Kerala High CourtKerala Financial Enterprises Ltd vs Jalaja. V on 17 November, 2011IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                            PRESENT:

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

            THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938

                                   WP(C).No. 40934 of 2016 (N)
                                      ----------------------------


PETITIONER(S):
------------------------

                     KERALA FINANCIAL ENTERPRISES LTD.,
                    BHADRATHA, MUSEUM ROAD, THRISSUR-680 020,
                    REPRESENTED BY ITS MANAGING DIRECTOR
                    SRI.JOSHI PAUL VELIYATH, S/O.SHRI.V.O. PAUL,
                    AGED 56 YEARS, RESIDING AT KORATTY,
                    THRISUUR DISTRICT.


                     BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR,
                             SRI.P.GOPINATH,
                             SRI.P.BENNY THOMAS,
                             SRI.K.JOHN MATHAI,
                             SRI.JOSON MANAVALAN,
                             SRI.KURYAN THOMAS.

RESPONDENTS:
------------------------

        1.           JALAJA. V.,
                     SENIOR MANAGER (RTD), KSFE LTD.,
                     VATHU VILA, CHIRAYINKEEZHU P.O.,
                     THIRUVANANTHAPURAM-695 304

        2.           KERALA LOK AYUKTA,
                     LEGISLATURE COMPLEX,VIKAS BHAVAN,
                     THIRUVANANTHAPURAM -695 033,
                     REPRESENTED BY ITS REGISTRAR.


                     R1 BY ADVS. SRI.M.RAJENDRAN NAIR,
                                  SMT.M.SANTHY.


                    THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
                    ON 16-03-2017, THE COURT ON THE SAME DAY DELIVERED
                    THE FOLLOWING:
rs.

WP(C).No. 40934 of 2016 (N)

                                APPENDIX

PETITIONER'S EXHIBITS:-


EXHIBIT P1  TRUE COPY OF MEMO DATED 17.11.2011 ISSUED BY THE
            PETITIONER TO THE 1ST RESPONDENT.

EXHIBIT P2  TRUE COPY OF COMPLAINT NO.645/2015 FILED ON 21.03.2015 BY
            THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT
            (WITHOUT ANNEXURES).

EXHIBIT P3  TRUE COPY OF COUNTER STATEMENT DATED 17.08.2015
            FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P4  TRUE COPY OF ORDER DATED 20.10.2016 PASSED BY THE
            2ND RESPONDENT IN COMPLAINT NO.645/2015.


RESPONDENT'S EXHIBITS:-       NIL.




                                               //TRUE COPY//


                                               P.S.TO JUDGE


rs.



                 DEVAN RAMACHANDRAN, J.
             =========================
                   W.P.(C) No.40934 of 2016
            ==========================
              Dated this the 16th day of March, 2017

                          JUDGMENTThe petitioner, which is a Government of Kerala

Enterprises, is impugning Ext.P4 order of the learned Lok

Ayukta issued under the provisions of theKerala Lok Ayukta Act,

1999. It appears from the order that it relates to the claims of

the first respondent, who was a servant under the petitioner, for

her pensionary and other benefits consequent to her retirement.

The learned Lok Ayukta found that the action of the petitioner in

not disbursing the same to the petitioner even after several years

of her retirement amounts to maladministration under the

provisions of Rule 3(1)(c) of the Kerala Lok Ayukta (Powers of

Civil Court) Rules, 1999 and directed the petitioner to release

the entire retirement benefits to the first respondent within six

weeks. This order has impugned by the petitioner in this writ

petition.2. I have heard Sri.M.Gopikrishnan Nambiar, the learned

counsel for the petitioner, Sri.M.Rajendran Nair, the learned

counsel for the first respondent and Smt.Renu, the learnedW.P.(C) No.40934 of 20162standing counsel for the second respondent.3. I have given a very deep consideration as to the contents

of Ext.P4 and I must say that nothing can be found to be

perverse in it. The order is founded on logical reasoning and on

justifiable considerations.      The learned Upa Lok Ayukta has

found that even though the petitioner has a case against the first

respondent that she had caused loss to them, no action had been

taken against her prior to her superannuation or thereafter and

that no proceedings were concluded against her prior to her

retirement but that she was allowed to retire from service on

attaining superannuation.          The learned Upa Lok Ayukta,

therefore, concluded that the petitioner is entitled the benefits

under Note 3 Rule 3 in Part III of the Kerala Service Rules.

The relevant observations of the learned Upa Lok Ayukta as is

evidenced from Ext.P4 is as under:"The    short  question   that  arises    for

          consideration is whether the respondents are

          justified in withholding the retiral benefits to the

          complainant indefinitely. Note 3 Rule 3 in Part III

          of the Kerala Service Rules postulates that the

          liability of an employee should be quantified either

          before or after her retirement and intimated to himW.P.(C) No.40934 of 20163before retirement if possible, or after retirement

          within a period of 3 years on becoming pensioner.

          It is further stipulated that the liabilities of a

          pensioner should be quantified and intimated to

          him. The respondents do not have a case that the

          liabilities of the complainant had been quantified

          within the outer limit of 3 years after her retirement

          as provided under Note 3. Significantly, no such

          exercise is seen to have been undertaken by the

          respondents even though in the latest affidavit filed

          in June, 2016, it is stated that the present liability is

          24,35,564/- which initially was 1,21,00,3332/- as

          contended in the written statement. In this context

          Ruling 5 under Rule 116 Part III of Kerala Service

          Rules is relevant which reads thus:-5. In all cases where the liabilities

              could not be assessed and fixed before

              retirement of the Government employee,

              efforts should be made to assess and

              adjust the recovery dues within a period

              of one year from the date of retirement of

              the Government employee concerned. If

              in any case, the liability could not be

              assessed and adjusted within one year,

              the amount withheld from the DCRG or

              the surety bond or cash deposit accepted

              under paragraph 1 or 3 above will be

              released.    Disciplinary action shall be

              taken against the employees responsibleW.P.(C) No.40934 of 20164for the failure to assess and adjust the

              liabilities within the prescribed period."However, Ruling 6 enables the Government to

          proceed against the retired employee in a Civil Court

          to recover the pecuniary loss caused to the

          Government."4. I cannot see in any manner that these conclusions are

incorrect or untenable. On the contrary, I am of the view that

the Learned Upa Lok Ayukta has acted well within its jurisdiction

and has issued orders which are legally in perfect order. In such

circumstances, I have no hesitation in repelling the contentions

of the petitioner against the said order.5. That having been said, I cannot but be cognizant of the

fact that it is the specific case of the petitioner that the first

respondent had caused huge loss to the extent of about 25 lakhs

to the KSFE. If that be so, obviously nothing contained in this

judgment or in the order of the learned Upa Lok Ayukta would

stand in the way of the petitioner in invoking such remedies, as

are available to them under law, for recovery of any amounts

that they can establish to be due from the first respondent by a

proper procedure and in the manner mandated in law.W.P.(C) No.40934 of 201656. Even though I have granted liberty to the petitioner as

above, it cannot be construed by them that they can withhold the

benefits as has been directed by the learned Lok Ayukta to be

paid to the petitioner solely on the basis of the terms of this

judgment and if they are unable to obtain orders from competent

Courts or Forums interdicting such payment, they will be

obligated by the terms of Ext.P4 to make payment as directed

therein.The writ petition is thus dismissed. In the nature of the

facts and circumstances of the case, I make no order as to costs

and the parties are directed to suffer their respective costs.Sd/- DEVAN RAMACHANDRAN
stu                                          JUDGE