IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH OCTOBER 2010 / 15TH ASWINA 1932 WP(C).No. 17521 of 2006 (J) -------------------------- PETITIONER: ------------------ P.V.GOPINATHAN, (ASST. ENGINEER (RETD.), K.S.E.B., MOOLAMATTOM), S/O. P.J.VENKITESWARA MALLIA, PARARATHU PARAMBIL, SRINGAPURAM, KODUNGALLUR. BY ADVS. SRI.K.I.MAYANKUTTY MATHER SMT.S.LAKSHMY RESPONDENTS: --------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004. R1 & R2 BY ADV. SRI.K.S.ANIL, SC, KSEB SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON 07/10/2010 DELIVERED THE FOLLOWING: WP(C).No. 17521 of 2006 (J) ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS -------------------------------------- EXT.P1. COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT. EXT.P2. COPY OF THE COMPLAINT FILED BEFORE THE LOK AYUKTA. EXT.P3. COPY OF THE INTERIM ORDER IN COMPLAINT NO.1077 OF 2002 EXT.P4. COPY OF ORDER IN COMPLAINT NO.1077 OF 2002. RESPONDENTS EXHIBITS : NIL -------------------------------------- P.A. TO JUDGE / TRUE COPY / VK S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 17521 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2010 J U D G M E N T The petitioner retired from the service of the Kerala State Electricity Board as an Assistant Engineer on 31.01.2000 after putting in 27 years of service. The retirement benefits of the petitioner was withheld by the respondents. Petitioner approached the Lok Ayukta seeking disbursement of the retirement benefits. The Lok Ayukta passed Ext.P3 order whereby the Lok Ayukta directed the respondents to disburse the retirement benefits due to the petitioner. But the Lok Ayukta noted that, the liability of Rs.5,49,550/- was withheld from the DCRG amount. The total DCRG amount due to the petitioner was only Rs.2,13,503/-. The Lok Ayukta held thus in that order in respect of the same: “(2) If for any reason the Board is still of the view that the amount of liability fixed as Rs.5,49,550/- is liable to be legally withheld from the DCRG amount, the amount of Rs.2,13,503/- determined as gratuity amount alone may W.P.(C)No. 17521 of 2006 -2- be withheld and the balance amount after deducting the amount of Rs.93,710/- be paid within the period mentioned in direction No.1 above. Under no circumstance withholding of Rs.5,49,550/- can be justified as the gratuity amount is only Rs.2,13,503/-.” Pursuant to the same, all other benefits except DCRG had already been disbursed to the petitioner. Seeking release of the DCRG also the petitioner has filed this writ petition seeking the following reliefs: “a) Issue a writ of mandamus or other appropriate writ, or order directing the respondents to disburse all the pensionary benefits including DCRG within a specified period; b) Issue a writ of mandamus or other appropriate writ, or order directing the respondents to pay interest on the delayed payment on the pensionary benefits at the rate of 18% per annum. 2. According to the petitioner, since the liability had not been fixed within one year from the date of retirement the respondents cannot recover the same from the DCRG. Petitioner particularly relies on Ruling No.5 of Rule 116 of Part III of KSR. According to the petitioner, after one year no liability can be recovered from the petitioner. 3. A counter affidavit has been filed by the 1st respondent, wherein they have stated that the liability W.P.(C)No. 17521 of 2006 -3- was fixed after notice to the petitioner and under Rule 3 of Part III of KSR the respondents are entitled to recover that liability from the DCRG amount to the extent possible. 4. I have considered the rival contentions. 5. I am unable to countenance the contention of the petitioner that, after one year no liability can be recovered from the DCRG. If that contention is accepted Note 3 of Rule 3 of Part III of KSR would become totally meaningless. In fact Rule 116 only provides for a situation where liability cannot be fixed within one year. That rule only stipulates that, if liability cannot be fixed within one year the DCRG has to be disbursed after obtaining a bond from the employee. That only means that, if the liability cannot be fixed within one year of retirement, as security for any liability which may be fixed within the period prescribed in Note 3 of Rule 3 of Part III KSR, a bond has to be obtained and the DCRG has to be released. If the liability is fixed within three years from the retirement as provided in Note 3 of Rule 3 of Part III of KSR, the bond can be enforced and W.P.(C)No. 17521 of 2006 -4- the liability can be recovered from the retired employee. Of course in this case, Rule 116 had not been invoked although the liability was fixed after one year. But that does not ipso- facto disable the respondents from recovering the liability if fixed within 3 years. 6. The petitioner would contend that, the fixation of liability itself is wrong since it was not preceded by any disciplinary proceedings. I do not think that for fixation of liability, if no misconduct is alleged against the petitioner, any disciplinary proceedings have to precede the fixation of liability. In this case, the liability has been fixed for not handing over materials belonging to the Board in the hands of the petitioner at the time of his retirement. If the materials belonging to the Board was in the hands of the petitioner at the time of retirement, the petitioner is liable to return the same to the Board and if he does not do so certainly liability can be fixed in respect of the value of the materials to be returned by the petitioner. That only has been done in this case. Of course, according to the W.P.(C)No. 17521 of 2006 -5- petitioner, the same has been returned. But strangely the petitioner has not chosen to challenge the fixation of liability even in this writ petition. As is evident from Ext.P3 order of the Lok Ayukta the petitioner was aware of that liability at the time when the Lok Ayukta considered the same. Petitioner did not choose to challenge the fixation of the liability before the Lok Ayukta also. Even otherwise petitioner has not included any prayer in this writ petition challenging that liability. Without a challenge to that liability, I cannot consider the contention of the petitioner that the liability was fixed wrongly. In fact in paragraph 6 of the counter affidavit filed by the 1st respondent it is stated thus: “6. It is submitted that, the petitioner retired from Board's service on 31.01.2000 AN. Being the Assistant Engineer in charge of Board's Housing Colony and connected civil works, he has had a number of tools and materials in his personal custody for the operation and maintenance works of the Colony. After the retirement, he has handed over, only a few of the items even after repeated requests. A number of chances were given to him for handing over the materials to his successor. But, the petitioner did not turn up to obey the instructions. Subsequently, an amount of Rs.12,58,040/- has been imposed on him, as liability provisionally, which includes cost of materials, non repayment of temporary imprest and penal rent of quarters for his unauthorized W.P.(C)No. 17521 of 2006 -6- occupation. The liability was fixed and intimated to the petitioner. If any delay has occurred, it is only due to the non co-operation of the petitioner.” Although a reply affidavit has been filed by him, the petitioner has not chosen to controvert the said averment in paragraph 6 of the counter affidavit. That being so, the liability stands unchallenged. It has been fixed within the time stipulated in Note 3 of Rule 3 of Part III of KSR. When the petitioner has not chosen to challenge the liability the respondents are entitled to recover the same from the DCRG due to the petitioner. The total liability fixed is Rs.5,49,550/-. The gratuity amount is only Rs.2,13,503/-. That being so, I do not find any infirmity in the action of the respondents in adjusting the gratuity against the liability due from the petitioner. Therefore there is no merit in the writ petition and accordingly the same is dismissed. S. SIRI JAGAN JUDGE shg/