IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 16136 of 2009(J) -------------------------- PETITIONER --------------------- M.K.SHAMSUDEEN, S/O. M.M.KUNJUMON, AGED 58 YEARS, HEADMASTER (RETIRED), ALEEMUL ISLAM H.S.SCHOOL, PADOOR, THRISSUR. (RESIDING AT MATHILAKATHU VEETTIL, VENKIDANGU, CHAVAKKAD, THRISSUR DISTRICT). BY ADVS. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE DEPUTY DIRECTOR OF EDUCATION, AYYANTHOLE, THRISSUR. 4. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR DISTRICT. R3 BY GOVERNMENT PLEADERSMT.M.T.SHEEBA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 16136 of 2009(J) ------------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS ---------------------------------- EXT.P1. COPY OF GRATUITY PAYMENT ORDER EXT.P2. COPY OF THE CIRCULAR NO.31/8 5/FIN. OF THE GOVERNMENT. EXT.P3. COPY OF THE CIRCULAR NO.5472/C3/2001/G.EDN. OF THE GOVERNMENT. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.16136 of 2009-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of October, 2011. JUDGMENT The petitioner seeks for a direction to release the admissible amount of DCRG sanctioned to him. Mainly, it is contended that no proceedings have been taken to fix the alleged liability within a period of three years, in tune with Note 3 to Rule 3 of Part III K.S.R. It is further pointed out that the fixation of liability is without notice to the petitioner and without seeking any explanation. The petitioner retired from service as Headmaster on 31.5.2006. By Ext.P1 order dated 18.9.2008 the gratuity was sanctioned. It is pointed out that in spite of various circulars and instructions issued by the Government in the matter, no attempt was made to issue notice and quantify the liability, if any, within the period of three years. Exts.P2 and P3 circulars have been relied upon in this context. Reliance is also placed on Ruling No.5 of Rule 116 of Part III K.S.R. 2. The counter affidavit filed by the third respondent shows the following: There is a total liability of Rs.79,376/- as evident from the liability certificate dated 29.6.2009 produced as Ext.R3(e). Evidently, Ext.R3(e) is beyond three years of the date of retirement of the petitioner. wpc 16136/2009 2 Note 3 to Rule 3 Part III K.S.R. provides that the liabilities 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 liability can be fixed and recovered only with notice to the party concerned, as evident from Note 2 and the decisions of this Court. 3. Herein, what is averred in para 5 of the counter affidavit is that notices were sent to the petitioner as evidenced by Exts.R3(a) and R3(b) and therefore the same is sufficient. Learned counsel for the petitioner submitted that Exts.R3(a) and R3(b) are not notices proposing fixation of liability and they are only intimations forwarding the audit objections. It is evident from a reading of Exts.R3(a) and R3(b) that reference is made to the audit objections and the subject is “clearance of objections”. It cannot be a substitute for the notices required to be issued under the relevant rules with regard to the fixation of liability. Evidently, after the said notices were issued and before the liability certificate was finalised as per Ext.R3(e), no statutory notices have been issued. Therefore, the proceedings issued as per Ext.R3(e) cannot survive as it is in violation of the rules and the principles of natural justice. 4. As the three year period is already over, no such proceedings wpc 16136/2009 3 calling for explanation could be directed to be issued now. In that view of the matter, the petitioner is entitled to succeed in this writ petition. What is sought for by the petitioner is to disburse the DCRG and to restrain the respondents from adjusting the alleged liability towards the DCRG sanctioned. Therefore, the scope of the writ petition is only with regard to the limited question whether the alleged liability could be recovered from the DCRG, which cannot be done in the light of the legal position discussed above. 5. But the State can institute a suit or issue proceedings under the Kerala Public Accountants Act, if it is legally permissible as against the petitioner and the said remedy is left open. The writ petition is therefore allowed. There will be a direction to the respondents to release the DCRG sanctioned to the petitioner as per Ext.P1 without recovering any liability fixed as per Ext.R3(e), within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/