IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 3RD MARCH 2009 / 12TH PHALGUNA 1930 WP(C).No. 35329 of 2005(E) -------------------------------------- PETITIONER(S): ----------------------- SAHADEVAN, S/O.RAGHAVAN ACHARI, CHARUVILA PUTHEN VEEDU, KUZHIYAM, CHANDANATHOPPU, KOLLAM. RETIRD EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT DIVISION (PWD), POONKUNNAM. BY ADV. MR.C.RAJENDRAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, P.W.D. ADMINISTRATION, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. 4. THE TREASURY OFFICER, PENSION PAYMENT TREASURY, KOLLAM. R1 TO R4 BY GOVERNMENT PLEADER MR.V.TEK CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 35329/2005-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SAID PROCEDINGS OF THE CHIEF ENGINER, IRRIGATION AND ADMINSTRATION, THIRUVNANTHAPURAM. EXT.P2: COPY OF THE SAID JUDGMENT DATED 19/12/1996 IN O.P. NO. 19032/96 OF THIS HONOURABLE COURT. EXT.P3: COPY OF THE SAID REPRESENTATION 11/09/2003. EXT.P4: COPY OF THE SAID REPRESENTATION 11/09/2003. EXT.P5: COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS. EXT.P6: COPY OF THE REPLY ALONG WITH THE FORWARDING LETTER. EXT.P7: COPY OF THE STATEMENT OF FACTS. EXT.P8: COPY OF THE SHOW CAUSE NOTICE. EXT.P9: COPY OF THE REPLY TO THE SHOW CAUSE NOTICE. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 35329 OF 2005 ......................................................................... Dated this the 3rd March, 2009 J U D G M E N T The prayer in the Writ Petition is for a direction against respondent Nos.2 and 3 to issue Non-Liability Certificate to the fourth respondent so as to enable the petitioner to receive the DCRG and for consequential direction to disburse the DCRG which is stated as kept in abeyance, the petitioner having retired from the service of the second respondent as early as on 31.10.2002. 2. With regard to the factual position, it is stated that the petitioner while serving as an Assistant Engineer, was proceeded against by the department along with some other officers, in connection with the irregularities/misconduct noted. When the DCRG payable in respect of one Chandrasekharan Nair (Superintending Engineer, retired) was not disbursed to him, it was subjected to challenge before this court by filing O.P.No. 19032 of 1996. Subsequently, on appreciation of the relevant facts and circumstances, the second respondent, as per Ext. P1 order dated 02.04.1997 (which was passed in furtherance to the W.P.(C) No. 35329 OF 2005 2 direction given by this court in O.P.NO. 19032 of 1996) exonerated all the concerned persons including the petitioner from all the charges levelled against them. In the case of the petitioner, pursuant to his retirement from service w.e.f. 31.10.2002, even though he was sanctioned the monthly pension and commutation benefits, the DCRG payable to him was not disbursed due to non-issuance of the NLC by the second respondent, which made the petitioner to file Ext. P3 and P4 representations before the second respondent. Since it did not yield any positive response, the petitioner has approached this court by filing the present Writ Petition for the redressal of his grievances. 3. Much after filing the above Writ Petition, the second respondent filed a counter affidavit seeking to justify the inordinate delay in issuing the NLC and also as to the retention of the DCRG, stating that Ext. P1 order of exoneration was issued by the second respondent without any regard to the earlier Government Order, G.O. (Rt.) 326/97/Irrgn. dated 14.03.1997 directing the second respondent to recover the W.P.(C) No. 35329 OF 2005 3 specified extent of 'liability' from the DCRG payable to one Thankappan Nair, Executive Engineer, who was also stated as a delinquent officer, though it is not revealed from the proceedings as to whether the said Thankappan Nair was one among the persons proceeded against by the department along with the petitioner and others who were subsequently exonerated as per Ext. P1 order. 4. In this context, it is relevant to note that, though this Court had directed the respondents to file counter affidavit explaining the correct factual position, it was not properly complied with, which made this court to pass a positive order on 04.01.2008 directing personal appearance of the concerned official (second respondent ) if he failed to file the counter affidavit on or before 01.02.2008. It is alleged by the petitioner that the second respondent, because of the adverse circumstances resulted and apprehending consequential proceedings against him, wanted to justify the action, which led to the office letter No.Vig. 7/58676/2002 dated 04.01.2008 whereby the secretary to Water Resource Department was W.P.(C) No. 35329 OF 2005 4 requested to “finalise the case” so as to enable issuance of NLC to the petitioner, as contended in paragraph No. 5 of the counter affidavit. The admitted facts and figures make it explicitly clear that the proceedings initiated against the petitioner and others were dropped by the second respondent as per Ext. P1 order. In spite of this, some amount was quantified as the alleged loss sustained by the department on some presumptions and assumptions, that too without any notice to the petitioner and the same was directed to be realised, vide letter dated 04.01.2008 (letter referred to in paragraph 5 of the counter affidavit). It was pursuant to this, that Ext. P8 dated 12.02.2008 was issued asking the petitioner to show cause as to why appropriation of amount from the DCRG payable to him shall not be effected invoking the power under Notes 2 and 3 to Rule 3 Part III K.S.R., which was replied by the petitioner as per Ext. P9. In any view of the matter, the fact remains that the liability of the petitioner, if any, was not finalised and fixed within the time schedule as prescribed under Note 3 to Rule 3 of Part III K.S.R. W.P.(C) No. 35329 OF 2005 5 5. Obviously in similar circumstances, Ext.P2 judgment was passed by this court in a case filed by similarly situated person, specifically observing that no liability could have been fixed by the Government beyond the prescribed time as provided under the relevant rules. In the case of the petitioner herein also, admittedly he retired from the service on 31.10.2002 and the liability has been sought to be fixed and realized years after the permissible period contemplated under Note 3 to Rule 3 of Part III K.S.R. The legal position as to the sustainability of the action pursued by the respondents stands answered against them, as per the ruling given in Aravindaksha Panicker vs. Accountant General [2007 (4) K.L.T. 1031]. This being the position, it is very much evident that there is absolutely no rhyme or reason in not issuing the NLC by the second respondent and retention of DCRG contrary to the mandate of the ruling cited above, is arbitrary and illegal . 5. In the above circumstances, the second respondent is directed to issue the necessary NLC in respect of the petitioner forthwith and the amount of DCRG payable to the petitioner W.P.(C) No. 35329 OF 2005 6 shall be released to him without any further delay. Proceedings in this regard shall be finalised by the concerned respondents as expeditiously as possible and at any rate, within three months from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the judgment before the second respondent so as to enable him to take further steps in the matter. This however will be without prejudice to the right of the Department to approach the competent civil court for fixation and realization of the liability in view of the right declared and reserved by this court vide judgment rendered in Aravindaksha Panicker vs. Accountant General (cited supra). The Writ Petition is allowed as above. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk