IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 22257 of 2008(Y) ----------------------------------------- PETITIONER(S): -------------------------- K.C.SANKARA PILLAI, "SURABHI", POONGODE, ALATHUR, PALAKKAD DISTRICT. BY ADV. SRI.N.RAGHURAJ SRI.A.V.RAVI SMT.K.AMMINIKUTTY RESPONDENT(S): --------------------------- 1. STATE OF KERALA-REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MEDICAL OFFICER (HEALTH), PALAKKAD. 3. THE SUPERINTENDENT, DISTRICT MEDICAL STORE, PALAKKAD. 4. THE ACCOUNTANT GENERAL (A & E), KERALA, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. ANU SIVARAMAN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.22257/2008-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21st day of January, 2009 J U D G M E N T The challenge in this writ petition is against the retention of the D.C.R.G amount due to the petitioner. The petitioner retired from service on 30/06/2006 while holding the post of Pharmacist/Store Keeper in the Health Department. Long after his retirement, by Ext.P10 he was informed that an amount of Rs.80,524/- has been fixed as provisional liability as "unforeseen charges". 2. The background of the case pleaded by the petitioner shows the following:- While he was working as Pharmacist/Store keeper, District Medical Store, Palakkad during 2002-2003, he placed a supply order in favour of M/s. Camerine Drugs and Pharmaceuticals for supply of certain medicines. Alleging certain irregularities in the matter, memo of charges was issued pursuant to the disciplinary proceedings initiated against the petitioner. Ext.P1 is the copy of the memo of charges which was answered by the petitioner. Ext.P2 is the copy of the explanation offered by the petitioner. A show cause notice was issued proposing to impose W.P.(C) No.22257/2008 -:2:- punishment of barring one future increment without cumulative effect, which is evidenced by Ext.P3. This was replied by the petitioner by Ext.P4. The punishment that is imposed is under Rule 11(1) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. Ext.P5 is the said order. The said punishment has become final. 3. DCRG due to the petitioner has been quantified as per Ext.P6 and the total amount is shown as Rs.2,54,192/-. For withdrawing the same, he sought for issuance of NLC/LC. In the absence of any response from the authorities concerned, the petitioner through his lawyer issued notice, Ext.P8. That was replied by Ext.P9 by the Store Superintendent. It was pointed out therein that M/s. Camerine Drugs and Pharmaceuticals, Kannur has filed an O.P as O.S.No.174/2007 to get their payments for the supplies made during 2002-2003 and further that the liability can be finally fixed only after the disposal of the said suit. The communication also pointed out that for fixing the liability as per Rule 3 Note 3 Part III of the Kerala Service Rules, three years period is available. 4. The second respondent has filed a statement before this Court. He has produced along with the statement provisional liability certificate [Ext.R2(c)], along with proceedings dated 24/06/2008 of W.P.(C) No.22257/2008 -:3:- the Store Superintendent, District Medical Store, Palakkad. The petitioner then amended the writ petition and has produced Exts.P10 and P11. A reading of Ext.P10 shows that the authority has chosen to fix an amount of Rs.80,524/- as liability under the heading 'unforeseen charges'. Justification sought for is apparently on the ground that the sum is part of the total amount of Rs.1,84,461/- claimed in the plaint filed by M/s. Camerine Drugs and Pharmaceuticals. The amount is seen apportioned between the petitioner and two other persons. It is stated that the total liability is fixed as Rs.2,41,573/- provisionally, presumably including interest on the pleaded amount claimed in the plaint. The question is whether any such amount can be assessed as liability due from the petitioner. What is described as liability is “unforeseen charges”. As far as the relevant provisions are concerned, it is clear from the rules that only pecuniary loss caused to the Government alone can be sought to be withheld from the DCRG due to the retiring person concerned. Even for recovering the same, there should have been quantification of the alleged liability with notice to the pensioner. Before effecting recovery also, he is entitled for notice. This is clear from Ruling No.3 of Rule 3 Part III of the K.S.R. W.P.(C) No.22257/2008 -:4:- 5. The question is whether the said stipulations in the prescribed rules are satisfied here. Even going by the admitted case, the suit has not been decreed so far and the suit is still pending. There is no allegation of causing loss on the part of the petitioner. Nothing is stated in the statement or proceedings Ext.P10, regarding the question whether the petitioner has caused any loss to the Government. The liability if any, therefore, cannot be characterised as loss to the Government until and unless it is quantified as such under competent proceedings. In the absence of the same, the amount claimed as unforeseen charges, cannot be recovered from the DCRG that is payable to the petitioner. 6. There is one more aspect that is stressed by the learned counsel for the petitioner. In the disciplinary proceedings initiated against him there were no allegations in the memo of charges regarding causing of loss by the petitioner on any count. Going by the punishment imposed also, what is imposed is only punishment of 'Censure'. Even though under the relevant rules, one of the items of punishment could be recovery of any loss caused to a State Government from the pay, even that is not attempted at the relevant time. In that view of the matter, as on today, there is no valid proceedings by which the petitioner could be saddled with any liability W.P.(C) No.22257/2008 -:5:- towards any loss caused to the Government. If that be so, it is not competent on the part of the respondents to recover the same from the DCRG. Therefore, Exts.P10 and P11 are quashed. 7. There will be a direction to the respondents to release the amount of DCRG due to the petitioner within a period of two months from the date of receipt of the copy of this judgment. If, ultimately, the civil suit is decreed against the Government, it will be open to the Government to initiate appropriate proceedings in accordance with law to recover any amount found to be legally due from the petitioner, and that remedy is left open. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms