S.SOMAN PILLAI v. TRAVANCORE DEVASWOM BOARD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 5TH DAY OF DECEMBER 2016/14TH AGRAHAYANA, 1938** **WP(C).No. 27841 of 2012 (E)** **----------------------------** **PETITIONER :** ## **S.SOMAN PILLAI** **S/O.SANKARAN NAIR,RETIRED AS ADMINISTATIVE OFFICE IN CHENGANNUR DEVASWOM OF TRAVANCORE DEVASWOM BOARD, R/A.LEKSHMI BHAVAN, AYIKKAD, CHEPPAD P.O.,ALLEPPEY DISTRICT-690507** **BY ADVS.SRI.LEO GEORGE SRI.K.N.SASIDHARAN NAIR** **RESPONDENT(S):** **--------------** **1. TRAVANCORE DEVASWOM BOARD** - **REP.BY ITS SECRETARY, TRAVANCORE, DEVAWOM BOARD,NANDANCODE P.O., THIRUVANANTHAPURAM-695003** **2. SECRETARY** - **TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM-695003** **3. DEVASWOM COMMISSIONER** - **TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM-695003** **4. ASSISTATN DEVASWOM COMMISSIONER** - **TRAVANCORE DEVASWOM BOARD, ARANMULA,** - **PATHANAMTHITTA DIST-689533** **R1 TO R4 BY ADV. SRI.P.GOPAL BY SRI.D.SREEKUMAR, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 27841 of 2012 (E)** - **APPENDIX** - **PETITIONER(S) EXHIBITS : EXT.P1:TRUE COPY OF THE LIABLITY FORWARDED BY THE 4TH RESPONDENT TO THE PETITIONER DTD 19/8/2011** - **EXT.P2:TRUE COPY OF THE REPLY TO EXT.P1 STATEMENT SUBMITTED BY THE PETITIONER TO THE FOURTH RESPONDENT DTD 4/10/2011** - **EXT.P3:TRUE COPY OF THE LIABILITY STATEMENT DTD 19/12/2011 EXT.P4:TRUE COPY OF THE PETITIONER'S REPLY DTD 18/1/2012 TO EXT.P3 STATEMENT SUBMITTED TO THE 4TH RESPONDENT** - **EXT.P5:TRUE COPY OF THE PETITIONER'S REPRESENTATION TO THE 3RD RESPONDENT DTD 15/10/2012** - **EXT.P6:TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY THE AMRITHA INSTITUTE OF MEDICAL SCIENCES, KOCHI.** - **EXT.P7:COPY OF DHANALAKSHMI BANK CHALLAN DT 15/52007 FOR RS.47334/-** - **EXT.P7(a): COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONR, MAVELIKARA, DT 15/5/2007** - **EXT.P8: COPY OF THE DHANALAKSHMI BANK CHALLAN DT 26/7/2006 FOR RS.10,000/-** - **EXT.P8(a): COPY OF THE SYNDICATE BANK CHALLAN DT 7/11/2008 FOR RS.20,000/-.** - **EXT.P8(b): COPY OF THE SYNDICATE BANK CHALLAN DT 24/12/2008 FOR RS.20,000/-.** - **EXT.P8(c): COPY OF THE SYNDICATE BANK CHALLAN DT 13/91/2009 FOR RS.9115/-.** - **EXT.P8(d): COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONER, ARANMULA, DT 13/1/2009.** - **EXT.R9: COPY OF SYNDICATE BANK CHALLAN DT 25/10/2008 FOR RS.6569/-.** ## **WP(C).No. 27841 of 2012 (E)** **EXT.R9(a): COPY OF THE PETITIONER'S OBJECTIONS AGAINST THE BALANCE LIABILITY INRESPECT OF AUDIT REPORT FOR 2002-03 DT 7/11/2008.** **EXT.P10: COPY OF DHANALAKSHMI BANK CHALLAN DT 23/8/2003 FOR RS. 3827/-.** **EXT.P10(a): COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER TO THE ASSISTANT COMMISSIONER, AMBALAPUZHA DT 23/8/2003.** - **EXT.P11: COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER TO THE ASSISTANT COMMISSIONER, AMBALAPUZHA, DT 10/8/2009.** - **EXT.P12: COPY OF THE INITIAL OBJECTIONS SUBMITTED by the PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONER, AMBALAPUZHA, DT 9/5/2003.** - **EXT.P12(a): COPY OF THE DETAILED OBJECTIONS SUBMITTED BY THE PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONER, AMBALAPUZHA DT 4/6/2003.** - **EXT.P13: COPY OF THE DHANALAKSHMI BANK CHALLAN DT 5/5/2010 FOR RS.4178/-.** - **EXT.P13(a): COPY OF THE DHANALAKSHMI BANK CHALLAN DT 5/5/2010 FOR RS. 565/-.** **EXT.P13(b): COPY OF DHANALAKSHMI BANK CHALLAN DT 5/5/2010 FOR RS 6492/-.** **EXT.P13(c): COPY OF THE OBJECTIONS SUBMITTED by the PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONER, AMBALAPUZHA DT 5/5/2010.** **EXT.P14: COPY OF SYNDICATE BANK CHALLAN DT 18/8/2009 FOR RS 1018/-** **EXT.P14(a): COPY OF THE SYNDICATE BANK CHALLAN DT 18/8/2009 FOR RS 6492/-. EXT.P14(b): COPY OF THE SYNDICATE BANK CHALLAN DT 18/8/2009.FOR RS. 1914/-.** **EXT.P14(c): COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER TO THE ASSISTANT DEVASWOM COMMISSIONER, ARANMULA DT 18/8/200.** **EXT.P15: COPY OF SYNDICATE BANK CHALLAN DT 18/8/2009 FOR RS.1147/-.** ## **WP(C).No. 27841 of 2012 (E)** **EXT.P15(a): COPY OF SYNDICATE BANK CHALLANDT 18/8/2009 FOR RS 2876/-.** **EXT.P15(b): COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER TO THE ASSISTANT COMMISSIONER, ARANMULA DT 18/8/2009.** **EXT.P16: COPY OF THE NO DUES CERTIFICATE ISSUED BY THE DISTRICT CO-OPERATIVE BANK, ALAPPUZHA DT 11/8/2014.** ## **RESPONDENTS' EXHIBITS :** **---------------------** **EXT.R1(a): COPY OF THE LIABILITY STATEMENT OF THE PETITIONER AND THE NON-LIABILITY CERTIFICATE ISSUED BY THE ASSISTANT COMMISSIONER, ARANMULA DT 21/3/2013.** **EXT.R1(b): COPY OF THE LETTER DT 8/12/2006 ALONG WITH THE LIABILITY STATEMENT SENT TO THE PETITIONER SENT BY THE ASSISTANT COMMISSIONER, MAVELIKKARA.** **EXT.R1(c): COPY OF THE LIABILITY STATEMENT FIXING THE LIABILITY OF THE PETITIONER FR RS.85,593.98 RECEIVED BY THE PETITIONER DT 21/2/2004.** **EXT.R1(d): COPY OF THE LIABILITY STATEMENT OF THE PETITIONER FOR RS RS.98,934.50 RECEIVED BY THE PETITIONER ON 4/6/2004.** **EXT.R1(e): COPY OF THE LIABILITY STATEMENT OF THE PETITIONER FIXING THE LIABILITY OF RS,36,753.50.** **EXT.R1(f): COPY OF THE LIABILITY STATEMENT OF RS.18,978.50 SENT TO THE PETITIONER.** **EXT.R1(g): COPY OF THE LIABILITY STATEMENT OF RS.19,692/- SENT TO THE PETITIONER.** **EXT.R1(h): COPY OF THE LIABILITY STATEMENT RECEIVED BY THE PETITIONER ON 20/4/2009.** **EXT.R(i): COPY OF THE LETTER OF THE MANAGER OF THE DISTRICT CO-OPERATIVE BANK, ALAPUZHA DT 10-2-2009.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.27841 of 2012 ----------------------------------------Dated this the 5th day of December, 2016 ## JUDGMENT This writ petition is filed with the following ## prayers :- (i) Issue a writ of certiorari or any other writ, direction or order to the respondents calling for the records leading to the issuance of Ext.P1 and Ext.P3 liability statements and quashing them. (ii) issue a writ of mandamus or any other appropriate writ, direction or order commanding respondents to disburse the Death-Cum-Retirement Gratuity and the pay or the last month of service of the petitioner with interest at the rate of 18% per annum from 01.03.2009 till date of payment. (iii) issue such other further relief as this Honourable Court deem fit and proper to grant in the circumstances of the case. 2. The petitioner who retired from service as Administrative Officer from Travancore Devaswom Board on 28.02.2009. Long after his retirement, he was issued with Exts.P1 and P3 statements of liability of Rs.1,53,440.50/-, based on audit reports. The petitioner had preferred Exts.P2, W.P.(C) No.27841 of 2012 -2P4 and P5 representations. However, no decisions were taken on the same. The petitioner contends that his Death-CumRetirement Gratuity amounting to Rs.3,30,000/- and pay for the last month of service have been withheld by the respondents. 3. A counter affidavit has been filed on behalf of the respondents, pointing out that liability certificates have been issued in 2013 based on audit objections and the total amount of liability covered by Ext.R1(a) certificate dated 21.03.2013 is Rs.5,25,172.43/-. It is contended that in respect of some of the items of liability notice had been given to the petitioner, even while he was in service, and in some other cases after he had retired. It is submitted that some amounts had been remitted by the petitioner. Paragraph 18 of the counter affidavit filed by the respondents states that the Board is entitled to adjust an amount of Rs.3,02,704.41/from the petitioner by adjusting the DCRG due to him. It is stated that certain amounts are due under the various heads referred to in the said statement. W.P.(C) No.27841 of 2012 -3- 4. The petitioner has filed reply affidavit pointing out that he had remitted a substantial part of the liability, pending against him and he had placed the documents to substantiate his contentions. The petitioner contends that by Exts.P7, P8, P8(a), P8(b), P8(c), P9, P10, P10(a), P11 P12, P13, P13(a), P13(b), P15 and P15(a) remittance challans/objections, showing that remittance of Rs.1,34,123/- had been paid by him. It is further stated that in respect of the balance disputed liability amounting to Rs.1,68,581/-, the petitioner had submitted detailed objections against each and every item of the alleged balance liabilities as evidenced in Ext.P7(a), P8(d), P9(a), P10(a), P11, P12, P12(a), P13(c), P14(c), P15(b) objections. It is therefore contended that the fixation of the liabilities as against him which is done after the three year period stipulated under Note 3 of Part III KSR is per se illegal and unsustainable. 