Kerala High Court
Mrs.M.Lathika vs State Of Kerala on 26 November, 2012
Bench: Thottathil B.Radhakrishnan, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
MONDAY, THE 26TH DAY OF NOVEMBER 2012/5TH AGRAHAYANA 1934
RFA.No. 143 of 2011 ( )
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OS.594/2008 of PRINCIPAL SUB COURT, NORTH PARAVUR
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APPELLANT/DEFENDANT :-
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MRS.M.LATHIKA, RETIRED DEPUTY DIRECTOR
OF AGRICULTURAL, W/O.P.NAGAPPA, MRINALINI HOUSE
HOUSE NO.XI, KAIRALY NAGAR, CHOONDY
ERUMATHALA, ALUVA, ERNAKULAM DISTRICT.
BY ADVS.SRI.R.RAMDAS
SRI.T.SIVADASAN
RESPONDENT(S)/PLAINTIFF :-
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1. STATE OF KERALA, REPRESENTED BY DISTRICT
COLLECTOR, ERNAKULAM - 682 030.
2. PRINCIPAL AGRICULTURAL OFFICER,
ERNAKULAM - 682 050.
BY GOVERNMENT PLEADER SRI.R.PADMARAJ
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
jvt
THOTTATHIL B. RADHAKRISHNAN
& N.K.BALAKRISHNAN, JJ.
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R.F.A. No.143 of 2011
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Dated this the 26th day of November 2012
J U D G M E N T
Thottathil B. Radhakrishnan, J.
This appeal arises from a suit filed by the State of Kerala for recovery of amounts allegedly due from a retired government employee. She was working in the Agricultural Department. Going up through different ranks she retired as Deputy Director. As the Agricultural Officer, she was involved in carrying out different schemes under which different committees of local people were given funds under the schemes to carry out certain works. Ultimately, it was found that in a few schemes, the works were either not completed or advance amounts were released were not properly utilised. There could have also been release of advance amounts not as per the guidelines of the scheme. The liability of the members of the different committees were treated by the government officials as liabilities that can be R.F.A. No.143 of 2011 -: 2 :- carried out by the superior officers. This appears to be the substratum of this suit built by the government.
2. In jurisprudence, jural relationship has to be established and legal liability can be fixed only when there is an act or omission which would give rise to the eligibility to recover the amounts in such cases. The master and servant relationship between the government servant and a government is one for consideration. Bonafide exercise of authority by officials viz-a-viz neglect and willful negligence are also considerations which may be relevant.
3. On facts, it can be seen that even after a demand was issued, recovery from DCRG was not completed and the recovery order as against DCRG amounts was issued three years after the retirement. This Court, therefore, interfered with that and quashed recovery from DCRG leaving the government with liberty to sue the servant.
4. In the context, even if the defendant has raised a plea of limitation or not, Section 3 of the Limitation Act stands to advise that it is the bounden duty of the Court to consider R.F.A. No.143 of 2011 -: 3 :- whether the suit is barred by limitation. The court below must have proceeded as if Article 112 of the Limitation Act applies since it is a suit by government. In our view, that is also a debatable issue when it comes to a suit between the government and retired government employee.
5. There are three heads in which the claims are made against the defendant. An amount of Rs.2 lakhs is claimed in relation to one scheme work. In relation to another, an amount of Rs.37,277/- is claimed. As regards that, there appears to be a judgment of this Court virtually exonerating the convenor of the committee from further recovery proceedings. There are two other small amounts also, which may be relevant to arrive at the total amount. Evidently, the question is as to whether in any such transaction, where the government handed over amounts through beneficiary committees and other committees which are constituted under the scheme, the supervisory officers should be fixed with liability except in cases of proven misconduct, including negligence, willful default, negligence resulting in loss of R.F.A. No.143 of 2011 -: 4 :- State funds; which loss is attributable to such supervisory failure of the servant concerned.
6. On the whole, we are satisfied that the learned counsel for the appellant is justified in pointing out that there were different government orders which were relevant to the issue, though they were not produced before the court below. We are also of the view that the court below did not appreciate the entire evidence in the light of what we have stated above.
7. The question of limitation in the case in hand is also mixed question of fact and law which deserves to be formulated in issue and put to trial.
8. For the aforesaid reasons, the impugned decree and judgment are set aside and the case is remanded for de novo consideration with the evidence on record permitting the parties to lead further evidence, if any, at the earliest. The court below shall also frame issue on the question of limitation and decide on that issue . Since it is said that the amounts that would otherwise be due to the defendant is lying R.F.A. No.143 of 2011 -: 5 :- in deposit with the court below, we direct that this case shall be taken out of turn, considered and decided by the court below at the earliest, at any rate, on or before the last working day of February 2013, without fail. The parties are directed to mark appearance before the court below on 10.12.2012. Re-transmit LCRs with copy of this judgment forthwith. The appellant will be entitled to refund of the entire court fee on this appeal in view of the reasoning and terms of this order of remand. No costs.
THOTTATHIL B. RADHAKRISHNAN, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
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