IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WP(C).No. 30649 of 2007(W) -------------------------- PETITIONER: ------------ S. REGHUPRASAD, TECHNICAL OFFICER GRADE I, DEPARTMENT OF PHYSICS, COCHIN UNIVERSITY (RETD.), RESIDING AT JYOLSNA, MERRA-48, CHELAKULAM LANE, MENONPARAMBU ROAD, EDAPPALLY, KOCHI-24. BY ADV. SRI.K.JAJU BABU SRI.T.R.SADEESAN RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, TRIVANDRUM. 2. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O.,COCHIN-682022, REP. BY ITS REGISTRAR. 3. THE VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., COCHIN-682022. 4. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHI UNIVERSITY FOR R2 & 3 BY GOVERNMENT PLEADER SHRI K.R.SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDER NO.Ad.A3/244/90 DATED 27./10.98 ISSUED BY THE SECOND RESPONDENT EXT.P2 TRUE COPY OF SALARY STATEMENT FROM APRIL, 2005 TO FEBRUARY 2007 AS PER ORDER NO.Fin.II/PR-04/901/06/00375 DATED 24.2.2007 ISSUED BY THE SECOND RESPONDENT EXT.P3 TRUE COPY OF THE ORDER NO.Fin.IV/337/P/2007-08 DATED 2.8.07 ALONG WITH PENSION PAYMENT ORDER DATED 2.8.07 EXT.P4 TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT ON 11.8.07 EXT.P5 TRUE COPY OF JUDGMENT DATED 1.2.2007 IN WP(C) 5908/2005 OF THIS COURT EXT.P6 TRUE COPY OF LETTER NO.Fin.IV/REQUEST-R1A/2007/11 DATED 13.9.07 ISSUED BY THE FINANCE OFFICER OF THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY TO THE PETITIONER EXT.P7 TRUE COPY OF ENCLOSURE ALONG WITH EXT.P6 VIDE LETTER NO.AG(Au)Spl. CELL (HQ)III/I/8-1692/426 DATED 25.3.1999 EXT.P8 TRUE COPY OF ORDER NO.Ad.Al/153/(P)/2003-SO DATED 25.5.05 ISSUED BY THE SECOND RESPONDENT EXT.P9 TRUE COPY OF ORDER NO.Ad.Al/153(P)/2003-SO DATED 2.1.06 ISSUED BY THE SECOND RESPONDENT EXT.P10 TRUE COPY OF CERTIFICATE FIXING THE LIABILITY OF RS.2,70,185/- ALLEGING EXCESS PAY DRAWN BY THE PETITIONER ISSUED BY THE SECOND RESPONDENT RESPONDENTS' EXHIBITS: EXT.R2(A) TRUE COPY OF THE CERTIFICATE NO.Ad.G2/NLC/2006 DATED 25.10.2007 SHOWING THE LIABILITY OF THE PETITIONER //TRUE COPY// K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.30649 of 2007 W -------------------------------------- Dated this the 2nd day of July, 2008. J U D G M E N T The petitioner retired from service as Technical Officer Grade I, Department of Physics, Cochin University on 28.2.2007. The grievance of the petitioner is that the pensionary benefits due to him have not been disbursed. The University issued Ext.P6 communication dated 13.9.2007 to the petitioner on his application under the Right to Information Act as to why his retirement benefits are not disbursed. It is stated therein thus - “1. In your case the main objection is the non-procurement of concurrence/prior approval of the Government for the introduction of 'Scientific Cadre, scheme in the University. 2. The Accountant General has raised the objection regarding the introduction of 'Scientific Cadre'. They had not given any explicit instruction to cut down your pension and other benefits. However, this was done on the basis of para (1) of University Order No.Ad.A1/153(P)/2003-SO dated 25.5.2005 (copy enclosed). WP(C) No.30649/2007 2 (3 & 4) Copy of the Accountant General's Inspection Report (Part II A, III) 1996-97 forwarded vide letter No.AG (AU)Spl.Cell (HQ) III/I 8-1692/426 dated 25.3.1999 is enclosed. 5. Each para of all audit objections from Accountant General's Audit report were forwarded to the concerned Sections/Departments/Offices for offering their remarks (Lr.No.IA and I/8778/IR/96-97 dated 7.7.1999). The concerned Department/Office is expected to bring this matter to the notice of the concerned employees. 