Kerala High Court
The Director, Museums And Zoo vs K.Surendran on 3 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
OP(KAT) NO. 212 OF 2021
AGAINST THE ORDER IN TA NO.6934/2012 DATED 26.09.2018 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN T.A.:
1 THE DIRECTOR, MUSEUMS AND ZOO,
DIRECTORATE OF MUSEUMS AND ZOOS,
THIRUVANANTHAPURAM, KERALA, PIN-695036.
2 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
CULTURAL AFFAIRS (B) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001, KERALA.
BY ADV GOVERNMENT PLEADER
RESPONDENT/APPLICANT IN T.A.:
K.SURENDRAN
AGED 68 YEARS, S/O. T.KESAVAN,
RESIDING AT CHARUVILA VEEDU, NADAMEL, EDAKKIDAM P.O.,
EZHUKONE, KOTTARAKKARA, KERALA, PIN-691506.
OTHER PRESENT:
SRI.B.UNNIKRISHNA KAIMAL, SR.GOVT.PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT) NO. 212/2021 2
ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
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O.P (KAT) No.212 of 2021
[arising out of the impugned final order dated 26.09.2018
in T.A. (Ekm) No.6934/2012 on the file of the KAT, Tvm Bench]
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Dated this the 03rd day of September, 2021
JUDGMENT
Alexander Thomas, J.
The above original petition, filed by the State of Kerala and the
Director of Museums and Zoos, by invoking the provisions
contained in Articles 226 & 227 of the Constitution of India, arises
out of the impugned Anx.A2 final order dated 26.09.2018, rendered
by the Kerala Administrative Tribunal in Transferred Application,
T.A. No. 6934/2012.
2. As a matter of fact, the original proceedings were
initiated by the original applicant/the sole respondent herein, by
filing a writ petition (civil), W.P.(C) No.1280/2011 before this Court.
After the establishment of the Kerala Administrative Tribunal in
accordance with the provisions contained in the Administrative
Tribunals Act, 1985, the above writ petition (civil) No.1280/2011
was transferred to the Tribunal which has initiated the said
proceedings as instant Transferred Application, T.A. No.6934/2012.
In other words the present verdict of the Tribunal in T.A.
No.6924/2012, arises out of the abovesaid writ proceedings, W.P.(C)
No.1280/2011, filed by the respondent herein.
3. The prayers in the instant Transferred Application/writ
proceedings are as follows [see page Nos.21 & 21(a) of this paper
book]:-
"i. to issue a writ of certiorari or other appropriate writ order or
direction to quash Exhibit-P10;
ii. To issue a writ of mandamus or other appropriate writ order or
direction directing the respondents to disburse the gratuity to the
petitioner without any deduction;
iii. To issue a writ of mandamus or other appropriate writ order or
direction directing the 2nd respondent not to effect any recovery
from the petitioner's DCRG as proposed in Ext.P10;
AND
iv. to pass such other and further orders as are deemed just and
necessary in the facts and circumstances of the case."
4. The Tribunal, after hearing both sides has rendered the
impugned Anx.A2 final order holding that since Ext.P10 order dated
04.09.2010 has been passed by the State Government fixing the
alleged liability to the tune of Rs.98,800/- to be recovered from the
DCRG of the original applicant has been finalised after the expiry of
the 3 years outer time limit mandated in Note 3 to Rule 3 Part-III
KSR, inasmuch as the original applicant had retired from service on
30.09.2006, the liability fixation process at Ext.P10 is illegal,
ultravires and unenforceable and that therefore the full amount of
DCRG shall be released to the original applicant.
5. It is this verdict of the Tribunal at Anx.A2, that is under
challenge in the present original petition filed at the behest of the
State of Kerala and the Director of Museums and Zoos.
6. Heard Sri.B. Unnikrishna Kaimal, learned Senior
Government Pleader, appearing for the petitioners in the
O.P./respondents in the T.A.
7. In the nature of the orders proposed to be passed in this
O.P., notice to the 3rd respondent herein/original applicant in the
O.A. will stand dispensed with.
8. While the original applicant was holding the post of U.D.
Clerk (UDC) in charge of the Museums and Zoos, Ext.P1 memo of
charges dated 10.09.1997 was issued against him for disciplinary
proceedings alleging that the original applicant was involved in a
case of unauthorised sale of tickets through the counter. After
completion of the disciplinary proceedings Ext.P5 penalty order
dated 01.04.2003 was issued by the competent authority inflicting a
penalty of reduction of 2 annual increments without cumulative
effect on the original applicant. The original applicant had not
sought to challenge Ext.P5 penalty order and the same has become
final. It appears that the original applicant was promoted to the next
category post of Junior Superintendent in the Directorate of
Museums and Zoos.
