Allowed

E.Elizabeth Kurien v. State of Kerala

Kerala HC11 Dec 2018WP(C)/29850/2018

Case brief

AI extract

What is this about?

The Court allowed a writ petition by a retired Executive Engineer, holding that the State and the Corporation could not withhold her terminal benefits or effect recovery for alleged liabilities. The Court found no rule sanctioning post-retirement action against decertified employees to withhold dues, setting aside orders imposing the liability.

What did the court decide?

Exhibits P4, P4(a), and P9 set aside; respondents directed to disburse terminal benefits within two months.

E.Elizabeth Kurien Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 11TH DAY OF DECEMBER 2018 / 20TH AGRAHAYANA, 1940

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WP(C).No. 29850 of 2018

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PETITIONER/S:

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E.ELIZABETH KURIEN

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AGED 58 YEARS W/O.THOMAS JACOB, PALLIKKADAVIL KADAMBANKERIL HOUSE, COLLECTORATE P.O., KOTTAYAM - 686 002.

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BY ADVS. ELVIN PETER P.J. SRI.K.R.GANESH SMT.N.R.REESHA

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY, AGRICULTURAL DEPARTMENT, THIRUVANANTHAPURAM - 695 001.

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2 THE KERALA STATE WAREHOUSING CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, P.B.NO.1727, WAREHOUSING CORPORATION ROAD, ERNAKULAM, KOCHI - 682 016.

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3 THE MANAGING DIRECTOR THE KERALA STATE WAREHOUSING CORPORATION, P.B.NO.1727, WAREHOUSING CORPORATION ROAD, ERNAKULAM, KOCHI - 682 016.

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BY ADVS. SRI.MAJNU KOMATH, SC, K.S.W.C.

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SRI.RON BASTIAN, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 29850 of 2018

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JUDGMENT

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Petitioner who retired from service while working as Executive Engineer in the second respondent Corporation on 30.04.2018, is aggrieved by Ext.P4 notice and Ext.P9 letter for effecting recovery of a sum of Rs.3,51,291/ from her terminal benefits.

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2. While in service petitioner was served with Ext.P1 memo of charge dated 28.06.2016, alleging that she along with other members of the Implementation Committee failed to obtain sanction

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for renewal of agreement with contractors entrusted with works relating to a Modern Rice Mill at Alathur and Thakazhy, and committed irregularities, misappropriation, etc.

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3. Petitioner submits that all other members of the Implementation Committee retired from service after they also received similar charge

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memos and they got their retirement benefits without any recovery or even delay. It is pointed

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out that there was no complaint against her even

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WP(C).No. 29850 of 2018

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when one Sri. Vijayan filed a complaint against all other members of the committee, alleging irregularities, misappropriation, corruption, etc in the construction of Modern rice mill, before the Court of Commissioner & Special Judge. It is stated that a quick verification report was called for on that complaint against them and that in the report submitted on 18.04.2015, by the DySP, VACB, Ernakulam, who conducted an enquiry into the complaint, it was stated that there was no evidence to prove any of the allegations. Despite all this petitioner against whom there was no such complaint, is denied the terminal benefits, even after disbursing the other Officers their entire benefits. It is pointed out that the respondents did not take any further action pursuant to the memo of charges till the retirement of petitioner on 30.04.2018. But by Ext.P4 notice dated 18.06.2018 she was informed that a sum of Rs.3,51,291/- would be recovered from her. That

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notice was issued, based on Ext.P5 letter of

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WP(C).No. 29850 of 2018

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Government directing to fix the liability towards the loss of Rs.21,07,745/- alleged to have been sustained by the Corporation, apportioning the

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same among the Managing Director and 5 other officers and recover the same from them. The alleged loss was towards the purchase and storage of Urea. Though the petitioner submitted Ext.P8 representation on 03.07.2018 requesting to sanction her retirement benefits, the 3^rd respondent as per Ext.P9 letter informed her that

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the benefits would be disbursed only after settling her liability. This writ petition is filed in the above circumstances, challenging Exts.P4, P4(a) and P9 orders.

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4. The respondents filed a counter affidavit stating that the explanation submitted by the petitioner in answer to Ext.P1 memo of charges was not satisfactory; though the Ext.P3 report was submitted by VACB, Ernakulam, and he reported that no evidence was available with respect to any misappropriation, conspiracy, etc. The Chartered

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WP(C).No. 29850 of 2018

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Accountant, who conducted the financial unit of accounts of the Modern Rice Mill reported that there was no technical and financial study of any item-wise analysis. It is also stated that the Corporation has as per Ext.R2(b) letter requested the Government for a detailed enquiry through the Inspection Wing of the Finance Department of the Government based on Ext.R2(a) decision in its meeting held on 06.02.2018 and they are awaiting a response on it. It is stated that the pensionary benefits of petitioner can be disbursed only after obtaining the Liability / Non-liability certificates.

