The Government of Kerala v. Paul and The Principal, Christ College, Irinjalakkuda

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938 RSA.No. 1018 of 2009 ( D) -----------------------------------AGAINST THE DECREE AND JUDGMENT DATED 28.08.2008 IN AS 80/2004 of ADDL.SUB COURT, IRINJALAKUDA IN O.S. No.2118/2002 OF ADDL.MUNSIFF COURT, IRINJALAKUDA APPELLANTS/DEFENDANTS 1-4: - ------------------------------------------------- 1. THE GOVERNMENT OF KERALA, REP. BY THE DIST. COLLECTOR, THRISSUR. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR. 4. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. SUNIL KUMAR KURIAKOSE RESPONDENTS/PLAINTIFF & 5TH DEFENDANT: - ------------------------------------------------------------------------ 1. PAUL, RETIRED PROFESSOR, AGED 56 YEARS S/O. PUZHAKKAL DEVASSIKUTTY, PARAPPUKKARA, VILLAGE, MUKUNDAPURAM TALUK. 2. THE PRINCIPAL, CHRIST COLLEGE, IRINJALAKKUDA. R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN R2 BY ADV. SRI.BABY ISSAC ILLICKAL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DMR/- ## **P. SOMARAJAN, J.** --------------------------------------- ## **R.S.A. No. 1018 of 2009** ---------------------------------------- Dated this the 24[th] day of January, 2017 ## JUDGMENT This appeal is against the decree and judgment dated 28.08.2008 in A.S. No.80/2004 of the Sub Court, Irinjalakuda in O.S. No.2118/2002 of the Munsiff Court, Irinjalakuda. The suit was filed by the plaintiff for the grant of compensation/damages on account of the interest loss occasioned by him due to the non release of retirement benefits in time based on the decision drawn in **State of Kerala v. Padmanabhan Nair** reported in 1985 KLT 86. The case is that the plaintiff retired from the service on 31.03.2001, but his pensionary benefits were released only on 25.05.2002, after the lapse of one year and 55 days. As per the relevant Rules, it has to be released and disbursed within a period of two months from the date of retirement and hence the suit. The suit was decreed by the trial court against the defendants 1 to 4 granting a decree of recovery of Rs.23,187/with interest at 6% per annum from the date of suit till the date of realization jointly and severally and also passed a R.S.A. No. 1018 of 2009 2 decree against the fifth defendant granting a decree of recovery of Rs.54,103/- and interest at 6% per annum from the date of suit till the date of realization. Aggrieved by the said decree and judgment in O.S. No.2118/2002 of the Munsiff Court, Irinjalakuda, the defendants 1 to 4 preferred A.S. No.80/2004 before the Sub Court, Irinjalakuda. Later on, the fifth defendant came up with a cross appeal and the first appellate court passed a decree on hearing both the parties confirming the decree and judgment of the lower court by its decree and judgment dated 28.08.2008 by dismissing both the appeals, against which this second appeal preferred by the defendants 1 to 4 in so far as it is against them. 2. As far as the defendants 1 to 4 are concerned, an amount of Rs.23,187/- with the liability of interest at 6% per annum from the date of suit till its realization was granted to the plaintiff and the second appeal is focused against the said part of the decree and judgment alone by the defendants 1 to 4. 3. The question mainly mooted by defendants 1 to 4 is with respect to the application of Rule 110 and 115 of the Kerala Service Rules - Part III. According to the appellants, it R.S.A. No. 1018 of 2009 3 was not considered properly either by the trial court or by the appellate court and there is total failure to consider the legal impact and application of these two provisions by the trial court as well as the first appellate court. It was also brought to the notice of this court that there is failure on the part of the trial court as well as the first appellate court in considering the question of contribution made by the plaintiff causing delay in the process of disbursement of pensionary benefits. 4. Rule 110 mandates that there should be a formal application by the retiring servant in one year advance for getting the pensionary benefit. The relevant rule is extracted below for reference: “110. Every Government employee shall submit a formal application for pension in Form II, Gazetted Government Employees shall send their applications [direct to the Audit Officer] and non-gazetted employees to the head of office. Every Government employee should submit his formal application for pension at least one year in advance of the date of his anticipated retirement: Provided that, - (i) in cases in which the date of retirement cannot be foreseen one year in advance, the application shall be submitted immediately after the date of retirement is settled; and R.S.A. No. 1018 of 2009 4 (ii) a Government employee proceeding on leave preparatory to retirement in excess of one year, shall submit the application at the time of proceeding on such leave; and (iii) when a Government employee dies without making a formal application before his retirement, the authority competent to sanction pension may relax the provision of this rule and sanction pension or gratuity due to the government employee from the date of retirement up to and inclusive of the date of his death as if he had made a formal application for the same before retirement. The pension or gratuity sanctioned in accordance with this proviso may be paid to the heirs of the deceased in accordance with the normal provisions of the Rules.” 