Allowed

Ayyappan.P.M. v. State of Kerala

Kerala HC9 Nov 2020WP(C)/855/2014

Case brief

AI extract

What is this about?

The High Court quashed a recovery notice and related revenue proceedings against a retired former range officer. Relying on an earlier judgment finding the liability was fixed without notice, the Court held the petitioner cannot be asked to pay amounts part of that set-aside order or liabilities arising from dropped proceedings after retirement.

What did the court decide?

Exhibits P5, P7 and P9 are quashed, and the original petition is allowed.

Ayyappan.P.M. Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942

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WP(C).No.855 OF 2014(F)

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PETITIONER:

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AYYAPPAN.P.M. RETD.RANGE OFFICER, FOREST DEPARTMENT PANDIKADAN HOUSE, ARUVAPARA PO KURUPPAMPADY, PERUMBAVOOR ERNAKULAM DISTRICT.

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BY ADVS. SRI.C.A.MAJEED SRI.UNNIKRISHNAN NAIR SRI.K.H.ASIF SRI.C.RAMANATH KAMATH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY SPECIAL SECRETARY FOREST DEPARTMENT THIRUVANANTHAPURAM-695 001

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2 CHIEF CONSERVATOR OF FORESTS ADMINISTRATION DEPARTMENT THIRUVANANTHAPURAM-695 001

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3 DIVISIONAL FOREST OFFICER MALAYATTOOR, ERNAKULAM DISTRICT-683 587.

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4 DEPUTY TAHSILDAR REVENUE RECOVERY KUNNATHUNADU TALUK OFFICE PERUMBAVOOR-683 542

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R1-4- SP GOVERNMENT PLEADER (FOREST) SANDESH RAJA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.855 OF 2014 2

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JUDGMENT

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Dated this the 9th day of November 2020

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This writ petition seeks for a direction to quash Exts. P5, P7 and P9. Ext.P5 is a notice issued by the 3^rd respondent demanding an amount of Rs. 46,493/- from the petitioner. Ext.P7 is a notice threatening initiation of revenue recovery proceedings, while Ext.P9 is a notice of revenue recovery issued under Section 34 of the Kerala Revenue Recovery Act.

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Petitioner had retired from the Forest Department on

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29-02-2000, as a Forest Range Officer, after putting in 23 years of service. When after retirement, proceedings for recovery of alleged liability allegedly fixed against the petitioner was proposed to be recovered from his D.C.R.G, petitioner approached this Court in W.P.(C) No. 20345/2003. In the said writ petition, it was pointed out that liabilities were fixed by various Controlling officers against the petitioner in the years 2000, 2001 and 2002. However on none of those occasion notices were issued to the petitioner before fixing such liability. It was contented in the said writ petition that even after retirement no notice was issued to him before fixing any liability. Thus when proceeding were initiated to recover the

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WP(C).No.855 OF 2014 3

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alleged liabilities allegedly fixed against the petitioner he challenged the same by the aforesaid writ petition.

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By judgment dated 08.11.2006, produced as Ext.P4,

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this Court interfered with the impugned orders. This Court while disposing of the writ petition stated as follows: “ Petitioner is aggrieved by Ext. P4 order of fixation of liability and the consequential Ext. P6 revenue recovery notice. It is seen from Ext. P4 proceedings that the liabilities have been fixed in 2000,2001 and 2002 etc. by various controlling officers. The main ground taken in the writ petition is that during the entire service of the petitioner for around 23 years, no notice was issued to the petitioner regarding any liability. After the retirement of the petitioner on 29.02.2000 also, no liability was fixed with any notice to the petitioner it is submitted. There is no counter affidavit. It is now settled law that under Rule 3 Part III KSR liability can be fixed only with due notice to the employee. Since, there is no dispute that the fixation of liability is made without notice to the petitioner,

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the impugned orders are quashed. It will be open to the 1^st respondent to recover the loss, if any, caused in the process from the erring officers.

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The original petition is disposed of as above .”

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WP(C).No.855 OF 2014 4

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It is the contention of the learned Counsel for the petitioner that the very same liability after deducting few of the heads of liability fixed earlier are now attempted to be enforced against the Petitioner through the revenue recovery proceedings after issuing Ext.P5. A comparison of Ext. P5 and P3 shows that all the heads of liabilities in Ext.P5 form part of the liabilities fixed in Ext.P3 which stands set aside by Ext.P4 judgment. Ext.P5 is nothing but a reiteration of the earlier liabilities which stood concluded by Ext.P4.

