## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
## **&**
**THE HONOURABLE MR. JUSTICE GOPINATH P.**
**FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942**
## **OP(KAT).No.205 OF 2020**
**AGAINST THE ORDER DATED 25.11.2019 IN OA (EKM) 1973/2016 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM**
## **PETITIONER:**
**V. RAMACHANDRAN, S/O. V.P. VELAYUDAN, WORKED AS DEPUTY DIRECTOR OF EDUCATION (RETIRED), KULANTHINKAL SANKAR BHAVAN, KAMMANTHARA, VADAKKANCHERRY, PALAKKAD, KERALA-678683.**
**BY ADVS. SRI.M.SASINDRAN SRI.JOMY K. JOSE**
## **RESPONDENTS:**
|**1**|**STATE OF KERALA,**|
|---|---|
||**REPRESENTED BY SECRETARY TO GOVERNMENT , DEPARTMENT**|
||**OF GENERAL EDUCATION, SECRETARIAT,**|
||**THIRUVANANTHAPURAM-695001.**|
|**2**|**THE DIRECTOR OF GENERAL EDUCATION,**|
||**JAGATHY-695014, THIRUVANANTHAPURAM, KERALA.**|
|**3**|**THE DEPUTY DIRECTOR OF EDUCATION,**|
||**OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, CIVIL**|
||**STATION,PALAKKAD-678001, KERALA.**|
|**4**|**THE DEPUTY DIRECTOR OF EDUCATION,**|
||**OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, 2ND**|
||**FLOOR, CIVIL STATION, AYANTHOL, THRISSUR-680001,**|
||**KERALA.**|
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**5 THE DISTRICT EDUCATIONAL OFFICER, DISTRICT EDUCATIONAL OFFICE, PALACE ROAD, THRISSUR, KERALA-680001.**
**SRI. P.N. SANTHOSH- SR.G.P.**
**THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
Dated this the 9[th] day of October 2020
## _**Shaffique, J**_
The petitioner was the applicant in O.A.(EKM).No.1973/2016. The petitioner retired from service as Deputy Director of Education on 31.5.2012. He was served with a notice dated 20.10.2014 (Annexure A2) to show cause why the liability shall not be fixed and recovered from him for an amount of Rs.24,36,129/-. The details of the amounts to be recovered are shown in serial Nos. 1 to 7 in the said notice. Petitioner sent a reply inter alia stating that he was not informed about any such liability earlier and he sought for time to furnish details. However, an order seems to have been issued on 4.2.2015 fixing the very same liability. The petitioner preferred a representation before the Government and by order dated 30.9.2015, the Government has set aside the liability so fixed and the matter was directed to be considered afresh.
2. The petitioner submitted a statement of arguments which is produced as Annexure A6 along with the original application inter alia explaining each and every portion of the claim made by the Government in this regard. However, without reference to any of such objection, an order was passed as Annexure A11 on 1.09.2016 again
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fixing the liability as Rs.25,17,108/-. Perusal of Annexure A11 would indicate that none of the contentions or explanation offered by the petitioner in his statement of arguments were met or considered. However, by yet another order dated 24.11.2016 (Annexure A12), in modification of order dated 1.9.2016, the amount fixed as liability was reduced to 17,49,424/-, pursuant to which Revenue Recovery proceedings were initiated by issuing a demand notice under Section 7 of the Revenue Recovery Act (Annexure A13). The aforesaid orders, Annexures, A11, A12 and A13 came to be challenged before the Tribunal.
3. The Tribunal after considering the respective contentions held that insofar as the liability has been fixed after hearing the petitioner in terms of Annexure A11 and A12, there is nothing wrong in the Government initiating Revenue Recovery proceedings. Accordingly, the application was dismissed.
4. We heard the learned counsel appearing for the petitioner Sri. M. Sasindran and the learned Senior Government Pleader Sri. P.N. Santhosh.
5. The main contention urged by the learned counsel for the petitioner is that the Government had not fixed the liability in accordance with the procedure prescribed. It is pointed out that, if at all any liability has to be fixed, it has to be done within the period of 3 years as contemplated under Note 3 to Rule 3 of Part III KSR. Insofar
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as no such liability has been fixed, the Government cannot fix any such liability. Further, it is pointed out that the remedy of the Government is only to file a suit as held by this Court in the judgment dated 5.8.2020 in O.P. (KAT).No.118/2016 [ **C.K. Sureshbabu v. State of Kerala]** and **Ratheesh S. Nair v. State of Kerala & Others** (2014 KHC 3030). It is also pointed out that the fixation of liability has been made without any adjudication at all and as the matter stands now, it is not open for the Government to fix the liability.
6. On the other hand, the learned Government Pleader while supporting the order passed by the Tribunal would submit that, the petitioner was heard on several occasions and all material particulars had been considered by the Government and even the liability has been reduced to a considerable extent. That being the situation, there is no reason to have a further adjudication in the matter as the order Annexures A11 and A12 itself is self explanatory. The competent authority have given notice and after hearing the petitioner has passed the said orders and hence the Tribunal is justified in not interfering with the said order. It is also pointed out that the Revenue Recovery proceedings had been initiated after fixation of liability and the Government has the right to do so by invoking the provisions of the Kerala Public Accountants Act, 1963 ('the Act' for short) or to file a suit as provided under Rule 116 of Part III KSR.
