IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7137 of 2004(Y)
1. K.R.GOPALAKRISHNAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE DIRECTOR OF URBAN AFFAIRS,
3. THE SECRETARY,
For Petitioner :SRI.KRB.KAIMAL (SR.)
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :02/01/2009
O R D E R
P.N.Ravindran, J.
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W.P(C).No.7137 of 2004
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Dated this the thday of December, 2008.
JUDGMENT
The petitioner retired from service on 31.5.2000 while he was
serving as Superintending Engineer in the Corporation of Kochi,
hereinafter referred to as the “Corporation” for short. When his terminal
benefits were not sanctioned and disbursed, he filed O.P.No.5630 of
2002 in this Court. By Ext.P1 judgment delivered on 18.3.2002 this
Court disposed of the said Writ Petition with a direction to the
respondents therein to sanction and disburse the terminal benefits
within two months from the date of receipt of a copy of the judgment. It
is also observed that it will be open to the respondents to recover the
liability, if any, due from the petitioner from the death cum retirement
gratuity payable to him. There is a further clarification that if such
recovery is effected, it will be open to the petitioner to work out his
remedies against such recovery in other appropriate proceedings.
2. Pursuant to the directions issued by this Court in Ext.P1
judgment, the Director of Municipal Administration (Urban Development)
issued Ext.P2 order dated 15.4.2002 sanctioning pension and commuted
value thereof. Since the Secretary of the Corporation did not issue
NLC/LC, the death cum retirement gratuity was not sanctioned.
Pursuant to Ext.P2 order, pension and commuted value of pension were
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disbursed to the petitioner. When the death cum retirement gratuity was
not sanctioned or disbursed, the petitioner filed Contempt of Court Case
No.70 of 2004 contending that the respondents have not complied with
the directions issued by this Court in Ext.P1 judgment.
3. The Director of Urban Affairs has filed an affidavit dated
4.2.2004 stating that the death cum retirement gratuity was not
sanctioned due to non-availability of NLC/LC from the Corporation. It was
also stated that as the Corporation was not a party to O.P.No.5630 of
2002, the Director of Urban Affairs had to send repeated letters to the
Secretary of the Corporation, that finally on 9.1.2003, the Secretary of
the Corporation noted at page No.25 of the pension book of the
petitioner that an amount of Rs.1,19,9,388/- is outstanding as non-
adjusted advance against the petitioner, that later on 28.1.2004, the
Secretary of the Corporation has issued liability certificate noting the
sum of Rs.18,73,126/- as the petitioner’s liability, that based on the said
liability certificate, orders were issued on 31.1.2004 sanctioning the
death cum retirement gratuity, that as the liability reported by the
Secretary of the Corporation exceeds the death cum retirement gratuity
sanctioned to the petitioner, the petitioner is not entitled to any
monetary benefit. Ext.P4 produced along with this Writ Petition is a copy
of the order passed by the Director of Urban Affairs on 31.1.2004
sanctioning the sum of Rs.2,80,000/- as death cum retirement gratuity to
the petitioner and directing that the said amount be adjusted against the
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liability of the petitioner. There is a further direction that steps be taken
to recover the balance amount of Rs.15,93,126/- from the petitioner and
to remit in the Corporation fund. C.C.C. No.70 of 2004 was thereupon
closed by order passed on 19.2.2004 reserving liberty with the petitioner
to challenge Ext.P4 in other appropriate proceedings. This Writ Petition
was thereupon filed on 27.2.2004 challenging Ext.P4 and seeking a writ
in the nature of mandamus commanding the second respondent to
disburse the death cum retirement gratuity sanctioned to the petitioner
with interest thereon from 1.6.2000 till date of payment.
4. the petitioner contends that the liability referred to in Ext.P4
was not fixed with notice to the petitioner or within three years of his
retirement from service. It is contended that Ext.P4 offends the
principles of natural justice and the provisions contained in Note 3 to
Rule 3 of Part III of the Kerala Service Rules. The petitioner also contends
that on the merits also, he cannot be held liable for the sum of
Rs.18,73,126/- referred to in Ext.P4. He contends that he has not been
informed of the audit objection or furnished with details of the advances
which remain unadjusted.
5. The Secretary of the Corporation, the third respondent in the
Writ Petition has filed a counter affidavit stating that the petitioner had
received the sum of Rs.1,19,79,388/- as provisional advance for various
projects during the periods from 1989 to 2000, that on a detailed
scrutiny, it was found that a sum of Rs.1,01,06,262/- alone was
WP(C) 7137/04 -: 4 :-
accounted for and therefore the balance sum of Rs.18,73,126/- fixed as
the petitioner’s liability for the reason that the said amount had not been
accounted for, the third respondent however conceded that the
petitioner shall not put on notice or hear before the said amount fixed as
his liability. It is also stated that steps will be taken to recover the
balance amount due from the petitioner after adjusting the death cum
retirement gratuity sanctioned to him towards liability.
6. The petitioner has filed a reply affidavit dated 25.8.2008
disputing his liability to pay the sum of Rs.18,73,126/- or any part
thereof. He contends that advances were paid to him by cheques for
payment towards purchase of vehicles/ chassis and bitumen required for
road work, that cheques were converted into demand drafts in favour of
the suppliers, that the advances which were paid towards demand drafts
were adjusted in the final bills submitted by the suppliers that final bills
were received by the accounts department and payments were made
directly by the accounts department to the suppliers and that
regularisation of the advances made has to be done by the accounts
department and not by the petitioner.