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5. Having heard the contentions on both sides, I find that there is no rule or regulation under which the respondents can withhold any of the terminal benefits due to the petitioner. No such rule or regulation is pointed out enabling the respondents either to proceed against the petitioner subsequent to the retirement or to recover any liability, which is not determined in

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WP(C).No. 29850 of 2018

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accordance with law while she was in service. The liability stated to have been fixed against the petitioner is in respect of certain amounts, which

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are objected in a report of the Chartered Accountants, to which she does not have any notice.

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6. In the counter affidavit the 2^nd

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respondent admits the fact that all the other members of the Implementation Committee, are already paid their terminal benefits even after

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the memo of charge was issued to them and a complaint was filed against them.

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7. It is also pertinent to note that there is

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no direction in Ext.P4(a) letter of Government to effect any recovery from the terminal benefits of petitioner. The direction was to take action for recovery of Rs.3,51,291/- towards loss sustained

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by the Corporation from the petitioner ' who

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continues in service ' in accordance with Regulation 21(2)(i) and (2)(iv) in Chapter I of Rules of conduct in the Kerala State Warehousing

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Corporation Regulations, 1963. At the same time as against those who retired from service, it was directed that in the event of non remittance by

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them even after notice and personal hearing, steps shall be taken to recover the same filing civil suit. Apparently, the Government issued the letter without taking note of the retirement of petitioner on 30.04.2018. Even assuming that there was a direction to effect any recovery or to withhold her terminal benefits, such direction

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cannot have any force in the eye of law, in the absence of any rules or regulation authorising such action against one who retired from service.

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8. As long as there is no provision to take

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action against an employee after his retirement i.e., after the employer-employee relationship

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severed, either to continue or to initiate disciplinary action and in the absence of any provision authorising recovery of any amount from terminal benefits towards liability, the action of

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the respondents in withholding the terminal

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WP(C).No. 29850 of 2018

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benefits of the petitioner is without authority and unjust and unsustainable. Exts.P4 and P4(a) as well as Ext.P9 are therefore liable to be set aside.

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Accordingly, Exts.P4 and P4(a) as well as Ext.P9 letters to the extent those relate to petitioner shall stand set aside. There shall be a direction to the respondents to disburse all the terminal benefits due to petitioner, within a period of two months from the date of receipt of a

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copy of this judgment. This will not prevent the respondents from taking any other action, in accordance with law, without affecting the terminal benefits due to the petitioner.

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Accordingly, this writ petition is allowed

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to the extent indicated above. Sd/-

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P.V.ASHA JUDGE

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOCOPY OF THE MEMO OF CHARGES DATED 28/06/2016. EXHIBIT P2 TRUE PHOTOCOPY OF THE ORDER DATED 16/04/2007 OF THE 3RD RESPONDENT CONSTITUTING THE COMMITTEE. EXHIBIT P3 TRUE PHOTOCOPY OF THE QUICK VERIFICATION REPORT SUBMITTED BY THE INVESTIGATING OFFICE OF THE VACB, ERNAKULAM. EXHIBIT P4 TRUE PHOTOCOPY OF THE NOTICE DATED 18/06/2018. EXHIBIT P4(A) TRUE PHOTOCOPY OF THE GOVERNMENT LETTER DATED 15/05/2018. EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER DATED 27/10/2001 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 24/01/2005 OF THE PURCHASE COMMITTEE RECOMMENDING THE PURCHASE OF UREA AND POTTASH. EXHIBIT P7 TRUE PHOTOCOPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 17/07/2018. EXHIBIT P8 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 03/07/2018 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P9 TRUE PHOTOCOPY OF THE COMMUNICATION DATED 30/07/2018 ISSUED BY THE 3RD RESPONDENT.

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WP(C).No. 29850 of 2018

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R2(A) TRUE COPY OF THE MINUTES OF 224TH EXECUTIVE COMMITTEE MEETING OF KSWC.

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EXHIBIT R2(B) TRUE COPY OF THE LETTER NO.KSWC/ADMIN3/ GOVT/2017-18 DATED 06.02.2018 SENT BY THE MANAGING DIRECTOR OF THE KSWC TO THE PRINCIPAL SECRETARY TO GOVERNMENT.

E.Elizabeth Kurien v. State of Kerala

Case brief

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E.Elizabeth Kurien v. State of Kerala

Case brief

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