IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WP(C).No. 31406 of 2003(L) -------------------------------------- PETITIONER: ------------------- L.N.UNNI, LAKSHMIPURAM HOUSE, PERUMPAIKKADU P.O., KOTTAYAM. BY ADV. MR.K.REGHU KOTTAPPURAM. RESPONDENTS: ------------------------ 1. THE DIRECTOR OF MUNCIPAL ADMINISTRATION, STATE OF KERALA, THIRUVANANTHAPURAM. 2. THE KOZHIKODE CORPORATION, REPRESENTED BY THE SECRETARY, KOZHIKODE. 3. THE SECRETARY TO GOVT., LOCAL SELF GOVT. (A) DEPARTMENT, STATE OF KERALA, THIRUVANANTHAPURAM. R1 & R3 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH, R2 BY MR.P.V.KUNHIKRISHNAN,SC, MR.K.D.BABU,SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.31406/2003-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS NO. 19431/2000 DTD. 03/08/2001 ISSUED BY R.1. EXT.P.2: COPY OF THE NOTE NO.E5/46476/98 DTD. 24/02/01. EXT.P.3: COPY OF THE JUDGMENT IN O.P.18162/1996. EXT.P.4: COPY OF THE ORDER VIDE G.O.9RT).NO.4767/2000/LSGD DTD. 28/11/2000. EXT.P.5: COPY OF THE PETITION DTD. 05/01/03. EXT.P.6: COPY OF THE SHOW CAUSE NOTICE NO. 43957/A1/97/LAD. RESPONDENTS' EXHIBIT: EXT.R2.A: COPY OF THE LIABILITY CERTIFICATE DTD. 24/08/2005. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.31406 OF 2003 (L) -------------------------------------------------- Dated this the 24th day of November, 2009 J U D G M E N T Petitioner retired as Superintending Engineer from the Municipal Common Service on 31.8.1999. He was sanctioned DCRG of Rs.2,80,000/-, out of which, Rs.1,29,330/- was withheld and the balance amount alone was disbursed. This is his first grievance. The other grievance of the petitioner is against Ext.P4, an order passed by the 3rd respondent, that the period during which the petitioner was placed under suspension, will stand treated as duty for the purpose of computing salary which shall be limited to subsistence allowance and for corresponding pensionary entitlements. 2. In so far as Rs.1,29,330/- that is withheld from the petitioner's DCRG is concerned, petitioner himself says that out of this amount, Rs.97,901/- was withheld towards his liability to the Kozhikode Corporation where the petitioner worked as its Town Planning Officer. According to the petitioner the amount was received by him as advance for the various works executed by him and that he has distributed the said amount to his WPC.No.31406 /03 :2 : subordinates. It is stated that since he was transferred immediately thereafter he was not in a position to explain the utilization of the advance amount received from the Corporation. 3. The Kozhikode Corporation has filed a Counter affidavit. In paragraph 4 of the counter affidavit it is stated that the petitioner had served the Kozhikode Corporation during the period 3.11.1992 to 4.12.1997 as its Town Planning Officer and that during the aforesaid period the petitioner had drawn advance amount of Rs.97,901/- towards the administrative expenses. It is stated that an Officer is bound to adjust the advance amount within the 3 months from the date of availing of the same and that the petitioner did not adjust the said amount. However, they proceeded to state that out of the amount of Rs.97,901/- Rs.65,000/- has been subsequently found to have been adjusted by the petitioner towards the expenses and that the balance amount of Rs.32,901/- alone remains unadjusted. It is also stated that Rs.65,000/- has since been released to the petitioner. Therefore as far as the Calicut Corporation is concerned, the balance amount withheld is only Rs.32,901/-. WPC.No.31406 /03 :3 : 4. From the counter affidavit filed by the first respondent, it would appear that apart from the above, Rs.398.70 is due from the petitioner to Palakkad Corporation towards the rent for quarters occupied by him and an amount of Rs.20,116.20 is due to Changanassery Municipality towards housing loan and car loan and that an amount of Rs.50/- was due as advance to Aluva Municipality. Further, an amount of Rs.10,864 is due to Cochin Corporation as advance. It is stated that in addition to this, the petitioner also has liability towards the Kochikode Corporation. From the above it can be seen that the amounts which are due from the petitioner are the amounts which were received by the petitioner from the respective Municipalities or Corporation. In the writ petition there is no case for the petitioner of not having received these amounts. There is also no reply affidavit filed disputing the averments in the counter affidavit. In the light of these facts, I cannot say that the amounts mentioned are not due from the petitioner. Consequently, I am not persuaded to think that the respondents, should be faulted for not having issued any notice to the petitioner before the amounts have been quantified. WPC.No.31406 /03 :4 : 5. Be that as it may, in so far as the Kozhikode Corporation is concerned, since they have already traced part of the vouchers, necessary endeavor will be made to trace out the vouchers concerning the balance amount allegedly due from the petitioner. It is directed that this shall be done with due expedition and if they succeed in tracing the vouchers or the accounts where the amount has been credited by the petitioner or the Corporation, the amount so adjusted will be refunded to the petitioner. it is directed that in case the Corporation is succeeds in tracing the accounts that will be duly communicated to the petitioner and his views will be ascertained before finally quantifying the dues. 6. Then, what remains is the challenge against Ext.P4. The petitioner was placed under suspension during the period from 19.10.1996 to 3.12.1997. Disciplinary proceedings were initiated and the Enquiry Officer appears to have submitted report dated 19.7.1999. From Ext.P6, it is seen that the Enquiry Officer came to the conclusion that the charges against the petitioner could not be proved except the non-marking of the attendance register. However, from Ext.P6, what is discernible is that the WPC.No.31406 /03 :5 : disciplinary authority, the Secretary to the Local Administrative Department, disagreed with the conclusions of the Enquiry Officer and issued Ext.P6 show cause notice proposing punishment of barring 3 increments with cumulative effect from the petitioner's pensionary entitlement. Petitioner submitted his representation and finally by order dated 15.1.2000 punishment of barring of one increment with cumulative effect was imposed on the petitioner. This order does not appear to have been challenged anywhere and has attained finality. Later the petitioner moved for regularization of his period of suspension. It is on that representation, Ext.P4 order has been passed, where it has been ordered that the suspension period will be treated as duty for the purpose of salary which shall be limited to the subsistence allowance already drawn and reckoning the period for pensionary entitlement. 7. As already seen, petitioner was placed under suspension, disciplinary proceedings were initiated and punishment was imposed. In such circumstances I cannot find fault with the Government in having passed Ext.P4 order directing that the suspension can be treated as duty limited to subsistence WPC.No.31406 /03 :6 : allowance already drawn by him and also for reckoning of pensionary entitlement. Therefore challenge against Ext.P4 stands rejected. Writ petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/