IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 36951 of 2008(Y) ----------------------------------------- PETITIONER(S): ----------------------- C.SASIDHARAN NAIR, ASHTOMY, ANRA D - 40, POUDIKONAM,P.O. THIRUVANANTHAPURAM 695 587 (RETIRED AS HEAD MASTER CUM PRINCIPAL MVHSS. THUNDATHIL) BY ADV. MR.P.N.MOHANAN RESPONDENT(S): ------------------------ 1. DIRECOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS SANTHI NAGAR, THIRUVANANTHAPURAM. 2. PRINCIPAL, M.V.H.S., THUNDATHIL, THIRUVANANTHAPURAM. 3. ACCOUNTANT GENERAL, THIRUVANANTHAPURAM, KERALA. SR. GOVERNMENT PLEADER MR. A.J.VARGHESE FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.36951 of 2008 -------------------------------------- Dated 23rd March, 2009 JUDGMENT The writ petitioner is a pensioner. He retired from service on 31.3.2004 while he was serving as the Principal of M.V. Higher Secondary School, Thundathil in Thiruvananthapuram District. Though other pensionary benefits were disbursed to the writ petitioner, the Death Cum Retirement Gratuity sanctioned to him by the Accountant General was not disbursed. Later, Ext.P2 liability certificate was issued on 26.11.2008 fixing the sum of Rs.2,01,564/= as the petitioner's liability and directing recovery of the said amount from the DCRG that the petitioner is entitled to. 2. In this writ petition, the writ petitioner challenges Ext.P2 on various grounds. His primary contention is that liability was not fixed within a period of three years after retirement and that it was also done without notice to him. These facts are not disputed by the respondents in their counter affidavit. The respondents, however, contend that the audit objection was made known to the writ petitioner and his remarks were also obtained. They also contend that since the writ petitioner was made aware of the audit objection, it was not necessary to issue further notice before fixing liability. WP(C)No.36951/2008 2 3. I have considered the submissions made by the learned counsel appearing for both sides. Rule 3 of Part III of the Kerala Service Rules empowers the Government to recover from the pensioner the pecuniary loss, if any, caused to it. On the terms of Rule 3 of Part III K.S.R, such recovery can be made only if pecuniary loss is caused to the Government by the pensioner. This aspect was highlighted by this court in Kolappa Pillai v. State of Kerala (1982 K.L.T. 551) where Kochu Thommen (J), (as His Lordship then was) held as follows: “The object of this rule is not to inflict a punishment upon a retired government servant, but to recover from him amounts to recompensate the Government for the loss caused by him. This recovery may be made either by withholding or withdrawing a pension or by specifically ordering recovery from the pension payable to him. In all these cases recovery is made by resort to denying the petitioner so much pension as will make up for the loss caused to the Government. This is the object of Rule 3. Although such recovery may cause hardship to the person affected, it is not by way of punishment that that recovery is made, but only to adjust against specific loss found to have been caused by the person, I cannot accept the contention that, even where no loss is found to have been caused, amounts can be withheld, withdrawn or recovered from pension merely because a proceeding initiated under the C.C. & A. Rules is transmuted as a proceeding under the K.S.R. The object of the law in allowing such transmutation is not to inflict a punishment upon the retired government servant, but to make him pay for the pecuniary loss which he has caused. This rule cannot be of any avail to the Government unless loss has been caused and found to have been caused.” 4. In Raveendran Nair v. State of Kerala (2007 (1) KLT 605), a Full Bench of this Court drew a distinction between withholding or WP(C)No.36951/2008 3 withdrawing the pension or any part thereof and the right to order recovery from the pension of the whole or part of any pecuniary loss caused to the Government. As regards the former, it was held that the Government have the power, even if no pecuniary loss has been caused to it to withhold or withdraw the pension or any part thereof, whether permanently or for a specified period. As regards the latter, the Full Bench held that recovery of the pecuniary loss is compensatory in nature and that if the misconduct of the employee/ pensioner has caused pecuniary loss to the Government, the Government can exercise both rights and if no pecuniary loss has been caused, only the right to withhold or withdraw the pension or any part thereof alone can be exercised. 5. The principle that emerges from the aforesaid decisions is that while the Government have the right to recover the pecuniary loss caused to it by the employee or the pensioner, it must be established that such loss was caused due to the misconduct or negligence of the employee or pensioner. It has also been held that the Government cannot invoke Rule 3 of Part III K.S.R. unless loss has been caused and found to have been caused to the Government. In the instant case, apart from merely stating that a sum of Rs.2,01,564/= is fixed as the petitioner's liability, nothing is put forward to establish that the said amount is the loss which had in fact been caused to the Government. Further, before the said amount was fixed as the petitioner's liability, no notice was issued WP(C)No.36951/2008 4 to him as required under Rule 3 of Part III K.S.R. I am, therefore, of the opinion that Ext.P2 liability certificate cannot be sustained. It is accordingly quashed and the respondents are directed to disburse to the writ petitioner, the DCRG sanctioned to him. Payment as directed above shall be made within two months from the date of receipt of a certified copy of this judgment. I make it clear that this judgment will not stand in the way of the respondents from proceeding against the writ petitioner under the Kerala Public Accountants Act, 1963 for realisation of the loss, if any, caused by the petitioner to the Government or from instituting a civil suit to recover such loss. The contentions of both parties on the merits are kept open. The writ petition is allowed as above. No costs. P.N.RAVINDRAN Judge TKS