State of Kerala & Director of Technical Education v. Laila Beebi M.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 05TH DAY OF FEBRUARY 2021 / 16TH MAGHA,1942** # **OP(KAT).No.43 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OA 2117/2015 DATED 20-01-2020 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN O.A:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, TECHNICAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001. 2 THE DIRECTOR OF TECHNICAL EDUCATION OFFICE OF THE TECHNICAL EDUCATION, FORT, THIRUVANANTHAPURAM, PIN - 695 023.** **BY GOVERNMENT PLEADER** ## **RESPONDENT/APPLICANT IN O.A:** **LAILA BEEBI M. AGED 65 YEARS W/O.DR.S.ABDUL SAMAD, FORMER ASSOCIATE PROFESSOR (RETIRED), COLLEGE OF ENGINEERING, THIRUVANANTHAPURAM, RESIDING AT TC NO.4/1285, MONVILA, KULATHOOR P.O., THIRUVANANTHAPURAM, PIN - 695 083.** **BY ADVS. SRI.ANTONY MUKKATH, GOVT.PLEADER, SRI.N.KRISHNA PRASAD** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) No.43/2021 2 ## **ALEXANDER THOMAS & T.R.RAVI, JJ.** ------------------------------------ O.P (KAT) No. 43 of 2021 (A _rising out of the order dated 20-01-2020 in O.A No.2117 of 2015 of KAT, Tvm Bench._ ) -----------------------------------Dated this the 5[th] day of February, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J.** The prayers in the afore captioned Original Petition (KAT) filed under Articles 226 & 227 of Constitution of India are as follows [See page Nos.13 and 14 of the paper book of this O.P]: _“(i) To set aside Ext.P6 order of the Kerala Administrative Tribunal in O.A No.2117/2015._ - _(ii) To dismiss Ext.P1 Original application No.2117/2015 filed by the respondents before the Kerala Administrative Tribunal, holding that the respondent is not eligible for any of the reliefs claimed in the Ext.P1 Original application._ - _(iii) To declare that the respondent is liable to pay up bonded liability as per Ext.P1(A2) indemnity bond, and that the Government is at liberty to realise the same either through Civil Suit or under the Public Accountants Act, in the event of upholding the findings of the Tribunal in the impugned order that there should have been a quantification of liability of respondent, as per Note 3 to Rule 3 of Part III KSR._ - _(iii) Any other order or direction as this Tribunal may deem fit and proper in the facts and circumstances of the case.”_ ## 2. Heard Sri.Antony Mukkath, learned Government Pleader appearing for the petitioners (State of Kerala & Director of Technical Education) in the O.P/respondents in the O.A and Sri.N.Krishna Prasad, learned Counsel appearing for the respondent in the O.P/Original applicant before the Tribunal. 3. The respondent herein/Original applicant has filed Ext.P1 O.P (KAT) No.43/2021 3 Original Application, O.A.No.2117/2015 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench with the following prayers [See page No.30 of this paper book]: _“a) To set aside Anxs.A6, A7, A9 & A10. b) To pass such other orders this Honourable Tribunal deem fit.”_ 4. The respondent herein/Original applicant, while working as a Senior Grade Lecturer in Department of Electrical & Electronics Engineering in the College of Engineering, Thiruvananthapuram under the Directorate of Technical Education of the State Government, was given permission to undergo PhD programme under the Quality Improvement Programme (QIP) for two years, as per Anx.A1 G.O(Rt)No.144/05/H.Edn. dated 27-01-2005 and she was accorded sanction for deputation to undergo the said Quality Improvement Programme for a period of two years. Later, as per the insistence of the Government and the Director of Technical Education, she was made to execute Anx.A2 bond dated 07-06-2005, _inter alia_ undertaking that she would pay an amount of Rs.5,41,194/to the Government, if so demanded and the terms and conditions of the said bond are contained in internal page Nos.4 & 5 of Anx.A2 bond. Condition No.(g) thereof is that, if the candidate concerned fails to complete the higher studies successfully as aforesaid or O.P (KAT) No.43/2021 4 discontinued the higher studies without the explicit prior permission of Government, then he/she is liable to pay the bond amount, etc. One of the main conditions stipulated in Anx.A2 bond, as can be seen from a reading of the top portion of internal page No.2 of Anx.A2, is that, after successful completion of the higher studies, the bounden (applicant) shall serve the Government in any department /organisation in any capacity as may be directed by the Government for a minimum period of four years, etc. 5. It is common ground that, after execution of Anx.A2 bond dated 07-06-2005, she was relieved from service and joined the Research Institution concerned on 08-06-2005. It appears that the applicant has rejoined back the Government service on 03-09-2007. According to the original applicant, she could not successfully complete the PhD programme in the Research Institution concerned due to reasons totally beyond her control, etc. Thereafter, the original applicant has retired from service on 31-03-2011. Later the competent authority of the State Government in Higher Education Department has issued Anx.A4 notice dated 01-07-2013 calling upon the applicant to furnish explanation for the reasons for non completion of the PhD programme within the stipulated time and the reasons for non submission of thesis and non obtaining of PhD O.P (KAT) No.43/2021 5 Degree within the stipulated time, etc. In response to Anx.A4 notice dated 01-07-2013, the applicant has submitted detailed reply as per Anx.A5 dated 22-07-2013 and in Anx.A5 explanation, the applicant has stated that she was sent to do research under the Deputy Director, Control-Guidance & Design Group, Vikram Sarabhai Space Centre (VSSC), Veli, Thiruvananthapuram under the Indian Space Research Organisation (ISRO) on the topic ' _Fault Tolerant Control Design for a Re-usable Launch Vehicle in the Re-entry Phase_ ' and that the work progressed steadily but when entering in the formulating design control for re-entry phase, which is the most crucial phase for any launch vehicle, due to its complexity various impediments occurred and the progress of the work was slackened and that this caused delay due to reasons beyond her control, which is the main reason for non completion of the PhD programme and non submission of PhD thesis and that it occurred not wilfully but due to reasons totally beyond her control. Various other aspects are also mentioned in internal page No.2 of Anx.A5, given on page Nos.48 & 49 of the paper book. It is long thereafter that the Director of Technical Education has issued the impugned Anx.A6 proceedings dated 08-06-2015 alleging that the petitioner is liable to pay the total O.P (KAT) No.43/2021 6 liability of Rs.15,41,138/- on account of her non completing the PhD programme successfully though she was granted sanction to be on deputation leave under the Quality Improvement Programme for obtaining PhD Degree, etc. Further it is alleged in Anx.A6 dated 0806-2015 that the said liability amount of Rs.15,41,138/- is to be recovered from the DCRG amount admissible to her and also by means of revenue recovery. It appears that the admissible DCRG amount due to the applicant has been withheld on the basis of the alleged liabilities quantified in Anx.A6 dated 08-06-2015. 6. The original applicant has raised serious contention that, in a case like this for recovery of the amounts allegedly due on the basis of a bonded obligation, even if one of the contracting parties is the Government or Government department as the case may be, will not by itself improve the situation and that merely because one of the contracting parties is the Government, will not entitle that party to unilaterally adorn the rule of adjudicator and then unilaterally adjudge that the said liability is that of the other party (applicant in this case) and that in view of the legal position well settled in a catena of cases as in _**Sriram Engineering Construction Company v. Kerala State Industrial Development Corporation**_ [2007 (2) KLT 388] such unilateral action is not justified even if one of the 7 O.P (KAT) No.43/2021 contracting parties is the Government and that at best, in such a case where the other party (original applicant) has disputed the very liability and that she could not successfully complete the PhD due to reasons beyond her control, then there is no question of the Government unilaterally, adorning the rule of a adjudicator and insisting that the said alleged liability amounts mentioned in Anx.A6 is to be recovered from the admissible DCRG amount due to the petitioner and that at best, in such cases, the Government may have to set in motion civil proceedings by filing appropriate civil suit in the manner known to law, etc. 7. In the nature of the orders proposed