IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 OP.No. 776 of 2002(P) --------------------- PETITIONER(S): --------------- K.S.GOPALAKRISHNA PILLAI,'SABARIGIRI', T.C.29/296, THENGAPPURA ROAD, PETTAH, THIRUVANANTHAPURAM - 24. BY ADV. SRI.K.L.NARASIMHAN RESPONDENT(S): --------------- 1. THE DIRECTOR OF MUNICIPAL ADMINISTRATION PUBLIC OFFICE BUILDING VIKAS BHAVAN POST, THIRUVANANTHAPURAM. 2. SECRETARY, THIRUVANANTHAPURAM CORPORATION,THIRUVANANTHAPURAM. 3. SECRETARY, KOLLAM CORPORATION, KOLLAM. 4. SECRETARY, KOZHIKODE CORPORATION, KOZHIKODE 5. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL ADMINISTRATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON,SC,TVM CORPN. FOR R2 SRI.M.K.CHANDRA MOHANDAS FOR R3 SRI.K.P.G.MENON, SC, KOZHIKODE CORPN. FOR R4 GOVERNMENT PLEADER SHRI.VIPINDAS SRI.C.M.SURESH BABU,SC,KOZHIKODE CORPN. FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 776/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CERTIFICATE DTD.31.5.01 BY R2. P2. COPY OF THE REPRESENTATION DTD.6.8.01. P3. COPY OF THE ENVOLOPE DTD.8.8.01. P4. COPY OF THE NOTICE DTD.19.7.01. P5. COPY OF THE REPLY TO R2 DTD.20.8.01. P6. COPY OF THE REPRESENTATION DTD.11.9.01. P7. COPY OF THE REPRESENTATION DTD.5.11.01. P8. COPY OF THE NLC FROM ALAPPUZHA MUNICIPALITY. P9. COPY OF THE NLC FROM NEYYATTINKARA MUNICIPALITY. P10. COPY OF THE LETTER DTD.10.10.2000 FROM R2 TO R3. P11. COPY OF THE ORDER DTD.28.1.01 OF THE LOCAL FUND AUDIT. P12. COPY OF THE ORDER DTD.28.1.01 -DO- P13. COPY OF THE LETTER DTD.20.5.99 OF R3. P14. COPY OF THE LETTER TO R3 DTD.14.6.99. P15A. COPY OF THE TA BILL DTD.8.9.83 TO R3. P15B. COPY OF THE -DO- DTD.29.12.83. P15C. COPY OF THE -DO- DTD.12.4.82 TO R3. P16. COPY OF THE POSTAL REGISTRATION DETAILS. P17. COPY OF THE NOTE OF P.A.TO SECRETARY OF R4 DTD.28.10.2000. P18. COPY OF THE LPC DTD.4.12.95 BY R4. P19. COPY OF THE GOVT. CIRCULAR DTD.18.3.65. P20. COPY OF THE PROCEEDINGS DTD.18.10.2001. P21. COPY OF THE GOVT. CIRCULAR DTD.10.4.85. P22. COPY OF THE STATEMENT OF AMOUNT DUE. P23. COPY OF THE LETTER DTD.R1 DTD.20.5.02. P24. COPY OF THE STATEMENT. P25. COPY OF THE NEWSPAPER REPORT DTD.9.11.94 IN DESHABHHMANI. P26. COPY OF THE NEWSPAPER REPORT DTD.11.11.94 IN MANORAMA. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 776 of 2002 ================== Dated this the 18th day of February, 2009 J U D G M E N T The petitioner retired from the Department of Local Self Govt. of the Government of Kerala while working as Engineer in Thiruvananthapuram Corporation, on 31.5.2001. He is aggrieved by non disbursal of retirement benefits due to him. After his retirement, when there was delay in disbursal of retirement benefits, despite Ext.P1 certificate issued by the Thiruvananthapuram Corporation that there are no departmental or judicial proceedings pending against the petitioner, he filed Ext.P2 representation. Thereupon, the petitioner was served with Ext.P4 memo dated 19.7.2001 stating that an amount of Rs.14,521/-, consisting of principal amount of Rs.7,306/- with interest of Rs.7215/-, is due from him towards liability while he was working in Kollam Corporation and, an amount of Rs.1,10,305/- is due from him towards liability while working in Calicut Corporation without stating as to how the amounts became due from him. The petitioner filed Exts.P5, P6 and P7 representations explaining that no amounts are due from him as claimed in Ext.P4. The petitioner was working in Kollam Corporation during 1982 and 1983 and in Calicut Corporation during 1994 and 95. According to the petitioner, normally when an employee is shifted from one Corporation to another, only after all liabilities are fixed and certified, such transfers would be effected. In support of that contention, the petitioner has produced Exts.P8 and P9 o.p.776/02 2 which are the certificates issued while he was transferred from Alappuzha Municipality and Neyyattinkara Municipality certifying that no amounts are due from the petitioner. In fact as evidenced by Ext.P10, the Thiruvananthapuram Corporation had written to the Kollam Corporation asking whether any liability is due from the petitioner. According to the petitioner, similar letter was written to the Calicut Corporation also, both of whom did not respond to the same. The petitioner's pensionery benefits were sanctioned as per Exts.P11 and P12. Despite the same, the pensionary benefits had not been paid. By Ext.P13, the Kollam corporation informed the Thiruvananthapuram Corporation that an amount of Rs.4706/- is due from the petitioner towards liability, without giving any details as to the liability. Thereafter, by Ext.P17, the Secretary of the Calicut Corporation informed the Engineer of the Thiruvananthapuram Corporation that the amounts due from the petitioner towards liability is Rs.1,10,305/-. The same is allegedly due for the years 1993, 1994, 1995 and 1997. The petitioner submits that the petitioner worked in the Calicut Corporation only in 1994 and 1995 and therefore, no liability could have been fixed for the year 1993 and 1997 as sought in Ext.P17. The petitioner further points out that in respect of the alleged liability for the years 1994 and 1995 no details are provided. The petitioner also points out that, by Ext.P19 circular, the Government had specifically directed that when cash recovery is involved, such recovery cannot be made from o.p.776/02 3 the DCRG without the consent of the retired officer without satisfying the principles of natural justice, which has not been done in this case. The nature of the liability should be communicated and reasonable time, not less than 15 days, shall be granted to the officer to put up his defence, if any. According to the petitioner, the petitioner had never been informed about the liability with notice to explain. That being so, the petitioner would submit that the recovery of alleged liability from his DCRG is totally unreasonable and unsustainable. 2. The petitioner further points out that the petitioner has not been paid his full provident fund amount also, the details of which are furnished by the petitioner in Exts.P23 and P24. In the above circumstances, the petitioner seeks the following reliefs: “I) To issue a writ of mandamus or other appropriate writ direction or order directing the first respondent to release the balance DCRG due to the petitioner of Rs.1,38,683/- (Rs.1,25,001 + Rs.13,682) plug interest upto 26.11.2001 and interest on Rs.1,25,001 @ 18% from 27.11.2001 to date of actual payment as per the statement, Exhibit P22, quashing Exhibit P4 and Exhibit P17. II) To close and disburse the Provident fund amount due to the petitioner with interest at 18% per annum till date of actual payment. III) To grant the petitioner the interest at 18% per annum for the pension commutation amount of Rs.3,43,423.00 from 1.6.2001 to 26.11.2001 i.e. Rs.30,315/- as per Exhibit P22. IV) To grant to the petitioner the interest @ 18% per annum for monthly pension arrear of Rs.59,962/- i.e. Rs.5,175/- as per Exhibit P22.” 3. A counter affidavit has been filed by the 1st respondent justifying the recovery. 