IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 11983 of 2005(B) -------------------------- PETITIONER: ------------ M.K.MANI S/O. KRISHNAN, AGED 59 YEARS, DRIVER (RETD.) K.S.R.T.CORPORATION, ERNAKULAM AND RESIDING AT PEKKAL HOUSE, NADAKKAVU P.O., UDAYANAPURAM, ERNAKULAM DISTRICT. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENTS: ------------- 1. THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, ERNAKULAM. BY ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R.1,2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2008, ALONG WITH WPC NO. 17762 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 11983/05. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE MEMORANDUM DTD.21.1.02 BY R2. P2. COPY OF THE ORDER DTD.11.1.96 BY R1. P3. COPY OF THE JUDGMENT IN W.P.C.NO.40115/03 OF THIS COURT. P4. COPY OF THE REPRESENTATION DTD.5.4.05 TO R1. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).Nos.11983 & 17762 of 2005 ================== Dated this the 16th day of September, 2008 J U D G M E N T In these two writ petitions the petitioner is the same. The petitioner is a former employee of the KSRTC who retired from service on 31.1.2002. He filed W.P(C).No.11983/2005 when the staff welfare fund, commuted value of pension and DCRG amounts due to him on retirement were not disbursed to him. Subsequently, he filed W.P(C).No. 17762/2005 challenging certain recoveries made from his DCRG. After filing the writ petitions, staff welfare fund amount and commuted value of pension have been paid to him. Therefore, the only issue surviving in these two writ petitions is as to the validity of recoveries made from the petitioner's DCRG amount, as per Ext.P3 order in W.P(C).No. 17762/2005. 2. Two amounts were sought to be recovered from the DCRG due to the petitioner. One is an amount of Rs.79,467/- allegedly due to the KSFE. The second is ten per cent of the w.p.c.11983/05 & cc. 2 DCRG withheld. It is now admitted that subsequently the withheld 10 percent has also been disbursed to the petitioner. As a result, the only issue surviving in these writ petitions is as to the validity of the recovery of the amount of Rs.79,467/- allegedly due to the KSFE from the petitioner. 3. The petitioner was a surety for repayment of loan amount taken by one P.A.Kunhu Mohammed from KSFE along another employee of the KSRTC, viz. one Sri.P.P.Joseph. The said P.A.Kunhu Mohammed defaulted repayment of the loan amount. While the petitioner was in service, an amount of Rs.25,500/- was recovered from the salary of the petitioner towards repayment of the loan amount due from P.A.Kunhu Mohammed. Subsequently when the amounts due were proposed to be recovered from his retirement benefits, he approached this court by filing W.P(C).No. 40115/2003. In that writ petition this Court passed Ext.P1 judgment [in W.P(C). No.17762/2005], wherein the KSFE was directed to proceed against the principal debtor and other sureties first. It was further directed therein that only if the amounts cannot be recovered from the said persons, KSFE shall proceed against the petitioner. w.p.c.11983/05 & cc. 3 That judgment has become final. As already mentioned one of the other sureties viz., P.P.Joseph, was also an employee of the KSRTC. He retired from service much after the petitioner retired, namely 30.6.2006. However, neither the KSFE nor the KSRTC took any steps to recover the amounts from him as directed in the judgment in W.P(C).No.40115/2003. The petitioner, therefore, submits that without complying with the directions in the judgment in W.P(C).No. 40115/2003, the KSFE and the KSRTC cannot recover amounts from the petitioner. He would further contend that although the amounts due to the KSFE can also be recovered from the DCRG due to the petitioner, the same can be so recovered only as liability, which according to him, has to be fixed strictly in accordance with Note 3 of Rule 3 of Part III KSR. The petitioner takes a contention that since the fixation of the liability has been done beyond the period of three years after retirement, by virtue of Note 3, Rule 3 of Part III KSR that amount cannot be recovered at all from his DCRG. The petitioner, therefore, seeks a direction to the KSRTC to refund the amount of Rs.79,467/- recovered from him with interest thereon. 4. A statement has been filed on behalf of the KSFE in w.p.c.11983/05 & cc. 4 which it is stated that in spite of earnest efforts, no recovery was effected from the salary of the third surety viz., P.P.Joseph. It is further stated therein that KSFE had issued several requests and reminders to the KSRTC requesting them to recover the amount from the salary of P.P.Joseph, but no recovery was made. They maintain that in accordance with the agreement executed between the petitioner and the KSFE, defaulted amount can be recovered from the retirement benefits of the petitioner as per Ext.R2(3) agreement. But the statement lacks details regarding the steps taken against the principal debtor, for recovery of the debt as directed in Ext.P1 judgment. 5. The KSRTC has filed a statement, in which, none of the contentions raised by the petitioner has even been adverted to. They simply state that an amount of Rs.79,467/- was recovered as per revenue recovery notice received from the Special Tahsilder (R.R) KSFE Ltd., Kacherippady, Ernakulam. They did not state therein as to why the amount was not recovered from P.P.Joseph as was directed in the judgment in W.P(C).No.40115/03, in spite of the specific averment in the statement of the KSFE that they had repeatedly requested the w.p.c.11983/05 & cc. 5 KSRTC to recover amounts from the other surety, viz.P.P.Joseph. 6. Reply affidavits have also been filed by the petitioner. 7. I have considered the rival contentions in detail. 8. Ext.P1 judgment in W.P(C).No. 17762/2005 has become final. That judgment specifically states as under: “2. I have also heard the learned counsel representing Shri.Raju Joseph, Standing Counsel for the KSFE, on behalf of the first respondent and the learned Government Pleader on behalf of respondents 2 and 3. Standing Counsel submits that the amount stated to have been recovered by the KSRTC has not so far been received. 3. If the KSRTC has already recovered amounts from the petitioner towards the dues of the first respondent, the same will be made over to the second respondent within two months from today. Petitioner can bring this to the notice of the first respondent by producing a certified copy of this judgment. In the meantime, respondents 1 and 2 are directed to proceed against the Principal Debtor and the other sureties and it is only if the amounts cannot be recovered from the said persons, respondents 1 and 2 can proceed against the petitioner. The question of limitation is left open.” This judgment is binding on the KSFE and consequently on the KSRTC although they were not party to that writ petition. In view of the above, it was incumbent on the KSFE to proceed against the principal debtor and other sureties first before proceeding against the petitioner. The details are sadly lacking as to what steps the KSFE and the KSRTC have taken for recovery of the amounts from the principal debtor and other sureties one of w.p.c.11983/05 & cc. 6 whom was also an employee of the KSRTC. Of course the KSRTC has issued Ext.P4 notice to the petitioner specifically referring to Ext.P1 judgment and stating that the principal debtor P.A.Kunhu Mohammed is absconding and his whereabouts or known assets are not traceable. As far as the other surety is concerned, Ext.P4 states that at that time he had already retired from service. But in Ext.P5 reply to the same, submitted by the petitioner, he had specifically pointed out that P.P.Joseph was at that time still working in Cherthala depot of the KSRTC and he would retire only on 31.7.2006. No efforts whatsoever have been taken by the KSRTC to controvert this averment. Nothing is stated as to why the amount could not have been recovered from the retirement benefits of P.P.Joseph as directed in Ext.P1 judgment. As such, it is evident that there was lack of compliance with Ext.P1 judgment. Therefore, without taking earnest efforts to recover amounts due from the principal debtor and other sureties, the petitioner could not have been liable because of Ext.P1 judgment, even though liability of the petitioner was joint and several with principal debtors and other sureties. Therefore, on that ground, I am of opinion that KSRTC could not have recovered the amount w.p.c.11983/05 & cc. 7 from the petitioner's DCRG without first proceeding against Sri.P.P.Joseph who was in service for about three years after Ext.P1 judgment. For that reason alone, I am of opinion that the KSRTC is bound to refund the amount to the petitioner for want of compliance with Ext.P1 judgment. 9. I am not inclined to countenance the other contention of the petitioner that in view Note 3 of Rule 3 of Part III KSR amounts cannot be recovered from the petitioner. The amount is not a liability due from the petitioner to the KSRTC. Therefore, there is no question of fixation of any liability as contemplated in Part III of KSR. By Ext.R2(3) agreement, the petitioner had entered into an agreement with the KSRTC for deduction of amounts due to the KSFE in respect of the loan for which the petitioner was a surety, from his retirement benefits. That can be deducted only when the retirement benefits are paid to him. The retirement benefits have been paid to the petitioner only by Ext.P3. At that time amount was deducted. Therefore, there is no question of application of the period of limitation prescribed in Note 3 of Rule 3 of Part III KSR. 10. However, since the petitioner is entitled to succeed on w.p.c.11983/05 & cc. 8 the first point, I direct the 1st respondent to release the withheld amount of Rs.79,467/- to the petitioner within one month from the date of receipt of a certified copy of this judgment. This is without prejudice to the right of the respondents to recover the amounts as directed in Ext.P1 judgment, if they can do so at this point of time. The writ petitions are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge