Liabilities must be properly fixed before the employee's retirement, and the employee must be given a reasonable opportunity to explain before any recovery from the death-cum-retirement gratuity.

1. These two Writ Petitions raise the interpretation of R.3 of the Kerala Service Rules, Note (2) thereof and Ruling No. 3 under Note (2). Although the judgment in these two cases was dictated on 171977, I felt the matter needed reconsideration and I directed the cases to be posted as 'spoken to' and heard the counsel on both sides again.

2. Since O.P. No. 5080 of 1975 has become infructuous, I shall state the facts in O.P. No. 294 of 1977. The prayer in this original petition is to quash Exts. P2, P5, P6 and P8.

3. The petitioner retired as Assistant Conservator of Forests on 4 31971. Sanction was given for the grant of pension and Death-cum-Retirement gratuity by the Government as per its order dated 10121970.

4. After retirement disciplinary proceedings were initiated against the petitioner under R.16 of the Kerala Civil Services (Classification, Control and Appeal Rules, 1960 A show cause notice was issued on 15 7 1971. It was stated therein that while the petitioner was working as a Ranger in Nadu-vathumoozhi Range during 1967, he committed irregularities and spent an excess amount of Rs. 10,343.07 from the Government fund and caused loss to the Government. The explanation filed by the petitioner was not accepted and the Chief Conservator of Forests, the second respondent, held that the petitioner was liable for the entire amount mentioned above and directed the same to be realised from the petitioner. Recovery was ordered by directing an amount of Rs 7,800/-due to the petitioner as Death-cum-Retirement gratuity to be adjusted towards this liability. Ext. P1 is this order. The third respondent, i. e., the Accountant General of Kerala, informed the petitioner on 4101973 that his death-cum-retirement gratuity was adjusted against the liability mentioned above to the extent of Rs. 7,800/-.

5. The petitioner challenged Ext. P1 in O.P. No. 1405 of 1974 before this Court. In the course of hearing, it was submitted that the Government had passed orders setting aside Ext. P1 and had passed Ext. P2 order in its place. Ext. P2 is to the effect that the charge memo issued by the second respondent cannot legally stand and that de novo action had to be taken under Note 2 of R.3 of Part III of the Kerala Service Rules. This was because Ext. P was issued under S.16 of the Kerala Civil Services (Classification, Control and Appeal) Rules, after petitioners retirement O P. No. 1405 of 1974 was disposed of without deciding any question on merits and without precluding the petitioner from urging all objections available to him before the Chief Conservator of Forests or before the Government.

6. After this, fresh notice was issued to the petitioner for the recovery of Rs. 10,343 07 under Note 2 of R.3 of Part III of the Kerala Service Rules This is Ext. P-3 which is dated 15-1-1976 The petitioner submitted a detailed explanation on 24-2-1976. He stated that he cannot be proceeded against under Note 2 to R.3 of the Kerala Service Rules. His explanation is Ext. P4; This was rejected as per Ext. P5 order dated 5-4-1976.

7. On the same day by another proceeding the second respondent ordered to recover from the petitioner an amount of R.7,173.90 as his liability towards the loss he is said to have caused to the department. This order is Ext. P6. It was for the first time that the petitioner was notified about this liability. The petitioner submitted his explanation on 12-31976.

8. After the disposal of O.P. No. 1405 of 1974, the petitioner filed an appeal dated 8 61976 against Exts. P5 and P6 orders of the second respondent. Ext. P7 is the appeal memo. The appeal has not so far been disposed of, obviously because it is not a statutory appeal. Now the present position is that the petitioner is denied his Death-cum-Retirement gratuity. Ext. P8 is a fresh order. By this order, an amount of Rs 193.54 being the monetary value equivalent to the unexpired portion of the increment bar was also ordered to be deducted from his Death-Cum-Retirement grat