IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 WP(C).No. 35731 of 2008(D) --------------------------------------- PETITIONER(S): ----------------------- D.GOPALAKRISHNA KARTHA, S/O. LATE N. DIVAKARA MENON, EXECUTIVE ENGINEER (RETIRED FROM KERALA STATE HOUSING BOARD, ALAPPUZHA) BY ADVS. SRI.M.V.THAMBAN SRI.V.K.SATHYANATHAN RESPONDENT(S): -------------------------- 1. THE KERALA STATE HOUSING BOARD, REP. BY ITS SECRETARY, SANTHINAGAR, THIRUVANANTHAPURAM. 2. THE MANAGING DIRECTOR, KERALA STATE HOUSING BOARD, SANTHI NAGAR,THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.A.JAYASANKAR, SC KSHB, TVM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.35731/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER DATED 11/3/2005 BY THE 1ST RESPONDENT. P2 COPY OF THE REPRESENTATION DATED 5/8/2005. P3 COPY OF THE REPRESENTATION DATED 29/4/2006 TO THE 1ST RESPONDENT. P4 COPY OF THE ORDER DATED 15/11/2007. RESPONDENT'S EXHIBITS: R1(A) COPY OF THE LETTER DATED 05/11/2003 WITH MINUTIAE OF AUDIT OBJECTION. R1(B) COPY OF THE LETTER DATED 12/01/2005. R1(C) COPY OF THE ORDER DATED 29/05/2006 FROM R1. R1(D) COPY OF THE LETTER DATED 23/03/2006 TO PETITIONER. R1(E) COPY OF THE LETTER DATED 21/04/2006 TO PETITIONER. /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.35731 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of January, 2011 J U D G M E N T The petitioner retired from service of the Kerala State Housing Board on 29.02.2004. He has filed this writ petition complaining that a part of his gratuity has been withheld. According to the petitioner, an amount of Rs.1,58,725/- has been withheld without fixing liability as contemplated in Rule 3 of Part III of K.S.R. The petitioner therefore seeks the following reliefs: “i) to issue a declaration that the petitioner is entitled to penal interest at the rate of 18% on the pension arrears commuted value of pension and gratuity calculated from the date of retirement to the date of actual payment at the rate of 18% per annum and he is also entitled to statutory interest for the provident fund balance calculated from the date of retirement to the date of actual payment. ii) to issue a writ of mandamus or other writ or order directing the respondents to pay the withheld portion of the gratuity and also to pay 18% interest per annum on the entire pension, commuted value of pension and gratuity, calculated from the date of retirement to the date of actual payment. iii) to direct the respondents to pay statutory interest on the Provident Fund balance paid during August, 2005, calculated from the date of retirement to the date of actual payment;” W.P.(C) No.35731 of 2008 -2- 2. A counter affidavit has been filed on behalf of the 1st respondent wherein they have stated that a large number of audit objections were raised against the petitioner in respect of which several communications have been issued to the petitioner. The petitioner did not reply to the same nor did he help the department to clear the audit objections so as to reduce his liability. Ultimately by Ext.R1 (B) dated 12.01.2005 a liability of Rs.11.70 lakhs was fixed on the petitioner. But later, on further clarifications regarding the audit objections received from the statutory auditors, the liability was reduced to Rs.1,58,725/-, which only has been withheld from the D.C.R.G. of the petitioner. 3. A reply affidavit has been filed taking the stand that Exts.R1 (A) and R1 (B) are only official correspondence and are not notices as contemplated in Rule 3 of Part II of K.S.R. 4. I have considered the rival contentions in detail. 5. The petitioner does not dispute having received Exts.R1 (A) and R1 (B). In Ext.R1 (B) it is specifically stated W.P.(C) No.35731 of 2008 -3- as follows: “I am forwarding herewith the statement of liabilities on the Audit Objections reported as pending against Sri. D. Gopalakrishna Kartha, Executive Engineer (Retd.) The total liability on the audit objections reported as pending by the Audit Wing of this office is Rs.11,70,862/-. The details of Audit Objections reported as pending against Sri. D. Gopalakrishna Kartha, Executive Engineer (Retd) is furnished below:” and the same ends with the following paragraph: “As stated above there is a huge liability to the tune of Rs.11.70 lakhs still outstanding against Sri. D. Gopalakrishna Kartha by way of unadjusted advances and other Audit objections. In most of the cases, the details of the adjustments have been reported to DDLFA, Statutory Auditor's of the Board. But the final clearance from DDLFA is not yet received. In the circumstances, as the liability exceeds his pensionary benefits, the same could not be sanctioned to him. However, all earnest efforts are taken to settle his pensionary benefits to the possible extent at the earliest.” The petitioner has not chosen to challenge the same. Even after admitting having received it, I am of opinion that Ext.R1 (B) is certainly an order fixing liability of Rs.11.70 lakhs on the petitioner. That being so, liability has been fixed within the time stipulated in Note 3 of Rule 3 of Part III of K.S.R. The fact that subsequently after obtaining further clarifications the same has been reduced does not make Ext.R1 (B) any the less an order fixing the liability. W.P.(C) No.35731 of 2008 -4- The petitioner has not even replied to Ext.R1 (B). In any event he has not chosen to even explain why the liability as detailed in Ext.R1 (B) is not attributable to him. Insofar as the petitioner has not challenged that fixation of the liability, I do not think that the petitioner can seek disbursal of the withheld liability. Accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/