IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 WP(C).No. 25381 of 2006(V) -------------------------- PETITIONER(S): --------------- RAJU NARAYANA SWAMY, IAS, DISTRICT COLLECTOR, KOTTAYAM. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S): --------------- 1. ANERT, (AGENCY FOR NON-CONVENTIONAL ENERGY & RURAL TECHNOLOGY), P.B.NO.1094, KESAVADASAPURAM, THIRUVANANTHAPURAM, REP. BY ITS DIRECTOR. 2. THE CHAIRMAN, EXECUTIVE COMMITTEE, ANERT, (AGENCY FOR NON-CONVENTIONAL ENERGY & RURAL TECHNOLOGY), P.B.NO.1094, THIRUVANANTHAPURAM. ADDL.R3 3. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY THIRUVANANTHAPURAM. (IMPLEADED AS ADDL.R3 AS PER ORDER DATED 6.11.2006 ADV. SRI.P.C.SASIDHARAN FOR R1 GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 25381/06 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LETTER NO.GE-1/D/R20-IAS/334 DATED 7.9.2006 ISSUED BY THE ACCOUNTS OFFICE, OFFICE OF THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. EXT.P2: COPY OF THE LETTER NO.GE-1/D/R20-IAS/304 DATED 18.9.2006 ISSUED BY THE ACCOUNTS OFFICE, OFFICE OF THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. EXT.P3: COPY OF THE LETTER NO.2210/A4/06/ADMN. DATED 12.9.2006 OF THE 1ST RESPONDENT. EXT.P4: COPY OF THE REPLY DATED 23.9.2006 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P5: COPY OF THE PROCEEDINGS DATED 26.9.2005 OF THE 1ST RESPONDENT. EXT.P6: COPY OF THE LETTER DATED 14.11.2005 OF THE ACCOUNTANT GENERAL. EXT.P7: COPY OF THE NOTE OF THE FINANCE OFFICER, ANERT DATED 22.6.2006. EXT.P8: COPY OF THE COMMUNICATION NO.GE-1/D/R20-IAS/82 DATED 29.5.2006 OF THE ACCOUNTANT GENERAL. EXT.P9: COPY OF THE RECEIPT FOR AN AMOUNT OF RS.41,614/-. EXT.P9(a): COPY OF THE RECEIPT FOR AN AMOUNT OF RS.76,401/-. EXT.P9(b) : COPY OF THE RECEIPT FOR AN AMOUNT OF RS.7,513/-. EXT.P9(c) : COPY OF THE RECEIPT FOR AN AMOUNT OF RS.9,316/-. EXT.P9(d) : COPY OF THE RECEIPT FOR AN AMOUNT OF RS.50/-. EXT.P10: COPY OF THE NOTE DATED 7.11.2005 OF THE FINANCE OFFICER. EXT.P11: COPY OF THE RELEVANT PAGES OF THE NOTE FILE AND THE CORRESPONDENCE FILE EVIDENCING THAT THE FILE WAS HANDLED BY THE AOs FROM TIME TO TIME. EXT.P12: COPY OF THE REPRESENTATIONS ALONG WITH THE ORDER OF THE MINISTER FOR POWER. EXT.P13: COPY OF THE NOTE DATED 28.4.2006 AND 20.6.2006 ISSUED BY THE DIRECTOR TO THE FINANCE OFFICER. WPC 25381/06 RESPONDENTS' EXHIBITS: EXT.R1(a) : COPY OF THE REGISTER FOR THE MONTH OF DECEMBER, 2005. WPC 25381/06 EXT.R1(b): COPY OF THE LETTER ADDRESSED TO THE ACCOUNTANT GENERAL DATED 16.9.2006. EXT.R1(c): COPY OF THE CHEQUE DATED 12.7.06 FOR RS.50,930/- DRAWN FROM S.B.T. TRIVANDRUM. EXT.R1(d): COPY OF THE CHEQUE DATED 25.7.06 FOR RS.83,914/- DRAWN FROM S.B.T. TRIVANDRUM. EXT.R1(e): COPY OF THE CHEQUE DATED 26.7.2006 FOOR RS.50/- DRAWN FROM S.B.T., TRIVANDRUM. EXT.R1(f): COPY OF THE LETER DATED 25.7.06 FROM PRINCIPAL SECRETARY TO GOVERNMENT TO THE DIRECTOR, ANERT. EXT.R1(g) : COPY OF THE LETTER DATED 18.8.06 FROM PRINCIPAL SECRETARY TO GOVERNMENT TO THE DIRECTOR, ANERT. EXT.R1(h) : COPY OF THE LETTER DATED 8.9.06 TO ADDRESSED TO DIRECTOR, ANERT. EXT.R1(i) : COPY OF THE LETTER DATED 28.9.2006. EXT.R3: COPY OF G.O.(Rt)NO.9837/2006/GAD DATED 21.12.2006. ANNEXURE R3(a) : COPY OF LETTER DATED 29.1.2008 SENT BY THE CHIEF SECRETARY TO THE DIRECTOR, ANERT. ANNEXURE R3(b) : COPY OF THE LETTER DATED 16.2.2008 SENT BY THE DIRECTOR ANERT. ANNEXURE R3(c) :COPY OF THE LETTER DATED 20.2.2008 SENT BY THE CHIEF SECRETARY TO THE PETITIONER. ANNEXURE R3(d) : COPY OF THE LETTER DATED 3.3.2008 SENT BY THE DIRECTOR, ANERT. ANNEXURE R3(e) : COPY OF THE LETTER DATED 19.3.2008 SENT BY THE CHIEF SECRETARY TO THE PETITIONER. //TRUE COPY// P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.25381 of 2006 --------------------------------------------- Dated this the 23rd day of January, 2009 JUDGMENT The petitioner, a 1991 batch IAS Officer, was appointed on deputation as the Director of ANERT (Agency for Non- Conventional Energy & Rural Technology) with effect from 29.10.2005. It is stated that the petitioner worked as the Director of ANERT from 29.10.2005 to 26.7.2006. 