K.A. Muraleedhara Menon v. Secretary to Government of Kerala Department of General Education and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21[st] CHAITHRA, 1945 ## WP(C) NO. 33092 OF 2014 ## PETITIONERS: K.A.MURALEEDHARA MENON S/O. AYYAPPA MENON, RETIRED SENIOR SUPERINTENDENT, KUNDOOR HOUSE, TEMPLE ROAD, THIRUVANKULAM PO, ERNAKULAM 682 305. BY ADVS. SRI.P.VIJAYAKUMAR SRI.M.V.ASHIM SRI.R.BALAKRISHNAN SRI.B.HARRYLAL SRI.C.R.REGHUNATHAN ## **RESPONDENTS:** - 1 SECRETARY TO GOVERNMENT OF KERALA DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. - 2 DIRECTOR OF PUBLIC INSTRUCTION JAGATHY PO, THIRUVANANTHAPURAM 695 014 - 3 DEPUTY DIRECTOR OF EDUCATION KOTTAYAM 686 001. - 4 THE ACCOUNTANT GENERAL (A&E) KERALA,THIRUVANANTHAPURAM 695 001. - 5 THE SUB TREASURY OFFICER TRIPUNITHURA, ERNAKULAM 682 301. ## BY SR. GOVERNMENT PLEADER SRI. K.P. HARISH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**W.P(C).33092/2014**_ 2 ## **J U D G M E N T** Dated this the 11[th] day of April, 2023 ## **S. Manikumar, CJ** Petitioner has approached this Court seeking to call for the records leading to Exhibit-P6 order dated 4.7.2014 passed by the Lok Ayukta in Complaint No.2433/2011, set aside the same, and further grant all the reliefs sought by the petitioner under the said complaint. 2. Short facts leading to the filing of the writ petition are as under: 2.1. Petitioner, while working as a Junior Superintendent in the office of the Deputy Director of Education, Ernakulam, was suspended on 21/1/1992, on some frivolous and false grounds. Later, he was issued with a Memo of Charges dated 18/8/1992. Pursuant to the charge memo and defense statement, a summary enquiry was held, without hearing the petitioner, and a punishment of barring three increments with cumulative effect was imposed against the petitioner, vide order dated 26/02/1993. _**W.P(C).33092/2014**_ 3 2.2. Aggrieved by the punishment, petitioner filed an appeal on 23/04/1993 before the 1[st] respondent – Secretary to the Government of Kerala, Department of General Education, Thiruvananthapuram, and since the same was not decided, he had to file a writ petition and obtained a direction dated 08/07/1998 from this Court, for a time bound disposal, within three months. Meanwhile the petitioner retired from service on 30/09/1993, while working as the Senior Superintendent in the office of A.E.O, Vaikom. 2.3. Much later, the appeal dated 23/04/1992 filed by the petitioner was dismissed by 1[st] respondent - Secretary to the Government of Kerala, Department of General Education, Thiruvananthapuram, vide order dated 20/06/1995. Challenging the said order, petitioner filed O.P No.16607/1995 wherein, this Court held that since the punishment of barring 3 increments with cumulative effect was a minor penalty, there was no necessity of hearing the petitioner and there was no violation of principle of natural Justice. 2.4. Though the original petition was dismissed, this Court directed to disburse the retirement benefits due to the _**W.P(C).33092/2014**_ 4 petitioner within three months, vide judgment dated 08/07/1998. But, the petitioner was denied with his DCRG on failure of the 2[nd] respondent to issue Non Liability Certificate. 2.5. As the liability was not finalized and DCRG not disbursed, even after 14 years, petitioner submitted a review petition to the Secretary to the Government of Kerala, Department of General Education, Thiruvananthapuram, 1[st] respondent, essentially seeking that the punishment imposed, i.e., barring 3 increments with cumulative effect, may be revoked and the entire amount of DCRG may be disbursed. 2.6. But, the said review petition was also dismissed by the 1[st] respondent, vide order dated 3/1/2011. Later, the 2[nd] – respondent the Director of Public Instruction, Thiruvananthapuram, issued highly belated liability certificate dated 23/2/2011. But, even the admitted DCRG due to the petitioner is not yet disbursed, in view of the failure to issue re-validation of payment order. 2.7. It is further submitted that faced with the repeated instances of victimization due to deliberate official inaction, _**W.P(C).33092/2014**_ 5 petitioner finally filed a complaint before the Kerala Lok Ayukta, essentially seeking disbursement of the entire DCRG with interest from 1/10/1993, the date of retirement of the petitioner from service as Senior Superintendent under the service of respondents 1 and 2. 2.8. In Exhibit P1 complaint filed by the petitioner before the Lok Ayukta, he has also sought for interest @ 12%, for the belated payment of salary and allowance, in lieu of regularization of suspension, which was actually disbursed to him on 21/11/2009, after more than 16 years of retirement and similar interest on leave surrender benefit, which was actually disbursed after eight years of retirement. 