IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 212 of 2006(A) ------------------------ PETITIONER(S): --------------- ABRAHAM VARGHESE, RTD. ASSISTANT DIRECTOR OF AGRICULTURE, NALUKODY, KOTTAYAM DIST. NOW RESIDING AT VALAKUZHY, PUTHENPURACKAL HOUSE, VARISSERY, MARIAMTHURUTH P.O. KOTTAYAM 27. BY ADV. SRI.P.R.PADMANABHAN NAIR RESPONDENT(S): --------------- 1. THE DIRECTOR OF AGRICULTURE, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 001. 2. THE ACCOUNTANT GENERAL(A&E) (AUDIT), KERALA, THIRUVANANTHAPURAM 695 001. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. GOVERNMENT PLEADER SRI.K. SANIL KUMAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).212/06 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF JUDGMENT DT.3.10.03 IN WP(C).30930/03 OF THIS COURT. EXT.P2:- COPY OF GO(Rt).1523/2003/AD DT.10.11.03 FROM the R1 EXT.P3:- COPY OF ORDER NO.SGI(2)57236/2003 DT.26.11.03 FROM R1 EXT.P4:- COPY OF ORDER NO.P-01/REVN/237/CC/03-04/67 DT.6.4.04 FROM SR.ACCOUNTS OFFICER OF OFFICE OF R2 EXT.P5:- COPY OF ORDER NO.P01/REVN/237/CC03-04 DT.6.4.04 FROM SENIOR ACCOUNTS OFFICER OF OFFICE OF R2 RESPONDENT'S EXHIBITS:- EXT.R3(A):- COPY OF DECLARATION UNDER RULE 117- EXT.R3(B):- COPY OF MEMO OF CHARGES DT.7.3.98 okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 212 OF 2006 ------------------------------ Dated this the 30th day of July, 2009 J U D G M E N T ---------------------- Challenge in this writ petition is against Exts.P2 and P3 orders. The petitioner retired from service of the State Government as Assistant Director of Agriculture, on attaining Superannuation, on 31.10.1999. At the time of retirement, a disciplinary action initiated against him was pending finalisation. Therefore pensionary benefits due him were not disbursed within any reasonable time. This Court while disposing a writ petition filed by the petitioner directed settlement of the pensionary benefits due to him within a period of three months, as per Ext.P1 judgment. In the meanwhile the disciplinary action was finalised as per Ext.P2 order dt:10.11.2003 fixing liability on him to the tune of Rs.30,868/-. Consequent to Ext.P2 order the 1st respondent sanctioned recovery of the said amount, as per Ext.P3 order dt:26.11.2003. The 2nd respondent in turn had recovered the said amount from the DCRG due to the petitioner. 2. The challenge is against Exts.P2 and P3, mainly on the ground that the liability fixed after the lapse of three years from the date of retirement, is not permissible under Note-3 to Rule 3 of Part III of the Kerala Service Rules. The retirement of the W.P.(C).212/06-A 2 petitioner was on 31.10.1999 and the 3 years' period expired as on 30.10.2002. But Ext.P2 proceedings was issued only on 10.11.03. Hence it is clearly beyond the time limit stipulated, in the above said provision. 3. In the counter affidavit the 3rd respondent contended that, since the petitioner had submitted Ext.R3(a) declaration under Rule 117-A, while applying for pensionary benefits, admitting recovery of liability for refund of the amount if due, the liability is recoverable inspite of the lapse of the statutory period. On going through Ext.R3(a) it is evident that the declaration is only to the effect of agreeing for recovery from pension any liabilities that may be found outstanding against him. But such a declaration will not in any way nullify the mandate of Note-3 of Rule 3 in Part III of KSR. 4. In a Division Bench ruling of this Court reported in Renu Devi Vs. Mahendra Singh (2003(3) KLT SN 16) it is held that the actual fixation of the liability need be issued within a period of three years. Since it is evident that Ext.P2 order fixing liability on the petitioner was issued clearly after the lapse of 3 years from the date of retirement of the petitioner, the same cannot be held sustainable. The consequent recovery effected is also unsustainable. For the above reasons the writ petition is allowed, quashing W.P.(C).212/06-A 3 Exts.P2 and P3. The 2nd respondent is directed to take necessary steps for disbursal of the amount recovered from the DCRG pursuant to Exts.P2 and P3, to the petitioner at the earliest, at any rate within a period of one month from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb