Important points:
Whatever may be the procedural flaws that may be alleged against the fixation of liability, after three years, the loss caused by an employee while in service can be recovered from him after he becomes a pensioner by instituting a civil suit. We make a further caveat that it can only be by a civil suit and not otherwise. The period of limitation for the Government for instituting such a suit is 30 years under the Limitation Act. The Court also noticed that, by invoking the provisions of the Kerala Public Accounts Act, any liability from a pensioner can be recovered. So it is not a case where, after the time limit is over, the liability is obliterated and no recovery is permissible.

JUDGMENT :

P.V.Kunhikrishnan, J

The above Original Petition is filed against the order dated 18.6.2015 in T.A.No.45 of 2013 on the file of Kerala Administrative Tribunal, Thiruvananthapuram (for short the Tribunal). The applicant before the Tribunal is the petitioner herein and the respondents before the Tribunal are the respondents herein, (hereinafter the parties are mentioned in accordance with their rank before the Tribunal).

2. Applicant is a retired Commercial Tax Officer and she retired from service on 31.1.2002. On the eve of her retirement, she was served with Ext P1 Memo of charges dated 18.1.2002 proposing to take disciplinary action against her for dereliction of duty, serious negligence and carelessness. The allegation was that, she accepted monthly returns of a registered dealer without proof of payment of admitted amount of tax. The dealer filed the returns for the months of April, 2001 on 15.5.2001, May, 2001 on 15.6.2001, June, 2001 on 17.7.2001 and July, 2001 on 16.8.2001. The amount covered by these returns comes to Rs.63,84,194.75. As per the Rules, the dealer has to file proof of payment of admitted tax along with the returns. But there was delay on the part of the applicant to detect the same and notice in Form 14 D was issued under the Kerala Sale Tax Rules belatedly.

3. When Ext P1 memo of charge was received, the petitioner sent Ext P2 reply before the 2nd respondent on 6.2.2002. She submitted in her representation that, her entire service was unblemished. She stated in the representation that, the staff did not bring to her notice that the dealer filed the returns without proof of payment of admitted amount of tax. Therefore, she admitted that there was inadvertent delay of 45 days on the part of the applicant to issue Form 14 D notice.

4. Since, there was no further action taken after Ext P2, the applicant submitted Ext P3 representation on 4.12.2002 praying to release the pensionary benefit due to her including Commuted Value of Pension and Death-cum-Retirement Gratuity which was followed by Ext P4 representation dated 5.6.2003 praying to release the terminal benefits due to her. While so, the Government as per Ext P5 notice dated 30.5.2003 called the applicant for a hearing on 24.6.2003. The applicant appeared and submitted Ext P6 argument note which was followed by Ext P7 supplementary argument note. The applicant also filed Ext P8 representation praying to release the pension and commuted value of pension to her with an undertaking to refund the amount in future, if found necessary. While so, the petitioner was served with Ext P9 show cause notice dated 1.3.2004 proposing to reduce her monthly pension by 200/-per month under Rule 3 Part III KSR. In the said notice, it is stated that the Government has suffered a loss of revenue to the tune of Rs.63,84,194.75 because of the delay on the part of the applicant to issue notice in Form 14D. The dealer closed down the business and left the State and therefore, the possibility of recovery of the amount from the dealer who is from outside the State is very remote.

5. The applicant submitted Ext P10 reply dated 27.5.2004. She explained reason for the delay in issuing Form 14 D notice and reiterated her contentions raised by her in the reply to the Memo of charges. Meanwhile, as per Ext P11 dated 16.4.2004, the 2nd respondent sanctioned pensionary benefits payable to the applicant. While so, the applicant was again served with Ext P12 notice dated 27.1.2006 proposing to withhold Rs.500/-per month from her pension and also to recover the entire DCRG amount. The revised proposal was issued based on the advise of the Public Service Commission(PSC). Thereafter, Ext P13 order dated 15.12.2007 was issued by the Government to recover Rs.500/-per month from the pension of the applicant and also to withhold her entire DCRG under Rule 3 Part III KSR. Applicant also produced Ext P13(a) which was the advise given by the PSC in the matter to the Government. Challenging Ext P