2.9. After hearing the matter, Lok Ayukta dismissed Exhibit-P1 complaint, without appreciating the real nature of dispute. Thus, the petitioner is constrained to approach this Court challenging the legality of Exhibit-P6 order dated 4.7.2014 passed by the Lok Ayukta. Hence, this Writ Petition is filed for the relief stated supra. _**W.P(C).33092/2014**_ 6 3. Operative portion of Exhibit-P6 order of the Lok Ayukta in Complaint No.2433/2011 dated 4/7/2014 reads thus: “16. Learned counsel for the complainant raised one more contention against the fixation of liability by placing reliance on Note 3 of Rule 3 of Part III of Kerala Service Rules which mandates that the liabilities of the employee/pensioner 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. As already noticed the complainant retired on superannuation with effect from 30.9.1993. Ext. P6 letter dated 23.3.2011 sent by the second respondent to the fifth respondent would show that the liability certificate in respect of the complainant was forwarded by the former to the latter towards the end of March, 2011 only. On the strength of the above letter, the learned counsel for the complainant would argue that liabilities against the complainant were fixed for the purpose of recovery from his DCRG far beyond the outer limit of three years prescribed in Note 3 of Rule 3 of Part III KSRS. The above contention, on the face it, appears to be of some substance. But on a closer analysis of the sequence of events, we are afraid we cannot accept the plea of limitation raised by the complainant, because, the liability of the complainant was first quantified on 3.8.1993 as per Ext.P6 letter of the fourth respondent, endorsement dated 5.10.1993 of the third respondent and communication sent through the Assistant Educational Officer, Vaikom to the complainant in October, 1993. That means the quantification was done before the complainant did retire from service _**W.P(C).33092/2014**_ 7 and the liability was intimated to him within one month of his retirement. It can be seen that for due compliance of the statutory provision what is necessary is quantification and intimation of the liability to the employee or pensioner within three years from the date of retirement. Follow up actions like the issuance of the liability certificate and forwarding the same to the Treasury Officer so as to enable the pensioner to draw the balance amount, if any, do not form part of the statutory requirement. Plain reading of Note 3 of the aforesaid Rule would show that the bar of limitation does not extend to follow up actions of the departmental authorities after the quantification and the intimation of the liabilities. Hence we are of the view that, in the instance case, there is no violation of the provisions contained in Note 3 of Rule 3 of Part III of Kerala Service Rules. For reasons sated above, we hold that no relief can be granted to the complainant. Accordingly, complaint is dismissed.” **==> picture [404 x 13] intentionally omitted <==** ## Thiruvananthapuram/ respondent No.2, has filed a counter affidavit, stating as under: “A. It is submitted that while the petitioner was working as the Junior Superintendent, in the office of the Deputy Director of Education, Ernakulam, the 2[nd] respondent received a petition, forwarded by the 1[st] respondent, alleging misconduct and misbehavior on his part, with a direction to conduct an enquiry. As such, the Additional Director General of Education (General) & Vigilance Officer conducted enquiry and _**W.P(C).33092/2014**_ 8 it was revealed that the allegations were genuine. Hence, the petitioner was placed under suspension vide order No. V4/12371/1992/DPI, dated 20.01.1992. The petitioner was issued charge sheet on 18.08.1992 with charges leveled against him as under: (a) The petitioner was communal and prejudicial to coworkers who belonged to SC, ST and OBC communities. (b) The petitioner submitted files with personal interest directly to the officers without routing through proper channel. (c) The petitioner prepared a false report against St. George LPS, Thiruvankulam, only because of his antipathy towards the manager. Based on his report the management of the school was taken over by Government vide GO (Rt) 265/1991/G.Edn. Dated 22.01.1991. The Hon'ble High Court quashed the Government order. (d) The petitioner while submitting his appeal petition dated 25.02.1992, furnished copies of his confidential report and enquiry report of the District Educational Officer, Ernakulam which were unauthorizedly taken away by him to the Hon'ble Minister for Education. To the charge sheet issued to him, the