9. Later, about 5 months prior to his retirement, Ext.P6
show notice dated 18.04.2006 was issued by the Director of
Museums and Zoos, calling upon the original applicant to show
cause as to why an amount of Rs.98,800/-, which is stated to be the
loss caused by him to the Government should not be recovered from
him. Thereupon, the original applicant had immediately submitted
Ext.P7 reply dated 02.06.2006 giving his objections to the proposed
action at Ext.P6 show cause notice. He has specifically contended
that he cannot be held responsible in any manner, to the loss of the
tickets or its unauthorised sale. The only fault on his part was the
failure in properly effecting the entries in the stock register and as he
has been already imposed with a penalty as per Ext.P5 in that
regard, no further action on the ground of causing any loss to the
Government for recovery of loss may be taken against him.
10. The Director of Museums and Zoos had then forwarded
Ext.P7 explanation to the competent authority of the State
Government as per Ext.P8 letter dated 21.12.2006 with a specific
recommendation that a lenient view may be taken in the case of the
original applicant. Thereafter, the original applicant has retired
from service on 30.09.2006, while holding the post of Junior
Superintendent in the Directorate of Museums and Zoos. It is long
thereafter the issuance of Ext.P6 show cause notice and Ext.P8
forwardal that the competent authority of the State Government has
issued the impugned Ext.P10 order dated 04.09.2010 holding that
since the original applicant was the custodian of the tickets, the
unauthorised sale of the tickets would have occurred only due to his
negligence. Further it is stated therein that these aspects are evident
from the report dated 28.12.2004 furnished by the Vigilance and
Anti Corruption Bureau (VACB). Hence, on this premise the State
Government by Ext.P10 order dated 04.09.2010 had directed that
the entire amount of Rs.98,800/- should be recovered from the
DCRG of the original applicant.
11. After hearing both sides, the Tribunal has noted that
there is no reference in Ext.P7 show cause notice about the report
dated 28.12.2004 of the VACB referred to in Ext.P10 final order
dated 04.09.2010 issued by the State Government. Going by the
pleadings and materials on record it is specifically found that there
was a finding in Ext.P9 letter dated 31.03.2005 of the Director of the
Vigilance and Anti Corruption Bureau addressed to the Additional
Chief Secretary to Government, Vigilance Department that the
recovery of the amount of Rs.98,800/- is to be done in equal portion
from the original applicant herein and one Sri.J.John, who was the
then Daffedar. Further the Tribunal has also found that yet another
report of the Vigilance Department, viz., Ext.P3 report dated
09.07.1997, the Vigilance Officer of the Department of Museums
and Zoos has found that the culpable persons are the abovesaid
Sri.John and one Sri.Rajappan and that they are solely responsible
for the unauthorised sale of the tickets and also that the said
incumbents have made clear admissions on their part.
12. The Tribunal has found that at no point of time, the
original applicant was a party in the proceedings before the
Vigilance and Anti Corruption Bureau. Hence the Tribunal has
found that there are conflicting materials to even doubt as to
whether the original applicant therein could be made liable at all or
whether in what proportion he is liable to pay the alleged loss.
Further, the Tribunal has also noted that from the available
materials there is no legal basis in arriving at a conclusion that the
entire amount of Rs.98,800/- could be reckoned as the loss caused
to the Government since there has been no evidence to hold that the
entire lost tickets were sold unauthorisedly.
13. Hence the Tribunal has found that these crucial and
relevant aspects of the matter has not been taken into account by the
competent authority of the State Government while arriving at their
decision at Ext.P10.
14. Very cardinally the Tribunal has found that the statutory
procedure to be complied with in the instant case for finalising
liability was one in terms of Notes 2 & 3 of Rule 3, Part-III, KSR. It
is trite and well settled position and the same does not require
citation of the judicial authority that liabilities which can be
otherwise arrived at without recourse to the disciplinary proceedings
and the judicial proceedings as conceived in the operative portion of
Rule 3 Part-III KSR, could be the subject matter of computation in
terms of the summary procedure envisaged in Notes 2 & 3 of Rule 3
Part-III, KSR. However, the mandate of the said statutory provision
is that the said summary procedure should comply with the
minimum requirements of natural justice inasmuch as show cause
notice should be issued to the incumbent and all adverse materials
should be given to the incumbent to defend his case that he is not
liable for the alleged amount. Thereafter the incumbent should be
given reasonable opportunity of being heard and then only the
competent authority can finalise the liability but the entire process
should be finalised within an outer time limit of 3 years from the
date of retirement as mandated in Note 3 to Rule 3 Part-III, KSR.
