State Of Kerala vs State Of Kerala
2021 Latest Caselaw 3021 Ker

O.P.(KAT) No.113 of 2020            1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                        &
                  THE HONOURABLE MR. JUSTICE T.R.RAVI
   THURSDAY, THE 28TH DAY OF JANUARY 2021 / 8TH MAGHA, 1942
                           OP(KAT).No.113 OF 2020
   AGAINST ORDER DATED 19.12.2018 IN        O.A.NO.738/2013 OF THE
   KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH
PETITIONERS/RESPONDENTS IN OA:
      1     STATE OF KERALA,
            REPRESENTED BY THE SECRETARY TO GOVERNMENT,
            HOME DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM-695001, KERALA,

        2       DIRECTOR GENERAL OF PROSECUTIONS,
                KERALA, ERNAKULAM, KOCHI, KERALA-682018.

        3       DIRECTOR OF PROSECUTIONS(ADMINISTRATION)
                DIRECTORATE OF PROSECUTIONS,
                KERALA, ERNAKULAM, 682018.

        4       ACCOUNTAT GENERAL
                OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL,
                (CIVIL AND COMMERCIAL AUDIT),
                THIRUVANANTHAPURAM, KERALA-695001.

            BY SRI.B.VINOD, SR.GOVT.PLEADER
RESPONDENT/APPLICANT IN OA:
            V.RADHAKRISHNAN NAIR
            S/O. VELAYUDHAN PILLAI,
            RETIRED DEPUTY DIRECTOR OF PROSECUTION,
            THIRUVANANTHAPURAM-695035,
            RESIDING AT TC 10.617, INDIRAGIRI,
            S.V. SASTHRI GARDENS,
            MANNANTHALA, THIRUVANANTHAPURAM-695015, KERALA.

                  BY ADV. SMT.JANAKI KRISHNAN A

     THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN
FINALLY HEARD ON 28.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 O.P.(KAT) No.113 of 2020               2




              ALEXANDER THOMAS & T.R. RAVI, JJ.
               ------------------------------------------------
                      O.P.(KAT) No.113 of 2020
                     [Arising out of order dated 19.12.2018 in
                     O.A.No.738/2013 of the KAT, Tvm. Bench]
                 --------------------------------------------------
               Dated this the 28th day of January, 2021


                                JUDGMENT

T.R. RAVI, J.

The original petition has been filed challenging the order dated

19.12.2018 in O.A.No.738/2013 of the Kerala Administrative Tribunal,

Thiruvananthapuram (hereinafter referred to as Tribunal). The State

and its Officers who were respondents before the Tribunal are the

petitioners herein and the applicant is the respondent.

2. The respondent retired from service on 31.03.2011 as

Deputy Director of Prosecution. A sum of Rs.3,30,000/- was

sanctioned as gratuity as per Annexure A30 order dated 30.03.2011,

which was later revised as Rs.7 lakhs as per Annexure A31 order dated

08.11.2011. The amounts though sanctioned, were not released to the

respondent for the reason that there was a liability of Rs.7,700/-. As

per Annexure A1 order dated 22.08.2011, the Director of Prosecution

ordered that there were certain liabilities relating to missing and

damaged books and TA claims submitted by the respondent. The

respondent was directed to clear the said liabilities. Thereafter, on

18.01.2012, a liability certificate was issued by the Additional Chief

Secretary to Government noting that there was a liability of Rs.7,700/-

to be recovered from the respondent. Annexure A3 was followed by

Annexure A4 order issued by the Director of Prosecution, directing to

recover the liability of Rs.7,700/- from the DCRG sanctioned to the

respondent. The DCRG payable to the respondent was released much

later in August, 2012, after deducting the amount of Rs.7,700/-.

3. Aggrieved by the actions of the petitioners, the respondent

approached the Tribunal by filing O.A.No.738 of 2013, praying to set

aside Annexures A3, A4, A22 and A23 and declare that the fixation of

liability of Rs.7,700/- as per Annexures A3 and A4 is illegal, arbitrary

and unsustainable. The respondent also prayed for a direction to pay

interest for delayed payment of the gratuity as well as for release of the

withheld amount of Rs.7,700/- along with interest at the rate of 12%

per annum. The respondent contended that the fixation of the liability

was not in accordance with the provisions contained in the Rules and

was without affording him an opportunity to explain. On merits, it was

contended that as regards the TA claims, the Accountant General had

only sought for clarification and had not directed to disallow the same

and as such, to proceed as if there is a liability was unjustified.

Respondent further contended that all the details and supporting

documents regarding TA claims were available with petitioners 2 and 3

and since the respondent had already retired from service, he is not in a

position to produce evidence regarding the same.

