Varghese K.P. Kalluveettil v. Secretary, Kerala Khadi & Village Industries Board and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 11TH DAY OF OCTOBER 2019 / 19TH ASWINA, 1941** ## **WP(C).No.3285 OF 2015(I)** ## **PETITIONER:** **VARGHESE K.P KALLUVEETTIL HOUSE, ELANKUNNAPUZHA, ERNAKULAM-682503** **BY ADVS.** **SRI.SHAJI THOMAS SRI.BINU PAUL SRI.T.V.VINU** ## **RESPONDENTS:** **1 THE SECRETARY KERALA KHADI & VILLAGE INDUSTRIES BOARD, KHADI BHAVAN, THIRUVANANTHAPURAM-695001** **ADDL.2 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES (K) DEPARTMENT, THIRUVANANTHAPURAM-695001.** **IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 26/11/2018 IN IA.02/2018.** ## **BY ADVS.** **R1 BY ADV. MR.N.RAJAGOPALAN NAIR, SC, KERALA KHADI AND VILLAGE INDUSTRIES BOARD SRI.TOM K.THOMAS ,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.3285 OF 2015(I) 2 ## **JUDGMENT** The petitioner who retired from service on 31.05.2012 as a Village Industries Officer field this Writ Petition on 02.02.2015 aggrieved by the delay in payment of his terminal benefits. At the relevant time there were litigations relating to the scale of pay admissible to the employees under the Board towards the time bound Higher Grade. The issue regarding the time bound Higher Grade was settled by way of Ext.P2 judgment dated 19.11.2012 declaring that persons like petitioners were entitled to second time bound Higher Grade promotion in the scale of pay admissible to the promotion post. However, the matter was taken up in appeal by the Government and the appeal was dismissed as per Ext.P3 judgment dated 16.06.2014. The Government took up the matter again before the apex court and on the basis of the representations submitted by the employees of the Khadi Board the Government decided to withdraw Special Leave Petition and as per Ext.P5 order those Special Leave Petitions were dismissed as withdrawn on 19.01.2018. 2. Petitioner has filed I.A No.1 of 2019 furnishing the details of payment he received, in a tabular column, according to which he received a sum of Rs.76,541/- towards first installment of gratuity, on WP(C).No.3285 OF 2015(I) **==> picture [8 x 9] intentionally omitted <==** 13.03.2015 i.e after a period of two years and nine months of his retirement. Second installment of Rs.5,00357 was paid to him on 26.11.2018. Similarly first installment towards the pension commutation was paid to him on 01.01.2014 and second installment of Rs.1,99,643/- was paid to him on 26.11.2018. He received a sum of Rs.97,004 towards arrears of time bound Higher Grade on 04.05.2019 and arrears of pay on account of pay revision orders and promotion on 04.05.2019 and the arrears towards revision of pension on 06.02.2019. It is stated that the respondents made the final payment after an interim order was passed by this Court on 13.12.2018. 3. Along with I.A.No.4 of 2018 the petitioner produced Ext.P9 order dated 11.10.2018 pointing out that the Government had allotted a sum of Rs.7,00,00,000/- to the Khadi Board for payment of salary, pension etc. and even then petitioner was not being paid the terminal benefits in time. It was only after directions were issued by this Court that payment was effected on 06.02.2019, 04.05.2019, etc. The contention of the petitioner is that the respondents have deliberately delayed the payments which should have been made immediately after his retirement on 31.05. 2012. He therefore claims interest for WP(C).No.3285 OF 2015(I) 4 ## the delayed payment @ 18% per anum . 4. The respondents have filed a statement as well as a counter affidavit. In the statement field on 23.11.2018, it is stated that Khadi Board is a grant in aid institution and it functions upon the Government grant allocated every year in the annual budget, for meeting the day to day needs. It is further stated that the Board has been making frequent requests for allocation of additional funds which is usually granted after a lapse of time. It is also stated that the Board had requested for additional fund of Rs.15,20,00,000/- (Rupees Fifteen Crores and Twenty Lakhs only) as per Ext. R1 (a) dated 16.10.2018. 