15. In the instant case the Tribunal has found that the
applicant has retired from service on 30.09.2006, whereas the State
Government has issued Ext.P10 order dated 04.09.2010, fixing the
liability of Rs.98,800/- for the first time, which is much beyond the
outer time limit of 3 years from the date of retirement. Further, it
appears that Ext.P10 order dated 04.09.2010 was actually
communicated to the petitioner only as per Ext.P11 letter dated
07.10.2010. Be that as it may, even if it is assumed that Ext.P10
order dated 04.09.2010 was communicated to the petitioner on the
same day, the issuance of Ext.P10 is much after the outer time limit
of 3 years from the date of retirement. Hence, the Tribunal cannot
be faulted with for having issued the impugned directions and
orders that the liability fixation process at Ext.P10 is illegal and
ultravires for the provisions contained in Note 3 to Rule 3 Part-III
KSR, and hence the said liability fixation process is unenforceable
and inoperative in law. Consequently, the Tribunal has rightly
directed that the respondents in the T.A./the petitioners herein shall
immediately release the full amount of DCRG due to the original
applicant without much delay, at any rate, within 2 months. Hence,
we are of the view that no grounds in public law are made out in the
instant case so as to warrant interdiction of this Court in the
considered verdict of the Tribunal at Anx.A2. However, we noted
that the original applicant has retired from service as early as on
30.09.2006. The allegations pertained to the period 1997 or so.
16. The impugned verdict at Anx.A2 has been rendered by
the Tribunal as early as on 26.09.2018. Therefore, there cannot be
any further delay on the part of the petitioners herein to comply with
the directions of the Tribunal. Hence it is ordered that the
petitioners herein/the respondents in the T.A. shall immediately
release the full amount of DCRG to the original applicant, as ordered
by the Tribunal, within 6 weeks from the date of receipt of a certified
copy of this judgment.
17. The Secretary to the office of the Advocate General will
immediately forward copies of this judgment to both the petitioners
herein/the respondents in the T.A. for necessary information and
immediate action for compliance.
18. The Registry will forward a copy of this judgment to the
sole respondent herein/sole applicant in the O.A. by registered
speed post for necessary information.
With these observations and directions, the above original
petition will stand dismissed.
Sd/-
ALEXANDER THOMAS,
JUDGE
Sd/-
A. BADHARUDEEN,
JUDGE
Skk//09092021
APPENDIX OF OP(KAT) 212/2021
PETITIONER ANNEXURE
ANNEXURE A1 A TRUE COPY OF THE T.A.NO.6934/2012
ALONG WITH EXHIBITS P1 TO P14 BEFORE
THE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT P1 A COPY OF THE CHARGE MEMO DATED
10.9.1997.
EXHIBIT P2 A COPY OF EXPLANATION DATED 20.10.1997.
EXHIBIT P3 A COPY OF THE REPORT DATED 9.7.1997 OF
THE VILLAGE OFFICER.
EXHIBIT P4 A COPY OF THE REPORT DATED 5.1.1998.
EXHIBIT P5 A COPY OF THE ORDER DATED 1.4.2003.
EXHIBIT P6 A COPY OF THE SHOW CAUSE NOTICE DATED
18.4.2006.
EXHIBIT P7 A COPY OF REPLY DATED 2.6.2006.
EXHIBIT P8 A COPY OF LETTER DATED 21.12.2006.
EXHIBIT P9 A COPY OF THE REPORT DATED 3.3.2005.
EXHIBIT P10 A COPY OF PROCEEDINGS DATED 4.9.2010.
EXHIBIT P11 A COPY OF THE COVERING LETTER DATED
7.10.2010.
ANNEXURE A2 A TRUE COPY OF THE FINAL ORDER OF THE
KERALA ADMINISTRATIVE TRIBUNAL DATED
26.9.2018 IN THE AFORESAID TRANSFERED
APPLICATION.
ANNEXURE A3 A TRUE COPY OF THE REPLY STATEMENT
FILED BY THE FIRST PETITIONER ON
26.3.2013.
ANNEXURE A4 A TRUE COPY OF THE MISCELLANEOUS
APPLICATION NO.1711/2016 ALONG WITH
ANNEXURES FILED ON 8.6.2016 FOR
PRODUCING ADDITIONAL DOCUMENTS BY THE
RESPONDENT.
ANNEXURE MA1 TRUE COPY OF LETTER
NO.PO1/PENA/1192/CC/98-99/606 DATED
19.9.2014 ISSUED BY THE OFFICE OF THE
ACCOUNTANT GENERAL.
ANNEXURE MA2 TRUE COPY OF THE LETTER
NO.7168/B/2/11/CAD DATED 18.1.2012
ISSUED BY THE FIRST RESPONDENT TO THE
SECOND RESPONDENT.
ANNEXURE MA3 TRUE COPY OF THE LETTER
NO.8410/B2/2014/CAD DATED 2.3.2016
ISSUED BY THE FIRST RESPONDENT TO THE
SECOND RESPONDENT.
ANNEXURE A5 A TRUE COPY OF THE MISCELLANEOUS
APPLICATION NO.2531/2016 FOR AMENDING
TRANSFER APPLICATION FILED BY THE
RESPONDENT ON 12.8.2016.
ANNEXURE A6 A TRUE COPY OF THE ADDITIONAL REPLY
STATEMENT FILED BY THE FIRST PETITIONER
ON 18.9.18 IN THE TRANSFERED
APPLICATION.