7. After the petitioner filed his reply affidavit, the Secretary,
Corporation filed I.A.No.11469 of 2008 producing along with it Exts.R3
(a) and R3(b) to prove that advance of Rs.1,19,79,385/- given to the
petitioner has not been accounted for. The petitioner has filed a counter
affidavit denying and disputing the averments in I.A.No.11469 of 2008
WP(C) 7137/04 -: 5 :-
and also questioning the authenticity and genuineness of Exts.R3(a) and
R3(b).
8. I have heard Sri.K.R.B. Kaimal, the learned counsel appearing for
the petitioner, Sri.P.Nandakumar, the learned Government Pleader
appearing for respondents 1 and 2 and Sri.Chandramohan Das, the
learned standing counsel appearing for the third respondent. It is not in
dispute that within a period of three years from the date on which the
petitioner retired from service no order was passed fixing the petitioner’s
liability. It is also note in dispute that before the sum of Rs.18,73,126/-
was fixed as the petitioner’s liability, the petitioner was not put on notice
or given an opportunity to state his case. The third respondent contends
that the sum of Rs.17,78,520/- represents unaccounted advance given to
the petitioner They now relied on the entries in Exts.R3(a) and R3(b).
The respondents contend that the petitioner has not accounted for the
advance given to him during the years 1989 – 2000. The writ petitioner
disputes the authenticity and genuineness of Exts.R3(a) and R3(b).
Accordingly the petitioner contends that though Ext.R3(a) letter is dated
23.12.1997, it refers to the advances given to the petitioner which have
not been accounted for till 23.12.1997, the list appended to it refers to
the advances made from 5.5.1999 to 25.5.2000. The learned Senior
Advocate appearing for the petitioner submits that by no stretch of
imagination can the statement relating to the period from 5.5.1999 to
25.5.2000 be annexed along with the letter dated 23.12.2007. He
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contends that therefore, the statement appended to Ext.R3(a) is a forgery
and for that reason Ext.R3(a) also cannot be treated as valid notes fixing
the liability. The petitioner further points out that the first statement
appended to Ext.R3(b) relates to the advances given to him for the
purchase of bitumen and that the said advances were paid over to the
suppliers of vehicles and bitumen. The learned counsel further submitted
that the second statement appended to Ext.R3(a) letter relates to the
advances given to the petitioner during the period from 8.6.1993 to
22.7.1994 for travel, that after performing the journey, he had submitted
the draft bill to regularise the advances, that in some cases, the T.A. bills
exceeded the advances made, that it was the duty of the Corporation to
formerly regularise the advance on the T.A. bills to be presented and that
the petitioner cannot be held liable if the officers of the Corporation have
failed to discharge their duties to settle such advances. The petitioner
further points that the petitioner did not perform the journeys for which
advances were drawn and that the stand taken by the respondents
cannot be countenanced. The learned Senior Advocate further submits
that the petitioner has not been served with a copy of Ext.R3(b) letter
dated 27.11.2002. It is a letter sent by the Corporation to the Director
of Municipal Administration. He further submits that copy of Ext.R3(b) is
not marked to the petitioner and as such the statement appended to
Ext.R3(b) letter is a consolidation of the statement produced along with
Ext.R3(a) with certain additions. The petitioner contends that the
WP(C) 7137/04 -: 7 :-
respondents have no case that the materials referred to Ext.R3(b) were
not purchased and the journey not performed. The claim made by the
third respondent is untenable.
9. The learned standing counsel for the Corporation is unable to
explain how in Ext.R3(a) letter dated 23.2.1997 a list of advances for the
period from 5.5.1999 to 25.2.2000 be attached. It was not a case with
reference to any cogent materials that the advances paid to the
petitioner were not utilised towards payment of the goods and
vehicles/bitumen supplied or that the petitioner had not undertaken
journeys referred to in the second statement appended to Ext.R3(a)
letter. No materials were produced before this Court that the advances
made to the petitioner had not been utilised for the purpose for which
they were given. The respondents do not even allege that the petitioner
had misappropriated the said amount. Their case is that the advances
have not been regularised. In my opinion, regularisation of advances is a
matter which had to be done by the accounts department of the
Corporation as and when the final bills for the purchase of the machinery
and goods were submitted and settled. Likewise for the journeys also, it
has to be settled after the petitioner submitted his T.A. bills. In the
absence of plea that the vehicles/goods/materials were not supplied
though advances given and also in the absence of the plea that the
petitioner did not undertake the travels referred to in the second
statement appended to Ext.R3(a), I am of the considered opinion that the
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claim made by the respondents is not founded on any cogent material. I
am therefore satisfied that the death cum retirement gratuity sanctioned
to the petitioner was legal. In these circumstances, the petitioner is
entitled to be compensated by award of interest.
10. In the result, the Writ Petition is allowed, Ext.P4 is quashed
and the respondents are directed to disburse to the petitioner the sum of
Rs.2,80,000/- sanctioned to him as death cum retirement gratuity
together with interest thereon at 7.5 % per annum from 1.6.2000. The
payment as directed above, shall be made within two months from the
date of receipt of a copy of this judgment. Respondents 2 and 3 shall
after payment of the death cum retirement gratuity and interest as
directed above, recover the interest portion from the officers of the
accounts department of the Corporation, who are responsible for not
settling the account in time thereby denying the petitioner his legitimate
terminal benefits. The recovery shall be effected from them if they are in
service from their salary in instalments or if anyone among them have
retired, from his terminal benefits, if the terminal benefits have not so
far been paid or by recourse of Kerala Revenue Recovery Act.
P.N.Ravindran,
Judge.
ess 13/12
