Meera Gopinath v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` FRIDAY, THE 14[TH] DAY OF JANUARY 2022 / 24TH POUSHA, 1943 ``` ## **`OP(KAT) NO. 51 OF 2017`** ``` AGAINST THE ORDER IN TA NO.283/2013 DATED 21.11.2016 OF KERALA ``` ## **`ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM`** ## **`PETITIONER:`** ## **`MEERA GOPINATH`** ``` AGED 41 YEARS ,D/O. LATE K.K GOPINATHAN, DWARAKA, EDAPPALLY P.O,KOCHI 682 024, KERALA. BY ADVS. SRI.D.KISHORE SMT.MINI GOPINATH SRI.R.MURALEEKRISHNAN MALAKKARA ``` ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA`**| |---|---| ||**`REPRESENTED BY ITS SECRETARY TAXES (E) DEPARTMENT, GOVERNMENT`**| ||**`SECRETARIAT,THIRUVANANTHAPURAM,`**| ||**`KERALA-695 001.`**| |**`2`**|**`THE INSPECTOR GENERAL OF REGISTRATION-KERALA`**| ||**`VANCHIYOOR, THIRUVANANTHAPURAM, KERALA-695 001.`**| |**`3`**|**`THE DISTRICT REGISTRAR GENERAL`**| ||**`ERNAKULAM, KERALA`**| |**`4`**|**`THE DISTRICT COLLECTOR`**| ||**`ERNAKULAM.`**| |**`5`**|**`M RADHAMONY`**| ||**`W/O. LATE K.K GOPINATHAN,`**| ||**`DWARAKA, EDAPPALLY P.O., KOCHI-682 024, KERALA.`**| |**`6`**|**`THARA GOPINATH`**| ||**`D/O. LATE K.K GOPINATHAN,`**| ||**`DWARAKA, EDAPPALLY P.O., KOCHI-682 024,KERALA.`**| |**`7`**|**`GOPAKUMAR GOPINATH`**| ||**`S/O. LATE K.K GOPINATHAN,DWARAKA, EDAPPALLY P.O, KOCHI`**| ||**`(LEGAL HEIRS OF 1ST APPLICANT ARE IMPLEADED AS ADDITIONAL`**| ||**`APPLICANTS 2 TO 5 AS PER ORDER DATED 8.11.2016 IN M.A 2401/1)`**| ||**`KERALA-682 024.`**| ## **`BY SRI.SAIGI JACOB PALATTY-SR GP`** ## **`THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION`** ``` ON 14.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(KAT) No.51 of 2017 2 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **---------------------------------------------------------------** ## O.P.(KAT) No.51 of 2017 _[arising out of the impugned final order dated 21.11.2016 in T.A. No.283/2013 on the file of the KAT, Tvm Bench]_ **------------------------------------------------------** Dated this the 14[th] day of January, 2022 ## **JUDGMENT** ## **Alexander Thomas , J.** The deceased father of the petitioner herein is a pensioner, who has filed Annexure-I W.P.(C) No.10088/2006 on 26.06.2009 before ## this Court with the following prayers:- - _“i. Call for the records leading to the passing of Exhibits P5 and P6 and quash the same by issuing a writ of certiorari or any other appropriate writ, direction or order._ - _ii. issue a writ of mandamus or any other appropriate writ, direction or order directing the Respondents to disburse the entire amount of D.C.R.G. due to the Petitioner as per Exhibit P3 with 12% interest per annum from the date of his retirement, forthwith._ - _iii. grant such other reliefs, which this Honourable Court may deem fit and proper in the interest of justice._ - _iv. Call for the records leading to the passing of Exhibit P8 and quash the same by issuing a writ of certiorari or any other appropriate writ, direction or order.”_ 2. After establishing the Kerala Administrative Tribunal, in accordance with the provisions contained in the Administrative Tribunal’s Act, 1985, the abovesaid W.P.(C) No.10088/2006, was transferred from this Court to the Kerala Administrative Tribunal (Thiruvananthapuram Bench), wherein it has been re-registered and entertained as Transferred Application, T.A. No.283/2013. O.P.(KAT) No.51 of 2017 3 3. The Tribunal, after hearing both sides, has rendered the impugned Anx.IV final order dated 21.11.2016 in the instant T.A. No.283/2013 with the specific finding that the liabilities fixed against the pensioner as per Exts.P6 dated 09.03.2006 & P8 dated 07.11.2008 is beyond the 3 year outer time limit fixed in Note 3 to Rule 3 (Part III) KSR, however, ordered that the liabilities fixed in Ext.P8 dated 07.11.2008 need be treated only as a show cause notice and once the applicant responds thereto the competent authority among the respondents in the T.A. may take a decision regarding the issues of liability against the applicant and then take a decision regarding the disbursement of the DCRG amount due to him, etc. 4. It is this verdict of the Tribunal, that is under challenge in the present original petition at the instance of the daughter of the deceased pensioner. 