Balakrishnan Nambiar vs State

V.V. Kamat, J.—It appears that the retired employees of the State are not treated in the spirit that they have given their entire life of service to the State. Repeated observations of the Supreme Court R. Kapur Vs. Director of Inspection (Painting and Publication) Income Tax and Another, ; State of Kerala and Others Vs. M. Padmanabhan Nair, to the effect 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 Supreme 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 market rate till actual payment. The current market rate is also settled by the Supreme Court in the above decisions at 18% per annum. This is further reinforced by the Circular (Ext. P-2) issued by the Government of Kerala specifically emphasising yet another aspect that I the documents necessary for the sanctioning of pension and gratuity should be prepared sufficiently earlier so that payment of gratuity amount could be made to the Government servant on the date he retires or on the following day. It is yet crystal clear from the said circular that all pension sanctioning authorities and heads of departments are requested to strictly follow the instructions so far issued and to settle pensionary claims without delay. It has also been pointed out that if in any case 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. Further it is emphasised that the: liability to pay penal interest on the dues should commence at the expiry of two months from the date of retirement. In other words it is specified by the Government of Kerala in the above circular itself that the last limit for settlement is to be understood as two months from the date of retirement.

What appears through the material on record of this petition would have to be described as the attitude of the State to hoodwink the decisions of the Supreme Court and its own circular, much more so with the clear position spelling out the spirit of the situation that the retired Government servant should be allowed to lead peaceful retired life, have been given an indecent go by.

The petitioner retired as Special Grade Executive Officer of the Panchayat Department having retired on and from June 30, 1987. Upto this date all ended well and there was no whisper with regard to any difficulty with regard to his retirement and payment of dues as a result thereof. This will be seen as a strayed situation through the communication (Ext. P-1) dated June 26, 1987 whereby the Head of the Department (District Panchayat Officer - respondent No. 3) informed the Accountant General, Kerala, Thiruvanathapuram (respondent No. 4) to the effect that a Pension of Rs. 698/- p.m. with effect from July 1, 1987 and a DCRG of Rs. 23,760/- is sanctioned to the petitioner who was then due to retire by the end of the month on June 30, 1987. The said communication also fixes a family pension of Rs. 346/- p.m. upto June 24, 1984 and Rs. 173/- thereafter as sanctioned to his wife. It is with this clear cut endorsement the Head of the Department submitted the pension papers with the service book of the petitioner with a request that pensionary claims be admitted at the earliest.

It is then the petitioner had to take resort to representations. The first one referred to in the petition is dated August 3, 1987 addressed to respondent No. 2 (the Director of Panchayats) with regard to the DCRG amount of Rs. 23,760/- in view of the position that the petitioner started receiving the pension amount of Rs. 698/- regularly.

Respondent No. 3 (the District Panchayat Officer) by communication dated August 9, 1988 reported to the Director of Panchayats (respondent No. 2) for the first time thought of a non-liability certificate apparently from the panchayats where probably the petitioner worked earlier, such as Pariyaram Panchayat in Cannannore District and Pilicode and Cheruvathur Panchayats in Kasargode District placing on record that audit of accounts for the period were not completed in the said Panchayats and the Panchayat from where the petitioner retired.

Then follows a further representation (Ext. P-5) dated October 25, 1988 addressed to the Director of Panchayats (R2). It is placed on record that after retirement the proposed marriage of his daughter to be celebrated in the first week of December 1988 was an occasion of huge expenses, compelling the petitioner to press for an early settlement at least after a period of 16 months of his retirement. Not a single pie out of this amount of Rs. 23,760/- initiated by the District Panchayat Officer and that too four days prior to his day of retirement was received by the petitioner even after 16 months thereafter.

It is surprising to watch the slow motion picture revealing the scant attitude of the authorities especially in regard to retired employee like the petitioner when one sees nothing thereafter but a communication dated May 8, 1989 from the Director of Panchayats (R-2), the contents of which appear to be much colder in print. The petitioner is told that necessary instructions had been issued to the District Panchayat Officer, Kasargode to settle the claim urgently. This is the position nearly two years after the retirement of the petitioner.

The situation becomes colder still even after a year thereafter. On June 15, 1990 the Accounts Officer of the office of the 4th Respondent (Accountant General, Kerala) informing the District Panchayat Officer (R-3) that the pension case is pending in his office for want of information documents. Although it is mentioned in the letter that this want of information documents are mentioned below, it is more important to note in this judgment that by way of enclosure the endorsement appears in regard thereto is "nil".

The apathy still has a travel of patience for a further period of two years.

On May 8, 1992 the petitioner by his representation addressed to the Accountant General, Kerala (R-4) has placed on record that he retired on June 30, 1987 and no vigilance case or disciplinary action was pending against him until the date of retirement. It is also placed on record that the petitioner used to reply to all communications from the Executive Officer relating to audit reports along with all proper explanations to get the objections cleared by way of local verifications, sanctioned or rectification, as the case may be. It is also placed on record that the Executive Officer simply reported relating to the concerned amount held under audit objections to the District Panchayat Officer. It is also reiterated that this is the situation of normalcy and therefore to the Director of Panchayats and the District Panchayat Officer by the communication (Ext. P-4), the petitioner has placed on record a situation of lament and regret that even after 4 years and 10 months he did not receive a pie from the DCRG amount of Rs. 23,760/- and therefore made the Department aware of its liability towards penal interest with effect from September 1, 1987.