2. The petitioner states that he was placed in the Selection Grade with retrospective effect from 1.1.2004 and being a self drawing officer, he was entitled to draw the salary while working as Director of ANERT. In the Writ Petition, the petitioner has shown various amounts which he had drawn as salary and allowances. According to the petitioner, after drawing the salary and allowances, an amount of Rs.5,697/- was due to him as on 26.7.2006 from ANERT. The grievance of the petitioner is that his Last Pay Certificate was not issued by ANERT and therefore, he could not draw the salary as District Collector. It is stated that after 26.7.2006, he was working as WPC No.25381/2006 2 District Collector, Kottayam. 3. The reliefs prayed for by the petitioner in the Writ Petition are the following: “(i) issue a writ of mandamus or any other writ, order or direction directing the first respondent to forward Last Pay Certificate of the petitioner to the Accountant General with copy to the petitioner forthwith. (ii) Issue a writ of mandamus or any other writ, order or direction directing first respondent to pay the petitioner an amount of Rs.5697/- being the difference in the salary due to the petitioner and the amount actually paid forthwith. (iii) declare that the petitioner has no liability whatsoever to the first respondent and to further declare that no files relating to first respondent are remaining to be returned by the petitioner. (iv) issue such other reliefs as this Hon'ble Court deems fit to be granted in the circumstances of the case including costs of the petitioner.” 4. When the Writ Petition came up for admission, as per order dated 6.11.2006, a direction was issued that the State represented by the Chief Secretary shall be impleaded as an additional respondent. Thereafter, after having heard the counsel for the petitioner, learned counsel appearing for respondents 1 and 2 and the learned Government Pleader, this WPC No.25381/2006 3 Court passed a detailed order dated 24th May 2007. For the sake of convenience, the order dated 24th May 2007 is extracted hereunder: “Heard. The petitioner was the Director of Agency for Non-Conventional Energy & Rural Technology (ANERT). According to him, there is some dispute between him and his successor-in- office and as a result, the Last Pay Certificate is not being issued so far. Seeking the said relief, this writ petition is filed. 2. After hearing both sides, this Court impleaded the Chief Secretary of the State as additional 3rd respondent and directed the said officer to file an affidavit. Pursuant to that direction affidavit dated 1.1.2007 has been filed. In the light of the views expressed by this Court, the Government have passed an order on 12.3.2007, concerning the point raised in this writ petition. The relevant portion of the said order reads as follows: “Taking into account all the facts vis-a-vis the enquiry report of the officer, the Government is of the view that the issue should be settled amicably, provided all documents, receipt and vouchers relating to the disputed amount drawn by the petitioner by presenting cheques, are made available to ANERT by the petitioner himself, and on production of the same, the ANERT will issue the LPC and other dues, if any, to the petitioner and they order accordingly.” Both sides submit that they are ready to go by the above direction. 3. The learned counsel for the petitioner submitted that the petitioner has complied with the directions contained in the Government WPC No.25381/2006 4 order, the relevant portion of which is quoted above. The learned counsel appearing for ANERT seriously disputes the said submission. According to him, the petitioner has not come to the office of the ANERT after the Government order dated 12.3.2007 and has not taken any steps to settle the matter. 4. I think, again the services of the Chief Secretary have to be pressed into service to find out the correctness of the conflicting versions mentioned above. Accordingly, the third respondent herein is directed to look into the claim of the petitioner that he has done everything that is ordered by the Government in its order dated 12.3.2007 and therefore, he is entitled to get the L.P.C., within one month from the date of production of a copy of this order. The petitioner and the ANERT may file representations, if any, before the third respondent within two weeks from today, detailing their respective stands.” 