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The respondents have filed a statement wherein it is stated that the judgment in Ext.P4 has no application to the present recovery proceedings initiated under the Revenue Recovery Act and also that the liabilities were fixed as per Annexures R3(a), R3(b), R3(c) and Annexure R3(e) in accordance with law, after due notice to the petitioner. It is contended that there is nothing that prevents the Government from recovering the liabilities already fixed after due notice to the petitioner. Relying upon the decision in Pappachan Vs. State of Kerala [2008(4) KLT 676] , the learned Special Government Pleader also contends that the Government has the power to recover the amounts due to it.

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I have considered the rival contentions. It seen from

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WP(C).No.855 OF 2014 5

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Ext.P4 as extracted above that this Court had already concluded that during the period of 23 years of service of petitioner with the forest department, no notice was issued to him before fixing any liability. It is also seen recorded by this Court, that the liabilities fixed in the years 2000, 2001 and 2002 by the various controlling officers were not after the petitioner was given notice. This Court also entered a finding that the fixation of liability against the petitioner was made without any notice to the petitioner.

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Ext.P4 judgment has become final and it is binding

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upon the petitioner as well as the respondents. This Court had already concluded that the liability of the petitioner was fixed without any due notice. This Court cannot at this juncture, ignore the said finding and enter a fresh finding that notice was issued prior to fixing the liability to the petitioner, as the learned Government Pleader wants. This Court is estopped by judgment from jumping into such conclusions. In the aforesaid circumstances, since the heads of liabilities shown in Ext.P5 was part of Ext.P3, which was in fact set aside by this Court in Ext.P4, the demand of payment of liabilities stipulated in Ext.P5 cannot be justified under any circumstances.

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Apart from the above, it is also seen that an amount

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WP(C).No.855 OF 2014 6

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of Rs. 37,800/- is fixed as a liability against the petitioner being the alleged dues on account of the barring of three annual cumulative increments ordered as per Ext.R3(e). Ext.R3(e) is an order of the year 1991. It is obvious that when barring of increment was ordered in 1991 and petitioner continued in service till 2000, the same would have automatically been applied and deducted from his salary. The said punishment of barring of increment cannot under any circumstances be regarded as loss caused to the Government and the same would have already been recovered from his salary. Similarly, Serial No.5 in Ext.P5 relates to liability of Rs. 5,000/- based on an alleged order dated 28-08-2000 No.C7 1011/93. This liability relates to Ext.R3(d). A reading of Ext.R3(d) shows that the proceedings against the petitioner in O.R. 2/93 was dropped in view of the fact that he was not served with any charge memo prior to his retirement. Accordingly, the liabilities could not have been fixed against the petitioner. The liability was on the face of it fixed on the assumption that the amount would be the amount to be recovered from the petitioner, if disciplinary proceedings are finalised against him. It seen from Ext.R3(d) that the disciplinary proceedings were dropped as against the petitioner on account of his retirement. So the liability under this head also does not survive.

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WP(C).No.855 OF 2014 7

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Since there are material contradictions in the fixation of liability as well as the various heads of liability noted, Ext.P5 is liable to be quashed. The demand made by the 3^rd respondent in Ext.P7 and the revenue recovery proceedings initiated as Ext.P9 have also, no legs to stand and the same are without any authority and are liable to be interfered with. In the result, Ext.P5, P7 and P9 are quashed and the original petition is allowed.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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SMF/09.11

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WP(C).No.855 OF 2014 8

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	EXT.P1 - PHOTOCOPY OF THE STATEMENT DATED 09-03-2001 FILED BY THE 3RD RESPONDENT
EXHIBIT P2	EXT.P2 - PHOTOCOPY OF THE JUDGMENT DATED 21-3-2001 IN O.P.NO.4652/2001 OF THIS HON'BLE COURT.
EXHIBIT P3	EXT.P3 - PHOTOCOPY OF THE ORDER DATED 12- 11-2002.
EXHIBIT P4	EXT.P4 - PHOTOCOPY OF THE ORDER DATED 08- 11-2006 INH WPC.NO.20345 OF 2003.
EXHIBIT P5	EXT.P5 - PHOTOCOPY OF THE NOTICE DATED 19-11-2012 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P6	EXT.P6 - PHOTOCOPY OF THE REPLY DATED 06- 12-2012 SUBMITTED BY THE PETITIONER
EXHIBIT P7	EXT.P7 - PHOTOCOPY OF THE NOTICE DATED 07-01-2013 ISSUED BY THE 3RD RESPONDENT
EXHIBIT P8	EXT.P8 - PHOTOCOPY OF THE REPLY DATED 22- 1-2013
EXHIBIT P9	EXT.P9 - PHOTOCOPY OF THE NOTICE DATED 30-11-2013

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//TRUE COPY PA TO JUDGE

Ayyappan.P.M. v. State of Kerala

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Ayyappan.P.M. v. State of Kerala

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