to be passed by this Court, we need not render any final opinion on the said contention raised by the original applicant. In the instant case, there cannot be any doubt that after the retirement of the incumbent from service, the pensionary benefits including DCRG would become the precious property rights of the retiree/pensioner concerned. It is also well settled that, though right to property is no longer a fundamental right after the amendment made in Part III of the Constitution of India, still right to property is enshrined as a constitutional right in terms of Article 300A of the Constitution of India. Further that it is mandated by Article 300A that, right to property can be deprived only on the O.P (KAT) No.43/2021 8 basis of procedure established by law and that it is by now well settled in the constitutional law interpretation made by constitutional courts that the said procedure should not only be established by law but that the said procedure should be just, fair and reasonable. Therefore unless the said procedure invoked is just, fair and reasonable, there is no question of depriving the precious proprietory right of the property holder concerned. Since DCRG being the precious property of the pensioner, the Government could have recovered any amount from the DCRG due to the pensioner only on the basis of statutory provision. In the instant case, the operative portion of Rule 3 Part III KSR will not apply. The petitioners herein do not have any case that any judicial proceedings or disciplinary proceedings as contemplated within the operative portion of Rule 3 Part III KSR was pending prior to the retirement of the incumbent concerned. Therefore, at best the only statutory procedures that can be pressed into motion by the petitioners are those provisions contained in Note 2 & Note 3 Rule 3 Part III KSR. Note 2 & Note 3 of Rule 3 of Part III KSR provide as follows: _**“Rule 3:-** xxx xxx xxx_ _**Note 1:-** xxx xxx xxx_ _**Note 2:-** The word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an_ O.P (KAT) No.43/2021 9 _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 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 a pensioner should be quantified and intimated to him.”_ 8. It is by now well settled that liabilities as understood in Note 2 of Rule 3 Part III KSR are only those liabilities which could be otherwise quantified by the employer/Government without resort to disciplinary proceedings and judicial proceedings as understood in the operative portion of Rule 3 Part III KSR. For the present purpose we will only assume for argument sake that the alleged liability in Anx.A6 dated 08-06-2015 is a liability that will be otherwise recovered by the Government without resort to the disciplinary proceedings and judicial proceedings as understood in the operative portion of Rule 3 Part III KSR. Here we should add a caveat that in this matter, it is very seriously open to doubt as to whether the instant alleged liability could be unilaterally recovered by the Government without resort to judicial proceedings. We are proceeding on the premise that the alleged liability projected in Anx.A6 could be a subject matter of liabilities understood in Note 2 of Rule 3 of Part III KSR. Then the inevitable fall out is that the such O.P (KAT) No.43/2021 10 alleged liabilities could be recovered only by following strictly the statutory procedure envisaged in Note 3 Rule 3 of Part III KSR. That is to say, the Government or the department concerned will have to issue show cause notice to the pensioner concerned alleging the liability in question, providing a reasonable opportunity to the pensioner concerned to put forward his case that liabilities are non existent or cannot be enforced and then should quantify the liability and intimate the liability to the pensioner by issuing a proceedings within an outer time limit of three years from the date of retirement of the pensioner concerned. This is the simple impact arising out of the mandatory provisions contained in Note 3 of Rule 3 Part III KSR. 9. In the instant case, the deputation leave for obtaining PhD Degree was sanctioned in favour of the original applicant as per Anx.A1 dated 27-01-2005, the applicant was asked to execute the bond, which she did on 07-06-2005 as per Anx.A2 and she was relieved from the Government service and had joined the Research Institution concerned on 