IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 28672 of 2008(L) -------------------------- PETITIONER: ------------------ P.MOIDU, 58 YEARS PARAMBATH PEEDIKAYIL HOUSE PATHIRIPATTA PO., KAKKATTIL VIA., KOZHIKODE DISTRICT, (RTD. AEO, KUNNUMMEL, KOZHIKODE.) BY ADV. MR. SUNIL V.MOHAMMED RESPONDENTS: --------------------- 1. DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 2. DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 3. ASST. EDUCATIONAL OFFICER, MANANTHAVADY 4. ACCOUNTANT GENERAL A&E, KERALA, THIRUVANANTHAPURAM. 5. G.THANKACHAN, S/O.DAVID GEORGE POOKKOTTIL HOUSE, MALAVAYAL, THAVARIMALA PO., SULTHAN BATHERY, WYANAD . 6. MANAGER, KERALA STATE FINANCIAL ENTERPRISES, KALPETTA BRANCH, WYANAD. 7. MANAGER, CANARA BANK, PADINJARATHARA WYANAD. R1 TO R4 BY MR. P.NANDAKUMAR, SENIOR GOVERNMENT PLEADER R5 BY MR. K.JAJU BABU MR. T.R.SADEESAN MR. A.HAROON RASHEED R6 BY MR. K.S.HARIHARAPUTHRAN, SC, K.S.F.E. LTD R7 BY MR. M.R.GOPALAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28672 of 2008(L) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DATED 05.10.2007 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF THE JUDGMENT DATED 04.11.2004 IN W.P.(C).No.25884/2000. P3: COPY OF THE G.O.(Rt).No.4481/05/GE DATED 07.09.2005. P4: COPY OF THE REPRESENTATION DATED 16.10.2005 PREFERRED BY THE 5TH RESPONDENT. P5: COPY OF THE JUDGMENT DATED 26.03.2007 IN W.P.(C).No.18227/2006. P6: COPY OF THE INTIMATION DATED 18.05.2007 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: R5(a): COPY OF THE JUDGMENT DATED 25.07.2007 IN W.A.No.1802/2007 OF THIS HON'BLE COURT. R5(b): COPY OF G.O.(Rt).No.3055/2009/G.Edn. DATED 22.07.2009 ISSUED BY THE GOVERNMENT. // TRUE COPY // P.A. TO JUDGE kkms/ V.GIRI, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 28672 OF 2008 = = = = = = = = = = = = = == = = = = = = = Dated this the 15th day of October 2009. JUDGMENT Petitioner retired from service as an Assistant Educational Officer on 30.06.2005. While in service, pursuant to the requisition of 6th and 7th respondents from whom the 5th respondent had availed a loan, he had directed recovery of an amount of Rs.40,000/- from the Death-Cum Retirement Gratuity payable to the 5th respondent and transferred the same to the account of respondents 6 and 7. He had done so, in his official capacity of Assistant Educational Officer, Mananthavady and acting on the written requisition of respondents 6 and 7. The 5th respondent, who had retired as an L.P.School Headmaster had apparently availed a loan from respondents 6 and 7 and defaulted repayment. 2. The 5th respondent, approached this Court in W.P.(C). No. 25884/2000 challenging the aforementioned recovery from the DCRG. He contended that he had not given any consent to effect recovery from his DCRG or terminal benefits to satisfy the requisition made by respondents 6 and 7. W.P.(C). No. 28672 OF 2008 2 3. His contention was accepted and this Court found that recovery effected from the DCRG of the 5th respondent herein namely the petitioner therein was illegal. There was a direction to refund that amount. 4. Orders in tune with Ext.P2 was passed by the Government as per Ext.P3 dated 07.09.2005. It may be noted at this juncture that in spite of Ext.P3 having been passed on 07.09.2005, it seems that the said amount of Rs.40,000/- recovered from the DCRG of the 5th respondent herein has still not been paid, as contended by the Counsel for the 5th respondent. 5. 5th respondent filed Ext.P4 claiming the benefits of Ext.P2 judgment and sought for a refund. Apparently he also indicated in Ext.P4 that since recovery from the DCRG was unauthorizedly effected by the petitioner herein, such refund be made by the petitioner. 6. 5th respondent thereafter approached this Court in W.P.(C).No. 18227/2006 seeking a direction to disburse to him the amounts as per Ext.P3 Government Order with interest. The petitioner as also respondents 6 and 7 were parties in Ext.P5 judgment. The official respondents were directed to pay the W.P.(C). No. 28672 OF 2008 3 petitioner therein the sum of Rs.40,000/- within a fixed time. Taking note of Ext.P5 judgment, the Assistant Educational Officer, Mananthavady had by Ext.P6 dated 18.05.2007, addressed the petitioner that in view of Ext.P5 judgment, it is upto the petitioner to take steps to see that the amount is refunded to the 5th respondent herein. This is for the reason that the petitioner was the Assistant Educational Officer, Mananthavady when recovery was effected from the DCRG of the 5th respondent and that he had authorized to remit Rs.40,000/- to the Kerala State Financial Enterprises Limited and Canara Bank. 7. Thereafter Ext.P1 was issued by the Director of Public Instructions requiring the petitioner to pay the amount of Rs.40,000/- for facilitating refund of the said amount to the 5th respondent herein. 8. Counter affidavit has been filed by the Government and also by the 5th respondent. 9. I heard learned Counsel for the petitioner Mr. Sunil V. Mohammed, learned Senior Government Pleader Mr. P. Nanda Kumar, Mr. K.Jaju Babu, for 5th respondent and Mr. M.R.Gopalakrishnan Nair for the 7th respondent. W.P.(C). No. 28672 OF 2008 4 10. It is clear from the facts mentioned above that this Court had finally declared that the recovery of an amount of Rs.40,000/- from the DCRG of the 5th respondent is illegal. The declaration made in Ext.P2 was again reiterated in Ext.P5. Respondents 6 and 7 are parties to Ext.P5 judgment. An appeal by the Government against Ext.P5 was also dismissed as per Ext.R5(a) judgment. Respondents 6 and 7 are parties to Ext.R5 (a) judgment as well. Respondents 6 and 7 had not challenged Ext.P5 judgment. 11. The direction to the Government to refund the amount of Rs.40,000/- recovered from the DCRG of the 5th respondent is only in consequence of Exts.P2 and P5 judgments. But it is not easy to appreciate the logic behind the move to make the petitioner liable for the said amount. After all, he happened to the Assistant Educational Officer, Mananthavady at the time when recovery was effected. He responded to a requisition made by the Canara Bank and Kerala State Financial Enterprises. Even assuming that he must have been more circumspect in responding to a requisition made by the above mentioned institutions and should have verified whether the loanee had given a written consent for effecting recovery from W.P.(C). No. 28672 OF 2008 5 his DCRG to satisfy any requisition made by the above mentioned institutions, he still cannot be personally liable for a direction to refund the amount due to the 5th respondent. 12. It is up to the Government to take appropriate steps against respondents 6 and 7. Respondents 6 and 7 may take steps against the 5th respondent if permissible and if so advised. But there is no reason to drag the petitioner into the controversy especially after his retirement. In the result, the writ petition is allowed. Ext.P1 is quashed. Balance amount if any due to the petitioner by way of DCRG shall be disbursed within 2 months from the date of receipt of a copy of this judgment. (V.GIRI) JUDGE kkms/