5. Heard Sri.D. Kishore, learned counsel appearing for the petitioner in the O.P./LR of the deceased original applicant and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 to 4, contesting respondents 5 to 7 herein are widow, another daughter and son of the deceased original applicant. It is stated before us by Sri.D. Kishore, learned counsel appearing for the petitioner in the original petition, that all the legal representatives of the deceased original applicant were sailing together and that at the O.P.(KAT) No.51 of 2017 4 time of filing of the present O.P., the widow of the original applicant (mother of the petitioner) & others were not present in India and hence to avoid further delay, the present original petition was filed by the present petitioner, who happens to be one of the two daughters of the deceased original applicant and the other legal representatives were arrayed as contesting respondents 5 to 7. Though notices have been duly served on contesting respondents 5 to 7, there is no appearance for that parties. 6. In the instant case, the original applicant has retired from service while holding the post of Sub-Registrar in the Registration Department on 31.07.2002. Citing audit objections and alleged liabilities, the DCRG amount sanctioned to the applicant as per Ext.P3 dated 25.10.2004, issued by the 3[rd] respondent in the O.A. (District Registrar), was never disbursed to him. Long after his retirement and much after the expiry of the outer time limit of 3 years from the date of retirement of the pensioner as mandated in Note 3 to Rule 3 (Part-III) Kerala Service Rules (KSR), the alleged liabilities against the applicant was sought to be fixed as per Ext.P6 proceedings dated 09.03.2006 & Ext.P8 dated 07.11.2008. It appears that, a provisional order was passed in the nature of Ext.P5 dated 09.11.2004 proposing a liability of Rs.12,21,390/- It is thereafter, the aforesaid liability was revised and re-fixed as per Exts.P6 & P8 as above, wherein the liabilities were O.P.(KAT) No.51 of 2017 5 reduced to Rs.2,91,627/- on 07.11.2008. The case of the respondents in the O.A. is that since the DCRG amount sanctioned as per Ext.P3 to the applicant is only Rs.1,90,542/- and as the total liabilities fixed as per Ext.P8 dated 07.11.2008 is Rs.2,91,627/-, after deduction of such liabilities there is no further amount to be released by way of DCRG to the applicant, etc. As per Ext.P3 the DCRG amount sanctioned to the applicant seems to be Rs.1,90,542/- however, the learned Senior Government Pleader would point out that it is averred in para No.4 of Anx.III counter affidavit dated 19.10.2006, filed by the respondents in the above proceedings before the Tribunal that the DCRG amount due to the pensioner is Rs.1,76,468/- We need not get into the issue as to the correct figure regarding the full DCRG amount due to the petitioner. 7. It appears that, merely based on the liabilities alleged in Ext.P8, the said liability figures have been carried over and stated in Ext.P9 proceedings issued purportedly under the Kerala Public Accountants Act. Such a procedure is purely illegal and ultra-vires and _prima facie_ , not correct. So it is seen that Ext.P9 is issued solely on the basis of Ext.P8. Ext.P8 has already been held by the Tribunal, as per the impugned Anx.IV verdict, to be treated only as provisional and subject to finalisation. Hence, the matters in relation to Ext.P8 could not been the basis for the issuance of Ext.P9. O.P.(KAT) No.51 of 2017 6 8. The pleadings set up by the respondents in the O.A. in their reply statement filed before the Tribunal is that there happened to be a delay in finalising the liabilities due to administrative exigencies, etc. The case of the respondents in the O.A. is that these are liabilities fastened on the applicant on account of audit objections and they relate to the alleged short fall of stamp duty by the applicant in the exercise of his duties as the Sub-Registrar, in demanding the stamp duty and registration fee in registration of documents as per the provisions contained in the Registration Act, etc. 9. The Tribunal, after hearing both sides, has taken the view that Ext.P8 dated 07.11.2008 need be taken only as a