Kerala High Court
Ratheesh S. Nair vs State Of Kerala on 17 July, 2013
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY,THE 4TH DAY OF MARCH 2014/13TH PHALGUNA, 1935
OP(KAT).No. 70 of 2014 (Z)
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AGAINST THE ORDER IN OA 488/2012 of KERALA ADMINISTRATIVETRIBUNAL,
THIRUVANANTHAPURAM DATED 17.07.2013
PETITIONER:
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RATHEESH S. NAIR, AGED 58 YEARS,
S/O.G.SHANKARANKUTTY NAIR, RESIDING AT MANGALYA,
CHELAKKAD.P.O, PULAMANTHOL,
MALAPPURAM DISTRICT-679 323.
BY ADVS.SRI.SURAJ.S
SMT.REKHA VASUDEVAN
RESPONDENTS:
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1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF AGRICULTURE, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. DIRECTOR OF AGRICULTURE,
AGRICULTURE DEPARTMENT, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 033.
3. PRINCIPAL AGRICULTURE OFFICER,
KALPATTA, WYANAD-673 121.
4. PRINCIPAL AGRICULTURE OFFICER,
UPHILL, MALAPPURAM-676 505.
R BY SENIOR GOVERNMENT PLEADER, SRI.VIJU THOMAS
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY
HEARD ON 04-03-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DG
OP(KAT).No. 70 of 2014 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXT.P1: COPY OF THE ORIGINAL APPLICATION FILED BY THE
PETITIONER BEFORE THE HONOURABLE TRIBUNAL ALONG
WITH THE ANNEXURES.
EXT.P2: COPY OF THE REPLY STATEMENT FILED BY THE 2ND
RESPONDENT.
EXT.P3: COPY OF THE REJOINDER FILED BY THE PETITIONER BEFORE
THE HONOURABLE TRIBUNAL.
EXT.P4: COPY OF THE FINAL ORDER DATED 17.7.2013 OF THE
HONOURABLE TRIBUNAL IN O.A.488 OF 2012.
EXT.P5: COPY OF THE LETTER NO.AUDI(3)42059/2013 DATED
11.11.2013 ISSUED BY THE 2ND RESPONDENT.
EXT.P6: COPY OF THE LETTER NO.AD(1)6297/09(2)DATED 26.11.2013
ISSUED BY 3RD RESPONDENT.
EXT.P7: COPY OF THE APPEAL DATED 20.12.2013 SUBMITTED BY THE
PETITIONER TO THE IST RESPONDENT.
RESPONDENT(S)' EXHIBITS - NIL
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//TRUE COPY//
P.A TO JUDGE
DG
THOTTATHIL B.RADHAKRISHNAN &
A.MUHAMED MUSTAQUE, JJ.
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O.P.(KAT).No.70 of 2014
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Dated this the 4th day of March, 2014
J U D G M E N T
Thottathil B.Radhakrishnan, J.
1.We have heard the learned counsel for the petitioner and the learned Government Pleader.
2.The petitioner retired from service on 31.03.2010. DCRG was not released to him for want of last pay certificate/no liability certificate. He, therefore, filed an original application before the Kerala Administrative Tribunal in 2012. By the time that application was taken up for consideration in July, 2013, the applicant was eligible to receive the entire DCRG in terms of Rule 116 of Part III KSR, without any condition as to bond or deduction. The Tribunal, however, directed the establishment to release DCRG in terms of Ruling No.5 under Rule 116 of Part III KSR within a period of two months from the date of that order. Amount was so released. The question of interest had been left open by the Tribunal.
O.P.(KAT).No.70/14 2
3.The direction of the Tribunal to release the amounts under Ruling No.5 under Rule 116 Part III KSR cannot be operated as it requires the petitioner to provide a surety or a bond. Since the time frame within which such condition could be insisted upon had run out, the establishment is not entitled to insist on any such requirement. The retiral benefits including DCRG are to be released to the petitioner without insisting on any condition in that regard.
4. Tribunal directed that the liability of the applicant shall be fixed within six months from the date of receipt of its order. This is criticized by the petitioner as in excess of the provisions of the statutory rules. Ruling No.6 under Rule 116 of Part III KSR, inter alia, provides that if action under Rule 3 of Part III KSR is not possible due to the expiry of the time limit prescribed for such action, or due to any other reason, the retired employee could be proceeded against in a Civil Court for recovering the pecuniary loss caused to Government. Reverting to Note 3 to Rule 3 of Part III KSR, it can be seen that the liabilities of an employee should be quantified either O.P.(KAT).No.70/14 3 before or after retirement and intimated to him before retirement if possible, or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him. This is the provision contained in Note 3 to Rule 3 of Part III KSR. This means that once that time limit is over, the Government will not have the authority to decide as an adjudicator as to what would be the liability of a particular pensioner. The right of the Government would be, as noted in the later part of Ruling 6 under Rule 116 of Part III KSR, one preserving to itself the right to sue the pensioner in the Civil Court. That procedure would then stand governed by the provisions of the Code of Civil Procedure and substantive law in that regard. The quantification directed to be carried out by the Tribunal in paragraph 4 of the impugned order and the resultant quantification made by the Government as evidenced by Exts.P5 and P6 cannot by themselves be sufficient to fasten the liability on the pensioner. Exts.P5 and P6 could, at best, be treated as the stand of the Government and its pleading regarding the quantification of the loss sustained by it and O.P.(KAT).No.70/14 4 recoverable from the pensioner concerned. That has to be put for adjudication in the competent Civil Court at the instance of the State and the State has to earn a decree through the remedy by way of suit in a civil court.
For the aforesaid reasons, the direction contained in paragraph 4 of the impugned order of the Tribunal to finalize the liability and any action taken by the Government or its officers, including by issuance of Exts.P5 and P6, which are consequential to such direction of the Tribunal, are hereby quashed. It is clarified that no surety or bond will be insisted upon for release of amounts to the petitioner. This original petition is allowed accordingly. No costs.
Sd/-
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) Sd/-
(A.MUHAMED MUSTAQUE, JUDGE) //TRUE COPY// P.A TO JUDGE DG