IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 30546 of 2004(J) -------------------------- PETITIONER(S): --------------- M.MATHUKUTTY, RETD. ASSISTANT ENGINEER, ELECTRICITY BOARD, MEKKATTUKULAM HOUSE, CHALISSERY, PALGHAT. BY ADV. SMT.VANAJA MADHAVAN RESPONDENT(S): --------------- 1. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. 2. THE CHIEF ENGINEER, HRM, KERALA STATE ELECTRICITY BOARD, TRIVANDRUM. 3. CHIEF INTERNAL AUDITOR, K.S.E.B., TRIVANDRUM. 4. EXECUTIVE ENGINEER, K.S.E.B., ELECTRICAL DIVISION. ADV. SRI.C.K.KARUNAKARAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.9.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 30546/2004. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE JUDGMENT IN W.P.(C). No. 3460/2004 OF THIS COURT. P2. COPY OF THE N.L.C. DTD.5.11.2002. P3. COPY OF THE SHOW CAUSE NOTICE DTD.31.3.2004. P4. COPY OF THE REPLY DTD.28.5.2004. P5. COPY OF THE DISPOSAL STATEMENT OF ITEMS. P6. COPY OF THE DISPOSAL STATEMENT RELATING TO THRITHALA 15.2.2002. P7. COPY OF THE ORDER OF R4 DTD.10.1.2002. P8. COPY OF THE ORDER DTD.31.8.2004 BY R1. P9. COPY OF THE ORDER OF R1 DTD.31.8.2004. P10. COPY OF THE COMMUNICATION DTD.13.1.2003 SENT BY THE DY. CHIEF ENGINEER, ELECTRICAL CIRLC, PALAKKAD. P11. COPY OF THE ORDER DTD.16.9.2002 BY THE KSEB. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 30546 of 2004 ================== Dated this the 30th day of September, 2010 J U D G M E N T The petitioner retired from the service of the Kerala State Electricity Board on 31.7.2002. Since there was delay in payment of his pensionary benefits, the petitioner approached this Court. By Ext.P1 judgment in W.P.(C).No.3460 of 2004, this Court held thus: “Petitioner is a retired employee of the Kerala State Electricity Board and had filed this writ petition complaining that there is considerable delay in settlement of D.C.R.G. Amounts that are due to him. 2. However, in the counter affidavit filed, it is pointed out that there were vigilance proceedings against the petitioner and as a matter of fact, the Board has sustained a loss of Rs.28,424.57 because of him. 3. Though the petitioner submits that notice about this much liability had not been given to him, nevertheless the learned counsel for the petitioner submits that for the time being, at least the amount that is payable deducting that much amount in any case, is to be paid. 4. Sri.N.D.Premachandran, standing counsel for the Board submits that deducting that much amount of Rs.28,424.57, the balance D.C.R.G. will be paid to the petitioner within a maximum period of one month from today. The payment should be arranged expeditiously. In the matter of liabilities that has been presently pointed out in the counter affidavit, since the petitioner does not admit the above, it should be ensured that there is a proper adjudication with notice to him. 5. Therefore this writ petition is closed simultaneously giving an opportunity to the petitioner to submit a representation to the concerned respondent for appraising him of the details of the claim and his right to make objections thereof. If it is ultimately found that no liabilities are payable from the hands of the petitioner, follow up exercises are to be completed within a period of six months.” 2. The petitioner was also given Ext.P2 certificate showing that there are no liabilities to the Board or Government outstanding against the petitioner, who has retired on 31.7.2002. But strangely, by w.p.c.30546/04 2 Ext.P8, a liability of Rs.27,862.82 was fastened on the petitioner, which was withheld from his DCRG. The same has been confirmed by Ext.P9 order of the Chairman of the KSEB. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs; “a) a writ of certiorari, order or direction, directing respondents 1 & 2 to call for the records leading to Exhibits P8 and P9 and quash the same, and release entire D.C.R.G. To the petitioner. b) a writ of certiorari or any other appropriate order to call for the records relating to Exhibits P8 and P9 and quash the same; c) a writ of prohibition directing the respondents 1 and 2 not to deduct any amount as liability from the petitioner. d) to declare that petitioner is not liable to pay any amount.” 3. No counter affidavit has been filed by the respondents. The learned Standing Counsel for the KSEB would support the impugned orders on the ground that it was pursuant to a vigilance enquiry that the liability has been fastened on the petitioner and, before fixing that liability, the petitioner was given a notice and he had submitted his explanation. 4. I have considered the rival contentions in detail. 5. As is evident form Ext.P2 non-liability certificate, there was no liability on the petitioner as contemplated under Rule 3 of Part III of the Kerala Service Rules as on the date of his retirement. Ext.P8 order reads thus; “A vigilance enquiry conducted based on a source information containing allegation against the staff of Electrical Circle, Palakkad of w.p.c.30546/04 3 their involvement with scrap contractors and rampant corruptions in the disposal of scrap materials disclosed that there was irregularity in the disposal of scrap items during early 2002. The Board has sustained a total loss of Rs.28424.57 due to the irregular scrap disposal of Electrical Sections, Chalissery, Thrithala and Koppam . Sri.M.Mathukutty, Assistant Engineer (Rtd.) while holding the post of Assistant Engineer, Electrical Section, Chalissery have fraudulently prepared the survey report and disposed scrap items which were not survey reported, with the connivance of certain other members of staff. The survey report of scrap at Electrical Major Section, Thrithala, were also prepared by Sri.Mathukutty Assistant Engineer. During the time of disposal of scrap materials at Electrical Major Section, Thrithala, though Mathukutty was then Assistant Engineer at Electrical Section, Chalisserry he unauthorisedly come to Electrical Major Section, Thrithala and managed disposal of scrap items. The total loss of revenue due to this irregular disposal of scrap materials at Electrical Section, Chalissery and Electrical Section, Thrithala comes to Rs. 27,862/82. A notice was issued to Sri.Mathukutty, Assistant