IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 2ND JANUARY 2009 / 12TH POUSHA 1930 WP(C).No. 7137 of 2004(Y) ---------------------------------------- PETITIONER(S): ------------------------ K.R.GOPALAKRISHNAN, RETIRED CORPORATION ENGINEER (SUPERINTENDING ENGINEER) CORPORATION OF KOCHI, RESIDING AT HOUSE NO.28/2610-GEET, RAVEENDRAN ROAD, KADAVANTHRA, KOCHI-682020. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.B.UNNIKRISHNA KAIMAL RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM. 3. THE SECRETARY, CORPORATION OF KOCHI, PARK AVENUE, ERNAKULAM. GOVERNMENT PLEADER SRI. P.NANDAKUMAR FOR R1,2 ADV. SRI.M.K.CHANDRA MOHANDAS FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON 2/01/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.7137/2004 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.5630/2002T DTD. 18/03/2002. EXT.P2: COPY OF THE ORDER NO.P.2-15263/2001 DTD. 15/04/2002 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT IN CCC.NO.70/04 BEFORE THIS HON'BLE COURT DTD.4/02/04. EXT.P4: COPY OF THE ORDER NO.P2-15263/01 DTD. 31/101/2004 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE LETTER NO.MOA 11-13295/95 DTD. 23/12/1997 AND STATEMENT. EXT.R3(B): COPY OF THE LETTER NO.M.O.A5/8722/2000 DTD. 27/11/2002 AND STATEMENT. /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ===================== W.P(C).No.7137 of 2004 ===================== Dated this the th day of December, 2008. JUDGMENT The petitioner retired from service on 31.5.2000 while he was serving as Superintending Engineer in the Corporation of Kochi, hereinafter referred to as the “Corporation” for short. When his terminal benefits were not sanctioned and disbursed, he filed O.P.No.5630 of 2002 in this Court. By Ext.P1 judgment delivered on 18.3.2002 this Court disposed of the said Writ Petition with a direction to the respondents therein to sanction and disburse the terminal benefits within two months from the date of receipt of a copy of the judgment. It is also observed that it will be open to the respondents to recover the liability, if any, due from the petitioner from the death cum retirement gratuity payable to him. There is a further clarification that if such recovery is effected, it will be open to the petitioner to work out his remedies against such recovery in other appropriate proceedings. 2. Pursuant to the directions issued by this Court in Ext.P1 judgment, the Director of Municipal Administration (Urban Development) issued Ext.P2 order dated 15.4.2002 sanctioning pension and commuted value thereof. Since the Secretary of the Corporation did not issue NLC/LC, the death cum retirement gratuity was not sanctioned. Pursuant to Ext.P2 order, pension and commuted value of pension were WP(C) 7137/04 -: 2 :- disbursed to the petitioner. When the death cum retirement gratuity was not sanctioned or disbursed, the petitioner filed Contempt of Court Case No.70 of 2004 contending that the respondents have not complied with the directions issued by this Court in Ext.P1 judgment. 3. The Director of Urban Affairs has filed an affidavit dated 4.2.2004 stating that the death cum retirement gratuity was not sanctioned due to non-availability of NLC/LC from the Corporation. It was also stated that as the Corporation was not a party to O.P.No.5630 of 2002, the Director of Urban Affairs had to send repeated letters to the Secretary of the Corporation, that finally on 9.1.2003, the Secretary of the Corporation noted at page No.25 of the pension book of the petitioner that an amount of Rs.1,19,9,388/- is outstanding as non- adjusted advance against the petitioner, that later on 28.1.2004, the Secretary of the Corporation has issued liability certificate noting the sum of Rs.18,73,126/- as the petitioner's liability, that based on the said liability certificate, orders were issued on 31.1.2004 sanctioning the death cum retirement gratuity, that as the liability reported by the Secretary of the Corporation exceeds the death cum retirement gratuity sanctioned to the petitioner, the petitioner is not entitled to any monetary benefit. Ext.P4 produced along with this Writ Petition is a copy of the order passed by the Director of Urban Affairs on 31.1.2004 sanctioning the sum of Rs.2,80,000/- as death cum retirement gratuity to the petitioner and directing that the said amount be adjusted against the WP(C) 7137/04 -: 3 :- liability of the petitioner. There is a further direction that steps be taken to recover the balance amount of Rs.15,93,126/- from the petitioner and to remit in the Corporation fund. C.C.C. No.70 of 2004 was thereupon closed by order passed on 19.2.2004 reserving liberty with the petitioner to challenge Ext.P4 in other appropriate proceedings. This Writ Petition was thereupon filed on 27.2.2004 challenging Ext.P4 and seeking a writ in the nature of mandamus commanding the second respondent to disburse the death cum retirement gratuity sanctioned to the petitioner with interest thereon from 1.6.2000 till date of payment. 