Kerala High Court
State Of Kerala vs State Of Kerala on 9 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
OP(KAT).NO.63 OF 2020
AGAINST THE ORDER IN OA (EKM) NO.1218/2015 DATED 03-07-2019 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 TO 5 IN O.A.:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN 695 001.
2 THE DIRECTOR OF HEALTH SERVICES,
GOVERNMENT HOSPITAL JUNCTION,
THIRUVANANTHAPURAM, PIN 695 035.
3 THE DISTRICT MEDICAL OFFICER (HEALTH),
CIVIL STATION, KOLLAM - 691 013, KERALA.
4 THE SUPERINTENDENT, TALUK HOSPITAL, SASTHAMCOTTAH,
KOLLAM, KERALA - 695 520.
5 THE ACCOUNTANT GENERAL (A AND E), KERALA,
M.G. ROAD, THIRUVANANTHAPURAM - 695 039, KERALA.
BY SRI.ANTONY MUKKATH, GOVT.PLEADER
RESPONDENT/APPLICANT:
DR.D.PRADYUMNAN,
S/O. DEVADASAN, CONSULTANT ORTHOPEADIC (RETIRED),
TALUK HOSPITAL, KOTTARAKKARA, KOLLAM - 691 506,
RESIDING AT KARTHIKA, PANAPETTY, PORUVAZHI,
KOLLAM, KERALA - 690 520.
BY ADVOCATE SRI.V.A.MUHAMMED
THIS OP(KAT) HAVING COME UP FOR ADMISSION ON 09.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS & T.R.RAVI, JJ.
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O.P.(KAT) No. 63 of 2020
(arising out of the impugned order dated 3.7.2019 in
O.A. (Ekm) No.1218 of 2015 on the file of the KAT, Thiruvananthapuram
Bench)
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Dated this the 9th day of February, 2021
JUDGMENT
The prayers in the afore captioned Original Petition filed under
Articles 226 & 227 of the Constitution of India are as follows: {See page 7 of
the paper book of this O.P.(KAT)}
"
1. To set aside the Exhibit P7 order of the Kerala Administrative Tribunal
in O.A. (EKM) No.1218/2015, dated 03.07.2019.
2. To dismiss the Exhibit P1 Original Application (EKM) No.1218/2015
filed by the Respondent before the Honourable Kerala Administrative
Tribunal.
3. To declare that Respondent is not eligible for any of the reliefs claimed
in the Exhibit P1 Original Application.
4. Any other order or direction as this Honorable Court may deem fit
and proper in the facts and circumstances of the case."
2. Heard Sri.Antony Mukkath, learned Senior Government
Pleader appearing for the petitioners (State of Kerala & 4 others) in the
O.P./respondents in the O.A. and Sri.V.A.Muhammed, learned counsel
appearing for the sole respondent in the O.P./sole applicant in the O.A.
3. The prayers in Ext.P-1 O.A. (Ekm) No.1218/2015 filed by the
respondent herein (the original applicant) reads as follows: {See page 17 of
the paper book of this O.P.(KAT)}
O.P.(KAT) No. 63 of 2020
..3..
"
i. call for the records relating to Annexure A-1 and set aside the
original of the same.
ii. issue direction to the Respondents to release the withheld
amount of Gratuity of Rs. 1,89,093/- along with 12% interest
per annum since 1.4.2011 till the date of payment and
forthwith.
iii. pass such other order or direction which this Hon'ble Tribunal
may deem fit and proper to grant in the circumstances of the
case."
4. After hearing both sides the Tribunal has rendered the
impugned Ext.P-7 final order dated 3.7.2019 in O.A. (Ekm)
No.1218/2015, whereby it has been held that the respondents
therein have no authority to withhold the amount in question
from the DCRG of the petitoner, as the statutory outer time
limit for quantification and assessment of liabilities have
expired long ago, and the said withheld amount of Rs.1,89,093/-
should be immediately released to the petitioner within 3 months.
5. The original applicant who is an Orthopaedic
Consultant has retired from service on 31.3.2011. The respondents
in the O.A. have withheld an amount of Rs.1,89,093/- from the
DCRG amounts due to the petitioner apparently citing certain
audit objections and only the balace DCRG amount has been
released to the applicant. The applicant came to know about the
alleged liability only on the issuance of Anx.A-1 Liability
O.P.(KAT) No. 63 of 2020
..4..
