Writ petition challenging a liability certificate deducted from death-cum-retirement gratuity without notice or hearing. Court held procedure violated and directed release of amount.
Liability certificate set aside and amounts withheld directed to be released to the petitioner within two months from receipt of judgment.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 7TH DAY OF OCTOBER 2016/15TH ASWINA, 1938
WP(C).No. 26968 of 2014 (U) ----------------------------
PETITIONER(S):
HAPPYJOB.K., AGED 57 YEARS,
W/O.THAMPI PULIKOTTIL, PULIKOTTIL HOUSE, EDATHARA P.O., PALAKKAD - 678 611.
BY ADVS.SRI.SAJEEV KUMAR K.GOPAL
SRI.R.HARISHANKAR
RESPONDENTS:-:
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1. THE DIRECTOR OF PUBLIC INSTRUCTIONS
OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695 001.
2. THE DISTRICT EDUCATIONAL OFFICER,
OFFICE OF THE DISTRICT EDUCATIONAL OFFICER, PALAKKAD, PIN - 678 001.
3. THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD, PIN - 678 001.
4. THE ASSISTANT EDUCATIONAL OFFICER,
OFFICE OF THE ASSISTANT EDUCATIONAL OFFICER, PARALI, PIN - 678 611.
5. THE HEADMASTER,
PARALI HIGH SCHOOL, PARALI, PALAKKAD, PIN - 678 611.
6. THE MANAGER,
PARALI HIGH SCHOOL, PARALI, PALAKKAD, PIN - 678 611.
R1 TO R4 BY GOVERNMENT PLEADER SMT.POOJA SURENDRAN R5 & R6 BY ADVS. SRI.S.SIDHARDHAN SRI.V.N.MADHUSUDANAN SRI.PRATHAP. S.R.K. SMT.R.UDAYA JYOTHI DR.V.N.SANKARJEE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 26968 of 2014 (U)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1: TRUE COPY OF THE LETTER NO.PR.2101393467/P7/3/1013193221 ISSUED BY THE 3RD RESPONDENT DATED 04.06.2013. EXHIBIT P2: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 5TH RESPONDENT DATED 07.08.2013. EXHIBIT P2(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2. EXHIBIT P3: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 13.01.2014. EXHIBIT P3(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P3. EXHIBIT P4: TRUE COPY OF THE RELEVANT PAGES OF CASH BOOK REGISTER OF PARLI HIGH SCHOOL. EXHIBIT P4(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P4. EXHIBIT P5: TRUE COPY OF THE RELEVANT PAGES OF THE BANK PASSBOOK OF PARLI HIGH SCHOOL MAINTAINED WITH STATE BANK OF TRAVANCORE. EXHIBIT P6: TRUE COPY OF THE RECEIPT ISSUED BY THE PETITIONER. EXHIBIT P7: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 05.03.2014. EXHIBIT P7(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7. EXHIBIT P8: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P8(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P8. EXHIBIT P9: TRUE COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT DATED 23.06.2014.
WP(C).No. 26968 of 2014 (U)
EXHIBIT P10: TRUE COPY OF THE REPORT DATED 20.07.2014. EXHIBIT P11: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 07.07.2014. EXHIBIT P11(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P11. EXHIBIT P12: TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT REPORT OF THE ASSISTANT EDUCATIONAL OFFICR RELATING TO THE SCHOOL. EXHIBIT P12(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P12. EXHIBIT P13: TRUE COPY OF THE RELEVANT PAGES OF AUDIT REPORT OF THE ASSISTANT EDUCATIONAL OFFICER RELATING TO THE NOON MEAL PROGRAMME DATED 12.07.2013. EXHIBIT P13(A): TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P13. EXHIBIT P14: TRUE COPY OF THE LIABILITY CERTIFICATE VIDE NO.D3/5983/2013 ISSUED BY THE 3RD RESPONDENT DATED 07.08.2014. EXHIBIT P15: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER RECEIVING THE DCRG UNDER PROTEST. EXHIBIT P16: COPY OF THE RECEIPT ISSUED BY SRI.K.T.PURUSHOTHAMAN, RETIRED HEAD MASTER TO THE PETITIONER DT 25/1/2013. RESPONDENT(S)' EXHIBITS : ----------------------EXT R5(a): COPY OF THE CIRCULAR NO.77/2011 DT 2/11/2011 EXT.R5(b): COPY OF THE CIRCULAR NO.20695/12 DT 26/9/2012.