show cause notice and that once the applicant responds thereto and thereafter the competent authority among the respondents in the O.A. may take an appropriate decision on the issue of liability and then take a decision on the issue of release of full DCRG amount, etc. During the pendency of the T.A. before the Tribunal, the original applicant had died on 26.03.2013 and the application was filed by his legal representatives to get themselves impleaded as additional applicants in the T.A. to prosecute the pleas of the deceased original applicant and the plead for such impleadment of the legal representatives was duly allowed by the Tribunal on 08.11.2016. 10. In the O.P. filed before us, the additional applicant No.3 O.P.(KAT) No.51 of 2017 7 before the Tribunal, Meera Gopinath, is the sole petitioner herein and the other legal representatives have been impleaded as contesting respondents 5 to 7, as according to them, the said parties were not available in India at the time of filing of the present O.P. etc. 11. The legal position in relation to fixation of liabilities, which can be ascertained without resort to judicial proceedings or departmental proceedings as envisaged in the operative portion of Rule 3 (Part-III) KSR is regulated by the provisions contained in Note 2 & Note 3 of Rule 3 (Part-III) KSR and the legals principles in that regard is too well settled. Note 2 & Note 3 of Rule 3 (Part-III) KSR provide as follows:- _“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 pensioner should be quantified and intimated to him.”_ The legal position is that, in a case where judicial proceedings or departmental proceedings, as envisaged in Rule 3 (Part-III) KSR have not been initiated, then liabilities which can be ascertained without resort to judicial proceedings or departmental proceedings as above, could be could be finalised after due reasonable opportunity to the pensioner and after hearing his version and such decision in the matter of fixation of liabilities should be done by the competent authority O.P.(KAT) No.51 of 2017 8 within an outer time limit of 3 years from the date of retirement of the pensioner. If such process cannot be duly completed within the said outer time limit, then there is no question of the respondent authority having any such power to deduct such alleged liabilities so fixed after the outer time limit from the full DCRG amount due to the pensioner. In a case where such liabilities are so fixed within the outer time limit of 3 years from the date of retirement, which is done after following the due procedure of his hearing etc., then such a liability so fixed can be deducted from the full DCRG amount etc. In the instant case, there is no dispute that the original applicant had retired from service on 31.07.2002 and 3 years therefrom has elapsed on 31.07.2005. So, the statutory outer time limit for fixing such liabilities has expired long ago on 31.07.2005. Therefore, it was not legally correct on the part of the Tribunal to hold that the respondents in the O.A. could still proceed with the fixation of liability and deduction, if any, of the amounts for the full DCRG etc. The said decision of the Tribunal as per the impugned Anx.IV final order is thus clearly liable for legal interdiction at the hands of this Court. It appears that the present O.P.(KAT) has been filed before this Court on 12.01.2017. It appears that the 4[th] respondent District Collector has issued the proceedings as per Ext.P9 dated 22.07.2009 styled as a “summons” issued purportedly under Sec.3(2) of the Kerala Public Accountants Act, 1963, addressed to the O.P.(KAT) No.51 of 2017 9 pensioner and that too about 7 long years after his retirement on 31.07.2002. Ext.P9 which is on the sole basis of Ext.P8. So, Ext.P9 cannot be said to be legal, in view of the verdict of the Tribunal. In Ext.P9 it is alleged by the District Collector that the very same liabilities covered by Ext.P8 will be recovered by way of revenue recovery proceedings and the said decision has been taken purportedly under the provisions of the Kerala Public Accountants Act. _Prima facie_ , it is really open to a serious ground as to whether the merely alleged shortfall in the collection of stamp duty by a Sub-Registrar within the parameters of the Registration Act, would fall within the adjudication domain as per Sec.3(2) of the Kerala Public Accountants Act and whether such an official holding the post of Sub-Registrar, especially in the matter of discharge of duties of charging and collecting of stamp duties and registration fee in respect of registration of documents as per the Registration Act, can be said to satisfy the definition of “Public Accountant” as defined in Sec.2(b) of the Kerala Public Accountants Act and more particularly in the light of the dictum well settled by a Division Bench of this Court in the case in _**Paramu Pillai v. District Collector**_ [1989 (1) KLT 224, para. 3] as well as other decisions as in _**Parameswaran v. State of Kerala**_ [2009(4) KLT SN 23, (Case No.26), para. 9]. It appears that the 4[th] respondent District Collector has merely issued Ext.P9 dated 22.07.2009 solely on O.P.(KAT) No.51 of 2017 10 the basis of Ext.P8 without giving any reasonable opportunity of being heard to the pensioner as to how he can be made liable for the alleged liabilities stated in Ext.P8 & P9 and in what manner he has to be responsible and liable in the proved facts and circumstances of the case, etc. Moreover, unless the official concerned should satisfy the definition of “Public Accountant” in terms of Sec.2(b) of the Kerala Public Accountants Act and further there should be a clear-cut determination of the issues after fair and reasonable opportunity of being heard to the affected person, such penal proceedings cannot be lawfully justified. Even if it is assumed for a moment that an official holding the post of Sub-Registrar may satisfy the definition of “Public Accountant”, the latter aspect is conspicuously missing. What is now proposed to be done is that the liabilities alleged in Ext.P8, which is ultra-vires the provisions contained in Note 3 to Rule 3 (Part-III) KSR, is alleged to be recovered on the basis of the provisions contained in the Kerala Public Accountants Act, by resort to revenue recovery proceedings. Unless there is a clear-cut determination with a fair and reasonable opportunity of being heard to the affected person in appropriate and competent legal proceedings and even if such legal proceedings is assumed that there is no question of proceeding to recover the alleged liabilities unilaterally fixed by the department by resort to revenue recovery proceedings. It is too well established to O.P.(KAT) No.51 of 2017 11 require the citation of any judicial decisions, that the Revenue Recovery Act does not confer jurisdiction to proceed in that manner and only properly determined and finalised liabilities in the manner known to the law can be enforced through revenue recovery proceedings. 12. So, even at the time of issuance of Ext.P9, it was about 7 long years after the retirement of the pensioner on 31.07.2002. Though we sought for detailed clarifications on those matters, as per the orders passed by us on 18.11.2021 in this O.P., there is no response from the respondents in the O.A. Moreover, the pensioner has already died on 26.03.2013. At this long distance of time, we are of the firm view that there is no question of permitting the respondents in the O.A. to proceed any further with Ext.P9. 13. Hence, it is ordered and declared that the full amount of DCRG due to the pensioner is payable to his legal representatives, concerned. 14. Sri.D.Kishore, learned counsel appearing for the petitioners in the O.P., submitted that there is no difference of opinion among the legal representatives of the deceased pensioner and that his party has already filed an affidavit dated 23.11.2021 in this O.P., stating that the DCRG amount due to the deceased pensioner may be paid to his widow, Smt.M.Radhamony (5[th] respondent herein), who is the mother O.P.(KAT) No.51 of 2017 12 of the petitioner, as she is even otherwise the claimant for family pension. We are also told that the pension and commutation of pension, etc. has already been paid and that the widow of the deceased pensioner is the family pensioner concerned. 