IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 26183 of 2005(P) ------------------------------------- PETITIONER(S): -------------------------- R.KRISHNAN, DIVISIONAL FOREST OFFICER (RTD), BRINDAVAN BANES COMPOUND, NANTHANCODE, THIRUVANNTHAPURAM 695 003. BY ADVS. SRI.B.RAGUNATHAN SRI.G.S.MOHANDAS SRI.V.V.MATHEW RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM 695 014. 3. THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM 695 014 4. THE CHIEF CONSERVATOR OF FORESTS (PROTECTION), THIRUVANANTHAPURAM 695 014. 5. THE CHIEF CONSERVATOR OF FORESTS (VIGILANCE), THIRUVANANTHAPURAM 695 014. R1 TO R5 BY GOVERNMENT PLEADER SRI.P.N.MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.26183/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER DTD. 28.8.1994 RECEIVED FROM4TH RESPONDENT. P2:- COPY OF THE LETTER DTD. 14.9.1994 TO THE 4TH RESPONDENT. P3:- COPY OF THE ORDER DTD. 5.1.1995 OF THE 4TH RESPONDENT. P4:- COPY OF THE NLC/LC FOR RS. 1,32,527/- (UNDATED) ISSUED BY THE 4TH RESPONDENT. P5:- COPY OF THE JUDGMENT DT.D 12.1.2005 IN OP NO.12779/1995. P6:- COPY OF THE REPRESENTATION DTD. 31.1.2005 ADDRESSED TO THE 2ND RESPONDENT. P7:- COPY OF THE REPRESENTATION DT.D 9.7.05 ADDRESSED TO THE 2ND RESPONDENT. P8:- COPY OF THE LETTER DTD. 26.7.2005 OF THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO. 26183 OF 2005 -------------------------------------------- Dated this the 31st day of August, 2010 JUDGMENT The petitioner is a retiree from the Forest Department. He retired from its service on 30.4.1993 while working as Divisional Forest Officer. This Writ Petition has been filed challenging Ext.P8 and also with a prayer to issue a writ of mandamus commanding respondents 1 and 2 to release the DCRG of Rs.57,688 with interest at the rate of 12% per annum from 1.7.1993. 2. As already noticed hereinbefore, on 30.4.1993, the petitioner retired from service as Divisional Forest Officer. Prior to his retirement, he has submitted letters dated 9.10.1992 requesting his superior officers to settle his liability, if any. After his retirement, the petitioner was served with Ext.P1 notice dated 28.8.1994. It carried a proposal to fix a liability to the tune of Rs.76315.97/- on the petitioner. In response to the same, he has submitted Ext.P2 representation. He has sought for clarification on item No.7 therein and also sought for further time to file his written statement. Without considering the said request and without affording him an opportunity of being heard that Ext.P3 order was passed by the fourth W.P.(C) NO.26183/2005 2 respondent fixing liability to the tune of Rs.1,32,527.46/- on the petitioner. Obviously, the said amount fixed as liability on the petitioner was very much higher than the proposed liability. Ext.P4 non-liability certificate was issued based on Ext.P3. Exts.P3 and P4 were challenged by the petitioner before this Court in O.P.No.12779/1995. As per Ext.P5 judgment this Court allowed the O.P with costs. Exts.P3 and P4 were quashed. The operative portion of the said judgment reads thus: “Ext.P6 is plainly perverse, for the reason that it does not consider the contentions and requests made by the petitioner in Ext.P5. There is total non-application of mind. The impugned order is violative of the principles of natural justice, for the reason that the petitioner has not been heard and also for the reason that the liabilities not proposed in Ext.P4 have been included in Ext.P6. For all the above reasons, the Original Petition is allowed with costs. Ext.P6 order and Ext.P7 non-liability certificate issued on the basis of Ext.P6, are quashed. The competent authority among the respondents will be free to take a fresh decision in the matter within four months from the date of production of a copy of this judgment. The petitioner may file an additional representation, pointing out all his contentions and objections and also the contention regarding bar of limitation under Rule 3, Part III, K.S.R. If the petitioner seeks further time for hearing or filing representation before the competent authority, then, to that extent, the four months' time limit fixed shall stand extended. If no liability is fixed within the above time limit, the petitioner shall be paid the entire D.C.R.G within one month thereafter.” W.P.(C) NO.26183/2005 3 3. The petitioner has forwarded Ext.P5 judgment to the second respondent as per Ext.P6. After the receipt of the same, no action was taken thereon by the second respondent. Therefore, the petitioner filed Ext.P7 representation before the second respondent. As per Ext.P5 judgment, this Court granted four months' time with liberty to the respondents to take fresh decision within four months from the date of production of a copy of the judgment. As per the said judgment, it was further directed for payment of the DCRG due to the petitioner in case of failure to fix such liability within the said stipulated time. For payment of DCRG in tune with the said judgment, one month time was granted as per Ext.P5. Ext.P7 was submitted after the expiry of the said stipulated period with a request to disburse the DCRG amount of Rs.57,668/- with 12% interest per annum with effect from 1.7.1993 and also to pay the cost award by this Court as per Ext.P5. Subsequently, Ext.P8 dated 26.7.2005 was issued by the third respondent. The recitals from Ext.P8 are worthy to be extracted in the context of the contentions raised by the petitioner. It is stated thereunder as follows: “Accordingly, concerned Divisional Forest Officers had been directed from this office to make available the records to you and also to furnish details regarding your appeal petition before Chief Conservator of W.P.