5. Heard the learned counsel for the petitioner and the learned Standing counsel appearing for the respondents. 6. It is submitted by the learned counsel for the W.P.(C) No.27841 of 2012 -4- petitioner that his entire DCRG as well as last pay have been withheld by the respondents, on the plea that dues are pending from him on the basis of audit reports. It is submitted that apart from the statements given to him, no details of the liabilities had been made note to him. Copies of the audit reports have also not made available to the petitioner. Though he had preferred detailed reply explaining the items of liability which was sought to be fastened against him, no decision on the representations or replies were forthcoming from the respondents. It is therefore submitted that there was no fixation of liability with notice to the petitioner and intimation of the same to him as provided in Note III to Rule 3 of Part III, KSR within the time stipulated therein. 7. Learned Standing counsel appearing for the Board submitted that the liabilities were fixed on the basis of audit reports and that the petitioner had been intimated of the existence of such audit objections. The amounts already remitted by the petitioner are liable to be deducted from the W.P.(C) No.27841 of 2012 -5- entire liability and only the balance amount need to be retained, it is submitted. 8. I have considered the contentions advanced on either side and have perused the documents. An examination of Exts.P1 and P3 would show that these are based on audit reports pertaining to the year 2008-09. However, apart from the blank recital as to heads under which the amounts are claimed, no details are available in either Ext.P1 or Ext.P3. It is seen that copy of the remittance report and audit reports also have not been forwarded to the petitioner. The petitioner had preferred his objections to Ext.P1 and P3 by Exts.P2, P4 and P5 representations. No further orders have been passed on the same within the three year period. Ext.R1(a) which is purported to be a consolidated statement of liabilities is seen dated 21.03.2013. It is contended by the petitioner that even this statement of liability was not preceded by proper notice showing the heads of liabilities and any consideration of any of the objections raised by the petitioner. 9. It has been repeatedly held by this Court that W.P.(C) No.27841 of 2012 -6- amounts due from pensioners can be recovered from their DCRG under the provisions of Note 2 and 3 to Rule 3, Part III, KSR. However, such recovery has to be preceded by a proper notice, stating that details of amounts sought to be withheld. The petitioner has to be given an opportunity to object to the fixation of liability and orders have to be passed after consideration of his objections also within 3 years from date of retirement. Without following these procedures, it is not legally possible to fasten any liability on the petitioner, which can be recovered from the DCRG due to him. In the above view of the matter, since the petitioner had retired from the service from 28.02.2009 the fixation of liabilities as against him beyond the period of 3 years from the date of his retirement is clearly illegal. I am supported by Bench decisions of this Court including in Somarajan Nair v. State of Kerala [2015 (2) KLT 753] and in Ratheesh S.Nair v. State of Kerala & Ors. [2014 (2) KLT 28]. In the above circumstances, I am of the view that the fixation of liability as against the petitioner and consequent W.P.(C) No.27841 of 2012 -7- recovery from his DCRG was incompetent. In the above view of the matter, there shall be a direction to the respondents to release the last pay and the DCRG of the petitioner to him within a period of 6 weeks from the date of receipt of a copy of this judgment. The amount to be so released shall carry interest at the rate of 9% from the date of retirement of the petitioner till the date of payment. It is made clear that the right of the respondents to fix any liability on the petitioner in properly constituted proceedings and to recover in the same in accordance with law, without recourse to recovery from DCRG left open. Writ petition is ordered accordingly. ANU SIVARAMAN, JUDGE vs