5. In the counter affidavit filed by the 1[st] respondent it is stated that the petitioner and similarly placed employees in the Board were granted second time bound Higher Grade, while they were working as Upper Division Clerks, in the scale of pay of Junior Superintendent as per the proceedings dated 03.02.2006. In the light of audit objections raised for the period 2005-06 and 2006-07 the Government examined the matter and ordered that the grant of Higher Grade to the UD Clerks in the Khadi Board, in the scale of pay of Junior Superintendent was irregular and directed the Board to re- WP(C).No.3285 OF 2015(I) 5 fix their pay and to recover the excess pay drawn by them. It is stated that the proceedings for re-fixation of pay rectifying the erroneous grant of Higher Grade was under challenge before this Court and this Court set aside the same. It is stated that after the appeal before this Court and dismissal of Special Leave Petition by apex court Board had been making additional payment of more than Rs.7,00,00,000/- . In these circumstances, payment could not be made to persons like petitioners. The respondent stated that the amount due to the pensioners can be paid only if the Government allocates additional funds. 6. It is seen that dispute over the payment due to the petitioner was only with respect to the scale of pay admissible for the second time bound Higher Grade granted to him. The respondent Board could have made the payments towards terminal benefits at the admitted rates as if petitioner was granted Higher Grade at the rate which is admissible according to them or even as if the Higher Grade was not sanctioned to him; that is not seen done. The petitioner who retired from service got the first installment of a meager amount towards D.C.R.G only on 13.03.2015; that itself took more than 2½ years. He received the second installment only on WP(C).No.3285 OF 2015(I) 6 26.11.2018. Regarding the commutation of pension petitioner cannot have any valid claim for interest because he should have been receiving pension without commutation. 7. As far as DCRG is concerned, as rightly contended by the learned Counsel for the petitioner, the respondents were retaining the pensionary benefits of the petitioner with them all these years. In view of the judgments of the apex court in **State of Kerala V Padmanabhan Nair** [AIR 1985 SC 356], **S.K. Dua v. State of Haryana & another** [AIR 2008 SC 1077], and **State of Uttar Pradesh & another V Dhirendrapal Singh** [AIR 2016 SC 5239], I am of the view that petitioner is entitled to be compensated for the delay in payment of the benefits due to him by payment of interest @ 6% per annum till the date of payment that is at least from the date of expiry of 2 months of his retirement. Petitioner would therefore be entitled to interest for the period from 01.08.2012 to 12.03.2015 on the first installment of Rs.76541/- and for the period from 01.08.2012 to 25.11.2018 on the second installment of Rs.5,00,357/-. at the rate of 6% per annum. There shall be a direction to the first respondent to see that interest is paid to the petitioner on the aforesaid amount of DCRG at WP(C).No.3285 OF 2015(I) 7 the rate of 6% per annum till the date of the respective payments within a period of three months from the date of receipt of a copy of the judgment. **Sd/P.V.ASHA JUDGE** SCS WP(C).No.3285 OF 2015(I) 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE PROCEEDINGS NO KB 6014/2001/D2 DATED 3/2/2006 OF THE RESPONDENT** **EXHIBIT P2 TRUE PHOTOCOPY OF THE JUDGMENT DATED 19/11/2012 IN WPC NO 25884 OF 2007** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT DATED 16/6/2014 IN WA NO 593 OF 2013** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE LETTER DATED 01.12.2017 OF ADDITIONAL CHIEF SECRETARY, GOVERNMENT OF KERALA.** - **EXHIBIT P5 TRUE PHOTOCOPY OF THE ORDER DATED 19.01.2018 OF THE HON'BLE SUPREME COURT IN SLP (C)NO.33353/2014 AND CONNECTED MATTERS.** - **EXHIBIT P6 TRUE PHOTOCOPY OF THE G.O. (P)NO.3000/98/FIN. DATED 25.11.1998.** - **EXHIBIT P7 TRUE PHOTOCOPY OF THE AFFIDAVIT SWORN TO BY THE RESPONDENT AND FILED BEFORE THE LOKAAYUKTA, THIRUVANANTHAPURAM.** - **EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER DATED 12/10/2018 ISSUED BY THE KERALA KHADI & VILLAGE INDUSTRIES BOARD.** - **EXHIBIT P9 A TRUE PHOTOCOPY OF THE ORDER NO.1185/2018 DATED 11.10.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P10 TRUE PHOTOCOPY OF THE ORDER DATED 27.03.2002 ISSUED BY THE GOVERNMENT OF KERALA.** ## **RESPONDENT'S/S EXHIBITS:** **ANNEXURE R1 A TRUE COPY OF THE NOTE NO.KB8139/2018/A8 DATED 16-10-2018 TO THE HON'BLE FINANCE MINISTER.** //TRUE COPY// PA TO JUDGE