IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 OP.No. 21087 of 1999(I) ---------------------------------- PETITIONER: ------------------- K.N. BALAKRISHNAN NAIR, S/O. NEELAKANTAN PILLAI, KALPADICKAL HOUSE, KEEZHILLOM.P.O., (VIA), PERUMBAVOOR. BY ADV. SRI.BABU KARUKAPADATH. RESPONDENTS: ------------------------ 1. THE TEXT BOOK OFFICER, PADMAVILAS, FORT, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. DISTRICT COLLECTOR, CIVIL LINES, COLLECTORATE, KAKKANAD, ERNAKULAM. BY GOVERNMENT PLEADER SMT. N. SUDHA DEVI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 21087/1999-I: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE OBJECTION DTD. 01/01/1996 OF THE PETITIONER SUBMITTED BEFORE THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY. EXT.P.2: COPY OF THE FORWARDING LETTER NO. C2/591/97 DTD. 13/01/97 OF THE R.1. EXT.P.3: COPY OF THE GENERAL REMARKS AND CONCLUSION MADE BY THE R.1. EXT.P.4: COPY OF THE NOTICE NO. C2-591/97/TBO DTD. 03/07/99 OF THE R.1. ADDRESSED TO THE DIRECTOR OF PUBLIC INSTRUCTION (3RD RESPONDENT). EXT.P.5: COPY OF THE REQUISITION NO. 1. 14841/96 DTD. 15/07/99 OF THE R.2. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.21087 of 1999-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2008. JUDGMENT The petitioner is a pensioner who retired from service as Store Keeper on 31.10.1994. He has worked as Store Keeper in the District Text Book Depot, Kanjirappally from 14.5.1990 to 31.10.1994. Subsequent to his retirement, an amount of Rs.19,680/- was sanctioned as D.C.R.G. along with a monthly pension of Rs.650/-. 2. Alleging that the petitioner had caused loss to the Government, he was served with a show cause notice dated 20.12.1995 to which he submitted a reply denying his liability. Thereafter, by Ext.P1, he submitted a further reply also to the District Educational Officer referring to the audit report forwarded to him. Ext.P2 is the audit report showing a liability of Rs.2,41,304.40. Ext.P4 shows that finally an amount of Rs.2,17,472/- was fixed as the liability against the petitioner. The petitioner had expressed his willingness to adjust his D.C.R.G. for the amount found as liability and he further sought permission to pay the balance amount of liability after adjusting the D.C.R.G., in monthly instalments of Rs.1,000/- each. The challenge in this writ petition is against Ext.P5, whereby the Deputy OP 21087/1999 -2- Director of Education sent a communication to the District Collector, Ernakulam showing a liability of Rs.2,21,624.40 to be recovered through revenue recovery proceedings. The petitioner challenges Exts.P4 and P5 on various grounds. 3. The respondents have filed counter affidavits separately. In the counter affidavit filed by the first respondent, it is admitted in paragraph 4 that the final liability is Rs.2,17,472.40. The petitioner had remitted Rs.8,542/- and the DCRG, i.e. Rs.19,650/- has also been adjusted against his liability as requested by him. According to the first respondent, the net liability outstanding is Rs.2,13,082.40. Learned counsel for the petitioner submits that the above calculation is not correct, as according to him, the balance amount will be Rs.1,89,280.40 after adjusting the amount paid by him as well as adjustment of the DCRG. The said contention is found to be correct. 4. The further question raised is whether the respondents are correct in proceeding under the Revenue Recovery Act against the petitioner for realising the amount. Learned counsel for the petitioner relied upon Ruling No.6 under Rule 116 of Part III K.S.R. to contend for the position that if action under Rule 3 Part III K.S.R. is not possible, the pensioner can be proceeded only through a civil court for recovering the loss caused to the Government. In the counter affidavit, the respondents have taken the stand OP 21087/1999 -3- that Ext.P5 is correct in law, in that the same has been issued under the relevant provisions of the Public Accountants Act. The said contention, per se is not correct, as the Public Accountants Act provides for separate procedure for realising the amount of liability. There has to be appropriate proceedings after issuance of notice to the party also. No such proceedings have been produced along with the counter affidavit, to show that the respondents have initiated action under the Public Accountants Act. In the light of the above legal position, Ext.P5 as far as it directs initiation of revenue recovery proceedings, is bad in law. 5. The other contention raised by the petitioner is that the liability has been fixed beyond the period of one year provided under Ruling No.5 of Rule 116 of Part III K.S.R. Ruling No.5 provides that in all cases where the liabilities could not be assessed and fixed before retirement of the Government employees, efforts should be made to assess and adjust the recoverable dues within a period of one year from the date of retirement of the Government employee concerned. Relying upon the above provision, it is argued that the liability as against the petitioner has been fixed beyond the period of one year and therefore there is no statutory support for the same and hence the fixation of liability is not in accordance with law. I am afraid, the said contention is not correct, in view of the amendment made to Ruling No.3 to Rule 3 Part III K.S.R. Note 2 to Rule 3 says that the OP 21087/1999 -4- liability of an employee should be quantified either before or after retirement and intimated to him before retirement, if possible or after retirement within a period of three years on becoming pensioner. The above amendment was made by Govt. Order dated 31.3.1986. It is a case where consequential amendments are yet to be made in Rule 116. Therefore, nothing turns upon the said contention and the fixation of liability as against the petitioner is clearly within the permitted period as provided under Note 2 to Rule 3 Part III K.S.R. Further, the petitioner had agreed to wipe off the liability and his only request was for payment by instalments at Rs.1,000/- per month. In that view of the matter also, the said contention cannot be accepted. In the light of the above findings, Ext.P5 as far as it directs revenue recovery proceedings against the petitioner, cannot be sustained. But this will not prevent the respondents from proceeding against the petitioner in accordance with law, after following the procedure provided under the relevant rules. (T.R. Ramachandran Nair, Judge.) kav/ OP 21087/1999 -5- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.21087 of 1999-I - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 25th January, 2008.