4. The Tribunal after considering the entire evidence on

record, found that in Annexure A12 letter, the Accountant General had

only made some observations regarding the TA bills submitted by the

respondent and the direction was only to examine the said observations

and intimate the result to the Audit Department. The Tribunal found

that instead of examining the observations, the 3 rd petitioner fixed the

objected amount as liability of the respondent. The above finding is

supported by the reply statement filed by the 4th petitioner wherein it

has been specifically stated that the 4th petitioner had not directed any

other petitioners to recover the amount held under audit observation

and that it was the duty of the Controlling Officer to verify the audit

objection and to take remedial action. The Tribunal found that the

liability of Rs.6,860/- imposed on the respondent on that count was

unauthorised and unwarranted. The Tribunal also found that the

liability of Rs.910/- imposed towards the cost of library books cannot

also be legally supported since the same was not properly quantified.

The Tribunal hence, allowed the original application directing the 1 st

petitioner to pay interest on the amount of DCRG at the rate of 9% per

annum from 08.11.2011, the date of issue of Annexure A31 revising the

gratuity, till the date of payment. The Tribunal also directed the release

of Rs.7,700/- withheld from the DCRG.

5. The question regarding the liability of the employer to pay

interest on delayed payment of DCRG is no longer res integra. In the

decision in University of Kerala v. Dr.V.Sobha Sreemangalam

and Anr. reported in [2020 SCC OnLine Kerala 949 = (2020) 3 KLT

SN 10 page 7], a Division Bench of this Court has catalogued the

decisions of the Apex Court viz. State of Kerala v.

M.Padmanabhan Nair [(1985) 1 SCC 429], O.P.Gupta v. Union of

India [(1987) 4 SCC 328], Dr.Uma Agarwal v. State of U.P.

[(1999) 3 SCC 438], Vijay L.Mehrotra v. State of U.P. [(2000) 2

SLR 686], Gorakhpur University v. Dr.Shitla Prasad Nagendra

[(2001) 6 SCC 591], H.Gangahanume Gowda v. Karnataka Agro

Industrial Corporation Ltd [(2003) 3 SCC 40], S.K.Dua v. State

of Haryana [(2008) 3 SCC 44], Kerala State Cashew

Development Corporation Ltd. v. N.Asokan [(2009) 16 SCC

758], D.D.Tewari (Deceased) v. Uttar Haryana Bijli Vitran

Nigam Ltd. [(2014) 8 SCC 894] and State of U.P. v. Dhirendra

Pal Singh [(2017) 1 SCC 49], wherein the Apex Court has directed

payment of interest ranging from 8% per annum to 18% per annum,

depending on factual situations, and finally directed the payment of

interest on the belated payment of DCRG at the rate of 9% per annum

from the date of retirement till the date of payment. In the light of the

catena of decisions of the Hon'ble Supreme Court on the issue as

narrated in the above said decision of the Division Bench of this Court,

we have no hesitation to hold that the directions issued by the Tribunal

in the case on hand, to pay interest on the amount of DCRG at the rate

of 9% per annum from 08.11.2011, the date of issue of Annexure A31

revising the gratuity, till the date of payment is very much in

accordance with law and does not warrant any interference by this

Court in exercise of its extraordinary and supervisory jurisdiction under

Articles 226 and 227 of the Constitution of India. We do not find any

illegality, irregularity, impropriety or irrationality in the order of the

Tribunal.

The original petition fails and the same is accordingly dismissed.

In the circumstances of the case, there will be no order as to costs.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/--

T.R. RAVI, JUDGE

dsn

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A PHOTO COPY OF THE ORIGINAL APPLICATION NO.738/2013 ALONG WITH ANNEXURES

EXHIBIT P1 (A1) TRUE COPY OF ORDER N.272/C/02/DGP DATED 22.08.2011 OF THE 3RD RESPONDENT

EXHIBIT P1 (A2) TRUE COPY OF THE REPRESENTATION DATED 24.8.2011 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT

EXHIBIT P1 (A2) TRUE COPY OF THE REFERENCE 3RD CITED IN (A) ANNEXURE-A2

EXHIBIT P1(A3) TRUE COPY OF THE LIABILITY CERTIFICATE NO 71564/C4/2011/HOME DATED 18.01.2012

EXHIBIT P1(A4) TRUE COPY OF THE ORDER NO.272/C/2002/DGP DATED 14.2.2012 OF THE 3RD RESPONDENT

EXHIBIT P1(A5) TRUE COPY OF THE REPRESENTATION DATED 12.9.2012 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT

EXHIBIT P1(A6) TRUE COPY OF THE REPRESENTATION DATED 17.9.2012 SUBMITTED BY THE APPLICANT BEFORE THE 1ST RESPONDENT

EXHIBIT P1(A7) TRUE COPY OF THE LETTER NO.PENSION/ 8399/2012-13 DATED 26.09.2012 OF THE DISTRICT TREASURY OFFICER, THIRUVANANTHAPURAM

