Shamsiya S. v. Kerala University and Others (RP 242 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 31[ST] DAY OF MARCH 2022 / 10TH CHAITHRA, 1944** ## **RP NO. 242 OF 2022** ## **AGAINST THE JUDGMENT IN WP(C) 22032/2018 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER:** SHAMSIYA S., AGED 63 YEARS (SELECTION GRADE ASSISTANT RETIRED), DEPARTMENT OF ISLAMIC STUDIES,UNIVERSITY OF KERALA, KARIAVATTOM P.O.,THIRUVANANTHAPURAM) RESIDING AT 105C,PUTHENPURAYIL, VIKAS NAGAR,PATTAHTANAM P.O., KOLLAM 21. PRESENTLY RESIDING AT BISMILLAH, 122A, MG NAGAR, KUREEPUZHA EAST, KAVANAD P.O. KOLLAM, 689 001, REPRESENTED BY HER POWER OF ATTORNEY HOLDER BASHEER S/O. ABOOBEKAR AGED 70 YEARS, RESIDING AT ARA VEEDU, TAGORE NAGAR 17, MEDAYILMUKKU, THIRUMULLAVARAM P.O., KOLLAM 691 012. BY ADVS. V.JOHN MANI S.JAYANT JACKSON JOHNY VARGHESE SABU SETHULAKSHMI K.K. DIANA LAURANCE PAUL ## **RESPONDENTS:** 1 KERALA UNIVERSITY, REP. BY ITS REGISTRAR, KARIAVATTOM P.O.,THIRUVANANTHAPURAM 695 581. 2 REGISTRAR, UNIVERSITY OF KERALA,KARIAVATTOM P.O.,THIRUVANANTHAPURAM - 695 581. 3 THE SECRETARY, KERALA UNIVERSITY EMPLOYEES CO-OPERATIVE SOCIETY LTD. NO.T- 233, KERALA UNIVERSITY CAMPUS, KARIAVATTOM P.O.,THIRUVANANTHAPURAM - 695 581. **RP NO. 242 OF 2022** **2** 4 THE SECRETARY, KERALA UNIVERSITY STAFF HOUSING CO OPERATIVE, SOCIETY LTD NO. T- 11314 KERALA, UNIVERSITY CAMPUS, KARIAVATTOM P.O, THIRUVANANTHAPURAM 695 581. BY ADVS. SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA T.B.HOOD M.ISHA AMAL KASHA THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RP NO. 242 OF 2022** **3** ## **ORDER** ## This review petition is filed seeking a review of the judgment on the following grounds: _A. It is submitted that this Hon'ble Court after considering the W.P(C) No.22032 of 2018, was pleased to direct the respondent to take an appropriate decision if the petitioner approached the 1[st] respondent with proper application and submits the non-liability certificate and the release letters as claimed by the petitioner and if any due to the petitioner after withholding /recovery of amounts legally recoverable from the petitioner’ s retirement benefits shall be released to the petitioner. It is submitted that the financial liabilities alleged by the respondents where either time barred or settled, the non-liability certificates of which were produced as Exts.P8 to Exts.P16 to the Writ Petition. The said fact could not be brought to the attention of this Hon’ble Court while passing the above judgment._ _B. The alleged financial liabilities reported should not be a reason for not implementing Exts.P2 judgment and P3 order granting invalid pension. Rule 12 of Kerala Service Rules Part III provides that; “No pension granted or continued by the Government on political considerations or on account of the past service or present infirmities or as a compassionate allowance and no money due, or to become due, on account of any such pension or allowance shall be liable to seizure,_ **RP NO. 242 OF 2022** **4** _attachment or sequestration by process of any court in India at the instance of a creditor for any demands against the pensioner, or in satisfaction of a decree or order of any such court”. Conduct of the respondents in not releasing the invalid pension already sanctioned to the petitioner on the premise of alleged financial liability is in violation of the statutory provision quoted above. The said aspect could not be brought to the attention of this Hon’ ble Court while passing the above judgment._ _C. The question of whether the alleged financial liabilities could be a reason for declining retiremental benefits including invalid pension to the petitioner and whether the above financial liabilities are enforceable especially when the same is time barred by limitation and also in the absence of any civil court proceeding are important questions of law to be considered in the above writ petition. The said aspect could not be brought to the attention of this Hon’ble Court while passing the above judgment._ _D. Though Civil Procedure Code is silent, such a protection follows from section 11 of Pensions Act and Part III of Rule 124 of Kerala Services Rules. In_ _**Shine Varghese v. District superintendent of Police** 2013(1) KLT 812 Rule 124 of the "Kerala Service Rules Part-III makes it abundantly clear that the Pensionary benefits of an employee cannot be attached. Ruling given under that Rule Specifically states that Death/Retirement Gratuity is not attachable by a Court of law. Order passed by Magistrate, directing the treasury officer to attach the fine amount from the Death/Retirement Gratuity of the accused /retired_ **RP NO. 242 OF 2022** **5** _employee Which is illegal stands vacated._ _E. The respondents ought to have provided the retiral benefits to the petitioner without the interference of this Hon’ble Court. The delay in disbursing the monetary