Certificate dated 31.3.2012. It is stated in Anx.A-1 that these
alleged liabilities are fastened on the applicant based on the
objections found in the audit of accounts in respect of the
Hospital Management Committee (HMC) of the Taluk
Headquarters Hospital at Sasthamcotta during the period from
13.6.2002 to 22.8.2006. The applicant has stated before the
Tribunal that he was posted as Superintendent of the Taluk
Headquarters Hospital at Sasthamcotta during the period from
1.2.2005 to 21.8.2006 and thereafter he was transferred to the
Taluk Headquarters Hospital at Kottarakkara. The applicant has
pinpointedly urged that he has never given any prior show
cause notice or reasonable opportunity to rebut the correctness
or otherwise of abovesaid alleged liabilities stated in Anx.A-1
Liability Certificate, and that he is not liable to pay any amounts
to the respondents in the O.A. on account of such liabilities, and
that proper vouchers and receipts etc have been duly submitted by
him to the hospital in question from time to time, and it is only
on account of the failure of R-4 in the O.A. (The Superintendent,
Taluk Hospital, Sasthamcotta) in properly explaining the facts to
the audit party has unnecessarily raised certain objections by
O.P.(KAT) No. 63 of 2020
..5..
them, and that it can be seen from a mere reading of Anx.A-2 letter
issued by R-3 in the O.A. (The District Medical Officer (Health)
concerned) that R-4 in the O.A. has not submitted any proper
explanation to said audit objections. R-3 in the O.A. would
contend in the reply statement that the applicant had not
responded when he was informed about the audit objections.
The original applicant has asserted the correctness of
abovesaid statement and would contend that no prior notice
has ever been issued to him proposing any liability and
providing him the materials on the basis of which the audit
objections were raised, and also giving a reasonable opportunity
to rebut the correctness of those aspects so as to convince the
authorities concerned, that no such liabilities could be indebted
to him. That, at any rate this procedure should have been
strictly followed, and the entire proceedings should have been
finalized with prior notice to the applicant and reasonable
opportunity after providing the adverse materials, and the alleged
quantified liabilities should be duly intimated to a pensioner
like the original applicant within an outer time limit of 3 years
from the date of retirement of the pensioner as mandated in
O.P.(KAT) No. 63 of 2020
..6..
Note 3 to Rule 3 of Part III KSR.
6. After hearing both sides the Tribunal has taken the
view that from the pleadings and materials on record it can be
seen that the said procedural formalities mandated in Note 3 to
Rule 3 of Part III KSR has never been followed by the
respondents in the O.A., and that no show cause notice was
issued to the original applicant pinpointing about the alleged
liabilies based on Anx.A-2 and disclosing about the materials on
the basis of which alleged liabilities were stated therein, and also a
reasonable opportunity to him to rebut the correctness of those
materials and then to quantify whether there are any liabilities
and then take a decision not only to quantify the liability
but also to intimate said alleged liabilities to the pensioner
within an outer time limit of 3 years from the date of retirement
of the pensioner as mandated in Note 3 to Rule 3 of Part III KSR.
7. It is well settled that the abovesaid procedure as
mentioned hereinabove should be scrupulously adhered to by the
authorities concerned if any alleged liabilities as understood in
Note 3 to Rule 3 of Part III KSR are to be ordered to be recovered
from the pensioner and for that purpose the outer time limit of
O.P.(KAT) No. 63 of 2020
..7..
3 years from the date of retirement of the pensioner has to be
strictly adhered to as mandated in Note 3 to Rule 3 of Part III KSR,
and within the outer time limit of 3 years from the date of
retirement of the pensioner the entire process of notifying the
liabilities to the pensioner giving him opportunity to know the
materials on the basis of which the alleged liability were so
alleged and also opportunity to him to rebut it and after hearing
him the competent authority should pass orders so as to decide as
to whether there are any such liability and to quantify liability
and then to intimate alleged liability to the pensioner so that
the entire procedure in that regard are duly completed within the
outer time limit of 3 years from the date of retirement of the
pensioner.
