O.P (KAT) No.356 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 OP(KAT) NO. 356 OF 2021** **AGAINST THE ORDER DATED 04.01.2021 IN OA 297/2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/1ST AND 2ND RESPONDENTS IN O.A:** STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, WATER 1 RESOURCES (GW) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA PIN 695 001 THE DIRECTOR, DIRECTORATE OF GROUND WATER DEPARTMENT, 2 JALAVIJNANA BHAVAN, AMBALAMUKKU, KOWDIAR P.O., THIRUVANANTHAPURAM PIN 695 014, KERALA BY ADV GOVERNMENT PLEADER ## **RESPONDENTS/APPLICANTS/3RD RESPONDENT IN O.A:** 1 BABU N.JOEPH, AGED 59 YEARS, S/O.LATE C.P.JOSEPH, RETIRED AS DIRECTOR, GROUND WATER DEPARTMENT, VELLAYAMBALAM, KOWDIAR P.O., THIRUVANANTHAPURAM PIN 695 003, RESIDING AT CHERADIL HOUSE, AMALAGIRI P.O., KOTTAYAM, KOTTAYAM, KERALA, PIN 686 561 2 SABU K. DAMODAR, SUPERINTENDING HYDROGEOLOGIST AND DEPARTMENT VIGILANCE OFFICER IN CHARGE, GROUND WATER DEPARTMENT AMBALAMUKKU, KOWDIAR P.O., THIRUVANANTHAPURAM, KERALA (NAME OF R3 DELETED AS **O.P (KAT) No.356 of 2021 2** PER ORDER IN M.A.NO.1324/2018 DATED 2.7.2018) ## **OTHER PRESENT:** SRI. UNNIKRISHNA KAIMAL, GP THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 02.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **O.P (KAT) No.356 of 2021 3** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **=========================================** ## **O.P (KAT) No.356 of 2021** [A _rising out of the impugned final order dated 04.01.2021 in OA No.297/2018 of the KAT, Tvm_ ] **===========================================** Dated this the 2[nd] day of February, 2022 ## **JUDGMENT** ## **Viju Abraham, J.** The above Original Petition is filed by respondents 1 and 2 in O.A.No.297 of 2018, aggrieved by the order dated 04.01.2021 of the Kerala Administrative Tribunal, Thiruvanthapuram. 2. The brief facts necessary for the disposal of the above original petition are as follows: The applicant before the Tribunal has retired from service on 31.05.2015 while working as Director of the Ground Water Department. The Original Petition was filed alleging delay in disbursement of DCRG amount and seeking a direction to the respondents to pay interest @ 15% from 31.05.2015, i.e., the date of retirement to 09.02.2018, the date of release of the DCRG amount. Even though, gratuity was ordered as per Annexure-A1 Gratuity Payment Order dated 25.08.2015 sanctioning an amount of Rs.7 lakhs towards DCRG, the same was disbursed to the applicant only on 09.02.2018. The applicant contended that he has got 34 years of ## **O.P (KAT) No.356 of 2021 4** unblemished service. Since there was delay in disbursement of the DCRG amount, the applicant submitted Annexure-A3 bond dated 06.08.2015 and requested the authorities to release his DCRG amount on the strength of the stipulations in Annexure-A2 circular dated 21.06.2014 that if the liability could not be estimated at the time of retirement, the DCRG will be released after accepting a bond. Despite the submission of various representations, the DCRG amount was not disbursed to him. It is contended that it is only due to the inimical stand taken by the 3rd respondent in the O.A, who was holding the additional charge of Vigilance Officer in the Ground Water Department, that the delay in disbursing the DCRG had in fact occurred. The 3rd respondent therein was submitting various bogus and baseless complaints against the applicant and it is due to the same that the payment of DCRG was delayed. The 3rd respondent submitted Annexure-A4 complaint before the Government dated 21.07.2015 requesting to fix liability of Rs. 3.94 lakhs on the applicant. The 3rd respondent has no authority to lodge any such complaint directly to the Government against a former Director of the Department. The Government as per Annexure-A5 communication dated 29.07.2015 directed the Director of Ground Water Department to fix the liability as against the applicant. Based on a detailed enquiry conducted, the 2nd ## **O.P (KAT) No.356 of 2021 5** respondent in the O.A informed the Government that no liabilities are outstanding against the applicant. Moreover, in Annexure-A6 report dated 21.05.2016 it is stated that there are no adverse reports against the applicant from the Vigilance Department, Finance Inspection Wing Audit or any court order and requested to issue Non Liability Certificate to the applicant. Thereafter, Annexure-A6 complaint dated 18.05.2016 was submitted by the 3rd respondent in the O.A before the Government raising untenable contentions against the applicant. Thereupon, a further report was submitted by the Director of the Ground Water Department, the 2nd respondent in the O.A, before the Government as per Annexure-A8 letter dated 03.10.2016 reiterating that the allegations as against the applicant are baseless and no liability can be fixed and quantified against him. In Annexure-A8 it was further reported that the action of the 3rd respondent in the O.A is against the code of conduct of government servants. On 04.01.2016, Annexure-A9 complaint was submitted by the 3rd respondent as against the applicant before the Government. It is also contended that the 3rd respondent submitted various complaints against the applicant before the High Court, Lok Ayukta, Vigilance, and Anti Corruption Bureau, etc., in the name of D.Vinod Kumar and on that basis the Vigilance and Anti-Corruption Bureau conducted an enquiry and Annexure-A10 quick verification ## **O.P (KAT) No.356 of 2021 6** report dated 27.12.2016 was submitted. On being fully convinced about the illegal action taken by the 3rd respondent in the O.A as against the applicant, the Director of Ground Water Department as per AnnexureA11 communication dated 22.02.2017 requested the Government to initiate disciplinary action against the 3rd respondent in the O.A, on the ground that he has misused his official capacity to wreak vengeance as against the applicant. It is also contended that when the 3rd respondent was officiating as the Director of the Department, two show-cause notices were issued to the applicant as Annexure-A12 dated 30.06.2017 and Annexure-A13 dated 30.06.2017 and as per Annexure-A14 letter dated 30.06.2017, the 3rd respondent requested the Government to initiate disciplinary proceedings for imposition of a major penalty as against the applicant. The applicant contends that the payment of DCRG was delayed solely due to the laches on the part of the respondent and that only on 05.02.2018 Non-Liability Certificate was issued by the 1st respondent Government and only on 09.02.2018 that the DCRG amount was disbursed to him. In the said circumstances, the applicant prayed for payment of interest for the delayed period of disbursal of the DCRG amount. 3. A detailed reply statement was filed on behalf of the 1st respondent in the O.A, mainly contending that there is no willful delay **O.P (KAT) No.356 of 2021 7** on the part of the Government in issuing Non-Liability Certificate to the applicant within time and that the same was delayed only for the reason that there was an audit objection regarding certain actions taken by the applicant while in service. But in the reply statement, it was admitted that no disciplinary action or Vigilance case was pending against the applicant. When the report on various allegations was received by the Government, the Government examined the same in consultation with the Finance, Law and Vigilance Department in the matter of issuance of NLC to the applicant and the delay if any is only administrative. It is admitted in the reply statement that only the head of the Department can directly address the Government and as such, the action of the 3rd respondent in submitting Annexures-A4, A7, and A9 are irregular. A rejoinder was filed by the applicant in answer to the various contentions raised in the reply statement. Along with the rejoinder, the relevant pages of the file relating to the matter was produced as Annexure-A21 and also the legal opinion given by the Law Department in the matter which admitted the claim of the applicant that he is entitled for payment of DCRG and the delay of disbursing the same is not legally sustainable. The applicant also produced Annexure-A25, a quick verification report by the Vigilance and Anti-Corruption Bureau dated 19.10.2016 along with the rejoinder in which it is clearly stated that all the allegations ## **O.P (KAT) No.356 of 2021 8** raised against the applicant were only due to personal enmity and that the enquiry revealed that the allegations are false and baseless. Petitioner also relied on Annexure-A26 circular issued by the Finance Department dated 13.11 1999, to contend that there is no justification for the delay in disbursing the DCRG amount due to him. 4. The Tribunal, after considering the contentions on both sides, allowed the Original Application as per order dated 04.01.2021 holding that the applicant is entitled to penal interest on the delayed disbursement of DCRG, which was fixed at 8% per annum on the amount of DCRG from 01.06.2015, i.e the date of his entitlement to 09.02.2018, the actual date of disbursement. 5. It is aggrieved by the said direction issued by the Tribunal in O.A No.297 of 2018 dated 04.01.2021 that respondents 1 and 2 in the O.A have preferred the present Original Petition. 6. It is an admitted case that the gratuity amount due to the applicant in the O.A, who is the 1st respondent herein, was sanctioned by the Accountant General as early as on 25.08.2015 vide Annexure-A1 Gratuity Payment Order and that the DCRG was disbursed to the applicant only on 09.02.2018, i.e after 2 years and 9 months of his retirement. It is pertinent to note that a perusal of the documents produced in the O.A will show that the payment of the DCRG amount ## **O.P (KAT) No.356 of 2021 9** was delayed essentially due to the pendency of various complaints submitted by the 3rd respondent, who was then the Vigilance Officer of the Department. Annexures-A4, A7 and A9 are the various reports/complaints submitted by the 3rd respondent to the Government. It is pertinent to note that these complaints were preferred as against the applicant only after he retired from service. The 3rd respondent, who is the Vigilance Officer has submitted all these reports directly to the Government without resorting to the usual procedure of submitting the reports through the Head of the Department, the 2nd petitioner herein. Annexure-A8 report of the Director to the Government dated 03.10.2016 clearly states that there is no adverse report against the applicant in the O.A from any of the authorities including the Vigilance and the Finance Inspection Wing Audit and therefore, no liability has been fixed and quantified against him. In the said letter produced as Annexure-A8, the Director has categorically stated that the action of the 3rd respondent is against the code of conduct for Government employees. In Annexure- A8 quick verification report also there is no specific findings as against the applicant. Annexure-A11 letter dated 22.02.2017 by the Director of the Department addressed to the Government in the Irrigation Department also makes it clear that the action of the 3rd respondent in submitting ## **O.P (KAT) No.356 of 2021 10** reports before the Government is without the consent or knowledge of the Head of the Department and the said reports were submitted only to see that the retirement benefit due to the applicant is delayed and in the said circumstance recommended to the Government to initiate disciplinary action as against the 3rd respondent. In the reply statement filed by the Government also it is admitted that no disciplinary action or Vigilance case is pending against the applicant and that as per Circular No.73/99/Fin. dated 30.11.1999, pensionary benefits cannot be withheld on the ground of audit objection, inspection report of the Internal Audit Wing, etc., unless there is convincing reason to believe that there was malafide intention on the part of the officer to make loss to Government and that departmental action has to be taken against him while in service. In the reply statement, it is specifically admitted that the 3rd respondent has no authority to submit Annexures-A4, A7 and A9 reports to the Government and the said action of the 3rd respondent is irregular. A perusal of Annexure-A21, relevant pages of the Government file relating to the matter clearly shows the entitlement of the applicant for DCRG due to him. In Annexure-A23 legal opinion given by the Law Department also it has been reported that there is no justification for non-payment of DCRG to the applicant. In Annexure-A25 quick verification report dated 19.10.2016, the Vigilance authorities after ## **O.P (KAT) No.356 