Sivadasan Kuniyil v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 1ST APRIL 2011 / 11TH CHAITHRA 1933** **WP(C).No. 28432 of 2008(I)** **-------------------------------------** **PETITIONER:** ## **-------------------** **SIVADASAN KUNIYIL, PROJECT OFFICER (RETIRED), INTEGRATED TRIBAL DEVELOPMENT PROJECT, KANNUR, RESIDING AT ASWATHI, P.O. NETTUR, THALASSERY, KANNUR DISTRICT.** **BY ADV. SRI.P.M.PAREETH.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, SCHEDULED CASTES AND SCHEDULED TRIBES DEVELOPMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR, SCHEDULE TRIBE DEVELOPMENT DEPARTMENT, VIKAS BHAVAN, 4TH BLOOR, THIRUVANANTHAPURAM.** ## **3. ACCOUNTANT GENERAL, THIRUVANANTHAPURAM.** **R1 TO R3 BY SPL.GOVERNMENT PLEADER (SC/ST) SRI. P. SANTHOSH KUMAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.28432/2008-K:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE ORDER ADMITTING THE PENSION CLAIMS INCLUDING DCRG OF THE PETITIONER ISSUED BY THE R.3.** **EXT.P.2: COPY OF THE COVERING LETTER DTD. 13/12/06 SUBMITTED BY THE PETITIONER.** **EXT.P.3: COPY OF THE LETTER DTD. 02/02/07 SUBMITTED BY THE PETITIONER BEFORE THE R.2.** ## **EXT.P.4: COPY OF THE LETTER DTD.18/05/07 ISSUED BY THE R.2. TO THE SUBTREASURY OFFICER, THALASSERY.** ## **EXT.P.5: COPY OF THE REPRESENTATION DTD. 13/07/07 SUBMITTED BY THE PETITIONER BEFORE THE R.2.** ## **EXT.P.6: COPY OF THE REPRESENTATION DTD. 31/12/07.** **EXT.P.7: COPY OF THE REPRESENTATION DTD. 23/01/08 SUBMITTED BY THE PETITIONER BEFORE THE R.2.** **EXT.P.8: COPY OF THE REPRESENTATION DTD. 09/06/08 SUBMITTED BY THE PETITIONER BEFORE THE R.2.** ## **EXT.P.9: COPY OF THE LETTER DTD. 19/06/08 ISSUED BY THE R.2.** **EXT.P.10: COPY OF THE G.O(P).NO.185/02/FIN. DTD. 27/03/02.** **EXT.P.11: COPY OF THE SHOW CAUSE NOTICE NO.E5-17615/2008 DTD. 11/11/2008 ISSUED BY THE R.2.** ## **EXT.P.12: COPY OF THE REPLY DTD. 01/12/2008 SUBMITTED BY THE PETITIONER.** **EXT.P.13: COPY OF THE MINUTES OF THE DISTRICT LEVEL WORKING GROUP DTD. 10/01/2005.** **EXT.P.14: COPY OF THE GUIDELINES ISSUED VIDE G.O(MS).NO.750/03 DTD. 03/09/2003.** **EXT.P.15: COPY OF THE PROCEEDINGS DTD. 23/03/2005 ISSUED BY THE PETITIONER TO THAT EFFECT.** **EXT.P.16: COPY OF THE PROCEEDINGS DTD. 23/09/2008 ISSUED BY THE R.2.** **EXT.P.17: COPY OF THE PROCEEDINGS NO. E5-17615/2006(10) DTD. 03/2010.** **EXT.P.18: COPY OF THE LETTER DTD. 19/03/2009 FROM THE TRIBAL DEVELOPMENT OFFICER , PALAKKAD TO THE R.2.** ## **W.P.(C). NO.28432/2008-I:** **EXT.P.19: COPY OF THE LETTER DTD. 23/03/2005 SUBMITTED BY THE TRIBAL EXTENSION OFFICER, PALAKKAD TO THE TRIBAL DEVELOPMENT OFFICER, PALAKKAD.** **EXT.P.20: COPY OF THE LETTER DTD. 18/06/2010 ISSUED BY THE DISTRICT TREASURY OFFICER, PALAKKAD TO TRIBAL EXTENSION OFFICER, PALAKKAD.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 28432 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of April, 2011** ## **J U D G M E N T** The petitioner was a Project Officer of the Integrated Tribal Development Project, Kannur, under the Scheduled Castes and Scheduled Tribes Development Department of the Government of Kerala. He retired on superannuation on 31.12.2006. He was not paid his DCRG for want of NonLiability Certificate. It is under the above circumstances he has filed this writ petition. Later on, he was informed that a provisional liability of Rs.1,30,000/- was fixed on him and that is why the DCRG had not been disbursed. Subsequently by Ext.P17 order, after withholding the finally quantified liability of Rs.85,375/- the balance DCRG was released to the petitioner. Thereafter the petitioner amended the writ petition challenging Ext.P17 also by which the liability of Rs.85,375/- was fixed on the petitioner. The petitioner seeks the following reliefs: “A) A writ of mandamus or other appropriate writ, direction W.P.(C)No. 28432 of 2008 **-2-** or order commanding the respondents 1 & 2 to disburse the DCRG as approved by the third respondent as per exhibit -P1 within a time frame. - 1 (a). A writ of certiorari or other appropriate writ direction or order calling for the records leading to Ext.P17 and quash the same. - 1 (b). A writ of mandamus commanding the 2[nd] respondent to release the with held gratuity of Rs.1,30,000/- to the petitioner forthwith. - 2) A writ of mandamus commanding the respondents 1 and 2 to pay 12% interest for the amount of DCRG namely Rs.2,96,258/- payable to the petitioner from 1-3-07 till payment.” 