Kerala State Road Transport Corporation v. J. Premela and Kerala Lok Ayukta

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944** **WP(C) NO. 4451 OF 2019** **(AGAINST THE ORDERS DATED 21.11.2018 AND 11.01.2019 IN** **COMPLANT 1642 OF 2011 OF THE KERAL ALOK AYUKTA)** ## **PETITIONER/S RESPONDENTS 1 AND 2:** 1 KERALA STATE ROAD TRANSPORT CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM. 2 THE ASSISTANT TRANSPORT OFFICER KERALA STATE ROAD TRANSPORT CORPORATION, PARASSALA UNIT, PARASSALA.P.O., THIRUVANANTHAPURAM. BY ADV DEEPU THANKAN ## **RESPONDENTS/COMPLAINER:** 1 J.PREMEELA,CHURCH VIEW, DHANUVACHAPURAM.P.O., THIRUVANANTHAPURAM-695503. 2 THE KERALA LOK AYUKTA, OFFICE OF KERALA LOK AYUKTHA, LEGISLATURE COMPLEX, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033. BY SMT.J.PREMEELA (PARTY) **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION** **ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.4451 of 2019 ..2.. ## **JUDGMENT** ## **MURALI PURUSHOTHAMAN, J.** The Kerala State Road Transport Corporation (KSRTC) and Assistant Transport Officer have filed this writ petition, challenging Exts.P5 and P6 orders passed by the Kerala Lok Ayukta, directing payment of interest to the 1[st] respondent for the defaulted arrears of family pension. 2. The short facts necessary for the disposal of this writ petition are as follows: The 1[st] respondent is the widow of Vincent Perera, who was a Mechanic in Parassala unit of KSRTC. Vincent Perera died on 27.10.1987 while in service. The 1[st] respondent, being the wife and legal heir of late Vincent Perera, was sanctioned family pension by KSRTC. She received family pension upto June, 2004. On 09.06.2004, she went abroad and returned in May, 2007, after a W.P.(C)No.4451 of 2019 ..3.. period of 35 months. Thereafter, she filed an application dated 29.05.2007 before Unit Officer, KSRTC, Parassala for getting arrears of family pension from July, 2004 to April, 2007. Since arrears was not disbursed, she submitted a representation to the Managing Director on 12.09.2007. She again went abroad in September, 2007 and returned to India in May, 2010. On 11.05.2010, she submitted application for arrears of family pension from July, 2004 to April, 2010, for a period of 70 months. She was paid family pension from May 2010, but the arrears from July, 2004 to April, 2010 was not released. Accordingly, she filed Ext.P1 complaint before the Lok Ayukta for disbursement of arrears of family pension for the period of 70 months from July, 2004 to April, 2010 with interest at 12%. The petitioners filed defence statement before the Lok Ayukta contending that the 1[st] respondent went abroad for employment without W.P.(C)No.4451 of 2019 ..4.. informing the KSRTC and returned after 36 months and since the pension was not drawn for more than 36 months, the pension ceased to be payable in terms of Rule 135 of Part III of the Kerala Service Rules (KSR) and the pension can be reclaimed only with the sanction of the Government. The petitioners denied the contention of the first respondent that she had submitted application dated 29.05.2007 before the Unit Officer, KSRTC, Parassala claiming arrears of family pension and requested to call for the passport and emigration details of the 1[st] respondent to prove that the claim is belated and the pension lapsed. It was contended that the representation of the 1[st] respondent dated 12.09.2007 was got enquired into; but the enquiry could not proceed further as she had left India. After her return to India in May, 2010, she was sanctioned family pension from May 2010, but for the disbursement of arrears of pension for 70 months, the W.P.(C)No.4451 of 2019 ..5.. sanction of the Government is required under Rule 136 of Part III of KSR. The Lok Ayukta, by Ext. P3 interim order dated 09.12.2014 directed the petitioners to disburse family pension to the 1[st] respondent for 35 months from July, 2004 to May, 2007. By Ext.P4 order dated 27.06.2016, the Lok Ayukta directed the petitioners to disburse family pension to the 1[st] respondent for the period of 35 months from June, 2007 to April, 2010. Pursuant to the directions of the Lok Ayukta in Exts. P3 and P4, the arrears of family pension was disbursed to the 1[st] respondent. The complaint was then taken up for consideration on the question of interest for the defaulted arrears of family pension. The Lok Ayukta, by Ext.P5 order, directed the petitioners to pay to the complainant a sum of Rs.20,815/- being interest on Rs.62,600/- from 11.05.2010 to 20.02.2015 and Rs.25,829/- being interest on W.P.(C)No.4451 of 2019 ..6.. the sum of Rs.80,507/- for the period from 04.11.2011 to 30.08.2016 at the rate of 7% per annum. 3. The operative portion of Ext.P5 order of the Lok Ayukta is extracted hereunder:- “3. Having considered the rival submissions we are of the view that the complainant is entitled for interest on the delayed payment to a certain extent, that is at least for the period the payments were delayed after the complainant came back to India and reported before the KSRTC of her arrival back. In the absence of oral evidence on either side we can only take a decision on preponderance of probability as discernible from the records available and circumstances attending on the case. We are of the view that for the sum of Rs.62,600/- representing the first part of the arrears paid covering the period from July 2004 to May 2007 the complainant is eligible for interest for the period from 11/05/2010 till date of actual payment 20/02/2015 at the rate of 7% annum. We fix the rate low taking into account the precarious financial position of the KSRTC which is notorious. Similarly as regards the second part of the arrears covering the period from June 2007 till April 2010 we hold that the complainant is eligible for interest at the same W.P.