Pushpavalli V.K. v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 28TH DAY OF MARCH 2018 / 7TH CHAITHRA, 1940 **OP(KAT).No. 98 of 2018** AGAINST THE ORDER IN OA 1238/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 02-02-2018 ## **PETITIONER(S)/APPLICANT:** PUSHPAVALLI V.K. AGED 60 YEARS, W/O. S. KRISHNAKUMAR, 'ASWATHY', P.O MALESAMANGALAM, THIRUVILWAMALA, THRISSUR DISTRICT. BY ADV.SRI.M.VIJAYAKUMAR ## **RESPONDENT(S)/RESPONDENTS:** 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM 695 001 2. ACCOUNTANT GENERAL, THIRUVANANTHAPURAM 695 001 3. DEPUTY DIRECTOR OF EDUCATION, PALAKKAD 678 001 4. THE DISTRICT PROJECT OFFICER, SSA PALAKKAD, CIVIL STATION, PALAKKAD 678 001 BY SR. GOVERNMENT PLEADER SRI. A.J. VARGHESE THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 28-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 98 of 2018 (Z) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 PHOTOSTAT COPY OF ORDER IN OA(KEM) NO. 1238/2015 OF THE ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 2-2-2018 EXHIBIT P2 PHOTOSTAT COPY OF THE MEMORANDUM OF OA(EKM) NO. 1238/15 ## K. SURENDRA MOHAN & P.V. ASHA, JJ. - - - - - - - - - - - - - - - - - O.P.(KAT) No. 98 of 2018 - - - - - - - - - - - - - - - - - Dated this the 28[th] day of March, 2018 ## JUDGMENT ## Surendra Mohan, J. The applicant in O.A. (EKM) No. 1238 of 2015 of the Kerala Administrative Tribunal, Thiruvananthapuram is before us aggrieved by Ext.P1 order dated 2.2.2018 of the Tribunal. The petitioner is a retired Assistant Educational Officer, (AEO) of the General Education Department. She retired from service on 31.3.2014. Long after her retirement, she was served with Annexure A1 dated 17.9.2015 fixing a liability of Rs.2,40,013/- on her. As per Annexure A2, she was informed that a number of vouchers relating to the years 2006-2007 and 2007-2008 were missing. The liability was quantified and fixed on the basis of the vouchers that were found missing. O.P.(KAT) 98/2018. 2 2. The petitioner challenged Annexure A1 before the Kerala Administrative Tribunal (KAT). According to the petitioner, the liability related to a period that was long prior to her retirement. Audit of the department was being conducted every year, no discrepancy has been detected at any time. The petitioner has not been subjected to any disciplinary proceedings. Therefore, it was contended that, Annexure A1 was unsustainable and liable to be set aside. 3. The KAT considered the contentions, found that no notice as contemplated by Note 2 to Rule 3 Part III of the Kerala Service Rules ('KSR' for short) had been issued to the petitioner. Therefore, the O.A. has been disposed of directing the authorities to consider Annexure A1 as a show cause notice. The petitioner has been directed to submit her objections and the fourth respondent has been directed to pass appropriate orders thereon within one month. It is the said order, Ext.P1, that is under challenge in this Original Petition. O.P.(KAT) 98/2018. 3 4. According to Adv. M. Vijayakumar, the action of the authorities in issuing Annexure A1 fastening a liability on the petitioner one and a half years after her retirement is without any justification whatsoever. Placing reliance on the decision of a Division Bench of this Court in Sugathan v. Cochin Devaswom Board (2005 (1) KLT 46), it is pointed out that where no liability could be fixed on an employee within a period of one year of his retirement, the death-cumretirement gratuity (DCRG) would have to be paid. In such cases, it is contended that the amount would have to be disbursed in full. 5. The counsel also places reliance on two Single Bench decisions of this Court, Ramanadan v. Dy. Director of Education (1992 (1) KLT 838) and Sakthidharan M.K. v. State of Kerala (2014 (3) KHC 259) to contend that where the liability could not be fixed within the period of one year stipulated under Rule 116 the DCRG ought to have been paid. The counsel also places reliance on the decision in State of O.P.(KAT) 98/2018. 4 Kerala v. Antony (1994(2) KLT 314 (DB)) to contend that, no liability could be fixed on an employee without complying with the stipulation contained in Note 2 to Rule 3, Part III KSR of being heard. Since Annexure A1 was issued without following the procedure under Note 2 to Rule 3, it is contended that the KAT ought to have set aside the same and directed the amount of DCRG to be disbursed to the petitioner. We have heard the Government Pleader Adv. A.J. Varghese also. 6. It is not in dispute that, the petitioner had retired from service on 31.3.2014. No disciplinary proceedings are either contemplated or pending against her. It is only on 17.9.2015 long after her retirement that Annexure A1 has been issued fixing a liability on her. It is also true that the same has been issued without following the procedure stipulated by Note 2 to Rule 3 of Part III KSR. However, in exercise of its discretion the KAT has directed Annexure A1 to be treated as a notice under Note 2 to Rule 3 referred to above and to finalize proceedings only after giving an opportunity to O.P.(KAT) 98/2018. 5 the petitioner to submit her explanation and considering the same. The course adopted by the KAT cannot be characterized as unjustified. It cannot also be described as unjustified in the facts and circumstances noticed above. The KAT has thought it fit that, it was necessary for the authorities to have the issue considered after giving an opportunity of being heard to the petitioner also. Though it is contended by the counsel for the petitioner that the period in question is long prior to her date of retirement, we are of opinion that the same is a matter that would have been considered by the fourth respondent while deciding whether to fasten a liability on the petitioner or not. Therefore, we are not satisfied that any interference with the impugned order is called for. 7. We notice that, going by the dicta laid down by the decisions on which reliance has been placed by the learned counsel, it is necessary for the authorities to comply with the procedures stipulated by Note 2 to Rule 3 KSR before fastening any liability on an employee after his retirement. The outer 6 O.P.(KAT) 98/2018. time limit stipulated for fixing such liability is three years, going by Note 2 to Rule 3 KSR. Therefore, no recovery is permissible if the said outer time limit has expired. In view of the above, the authorities would also have to consider whether any recovery from the DCRG would be permissible in this case, considering the fact that the petitioner had retired on 31.3.2014 and the three year period has already expired. In such cases no recovery from the DCRG is permissible though other methods of recovery could be resorted to. However, these are matters on which the fourth respondent would have to bestow attention while complying with the direction issued by the KAT. As already noticed above, in the present circumstances, we do not find any reason to interfere with the direction issued by the KAT. In view of the above, this O.P. (KAT) is dismissed. It is pointed out by the counsel for the petitioner that, the time limit stipulated by the KAT has already expired. In view of the above, we permit the petitioner to submit her O.P.(KAT) 98/2018. 7 explanation to Annexures A1 and A2 within a period of three weeks of the date of receipt of a copy of this judgment. On receipt of such explanation, the fourth respondent shall afford an opportunity of being heard to the petitioner and shall pass final orders in the matter, within a period of one month therefrom. Sd/K. SURENDRA MOHAN JUDGE Sd/P.V. ASHA JUDGE sb