(C) NO.26183/2005 4 Forests. But there was no compliance on your part in this regard.” It is further stated thereunder as follows: “Your contention that the proceedings order fixing up final liability at Rs.132527/- on 5.01.1995 is against the spirit of Note-3 Rule 3 Part-III of KSR is also not acceptable since the liability outstanding has been quantified and intimated to you within 3 years of you becoming pensioner. As also the liability had been intimated to you in time ever since it became due. The contention under Rule-3(b)(ii) is also not acceptable.” 4. It is challenging Ext.P8 order that this Writ Petition has been filed. This Writ Petition was admitted on 15.9.2005. No counter affidavit has been filed in this Writ Petition by any of the respondents. 5. I have heard the learned counsel for the petitioner and the learned Government Pleader. True that after the retirement of the petitioner on 30.4.1993, Exts.P3 and P4 were issued by the respondents. However, Exts.P3 and P4 were successfully challenged by the petitioner before this Court in O.P.No.12779/1995 and as per Ext.P5, this Court quashed Exts.P3 and P4. It is pertinent to note that O.P.No.12779/1995 was allowed with costs. After quashing Exts.P3 and P4 (Exts.P6 and P7 therein), this Court granted liberty to the respondents to take fresh decision in the matter within four months from the date of production of a copy of W.P.(C) NO.26183/2005 5 Ext.P5 judgment and the petitioner was given liberty to file an additional representation pointing out all his contentions and objections including the one based on the bar of limitation in the light of Rule 3, Part III of the Kerala Service Rules. It is also pertinent to note that this Court, as per Ext.P5, made it abundantly clear that in case the petitioner sought for further time for hearing or for filing representation before the competent authority, then, to that extent, the four months' time stipulated as per Ext.P5 would stand extended. Thereafter, a positive direction was issued as follows: “If no liability is fixed within the above time limit, the petitioner shall be paid the entire DCRG within one month thereafter”. 6. Availing the liberty granted as per Ext.P5, the petitioner has preferred Ext.P6 representation before the second respondent along with a copy of Ext.P5 judgment. He has raised various legal and factual contentions including the bar of limitation based on Rule 3 Part III KSR. Ext.P6 is dated 31.1.2005. Thereafter, the petitioner has submitted Ext.P7 representation dated 9.7.2005 requesting for disbursement of DCRG with interest at the rate of 12% per annum with effect from 1.7.1993 and also to pay the cost award by this Court as per Ext.P5. It is only on receipt of Ext.P7 representation that the third respondent issued the impugned order W.P.(C) NO.26183/2005 6 viz., Ext.P8 dated 26.7.2005. As already noticed hereinbefore, no counter affidavit has been filed in this Writ Petition. In Ext.P6 it is stated thus: “I am submitting herewith the certified copy of the judgment dated 12.1.2005 of the Hon’ble High Court of Kerala’’. Ext.P7 was submitted to the second respondent after the expiry of the period stipulated by this Court in Ext.P5 judgment. Ext.P8 did not contain anything which would suggest that the third respondent has passed the said order within the time stipulated by this Court as per Ext.P5. However, it is pertinent to note that in Ext.P8, Exts.P6 and P7 were referred to. It is thus obvious that the respondents did not dispute the factum of receipt of Ext.P6. In this context, it is pertinent to note that the petitioner has specifically averred in the Writ Petition that the second respondent has received Exts.P5 and P6 on 1.2.2005. Ext.P7 representation was submitted by the petitioner consequent to the failure on the part of the respondents to pay the DCRG even after the period stipulated by this Court. Ext.P8 was passed only after the receipt of Ext.P7, as is discernible from Ext.P8. A scanning of the said facts would undoubtedly show that Ext.P8 order has been passed by the third respondent after the time limit fixed by this Court W.P.(C) NO.26183/2005 7 in Ext.P5 judgment and in fact, a further period of one month time was granted only for the purpose of effecting payment of DCRG due to the petitioner. As per Ext.P8, the third respondent called for the concerned Divisional Forest Officers were directed to make available the records and also to furnish the details regarding the appeal petition. The statement therein “But there was no compliance on your part in this regard’’ in the circumstances, must, obviously cannot be against the petitioner. The petitioner had retired from service on 30.4.1993. Therefore, there was absolutely no reason or basis for attributing any latches or non-compliance on the part of the petitioner and therefore, it can only be taken as a ruse to escape the liability for the failure to strictly adhere to the directions in Ext.P5 judgment. As is obvious from Ext.P5, this Court granted liberty to the petitioner to raise question of bar of limitation as well, in case, he files a representation pursuant to Ext.P5 judgment. Obviously, the petitioner had raised such an objection as per Ext.P6 representation availing the liberty granted as per Ext.P5. The petitioner has taken up the specific contention based on the question of bar of limitation. He has retired from service on 30.4.1993 and therefore, going by the provisions under Rule 3 Part III KSR, quantification and intimation of the liabilities should have W.P.