of 2021 11** enquiring into the various allegations as against the applicant, found that the irregularities pointed out are all baseless and further reported that during the enquiry it is revealed that the former Director, the applicant herein, has taken bold decisions and there is nothing to substantiate the allegations against the applicant and it is proved in the enquiry that the allegations are false and baseless and further that all the allegations raised against the applicant is part of a nefarious design to demoralise and tarnish the applicant due to personal enmity. All these admitted facts will only lead to the irresistible conclusion that the allegations raised against the applicant are false and was done due to some personal enmity towards him. The 1st respondent has issued N.L.C on 05.02.2018 for enabling disbursement of DCRG to the applicant and pursuant to the same the amount was disbursed to the applicant on 09.02.2018. The Tribunal found that the delay in disbursement of DCRG is unjustified and in the said circumstance directed payment of interest on the delayed period of disbursement of DCRG. The Tribunal rightly relied on the judgment of the Apex Court in _**State of Kerala v. V.M.Padmanabhan Nair, (1985) 1 SCC 429,**_ which held that the gratuity and pensionary benefits are no longer any bounty to be disbursed by the Government to the employees on their retirement but are valuable rights and properties in their hands and any ## **O.P (KAT) No.356 of 2021 12** inequitable delay in settlement and disbursement thereof must be dealt with the penalty of payment of interest at the current market rate to the employee. 7. It is an admitted case that no disciplinary proceedings or any judicial proceedings were pending against the applicant as of the date of his retirement. All the authorities found that the allegations raised against the applicant are false and that the applicant is entitled to payment of DCRG. The documents produced along with the O.A will prove beyond doubt that the complaints raised against the applicant were only due to the previous enmity. In the said circumstance, we feel that there is absolutely no reason to delay the payment of the DCRG amount due to the applicant and the delay is unjustified. In view of the same, we feel that the decision of the Tribunal to award interest on the delayed payment of DCRG due to the applicant is perfectly legal and valid. 8. However, the Tribunal has awarded payment of interest @ 8% per annum from the date of retirement of the applicant i.e from 01.06.2015 to the actual date of disbursement, i.e on 09.02.2018. It is pertinent to note that considering the delay in disbursement of the amount, the applicant executed Annexure-A3 surety bond on 01.06.2015 as mandated under Ruling 5 of Rule 116 of Part III K.S.R. Even after, ## **O.P (KAT) No.356 of 2021 13** execution of the said bond on 06.08.2015 the DCRG amount was not disbursed to the applicant. The contention of the Government is that the delay in disbursing of the DCRG amount is only administrative as the Government has to get clarification from the concerned departments and also from the Ground Water Department as to the liabilities alleged against the applicant and therefore the direction of the Tribunal to grant interest from the date of retirement is not correct. Going by the provisions of Rule 116 of Part III K.S.R and as stipulated in AnnexureA2 Circular dated 21.06.2014, the DCRG amount due to the applicant ought to have been disbursed by the Government at least after execution of Annexure-A3 bond dated 06.08.2015 by the applicant. In view of the facts and circumstances enumerated above, we feel that there is absolutely no justification on the part of the petitioners herein in not disbursing the amount at least from the date of execution of AnnexureA3 bond and that the applicant in the O.A is entitled to interest on the delayed payment of DCRG at 8% per annum on the amount of DCRG from the date of execution of Annexure-A3 bond dated 06.08.2015. Therefore, in partial modification of the directions of the Tribunal, we direct the petitioners herein to pay interest on the delayed payment of DCRG at 8% per annum on the amount of DCRG from 08.06.2015, i.e the