EXHIBIT P1(A8) TRUE COPY OF THE REPRESENTATION DATED 12.10.2012 SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT

EXHIBIT P1(A9) TRUE COPY OF THE LETTER NO.272/C/2002/DGP DATED 17.10.2012 OF THE 2ND RESPONDENT

EXHIBIT P1(A10) TRUE COPY OF THE LETTER NO.PENSION/9387/12-

13 DATED 31.10.2012 OF THE DISTRICT TREASURY OFFICER, THIRUVANANTHAPURAM

EXHIBIT P1(A11) TRUE COPY OF THE REPRESENTATION DATED 9.11.20-12 SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT

EXHIBIT P1(A12) TRUE COPY OF THE LETTER DATED 3.6.2011 OF THE ACCOUNTANT GENERAL

EXHIBIT P1(A13) TRUE COPY OF THE REPRESENTATION DATED 12.4.2012 SUBMITTED BY THE APPLICANT BEFORE THE GOVERNMENT

EXHIBIT P1(A14) TRUE COPY OF THE LETTER DATED 23.6.2011 OF THE APPLICANT TO THE 4TH RESPONDENT

EXHIBIT P1(A15) THE COPY OF THE TREASURY CHELLAN RECEIPT EVIDENCING THE REMITTANCE OF THE EXCESS T.A.

EXHIBIT P1(A16) TRUE COPY OF THE LETTER NO.1083/C/09/DGP DATED 11.12.2009

EXHIBIT P1(A17) TRUE COPY OF THE LETTER NO.3069/D/09/DGP DATED 31.2.2009 THE 3RD RESPONDENT

EXHIBIT P1(A18) TRUE COPY OF THE LETTER NO.2835/E/09/DGP DATED 3.3.2010 THE 3RD RESPONDENT

EXHIBIT P1(A19) TRUE COPY OF THE ORDER NO.481/C/10/DGP DATED 01.06.2010

EXHIBIT P1 (A20) TRUE COPY OF THE LETTER NO.2835/E/09/DGP DATED 16.7.2010 OF THE 3RD RESPONDENT

EXHIBIT P1 (A21) TRUE COPY OF THE ORDER NO.272/C/02/DGP DATED 7.10.2005 OF THE 2ND RESPONDENT

EXHIBIT P1(A22) TRUE COPY OF THE GOVERNMENT LETTER NO.38093/C4/2012 /HOME DATED 9.8.2012

EXHIBIT P1(A23) TRUE COPY OF THE GOVERNMENT LETTER NO.77002/C4/2012 /HOME DATED 14.2.2013

EXHIBIT P1(A24) TRUE COPY OF THE G.O(RT) NO.2143/2006/HOME

DATED 20.9.2006

EXHIBIT P1(A25) TRUE COPY OF THE LETTER NO.272/C/02/DGP DATED 19.5.2011

EXHIBIT P1(A26) TRUE COPY OF THE LETTER NO.272/C/02/DGP DATED 14.6.2011 OF THE 3RD RESPONDENT

EXHIBIT P1 (A27) TRUE COPY OF THE LETTER NO.272/C/02/DGP DATED 27.6.2011 OF THE 3RD RESPONDENT

EXHIBIT P1 (A28) TRUE COPY OF THE APPLICATION DATED 8.10.2012

EXHIBIT P1 (A29) TRUE COPY OF THE LETTER NO.C.CELL/AUDIT/RTI ACT/VOL.XVI/182 DATED 16.10.2012 OF THE 4TH RESPONDENT

EXHIBIT P1 (A30) TRUE COPY OF THE ORDER DATED 30.3.2011 OF THE 4TH RESPONDENT

EXHIBIT P1 (A31) TRUE COPY OF THE ORDER NO.P R 21011643/P-

2/3/151128506 DATED 08.11.20111 OF THE 4TH RESPONDENT

EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 07.08.2013 FILED BY THE FOURTH PETITIONER

EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 17.01.2014 FILED BY THE FIRST PETITIONER

EXHIBIT P4 TRUE COPY OF THE REJOINDER ALONG WITH ANNEXURES DATED 12.11.2018 FILED BY THE RESPONDENT

EXHIBIT P4(A32) G.O(MS) 16/2009/HOME DATED 4.2.2009 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P4(A33) LETTER NO.25320/LIB/2012/LAW, THIRUVANANTHAPURAM DATED 30.11.2012 RECEIVED UNDER THE RTI ACT

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 19.12.2018 IN OA 738/2013