7. Having gone through Annexures A11 and A12 orders which
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are the final orders passed in the matter, what we find is that the officer concerned who had passed the order on behalf of the Government, has not met the contentions urged by the petitioner. One specific instance which was pointed out was regarding the liability of Rs.15,17,078/-. It is pointed out that at the relevant time, when the appeals were heard, the petitioner was not the authority and orders were passed by yet another Officer. Even that particular factual aspect is not seen met or considered while passing Annexure A11. When a liability is fixed on a Government servant/retired Government servant, necessarily the competent authority will have to take into account the claim, the objections raised and thereafter, after a due consideration of the material documents pass a reasoned order. Annexure A11 order is only an order of summary nature, without even considering the materials placed on record or the objections raised by the petitioner. For that reason Annexure A11 ought to have been set aside by the Tribunal. Of course, in Annexure A12 a reduction has been given for the amount quantified in A11. But no reasons has been stated in the said order as well to sustain the said order.
8. Though it is contended by the learned counsel for the petitioner that the fixation of liability cannot be made beyond the period of 4 years, we are of the view that in terms with Section 3 of the Act, it shall be open for the competent authority, i.e., the Collector or the Head of the Department to fix the liability in terms with the said
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provision. Fixation of liability within the 3 year period specified under Note 3 to Rule 3 of Part III KSR is only for the purpose of recovery from the DCRG. In the case on hand, DCRG had already been paid. Therefore, after the 3 year period the Government can fix the liability only under Section 3 the Act or by filing a suit as contemplated under Ruling 6 of Rule 116 of Part III KSR. Having regard to the fact that Annexures A11 and A12 are orders passed without considering the factual materials placed on record, we are of the view that liability could be fixed only by taking other proceedings in accordance with law. We therefore allow the original petition and dispose of the original application in the following manner:
(i) The order in O.A.(EKM).No.1973/2016 shall stand set aside.
(ii) Annexures A11 and A12 are set aside. However, the Government's right to proceed against the petitioner in terms with the Kerala Public Accountants Act, 1963 by issuing a fresh notice or by filing a suit in terms with Rule 116 of Part III KSR, is hereby reserved.
## **Sd/-**
## **A.M.SHAFFIQUE, JUDGE**
**Sd/-**
> True copy **GOPINATH P., JUDGE** kp P.A. To Judge
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 A TRUE COPY OF THE ORDER DATED25/11/2019 IN OA (EKM) NO.1973/2016.**
**EXHIBIT P2 A TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION (O.A. (EKM) NO.1973/2016) FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ALONG WITH ANNEXURES.**
**ANNEXURE A1 A TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT SANCTIONING FULL PENSION AND DCRG TO THE PETITIONER WITH EFFECT FROM 01/06/2012.**
**ANNEXURE A2 A TRUE COPY OF THE NOTICE DATED 20/10/2014 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. ANNEXURE A3 A TRUE COPY OF THE REPLY DATED 03/11/2014 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. ANNEXURE A4 A TRUE COPY OF THE ORDER NO. LW(B2)/35524/14/DPI DATED 04/02/2015 ISSUED BY THE 2ND RESPONDENT DEPUTY DIRECTOR OF EDUCATION. ANNEXURE A5 A TRUE COPY OF THE ORDER DATED 30/09/2015 ISSUED BY THE GOVERNMENT. ANNEXURE A6 A TRUE COPY OF THE STATEMENT SUBMITTED BY THE APPLICANT BEFORE THE DPI. ANNEXURE A7 A TRUE COPY OF THE STATEMENT SUBMITTED BY THE APPLICANT BEFORE THE DPI ON THE DATE OF HEARING PURSUANT TO THE ANNEXURE A5. ANNEXURE A8 A TRUE COPY OF THE ORDER DATED 30/08/2016 IN OA NO.2210/2015. ANNEXURE A9 A TRUE COPY OF THE ORDER DATED 20/09/2016 IN OA 2210/2015. ANNEXURE A10 A TRUE COPY OF THE ORDER DATED 07/11/2016 ISSUED BY THE 2ND RESPONDENT DPI. ANNEXURE A11 A TRUE COPY OF THE ORDER DATED 01/09/2016 ISSUED BY THE SECOND RESPONDENT DPI.**
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|**ANNEXURE A12**|**A TRUE COPY OF THE ORDER DATED 24/11/2016.**|
|---|---|
|**ANNEXURE A13**|**A TRUE COPY OF THE NOTICE IN FORM 1 AND**|
||**FORM 10 UNDER SECTION 7 AND 34 OF THE**|
||**REVENUE RECOVERY ACT.**|
|**EXHIBIT P3**|**A TRUE COPY OF THE REPLY DATED 05/02/2018**|
||**SUBMITTED BY THE 2ND RESPONDENT IN OA (EKM)**|
||**NO.1973/2016.**|
|**EXHIBIT P4**|**A TRUE COPY OF THE REPLY STATEMENT OF THE**|
||**4TH RESPONDENT DATED 25/09/2017.**|