2. The liability is stated to be the amounts spent by the petitioner for undertaking certain projects for the department. An amount of Rs.1,20,000/- was available with the petitioner which was returned by the Forest Authorities which could not be spent for the project for which it was intended. That amount with the petitioner was used for constructing a pond for a tribal colony. Ext.P11 show cause notice was issued to the petitioner stating that the pond was totally unnecessary, it was of no use to anybody and the petitioner had not obtained administrative and financial sanction for the same, without which he could not have undertaken the work at all. Ext.P11 was issued on W.P.(C)No. 28432 of 2008 **-3-** 11.11.2008. The petitioner filed Ext.P12 reply on 01.12.2008. It is after considering the same, Ext.P17 order dated nil-3-2010 was passed. The petitioner raises two contentions. First is that, the petitioner has implemented the project after complying with all statutory stipulations. The implementation of the same was the duty of the Tribal Development Officer from whom excess amount of Rs.34,625/- was recovered which would show that the irregularity lies not with the petitioner but with the Tribal Development Officer. Insofar as the petitioner has done his part in accordance with law, no liability could have been validly fixed on the petitioner is his contention on merits, especially since there is no allegation that he diverted any part of the money allotted for the project, is his contention. He also raises a contention that he having retired from service on 31.12.2006 and the liability having been quantified and fixed only by Ext.P17 order dated nil.3.2010, the same is hit by the limitation period prescribed in Note 3 of Rule 3 of Part III of Kerala Service Rules. W.P.(C)No. 28432 of 2008 **-4-** 3. The respondents 1 & 2 had filed a statement to the unamended writ petition wherein they would justify the liability recovered from the petitioner. According to them, there was no administrative or financial sanction for the project and the project was not found useful for the beneficiary group. 4. I have considered the rival contentions in detail. 5. As far as the merits of the petitioner's contentions are concerned, I am not inclined to accept the contentions of the petitioner. In Ext.P12 reply to the show cause notice issued to him, the petitioner himself categorically admitted that the decision to dig the pond in question was taken by him. For such a decision, administrative and financial sanction from higher authorities are mandatory. From Ext.P18 letter from the Tribal Development Officer to the Director of Scheduled Tribes Development Department it is clear that no administrative sanction was given for the project, there was no estimate prepared for the work and the estimate was not technically approved by the competent ## W.P.(C)No. 28432 of 2008 **-5-** authority before implementation. Therefore, clearly the petitioner is guilty of very serious irregularities in sanctioning the project itself. If that be so, the petitioner is bound make good the loss caused to the Government on account of the same. Therefore I do not find any merit in the contentions on merits raised by the petitioner. 6. But I am satisfied that the petitioner is entitled to succeed on the question of limitation. Admittedly, the petitioner retired from service on 31.12.2006. Therefore going by Note 3 of Rule 3 of Part III of KSR, the liability should have been quantified with notice to the petitioner within three years from the date of his becoming pensioner. The said three years would be over by 31.12.2009. Ext.P17 order fixing the liability on the petitioner is dated nil.3.2010, still one year after completion of 3 years from the date when the petitioner became a pensioner. Of course, the Special Government Pleader would vehemently contend that the liability was quantified before completion of 3 years after retirement of the petitioner. He W.P.