KERALA AGRICULTURAL UNIVERSITY & THE DEPUTY COMPTROLLER, KAU v. G. VISWAMBHARAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 10TH DAY OF SEPTEMBER 2013/19TH BHADRA, 1935 WP(C).No. 22173 of 2013 (V) ---------------------------- PETITIONERS : --------------- 1. KERALA AGRICULTURAL UNIVERSITY KAU P.O., VELLANIKKARA, THRISSUR-680 656 REPRESENTED BY ITS REGISTRAR. 2. THE DEPUTY COMPTROLLER KERALA AGRICULTURAL UNIVERSITY, KAU P.O., VELLANIKKARA THRISSUR-680 656. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRL.UTY. RESPONDENT : --------------- G. VISWAMBHARAN @ VISWAMBHARAN PACHALLOOR S/O. GOPALAN NADAR, OTTAPLAVILA VEEDU, PALAPPOORU VELLAYANI P.O., KALLIYOOR VILLAGE THIRUVANANTHAPURAM-695 522. BY S.C. SMT.T.P.RENU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22173 of 2013 (V) ---------------------------- ## APPENDIX ## PETITIONERS' EXHIBITS --------------------------- - P1 : COPY OF THE STATEMENT OF FACTS FILED BY THE 2ND PETITIONER IN COMPLAINT NO.1638/2011. - P2 : COPY OF THE ORDER DTD.12.7.2012 IN COMPLAINT NO.1638/2011 OF THE 2ND RESPONDENT. - P3 : COPY OF THE JUDGMENT DTD.28.6.2012 IN WPC NO.14917/2012 OF THIS HON'BLE COURT. - P4 : COPY OF THE ORDER DTD.22.7.2013 IN RP NO.568/2013 OF THIS HON'BLE COURT. - P5 : COPY OF THE NOTICE DTD.18.7.13 ISSUED BY THE HON'BLE LOK AYUKTA. ## RESPONDENTS' EXHIBITS: NIL ----------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ---------------------------- W.P.(C)No.22173 of 2013 ---------------------------Dated 10[th] September, 2013 ## **JUDGMENT** The second respondent in Complaint No.1638/2011 on the files of the Kerala Lok Ayukta filed this writ petition. The said complaint was filed by the respondent herein claiming his retiral benefits with interest. He retired from the service of the first petitioner on 1.4.2011. It is alleging undue delay in the matter of disbursement of his retiral benefits that he approached the Lok Ayukta. After considering the contentions with notice to the second petitioner Ext.P2 order was passed on 12.7.012. During its pendency the retiral benefits were disbursed to the respondent and in the said circumstances, the question whether the complainant/respondent herein in entitled to interest on DCRG with effect from 1.6.2010 to 5.9.2011 was taken into consideration and ultimately as per Ext.P2, it was found that the respondent is entitled to claim interest and accordingly, the first petitioner was directed to pay interest to the respondent herein for the delayed payment at 6% per annum from 1.6.2010 to 5.9.2011. Subsequently, the respondent herein approached the Lok Ayukta raising grievances against the non-payment of the interest in tune with the directions in Ext.P2. Thereupon, Ext.P5 notice for personal appearance was issued. As per the same, the second petitioner was directed to WP(C).No.22173/2013 2 appear in person before the Lok Ayukta on 6.9.20213 with statement without fail. This writ petition has been filed in the said circumstances challenging Ext.P5. The petitioners are also seeking issuance of a writ of certiorari quashing the direction in Ext.P2 to pay interest from 1.6.2010 to 5.9.2011 on the terminal benefits already disbursed to the respondent. 2. I have heard the learned standing counsel appearing for the petitioners as also the learned standing counsel appearing for the Lok Ayukta. 3. Evidently, the attempt of the petitioners is to mount a challenge against Ext.P2 which was rendered as early as on 12.7.2012. The petitioners now, sought to challenge the same only on receipt of Ext.P5 which is a notice for appearance of the second petitioner for not complying with the directions in Ext.P2. The contention of the petitioners is that as per Ext.P2, Lok Ayukta directed for payment of terminal benefits which were already disbursed. In the aforesaid complaint there was no case for the petitioners that it is after payment of the retiral benefits that the respondent approached the Lok Ayukta claiming interest WP(C).No.22173/2013 3 on the retiral benefits. A perusal of Ext.P2 would reveal that the respondent approached the Lok Ayukta by filing the aforesaid complaint prior to the receipt of the retiral benefits. True that pending the complaint the retiral benefits were granted. It is thereupon that the question whether the respondent was entitled to get interest for the delayed payment that is, for the period from 1.6.2010 to 5.9.2011 was taken up for consideration. The specific contention of the petitioners is that Lok Ayukta was incompetent to consider the said issue in the light of the provisions under Section 8(1) and Clause (d) of the Second Schedule of the Lok Ayukta Act, 1999 (Kerala). The learned standing counsel appearing for Lok Ayukta submitted that the said question is no more _res integra_ in view of the decision of this Court in **Director, Economics and Statistics** v. **Subrahmania Pillai (2007 (3) KLT 366)** . It is further submitted that the decision in **Subrahmania Pillai's** case (supra) was affirmed by a Division Bench in the decision in **K.S.R.T.C.