IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 OP.No. 21841 of 2002(A) ------------------------------- PETITIONER(S): ------------------- M.ABOOBACKER, T.C. NO.14/2194, CONNEMARA LANE, PALAYAM, THIRUVANANTHAPURAM BY ADV. MR.T.C.GOVINDA SWAMY MR.MARTIN G.THOTTAN RESPONDENT(S): --------------- 1. THE DIRECTOR OF PRINTING, GOVERNMENT CENTRAL PRESS, TRIVANDRUM. 2. THE SECRETARY TO GOVERNMENT, FINANCE (PENSION CELL) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 4. THE KERALA LOK AYUKTA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR. GOVERNMENT PLEADER MS. SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 21841 of 2002 ORDER ON C.M.P.NO.37441 OF 2002 IN O.P.NO.21841 OF 2002 CLOSED. 27.3.2009 SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF THE LAWYER NOTICE DATE 17.2.1992 ADDRESSED TO THE FIRST AND SECOND RESPONDENTS. EXT.P2: COPY OF POSTAL RECEIPT BEARING NOS. 1996 AND 1997 DATED 8.02.92. EXT.P3: COPY OF ORDER BEARING NO.454/88/E2 DATED 16-01-1995 ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT. EXT.P4: COPY OF LETTER NO.995/91/E12 DATED 22.04.1995 ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT. EXT.P5: COPY OF LETTER DTD 19.05.1995 SUBMITTED BY THE PETTIIONER TO THE 1ST RESPONDENT. EXT.P6: COPY OF ORDER BEARING NO.D.DIS. 454/88/E2 DTD 24.08.1995 ISSUED BY THE FIRST RESPONDENT. EXT.P7: COPY OF LETTER BEARING NO.PR 1/PEN./A/575/CC/91-92/ 520 DTD 21.09.1995 FROM THE INDIA AUDIT AND ACCOUNTS DEPARTMENT ADDRESSED TO THE FIRST RESPONDENT. EXT.P8: COPY OF REPRESENTATION DATED 2.12.95 ADDRESSED TO THE FIRST RESPONDENT. EXT.P9: COPY OF THE LAWYER NOTICE DATED 3.2.1996 ADDRESSED TO THE FIRST RESPONDENT. EXT.P10: COPY OF THE COMMUNICATION FROM THE ACCOUNTS GENERAL OFFICE DATED 15.3.96. EXT.P11: COPY OF LETTER BEARING NO.I/PEN.A/575/EE/91- 92/REV./214/95-96/1252 DATED 15.03.1996 FROM THE OFFICE OF THE ACCOUNTANT GENERAL. EXT.P12: COPY OF THE RESPRESENTATION SUBMITTED BY THE PETITIONER DATED 26-03-1996 ADDRESSED TO THE 2ND RESPONDENT. EXT.P13: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 23.03.2000 ADDRESSED TO THE 2NDRESPONDENT. OP.No. 21841 of 2002 EXT.P14: COPY OF THE LETTER NO.30132/95/E2 DATED 17-04-2000 ISSUED BY THE FIRST RESPONDENT. EXT.P15: COPY OF THE COMMUNICATION BEARING NO.30132/95/E2 DATED 19-08-2000 ISSUED BY THE FIRST RESPONDENT. EXT.P16: COPY OF THE COMMUNICATION BEARING NO.30132/95/E2 DATED 19-08-2000 ISSUED BY THE FIRST RESPONDENT. EXT.P17; COPY OF THE COMMUNICATION BEARING NO.P- 11/CASE/45/AT/350 DATED 14-06-2001 ISSUED BY THE SENIOR ACCOUNTS OFFICER. EXT.P18: COPY OF THE COMPLAINT NO.480/2001 FILED BEFORE THE KERALA LOK AYUKTA, DATED 16.5.2001. EXT.P19: COPY OF THE ORDER OF THE KERALA LOK AYUKTA DTD 13.12.2001. EXT.P20: COPY OF THE ORDER OF THE KERALA LOK AYUKTA DATED 30.01.2002. EXT.P21: COPY OF THE NOTICE NO.9995/91/E7 DATED 11.4.02 ISSUED BY THE FIRST RESPONDENT. EXT.P22: COPY OF THE NTOICE NO.9995/91/E7 DATED 11.4.02 ISSUED BY THE FIRST RESPONDENT. EXT.P23: COPY OF THE REPLY DATED 17-04-2002 TO THE FIRST RESPONDENT. EXT.P24: COPY OF THE ORDER BEARING NO.9995/91/E7 DATED 4-05-2002 ISSUED BY THE FIRST RESPONDENT. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.NO.21841 OF 2002 ---------------------------------------- Dated this the 27th day of March, 2009 JUDGMENT The petitioner joined service in the Printing Department of the Government of Kerala on 16.8.1962 and retired as Junior Superintendent on 30.4.1991 after 29 years of service. The petitioner's grievance in this original petition is regarding retirement benefits. His DCRG has not been disbursed. An amount of Rs.43,049.06/- is sought to be adjusted against the DCRG in respect of which Exts.P4, P5 and P16 orders have been passed. The petitioner approached the Lok Ayukta. Ultimately, the Lok Ayukta directed that some amounts allegedly sought to be recovered from him cannot be recovered and by Exts.P19 and P20 orders, it was held that the petitioner's DCRG shall be released to him after deducting an amount of Rs.26,598/- comprised of Rs.19,914/- being the amount due to Co-operative Society towards re-payment of loan amount and an amount of Rs.6,684.08/-, being the amount misappropriated by the petitioner in respect of which disciplinary proceedings were O.P.No.21841/02 2 initiated against him, in which he was found guilty. The petitioner is challenging Exts.P19 and P20 orders also. The petitioner has also another grievance that the petitioner was suspended for the period from 27.2.1975 to 15.8.1979 , which suspension period was not regularised after the completion of the disciplinary proceedings, but was ultimately done only on 24.8.1995 after his retirement, by Ext.P6 order, whereby the said period was treated as eligible leave. The petitioner submits that after treating the period as eligible leave, his increments should have been appropriately released and his salary and retirement benefits re-fixed taking into account the increments for those periods also. The petitioner, therefore, seeks the following reliefs: “a) Issue a writ of certiorari or any other appropriate writ order or direction calling for the records leading to the issue of Exhibits P4, P5 and P16 and quash the same; b) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to the issue Exhibits P19 and P20 and quash the same to the extent it is prejudicial to the petitioner. c) Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to