(C)No. 28432 of 2008 **-6-** would submit that, the objections were raised by the audit party on the basis of which the liability was provisionally quantified on 11.11.2008 on the basis of which only Ext.P11 show cause notice was issued to the petitioner and therefore the quantification was within three years and only final adjustment was by Ext.P17 order. Therefore according to the learned Special Government Pleader the quantification was within the time stipulated in Note 3 of Rule 3 of Part III of KSR. He also points out that in Ext.P11 show cause notice issued on 11.11.2008, it is specifically mentioned that the liability was provisionally fixed on the petitioner. 7. I am not satisfied that the arguments of the learned Special Government Pleader is valid insofar as the issue is squarely covered by a Division Bench decision of this court in **State of Kerala v. Moideen (1999 (1) KLT 515)** , wherein on the very same question the Hon'ble Division Bench had held thus: “10. We have carefully considered the rival submissions W.P.(C)No. 28432 of 2008 **-7-** made by the Government Pleader as well as counsel for the respondent and also perused the rules and the pleadings. Under R. 3 Part III of the Kerala Service Rules the Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period. The Government also reserves to themselves the right of ordering the recovery from a pensioner of the whole or part of any pecuniary loss caused to the 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 It has to be noted that for the application of R. 3 Part III that the petitioner is found guilty of grave misconduct or negligence during the period of his service. Note 2 to R. 3 clarifies that the word ‘pension’ used in that rule does not include death-cumretirement gratuity. By the applicability of Note 2 to R. 3, it is not possible for the Government to withhold the death-cumretirement gratuity or order recovery of the whole or any part of a pecuniary loss caused to the Government from the deathcum-retirement Gratuity, even if the pensioner is found guilty in a departmental or judicial proceeding of grave misconduct or negligence during the period of his service. However, Note 2 to R. 3 provides that 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 R. 3, after giving the employee or pensioner concerned a reasonable opportunity to explain. Note 3 to R. 3 enjoins that the liability of an employee should be quantified either before or after retirement and intimated to him, if possible before retirement, or after retirement but within a period of three years on becoming a pensioner. The date of becoming a pensioner, in our opinion, is a constant factor viz, the date of attaining the age of superannuation. An ordinary pension apart from special orders, is payable from the date on which the pensioner ceases to be borne on the establishment as per R. 119 Part III of the Kerala Service Rules. A person ceases to be borne on the establishment on the date of his superannuation. In the instant case, the respondent ceased to be borne on the establishment on 31.5.1989, the date of his attaining the age of superannuation. The respondent, therefore, became a pensioner on 31.5.1989. Ext. P8 dated 28.5.1992 required the respondent to show cause as to why the amount of Rs. 31,337/- shall not be fixed as liability of the respondent to be recovered from his death-cum-retirement gratuity. After considering the explanation of the respondent, the liability to the recovered from his death-cum-retirement gratuity was fixed and intimated to the respondent only by Ext. P10 dated W.P.(C)No. 28432 of 2008 **-8-** 10.3.1993 and by Ext .P11 dated 28.4.1993. Therefore, the quantification and intimation of the liabilities of the respondent to be recovered from his death-cum-retirement gratuity was well beyond the period of three years contemplated by Note 3 to R. 3 Part III of the Kerala Service Rules. Once Ext. P3 order removing the respondent from service was set aside by Ext. P6 order dated 28.5.1992, the respondent is deemed to have retired from service on 31.5.1989 and thus he became a pensioner on 31.5.1989. Ext. P6 directs that the respondent shall be deemed to have been placed under suspension under R. 10(5) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 with effect from 20.2.1988, the date of his removal from service, till 31.5.1989 the date of retirement. Once the Government servant attained the age of superannuation, he ceases to be a government servant and, therefore, cannot continue to remain under suspension until further orders as contemplated by R. 10(5) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. We are, therefore, of the opinion that it is not possible to enlarge the period fixed under Note 3 to R. 3 of Part III of the Kerala Service Rules to any date other than the date of attaining the age of superannuation. The contention of the Government Pleader that the period of three years contemplated by Note 3 to R. 3 Part III of the KSR should be reckoned only from 6.4.1990 the date of dismissal of the SLP (Criminal) by the Supreme Court or from 28.5.1992 the date of Ext. P6 order by which Ext. P3 order removing the respondent from service was set aside, cannot be accepted. A government servant becomes a pensioner squarely on attaining the age of superannuation. The date of becoming a pensioner is always constant, viz. the date of attaining the age of superannuation and no other date is contemplated by Note 3 to R. 3 of Part III of the Kerala Service Rules. This is what is held by the learned single Judge. The judgment of the learned single Judge, therefore, calls for no interference. The writ appeal, therefore, fails and is hereby dismissed. The appellants are hereby directed to disburse the death-cum-retirement gratuity due to the respondent within one month from the date of receipt of a copy of this judgment.” Further in **State of Kerala v. Balan [2003 (3) KLT SN** **16 (Case No.22)** another Hon'ble Division Bench has held W.P.(C)No. 28432 of 2008 **-9-** ## as follows: “Quantification made mention of in the said note is the real fixation of the liability after affording an opportunity. In other words, final order fixing the liability ought to have been passed within the time limit provided in Note 3, R.3 of Part III K.S.R. Going by the date of Ext.P1 order, it is far later than the 3 year period allowed. Therefore, learned Single Judge was perfectly justified in directing payment of D.C.R.G. ignoring the amount quantified in Ext.P1.” 8. Here, the quantification with notice to the petitioner was only by Ext.P17 in March 2010. The provisional quantification relied on by the Special Government Pleader is not the quantification contemplated in Note 3 of Rule 3 of Part III and it is not sufficient that show cause notice is issued within three years period, which is clear from the above two Division Bench decisions. In fact Note 3 reads thus: “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 a pensioner should be quantified and intimated to him.” ## Note 3 is preceded by Note 2 which reads thus: “The word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cumretirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but W.P.(C)No. 28432 of 2008 **-10-** after giving the employee or pensioner concerned a reasonable opportunity to explain.” 9. Therefore the quantification referred to in Note 3 of Rule 3 of Part III is the quantification referred to in Note 2 which has to be after notice to the pensioner. The Special Government Pleader has no case that the provisional quantification relied upon by him was after notice to the petitioner. In fact, admittedly Ext.P.11 is the first show cause notice issued to the petitioner directing him to show cause why the liability should not be fixed on him. Of course, Ext.P11 is within three years. But that did not fructify into a fixation or quantification of liability within the three years mentioned insofar as the final fixation was done only by Ext.P17 order dated nil.3.2010. (The learned Special Government Pleader submits that the correct date of Ext.P17 is 30.03.2010). Therefore, that fixation of liability is hit by the limitation prescribed in Note 3 of Rule 3 of Part III of K.S.R. That being so, the liability cannot be recovered from the DCRG of the petitioner. In the above W.P.(C)No. 28432 of 2008 **-11-** circumstances, Ext.P17 is quashed. It is declared that the liability sought to be recovered form the petitioner cannot be recovered from his DCRG. Accordingly there would be a direction to the respondents to release the balance DCRG due to the petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. But I make it clear that this will not stand in the way of the Government recovering the liability by other means like filing a suit or by revenue recovery proceedings. This writ petition is disposed of as above. Sd/S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/