** v. **Padmavathy (2008 (1) KLT 584)** . Evidently, in **Subrahmania Pillai's** case (supra) a pointed question regarding the jurisdictional aspect was raised based on the provisions under Section 8(1) and Clause (d) of the Second Schedule of the Lok Ayukta Act, 1999. After consideration of the relevant provisions this Court held that prohibition WP(C).No.22173/2013 4 under Clause (d) of the Second Schedule would not extend to actions relating to claims for pension, gratuity, provident fund or to any claims which arise on retirement, removal or termination of service and therefore, Lok Ayukta got jurisdiction to take action in relation to a grievance in respect of any action relating to claims for pension, gratuity as also any claim which arises on retirement, removal or termination of service. The decision in **Padmavathy's** case (supra) would reveal that the decision in **Subrahmania Pillai's** case (supra) was confirmed by the Division Bench. The Division Bench held that Lok Ayukta got jurisdiction to entertain matters relating to terminal benefits. Entitlement to interest on delayed payment of DCRG is thus a matter which can be gone into by the Lok Ayukta and the provisions under Section 8(1) and Clause (d) of Second Schedule would not take away the jurisdiction of Lok Ayukta. That apart, the order sought to be quashed in this proceedings viz., Ext.P2 was passed as early as on 12.7.2012. Obviously, the petitioners thought it fit to challenge the same only on receipt of Ext.P5. No reason whatsoever has been stated regarding the delay in the matter of filing of this writ petition though there is no time stipulated for filing the writ petition. At the same time, there can be no doubt with respect to the settled position that any adverse order has to WP(C).No.22173/2013 5 be challenged within a reasonable time. Obviously, the petitioners did not challenge the said order for about one year and now taking up challenge against Ext.P2 only on receipt of Ext.P5 and even the challenge against Ext.P2 is made firstly on the ground that Lok Ayukta should not have been entertained the complaint in view of the aforesaid provisions. In the light of the decisions referred supra the said contention of the petitioners has to fail. Yet another contention is taken by the petitioners relying on Exts.P3 and P4. In those writ petitions covered by Ext.P3 true that, taking note of the financial stringency, this Court declined to grant interest for the delayed payment of the retiral benefits to the concerned petitioner. That cannot be understood as a general declaration of law to the effect that any delayed payment would not make the employer liable for payment of interest at all circumstances. In other words, the liability to pay interest rather the entitlement to get interest has to be decided with reference to the facts and circumstances obtained in a particular case. In this case, the Lok Ayukta after considering all aspects found that there was no reason for delaying the payment of retiral benefits and therefore found the respondent herein entitled to get interest on the delayed payment. A perusal of Ext.P2 would reveal that for entering into such a finding Lok Ayukta relied on a decision of this Court in **Meenakthi** WP(C).No.22173/2013 6 ## **(sic. Meenakshi)** v. **Cherthala Municipality and Others (2010 (3)** **KHC 918 (DB))** . In such circumstances, the said finding of the Lok Ayukta cannot be stated to be perverse or against provisions of law so as to invite interference by this Court. There cannot be any doubt that this Court cannot sit in appeal on the findings of Lok Ayukta and as held by this Court in **Subrahmania Pillai's** case (supra) it is only in exceptionally exceptional cases of total perversity, this Court may step in. I have no hesitation to hold that the petitioners cannot be heard to contend that on account of the straitened circumstances they are not liable to pay interest. The financial constrains cannot be put forth as a ground for wriggling out of the liability to pay interest if there is any undue and unexplained delay in the matter of payment of pension. I find no reason to hold that the finding of the Lock Ayukta in Ext.P2 is perverse and warrants interference by this Court. In the above circumstances, this writ petition is liable to fail and accordingly, it is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS