IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 16184 of 2007(B) -------------------------- PETITIONER(S): --------------- K.VASUDEVAN NAIR, BLOCK DEVELOPMENT OFFICER (RETIRED), KRISHNAVILASAM, THAZHATHUVADAKKU P.O., (VIA) ENATH, PIN: 691526. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------- 1. THE COMMISSIONER, RURAL DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A & E) KERALA, THIRUVANANTHAPURAM. 3. THE ASSISTANT DEVELOPMENT COMMISSIONER, PATHANAMTHITTA. 4. THE BLOCK DEVELOPMENT OFFICER, PARAKKOD. GOVERNMENT PLEADER SRI. P. NANDAKUMAR FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 16184/07 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF ORDER DATED 10.10.2005 OF THE 1ST RESPONDENT. EXT.P2:- TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 31.1.2006 EXT.P3:- TRUE COPY OF LETTER DT. 10.3.2006 OF THE 4TH RESPONDENT TO BDOs, MUKKATHALA, MULLASSERY AND PANDALAM. EXT.P4:- TRUE COPY OF ORDER DT.12.12.2006 OF THE 2ND RESPONDENT. EXT.P5:- TRUE COPY OF LETTER DT.26.3.2007 FROM 4TH RESPONDENT TO 1ST RESPONDENT EXT.P6:- TRUE COPY OF LETTER DT. 20.3.07 FROM THE PETITIONER TO 1ST RESPONDENT EXT.P7:- TRUE COPY OF LETTER DT. 20.3.2007 FROM THE PETITIONER EXT.P8:- TRUE COPY OF INTIMATION LETTER TO 4TH RESPONDENT FROM BLOCK DEVELOPMENT OFFICER, PANDALAM. DT. 22.3.2007. EXT.P9:- TRUE COPY OF NON-LIABILITY CERTIFICATE FROM BLOCK DEVELOPMENT OFFICER, PANDALAM. EXT.P10:- TRUE COPY OF LETTER DT.26.3.2007 FROM PETITIONER TO 4TH RESPONDENT. EXT.P11:- TRUE COPY OF BOND DT.26.3.2007 EXT.P12:- TRUE COPY OF N.L.C. FROM MULLASSERY B.D.O. EXT.P13:- TRUE COPY OF N.L.C. FROM VILAKUDY GRAMA PANCHAYAT DT.3.4.2007 EXT.P14:- TRUE COPY OF LETTER DT.5.4.2007 FROM PETITIONER TO 1ST RESPONDENT EXT.P15:- TRUE COPY OF LETTER DT. 11.4.2007 FROM 1ST RESPONDENT TO THE PETITIONER EXT.P16:- TRUE COPY OF LETTER DT. 11.4.2007 FROM 1ST RESPONDENT TO 4TH RESPONDENT. EXT.P17:- TRUE COPY OF LETTER DT.12.4.07 FROM PETITIONER TO 1ST RESPONDENT EXT.P18:- TRUE COPY OF LETTER DT.28.4.07 FROM 1ST RESPONDENT TO PETITIONER EXT.P19:- TRUE COPY OF LETTER DT.10.5.2007 FROM PETITIONER TO ASST.DEVELOPMENT COMMISSIONER, PATHANAMTHITTA. EXT.P20:- TRUE COPY OF LETTER DT. 10.5.07 ADDRESSED TO 1ST RESPONDENT BY PETITIONER. RESPONDENT'S EXHIBITS:- NIL /TRUE COPY/ P.A. TO JUDGE Okb/- P.N.RAVINDRAN, J. ====================================== W.P.(C)No. 16184 of 2007 ====================================== Dated this the 5th day of December 2008 JUDGMENT Heard Miss.Nisha Bose, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondents. 2. The petitioner retired from service on 30.4.2005, while he was serving as Block Development Officer. This writ petition is filed aggrieved by the non-payment of Death cum Retirement Gratuity. The respondents resist the claim for payment of Death Cum Retirement Gratuity on the ground that a vigilance enquiry is pending against the petitioner and therefore in view of Rule 3A of Part III of the KSR, the Death cum Retirement Gratuity cannot be disbursed. They also contend that the petitioner's successor in office has pointed out many irregularities, which have not yet been audited and for that reason also the Death cum Retirement Gratuity cannot now be disbursed. 3. It is now conceded at the Bar that the petitioner is not arrayed as an accused in the vigilance case. Therefore that cannot be held out as a reason for withholding payment of the Death cum Retirement Gratuity to the petitioner. As regards audit of the accounts, it is stated that the audit is not yet complete, though the petitioner's successor has pointed out that he is liable to refund various sums of money to the State Government. W.P.(C)No.16184/2007 2 4. The petitioner retired from service on 30.4.2005. More than three years have passed thereafter. In view of Note-3 to Rule-3 of Part III KSR, recovery from Gratuity/Pension will have to be made after notice to the pensioner within a period of three years from the date of retirement. In the instant case, no such proceedings have been initiated against the petitioner and no order fixing liability has been passed within the aforesaid period of three years. 5. A Division Bench of this Court has in Pappachan v State of Kerala [2008(4) KLT 676], held that though the recovery from pension may not be possible after the expiry of three years from the date of retirement, recovery is possible by other means. It was held that the liability does not stand obliterated on the expiry of the period of three years from the date of retirement and that by invoking the provisions of the Public Accountant's Act, the liability of a pensioner can be recovered within the period prescribed for instituting a civil suit. 6. In the light of the binding decision of the Division Bench in Pappachan v State of Kerala (supra), the petitioner cannot be heard to contend that recovery of liability is not now possible. However, the fact remains that no proceeding was initiated against him under Rule-3 of Part III KSR within the period of three years and therefore, as noticed by the Division Bench in Pappachan v State W.P.(C)No.16184/2007 3 of Kerala (supra), Death cum Retirement Gratuity cannot be with held. In these circumstances, I dispose of the Writ Petition with a direction to the respondents to disburse the Death cum Retirement Gratuity sanctioned to the petitioner, within one month from the date of receipt of a copy of this judgment. It will be open to the respondents to recover the amounts, if any, due from the petitioner, in accordance with law. It is clarified that it will be open to the petitioner to resist such recovery by raising all available defences. The petitioner's contentions on the merits are left open. P.N.RAVINDRAN, JUDGE css/