The State Of Kerala vs C.Somasundaram
2021 Latest Caselaw 133 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

           THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                     &

                  THE HONOURABLE MR. JUSTICE T.R.RAVI

    TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                          OP(KAT).No.1 OF 2021

       AGAINST THE ORDER/JUDGMENT IN OA 1940/2017 OF KERALA
            ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM


PETITIONER/S:

      1         THE STATE OF KERALA
                REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL
                SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM, PIN-695001.

      2         THE DIRECTOR OF URBAN AFFAIRS,
                THIRUVANANTHAPURAM, PIN-695033.

                BY GOVERNMENT PLEADER

RESPONDENT/S:

      1         C.SOMASUNDARAM
                AGED 58 YEARS
                S/O.KUNJAMBU NAMBIAR, SOPANAM, NEAR N.G.O QUARTERS,
                TALAP, RETIRED HEALTH INSPECTOR, KANNUR MUNICIPALITY,
                KANNUR.

      2         KANNUR MUNICIPALITY,
                REPRESENTED BY ITS SECRETARY, KANNUR-670002.


OTHER PRESENT:

                SRI.M.SASINDRAN

     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(KAT).No.1 OF 2021                               2




                             ALEXANDER THOMAS
                                            &
                                   T.R. RAVI, JJ.
                      =========================
                             O.P.(KAT) No. 1 of 2021
                  ------------------------------------------------------
                   Dated this the 5th day of January, 2021

                                       JUDGMENT

Alexander Thomas, J.

The prayers in the aforecaptioned Original Petition filed under

Articles 226 and 227 of the Constitution of India are as follows :

(1) "To set aside the Exhibit P4 order of the Kerala Administrative Tribunal in O.A. No.1940/2017 (2) To dismiss the Exhibit P1 original application No.1940/2017 filed by the respondent before the Kerala Administrative Tribunal (3) To declare that respondent is not eligible for any of the reliefs claimed in the Ext.P1 original application."

2. Heard Sri.T.Rajasekharan Nair, learned senior Government

Pleader appearing for the petitioners. In the nature of the orders proposed

to be passed by this Court in this petition, notice to R1 & R2 will stand

dispensed with.

3. The State of Kerala and the Director of Urban Affairs,

Government of Kerala has filed the instant original petition on being

aggrieved by the impugned Ext.P4 final order dated 30.7.2019 rendered by

the Kerala Administrative Tribunal, Thiruvananthapuram Bench in OA

No.1940/2017 filed by the contesting respondent No.1 herein. By the said

impugned final order, the Tribunal had directed that the respondents

therein (petitioners herein) to pay interest at the rate of 9% per annum on

the DCRG amount paid to the applicant after his retirement for the period

from 1.8.2012 upto the date on which the said amount was actually paid

(viz.30.12.2013). Further, the Tribunal as per the impugned Ext.P4 order

has also ordered and found that the original applicant is entitled to get

interest at the prescribed rate as per the provident fund rules, on the

provident fund amount, on account of the delay in settling and disbursing

the provident fund amounts, after his retirement. It is these directions

issued by the Kerala Administrative Tribunal as per Ext.P4 is under

challenge in this petition.

4. From the pleadings and materials on record, it is seen that the

original applicant has retired from service as Health Inspector in the

Municipality concerned on 31.5.2012. Citing the pendency of certain

disciplinary proceedings, the death cum retirement gratuity (DCRG) was

not paid to the applicant and it appears that the original applicant was

exonerated in the said disciplinary proceedings and thereafter, the

department authorities have released the DCRG amount of Rs. 6,30,000/-

to R1 herein on 30.12.2013. Further, it appears that the final settlement of

the Provident Fund account was ordered by the competent authority only

on 9.11.2012 and the same was actually disbursed to the original applicant

only on 6.12.2012. It is in the light of these aspects that the Tribunal has

ordered that the original applicant is entitled for interest at the rate of 9%

on the DCRG amount for the period from 1.8.2012 (two months after the

retirement) upto 30.12.2013 (date on which the DCRG amount was actually

released to him. So also, the Tribunal has ordered that on account of the

delay in settling and disbursing the provident fund amounts, the applicant

is entitled to get interest at the prescribed rate as per the PF rules, for the

month of November, 2012 as well.

5. The matters regarding the payment of the PF dues could be

considered first. There is no dispute that the R1 herein / applicant has in

fact retired from service on 31.5.2012. Further, according to the applicant,

an amount of Rs.9.30,000/- was due in the provident fund account. The

final settlement of the PF account was ordered only on 9.11.2012 and that it

was actually released to him only on 6.12.2012. There is no dispute that it is

common ground that interest in respect of the provident fund amounts was

computed only upto 31.10.2012 and no interest amount was paid for the

month of November, 2012.

