF THE REVIEW REPORT ON THE REPRESENTATION MADE BY SRI.K.HARILAL, ASST. SUPERINTENDENT UNIVERSITY PRESS DATED 30/05/2003.** **EXHIBIT P3 TRUE COPY OF THE ORDER NO.AD.A3/1974/2000 VOL.II DATED 27/07/2005.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.AD.A3/15367/97/11 DATED 29/05/2007.** **EXHIBIT P5 TRUE COPY OF THE ORDER NO.AD.A3/12431/05 DATED 18/07/2008.** **EXHIBIT P6 TRUE COPY OF THE ORDER NO.AD.A3/1974/2000 VOL.II DATED 03/12/2010.** **EXHIBIT P7 TRUE COPY OF THE ORDER NO.1646/AD-H-ASST1/2012/CU DATED 28/04/2015. EXHIBIT P8 TRUE COPY OF THE U.O.NO.7588/2015/ADMN DATED 15/07/2015. EXHIBIT P9 TRUE COPY OF THE U.O.NO.10128/2015/ADMN DATED 28/09/2015.**