Vilasini R v State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 4TH DAY OF DECEMBER 2014/13TH AGRAHAYANA, 1936 WA.No. 1840 of 2014 (N) IN WP(C).32134/2010 --------------------------------------------- AGAINST THE JUDGMENT IN WP(C) 32134/2010 of HIGH COURT OF KERALA DATED 27-10-2014 APPELLANT(S)/PETITIONER: ---------------------------------------- VILASINI R W/O.LATE P.S.BHASURANGAN, PALLATH HOUSE, THALAYAR KUTTOOR PO, THIRUVALLA BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): ---------------------------- 1. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO GOVERNMENT HOME (B) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001. 2. THE DIRECTOR GENERAL OF POLICE(PRISONS) OFFICE OF THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM 695 001. 3. THE SUPREINTENDENT CENTRAL PRISON, THIRUVANANTHAPURAM 695 001. 4. THE SENIOR ACCOUNTS OFFICER OFFICE OF THE ACCOUNTANT GENERAL ( A & E), KERALA THIRUVANANTHAPURAM 695 039 5. THE SUB TREASURY OFFICER SUB TREASURY , THIRUVALLA 689 025 6. THE BRANCH MANAGER THE PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK LTD. KOTTA BRANCH PATHANBAMTHITTA 689 101 7. RATNAMMA.P.A VINIL BHAVAN, KOTTACKAKAM, ARANMULA PO PATHANAMTHITTA 689 101. R1 TO R5 BY SR.GOVERNMENT PLEADER SRI S.JAMAL R6 BY SRI.JACOB P.ALEX THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.A.NO.1840/14** ## **APPELLANT'S ANNEXURES:** - ANNEXURE 1: COPY OF GOVERNMENT CIRCULAR BEARING NO.31/85/ FIN.DT.10.4.85. - ANNEXURE 2: COPY OF GOVERNMENT CIRCULAR BEARING NO.5472/ C3/2001/G.EDN. DT.5.3.2001. - ANNEXURE 3: COPY OF GOVERNMENT CIRCULAR BEARING NO.24606/D3/ 1999/RD.DT.17.8.2001. - ANNEXURE 4: COPY OF GOVERNMENT CIRCULAR BEARING NO.59/2001/FIN. DT.3.10.2001. - ANNEXURE 5: COPY OF GOVERNMENT CIRCULAR BEARING NO.18/2003/ FIN.DT.25.1.2003. RESPONDENTS' ANNEXURES: NIL TRUE COPY P.S.TO JUDGE dsn **ANTONY DOMINIC & ANIL K.NARENDRAN, JJ. -------------------------------------------------Writ Appeal No.1840 OF 2014** **-------------------------------------------------DATED THIS THE 4[th] DAY OF DECEMBER, 2014** ## **JUDGMENT** ## **ANIL K.NARENDRAN , J** . The appellant is the petitioner in W.P.(C)No.32134/2010. The said Writ Petition was filed seeking a writ of mandamus directing respondents 1 to 5 to disburse the Death-cum-Retirement Gratuity (hereinafter referred to as 'the DCRG') legally due to her on account of the untimely death of her husband, together with interest, within a time limit to be fixed by this Court, and for other consequential reliefs. 2. By an order dated 22.11.2010, this Court directed respondents 1 to 3 to release the DCRG due to the appellant within one month from the date of receipt of a copy of the said order and on the basis of the said direction, the DCRG was released to the appellant in December, 2010. By judgment dated 27.10.2014, the learned Single Judge dismissed the Writ Petition, holding that, interest for the DCRG cannot be ordered. It is aggrieved by the said judgment of learned Single Judge, the appellant is before us in this Writ Appeal. W.A.No.1840/14 -2- 3. We heard arguments of the learned counsel for the appellant, the learned Senior Government Pleader appearing for the official respondents and the learned Standing Counsel for the 6[th] respondent-Bank. 4. The appellant is the widow of late P.S. Bhasurangan, who died in harness on 26.10.2006, while working as Head Warder in the Central Prison at Thiruvananthapuram. The 4[th] respondent, by Exhibit P5 Gratuity Payment Order dated 19.11.2007, requested the 5[th] respondent to arrange payment of a sum of 1,20,816/- to the appellant and her minor children₹ towards the DCRG payable on the death of late Bhasurangan. As evident from Exhibit P6 Verification Report dated 19.11.2007, the appellant was authorised to receive the share of DCRG payable to the minor children. But, the DCRG payable was not disbursed on the ground that late Bhasurangan stood as a surety for a loan availed by the 7[th] respondent from the 6[th] respondent-Bank and the Bank has issued Exhibit P3 requisition dated 10.10.2008, under Section 37(2) of the Kerala Co-operative Societies Act, 1969, to the 3[rd] respondent to effect recovery of an amount of ₹ W.A.No.1840/14 -3- 3000/- per month from the salary payable to him. The appellant has submitted Exhibit P4 representation before respondents 1 to 4 for disbursement of the DCRG amount together with interest. Thereafter, she had approached this Court in W.P.