Sajanimol K vs State Of Kerala & Ors.

“i)

To set aside Annexure A17;

ii) To set aside Annexure A16;

iii) To declare that the issuance of Annexure A17 is illegal and without jurisdiction;

iv) To declare that the issuance of Annexure A16 is illegal and arbitrary.

v)

To command respondent Nos. 1 to 3 to disburse the DCRG of the applicant after deducting an amount of Rs. 88,805/-.

vi) To issue a direction commanding the respondents 1 to 3 to pay interest on the delayed the payment of pension and pensionary benefits including DCRG and at the applicable rate, from 31.05.2020, till the date of payment.”

“3.

It is not true that the issuance of the liability certificate to the applicant is arbitrary and in clear violation of statutory provision. The applicant has been issued a liability certificate within the period of one year, i.e., on 12.05.2021 for an amount of Rs.3,43,47,128/- in compliance of the direction contained in the O.A.(EKM) No.709 of 2021 filed by the applicant. There was a direction to issue liability/non liability certificate to the applicant within one month from the receipt of the judgment in the O.A.(EKM) No.709 of 2021. Since the audit of the Assistant Director of Agriculture Kanhangad was completed during 18.11.2020 and the report was issued to the Assistant Director of Agriculture Kanhangad on 22.04.2021 the clearance of most objections raised in the Audit Report was not possible within the time limit issued by the Honorable Kerala Administrative Tribunal and hence a lot of objection were not cleared by the applicant and hence the amount of Rs.3,43,47,128/- was issued as her liability within the time limit fixed by the Kerala Administrative Tribunal. Further since it was the time of Covid-19 pandemic and lock down period, the detailed review of the audit objections by verifying documents at various krishibhavans and farms from where supply of planting materials were effected and various co-operative banks through which assistance were issued to farmers were not possible at that time. Hence the review was conducted during 30.10.23 to 02.11.23 at Assistant Director of Agriculture Office Kanhangad, Krishibhavan Pullur periya. Pallikkara, Udma and State Seed Farm Pullur and other offices and verifying the documents which were not produced at the time of Audit and the liability of Rs.3,43,47,128/- initially fixed was reduced to Rs.41,07,650/-. Further the applicant was issued a registered letter to appear for hearing and produce documents if any during the course of review. She was issued the letter by hand through special messenger also. But she had not acknowledged the same and did not appear during the review. Hence the procedures as directed by the 2^nd respondent has been followed as per rule before issuing the liability of Rs.41,07,650/-. The applicant's argument that till the filing of O.A.(EKM) No.464 of 2020 there was no audit objection is not true. There were several audit objections against the applicant in her tenure as Agricultural Officer Pullur Periya and Assistant Director of Agriculture Kanhangad which were raised during the period from 2010 to 2014. Many objections were raised during the period when she was in charge of the above offices. She had not cleared most of the objections by giving reply and producing supporting documents at that time. The Finance Inspection (NT-6) wing has conducted a surprise Inspection at the Assistant Director of Agriculture Office Kanhangad on 13.06.2018 and forwarded the report vide letter dated 23.02.2019 wherein the objections regarding the drawal of an amount Rs.3,78,000/- without proper vouchers and applications supporting the expenditure under fallow land cultivation of rice under Krishibhavan. Kanhangad during 2016-17 and depositing the amount in Assistant Directors account without disbursement. The report of the finance wing had recommended disciplinary action against the applicant and recovery of interest @18% from M.P.Premalatha and the applicant from the date of withdrawal of the amount. Process of initiating disciplinary action was finalized by issuing charge memo on 26.03.2020 vide No.26/EA3/2020AGRI dated 26.03.2020 and the memo of charge was issued on 24.06.2020 and the delay in serving the memo was only administrative. Further there were audit objections against the applicant during her tenure as Agricultural Officer. Krishibhavan Pullur Periya and Assistant Director of Agriculture, Kanhangad from 28.02.2011 10 31.03.2016. While she was working as Assistant Director of Agriculture. Kanhangad and Deputy Director of Agriculture (NWDPRA) at Kasaragod, she has replied to some audit objections during these periods on 04.07.2014 and 25.04.2015. 14.01.2016, 04.05.2016, 21.11.2016. 13.01.2017. Hence the argument that there was no audit objection pending against her during her Services is not true. True copies of the objections given by the applicant is produced herewith and marked as Annexure R4(a).

4.

The allegation of drawal of amount of Rs.3,78,000 without proper claim and no disbursement of the amount to the eligible beneficiaries was in the inspection conducted during 2018 itself and hence it is not true that the charge memo was issued to delay the promotion of the applicant The memo of charges were issued based on the recommendation in the inspection report of the finance Inspection wing.

5.