5. When the Writ Petition came up for hearing on 21st August 2008, learned counsel appearing for respondents 1 and 2 submitted that the petitioner did not co-operate with the Chief Secretary and therefore, the Chief Secretary was not able to take a decision. However, according to the petitioner, he had done everything that he could do to enable the Chief Secretary to settle the dispute. In view of the conflicting stand taken by the petitioner as well as the respondents 1 and 2, as per order dated WPC No.25381/2006 5 21st August 2008, this Court directed to get instructions from the Chief Secretary. The matter came up again for orders on 23.10.2008. A learned Single Judge of this Court directed the Chief Secretary to file a statement setting out the details regarding the steps taken by him pursuant to the interim order dated 24.5.2007. 6. The Chief Secretary filed a statement dated 1st November 2008. It is stated in paragraph 4 to 7 as follows: “Neither the petitioner nor the first respondent (Director, ANERT) produce copy of the order of this Hon'ble Court. A copy of the order was received in the office of the Chief Secretary on 11.1.2008 from the office of the Advocate General. On receipt of the copy of the order and fax message from the Government Pleader, the Chief Secretary sent a letter to the Director, ANERT requesting to report whether any representation has been filed by the ANERT in response to the directions of the High Court and if not, to report whether the issues connected with the petitioner has been settled. A true copy of the said letter dated 29.1.2008 sent by the Chief Secretary to the Director, ANERT is produced herewith and marked as Annexure R3 (a). The Director, ANERT on 16.2.2008 informed that the petitioner has not settled the accounts of the amount he had withdrawn from the Bank account of ANERT. A true copy of the said letter dated 16.2.2008 is produced herewith and marked as Annexure R3(b). WPC No.25381/2006 6 5. The Chief Secretary as per his letter dated 20.2.2008 informed the petitioner that ANERT has informed that he has not settled accounts of the amount withdrawn from the Bank account of the ANERT. The Chief Secretary requested the petitioner to furnish a report in the matter within one week. A true copy of the said letter dated 20.2.2008 is produced herewith and marked as Annexure R3 (c). 6. The Director, ANERT by letter dated 3.3.2008 again informed that petitioner has not produced any of the documents, receipts and vouchers related to disputed amount drawn by him, by presenting the cheque. It was further informed that the petitioner has not approached the first respondent either in person or deputed any person in this regard and therefore the ANERT is unable to issue LPC of the petitioner, in the absence of receipts and vouchers or clearing the liability amount. A true copy of the said letter dated 3.3.2008 is produced herewith and marked as Annexure R3(d). The Chief Secretary, on 19.3.2008, forwarded Annexure R3(d) letter of Director, ANERT to the petitioner and requested to forward a report in the matter within a week respectively. A true copy of the letter dated 19.3.2008 sent by the Chief Secretary to the petitioner is produced herewith and marked as Annexure R3(e). Till this date, the petitioner has not submitted any report in this regard.” 7. The petitioner filed a reply affidavit dated 16th November 2008 wherein he stated that no representation was WPC No.25381/2006 7 submitted before the Chief Secretary since the petitioner was under the bonafide belief that it was not necessary. As regards the letters referred to in the statement filed by the Chief Secretary, the petitioner stated in the reply that “due to some unfortunate and incomprehensible reasons, the petitioner has not received those letters and hence, he could not reply to them”. It is also stated that those letters might have been “misplaced in the petitioner's erstwhile office in Pathanamthitta or in transit or for some reasons not brought to the personal attention of the petitioner by his erstwhile office”. 