(C) NO.26183/2005 8 been made on or before 29.4.1996. That apart, it has been stated in Ext.P6 that all the events which led to the fixation of liability took place during the period from 1975 to 1990. Liability should have been fastened on the petitioner within the permissible period, in accordance with law. Admittedly, that was not done. The respondents cannot dispute the said fact in the light of Ext.P5 judgment. It is on account of the failure on the part of the respondents in fixing the liability within the permissible period in accordance with law ie., adhering to the principles of natural justice that this Court interfered with Exts.P3 and P4 and set them aside. Thus, taking into account the fact that liability has been fixed on the petitioner though not strictly in accordance with law that this Court granted liberty to the respondents to take fresh action but for that purpose a specific time limit has been stipulated under Ext.P5. Nothing is produced before this court which would suggest that within the said permitted time a fresh decision was taken. In fact, Ext.P8 would reveal that the said order was passed beyond the time limit fixed by this Court. That apart, a scanning of Ext.P8 would reveal that the same cannot be said to be a fixation of liability in accordance with law. It is nothing but a cryptic order. It is not discernible from Ext.P8 as to the reasons for fixing liability to the tune of W.P.(C) NO.26183/2005 9 Rs.1,32,527/- on the petitioner. In fact, a scanning of the same would reveal that the said figure was arrived at solely depending on Exts.P3 and P4 orders. The third respondent should have taken steps for fixation of liability on the petitioner independent of Exts.P3 and P4 within the time granted by this Court in Ext.P5. At any rate, in view of Ext.P5 judgment, no reliance should have been placed in Exts.P3 and P4 for the purpose of fixing liability on the petitioner. A careful consideration of Ext.P8 would reveal that what was done by the respondents is nothing but restoring the orders which were set aside by this Court without assigning any reason whatsoever. For all these reasons, I am of the view that Ext.P8 cannot be sustained at all. It was passed beyond the time limit prescribed in Rule 3 Part III of the Kerala Service Rules and that apart, beyond time specifically fixed as per Ext.P5. Ext.P8 is therefore, liable to be quashed. I do so. Consequently, taking note of the fact that a total period of five months was granted by this Court for disbursing DCRG due to the petitioner, I am of the view that the petitioner is entitled to get interest on the admitted DCRG with effect from 1.7.2005 as this Court granted liberty to the respondents to take fresh decision within four months from the date of receipt of a copy of the judgment. Now the petitioner has specifically contended that W.P.(C) NO.26183/2005 10 Exts.P5 and P6 were received by the second respondent on 1.2.2005. Therefore, a fresh decision should have been taken on or before 1.6.2005. The period of one month granted thereafter, was solely for the purpose of disbursing the DCRG due to the petitioner. That period was also expired on 30.6.2005. Therefore, the petitioner is entitled to get interest for the admitted DCRG ie., Rs.57,668/- with effect from 1.7.2005 till the date of actual payment. Now, the question is with respect to the rate of interest to which the petitioner is entitled. Considering the fact that the petitioner had retired from service as early as on 30.4.1993 and he was made to wait for getting his DCRG for more than 17 years, I am of the view that such a latches on the part of the competent authorities can only be styled as culpable delay. When such a culpable delay is again committed by the respondents despite Ext.P5, the petitioner is entitled to get interest . The petitioner was admitted DCRG to the tune of Rs.57,668/- in 1993. The respondents are directed to effect payment of DCRG to the petitioner with 7.5% interest with effect from 1.7.2005 till the date of disbursement. There will be a direction to the respondents to quantify the amount issued to the petitioner based on this judgment and to disburse the amount viz, the admitted DCRG and interest at the rate mentioned above within a W.P.(C) NO.26183/2005 11 period of two months from the date of receipt of the judgment. Considering the fact the petitioner has retired in the year 1993, it is made clear that no extension of time will be granted in this Writ Petition for compliance with the directions in this judgment. It will be open to the respondents to identify the officials who had committed the latches and to effect recovery of the amount to which they are made liable, by way of interest. The petitioner will be free to take appropriate steps for the purpose of recovering cost awarded to him in Ext.P5 judgment. This Writ Petition is disposed of, accordingly. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.26183/2005 12 C.T. RAVIKUMAR, J. JUDGMENT September, 2010 W.P.(C) NO.26183/2005 13