IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA1931 WA.No. 1329 of 2005() AGAINST THE JUDGMENT IN OP.18911/2000 Dated 22/11/2004 APPELLANT: RESPONDENT NO.2 & 3: 1. THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 2. K. MOHANADAS (ENQUIRY OFFICER), JOINT REGISTRAR (FINANCE), UNIVERSITY OF KERALA THIRUVANANTHAPURAM. BY ADV. SRI.M.K.CHANDRAMOHAN DAS, STANDING COUNSEL, KERALA UNIVERSITY. SRI.M.RAJAGOPALAN NAIR, STANDING COUNSEL, KERALA UIVERSITY. RESPONDENTS: PETITIONER AND RESPONDENT NO.1: 1. M. RAVINDRAN NAIR, (RETIRED SECTION OFFICER (F.C. & D), UNIVERSITY OF KERALA,'ROHINI', MACHEL P.O., MALAYINKIL, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.P.SANTHOSH KUMAR (PANAMPILLI NAGAR) SRI.T.A.RAJAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1329 OF 2005 --------------------------------------------- Dated this the 7th day of July, 2009 JUDGMENT Balakrishnan Nair, J. Respondents 2 and 3 in the Original Petition are the appellants. The first respondent herein was the writ petitioner. He was a Section Officer of the Kerala University, in charge of the Forms Sales Counter. He worked in that post from 1.7.1995 to 30.4.1998, the date on which he retired from service. According to the University, the first respondent received various forms to be sold through the sales counters. He will distribute the forms to the assistants working in the sales counters. Every day, the balance forms and the sale proceeds will be collected by the Section Officer. The next day, he should remit the money received in the Kerala University Fund Account. There is also a provision for monthly audit of the accounts. At the time of retirement of the petitioner, the physical stock of forms available with him were ascertained. Later, after conducting an audit, it was found that there was a shortage of Rs.72,672/- resulting from short W.A. NO. 1329/2005 2 remittance of the price of the forms sold. So, the petitioner was served with Ext.P1 letter dated 9.11.1998 informing him about the shortage. The petitioner submitted Ext.P2 reply which was followed by Ext.P3 memo dated 26.11.1998. The petitioner submitted Ext.P4 reply concerning the shortage. Considering his reply, the Joint Registrar-in-charge fixed the liability as per Ext.P5 proceedings dated 5.12.1998 and thereafter by Ext.P7 order, the D.C.R.G. amount due to the petitioner was withheld. Later, an Enquiry Officer was appointed to fix the liability against the petitioner. The said officer issued Ext.P8 memo dated 8.12.1999 to the first respondent/petitioner. The petitioner submitted his reply. The Enquiry Officer conducted an enquiry and submitted Ext.R2(c) report, based on which the Registrar finally fixed the liability of the petitioner as per Ext.P10 proceedings dated 7.4.2000. The Writ Petition is filed challenging Exts.P5, P7 and P10. 2. Respondents 2 and 3, who are the appellants herein, resisted the prayers in the Original Petition by filing a detailed counter affidavit. The learned Single Judge found that the method followed by the University to fix the liability was contrary to law and in violation of the principles of natural justice and, therefore quashed the impugned orders. Feeling aggrieved by the said judgment, the appellants have preferred this appeal. W.A. NO. 1329/2005 3 3. We heard the learned counsel on both sides. It is the common ground that the liability against the first respondent/petitioner was fixed without serving on him a copy of Ext.R2(c) report. The liability against the first respondent for the purpose of recovery from his D.C.R.G. can be fixed under Note 2 of Rule 3 of Part III of the Kerala Service Rules. The said note reads as follows: “The word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain.” In view of the above quoted provision, the liability of the first respondent/petitioner should have been fixed, following the procedure in the above rule. A copy of the main material, based on which the liability was fixed, should have been served on the petitioner. In this case, copy of Ext.R2(c) report was not served on him. In view of the above position, we order that Ext.P10 shall be treated as a notice and the first respondent/petitioner shall offer his objections, if any, to the findings in Ext.R2(c) enquiry report along with a copy of this judgment to the first appellant within two months from today. In that event, the first appellant W.A. NO. 1329/2005 4 shall afford an opportunity of being heard to the first respondent/petitioner and pass fresh orders, fixing the liability, if any, against him. The Writ Appeal is disposed of as above. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1329/2005 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO.1329/2005 JUDGMENT 7th July, 2009 W.A. NO. 1329/2005 6