Swarnalatha CV Headmistress (Retd) K.V.R. High School, Shornur v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939** **WP(C).No. 16147 of 2015 (P)** **----------------------------** **PETITIONER :** **SWARNALATHA CV HEADMISTRESS (RETD) K.V.R. HIGH SCHOOL, SHORNUR RESIDING AT SREERAGHAM, VIVEKANDA NAGAR, SHORNUR-679 122** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA** **RESPONDENTS :** **1. STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION, THIRUVANANTHAPURAM 695001** **2. DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, PALAKKAD 678 001** **3. DISTRICT EDUCATIONAL OFFICER OTTAPPALAM 679 101** **4. SUB TREASURY OFFICER SHORNUR 679121** **5. M. MOHANAKRISHNAN, JHEADMASTER KVR HIGH SCHOOL, SHORNUR 679 121** **R1 TO R3 BY GOVERNMENT PLEADER SRI.K.P.HARISH R5 BY ADVS. SRI.G.G.MANOJ** **SRI.JAICE JACOB SRI.P.M.BENZIR SRI.S.SARATH PRASAD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/8/2017, THE COURT ON 31-08-2017 DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 16147 of 2015 (P)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1:**|**TRUE COPY OF THE PARTICULARS OF PENSION**| ||**DATED 2.8.2014**| |**EXHIBIT P2:**|**TRUE COPY OF THE LETTER SENT BY 4TH**| ||**RESPONDENT TO THE 2ND RESPONDENT**| ||**DATED 16.1.2015**| |**EXHIBIT P3:**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**23.1.2015 SUBMITTED BY THE PETITIONER**| |**EXHIBIT P4:**|**TRUE COPY OF THE DISBURSEMENT DETAILS**| ||**FURNISHED BY THE PERSON IN CHARGE**| |**EXHIBIT P5:**|**TRUE COPY OF THE CERTIFICATE ISSUED BY THE**| ||**DEPARTMENT OF POSTS ON 9.2.2015 WITH THE**| ||**COPY OF THE EXTRACT LEDGER**| |**EXHIBIT P6:**|**TRUE COPY OF THE DECLARATION GIVEN BY THE**| ||**EX.PTA PRESIDENT**| |**EXHIBIT P7:**|**TRUE COPY OF THE LETTER SENT BY THE 2NS**| ||**RESPONDENT TO THE 4TH RESPONDENT DATED**| ||**12.2.2015**| |**EXHIBIT P8:**|**TRUE COPY OF THE NOTICE BY THE 2ND**| ||**RESPONDENT DATED 12.3.2015 TO THE**| ||**PETITIONER**| |**EXHIBIT P9:**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**19.3.2015 ISSUED BY THE 2ND RESPONDENT TO**| ||**THE 3RD RESPONDENT**| |**EXHIBIT P10:**|**TRUE COPY OF THE ORDER PASSED BY THE 2ND**| ||**RESPONDENT ON 2.5.2015**| |**EXHIBIT P11:**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**5.5.2015**| |**EXHIBIT P12:**|**TRUE COPY OF THE GOVERNMENT CIRCULAR DATED**| ||**2.11.2011**| |**EXHIBIT P13:**|**TRUE COPY OF THE CIRCULAR DATED 21.6.2014**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**<br>**NIL.**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| **bp** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = = W.P.(C).No.16147 of 2015** **= = = = = = = = = = = = = = = Dated this the 31[st] day of August, 2017** ## **JUDGMENT** ## 1.The prayers in this writ petition are as follows: - i. To issue a Writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit.P10 and quash the same. - ii. To issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 2 to 4 to release the DCRG sanctioned as per Ext.P1 with 18% interest from 31.3.2014 until disbursement to the petitioner within a time frame to be fixed by this Hon'ble Court; - 2.Heard the learned counsel for the petitioner and the Government Pleader. - 3.The petitioner retired from service as Headmistress from KVR High School, Shornur on 3.03.2014. By Exhibit P1, pensionary benefits has been sanctioned by the Accountant General. There was delay in forwarding the Non-Liability Certificate By Exhibit P2 the 4[th] respondent had reported that the Sanchaika W.P.(C).No16147/15 2 Ledger and the details have not been furnished by the petitioner. Petitioner has filed Exhibit P3 specifically pointing out that out of the total amounts shown as liability, Rs.2 lakhs and another sum of Rs.9,656/- had already been disbursed to the students and the balance amount of Rs.50,000/- for which the subscribers could not be found for return of the subscription in spite of best efforts had been utilised for the construction of smart class room as per the decision of the PTA. These aspects are clear from Exhibits P4 to P6. On receipt of Exhibit P3, Exhibit P7 letter was sent by the 2[nd] respondent to the Headmaster clearly stating that the petitioner is not liable. - 4.Thereafter, a notice was issued to the petitioner directing to produce the relevant documents. All the documents were produced to show that the petitioner is not liable. By Exhibit P9 letter, the 2[nd] respondent has requested the 3[rd] respondent to issue NLC. Without hearing the petitioner, Exhibit P10 order was issued fastening the liability of Rs.2,59,656/- on the W.P.(C).No16147/15 3 petitioner. Exhibit P11 representation was filed before receiving a copy of Exhibit P10. Exhibit P10 order is against Exhibits P12 and P13 Government circulars. Challenging the fixation of liability and seeking release of DCRG with interest, this writ petition is filed. 