4. the petitioner contends that the liability referred to in Ext.P4 was not fixed with notice to the petitioner or within three years of his retirement from service. It is contended that Ext.P4 offends the principles of natural justice and the provisions contained in Note 3 to Rule 3 of Part III of the Kerala Service Rules. The petitioner also contends that on the merits also, he cannot be held liable for the sum of Rs.18,73,126/- referred to in Ext.P4. He contends that he has not been informed of the audit objection or furnished with details of the advances which remain unadjusted. 5. The Secretary of the Corporation, the third respondent in the Writ Petition has filed a counter affidavit stating that the petitioner had received the sum of Rs.1,19,79,388/- as provisional advance for various projects during the periods from 1989 to 2000, that on a detailed scrutiny, it was found that a sum of Rs.1,01,06,262/- alone was WP(C) 7137/04 -: 4 :- accounted for and therefore the balance sum of Rs.18,73,126/- fixed as the petitioner's liability for the reason that the said amount had not been accounted for, the third respondent however conceded that the petitioner shall not put on notice or hear before the said amount fixed as his liability. It is also stated that steps will be taken to recover the balance amount due from the petitioner after adjusting the death cum retirement gratuity sanctioned to him towards liability. 6. The petitioner has filed a reply affidavit dated 25.8.2008 disputing his liability to pay the sum of Rs.18,73,126/- or any part thereof. He contends that advances were paid to him by cheques for payment towards purchase of vehicles/ chassis and bitumen required for road work, that cheques were converted into demand drafts in favour of the suppliers, that the advances which were paid towards demand drafts were adjusted in the final bills submitted by the suppliers that final bills were received by the accounts department and payments were made directly by the accounts department to the suppliers and that regularisation of the advances made has to be done by the accounts department and not by the petitioner. 7. After the petitioner filed his reply affidavit, the Secretary, Corporation filed I.A.No.11469 of 2008 producing along with it Exts.R3 (a) and R3(b) to prove that advance of Rs.1,19,79,385/- given to the petitioner has not been accounted for. The petitioner has filed a counter affidavit denying and disputing the averments in I.A.No.11469 of 2008 WP(C) 7137/04 -: 5 :- and also questioning the authenticity and genuineness of Exts.R3(a) and R3(b). 8. I have heard Sri.K.R.B. Kaimal, the learned counsel appearing for the petitioner, Sri.P.Nandakumar, the learned Government Pleader appearing for respondents 1 and 2 and Sri.Chandramohan Das, the learned standing counsel appearing for the third respondent. It is not in dispute that within a period of three years from the date on which the petitioner retired from service no order was passed fixing the petitioner's liability. It is also note in dispute that before the sum of Rs.18,73,126/- was fixed as the petitioner's liability, the petitioner was not put on notice or given an opportunity to state his case. The third respondent contends that the sum of Rs.17,78,520/- represents unaccounted advance given to the petitioner They now relied on the entries in Exts.R3(a) and R3(b). The respondents contend that the petitioner has not accounted for the advance given to him during the years 1989 - 2000. The writ petitioner disputes the authenticity and genuineness of Exts.R3(a) and R3(b). Accordingly the petitioner contends that though Ext.R3(a) letter is dated 23.12.1997, it refers to the advances given to the petitioner which have not been accounted for till 23.12.1997, the list appended to it refers to the advances made from 5.5.1999 to 25.5.2000. The learned Senior Advocate appearing for the petitioner submits that by no stretch of imagination can the statement relating to the period from 5.5.1999 to 25.5.2000 be annexed along with the letter dated 