4. I have considered the rival contentions in detail. o.p.776/02 4 5. In none of the documents produced before me are there any details regarding the liability, which is sought to be recovered from the DCRG due to the petitioner except mentioning some numbers. Nothing is stated as to what those amounts relate to. It is not disputed even in the counter affidavit that the petitioner had not worked in the Calicut Corporation during 1993 or 1997. In spite of the same, some amounts are stated to be due from the petitioner for the years 1993 and 1997. Even in the counter affidavit there is absolutely no mention whatsoever as to what the liability refers to or on what account the petitioner is liable to reimburse the amount. Strangely, after having earlier issued letters to the Thiruvananthapuram Corporation of the Calicut Corporation that an amount of Rs.1,10,305/- is due from the petitioner, now in the counter affidavit it is stated that the Secretary, Calicut Corporation, by his letter dated 4.6.2003, has reported that out of the total liabilities of Rs.1,10.305/-, an amount of Rs.55,000/- has been adjusted after re-examination of the records and the balance amount of Rs.55,305/- is still pending for adjustment. As such, I am satisfied that the respondents have no clear-cut idea as to what those amounts represent. The learned Government Pleader would submit that the amounts have been certified in the audit. Even then nothing is stated before me as to what the audit party had stated about the liability and as to towards what account, the liability is due from the petitioner. The audit report is also not furnished for perusal. In any o.p.776/02 5 event, it is settled law that the liability can be fixed on a retired government servant only with notice, that too, within three years from the date of retirement as provided in Rule 3 of Part III of KSR. The respondents have not been able to satisfy me that the liability due from the petitioner has been fixed with notice to the petitioner as required under law. That being so, at this distance of time no liability can now be fixed on the petitioner and recover the same. Even otherwise, as I stated earlier, on the basis of such totally insufficient materials, a Government servant cannot be mulcted with liability for such large amount. Therefore, recovery from the DCRG due to the petitioner towards alleged liability is patently unreasonable and unsustainable. Therefore, the petitioner is entitled to succeed in this original petition. Accordingly, this original petition is disposed of with a direction to the respondents to see that the entire retirement benefits due to the petitioner as certified in Exts.P11 and P12 are disbursed, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The question of interest is left open to be agitated by the petitioner in appropriate other proceedings. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================ O.P.No. 776 of 2002-P ================ J U D G M E N T 18th February, 2009 o.p.776/02 7 O.P.No. 776/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE CERTIFICATE DTD.31.5.01 BY R2. P2. COPY OF THE REPRESENTATION DTD.6.8.01. P3. COPY OF THE ENVOLOPE DTD.8.8.01. P4. COPY OF THE NOTICE DTD.19.7.01. P5. COPY OF THE REPLY TO R2 DTD.20.8.01. P6. COPY OF THE REPRESENTATION DTD.11.9.01. P7. COPY OF THE REPRESENTATION DTD.5.11.01. P8. COPY OF THE NLC FROM ALAPPUZHA MUNICIPALITY. P9. COPY OF THE NLC FROM NEYYATTINKARA MUNICIPALITY. P10. COPY OF THE LETTER DTD.10.10.2000 FROM R2 TO R3. P11. COPY OF THE ORDER DTD.28.1.01 OF THE LOCAL FUND AUDIT. P12. COPY OF THE ORDER DTD.28.1.01 -DO- P13. COPY OF THE LETTER DTD.20.5.99 OF R3. P14. COPY OF THE LETTER TO R3 DTD.14.6.99. P15A. COPY OF THE TA BILL DTD.8.9.83 TO R3. P15B. COPY OF THE -DO- DTD.29.12.83. P15C. COPY OF THE -DO- DTD.12.4.82 TO R3. P16. COPY OF THE POSTAL REGISTRATION DETAILS. P17. COPY OF THE NOTE OF P.A.TO SECRETARY OF R4 DTD.28.10.2000. P18. COPY OF THE LPC DTD.4.12.95 BY R4. P19. COPY OF THE GOVT. CIRCULAR DTD.18.3.65. P20. COPY OF THE PROCEEDINGS DTD.18.10.2001. P21. COPY OF THE GOVT. CIRCULAR DTD.10.4.85. P22. COPY OF THE STATEMENT OF AMOUNT DUE. P23. COPY OF THE LETTER DTD.R1 DTD.20.5.02. P24. COPY OF THE STATEMENT. o.p.776/02 8 P25. COPY OF THE NEWSPAPER REPORT DTD.9.11.94 IN DESHABHHMANI. P26. COPY OF THE NEWSPAPER REPORT DTD.11.11.94 IN MANORAMA. Sdk+ ///True copy/// P.A. to Judge