The audit objection pertaining to the period of her tenure as Deputy Director of Agriculture (NWDPRA) has been communicated and reply obtained has been furnished to Director of Agriculture. Thiruvananthapuram.

6.

Since the disciplinary proceedings started during the applicant's service as Principal Agricultural Officer and many audit objections raised during her tenure as Agricultural Officer, Assistant Director of agriculture were not cleared by her, the issuance of NLC at the time was not possible. Though she was aware of the audit objections of these periods she has not taken earnest efforts to clear the objections by producing supporting documents. Hence the 4^th respondent issued Liability Certificate on 12.05.2021 based on the direction of Honorable Kerala Administrative Tribunal in O.A.(EKM)No.709 of 21 on 09.04.2021.

7.

It is submitted that the 4^th Respondent had issued liability certificate for an amount of Rs.3,43,47,128/- to the applicant 24.05.2021 based on an amount of Rs.4,09,51,562/- reported by the Assistant Director of Agriculture Kanhangad and Agricultural Officer. Krishibhavan. Pullur Periya after scrutiny. As the amount was reported based on the direction contained in the order in O.A.(EKM)No.709 of 2021 filed by the applicant in order to obtain retirement benefit. This amount could not be reviewed thereafter since the case was pending at Honorable Kerala Administrative Tribunal and no directions was received from higher authorities or Honorable Kerala Administrative Tribunal to review the amount,

8.

The DCRG of the applicant has withheld Since the liability fixed against the applicant is to be realized and deposited to the Government.

9.

Since the liability certificate for the amount of Rs.3,43,47,128/- has not be cleared and the Respondents have filed written statement in the O.A.(EKM)No.1885 of 2023. On disposal of O.A(ΕΚΜ)Νο.709 of 2021 on 11.09.2023 the 4^th respondent had conducted review of the liability already issued on 09.05.2021 on 31.10.23, 31.10.23. 1.10.23 and the matter was intimated to the applicant through registered letter and letter through special messenger. But she had neither appeared on that day nor produced any documents to clear the liability amount Hence, the Audit team verified the documents available at the Assistant Directors of Agriculture Office Kanhangad, which were not produced at the time of Audit and verified the documents at sub officers which were not produced at the time of audit and not available for verification and based on the review liability was reduced from Rs.3,43,47,128/- to Rs.40,18,845/-.

10.

It is submitted that the liability certificate dated 19.07.2021 for an amount of Rs.3,43,47,128/ was issued based on the liability certificate received from the Assistant Director of Agriculture Kanhangad, and Agricultural Officer Pullur Periya, which was issued after verification of the Audit Report pertaining to the tenure of the applicant at these office. Since the audit of the Assistant Director of Agricultural Office Kanhangad was completed only during 18.11.2020 and Audit Report was finalized on 24.04.2021. There was no time for reviewing the liability after issuing notice to the Respondent since the applicant filed O.A.(EKM) No.709 of 21 and the Honorable Kerala Administrative Tribunal has ordered to issue LC/NLC within a period of one month. At the time there was Covid 19 pandemic spreading and Government had ordered lock down it was not possible to verify the records of the liability. Since the order of the Honorable Kerala Administrative Tribunal has to be complied within the stipulated time the Liability Certificate of Rs. 3,43,47,128/- was issued initially.

11.

Later on obtaining order dated 11.09.23 in OA(ΕΚΜ) No. 709 of 2021 the Director of Agriculture had issued direction to review the liability of Rs.3,43,47,128/ based on Principles of Financial Regularities the 4^th Respondent conducted review from 30.10.2023 to 02.11.2023 at Assistant Director of Agriculture Office Kanhangad. Krishibhavan Pullur Periya and other sub offices and the liability of Rs.3,43,47,128/-was reviewed and as result the amount was reduced to Rs.40,18,845/ the 4^th Respondent had issued notice by registered post to the applicant to appear on 31.10.2023 with replies or documents to reduce the liability to reduce the liability. But the applicant had neither acknowledged the notice nor appeared at the time of review. However, the huge amount of liability was reduced by earnest efforts by the Audit Team and it was without any co-operation from the applicant.

12.

It is submitted that the circumstances led to the issuance of liability of Rs.3,43,47,128/- is that stated above. While reviewing the notice liability the applicant was given chance to appear for hearing during the course of review through registered notice and notice through special messenger. But she had not acknowledged the registered notice and the advice through special messenger was issued to her, but she had not appeared for hearing with necessary documents. However the liability initially fixed was reduced by earnest effort by the Audit Team and with the help of the officials in the sub offices. Hence there is no wilful attempt to deny DCRG to the applicant.”

“10.