5. Going by the mandate under Rule 110, a formal application has to be submitted by the retiring servant in one year anticipation. This might be for the purpose of processing the pensionary benefits by the Government in advance, such a mandate was incorporated under Rule 110 of the Kerala Service Rules. Admittedly, the formal application was submitted only on 05.10.2000 (Exhibit B4) and it was sent by the fifth defendant only on 21.10.2000. There is only a gap of 176 days between 05.10.2000 and the date of retirement, i.e. on 31.03.2001 and there is a gap of 159 days between R.S.A. No. 1018 of 2009 5 21.10.2000 and 31.03.2001. The retirement benefits were disbursed only on 25.05.2002, admittedly after one year and 55 days from the date of retirement of the service on 31.03.2001. In short, there is no compliance of requirement as mandated under Rule 110 of the Kerala Service Rules Part III by the petitioner who is bound by Rule 110 and bound to file an application one year in advance so as to enable the Government or the employer to process the same. The question of disbursement of pensionary benefits within a period of two months would arise only when there is a compliance of mandate under Rule 110. There was no such application, either formal or otherwise, in one year anticipation as mandated under Rule 110. When there is failure on the part of the plaintiff in making an application as mandated and when there is submission of application in a highly belated stage, it would amount to contribution by the plaintiff himself, in causing the delay. The said question of contribution is neither considered by the trial court nor by the first appellate court. Going by the facts and figures, it is clear that the pensionary benefit was disbursed on 25.05.2002, i.e. after one year and 55 days. According to defendants 1 to 4, the fifth R.S.A. No. 1018 of 2009 6 defendant issued 'Non Liability Certificate' only after the retirement, that too after two months and five days. The fifth defendant is the Principal of the Institution run by private management aided by the Government. In other words, fifth defendant is not an employee under the Government and hence no vicarious liability can be fastened against the government, namely defendants 1 to 4, for the laches or default, if any committed by the fifth defendant. It is fairly submitted by both the counsel that fifth defendant being an employee under the private management, no liability can be fastened for the laches or defendant committed by the fifth defendant against the government who is aiding the institution. In the trial court as well as the appellate court, the question of application of Rule 110 and 115 was raised by defendants 1 to 4, but it was not properly considered either by the trial court or by the first appellate court. The jurisdiction vested with the first appellate court as well as the trial court has not been exercised in its correct perspective regarding the application of Rule 110 and 115 of the Kerala Service Rules Part III. The pensionary benefits were given within a period of one year from the date of issuance of 'Non Liability Certificate'. R.S.A. No. 1018 of 2009 7 The plaintiff has to blame himself for the laches committed by in making the application in one year advance and contribution from his part in delaying the process and the decree and judgment of the lower court is liable to be interfered in so far as against the defendants 1 to 4, the appellants. The decree and judgment of the lower court in so far as against defendants 1 to 4 are hereby set aside and the suit against defendants 1 to 4 is hereby dismissed. It is made clear that no challenge was raised by the fifth defendant and this court is concerned only with respect to the decree passed against defendants 1 to 4. In the result, the appeal is allowed. The decree and judgment of the trial court as well as the first appellate court are hereby set aside as against defendants 1 to 4 alone and the suit is dismissed as against defendants 1 to 4. No order as to cost of trial court, first appellate court, as well as this court. Parties shall suffer their respective costs in all counts. ## **P. SOMARAJAN, JUDGE** DMR/-