(C) No.32134/2010 and pursuant to order dated 22.11.2010 of this Court, the DCRG amount was released to her in December, 2010. 5. The only question that has to be examined in this Writ Appeal is as to the entitlement of the appellant for interest on the delayed payment of the DCRG. 6. The issue regarding payment of interest on the delayed payment of retiral benefits is no more res integra and is concluded by a catena of decisions of the Apex Court. In **State of Kerala v. Padmanabhan Nair (1985 (1) SCC 429)** the Apex Court held that, “pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of the Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current W.A.No.1840/14 -4- market rate till actual payment.” The Apex Court further held that, “the necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be overemphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.” 7. In **S.K. Dua v. State of Haryana (2008 (3) SCC 44)** , the Apex Court dealt with a case in which retiral benefits were released to a Government employee after a delay of four years and it was held that he would be entitled to interest on such benefits. Paragraph 14 of the judgment reads thus; “ 14. .... If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. .....” 8. Rules 66 to 70 of Part III KSR deal with Death-cum- W.A.No.1840/14 -5- Retirement Gratuity. Going by Rule 67, if an employee who has five years of qualifying service dies while in service, a gratuity not exceeding the amount specified in Rule 68 may be paid to the person on whom the right to receive the gratuity is conferred under Section V of Part III KSR, which deals with nominations, or if there is no such person, to the surviving members of the family as defined in Rule 71 in the manner indicated in Clauses (t) to (iii) to Rule 67. In view of the judgment of the Apex Court in **Padmanabhan Nair's case (supra)** , the Government of Kerala have issued Annexure A1 circular dated 10.4.1985, requesting the Pension Sanctioning Authorities and Head of Departments to strictly follow the instructions so far issued and settle pensionary claims without delay. It was also made clear that, if in any case the Government is forced to pay penal interest due to specific lapse on the part of any officer, he will be held responsible for it and the amount will be recouped from him. 9. In the case on hand, the employee died in harness on 26.10.2006. Though, the 4[th] respondent, by Exhibit P5 Gratuity Payment Order dated 19.11.2007, requested the 5[th] respondent W.A.No.1840/14 -6- to arrange payment of a sum of 1,20,816/- towards the DCRG₹ payable, the said amount was released to the appellant, pursuant to order dated 22.11.2010 of this Court, only in December, 2010. Neither the official respondents nor the 6[th] respondent-Bank have a case that, late Bhasurangan executed any agreement with the said Bank agreeing to effect any recovery from the Gratuity amount payable. Even the requisition in Exhibit P3 dated 10.10.2008 is only for effecting recovery from his salary, which was received by the 3[rd] respondent much after the death of the employee. 10. When the 4[th] respondent by Exhibit P5 order dated 19.11.2007 authorised the 5[th] respondent to arrange payment of a sum of ₹1,20,816/- towards the DCRG payable, nothing prevented the 5[th] respondent from disbursing the said amount to the appellant immediately thereafter. The official respondents have not chosen to file any counter affidavit in the Writ Petition explaining the reason for the delay in the disbursement of the DCRG. In such circumstances, we are of the view that, the appellant is entitled for payment of interest on delayed payment W.A.No.1840/14 -7- of DCRG, at the rate of 10% per annum, for the period from 19.11.2007 till December, 2010. 11. In the result, the judgment of the learned Single Judge dated 27.10.2014 in W.P.(C)No.32134/2010 is set aside and respondents 1 to 5 are directed to pay the appellant, simple interest at the rate of 10% per annum, on the DCRG amount of ₹ 1,20,816/-, for the period from 19.5.2007 till December, 2010. Such payment shall be made as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of the judgment. 12. The petitioner shall produce copy of this judgment before respondents 1 to 5 for necessary information and compliance. The Writ Appeal is disposed of as above. SD/- **ANTONY DOMINIC** , **JUDGE** SD/- **ANIL K.NARENDRAN, JUDGE** dsn