IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 19TH OCTOBER 2009 / 27TH ASWINA 1931 WP(C).No. 17377 of 2009(N) -------------------------- PETITIONER(S): ----------------------- P.K.POULOSE, S/O.KURIAKOSE, AGED 56 YERS PENSIONER, POOKKADEN HOUSE,PERUMBAVOOR -683542, ERNAKULAM DSITRICT,RETIRED FROM LOWER DIVISION CLERK FOOD & CIVIL SUPPLES DEPARTMENT TALUK SUPPLY OFFICE KOTHAMANGALAM. BY ADV. SRI.V.J.JOSEPH SMT.M.V.LIGI RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETRY, FOOD & CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, GANDHI NAGAR, ERNAKULAM. 3. DISTRICT SUPPLY OFFICER, ERNAKULAM. 4. TALUK SUPPLY OFFICER, KOTHAMANGALAM. 5. SUB TREASURY OFFICER, PERUMBAVOOR. ADV. SMT.MOLLY JACOB,SC,SUPPLYCO FOR R2 GOVT.PLEADER SRI.ANTONY MUKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.17377/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: A COPY OF THE SAID APPRECIATION LETTER ISSUED BY THE DISTRICT SUPPLY SUPPLYCO OFFICER. EXT.P2: A COPY OF THE LETTER DT 18.7.08 SENT BY THE PETITIONER TO THE DIRECTOR OF CIVIL THIRUVANANTHAPURAM. EXT.P2(a): COPY OF THE COVERING LETTER ACCOMPANYING EXT.P2 LETTER. EXT.P2(b): COPY OF the LETTER NO.CS-3/396/2008 DT 24.7.08 OF THE 4TH RESPONDENT. EXT.P3: COPY OF THE GRATUITY PAYMENT ORDER NO120830753 DT 30.9.08 ISSUED BY THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM EXT.P4: A COPY OF THE NO LIABILITY CERTIFICATE NO.D7-22377/2008 DT 7.2.2009 ISSUED BY SUPPLYCO. EXT.P4(a): A COPY OF THE COVERING LETTER NO.D7-22377/2008(1) DT 7.2.2009 ISSUED BY SUPPLYCO. EXT.P5: A COPY OF THE SAID LETTER DT 17.2.2009 ISSUED BY THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. EXT.P6: A COPY OF GRATUITY PAYMENT ORDER NO120930753-1 DT 20.2.2009, THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. Rp //TRUE COPY// PA TO JUDGE ANTONY DOMINIC, J. ================ W.P.(C) NO. 17377 OF 2009 (N) ===================== Dated this the 19th day of October, 2009 J U D G M E N T Petitioner retired as Assistant Taluk Supply Officer on 30/11/2008. The writ petition was filed praying that the respondents shall be directed to issue non liability certificate to the 5th respondent forthwith enabling him to pay the gratuity amount due to the petitioner as sanctioned in Exts.P3 and P6 gratuity payment orders. Exts.P3 and P6 are the gratuity payment orders. By Ext.P3, an amount of Rs.1,90,963/- was sanctioned and by Ex.P6, a further sum of Rs.9,687/- was sanctioned as gratuity. Despite the issuance of Ext.P4 non liability certificate by the Civil Supplies Corporation, in which the petitioner was working on deputation, gratuity sanctioned as per Exts.P3 and P6 was not paid. According to the petitioner, this was despite the fact that he had no liability. It was in these circumstances the writ petition was filed seeking the prayers mentioned above. 2. When the writ petition came up for orders before this Court on 16/7/2009, direction was issued to the respondents to release the admitted amount retaining a sum of Rs.44,667 which WPC 17377/09 :2 : was referred in Ext.P6 as due from the petitioner towards house building advance availed of by him. Counsel now submits that accordingly retaining the aforesaid amount, balance amount has been paid. Therefore, the only issue that now arises for consideration is whether the petitioner is entitled to be released the aforesaid withheld amount of Rs.44,667/-. 3. Going by Ext.P5, Rs.44,667/- withheld consists of Rs.37,975/- towards interest outstanding from the petitioner and Rs.7,542/- due towards penal interest outstanding from the petitioner. Petitioner does not dispute his liability to pay an amount of Rs.37,125/- towards interest and he is only disputing the amount that is sought to be recovered towards penal interest. 4. The specific averment in the writ petition is that though the petitioner had availed of two housing loans, the amount availed of has been recovered from his salary as per schedule that was agreed upon between the parties. It is stated that neither did he committed any default nor was the respondents prevented in any manner from effecting recovery from his salary as per the schedule. It is contended that the petitioner cannot be penalised by realizing the penal interest WPC 17377/09 :3 : which has accrued only on account of the default committed by the 5th respondent in recovering the interest without default. 5. Having considered this submission, I am inclined to agree with the counsel for the petitioner. If as a matter of fact, amount was due and recovery could have been effected, if default has been committed in recovering the amount in time, the loanee cannot be made to suffer or made to pay penal interest on account of the default that was committed by the recovering authority. Therefore, I am inclined to direct that while the respondents will be free to appropriate from the balance amount, withheld amount due from the petitioner towards interest liability, the amount withheld towards penal interest should be released to the petitioner. Therefore, the 5th respondent is directed to release the amount withheld from the dues of the petitioner towards penal interest, pursuant to Ext.P5, on the production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp