IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 21953 of 2005(L) ------------------------------------- PETITIONER: ------------------- T.A. AUGUSTHY, FORESTOR THOTTUNKAL HOUSE, RAMAPURAM BAZAR P.O., PALAI, KOTTAYAM DISTRICT. BY ADV. SRI.K.G.PAVITHRAN RESPONDENTS: ------------------------ 1. THE DIVISIONAL FOREST OFFICER, KOTHAMANGALAM. 2. THE DISTRICT TREASURY OFFICER, PALAI. GOVERNMENT PLEADER SRI.SANDESH RAJA FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21953/2005 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE GRATUITY PAYMENT ORDER NO.P-10/AH/G-43132109/239 DT. 17.5.2001. EXT.P2:- COPY OF THE LETTER NO.E1.2486/98 DT. 25.5.02 ISSUED BY THE IST RESPONDENT. EXT.P3:- COPY OF THE CERTIFICATE ISSUED BY THE SIT RESPONDENT DT. 25.5.02. EXT.P4:- COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE IST RESPONDENT DT. 25.6.05. EXT.P5:- COPY OF THE LETTER DT. 12.12.2001 SENT BY THE RANGE OFFICER, THODUPUZHA. RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE LETTER NO.T., 1681/95 DT. 18.5.99. OF THE FOREST RANGE OFFICER, THODUPUZHA. /TRUE COPY/ P.S. TO JUDGE tss P.N.Ravindran, J. ================ W.P(C).No.21953 of 2005 ================= Dated this the 22nd day of July, 2008. JUDGMENT The petitioner is a retired Forester. He retired from service on 31.5.1999. By Ext.P1 order dated 17.5.2001, the sum of Rs.1,06,722/- was sanctioned to him as D.C.R.G. The grievance voiced by the petitioner in this Writ Petition is that though he is receiving pension, the gratuity fixed in Ext.P1 has not so far been released in view of Ext.P3 liability certificate dated 25.5.2002. The petitioner has in this Writ Petition prayed for the following reliefs: "i) call for the records relating to Ext.P1 to P4 and peruse the same; ii) issue a writ of certiorari or any other appropriate writ, direction or order quashing Exhibits P2 and P3 as arbitrary, illegal and unsustainable; iii) issue a writ of mandamus directing the 1st respondent to issue a fresh non-liability certificate to the 2nd respondent so as to enable the 2nd respondent to pay the amount of gratuity to the petitioner; iv) issue a writ of mandamus to the 2nd respondent to make payment to the petitioner as per Exhibit P1 within a time specified by this Hon'ble Court;" WP(C) 21953/05 -: 2 :- 2. The learned counsel for the petitioner submitted that out of 6 items mentioned in Ext.P3, recovery of the amount covered by items 1 to 5 has already been effected from the arrear bills. The learned counsel also brought to my notice that the respondents do not dispute the said fact and that in paragraph 4 of the counter affidavit, the respondents admit that the sum of Rs.8,730/-, which is the aggregate of the amounts covered by items 1 to 5 in Ext.P3 has been recovered from his arrear bills. The only dispute is regarding the liability fixed against item 6 in Ext.P3. The learned counsel for the petitioner submitted that no notice was issued to the petitioner and he was not heard before the liability described in item 6 of Ext.P3 was fixed. The learned counsel alternatively contended that as the liability is stated to be "about 6,00,000/-", it is a case where the liability has not been fixed at all. The very wordings in Ext.P3 would indicate that the liability has not been finally fixed, it is contended. 3. I have heard Sri.K.G.Pavithran, the learned counsel appearing for the petitioner and Sri.K.Sandesh Raja, the learned Government Pleader appearing for the respondents. The respondents do not deny or dispute the petitioner's contention that notice was not issued to him before the liability covered by item 6 of Ext.P3 was fixed. In my opinion, from the very wordings of Ext.P3, it is evident that the liability WP(C) 21953/05 -: 3 :- described in item 6 of Ext.P3 has not been fixed finally. The learned counsel for the petitioner would contend with reference to item 6 of Ext.P3 that as there was no fixation of liability in terms of the provisions contained in Rule 3 of Part III of the Kerala Service Rules and within the time limit of three years from 31.5.1999, the said claim is not tenable. The learned Government Pleader would contend that Ext.P3 is only a proposal to fix the liability and that it is open to the Government to fix the liability after putting the petitioner on notice. As per Note 2 to Rule 3 of Part III of the Kerala Service Rules, the liability fixed against an employee or a pensioner can be recovered from the D.C.R.G. payable to him after giving the employee or pensioner concerned, a reasonable opportunity to explain. Note 3 to Rule 3 of Chapter III of the Kerala Service Rules states that the liability should be quantified within a period of three years after retirement. 4. In paragraph 3 of the counter affidavit it is stated as follows: "While working as Forester in Arakulam Section of Thodupuzha Range, the petitioner was entrusted with the supervision of extraction and delivery of 7475 numbers of various species of trees from Pathippilly NRF coupe to Government timber depots. The work was awarded to the contractor Sri. T.K.Sundaresan. The period of contract was from 23.11.1995 to 16.3.1997. Since the work was not completed in time by the contractor the WP(C) 21953/05 -: 4 :- quantity of timber left undelivered by the Contractor was taken to Government custody by the petitioner himself and his subordinates on expiry of the contract period on 16.3.1997. The timber thus taken to Government custody was in the charge of the petitioner and he was duty bound to ensure the proper protection and management of the same. It was in the full charge of the petitioner till his retirement on 31.5.1999. He was duty bound to hand over charge of the materials to his successor on his retirement. Altogether 1209 numbers of hardwood logs of 642.628M3 and 237 nos. of rosewood logs of 135.188M3 were in the charge of the petitioner for transportation to depots. During the period the petitioner transported a portion of the materials to the depot, leaving the balance quantity at site. All the main passes were issued in favour of the petitioner for transportation to depots. But the petitioner did not maintain proper accounts of the transactions. He has not handed over the copies of the Form VI passes of transportation of materials from coupe to Depots, covered in the main passes. As such the species wise details of timber transported to depots and that available at site could not be identified. On his retirement from service the petitioner handed over charge of the section to Sri.P.K.Bhaskaran Kunji, Forester on 31.5.1999. In the charge list prepared for the purpose, the petitioner properly accounted all materials in his charge except the materials pertaining to NRF coupe, Pathippally. As per WP(C) 21953/05 -: 5 :- Sl.No.164 in the charge list the petitioner noted as "Pathippally NRF coupe sambadhicha charjukal". It was his committed duty to hand over the list of timber left in the coupe to his successor duly showing the species and measurements of each log in the charge list and to hand over the timber in the coupe to him. But the petitioner culpably suppressed the details. It was his duty to hand over the materials property to his successor and also to submit the records to the Forest Range Officer, Thodupuzha. In the absence of such records, detailed verification was conducted in the field and ultimately found that 452 Hardwood logs of 485M3 and 6 rosewood logs of 2.365M3 were missing from the coupe. the species wise details of the said hardwood logs could not be ascertained as the petitioner did not submit copies of the subsidiary passes. Hence the value of the timber is approximately calculated and found that timber worth Rs.6 lakhs is missing and hence his liability was shown as Rs.6 lakhs. All efforts are being made to settle the liability in the coupe based on records. For the purpose, the copies of form VI passes issued by the petitioner for the transport of timber from coupe to depot are required which has not purposefully handed over to anybody by the petitioner. As per letter No.T1.1681/95 dt. 18.5.1999, the petitioner was given a notice by Range Officer, Thodupuzha, a true copy of which is produced herewith and marked as Exhibit-R1(a), directing him to submit the details of timber in the coupe. The notice was WP(C) 21953/05 -: 6 :- acknowledged by the petitioner on 20.5.1999. It was also specifically stated that he alone would be held responsible for the liabilities that would be ascertained later in the event of not submitting the details. The petitioner has not submitted any report showing the details regarding the availability of the timber in the coupe. Moreover, he did not even hand over the details of any timber available in Pathippally NRF coupe to his successor. Evidently the improper handing over of charge was done by the petitioner willfully to evade from his responsibilities. The estimated loss sustained to Government by way of missing of the timber in the charge of the petitioner was Rs.6,00,000/-. The lost timber was in the full charge of the petitioner and hence he is legally bound to compensate the loss sustained to Government. As such a liability report was sent to the Sub Treasury Officer, Palai, requesting to withheld the entire Death-Cum-Retirement Gratuity amount of Rs.1,06,722/- as per Ext.P3 liability report, duly intimating the petitioner." (emphasis supplied) 5. On a reading of the above averments, it is evident that the liability referred to in item 6 of Ext.P3 has not been finally fixed. The counter affidavit was sworn to on 6.1.2006. In view of the fact that the liability is yet to be finally fixed, I do not deem it fit and proper to consider the question whether fixation of liability as per item 6 of Ext.P3 is sustainable or not at this stage. Though Ext.P3 was issued WP(C) 21953/05 -: 7 :- on 25.5.2002, the petitioner submitted Ext.P4 representation objecting to the proposal in Ext.P3 only on 25.6.2005. This Writ Petition was thereafter filed on 22.7.2005 challenging Ext.P3 which was issued on 25.5.2002. Having regard to the facts of the case, I dispose of the Writ Petition with a direction to the first respondent to consider Ext.P4 representation submitted by the petitioner and pass final orders thereon within one month from the date of receipt of a copy of this judgment. Needless to say, it will be open to the petitioner to raise all the contentions available to him including the plea that the liability cannot be fixed after the expiry of a period of three years from the date on which he retired from service. If the petitioner is aggrieved by the final determination made by the first respondent, it will be open to him to challenge the same in other appropriate proceedings. All his contentions are left open. The Writ Petition is disposed of as above. No costs. P.N.Ravindran, Judge. ess 27/7