The petitioner retired from service of the 2nd respondent Corporation while officiating as Assistant Project Engineer, on 31.3.2002. While in service the petitioner was suspended pending finalization of a disciplinary action initiated. He remained under suspension for the period from 7.3.1998 to 24.5.2000. By virtue of Ext.P1 the disciplinary action was finalized imposing punishment of barring 2 increments with cumulative effect and also ordering that the period of suspension from 7.3.1998 to 24.5.2000 will be treated eligible leave. 2. After retirement the petitioner approached the 1st respondent seeking re-fixation of pay based on the pay revision effected and for payment of subsistence allowance with respect to period of suspension etc. The petitioner had submitted Ext.P2 representation before the 1st respondent. The petitioner had approached this court aggrieved by non settlement of his terminal benefits including gratuity, in an early writ petition filed as OP.No.27165/2000. In Ext.P3 judgment this court directed to disburse the arrears of gratuity due to the petitioner. It was also directed to consider Ext.P2 representation by the Government and to take an appropriate decision. Thereafter the petitioner was paid a sum of Rs.56,491/- after settling off the liability fixed to the tune of Rs.75,445/-, through Exts.P5 and P6. The 1st respondent had issued Ext.P7 proceedings presumably in compliance with the directions contained in Ext.P3 judgment, stating that the terminal benefits and other claims were already paid and therefore the direction contained in Ext.P3 stands complied with. The petitioner is challenging Ext.P7 order and recovery of the alleged liability from the payments effected. Inter alia the petitioner seeks declaration that no liability is outstanding against him and that he is entitled to the subsistence allowance in full, in terms of the provisions contained in the Payment of Subsequent Allowance Act.
3. Evidently Ext.P1 order imposing the punishment had attained finality. By virtue of the said order the period of suspension from 7.3.1998 to 24.5.2000 was directed to be treated as eligible leave. In the counter affidavit filed on behalf of the respondents 2 and 3 it is contended that due to non-availability of eligible leave, 735 days from 21.5.1998 to 24.5.2000 was treated as loss of pay. According to the respondents 2 and 3 the petitioner had applied for regularization of the leave and the said period of 735 days from 21.5.1998 to 24.5.2000 was treated as loss of pay. It is contended that by applying Note 3 of Rule 56B(9) of Part 1 KSR, the amount of subsistence allowance and other compensatory allowances already received during the period of suspension, in excess of the leave salary and allowances admissible, is liable to be refunded. It is contended that liability to the tune of Rs.75,445/- mentioned in Exts.P5 and P6 was adjusted on the above basis.
4. In a reply affidavit filed by the petitioner he had refuted the allegation that he had consented to adjust the remaining period of leave as the loss of pay. According to the petitioner the adjustment of the balance period as loss pay was made without notice or consent of the petitioner. He had further contended that any amount of subsistence allowance paid during the period of suspension cannot be recovered. In this regard he had pointed out a decision of this court in Thomas v Deputy Director of Education [2005 (3) KLT 872]. Per contra learned standing counsel appearing for respondents 2 and 3 contended that going by Note 3 of Rule 56B(9) cited above, no consent is required either to adjust the balance period of suspension as loss of pay or to recover the excess amount of subsistence allowance.
5. This court is of the considered opinion that, despite specific direction contained in Ext.P3 judgment the Government have failed to advert to any of the contentions raised in Ext.P2 and to take a decision as directed. The petitioner was precluded from raising any contentions against the liability fixed and recovery effected. Therefore it is only just and proper that the Government shall reconsider the issue in view of the directions contained in Ext.P3, by permitting the petitioner to raise all contentions including contentions against the recovery affected.
6. Under the above mentioned circumstances Ext.P7 order passed by the 1st respondent is hereby quashed. The 1st respondent is directed to reconsider the issue and to pass appropriate fresh order, after affording reasonable opportunity of personal hearing to the petitioner. Needless to observe that the petitioner will be at liberty to submit detailed representation/Notes of Argument raising all contention before the Government.
7. The Government shall reconsider the matter and pass appropriate order at the earliest possible, at any rate within a period of 3 months from the date of receipt of a copy of this judgment. An independent decision shall be taken in the matter after considering the statutory provisions, untrammeled by any of the observations contained herein above.
SKV Sd/-
C.K.ABDUL REHIM, JUDGE.