6. As per the Kerala Municipal Employees' Central Provident

Fund Rules, when a provident fund account is finally settled before the 15 th

day of a month, interest will be calculated upto the preceding month and if

it is computed in the 2nd half of the month, interest for the said months

should also be computed. There is no dispute on the fact that the provident

fund account was settled only on 9.11.2012 and it was actually disbursed to

the applicant subsequently on 6.12.2012. Hence, the Tribunal has found

that even going by that, the applicant is entitled for interest at the

prescribed rate as per the PF Rules for the month of November, 2012 as

well inasmuch as he was paid interest only upto 31.10.2012.

7. In view of the abovesaid provisions and the Rules, the

abovesaid reasonings made by the Tribunal cannot be said to be

unreasonable or arbitrary. Therefore, we are of the view that no

interference is called for, as regards the said direction issued by the

Tribunal for grant of interest as per the PF Rules to the applicant, even in

respect of the month of November, 2012, inasmuch as the provident fund

account is settled only on 9.11.2012 and disbursed to him only on

6.12.2012.

8. The next issue is as regards the interest directed to be paid for

the delayed payment of DCRG. The authorities have not cited any valid

reason for justifying the prolongation of the disciplinary proceedings that

was stated to be pending against the applicant. As mentioned hereinabove,

the incumbent was retired from service on 31.5.2012. There is also no

dispute that he was subsequently exonerated in the disciplinary

proceedings. The DCRG amount of Rs. 6,30,000/- was sanctioned and

released to him only on 30.12.2013, which is more than 19 months after his

retirement.

9. It is well settled that DCRG would also be a property of the

pensioner and the enjoyment of the same can be denied only on the basis of

a procedure which is just, fair and reasonable, since the pensioner can

certainly raise a proprietary right as envisaged in Article 300A of the

Constitution of India. The long delay of about more than 19 months in

ultimately sanctioning and releasing the DCRG amount due to the

pensioner was found to be unreasonable and improper by the Tribunal. It is

on this basis that the Tribunal has ordered that the authorities concerned

to ensure that the petitioner is paid interest on the DCRG amount at the

rate of 9% per annum for the period from 1.8.2012 (two months after

retirement) upto 30.12.2013 (date on which the DCRG amount was actually

released).

10. After hearing both sides, we are of the considered view that the

said orders and directions made by the Tribunal cannot be said to be

perverse and unreasonable. The learned Government Pleader has

submitted that the authorities could not sanction the DCRG on account of

the pending disciplinary proceedings. It was the obligation of the

competent authority concerned to ensure the expeditious conclusion of the

disciplinary proceedings. Moreover, in this case, the incumbent has also

been exonerated in the disciplinary proceedings. Unless we find that the

abovesaid direction issued by the Tribunal is perverse in a matter like this,

interference in this case will not be justified. The learned Government

Pleader has also made an alternate plea that the interest granted at the rate

of 9% is on the higher side.

11. Having regard to the totality of the facts and circumstances of

this case and also taking into account the fact that the DCRG amount was

paid to the incumbent, only after the expiry of 19 months after his

retirement and also taking into account of the fact that he was also being

exonerated in the disciplinary proceedings, we are not inclined to interfere

in the matter, merely on the basis of the abovesaid plea made by the

learned Government Pleader. The abovesaid interest ordered by the

Tribunal at 9% cannot be said to be excessive or arbitrary. Taking into

account the overall facts and circumstances of this case, we are of the

considered view that there is no justification for interdiction in this case.

Accordingly, the original petition will stand dismissed.

sd/-

ALEXANDER THOMAS, JUDGE

sd/-

T.R. RAVI JUDGE SKS

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE O.A.NO.1940/2017 ALONG WITH ANNEXURES BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A1 TRUE COPY OF THE VERIFICATION REPORT DATED 24.05.2012 ISSUED BY THE LOCAL FUND AUDIT DEPARTMENT.

ANNEXURE A2 TRUE COPY OF THE REPORT DATED 24.05.2012 ISSUED BY THE LOCAL FUND AUDIT DEPARTMENT.

ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 31.05.2018 ISSUED BY THE 2ND RESPONDENT.

ANNEXURE A4 TRUE COPY OF THE REPRESENTATION DATED 17.06.2013 SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT.

ANNEXURE A5 TRUE COPY OF LETTER DATED 30.4.2015 ISSUED BY THE LOCAL FUND AUDIT DEPARTMENT.

ANNEXURE A6 TRUE COPY OF THE ORDER DATED 08.04.2016 IN O.A.NO.1612/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A7 TRUE COPY OF GO(RT)NO.55/2017 DATED 09.01.2017 ISSUE DBY THE 1ST RESPONDENT.

ANNEXURE A8 TRUE COPY OF CIRCULAR DATED 02.11.2012 ISSUED BY THE FINANCE DEPARTMENT.

ANNEXURE A9 TRUE COPY OF APEX COURT JUDGMENT REPORT IN 2008(3)KLT 58(SC).

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT ON 04.01.2018.

EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 1ST RESPONDENT ON 04.06.2018.

EXHIBIT P4 TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 30.07.2019 IN THE ORIGINAL APPLICATION.