DIRECTOR OF HEALTH SERVICES Vs. PAUL

JUDGEMENT

(1.) The point that arises in this appeal relates to construction of Note 2 to R.3 of Part III of the Kerala Service Rules, in so far as they relate to recovery of amounts from Death cum retirement gratuity (hereinafter called the 'DCRG') payable to a government servant.

(2.) The facts of the case are as follows. The writ petitioner was a store keeper in the Health Services Department. For certain irregularities, he was kept under suspension by Ext. P1 order dated 1-9-1981. Subsequently by order dated 21-1-1982 he was reinstated in service without prejudice to the disciplinary action. Still later on 26-5-1982 he was promoted to the next higher post on a provisional basis. It is thereafter on 30-6-1982 that he retired from service. The petitioner made a representation on 28-3-1983 and on 23-11-1983 for disbursement of his pension and gratuity. The Accountant General by order dated 2-2-1984 fixed his pension at Rs.363/- per month with effect from 1-7-1982, and also DCRG of Rs.11,100/-. But the first respondent, namely, the Director of Health Services, sanctioned by order dated 26-3-1984 only a pension of Rs.235/-to the petitioner, against which the petitioner made a further representation on 5-7-1984. Ultimately by Ext. P7 memo dated 21-6-1985 the Director of Health Services held that the enquiry conducted by the Additional Director of Health Services (Vigilance) had revealed that certain drugs costing Rs.24,869.59 were manipulated and misappropriated and that out of this an amount of Rs. 10,052.14 had been fixed as liability in so far as the petitioner was concerned, inasmuch as he did not exercise adequate supervisory check of the medicines against his subordinates. Therefore the Director asked the petitioner to file objections, if any, against the proposed punishment. The petitioner submitted an explanation stating that the store keeper had no control of supervision over pharmacists and therefore no liability could be fastened on him. Thereafter Ext. P9 order dated 29-10-1985 was passed finally deciding to recover the above said amount of Rs.10,052.14 from the DCRG of the petitioner.

(3.) The learned Single Judge after referring to the relevant rules and relying on the decision of this Court in George v. State of Kerala, 1983 KLT 222 held that in so far as DCRG was concerned, the liability to recover the same must be fixed before retirement of an employee, and he should be given an opportunity to explain as to why the same should not be recovered. Unless this was done before retirement, no amount could be recovered from DCRG. On the above said basis, the learned Single Judge quashed Ext. P9 order and directed the pension and DCRG of the petitioner should be disbursed to him as early as possible. This order was passed on 25-10-1989. This appeal has been preferred by the Director of Health Services and the State against the said judgment.