The State of Kerala and four of its functionaries v S. Suresh Kumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939 ## **OP(KAT).No. 512 of 2017** AGAINST THE ORDER/JUDGMENT IN OA 915/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 30-03-2017 ## PETITIONERS/RESPONDENTS 1 TO 5 IN OA 1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA -695 001. 2 THE ADDITIONAL DIRECTOR GENERAL OF NCC (K & L) NCC, DIRECTORATE, R.K.MISSION, THIRUVANANTHAPURAM, KERALA-695 010. 3 THE OFFICER COMMANDING 11 KERALA BATTALION NCC, ALAPPUZHA, KERALA - 688 012. - 4 THE ACCOUNTANT GENERAL (A & E) M.G.ROAD, THIRUVANANTHAPURAM-695 001, KERALA. - 5 THE TREASURY OFFICER PENSION PAYMENT SUB TREASURY, ALAPPUZHA -688 001. BY GOVERNMENT PLEADER MR. ANTONY MUKKATH ## RESPONDENT/APPLICANT IN OA: S.SURESH KUMAR AGED 56 YEARS, S/O.LATE SUKUMARAN, SENIOR CLERK (RETIRED) 11TH KERALA BATTALION NCC, ALAPPUZHA-688 012, RESIDING AT KANIYAMPARAMBIL, KARALAKOM WARD PO, THATHAMPALLY, ALAPPUZHA, KERALA - 688 013. BY SRI.V.A.MUHAMMED THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 0301-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 512 of 2017 (Z) **APPENDIX** ## **PETITIONER(S)' EXHIBITS** EXHIBIT P1 TRUE COPY OF OA ALONG WITH ANNEXURES EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 30.03.2017 IN OA (EKM) 915/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL. /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.** .............................................................................. **O.P(KAT)No.512 OF 2017** ......................................................................... **Dated this the 3[rd] January, 2018** ## **JUDGMENT** ## **Devan Ramachandran, J.** The State of Kerala and four of its functionaries are the petitioners in this Original Petition. They impugn the order dated 30.03.2017 passed by the Kerala Administrative Tribunal in O.A.No.915 of 2015 as being illegal and unlawful. The said O.A. had been filed by the respondent herein as the applicant, on the allegation that even though he had retired from the service of the 11[th] Kerala Battalion NCC as Senior Clerk on 31.05.2015, his DCRG had not been disbursed to him. 2. It appears that the admissible DCRG was subsequently released to the respondent on 17.09.2016 and, therefore the learned Tribunal, on a consideration of all the relevant circumstances, allowed the O.A., directing that the respondent be paid interest at the rate of 9% from 01.08.2015 to 17.09.2016, being the date of actual payment of the DCRG. The petitioners are challenging this Order before us in this Original Petition. **O.P(KAT)No.512 OF 2017** **2** 3. We have heard the learned Sr.Government Pleader appearing on behalf of the petitioners. 4. The fact that the applicant had retired from the service on 31.05.2015 is not disputed and the fact that the DCRG was disbursed to him only on 17.09.2016 is conceded. The only area of controversy that, therefore, is now relevant for our consideration relates to the order of the Learned Tribunal, granting interest to the respondent for the period during which the payment of DCRG had been delayed. The petitioners' assertion was that, while the respondent was granted the 2[nd] higher scale, there was a mistake in reckoning his scale of pay and that, even though he was entitled to higher scale, his second Time Bound Higher Grade was paid on a lower scale . According to them, this necessitated forwarding of the service book of the respondent to the Govt. of Kerala/first petitioner herein for its concurrence to rectify this anomaly and that some delay was occasioned in returning the same to the competent Authority for making payment of the DCRG, to the respondent. 5. The learned Tribunal had taken specific cognizance of this contention and we see that by an interim order, dated **3** ## **O.P(KAT)No.512 OF 2017** 29.02.2016, which has been extracted by the Tribunal in the impugned order, directions were issued to the first petitioner herein to return the service book of the respondent to the second petitioner herein the Additional Director of NCC as early as was possible and at any rate, within three weeks from the date of the said order. We are cognizant that inspite of the said interim order, no action was taken to disburse the DCRG to the respondent until 17.09.2016. 6. What we hear from the learned Government Pleader as the contentions of the petitioner in this case is, rather confusing. We say this because the learned Govt. Pleader concedes that even though there was substantial delay at the hands of the first petitioner herein, viz. the State of Kerala, in forwarding the Service Book of the respondent to the competent Authority, it still was not justified for the Tribunal to have issued the impugned order granting 9% interest to the respondent. It is pertinent that nothing has been placed on record, including in the pleadings in the Original Petition, as to how the delay was occasioned at the hands of the first petitioner, even though it is admitted that there was considerable delay. We are also not **O.P(KAT)No.512 OF 2017** **4** told as to why the respondent's service book was kept pending at the hands of the first petitioner, since what was sought for by the second petitioner was only a clarification as to the actual scale of pay into which the respondent's second time bound higher scale had to be fixed. 7. We see that the petitioners are relying on a judgment of this Court in _**State of Kerala and ohers vs. Indira C.C.**_ [ **2017** **(1)KLT 749** ] to contend that if reasons are discernible from the order, for not sanctioning the terminal benefits in time, then ordering of interest would not be justified. We are certainly in affirmation of the holdings in this judgment and we are also of the firm opinion that had there been proper reasons discernible from the order for the petitioners in delaying the payment of DCRG, then the Tribunal could have been found at fault in awarding interest. However, in this case, the only reason stated for delayed payment of DCRG is that the service book of the respondent was kept pending by the first petitioner herein (State of Kerala), but without ascribing any discernible reason. We are, therefore, certain that the ratio in _**Indira C.C**_ **(supra)** _can_ not come to the aid of the petitioners. **5** ## **O.P(KAT)No.512 OF 2017** 8. In the absence of a cogent explanation being forthcoming from the petitioners as to why there was delay in sanctioning the DCRG, eventhough the above mentioned interim order was passed by the Tribunal as early as on 29.02.2016, we are certainly of the view that this Original Petition cannot find merit. We are certainly of the view that in the circumstances that we noticed herein, the Tribunal was completely justified in ordering interest and going by the judgment of this Court in **Somarajan Nair vs. State of Kerala** [ **2015(2)KLT 753** ], to which the Tribunal has specifically made advertence to, we cannot find that the directions given by the Tribunal is, in any manner, at fault. In the said circumstances, we find no reason to interfere with the findings of the learned Tribunal and we deem it appropriate to confirm it, directing the petitioners to comply with its mandate, in its letter and spirit. We notice that the learned Tribunal has directed the petitioners to release the interest to the respondent herein within two months from the date of receipt of a copy of the said order. Even though we have confirmed the order of the Tribunal, we deem it appropriate to **6** ## **O.P(KAT)No.512 OF 2017** grant the petitioners a further time of two months from the date of receipt of a copy of this judgment to comply with the directions contained therein. It is ordered accordingly. **P.R. RAMACHANDRA MENON, JUDGE** **DEVAN RAMACHANDRAN, JUDGE** lk