(C)No.4451 of 2019 ..7.. rate (Rs.80,507/-) from 04/11/2011 when the KSRTC entered appearance before the Lok Ayukta in this complaint till 30/08/2016 when the payment was actually made. We therefore are inclined to issue an interim order in the following terms. The Managing Director of the KSRTC is directed to pay to the complainant a sum of Rs.20,815/- being interest on Rs.62,600/- from 11/05/2010 till 20/02/2015. The Managing Director, KSRTC is further directed to release a sum of Rs.25,829/- being interest on the sum of Rs.80,507/- for the period from 04/11/2011 till 30/08/2016 at the rate of 7% per annum. The payments as ordered above shall be made within a period of two months of receiving this order. Post for compliance report on 11/01/2019.” 4. By Ext.P6, the Lok Ayukta directed the petitioners to report compliance of the directions in Ext.P5 before 15.02.2019, or else, the Managing Director of the KSRTC has to appear in person before the Lok Ayukta. Ext.P5 is impugned in the writ petition on the ground that the nondisbursement of arrears of family pension was not due to W.P.(C)No.4451 of 2019 ..8.. any latches on the part of the petitioners; but for the failure on the part of the 1[st] respondent in complying with the provisions of Rules 126 to 128 of Part III KSR for continued drawal of pension and for want of sanction from the Government for reclaiming pension in terms of Rules 135 and 136 of Part III KSR. Accordingly, it is contended that the petitioners are not liable to pay interest for defaulted arrears of family pension as directed by the Lok Ayukta. 5. Heard Sri. Deepu Thankan, the learned standing counsel for the KSRTC. Though notice was sent to the 1[st] respondent, she refused to receive the notice. Hence, notice was treated as served by order dated 06.02.2023 and this Court, by order dated 21.02.2023, directed the Registry to show the name of the 1[st] respondent in the cause list and the name of the 1[st] respondent is shown in the cause list for 28.02,2023 and the matter was heard. W.P.(C)No.4451 of 2019 ..9.. 6. Referring to the provisions of Rules 135 and 136 of Part III of the KSR, Sri. Deepu Thankan contends that the pension of the 1[st] respondent remained undrawn for more than three years and it ceased to be payable and can be reclaimed and renewed only on her appearance and the arrears can be paid only with the previous sanction of the Government. Sri. Deepu also contends that, the wife of the deceased employee is entitled to receive family pension till death or re-marriage whichever is earlier and as per Rules 126 to 128 of Part III of KSR, she has to produce annual life certificate issued by officers referred to in Rule 128 for continued drawal of pension for the succeeding year. The 1[st] respondent, who was abroad, could not produce such certificates and the non drawal of pension during the period she was abroad was not due to any latches on the part of the petitioners. It is also contended that without verifying the passport and W.P.(C)No.4451 of 2019 ..10.. emigration details of the 1[st] respondent, the date on which she claimed arrears and when the pension lapsed cannot be ascertained so as to fasten the liability of interest on the petitioners. 7. A learned Single Judge of this Court in **Karunakaran M.R and another** _**v**_ **. State of Kerala and others** [2011 (2) KHC 861:2011 (3) KLT 124], while considering the challenge to the constitutional validity of clause 6A(i) of Rule 90 of Part III of KSR, observed thus:- “Payment of family pension is not a right. The petitioners became eligible for family pension only because the rules provide for the same. If that be so, the petitioners have to seek the benefit of the rules in terms of the rules themselves including the restrictions contained therein.” We are in agreement with the said view of the learned Single Judge. If the Rules or Executive orders that are W.P.(C)No.4451 of 2019 ..11.. adopted and followed by KSRTC provide for conditions for continued drawal of pension and to reclaim lapsed pension, the payment of pension will be subject to fulfillment of those conditions. Whether the 1[st] respondent, who was abroad for about three years in two spells, had produced the non-remarriage certificate and annual life certificate issued by concerned officers stationed in India for continued drawal of pension are matters for evidence. It is to be noted that, here, the claim of the 1[st] respondent for arrears of family pension is prior to the introduction of bio-metric devices for submission of certificates. The period of stay of the 1[st] respondent abroad and the period during which the pension remained unclaimed are matters which the Lok Ayukta ought to have verified with reference to her passport and emigration details. W.P.(C)No.4451 of 2019 ..12.. 