petitioner submitted reply on 28.10.1992. The suspension was revoked with effect from 18.11.1992 as per order No. V4/12371/1992 dated 18.11.1992 and the petitioner was posted in the office of the Assistant Educational Officer, Vythiri and later he was promoted to the cadre of Senior Superintendent and posted in the office of the Director of General Education with effect from 12.12.1992. The petitioner denied all the charges leveled against him through his reply dated 28.10.1992, and again submitted additional statement on 06.01.1993 requesting that the period of suspension may be treated as duty for all purposes. On 26.02.1996 vide order No. V4/1267/1992/DPI, this respondent ordered imposing the punishment of barring three increments with cumulative effect. _**W.P(C).33092/2014**_ 9 B. It is further submitted that the petitioner retired from service on 30.09.1996. The Accountant General ordered that the monetary value equivalent to three increments Rs.17,460/- to be held from the DCRG of petitioner. The petitioner filed appeal against this order before the 1[st ] respondent. The period of suspension of the petitioner was regularized as duty for all purpose except for pay and allowance which was limited to 80% of the pay and allowances. Subsistence allowance can be claimed on production of non-employment certificate. C. It is submitted that the 1[st] respondent rejected the appeal submitted by the petitioner, stating that even though the petitioner deserved major punishment, this respondent had taken a lenient view. The petitioner filed OP No. 16607/1995 before this Hon'ble Court challenging the Government order. This Hon'ble Court on 08.07.1998 pronounced judgment that the punishment imposed is a minor one in nature and there were no violation of principles of natural justice involved in the case. It was also directed to disburse all the pensionary benefits due to the petitioner within three months. D. The appeal submitted by the petitioner before the 1[st] respondent seeking DCRG in full was turned down and the 2[nd] respondent issued liability certificate fixing Rs.17,838/-. The petitioner submitted Complaint No. 2433/2011 before the Lok _**W.P(C).33092/2014**_ 10 Ayukta. The Lok Ayukta found out that the liability of the petitioner was first quantified on 03.08.1993 by the Accountant General, endorsed by the Deputy Director of Education on 05.10.1993 and he was informed by the Assistant Educational Officer, Vaikom in October 1993, much before the retirement of petitioner. The Lok Ayukta after considering the whole issue observed that there is no violation of the provisions contained in Note 3 of Rule 3 of Part III KSR and accordingly dismissed the complaint on 04.07.2014. The Lok Ayukta clearly found that the petitioner did not challenge the fixation of DCRG amount by the 4[th] respondent. He did not challenge the assessment and quantification of the amount done by the 4[th] respondent. The Kerala Lok Ayukta also found there is no violation of the provisions of Rule 3 Part III KSR. The Lok Ayukta observed that the liability of the complainant was first quantified on 03.08.1993. The quantification was thus done before the retirement of the complainant and the liability was intimated within one month of his retirement. The statutory provisions only require quantification and intimation of the liability within three years from the date of retirement. On the basis of the above, Lok Ayukta concluded that there is no violation of the rule. The order of the Lok Ayukta is absolutely correct and is in accordance with the provisions of law. _**W.P(C).33092/2014**_ 11 E. The Lok Ayukta clearly observed that the judgment in **P. V. Mathew v. State of Kerala** could not be applied to the facts of this case as the petitioner did not challenge the finding entered by the 4[th ] respondent on 03.08.1993, prior to his retirement. The assessment and quantification as done by the 4[th ] respondent remained for long and departmental officers acted upon it and issued initial liability certificate on 20.09.1995, and still then the petitioner did not challenge the fixation entered in it. In view of the above, the decision in Mathew's case cannot be applied to the facts of this case. 8. The Lok Ayukta found that during the post retirement period departmental and judicial proceedings were pending at the instance of the petitioner against the penalty of withholding his increments. Therefore, the final determination of the respective claims was depending on the final outcome of those proceedings. The respondent cannot be held guilty of the laches. Further, the claim for interest was filed after a lapse of 10 years from the date of the alleged case of action, and thus, the Lok Ayukta declaimed the claim for interest also.” 5. Mr. P. Vijayakumar, learned counsel for the petitioner, made submissions on the basis of the averments made and grounds raised. Placing reliance on the decision in **S.K.Dua** _**W.P(C).33092/2014**_ 12 **v. State of Haryana and Another** reported in **(2008) 3 SCC 44** , he further submitted that the liability was not quantified till 2011, though the petitioner retired on 30.09.1993, and therefore, applying Note 3 to Rule 3 of Part III Kerala Service Rules, 1959, liability has to be fixed within a period of three years, and DCRG ought to have been granted. 