The averments in the reply statement would show that the liability against the applicant was not fixed within three years of the retirement of the applicant. Note 3 to Rule 3 of Part III KSR provides for an outer limit of 3 years from the date of retirement for fixing the liability and Note 2 thereof mandates that such fixation shall be made only after a reasonable opportunity is given to the pensioner to explain. The reply statement does not refer to any such procedure adopted for fixing the liability within the three year period. The liability of Rs.3,43,53,530/- found in Annexure A16 on 26.07.2021 is revised as Rs.40,188,45/- in Annexure A17 issued on 14.02.2024. The amount of Rs.88,805/-covered by Annexure A13 order is also added to it, making the total liability as Rs.41,07,650/ -. Mere issuance of a liability certificate in 2021, without giving any notice to applicant or opportunity to submit explanation, does not satisfy the provisions contained in Note 2 and 3 of Rule 3 Part III KSR. Therefore, Annexure A17 Liability Certificate, to the extent it relates to a sum of Rs.40,18,845/- is illegal and the same shall stand set aside. There shall be a direction to the respondents to disburse the DCRG of the applicant after deducting Rs.88,805/-. The claim for interest is declined as the direction for payment of DCRG is issued on technical grounds. It is made clear that respondents are free to resort to remedies available under Ruling No.6 under Rule 116 of Part III KSR, for recovery of amount from the applicant. The Original Applications are allowed to the above extent.”

"The scope and ambit of exercise of power and jurisdiction by a High Court under Art.227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to."

“11 Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. It is not in dispute by and between the parties that the appellant retired from service on June 30, 1998. It is also undisputed that at the time of retirement from service, the appellant had completed more than three decades in Government Service. Obviously, therefore, he was entitled to retiral benefits in accordance with law. True it is that certain charge sheets/show cause notices were issued against him and the appellant was called upon to show cause why disciplinary proceedings should not be initiated against him. It is, however, the case of the appellant that all those actions had been taken at the instance of Mr. Quraishi against whom serious allegations of malpractices and misconduct had been levelled by the appellant which resulted in removal of Mr. Quraishi from the post of Secretary, Irrigation. The said Mr. Quraishi then became Principal Secretary to the Chief Minister. Immediately thereafter charge sheets were issued to the appellant and proceedings were initiated against him. The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Art.14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents. xxx xxx xxx

14.

The learned counsel for the appellant submitted that an appropriate direction may be issued to the Government to pay interest to the appellant who had retired on June 30, 1998 and about a decade has passed even thereafter. He, therefore, submitted that the matter may be finally concluded by this Court by passing appropriate orders. We would have certainly considered this aspect and prayer made by the appellant but for the fact that the High Court had not entertained the petition and it was summarily dismissed. The High Court thus was not having the affidavit on behalf of the respondent Authorities. In the affidavit filed by the State Authorities in this Court, the stand taken by Government is that "vigilance enquiries" are "still pending" against the appellant. The said affidavit is of January, 2005. In the affidavit in rejoinder, the writ petitioner has stated that "the alleged pendency of the "vigilance enquiry" if any is insignificant". We are also not aware as to what has happened thereafter though considerable period has elapsed. In view of all these facts, in our opinion, it would be in the interest of both the parties that we may remit the matter to the High Court so as to enable the High Court to consider the matter on merits and pass an appropriate order in accordance with law. We are mindful that the appellant is a senior citizen and the prayer relates to interest on retiral dues paid to him after four years. Keeping in view the totality of facts and circumstances, we request the High Court to give priority to the case and decide it finally as expeditiously as possible, preferably before June 30, 2008”. (underline supplied)

“7.

Having considered the contentions advanced, we notice that the Apex Court, having decided the question of payment of interest and the question with regard to consideration of the claim for interest by the High Court exercising jurisdiction under Art.226 of the Constitution of India, the decision in Vijayakumaran Nair v. SBT no longer holds the field. The decision of the Apex Court in S. K. Dua v. State of Haryana and another was rendered in a case where the claim raised was specifically for interest on delayed payment of retiral benefits alone. Further, in the instant case, it is not in dispute that there was no liability fixed as against the appellant which was recoverable from his DCRG with the period of three years from the date of his retirement. 8. In the above view of the matter and in view of the judgments relied on by the learned counsel for the appellant, we are of the opinion that the rejection of the writ petition on the ground that the appellant ought to have approached other authorities or filed a suit for realisation of interest cannot be accepted. In view of the specific facts of the instant case, where there is no allegation that any liability had been fixed with notice to the appellant within the time provided under Note 3 to R.3 of Part III KSR, the claim for interest was liable to be considered by the learned Single Judge in the writ petition itself. In the facts and circumstances of this case, we are of the opinion that the appellant is entitled to interest from the date on which his DCRG would have been paid in normal circumstances”. (underline supplied)