8. From the facts narrated above, it is clear that the attitude of the petitioner was not helpful in resolving the controversy. In spite of various orders passed by this Court and in spite of the letters sent by the Chief Secretary, the petitioner did not respond. The explanation offered by the petitioner in his reply affidavit is far from satisfactory. Normally, in this scenario, the petitioner cannot claim any discretionary relief and he cannot as of right invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, he having not complied with the directions issued by this Court as per the interim orders WPC No.25381/2006 8 referred to above. But, the fact remains that the petitioner was not able to draw his salary after July 2006 because of the non-issue of the Last Pay Certificate by the first respondent. It is submitted by the learned counsel for the petitioner that the petitioner cannot pull on further and he is deprived of the salary to which he is legitimately entitled to. In spite of the unhelpful attitude taken by the petitioner in the course of the proceedings in the Writ Petition, I am of the view that the petitioner should not be penalised for the same and he should not be denied the reliefs to which otherwise he would be entitled to. I am of the view that though the petitioner has not properly reciprocated to the indulgence shown by this Court, the Court cannot be expected to take the same attitude and on that ground deny the reliefs claimed by the petitioner. Therefore, by way of extreme indulgence, I am inclined to consider the case of the petitioner on the merits. 9. As stated earlier, the first respondent ANERT contends that the petitioner was not justified in drawing certain amounts. According to the first respondent, the said amount would constitute a liability so far as the petitioner is concerned. WPC No.25381/2006 9 Without discharging the liability, the first respondent would not be justified in issuing the Last Pay Certificate, submits the learned counsel for the first respondent. The question relating to the missing file is also a matter to be considered. As directed by this Court in the order dated 24th May 2007, a consideration of the dispute involved in the case by the Chief Secretary would not only be expedient but, also absolutely necessary in view of the disputed questions of fact involved in the Writ Petition. In this context, it is apposite to refer to the contentions raised by the first respondent in the counter affidavit. It is contended that when self-drawing officers are deputed to autonomous institutions like ANERT and their payment of salary and allowances are not from the Treasury, they will cease to be self-drawing officers. All the officers including the Director receive their pay and allowances from the Finance & Accounts Section after acknowledging receipts in the Acquittance Register. It is contended that the petitioner has not claimed his last pay for the service in ANERT and therefore, the first respondent was not in a position to issue the Last Pay Certificate. In this context, Ext.R1(b) intimation was given to WPC No.25381/2006 10 the Accountant General as well. It is also stated that the petitioner had withdrawn an amount of Rs.1,34,894/- from the Bank account of ANERT by presenting three cheques. It is stated that there is no file/order/proceedings authorising the petitioner to withdraw the said amounts. According to the first respondent, it is not known for what purpose the petitioner had drawn the amounts and for what purpose, the amounts were utilised. The drawal of Rs.1,34,894/- was unauthorised. Therefore, appropriation of an amount withdrawn by him could not be made. As he received the amounts and utilised the same, petitioner was liable to clear the same. The case put forward by the petitioner that the amounts relate to the salary and emoluments due to him is denied in the counter affidavit. Various averments have also been made in the counter affidavit with respect to the missing of the files relating to Smt. Sailaja, the Confidential Assistant to the former Director. The first respondent contended in the counter affidavit that the petitioner is not entitled to the reliefs prayed for. 10. The first respondent has filed an additional counter affidavit dated 2nd November 2006 in which various contentions WPC No.25381/2006 11 have been raised. Since the disputed questions of fact are not being decided in this Writ Petition, I do not think it is necessary to refer to the contentions taken in the additional counter affidavit. The learned counsel for the first respondent submitted that the petitioner had withdrawn the amounts a few days before the end of the period of deputation of the petitioner in the first respondent and this would indicate the lack of bonafides on his part. 11. In answer to these submissions, the learned counsel for the petitioner pointed out that Ext.P9 series receipts would justify the action on the part of the petitioner. After having heard the learned counsel for the petitioner, the first respondent and also the learned Government Pleader, I am of the view that the Writ Petition can be disposed of in the following manner: (i) The first respondent shall issue the Last Pay Certificate relating to the petitioner within a period of two weeks from the date of receipt of a copy of this judgment. (ii) The petitioner shall file an undertaking before the first respondent within a period of two weeks from WPC No.25381/2006 12 today that he will remit a sum of Rs.1,50,000/- to the first respondent within a period of two weeks of the date of receipt of the arrears of salary as indicated below. The petitioner shall produce certified copy of the judgment before the first respondent along with the undertaking. (iii) On receipt of the Last Pay Certificate, 75% of the arrears of salary shall be disbursed to the petitioner. On receipt of the amount, the petitioner shall deposit a sum of Rs.1,50,000/- with the first respondent within a period of two weeks. (iv) 25% of the arrears of salary shall be withheld by the Accountant General till the matter is finalised in the manner mentioned herein below. (v) The disputed questions of fact as revealed in the Writ Petition, the counter affidavit, additional counter affidavit and the reply affidavit filed by the petitioner shall be enquired into either by the Chief Secretary or an officer not below the rank of Additional Chief Secretary as deputed by the Chief Secretary. The WPC No.25381/2006 13 petitioner as well as the first respondent shall appear without fail before the Chief Secretary or the Additional Chief Secretary, as the case may be, on the date on which the hearing is fixed. Except for unavoidable circumstances, no adjournment shall be granted by the Chief Secretary or the Additional Chief Secretary, as the case may be. (vi) After hearing the parties, the Secretary or the Additional Chief Secretary, as the case may, be shall consider the questions involved and arrive at a finding in respect of the areas in controversy between the parties. (vii) Disbursement of 25% of the arrears of salary, as withheld by the Accountant General in the manner indicated above, shall be made only in accordance with the order to be passed by the Chief Secretary or the Additional Chief Secretary, after making the enquiry as mentioned above. On finalisation of the enquiry and on complying with the order passed by the Chief Secretary or the Additional Chief Secretary, WPC No.25381/2006 14 as the case may be, the petitioner would be entitled to the balance, if any, out of the 25% of arrears withheld. The petitioner also would be entitled to get any amounts as found by the Chief Secretary or the Additional Chief Secretary, as the case may be, from the first respondent. In case any amounts are found due from the first respondent to the petitioner, the first respondent shall disburse the same without delay after the order passed by the Chief Secretary/Additional Chief Secretary. It is made clear that withholding of the arrears of the salary is to ensure a proper and timely enquiry before the Chief Secretary/Additional Chief Secretary and for due compliance of the orders be passed by him. (viii). The learned counsel appearing for the petitioner as well as the learned counsel appearing for the first respondent assured full and whole hearted co-operation by the parties in the matter of enquiry to be made by the Chief Secretary or the Additional Chief Secretary, as the case may be and for due WPC No.25381/2006 15 compliance of the orders to be passed by him, subject to the other remedies open to the parties. (ix). The petitioner shall produce a certified copy of the judgment and copy of the Writ Petition, counter affidavit, additional counter affidavit and reply affidavit before the Chief Secretary/Additional Chief Secretary without delay. The Writ Petition is disposed of as above. No order as to costs. K.T.SANKARAN, JUDGE csl