6. Relying on **Mathew P.V. v. The State of Kerala and others** reported in **ILR 1998 (3) Ker. 532** , learned counsel for the petitioner further submitted that the order withholding increment with cumulative effect, cannot be given effect to. 7. Inviting the attention of this Court to the decision in **S.K.Dua** (cited supra), he further submitted that for the belated payment of DCRG, petitioner is entitled to interest and in the aforesaid circumstances, Lok Ayukta ought not to have dismissed the complaint. He prayed to grant the reliefs sought for in the writ petition. 8. Per contra, Mr. K. P. Harish, learned Senior Government Pleader appearing for the respondents, _**W.P(C).33092/2014**_ 13 submitted that all the contentions raised in the writ petition have been considered by the Lok Ayukta extensively and applicability of Rule 3 of the Kerala Service Rules, 1959. to the facts of this has also been considered. 9. As regards reliance placed by the learned counsel for the petitioner on the decision in **Mathew’s** case (cited supra), learned Senior Government Pleader submitted that the order imposing punishment of barring three increments with cumulative effect was challenged in O.P.No.16607/1995 and that the same was dismissed. He, therefore, submitted that the said judgment cannot be made applicable to the case on hand. 10. Insofar as the decision in **State of Kerala v. Balan** reported in **ILR 2004 (1) Ker. 152** , relied on, learned Senior Government Pleader submitted that liability has been fixed within three years and the said aspect has also been dealt with by the Lok Ayukta. He has no quarrel over the proposition of law laid down in the decision in **S.K.Dua** (cited supra). He, thus, prayed for dismissal of the writ petition. _**W.P(C).33092/2014**_ 14 11. Heard the learned counsel for the parties and perused the material on record. 12. Petitioner retired from service on 30.09.1993. Eighteen years later, he has preferred Complaint No.2433/2011 before the Lok Ayukta claiming full amount of DCRG of Rs.41,663/-, with interest from 01.10.1993, interest for appears of pay and allowance for the period from 27.09.1993 to 21.11.2009, and interest for delayed payment of Earned Leave Surrender from 01.10.1993 to 01.11.2001. 13. As rightly contended by the learned Senior Government Pleader, all the contentions have been properly addressed by the Lok Ayukta. Punishment of barring three increments with cumulative effect has been challenged by the petitioner in O.P.No.16607/1995 and the same was dismissed by this Court vide judgment dated 8.7.1998. Said decision has reached finality and it is not open to the petitioner to collaterally challenge in this writ petition. 14. As rightly pointed out before the Lok Ayukta, as well as this Court, liability has been fixed as early as on 3.8.1993, _**W.P(C).33092/2014**_ 15 much before the petitioner’s retirement. Applicability of Rule 3 of the Kerala Service Rules, 1959 has been considered by the Lok Ayukta. Decisions in **Mathew’s** case (supra) and **Balan’s** case (supra) have no application to the case on hand. 15. Giving due consideration to the averments, submissions, and the material on record, this Court is of the view that the well considered order of the Lok Ayukta in complaint No.2433/2011 dated 4.7.2014 (Exhibit-P6), does not call for any interference. There is no error or illegality in the said order, which is impugned. Writ petition is dismissed. Pending interlocutory applications, if any, will stand closed. Sd/- S. Manikumar, Chief Justice Sd/Murali Purushothaman, Judge sou. xxxx _**W.P(C).33092/2014**_ 16 ## APPENDIX OF WP(C) 33092/2014 ## PETITIONER EXHIBITS EXHIBIT P1 COPY OF THE COMPLAINT NO.2433/2011 WITH ANNEXURE FILED BY THE PETITIONER BEFORE KERALA LOKAYUKTA EXHIBIT P2 COPY OF THE STATEMENT FILED BY THE 2[ND] RESPONDENT DATED 3/8/2012 EXHIBIT P3 COPY OF REPLICATION FILED BY THE PETITIONER DATED 5/12/2012 EXHIBIT P4 COPY OF ADDITIONAL STATEMENT FILED BY THE 2[ND] RESPONDENT THE DATED 31/7/2013 - EXHIBIT P5 COPY OF THE ADDITIONAL REJOINDER DATED 19/2/2014 EXHIBIT P6 COPY OF THE ORDER DATED 4/7/2014 PASSED BY KERALA LOK AYUKTA