The situation would show that it is thereafter and that too behind the back of the petitioner there being no question of giving any opportunity whatsoever, a decision to deduct a sum of Rs. 3971/- from the amount of Rs. 23,760/- towards DCRG of the petitioner was taken, as a result of which an amount of Rs. 19,789/- came to be issued on June 2, 1992 by the 4th respondent as per Ext. P-18 and in regard thereto it is admitted by the petitioner that he received the said amount on June 19, 1992 obviously under protest. It thus becomes an undisputed position that the petitioner was not paid even a pie from September 1, 1987 upto June 19, 1992 and this was inspite of the repeated demands and representations. There is also no dispute that the remaining amount of Rs. 3971/- ought to be deducted in a unilateral manner there being no question of the petitioner having been heard. Although it is averred in the counter that the petitioner did not appear, factually thereto is no dispute that the decision to deduct the amount is ex parte and without the petitioner being concerned in any way in regard thereto. There is also no doubt that till the date of retirement or even two months thereafter, there was no whisper in any manner in regard to this thought of deduction and it has to be observed that this thought of deduction occurred five years after the retirement in question.

It would be necessary to consider the details of this amount of Rs. 3971/- which appears on record from Ext.P-9 onwards, ExtP- 9 relates to an amount of Rs. 76/- and the reports of the Accounts Officer shows recommendation of adjustment in regard thereto, and that the petitioner was authorised in regard to this amount.

The second item is Rs. 165/- in regard to which also the petitioner was authorised and the amount is recommended to be adjusted by showing credit to P.D.A/c. of the concerned Panchayat. The document is at Ext.P-10.

The next item is of Rs. 1576/- on the basis of Ext.P-11 showing the endorsement of the Accounts Officer regarding adjustment in the P.D. A/c of the concerned Panchayat.

The next item is placed at Ext.P-12 in regard to an amount of Rs. 1618/- in regard to which also the petitioner was authorised and the endorsement is that it should be credited to P.D. A/c. of the concerned Panchayat.

Then there is an item of Rs. 107/- in regard to which the material is at Ext.P-13 showing the similar situation authorising the petitioner and recommendation of credit to the P.D. A/c. of the Panchayat.

There is a small item of Rs. 47/- shown by Ext.P-14 exhibiting a similar situation. Then there are amounts of Rs. 335/- (Ext.P- 15), Rs. 42/- (Ext.P-16) and Rs. 2/- (Ext.P-17).

Apart from the position that these are wrecked up in 1992 and submitted by the respondent No. 1 to the District Sub-Treasury Officer of the concerned Panchayat, all showing the credit of the amount by way of adjustment in the P.D. A/c. of the concerned Panchayat. It is to be seen that there was lull and silence till the day of the petitioner''s retirement as would appear from the correspondence (Ext.P-1) dated June 26, 1987.

It will have to be observed that apart from the two pronouncements of the Supreme Court to the effect that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but are valuable rights and property in their hands, even the spirit behind the issuance of the circular (Ext.P-2) would persuade this Court to make certain general observations. It is necessary that it should be borne in mind that a Government Servant retires practically after giving his life to the Government. It is therefore expected that the least that should be carefully observed is to secure the situation he is really at peace after retirement.

It is for these reasons care and caution has to be taken that whatever dues that are legitimately recoverable from the Government servant are required to be found out, ascertained and fixed before the date of retirement. There is no gainsaying that the date of retirement of the Government servant is fairly well known almost on the day when he joins the Government service. No difficulty can be imagined in regard to the alertness of the situation. In the context a lesson also is to be drawn from the observations of the Supreme Court making the liability towards penal interest after a period of two months from retirement. This period of two months as fixed by the Supreme Court with regard to the said liability will have to be appreciated in regard to its logical consequence to mean that the outer limit is two months from the date of retirement.

It is elementary principle of natural justice that whatever dues that are sought to be recovered are required to be ascertained on the basis of particulars given to the person from whom the amount is sought to be recovered and it can never be said that it is determined exparte can be acceptable before any forum.

As a logical extension of the approach of the Court towards the retired employees, it has also to be observed that it is not that any over payment made to a retired Government servant is wholly irrecoverable by any other process, thereby justifying the recovery ex parte or recovery from the said amount even after a period of five years by retaining the said amount unjustifiably. A Government servant who is with the Government for a number of years is not to be understood as totally insolvent and incapable of payment in regard thereto so much so that deduction in this manner also has to be accepted in the context.

Even in the counter, apart from the averment that the petitioner was called several times and he did not come and therefore he alone is responsible for the delay in disbursement is hardly justifiable in the context when deduction itself becomes questionable in the context.

Apart therefrom the manner in which the petitioner knocking at the doors of the various authorities for his valuable right and property well nigh for a period of five years becomes more than reprehensible when it is brought to this Court. The amount as I have described is not established to be due and payable by the petitioner and therefore its deduction from the source is hardly justifiable. If the deduction takes a period of five years for its emergence, it will have to be observed that it is just in the nature of a counter blast to justify the penal delay. The respondents are liable for payment of the said amount which has been unjustifiably deducted as observed above. They are also liable to pay penal interest even with regard to the amount of Rs. 19,789/- from September 1, 1987 upto June 19, 1992 at the rate of 18% per annum. In addition thereto the respondents are also liable to pay Rs. 3971/- wrongly deducted and an amount thereon again at 18% per annum from June 19, 1992 upto the date of payment. Respondent No. 4 Accountant General, Kerala, Thiruvananthapuram is hereby directed to calculate the amount due together with interest awarded and make payment thereof to the petitioner on or before March 31, 1996. It is further ordered that non- payment of this amount on or before the aforesaid date would make the respondents liable to pay further penal interest at the rate of 24% per annum till the date of payment. It is further made clear that in accordance with the circular Ext.P-2 the Government of Kerala is free to proceed to find out if any officer individually or collectively could be considered responsible for the said amount for the purpose of recoupment in regard thereto in the light of the circular Ext.P-2.

In the above situation the petitioner has been reasonable not to press for costs.