8. In the instant case, the respondents in the O.A. have
totally failed to adhere to this mandatory procedure, and hence
the Tribunal is fully right in giving the impugned directions. We
find no merit in the contentions raised by the petitioners in
this O.P. and the petition is liable to be dismissed. However, we
note that the directions have been given by the Tribunal as per
Ext.P-7 final order rendered as early as on 3.7.2019. The present
O.P.(KAT) No. 63 of 2020
..8..
O.P. has been filed before this Court on 7.2.2020. Accordingly we
order that the impugned directions of the Tribunal shall be
complied with by the petitioners within an outer time limit of
6 weeks from the date of production of a certified copy of this
judgment.
With these observations and directions, the above
Original Petition will stand dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
T.R.RAVI, JUDGE
SDK
MMG
O.P.(KAT) No. 63 of 2020
..9..
APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A. (EKM)
NO.1218/2015 ALONG WITH EXHIBIT P1
(A1) TO EXHIBIT P1 (A8) BEFORE THE
KERALA ADMINISTRATIVE TRIBUNAL
EXHIBIT P1 (A1) TRUE COPY OF THE LIABILITY CERTIFICATE
DATED 31.03.2012
EXHIBIT P1 (A2) TRUE COPY OF THE LETTER NO.D6-
6435/2010/DMOH.K DATED 05.10.2015
EXHIBIT P1 (A3) TRUE COPY OF THE BOND DATED 21.10.2015
EXHIBIT P1 (A4) TRUE COPY OF THE CIRCULAR
NO.90/2014/FIN DATED 08.10.2014 OF THE
GOVERNMENT
EXHIBIT P1 (A5) TRUE COPY OF THE LETTER OF THE
APPLICANT ADDRESSED TO THE PRINCIPAL
SECRETARY TO GOVERNMENT DATED
12.11.2015
EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT
FILED BY THE FIFTH PETITIONER ON
13.05.2016
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED
BY THE THIRD PETITIONER ON 03.06.2016
ALONG WITH EXHIBITS
EXHIBIT P3 (R3(A)) TRUE COPY OF LETTER NO.D6-
6435/10/DMOHK DATED 22.03.2010
EXHIBIT P3 (R3(B)) TRUE COPY OF LIABILITY CERTIFICATE
EXHIBIT P3 (R3(C)) TRUE COPY OF GO(P) NO.397/15/FIN DATED
11.09.2015
O.P.(KAT) No. 63 of 2020
..10..
EXHIBIT P4 A TRUE COPY OF THE REPLY STATEMENT
FILED BY THE SECOND RESPONDENT ON
14.12.2016 ALONG WITH EXHIBITS
EXHIBIT P4 (R2(A)) A TRUE COPY OF THE NOTICE
NO.AE3(AE6)/60142/11/DHS DATED
03.05.2012
EXHIBIT P4 (R2(B)) A TRUE COPY OF THE
NO.AE3(AE6)/60142/11/DHS DATED
14.06.2012
EXHIBIT P4 (R2(C)) A TRUE COPY OF THE GO(P) NO.397/15/FIN
DATED 11.09.2015
EXHIBIT P5 A TRUE COPY OF THE REJOINDER FILED BY
THE APPLICANT ON 11.06.2019 ALONG WITH
EXHIBITS
EXHIBIT P5 (A6) TRUE COPY OF THE LETTER DATED
27.01.2011 TO THE 3RD RESPONDENT FROM
THE 4TH RESPONDENT ALON WITH REPLY TO
AUDIT OBJECTION
EXHIBIT P5 (A7) TRUE COPY OF THE LETTER
NO.D6.6435/10/DMOHK DATED 30.10.2014
OF THE 3RD RESPONDENT
EXHIBIT P5 (A8) THE TRUE COPY OF THE LETTER NO.D6-
6435/2010/DMOHK DATED 05.10.2015 OF
THE 3RD RESPONDENT
EXHIBIT P5 (A9) TRUE COPY OF REPLY DATED 18.09.2015
EXHIBIT P6 A TRUE COPY OF THE MA NO.1404/2019 FOR
CORRECTION IN REJOINDER ON 02.07.2019
EXHIBIT P7 A TRUE COPY OF THE ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL DATED
03.07.2019