23.12.2007. He WP(C) 7137/04 -: 6 :- contends that therefore, the statement appended to Ext.R3(a) is a forgery and for that reason Ext.R3(a) also cannot be treated as valid notes fixing the liability. The petitioner further points out that the first statement appended to Ext.R3(b) relates to the advances given to him for the purchase of bitumen and that the said advances were paid over to the suppliers of vehicles and bitumen. The learned counsel further submitted that the second statement appended to Ext.R3(a) letter relates to the advances given to the petitioner during the period from 8.6.1993 to 22.7.1994 for travel, that after performing the journey, he had submitted the draft bill to regularise the advances, that in some cases, the T.A. bills exceeded the advances made, that it was the duty of the Corporation to formerly regularise the advance on the T.A. bills to be presented and that the petitioner cannot be held liable if the officers of the Corporation have failed to discharge their duties to settle such advances. The petitioner further points that the petitioner did not perform the journeys for which advances were drawn and that the stand taken by the respondents cannot be countenanced. The learned Senior Advocate further submits that the petitioner has not been served with a copy of Ext.R3(b) letter dated 27.11.2002. It is a letter sent by the Corporation to the Director of Municipal Administration. He further submits that copy of Ext.R3(b) is not marked to the petitioner and as such the statement appended to Ext.R3(b) letter is a consolidation of the statement produced along with Ext.R3(a) with certain additions. The petitioner contends that the WP(C) 7137/04 -: 7 :- respondents have no case that the materials referred to Ext.R3(b) were not purchased and the journey not performed. The claim made by the third respondent is untenable. 9. The learned standing counsel for the Corporation is unable to explain how in Ext.R3(a) letter dated 23.2.1997 a list of advances for the period from 5.5.1999 to 25.2.2000 be attached. It was not a case with reference to any cogent materials that the advances paid to the petitioner were not utilised towards payment of the goods and vehicles/bitumen supplied or that the petitioner had not undertaken journeys referred to in the second statement appended to Ext.R3(a) letter. No materials were produced before this Court that the advances made to the petitioner had not been utilised for the purpose for which they were given. The respondents do not even allege that the petitioner had misappropriated the said amount. Their case is that the advances have not been regularised. In my opinion, regularisation of advances is a matter which had to be done by the accounts department of the Corporation as and when the final bills for the purchase of the machinery and goods were submitted and settled. Likewise for the journeys also, it has to be settled after the petitioner submitted his T.A. bills. In the absence of plea that the vehicles/goods/materials were not supplied though advances given and also in the absence of the plea that the petitioner did not undertake the travels referred to in the second statement appended to Ext.R3(a), I am of the considered opinion that the WP(C) 7137/04 -: 8 :- claim made by the respondents is not founded on any cogent material. I am therefore satisfied that the death cum retirement gratuity sanctioned to the petitioner was legal. In these circumstances, the petitioner is entitled to be compensated by award of interest. 10. In the result, the Writ Petition is allowed, Ext.P4 is quashed and the respondents are directed to disburse to the petitioner the sum of Rs.2,80,000/- sanctioned to him as death cum retirement gratuity together with interest thereon at 7.5 % per annum from 1.6.2000. The payment as directed above, shall be made within two months from the date of receipt of a copy of this judgment. Respondents 2 and 3 shall after payment of the death cum retirement gratuity and interest as directed above, recover the interest portion from the officers of the accounts department of the Corporation, who are responsible for not settling the account in time thereby denying the petitioner his legitimate terminal benefits. The recovery shall be effected from them if they are in service from their salary in instalments or if anyone among them have retired, from his terminal benefits, if the terminal benefits have not so far been paid or by recourse of Kerala Revenue Recovery Act. P.N.Ravindran, Judge. ess 13/12