08-06-2005. Thereafter it appears that she was allowed to join duty in Government service on 03-09-2007 and later, she has retired from service 31-03-2011. For the first time, the Government has issued a show cause notice to the petitioner alleging the instant liabilities, as per Anx.A4 dated 01-07-2013, to which the O.P (KAT) No.43/2021 11 applicant has responded by giving a detailed explanation as per Anx.A5 dated 22-07-2013. It is long thereafter that the Director of Technical Education (not the Government) has issued Anx.A6 proceedings on 08-06-2015 quantifying therein, the alleged liabilities as Rs.15,41,138/-. No case is set up before the Tribunal or before us in these proceedings as to whether Government or the Director of the Technical Education has, at any point of time after the incumbent had joined duty on 03-09-2007, directed her to show cause as to why she has not completed the PhD and then hear the petitioners and quantify the alleged liabilities. The show cause notice is issued quite late and ultimately the alleged quantification is said to be made as per AnxA6 as on 08-06-2015. Anx.A6 dated 08-06-2015 has been issued long after the expiry of the three year time limit, which indisputably has expired on 31-03-2014 and therefore the abovesaid impugned proceedings are in total and flagrant violation of the mandatory provisions contained in Note 2 & Note 3 of Rule 3 Part III KSR. So, even if it is assumed that the alleged liabilities would fall within the province of Note 2 of Rule 3 of Part III KSR inasmuch as the said liabilities could be construed as liabilities which could be recovered without resort to the disciplinary proceedings and judicial proceedings as conceived in the operative portion of Rule 3 of Part III 12 O.P (KAT) No.43/2021 KSR , the mandatory provisions contained in Note 3 of Rule 3 Part III KSR has been flagrantly violated. In other words, the Government and department cannot touch a single paise of the DCRG amounts due to the pensioner and if they are so permitted, it would amount to flagrant violation of the provisions contained in Article 300A of the Constitution of India. On this short ground, the petitioners cannot succeed to uphold the impugned proceedings in this case. That apart, it is seriously open to doubt as to whether the unilateral liabilities alleged by the petitioners in Anx.A6 could be recovered unilaterally at their instance, without an adjudication by a civil court. In the instant case, nobody has a case that there is any arbitration clause in the agreement entered into between the parties. Moreover, the applicant has got a case in Anx.A5 reply that she could not successfully complete the PhD programme, which she underwent from the Vikram Sarabhai Space Centre under the ISRO due to reasons totally beyond her control, as the research was on a highly sophisticated and advanced area of research and very infrastructural facility for that area of research undertaken by the applicant was not then available. 10. That apart, _prima facie_ it appears that the bonded amount undertaken in internal page No.1 in Anx.A2 bond dated O.P (KAT) No.43/2021 13 07-06-2005 is only Rs.5,41,194/- and it appears that the said figure of Rs.5,41,194/- is arrived at on the basis of calculation formula mentioned in internal page No.8 of Anx.A2. Clause (k) of the condition appended to Anx.A2 given on internal page No.5 of Anx.A2 states that, on demand by the Government, all monies paid to the bounden or spent by the Government or Government of India on his/ her account by way of deputation allowances, tuition fees, scholarships, travelling expenses, etc. plus a penalty at the rate prescribed by the Government and interest at the rate of ten percent on the whole amount to be remitted to Government in respect of the said higher studies, etc will have to be paid by the bounden to the Government, etc. Therefore, an element of calculation and computation is highly necessary for claiming any amount over and above the agreed amount of Rs.5,41,194/- going by the mandate of condition No.(k) given on internal page No.5 of Anx.A2. Even if it is assumed that the said liability could be the subject matter of Note 2 of Rule 3, Part III KSR, then quantification is a must and that process will have to adhere to the strict mandate of Note 3 of Rule 3 Part III KSR. That apart, when the applicant seriously raises a contention that she could not successfully complete the PhD programme due to reasons totally beyond her control it is very much seriously open to O.P (KAT) No.43/2021 14 doubt whether the alleged liabilities in Anx.A5 would be construed as a liability which could be recovered without resort to the judicial proceedings as understood in operative portion of Rule 3 of Part III KSR. 11. _Prima facie_ it is also found that the Government /Department has secured Anx.A2 bond from the applicant only on 07-06-2005 and she was relieved from the Government service on that day and she had joined the Research Institution on 08-06-2005 and had returned back within two years thereafter. Therefore, it can be seen that a minimum period of four years to be served with the Government, after the expiry of the said two years period is not available in the instant case inasmuch as the said four years period computed from 05-06-2007 would be upto 04-06-2011 and whereas the applicant has retired from service on 31-03-2011. Therefore, it can be seen that even when the parties have entered into the execution of the bond as per Anx.A2 dated 07-06-2005, the second vital condition of the applicant of having to necessarily join duty within two years and then serve the Government service for four years thereafter, was absolutely impossible to be complied with by both sides, inasmuch as the said four years' period would have O.P (KAT) No.43/2021 15 expired only after the statutorily fixed superannuation age of the applicant. Therefore _prima faice_ it is not known to this Court as to how the very agreement has been entered into by the petitioners in such a manner that one of the vital conditions was impossible to be performed by both sides, even if it is assumed that the applicant could successfully secure the PhD Degree within the said time limit. We need not make any further examination in the matter, except to say that in case the petitioners have any legally justiciable grievances in the matter, it should be adjudicated in a civil court and they will have the liberty to take resort to such civil litigative proceedings, in accordance with law and subject to law of limitation. Hence, we are of the strong view that, the Tribunal has not committed any illegality, impropriety or unreasonableness in rendering the impugned Ext.P6 final order dated 20-01-2020 in O.A No.2117/2015 and allowing the main pleas and prayers of the applicant in the matter of disbursal of the full amount of admissible DCRG. The petitioners will ensure that the DCRG amounts due to the original applicant are disbursed to her without any further delay, taking into consideration of the fact that she has retired from the service as early as on 31-03-2011. This shall be done without any further delay, at any rate, within an outer time limit of six weeks from the date of production of a certified copy of O.P (KAT) No.43/2021 16 this judgment. The orders and directions of the Tribunal as per Ext.P6 will stand modified to the limited extent, as above. With these observations and directions and with the said liberty, the above Original Petition will stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **T.R.RAVI, JUDGE** KAS O.P (KAT) No.43/2021 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.2117/15 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL. ANNEXURE A1 TRUE COPY OF THE GO(RT) NO.144/05/H.EDN. DATED 27/01/2005. ANNEXURE A2 TRUE COPY OF THE BOND DATED 07/06/2005. ANNEXURE A3 TRUE COPY OF THE REQUEST DATED 07/10/2013. ANNEXURE A4 TRUE COPY OF THE COMMUNICATION DATED 01/07/2013. ANNEXURE A5 TRUE COPY OF THE REPLY DATED 22/07/2013. ANNEXURE A6 TRUE COPY OF THE LETTER DATED 08/06/2015. ANNEXURE A7 TRUE COPY OF THE LETTER DATED 24/10/2014. ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED 08/07/2015. ANNEXURE A9 COPY OF THE COMMUNICATION DATED 03/08/2015. ANNEXURE A10 COPY OF THE COMMUNICATION DATED 15/09/2015. EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 01/12/2015. EXHIBIT P3 TRUE COPY OF THE INTERIM ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 15/11/2019. EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE SECOND PETITIONER ON 02/12/2019.** 18 O.P (KAT) No.43/2021 |**EXHIBIT P5**|**TRUE COPY OF THE REJOINDER FILED BY THE**| |---|---| ||**APPLICANT.**| |**EXHIBIT P6**|**TRUE COPY OF THE IMPUGNED ORDER OF THE**| ||**KERALA ADMINISTRATIVE TRIBUNAL DATED**| ||**20/01/2020.**| ## **RESPONDENT'S/S EXHIBITS: NIL**