//TRUE COPY//
P.A.TO JUDGE
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ANU SIVARAMAN, J.
= = = = = = = = = = = = = = = W.P.(C).No.26968 of 2014 = = = = = = = = = = = = = = = Dated this the 7th day of October, 2016
JUDGMENT
W.P.(C).No.26968/14
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communication is dated 23.06.2014, which was after the retirement of the petitioner. Thereafter, Ext.P10 communication was again issued by the Headmaster to the Deputy Director of Education (DDE for short) stating that the amount of liability of the petitioner is Rs.23191/-. The petitioner had preferred Ext.P11 representation before the DDE showing the entire details of the amounts drawn and expended by her and claiming that no amounts were due from her. However, without considering any of the objections and without issuing any formal order on the objections raised by the petitioner, Ext.P14 liability certificate dated 7.08.2014 was issued showing the liability of Rs.23,191/-. It is contended that this amount was thereafter deducted from the petitioner's DCRG and the DCRG was released to her only on 18.08.2014 after making the deduction as above. This is under challenge in this writ petition.
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4.Respondents 5 and 6 have filed a counter affidavit stating that the Headmaster had forwarded reports as regards the liability of the petitioner to the DDE and it is on that basis that the liability certificate was issued to the petitioner. The 3rd respondent has also filed a counter affidavit. It is stated therein that the 5th respondent, by communication dated 21.07.2014 had requested to fix an amount of Rs.23,191/- as liability against the petitioner as the excess amount drawn towards Noon Meal Programme. The 2nd respondent as per letter No.A3/97/14 has also given liability certificate for an amount of Rs.23,191/- against the petitioner. It is further stated that “therefore, 6th respondent issued Ext.P14 liability for an amount of Rs.23,191/- as per letter dated 18.08.2014 and the petitioner vide communication dated 18.08.2014 had informed that he was in receipt of DCRG after deducting the amount fixed as liability”.
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Note 2 to Rule 3 of Part III KSR is also relevant which reads as follows:-
“The word 'pension' used in this rule does not include death-cumretirement gratuity. Liabilities fixed against an employee (or pensioner) can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee (for pensioner) concerned a reasonable opportunity to explain.”
Note 3 to Rule 3 of Part III KSR provides as follows:-
“ Note 3:- The liabilities of an employee should be quantified either 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.”
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pending realisation from the petitioner, no notice has been served on the petitioner by the DDE before the liability was fixed. Though the petitioner had preferred a representation before the DDE pointing out the factual aspects of the matter, no consideration of such representation is apparent from the records in this case. The counter affidavit filed by the 3rd respondent also does not disclose any consideration of the objection of the petitioner. There has, therefore, been no quantification of liability with notice to the petitioner as required by law. The procedure clearly set out in Part III of the KSR with regard to fixation of liability has been observed in its breech. In the above circumstances, I am of the view that Ext.P14 liability certificate which was issued without quantifying and intimating the liabilities to the petitioner is bad in law. Ext.P14 is, therefore, set aside.
8.The petitioner has retired from service on 31.05.2013. Fixation of liability with notice to an employee is possible only within three years of the date of his retirement in terms of Notes 2 and 3 to Rule 3 of Part III KSR. In the above
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circumstances, I do not find it fit to permit the respondents to carry out any further steps in relation to the fixation of liability of the petitioner in the matter. This writ petition is, therefore, ordered directing the respondents to release the amounts covered by Ext.P14 to the petitioner forthwith, at any rate within a period of two months from the date of receipt of a copy of this judgment.
sd/ Anu Sivaraman, Judge
sj7/10
2 issues framed by the court
Whether a liability certificate issued against a retired employee without prior notice and opportunity of hearing violates procedural rules.
Whether the Department can quantify and recover a liability from the death-cum-retirement gratuity within three years of retirement.
Happyjob.K.
The Director of Public Instructions
The District Educational Officer
The Deputy Director of Education
The Assistant Educational Officer
The Headmaster
Anu Sivaraman
As recorded by the court registry
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