15. Accordingly, it is ordered that the competent authority among respondents 1 to 4, more particularly, respondent No.3 will ensure that the full amount of DCRG due to the deceased pensioner shall be immediately disbursed and released to the 5[th] respondent herein (Smt.M.Radhamony), who is the widow of the deceased pensioner. 16. Sri.D.Kishore, learned counsel appearing for the petitioners, submit that the pensioner had claimed interest at the rate of 12% per annum on the DCRG amount from the date of his retirement upto the date of actual payment, etc. 17. After hearing both sides, we see that there were many inordinate and unexplained delay on the part of the respondents in the O.A. in finalising the liabilities. No proper reason whatsoever was given by the respondents in the O.A. in the reply statement except a vague statement that due to exigencies in the department, they could not finalise the liabilities within the outer time limit of 3 years, etc. 18. The pensioner retired from service on 31.07.2002 and the outer time limit of 3 years therefrom has expired on 31.07.2005. O.P.(KAT) No.51 of 2017 13 Atleast after the expiry of the said 3 year time limit, the respondents in the O.A. should have disbursed the full amount of DCRG to the pensioner, which has not been done. Accordingly, we are of the firm view that interest is also payable on the long and inordinate delay in payment of the DCRG, which has not been given even now. In that view of the matter it is ordered that the abovesaid DCRG amount, payable to the widow of the deceased pensioner, shall carry interest at the rate of 7% per annum for the period from 31.07.2005 (3 years from the date of retirement of the pensioner on 31.07.2002) upto the date of actual payment. The full amount of DCRG along with the interest thereon at the rate of 7% per annum for the period from 31.07.2005 to upto the date of actual payment, shall be paid to the 5[th] respondent herein, widow of the deceased pensioner, within an outer time limit of two months from the date of production of a copy of this judgment. If there is any further delay in making such payment, the said interest amount will stand enhanced to 10% per annum. 19. Further, we note that the DCRG amount was sanctioned to the deceased pensioner on the basis of his last drawn pay, etc., which was relatively low, going by the then pay norms. The pay and allowances of Civil Servants have been liberally enhanced in subsequent pay revisions. The DCRG amount has not been paid even now. So the money value has seriously depreciated by the long passage O.P.(KAT) No.51 of 2017 14 of time and hence that the respondents should pay interest on the delayed payment of DCRG. 20. These crucial aspect of the matter has not been duly taken into account by the Tribunal. In that view of the matter, it is ordered that the impugned Anx.IV final order dated 21.11.2016, rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in T.A. No.283/2013, will stand set aside. With these observations and directions the above original petition will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **VIJU ABRAHAM, JUDGE** Skk//07022022 O.P.(KAT) No.51 of 2017 15 ## **`APPENDIX OF OP(KAT) 51/2017`** ## **`PETITIONER'S ANNEXURES:-`** ``` ANNEXURE 1TRUE COPY OF THE WRIT PETITION NO. WPC 10088/2006. EXHIBIT P1TRUE COPY OF THE GRATUITY PAYMENT ORDER DATED 1-1-2003 EXHIBIT P2TRUE COPY OF THE ORDER NO E1-691/02 DATED 6-3-2004 OF THE 3RD RESPONDENT EXHIBIT P3TRUE COPY OF THE GRATUITY PAYMENT ORDER DATED 25-10-2004 EXHIBIT P4TRUE COPY OF THE REPRESENTATION DATED 3-11-2003 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P5TRUE COPY OF THE PROCEEDINGS NO E2-691/02 DATED 09-11-2004 OF THE 3RD RESPONDENT EXHIBIT P6TRUE COPY OF THE PROCEDINGS NO E1-691/02 DATED 9-3-2006 OF THE 3RD RESPONDENT EXHIBIT P7TRUE COPY OF THE G.O(P) NO 185/2002/FIN DATED 27-03-2002 EXHIBIT P8TRUE COPY OF THE PROCEEDINGS NO E2-776/08 DATED 7-11-2008 OF THE 3RD RESPONDENT EXHIBIT P9TRUE COPY OF THE PROCEEDINGS NO B11-37894/2009 DATED 22-07-2009 OF DISTRICT COLLECTOR, ERNAKULAM ANNEXURE IITRUE COPY OF THE AFFIDAVIT AND PETITION N I.A. NO. 10013/200 IN PW CNO. 10088/2006. ANNEXURE IIITRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT. ANNEXURE IVTRUE COPY OF THE ORDER DATED 21.11.2016 IN T.A. 283/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL. ```