pay the petitioners' regular pension with effect from 01-05-1991 and to pay the petitioner's retirement gratuity, with 18% interest to O.P.No.21841/02 3 be calculated with effect from 01-05.1991. d) Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to refix the petitioner's pay by duly drawing the increments for the period of service between 27.2.1975 to 15-08-1979 with progression of further increments and consequential arrears of pay till the date of his retirement and direct further to recalculate his pension and other retirement benefits on that basis. e) Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to pay the petitioner the consequential arrears of refixation of pay and allowance as prayed for above, with interest @ 12% per annum to be calculated with effect from 01-05-1991. (f) Issue a writ of mandamus commanding the respondents to pay the applicant's salary and allowance for the month of April 1991, with interest at the rate of 18% per annum to be calculated from 1.5.1991”. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. As far as the recoveries from the DCRG are concerned, the petitioner himself would submit that he has no objection in recovering an amount of Rs.9,305/- which includes the amount of Rs.6,684.08/- sought to be recovered from him allegedly as amounts misappropriated. According to the petitioner, all other amounts sought to be recovered from him cannot now be recovered, in view of Note 3 of Rule of Part II of Kerala Service Rules, which mandates O.P.No.21841/02 4 that liabilities have to be fixed within three years from the date of retirement with notice to the petitioner, which had not been done. 3. No counter affidavit has been filed. But the learned Government Pleader sought to justify the recoveries mainly based on the orders of the Kerala Lok Ayukta. According to the learned Government Pleader in so far as the Lok Ayukta permitted recovery of the same, the Lok Ayukta must have found that the same was after fixation of liability in accordance with the Note 3 of Rule 3 of Part III of KSR. I cannot countenance such a contention from the learned Government pleader, in so far as Exts.P19 and P20 orders of the Lok Ayukta themselves are under challenge before me on the specific ground that the Lok Ayukta could not have permitted such deduction, since such deduction was without fixing the liability within three years as stipulated in Note 3 of Rule 3 of Part III KSR. The learned Government Pleader could not, with any reliable material, prove before me that any liability had been fixed on the petitioner with notice to him within three years of his retirement from service which could be recovered from his DCRG. All the documents produced before me by the O.P.No.21841/02 5 petitioner as having been received by him in respect of the liability in question are all dated subsequent to three years of the petitioner's retirement. The Government Pleader could not bring to my attention even from the files of the respondents any proceedings for fixation of liability within three years of his date of retirement. That being so, in view of Note 3 of Rule 3 of Part III of KSR such recovery cannot be made by deduction from his DCRG. 4. In the above circumstances, I quash Exts.P4, P15 and P16, P19 and P20 to the extent of directing recovery of amounts other than Rs.9305/-, which the petitioner admits that he is liable to pay. The petitioner submits that, that amount constitutes the amount misappropriated by him and Rs.1,346/- towards court attachment and Rs.1,275/- towards balance amount due to a Co-operative Society, out of Rs.11,275/- after deducting the Rs.10,000/- he has paid. Therefore, the amount of DCRG as having been found due to the petitioner as per Exts.P10 and P11 shall be disbursed to the petitioner after deducting the said amount of Rs.9,305/- within two months from the date of receipt of a copy of this judgment. O.P.No.21841/02 6 5. As far as the release of increments for the period during which the petitioner was suspended from service, which period has been subsequently regularised by Ext.P6, the learned Government Pleader submits that after taking into account the penalty of barring of three increments with cumulative effect imposed on the petitioner the balance increments have been released and his salary and pensionary benefits have been re-computed by order No.9995/91 dated 20.12.1995 in this regard. The 1st respondent shall issue a communication to the petitioner detailing as to how the same has been revised, in respect of which if the petitioner has still any grievance he may take it up wit the 1st respondent or seek other legal remedies available to him. The petitioner complains that the salary for April 1991 has not been released to him. The 1st respondent shall look into that complaint also and if the same has not been released to him, the same shall also be released . If it has been released, the details of the same shall be shown in the communication to be issued to the petitioner as directed above. His grievance, if any, in respect of the same can also be agitated appropriately. The petitioner presses for interest on the DCRG due to him. I am not inclined O.P.No.21841/02 7 to consider that claim in this original petition. If the petitioner is so advised, he may seek his remedies in a suit filed for the same. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.21841/02 8