Engineer (Rtd.) vide paper read as 3rd above to show cause as to why an amount of Rs. 27,862/82 being the loss sustained to the Board on account of scrap disposal at Electrical Section, Chalissery and Thrithala should not be recovered from his pensionary claims invoking Rule III, Part III, K.S.R. Sri.Mathukutty, Assistant Engineer (Rtd.) has submitted his explanation vide paper read as 4th above. The undersigned has examined the explanation with connected documents and found the same not satisfactory. Hence the undersigned hereby confirms the punishment of recovery of Rs. 27,862/- being the loss sustained to the Board from the pensionary benefits of Sri.M.Mathukutty, Assistant Engineer (Rtd.) invoking Rule III, Part III, K.S.R.” From a reading of the same, it is abundantly clear that the liability sought to be fastened on the petitioner arises on the basis of an alleged misconduct stated to have been committed by the petitioner. The same is not an mere liability, but alleged loss caused to the Board, on account of an alleged misconduct stated to have been misconduct, the responsibility for which is yet to be fastened on the petitioner by a process of conducting enquiry and adducing evidence. Such a w.p.c.30546/04 4 responsibility could not have been fixed simply by issuing a show cause notice and obtaining an explanation. In respect of the same, if at all, liability could have been fastened on the petitioner only after conducting a disciplinary enquiry and finding the petitioner guilty of the misconduct, which allegedly caused a loss of Rs.27,862/- in question. It could not have been fastened simply by issuing a notice to him and obtaining his explanation. Evidently such an exercise has not been undertaken by the respondents. Without the same, the petitioner could not have been fastened with a liability as contained in Exts.P8 and P9. 6. Further, the petitioner retired on 31.7.2002 and Ext.P2 non-liability certificate was also issued to him on 5.11.2002. The so- called liability was fixed only on 31.8.2004, which is not in accordance with Note 3 of Part III of the Kerala Service Rules. In this connection, it is pertinent to note that it is long after issuing Ext.P2 non-liability certificate and suffering Ext.P1 judgment that the respondents have come up with this notice of liability. Therefore, the allegation of the petitioner that the same was an act of vengeance for having filed the writ petition cannot be brushed aside lightly. The above view is supported by a Division Bench decision of this Cort in Sugathan v. Cochin Devaswom Board [2005 (1) KLT 46], paragraph 7 of which, reads thus: “7. We may point out so far as this case is concerned, the liability is yet to be fixed. Therefore Note 2 to R.3 would not apply. So w.p.c.30546/04 5 also R.3(b). The provision that applies to this case is R.116(5), which says that where liabilities could not be assessed and fixed before retirement, efforts should be made to assess and adjust the recoverable dues within a period of one year from the date of retirement. On failure, the amount withheld from the death-cum- retirement gratuity will be released. Liability can also be fixed against pensioner and such liability can be recovered from the death-cum- retirement gratuity payable to him without departmental/judicial proceeding but only after giving the employee (pensioner) concerned a reasonable opportunity to explain. Therefore, for withholding or withdrawing death-cum-retirement gratuity no departmental proceeding as contemplated under R.3(b) is necessary. Liability can also be fixed against the petitioner and amount can be recovered from the death-cum retirement gratuity only subject to the condition that the person concerned should be given a reasonable opportunity to explain. The liability against the pensioner can also be quantified after retirement, but not beyond three years after becoming a pensioner. If the liability could not be assessed and fixed before retirement, it should be assessed and adjusted from the recoverable dues within a period of one year from the date of retirement. If the liability could not assessed and adjusted within one year, the death-cum-retirement gratuity has to be released. We may point out, so far as this case is concerned the employee retired from service on 31.1.2003. The liability could not be assessed and adjusted from the death-cum- retirement gratuity within one year from the date of retirement. Hence the petitioner is entitled to get the entire amount of death-cum- retirement gratuity. The provision also enables the Government to take disciplinary action against the employee who is responsible for the failure to assess and adjust the liability within the prescribed period of one year. On failure to comply with the provision of sub-r.(5) of R.116, statute enables the authority to take action against the pensioner under R.3 of Part III to make up the loss by withdrawing, upholding or effecting recoveries from the pension sanctioned. If action under R.3 is not possible within the limit prescribed in R.3 Part III or due to any other reason, the retired employee can be proceeded against in a Civil Court for the recovery of pecuniary loss caused to Government and in this case the Devaswom Board. Cochin Devaswom Board could not assess and adjust the liability towards the recoverable dues within one year from the date of retirement of the petitioner. Hence the Board is bound to release the balance amount. The balance amount due would be paid to the petitioner within a period of two weeks from the date of receipt of a copy of this judgment. The Board is however free to assess the liability and recover the same in accordance with law.” 7. Therefore, I am of opinion that the respondents could not have recovered the said amount from the petitioner's DCRG without finding the petitioner guilty of the misconduct, which allegedly caused loss to the Board and without filing a civil suit. Therefore, Exts.P8 and w.p.c.30546/04 6 P9 orders are quashed. The respondents are directed to pay to the petitioner the withheld amount of Rs.27,862.82 with 6% interest from the date of his retirement, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge