S. Girija Devi v. Travancore Devaswom Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE ACTING CHIEF JUSTICE MR.THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 21ST DAY OF JULY 2016/30TH ASHADHA, 1938** ## **WP(C).No. 26488 of 2004 (C)** **----------------------------** ## **PETITIONER :** **----------------------** **S.GIRIJA DEVI,W/O.LATE B.SOMASEKHARAN NAIR, KARIYATT HOUSE, MALAYALAPUZHA EARM P.O., PATHANAMTHITTA, PIN-689 664. (COMMISSIONER OF THIRUVABHARANAM, TRAVANCORE DEVASWOM BOARD)** ## **BY ADV.SRI.GEORGE POONTHOTTAM** **RESPONDENT(S): -----------------------------** **1. TRAVANCORE DEWASWOM BOARD, REPRESENTED BY THE SECRETARY, THIRUVANANTHAPURAM.** **2. THE PRESIDENT, TRAVANCORE DEWASWOM BOARD, THIRUVANANTHAPURAM.** **3. THE DEWASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM.** ## **BY ADV. SMT.A.SREEKALA, SC, TRAVANCORE DEVASWOM BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-07-2016 , THE COURT ON 21-07-2016 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.26488/2004** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE NOTICE NO.R.O.C.NO.3426/HCA/04 DATED 9/2/2004.** - **P2 COPY OF THE NOTICE NO.ROC NO.21797/EST DATED 24/4/2003.** - **P3 COPY OF THE REPRESENTATION SUBMITTED BEFORE THE PRESIDENT DATED 4/6/2004.** - **P4 COPY OF THE LETTER NO.R.C.25203/97/PEN. DATED 27/7/2004.** - **P5 COPY OF THE LETTER DATED 8/6/88** - **P6 COPY OF THE ORDER NO.90/95/BILL DATED 9/10/1995** - **P7 COPY OF THE ORDER NO.R.O.C.NO.419/87/EST. II DATED 3/2/1996** - **P8 COPY OF THE COMMUNICATION NO.ROC.447/93/SAB DATED 13/2/2002** - **P9 COPY OF THE COMMUNICATION NO.ROC 877/93/SAB DATED 30/9/2003** - **P10 COPY OF THE COMMUNICATION NO.ROC 8596/96/SAB DATED 14/6/1996** - **P11 COPY OF THE COMMUNICATION NO.ROC.217/92/EST DATED 10/10/1996** - **P12 COPY OF THE COMMUNICATION NO.ROC 18529/96/SAB DATED 3/12/1996** - **P13 COPY OF THE COMMUNICATION NO.ROC 20175/95/SAB DATED 17/4/1997** - **P14 COPY OF THE COMMUNICATION NO.ROC 7744/99/SAB DATED 27/2/2003** - **P15 COPY OF THE LETTER NO.D.A.NO.8029/97/E3 DATED 30/7/1998** - **P16 COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE MINISTER FOR DEVASWOM DATED 9/8/2004** ## **RESPONDENT'S EXHIBITS:** - **R1(A) COPY OF THE NOTICE DATED 08/07/98 ISSUED BY THE ASST. DEVASWOM COMMISSIONER, AMBALAPUZHA.** - **R1(B) COPY OF THE NOTICE DATED 23/12/98 ISSUED BY THE ASST. DEVASWOM COMMISSIONER, AMBALAPUZHA** - **R1(C) COPY OF THE LETTER DATED 21/1/99 SENT BY THE DEVASWOM ACCOUNTS OFFICER TO THE SECRETARY, TDB** **2/-** **-2-** ## **WP(C).NO.26488/2004** - **R1(D) COPY OF THE STATEMENT DATED 25/05/99 SUBMITTED BY SOMASEKHARAN NAIR** - **R1(E) COPY OF THE NOTICE DATED 12/08/99 ISSUED BY THE THIRUVABHARANAM COMMISSIONER** - **R1(F) COPY OF THE LETTER DATED 29/12/99 SENT BY THE THIRUVABHARANAM COMMISSIONER TO THE DEVASWOM ACCOUNTS OFFICER.** - **R1(G) COPY OF THE LIABILITY STATEMENT DATED 24/05/00 SENT BY THE EXECUTIVE OFFICER, SABARIMALA** - **R1(H) COPY OF THE NOTICE DATED 05/08/00 ISSUED BY THE DEVASWOM COMMISSIONER** - **R1(I) COPY OF THE LIABILITY STATEMENT DATED 16/10/00 SENT BY THE DEVASWOM ACCOUNTS OFFICER** - **R1(J) COPY OF THE LETTER DATED 11/06/01 SENT BY THE EXECUTIVE OFFICER** - **R1(K) COPY OF THE LETTER DATED 04/03/02 SENT BY THE EXECUTIVE OFFICER** - **R1(L) COPY OF THE LETTER DATED 08/04/02 SENT BY THE THIRUVABHARANAM COMMISSIONER** - **R1(M) COPY OF THE CLEARANCE CERTIFICATE DATED 10/05/2003 ISSUED BY THE DEVASWOM COMMISSIONER** - **R1(N) COPY OF THE NON-LIABILITY CERTIFICATE DATED 24/04/03 ISSUED BY THE THIRUVABHARANAM COMMISSIONER** - **R1(O) COPY OF THE NOTICE DATED 08/07/03 ISSUED BY THE DEVASWOM COMMISSIONER** - **R1(P) COPY OF THE REPRESENTATION DATED 23/07/03 SUBMITTED BY THE SOMASEKHARAN NAIR** - **R1(Q) COPY OF THE LETTER DATED 07/07/2004 SECRETARY, TDB** - **R1(R) COPY OF THE LETTER DATED 31/07/04 SENT TO THE DISTRICT COLLECTOR, PATHANAMTHITTA** - **R1(S) COPY OF THE LETTER DATED 25/10/04 SENT BY THE DISTRICT COLLECTOR, PATHANAMTHITTA** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **THOTTATHIL B.RADHAKRISHNAN, Ag.C.J.& ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = ## **W.P.(C).No.26488 of 2004** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 21st day of July, 2016 ## JUDGMENT ## **Anu Sivaraman,J.** - 1.The petitioner is the widow of B.Somasekharan Nair who retired from service as Thiruvabharanam Commissioner, Travancore Devaswom Board on 31.08.1998. He passed away on 06.04.2004. The petitioner seeks disbursal of DCRG due to her husband with interest at 18% per annum. She also seeks quashing of Exhibits P1, P2 and P4 notices and proceedings issued in respect of liabilities allegedly due from her late husband. - 2.Heard the learned counsel for the petitioner and the learned Standing Counsel for the Travancore Devaswom Board. - 3.It is the specific case of the petitioner that no quantification of the liability of her husband had been done with notice to him within three years of his retirement in terms of Note 3 to Rule 3 W.P.(C).No.26488/04 **2** of Part III, KSR and therefore the withholding of his entire DCRG of Rs.2,43,756/- is completely incompetent. It is further contended that for proceeding under the Public Accountants Act as well, a lawful quantification of the liabilities due with notice to the employee concerned is a jurisdictional prerequisite and therefore Exhibit P4 which does not satisfy this condition is also unsustainable. It is further contended that the employee had, during his life time, submitted documents before the respondents to validate the lawful expenditure of the amounts drawn by him as advance, as is evident from the documents produced by the respondents themselves. The refusal to reconcile these amounts on the basis of the records produced by him was vitiated by mala fide and total want of application of mind, it is submitted. A proper verification of the accounts on the basis of acquittances forwarded by the petitioner's late husband would have resulted in the entire amounts shown as his liability having been reconciled. In the above circumstances the petitioner is entitled to be paid the DCRG which was due to her husband on his retirement on 31.08.1998, with interest at 18%, it is contented. W.P.(C).No.26488/04 **3** 4.The learned Standing Counsel for the respondents would, on the other hand, submit that the petitioner's husband had misappropriated a sum of Rs.20,22,439/- and after deducting his entire DCRG an amount of Rs.17,78,667/- was to be recovered from him. It is stated that even before his retirement he had been put on notice that amounts were due from him on account of drawal of advance towards expenses for conduct of Sabarimala Mandalam. Exhibits R1A and R2-B dated 08.07.1998 and 23.12.1998 are produced. It is further stated that Exhibit R1-C letter dated 21.01.1999 was issued to employees including the petitioner as regards the non-recoupment of advance for Marine Insurance for gold to be purified at Government Mint and the expenses or the transportation of the gold. The amount involved in Exhibit R1-C letter was Rs.9,95,712/-. Thereafter, it is submitted that by Exhibit R1-D statement dated 25.05.1999, the employee had admitted his liability in writing. It is further stated that notices regarding separate amounts of liability had been forwarded to the petitioner's husband by Exhibits R1-E to R1-L and Exhibit R1-L notice dated W.P.(C).No.26488/04 **4** 08.04.2002 contains the details of the entire liability amounting to more than Rs.20 lakhs. It is further stated that Exhibits R1-M and R1-N Clearance certificate and Non Liability Certificate had been issued to the petitioner showing the entire amount of his liabilities. On the basis of the liabilities so calculated, the petitioner's husband was intimated that his entire DCRG has been withdrawn and adjusted towards his liability and that he was liable to make good the loss of Rs.17,78,667.90 within 30 days by Exhibit R1-O dated 08.07.2003. The petitioner's husband had thereupon sought time on medical grounds to submit his explanations. Since the liability stood calculated and intimated to the employee during his life time itself, steps were taken to realise the amounts under the provisions of the Public Accountants Act, 1963 it is submitted. The District Collector had also been intimated on the same and steps were proceeded by Exhibit.P4. - 5.A reply affidavit has been filed on behalf of the petitioner denying the allegations regarding the due intimation of the W.P.(C).No.26488/04 **5** amounts of liability. It is stated that only an amount of Rs.15,000/- towards non-recoupment of advance drawn in connection with the Sabarimala pilgrimage for the Malayalam year 1162 was intimated to the petitioner's husband before his retirement. With regard to the same Exhibit R1-D acquittance produced by the 1[st] respondent would show that the expenses for the entire amount as well as a further amount of Rs.10,575/- which was expended by the employee by his own pocket has been made available by the Board and had been duly accounted as early as on 25.05.1999. The inclusion of that amount also in later notices is totally without any basis, it is submitted. It is further submitted that only Exhibits R1-A, R1-G, R1-H and R1-J have been forwarded to the petitioner's husband and the other documents produced are inter-departmental communications. The petitioner's husband was never put on notice of the alleged liabilities before they were included in the consolidated liabiltiy certificate it is contended. Due explanations were furnished by the employee, but were evidently not taken into account by the respondents. Further, no quantification of liability was done with notice to W.P.(C).No.26488/04 **6** the employee within the period of three years prescribed under Note 3 to Rule 3, Part III KSR as such no amount could have been withheld from the petitioner's husband's DCRG and such amount would undoubtedly have to be released with penal interest in view of the binding decisions of several Division Benches of this Court as reported in **Somarajan Nair C.V. v. State of Kerala and Others** [2015 (3) KHC]. 6. As regards the proceedings under the Public Accountants Act also, it is contended that only those liabilities that are quantified with notice to the employee within the time limit prescribed by law could be recovered by recourse to Section 6 of the Public Accountants Act. For making recoveries from the assets of the retired employee also, notice to the legal heirs and a finding as to the estate of the deceased employee in their hands would be a pre-requisite, it is contended. The proceedings initiated under the Public Accountants Act without complying any of the procedures cannot be sustained. W.P.(C).No.26488/04 **7** 7.We have heard the contentions advanced on either side and have given our anxious consideration to the documents produced in the case. It is the admitted case that the petitioner's husband retired on 31.08.1998 while working as Thiruvabharanam Commissioner. At the time of his retirement, the only amount of liability on his account was the amount of Rs.15,000/- drawn as advance for the Sabarimala Mandalam festival for 1162ME. It is clear from the documents produced by the respondents themselves, especially Exhibit R1-D that accounts had been submitted in respect of the expenses for the said period by the petitioner on 25.05.1999. However, these amounts do not appear to have been reconciled and the later notices and Non Liability Certificate contain this amount of Rs.15,000/- as well. As regards the expenses for transporting gold to the Government Mint, Bombay for purification also, it is contended that the petitioner's husband had submitted due accounts and Exhibit R1-I dated 16.07.2000 as well as Exhibit P15 communication issued by the Devaswom Accounts Officer to the petitioner's husband on 13.07.1998 W.P.(C).No.26488/04 **8** shows the due settlement of the entire amount of Rs.9,95,712/-. The refusal to delete the said amount also from his liability in spite of his repeated requests producing the evidence of the amount having been properly accounted for is per se vitiated by mala fide, it is submitted. With regard to the other amounts shown in Exhibits R1-M and R1N Clearance Certificate and Non Liability Certificate, it is submitted that no intimation of any nature had been received by the petitioner's husband and no explanation was sought for from him. A proper verification of the accounts kept by the responsible officers of the Devaswoms at relevant times would reveal that these amounts have been wrongly included in the liability of the petitioner's husband, it is submitted. 8.It is clear from a perusal of the documents produced that the petitioner's husband has been put on notice of the liability with regard to non-recoupment of the advance of Rs.15,000/- towards Sarbarimala Mandalam for the year 1162ME as well as the cost of transportation of gold to the W.P.(C).No.26488/04 **9** Government Mint at Bombay for purification. The petitioner's husband had submitted in his replies which are supported by Exhibits R1-D, R1-I and Exhibit P15 documents that proper accounting of the said amounts had been done. It does not appear that these explanations have been taken note of. It is also the specific case of the petitioner that the other amounts which are included in the liability certificate had never been intimated to her husband at any point of time and therefore their inclusion in the Non Liability Certificate is totally unjustified. 9. The fixation of liability on a retired employee is a matter affecting his civil rights and is therefore to be carried out in a reasonable and transparent manner. A proper adjudication on the basis of the explanations preferred by him is a minimum requirement before the issuance of liability certificates. The mere forwarding of notices to the employee that too, long after his retirement and the fixation of the liability without considering the explanations submitted by him is evidently not what is W.P.(C).No.26488/04 **10** contemplated by the Service Rules which have been made applicable to the employees of the Travancore Devaswom Board. The provision regarding quantification and intimation of liability to a retired employee within three years of his retirement is evidently intended to make sure that he is required to submit his explanations with a reasonable proximity in time from the events in question. In the instant case, even the explanations submitted by the employee with records showing recoupment of amounts drawn have not been referred to in the further proceedings or certificates issued by the Travancore Devaswom Board. Exhibits P1, P2 and P4 are therefore unsustainable and are quashed. However, we are of the opinion that the release of DCRG should await an independent reconsideration of the issue by a responsible officer of the Board. 10. In view of the facts and circumstances of the case, we are of the opinion that the Chief Finance Officer of the 1[st] respondent Board should take up the issue of fixation of W.P.(C).No.26488/04 **11** liability in respect of the petitioner's husband and reconsider the entire issue with reference to the explanations submitted and taking into account Exhibits R1-D, R1-I and Exhibit P15 documents also. In any event, only those amounts of which the petitioner's husband had been given notice of during his life time can be taken into account. In respect of such amounts also, the explanation submitted as well as all documents with regard the recoupment and adjustment of the same have to be taken note of. The Chief Finance Officer of the Travancore Devaswom Board shall look into the entire aspects of the matter independently and shall pass fresh orders with regard to the liability, if any, of the petitioner's husband in accordance with law. The petitioner or her representative shall also be shown the materials on which tentative fixation of liability is based and will be allowed to peruse the documents in support thereof. Final orders in this regard shall be passed within a period of four months from the date of receipt of a copy of this judgment. W.P.(C).No.26488/04 **12** - 11.The writ petitioner shall produce a copy of the judgment to the Chief Finance Officer, Travancore Devaswom Board along with a copy of the writ petition and all pleadings in the same for proper compliance. The Registry is directed to forward a copy of this judgment to the Finance Officer. - 12.Orders passed, as directed above, shall be placed before the Registrar General of this Court along with an affidavit of the Chief Finance Officer of the 1[st] respondent Board within the time stipulated above. This writ petition is ordered accordingly. sd/- ## **Thottathil B. Radhakrishnan, Acting Chief Justice** sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.26488/04 **13**