8. Payment of family pension is subject to the restrictions and conditions contained in the Rules providing for the benefits. As in the case of grant of ordinary pension, future good conduct shall be an implied condition of every grant of a family pension. Payment of family pension is not an absolute right. The Hon'ble Supreme Court, in **Ram Shridhar Chimurkar** _**v**_ **. Union of India and another** [2023 KHC 6039: 2023 (1) KHC SN 13], while considering the question as to whether a child adopted by a widow of a government servant, subsequent to the death of the government servant would be included within the scope of the definition of 'family' under Rule 54(14)(b) of the Central Civil Service (Pension) Rules, quoted with approval the decision in **Poonamal** _**v.**_ **Union of India [1985 (3) SCC 345]** wherein the Apex Court considered the purpose for which 'family pension' is granted. The Court held thus:- W.P.(C)No.4451 of 2019 ..13.. “12. It may also be appropriate to refer to the decision of this Court in _Poonamal vs. Union of India_ , 1985 (3) SCC 345, wherein the purpose for which 'family pension' is granted, was highlighted by this Court in the following words: "Family pension came to be conceptualised in the year 1950. When a Government servant die in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to obtain gainful employment. She suffered the most in as much as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socio economic justice family pension scheme was devised to help the widows to tide over the crisis and till the minor children attain majority to extend them some succour. This appeared to be the underlying motivation in devising the family pension scheme... “ While the 'family pension', which is paid monthly, is devised as a means to help the widow or the minor children of the W.P.(C)No.4451 of 2019 ..14.. deceased government servant to tide over the crisis and to extend to them some succour, the drawal of the same shall not be deferred except for reason like the pensioner being indisposed by illness or for other valid reasons. Pension is not something to be drawn after keeping it accumulated for years. That will defeat the purpose for which family pension is granted. Family pension is to lend succour and not for luxury. 9.In **T.K. Barathy** _**v**_ **. Principal Secretary to Government, Finance (pension) Department and others** [2007 KHC 5289: ILR 2007 (2) Ker. 161: 2007 (2) KLT SN 39: 2007 (2) KLJ 250], a learned Single Judge of this Court, while considering a writ petition challenging the order of Kerala Lok Ayukta refusing to interfere with the order of Government forfeiting undrawn pension, held thus: W.P.(C)No.4451 of 2019 ..15.. “7. It is true that pension is not a bounty from the State. The right to receive pension is statutorily recognised. But still a pensioner cannot have the luxury of choosing his / her own time to claim the arrears of pension, especially since the rules have provided for adequate mechanism to claim pension through a Power of Attorney Holder/Authorised Agent, in cases where the pensioner is forced to be away from his home town. Petitioner had not availed of the said facility till September 2000 though she had retired from service in 1996. Still further, she had not bothered to claim the arrears for no apparent reasons for more than four years.” 10. In **Baby. K.K.** _**v**_ **. Additional Chief Secretary (Finance) Tvm and others** [2022 (1) KHC 99], another Single Bench of this Court has elucidated the procedure under the Kerala Treasury Code and Kerala Service Rules for drawing pension by a pensioner who is not a resident W.P.(C)No.4451 of 2019 ..16.. of India. Pensioners or family pensioners may have to stay abroad for various reasons. There is no restriction for a pensioner who is not a resident of India to draw family pension. The restriction is with regard to non drawal of pension for long period. 11. Pursuant to Ext. P3 and P4 orders of Lok Ayukta, the arrears of family pension due to the 1[st] respondent have been paid. By Ext.P5, the Lok Ayukta has directed payment of interest to the 1[st] respondent for the defaulted arrears of family pension. While ordering payment of interest, the Lok Ayukta observed that, in the absence of oral evidence on either side, the decision is taken on preponderance of probability as discernible from the records available and circumstances attending on the case. When the entitlement for continued payment of pension is dependent on production of periodical documents and in the absence of such documents and also W.P.(C)No.4451 of 2019 ..17.. records regarding the period of stay of the 1[st] respondent abroad and the date of reclaim of pension, we are of the view that the Lok Ayukta is not justified in directing the petitioners to pay interest for the defaulted arrears of family pension. Accordingly, we set aside Exts.P5 and P6 orders of the Lok Ayukta. Writ petition is allowed. There will be no order as to costs. Sd/- **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** SB ## W.P.(C)No.4451 of 2019 ..18.. ## **APPENDIX OF WP(C) 4451/2019** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE COMPLAINT NO.1642 OF 2011 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE DEFENCE STATEMENT FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT IN COMPLAINT NO.1642 OF 2011. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 9.12.2014 PASSED BY LOK AYUKTA. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 27.6.2016 PASSED BY LOK AYUKTA. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 21.11.2018 IN COMPLAINT NO.1624 OF 2011 PASSED BY LOK AYUKTA. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 11.1.2019 PASSED BY LOK AYUKTA.