date of execution of Annexure-A3 bond till the actual date of ## **O.P (KAT) No.356 of 2021 14** disbursement, i.e, 09.02.2018. It is further directed that the amount shall be computed and paid to the applicant in the O.A within 2 months from the date of receipt of a copy of this judgment. Registry will forward a copy of this judgment to R1 herein (original applicant) for necessary information. With the modifications and directions as above, the above Original Petition is disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE** sd/- **VIJU ABRAHAM, JUDGE** pm ## **O.P (KAT) No.356 of 2021 15** ## **APPENDIX OF OP(KAT) 356/2021** ## PETITIONERS' EXHIBITS TRUE COPY OF THE O.A.NO.297/2018 ALONG WITH ANNEXURES Exhibit P1 WITH ANNEXURES TRUE COPY OF THE GRATUITY PAYMENT ORDER NO.P-03/2101545211/4/P/15/12/70267631 Annexure A1 DATED 25.8.2015 ISSUED BY THE ACCOUNTANT GENERAL TRUE COPY OF THE CIRCULAR NO.64/2014/FIN Annexure A2 DATED 21.6.2014 TRUE COPY OF THE BOND EXECUTED BY THE Annexure A3 FIRST RESPONDENT DATED 6.8.2015 TRUE COPY OF THE LETTER DATED 21.7.2015 Annexure A4 OF THE DEPARTMENT VIGILANCE OFFICER (GWD, THIRUVANANTHAPURAM) TO THE GOVERNMENT TRUE COPY OF THE LETTER NO.16805/GW1/15/WRD DATED 29.7.2015 OF Annexure A5 NO.16805/GW1/15/WRD DATED 29.7.2015 OF THE SECRETARY TO GOVERNMENT (WATER RESOURCES) Annexure A6 TRUE COPY OF THE COMMUNICATION NO.E21695/16 DATED 21.5.2016 TRUE COPY OF THE LETTER DATED 18.5.2016 OF THE SECOND RESPONDENT Annexure A7 OF THE SECOND RESPONDENT TRUE COPY OF THE LETTER NO.E(2) Annexure A8 -1695/15/DGW DATED 3.10.2016 TRUE COPY OF THE LETTER DATED 4.11.2016 Annexure A9 OF THE SECOND RESPONDENT Annexure A10 TRUE COPY OF QUICK VERIFICATION REPORT ## **O.P (KAT) No.356 of 2021 16** NO.QV 32/2016/SIU DATED 27.12.2016 TRUE COPY OF LETTER NO.GWD/E2/1695/15 Annexure A11 DATED 22.2.2017 OF THE DIRECTOR, GROUND WATER DEPARTMENT TRUE COPY OF SHOW CAUSE NOTICE Annexure A12 NO.E2/5467/16/DGW DATED 30.6.2017 TRUE COPY OF SHOW CAUSE NOTICE Annexure A13 TRUE COPY OF SHOW CAUSE NOTICE NO.E2/5467/16/DGW DATED 30.6.2017 - Annexure A14 - TRUE COPY OF LETTER NO.E2/5467/16/DGW DATED 30.6.2017 OF THE SECOND PETITIONER - TRUE COPY OF QUESTION DATED 1.2.2018 RAISED IN THE 14TH KERALA STATE - Annexure A15 LEGISLATURE ASSEMBLY IN QUESTION HOUR SESSION - TRUE COPY OF INFORMATION NO.T1-1105/18 DATED 19.2.2018 RECEIVED BY THE FIRST - Annexure A16 RESPONDENT FROM THE STATE PUBLIC INFORMATION OFFICER AND SUPERINTENDING HYDROLGEOLOGIST (GENERAL) - TRUE COPY OF LETTER DATED 20.11.2017 FROM - Annexure A17 THE INDIAN AUDIT AND ACCOUNTS DEPARTMENT - TRUE COPY OF THE REPRESENTATION DATED 17.12.2016 Annexure A18 17.12.2016 TRUE COPY OF THE REPRESENTATION DATED Annexure A19 12.10.2017 TRUE COPY OF THE NLC FORWARDING LETTER Annexure A20 RECEIVED BY THE FIRST RESPONDENT ON 5.2.2018 TRUE COPY OF THE REPLY STATEMENT FILED BY Exhibit P2 THE SECOND RESPONDENT ON 12.6.2018 ALONG WITH ANNEXURE ## **O.P (KAT) No.356 of 2021 17** RESPONDENT ANNEXURES TRUE COPY OF THE COMPLAINT FILED BEFORE Annexure R3(A) THE HONOURABLE LOK AYUKTA BY THE FIRST RESPONDENT DATED 6.3.2018 PETITIONER EXHIBITS TRUE COPY OF THE MISCELLANEOUS - Exhibit P3 APPLICATION ON 19.6.2018 TO RECEIVE THE DOCUMENT ALONG WITH ANNEXURE - TRUE COPY OF THE INTERIM APPLICATION DATED 18.6.2018 FILED BEFORE THE - Annexure A21 - HONOURABLE LOKAYUTHA THIRUVANANTHAPURAM IN COMPLAINT NO.504/2018 - Exhibit P4 - TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER ON 22.1.2019 - TRUE COPY OF THE REJOINDER FILED BY THE - Exhibit P5 FIRST PETITIONER ON 12.6.2019 ALONG WITH ANNEXURES - TRUE COPY OF RELEVANT PAGES OF THE FILE - Annexure A22 NO.GW1/265/2016-WRD OBTAINED UNDER RTI ACT. - TRUE COPY OF COVERING LETTER - Annexure A23 - NO.GWI/371/2017-WRD DATED 15.11.2017 - TRUE COPY OF REPORT VIDE - Annexure A24 NO.19365/F3/2017/LAW DATED 16.9.2017 OBTAINED UNDER RTI ACT. - TRUE COPY OF THE COVERING LETTER - Annexure A25 NO.GWD1/425/2018/GWD DATED 31.10.2018 - Annexure A26 TRUE COPY OF QUICK VERIFICATION REPORT NO.QV-35/2016/SIU-1 DATED 19.10.2016 ## **O.P (KAT) No.356 of 2021 18** Annexure A27 TRUE COPY OF CIRCULAR NO.73/99/FIN DATED 30.11.1999 ISSUED BY THE GOVERNMENT Exhibit P6 TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE TRIBUNAL ON 4.1.2021