benefits to the petitioner has caused hardship. In_ _**Gorakhpur University and Others v. Dr. Shitla Prasad Nagendra and Others** reported in [(2001) 6 SCC 591], the Hon'ble Supreme Court have applied the principles laid down in_ **Som Prakash v. Union of India** _reported in AIR 1981 S.C. 212) and_ _**R. Kapur v. Director of Inspection (Painting and Publication) Income Tax and Anr** reported in (1994) 6 SCC 589) holding that the pension and other retiral benefits cannot be withheld or adjusted or appropriated for the satisfaction of any other dues outstanding against the retired employee. The court also emphasized the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest._ _F. In_ _**State of Kerala and Others v. Aisha Kunju and Another** 20087(1)_ _KHC 1020, it was held that so far as the pending applications are concerned it is duty of the Head of the Department to obtain it from the retiring employee and to take necessary steps to sanction the same. The pension sanctioning authority cannot contend that the application was defective and it was not sanctioned in time._ **RP NO. 242 OF 2022** **6** ## _G. In_ _**Padma Nath v. State of West Bengal and Others** [2019 SCC Online_ _Cal 2185], the decisions relied upon support the settled law on the right of a retired teacher or employee to his/her retirement benefits without any delay. The principle that the disbursement of pension and other retirement benefits should not be treated as a matter of bounty but are valuable rights and property and any delay in settlement or disbursement thereof must be compensated with the penalty of payment of interest at the current market rate till actual payment to the employee, as has been held in several cases, including in_ _**State of Kerala v. N. Padmanabhan Nair** ((1985) 1 SCC 429). In_ _**Sathiyabama and Ors v. M.Palanisamy and Ors. (2004)** I MLJ 43 it was held that Provident Fund amounts, pension and other compulsory deposit retain their character until they reach the hands of the employee, any other view cannot be taken considering the conditions in which such exemption provisions operate and the class of persons they were intended to benefit._ ## _H. In_ _**Velayudhan Chettiar V v. Kerala State Electricity Board** ILR 2016_ _(3) Ker 74 it was held that Kerala State Electricity Board cannot recover any amount from a pensioner towards loss sustained by Board on account of his duty, unless the liability is quantified and responsibility fixed in proceedings conducted in accordance with the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 or Rule 3, Part III of Kerala Service Rules, 1959._ ## _I._ _**Union of India and Another v. Wing Commander R.R. Hingorani**_ _1987 SCR (2) 94 the Court held that Government could not unilaterally deduct the_ **RP NO. 242 OF 2022** **7** _amount of Rs.20,482.78/- from the commuted Pension payable to the respondent, contrary to Section 11 of the Pension Act, 1871. According to its plain terms, Section 11 of the Pensions Act, 1871 protects from attachment seizure or sequestration pension or money due or to become due on account of any such pension. The words "money due or to become due on account of pension” by necessary implication mean money that has not yet been paid on account of pension or has not been received by the pensioner and therefore wide enough to include commuted pension._ _J. In_ _**Pappachan S v. State of Kerala** ILR 2008 (4) Kerala 664 the Government should release the DCRG to a retired employee, if the liability of the employee had not been fixed within three years of retirement. The loss caused by the employee while in service can be recovered by the government by instituting a civil suit or by invoking the provisions under the Kerala Public Accountants Act._ _K. In view of the matter the order requires to be reviewed; otherwise, the review petitioner will be put to hardships._ I have heard the learned counsel for the petitioner and the learned counsel appearing for the respondents in the review petition. The judgment of this Court specifically directed the petitioner to raise her claims before the University and directed the University to consider such claims with notice to the creditors as well. I find that there is absolutely **RP NO. 242 OF 2022** **8** no error vitiating the judgment and that the judgment does not require a review. The grounds raised in the review petition are unsustainable and insufficient for review of a judgment rendered after hearing the review petitioner and after considering her contentions. The review petition fails and the same is, accordingly, closed without prejudice to the contentions of the petitioner before the University. **Sd/-** **ANU SIVARAMAN** **JUDGE** SVP ## **RP NO. 242 OF 2022** **9** ## **APPENDIX OF RP 242/2022** PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE JUDGMENT IN W.A. NO. 1598 OF 2021 DATED 03/02/2022.