IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 21578 of 2008(R) --------------------------------------- PETITIONER: ------------------- DR.K.N.RAJAN BABU, RETIRED SUPERINTENDENT, DISTRICT HOSPITAL, KOTTAYAM, NOW RESIDING AT KAZHANIPARAMBIL HOUSE, NATTAKAM P.O.,KOTTAYAM. BY ADVS. MR.PHILIP T.VARGHESE, MR.THOMAS T.VARGHESE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, HEALTH DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL (A&E), THIRUVANANTHAPURAM 4. THE DISTRICT MEDICAL OFFICER OF HEALTH, WAYANAD. 5. THE DISTRICT MEDICAL OFFICER OF HEALTH, KOTTAYAM. 6. THE TREASURY OFFICER, SUB TREASURY, KOTTAYAM. R1 TO R6 BY GOVERNMENT PLEADER SMT. SMITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21578/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 11/01/2006 ISSUED BY THE R.2. EXT.P.2: COPY OF THE GRATUITY PAYMENT ORDER ISSUED BY THE R.3. TO THE PETITIONER DTD. 06/02/2006. EXT.P.3: COPY OF THE GRATUITY PAYMENT ORDER ISSUED BY THE R.3. TO THE PETITIONER DTD. 03/07/2007. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 25/08/2006. EXT.P.4.A: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 04/04/2007. EXT.P.4.B: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.2. DTD. 07/03/2008. EXT.P.5: COPY OF THE NOTICE ISSUED BY THE R.2. TO THE PETITIONER PASSED 20/03/2008. EXT.P.6: COPY OF THE REPLY SUBMITTED BY THE PETITIONER DTD. 07/04/2008. EXT.P.7: COPY OF THE G.O.(P).NO.185/2002/FIN. DTD. 27/03/2002. EXT.P.8: COPY OF THE ORDER NO. AE6/91475/05/DHS DTD. 29/05/2008 ISSUED BY THE R.2. EXT.P.9: COPY OF THE LETTER NO.AE6/91475/05/DHS ISSUED BY THE R.2. DTD. 19/02/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.21578 OF 2008 ------------------------ Dated this the 8th day of September, 2009. JUDGMENT Petitioner joined the service of the respondent as Assistant Surgeon on 23.3.1976. After serving in various capacities, on attaining the age of superannuation, he retired from service on 31.12.2005 as Superintendent and Surgeon in the District Hospital, Kottayam. 2. By Ext.P1order, pension was sanctioned to the petitioner which states that no departmental or judicial proceedings were pending or contemplated against the petitioner. Subsequently, by Exts.P2 and P3 orders, the Gratuity Payment Orders were issued on 6.2.2006 and on 3.7.2007, for the payment of Rs.2,80,000/- and Rs.50,000/- respectively, being the gratuity due to the petitioner. However, payment was not made and that lead the petitioner to file Exts.P4 series of representations. Subsequently, he was issued Ext.P5 notice dated 20.3.2005, informing that an amount of Rs.3,10,450/- is outstanding as liability to the WP(c).No.21578/08 2 Government as reported by the Audit Section of the Office of the 2nd respondent. By this notice petitioner was called upon to clear the dues and furnish the details/ objections if any to the 2nd respondent. Petitioner submitted Ext.P6 reply, disputing the statements in Ext.P5 and also placing reliance on Ext.P7, GO(p).No.185/02 Fin dt.27.3.2002, which inter alia provides that payment of terminal benefits shall not be withheld for delay in the finalization of audit objections/enquiry report etc. 3. However, without making reference either to Ext.P5 notice or Ext.P6 reply submitted by the petitioner, Ext.P8 liability certificate was issued by the 2nd respondent on 29.5.2008, indicating that an amount of Rs.3,00,308/- was the liability of the petitioner. A reading of Ext.P8 shows that, apart from Sl.Nos.1 and 2 mentioned in the details of liabilities attached to Ext.P5, the other liabilities indicated in Ext.P8 do not find any place in Ext.P5. It was on receipt of Ext.P8, the petitioner filed this writ petition. 4. During the pendency of the writ petition, the respondents issued Ext.P9, a revised liability certificate dated 19.2.2009, indicating that a liability of Rs.2,40,035/- was remaining outstanding from the petitioner. This liability certificate has been produced along with I.A. No.7256/09. The details of the liability attached to Ext.P9 WP(c).No.21578/08 3 also shows that apart from the liabilities at Sl.Nos.1 and 2 mentioned in the details of the liability attached to Ext.P5, the other liabilities indicated in Ext.P9 do not find a place either in Ext.P5 or Ext.P8. 5. In this writ petition, the contentions raised by the counsel for the petitioner are mainly twofold. One is that there has not been any fixation of liability, before issuing either Exts.P8 or Ext.P9. It is also contended that in view of the provisions contained in Part-III Rule-3 Note-3 KSR, any such fixation could have been only within 3 years of the retirement of a Government Servant and that no such fixation has been taken place in this case. 6. A counter affidavit and an additional counter affidavit have been filed by the respondents justifying Exts.P5,P8 and P9. According to the respondents in the internal audit conducted at the District Hospital, Kottayam, irregularities were found and liability of Rs.4,01,710/- was fixed against the petitioner. It is also stated that a copy of the audit report and notice was given to him and thereafter the total liability of the petitioner was fixed at Rs.3,00,308/-. It is stated that the liabilities fixed have been shown in detail in the audit objection and that the petitioner had given an opportunity to file his objections. In the additional counter affidavit filed, the respondents have further stated that subsequent to the fixing of liability as per WP(c).No.21578/08 4 Ext.P8, in the light of the further objections filed, more audit objections were withdrawn and that subsequently liability has been quantified at Rs.2,40,035/-. 7. I have considered the submissions and in my view the petitioner is entitled to succeed. Evidently, the liability of a Government Servant can be fixed only after putting the Government Servant on notice and considering the objections that have been filed by him. It has been so held in the decision reported in State of Kerala V. Balan (2003(3)KLT Short Note 16). In this case, if at all any notice has been given, that notice is Ext.P5. To Ext.P5, the petitioner has given his reply as well. However, without affording a opportunity to the petitioner, he was issued Ext.P8. Ext.P8 does not make reference to either Exts.P5 or Ext.P6. Further aspect from the two liabilities indicated therein, the other liabilities indicated in Ext.P8 do not find a place in Ext.P5. Therefore, fresh liabilities are sought to be fastened on the petitioner, which at any rate was without any notice. 8. I am also not persuaded to think that even Ext.P8 reflects a fixation of liability for the reason that, if it were so, there arise no question of the further revision of liabilities as done in Ext.P9. Admittedly, by the time Ext.P9 order was issued, the 3 year period WP(c).No.21578/08 5 prescribed in Part-III Rule-3 Note-3 KSR had already expired. That apart, on this occasion also new liabilities are sought to be fastened on the petitioner and that too, without notice to him. Therefore, I must accept the case of the petitioner that there has not been any fixation of liability within the permissible period and with notice or opportunity to the petitioner. For these reasons I cannot sustain the liabilities against the petitioner in Exts.P8 and P9. Although the counsel for the petitioner raise a plea for payment of interest, having regard to the facts of this particular case, I am not persuaded to issue such a direction. Accordingly, Exts.P8 and P9 are quashed. The 2nd respondent shall disburse the gratuity due to the petitioner, sanctioned as per Exts.P2 and P3, within 4 weeks from the date of receipt of a copy of the judgment. Writ petition is allowed as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.21578/08 6