5.It is the specific contention of the petitioner that though she had procured and forwarded all the details of the return of the amounts to the students as also the spending of the amount for the smart class facility through the PTA, none of those details were taken note of by the respondents while issuing the impugned order. It is stated that a mere perusal of Exhibits P4 to P6 produced along with this writ petition would make it clear that there was absolutely no misappropriation of any amounts and that the amounts had been duly disbursed as stated by the petitioner. - 6.It is stated in the counter affidavit filed on behalf of the 2[nd] respondent as follows:- W.P.(C).No16147/15 4 “It is clear that there is no acquittance of the Sanchayika fund with the petitioner as well as the person in charge of Sanchayika fund, Sri.Chandrasekharan.Kot. In the above circumstances and as a reply for clarification letter of the present Headmaster the undersigned has to quantify the liability which comes to 2,59,656.15 (i.e.259657/-) and direct the present Headmaster to submit the Liability Certificate in respect of the petitioner. There is no material evidence with the petitioner. Hence mere hearing her, will be an attempt of in vain. The undersigned has gone through the documents carefully and took the final decision. The Headmaster is the custodian of all funds either from the Department or from the students. Hence the role of responsibility of the Headmaster, (the petitioner) cannot be ruled out. It is submitted that no willful attempt in denying NLC to the petitioner made by this respondent. Here this respondent acted awarding by to the facts furnished by the authorities. It is said that Rs.2,00,000/- and 9,656.15 disbursed to the students. But there is no evidence that the students have received the same. There is no justification in seeing that the undisbursed amount of Rs.50,000/- utilised to construct a smart W.P.(C).No16147/15 5 room with the consent of PTA. Even though there was a teacher in charge of Sanchayika fund, the entire responsibility goes to the Headmaster itself. The petitioner should have been denied the pensionary benefits to the teacher in charge of Sanchayika fund before clearing the Sanchayika fund details. The petitioner failed to do so.” 7.On a consideration of the pleadings and the contentions advanced, it is clear that the petitioner was not heard before the impugned order was issued. It is also clear that the petitioner had succeeded in procuring materials to show that the amounts had been spent as stated by her. It is also clear from the impugned order that these materials were not produced by the 5[th] respondent before the 2[nd] respondent before orders were issued fixing the liability. 8. Note 3 to Rule 3, Part III, KSR provides for fixation of liability which can be recovered from the DCRG. In **Sakthidasan v. State of Kerala** ILR 2014 (3) Ker 575, this Court held that before fixing liability, specific details of each head of such W.P.(C).No16147/15 6 liability should be informed to the pensioner and all materials produced to controvert such allegation should be considered. In the instant case, the official respondents did not have a case that any loss was caused to the Government or the institution. The only allegation was that there was lack of materials to show how the amounts had been utilised. The petitioner had produced further materials to show the utilisation of the amounts. Such documents are produced before this Court also. The existence of such material is not in dispute. The contention that no material could have been produced, even if the petitioner had been heard is therefore factually incorrect. Exhibit P10 order which is passed without hearing the petitioner and without considering the material produced by her is clearly unsustainable. 9.The petitioner was a person who had retired from service on 31.03.2014. It has been held by a Division Bench of this Court in **Ratheesh S. Nair v. State of Kerala** [2014(2) KLT SN 28] that once the time limit within which the liabilities of W.P.(C).No16147/15 7 pensioner should be quantified and intimated to him is over, the Government will not have the authority to decide as an adjudicator as to what would be the liability of a particular pensioner. In the circumstances, there can be no liberty reserved in the respondents to pass any further order in the matter of fixation of liability in accordance with law. In the above circumstances, Exhibit P10 is quashed. There will be a direction to respondents 2 to 4 to release the entire DCRG due to the petitioner within two months from the date of receipt of a copy of this judgment. If the amount is not released as above, the amount will carry interest at the rate of 9% from the date of this judgment to the date of payment. Writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj /TRUE COPY/- PA TO JUDGE