6. The Accountant General is the authority to clear the above objection. The Syndicate vide U.O.No.Ad.A1/153(P)/2003-SO dated 25.5.2005 has taken initial steps for the amicable settlement of the issue. (Copy of the UO is enclosed). The University has also appealed to the Government of Kerala, vide letter No.VC/EM/1/06 dated 6.11.2006 to condone the Audit Objections regarding the granting of Higher Grades to employees including those belonging to 'Scientific Cadre'. Response is awaited.” WP(C) No.30649/2007 3 2. It is stated by the learned standing counsel appearing for the University that based on the audit objection only a sum of Rs.2,70,185/- has been withheld as excess pay drawn by the petitioner. Ext.P10 certificate dated 25.10.2007 issued by the Registrar, Cochin University, would reveal the same. 3. The reliefs prayed for in the Writ Petition are the following:- “i) declare that withholding of pensionary benefits due to the petitioner as mentioned in Ext.P6 is illegal and unconstitutional; i(a) issue a writ of certiorari or other Appropriate writ, order or direction Calling for the records leading to Ext.P10 and quash the same; ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents 2 and 3 to sanction pensionary benefits due to the petitioner based on last pay drawn at Rs.18,000/- as evidenced by Ext.P2 and disburse superannuation pension of Rs.8700/- with effect from 1.3.07, DCRG Rs.3,13,200/-, Commutation value of WP(C) No.30649/2007 4 Rs.4,76,899/-, basic pension after commutation of Rs.5220/-, and earned leave terminal surrender value with interest forthwith; iii) issue a writ of mandamus or other appropriate writ, order or direction, directing the 2nd respondent to dispose of Ext.P4 in the light of Ext.P5 judgment and take immediate steps for disbursement of full pensionary benefits to the petitioner; iv) issue such other and further relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; and v) award costs to the petitioner.” 4. In the counter affidavit filed on behalf of the fourth respondent, it is stated thus - “It is to be further submitted that audit observation is a general comment on the creation of technical cadre (Scientific) without analysing the financial commitment and without the prior approval/concurrence of the Government. It was replied by the WP(C) No.30649/2007 5 University vide letter No.IA&d/8778/IR/96-97 dated 20.10.01 that Technical Cadre/Technical Cadre (Scientific) was introduced in the University by the approval of the Syndicate on the recommendation of the Finance Committee(Statutory) upholding the powers conferred by the Syndicate u/s 18(XIII) of the CUSAT Act, 1986. Remarks of the Government on this issue are still awaited. Therefore the observation made by this respondent was in accordance with the rules and regulations. There is no illegality or irregularity in the observation made by this respondent.” 5. The contention raised in paragraph No.4 of the counter affidavit filed by the fourth respondent is not a sufficient answer for denying the retirement benefits to the petitioner. In a similar case, a learned Single Judge of this Court disposed of W.P.(C) No.5908/2005 as per Ext.P5 judgment dated 1.2.2007, wherein it was held as follows:- “5. From the above facts, it is clear that petitioner was given the benefits based on a Syndicate decision as evidenced by Ext.P1 dated 13.5.2002. The Syndicate is the competent authority as empowered under the Statute and its decision is well within its jurisdiction. As per the counter affidavit also, the University took up the matter with the WP(C) No.30649/2007 6 Government to waive the Audit objection. The only reason for issuing Ext.P6 is based on an audit objection and the Government did not agree with the view of the Syndicate. But the fact remains that the decision in Ext.P1 is not yet revoked or canceled by any subsequent decision of the Syndicate. No materials whatsoever is also placed canceling such decision. So long as Ext.P1 stands and payment having been effected based on the Syndicate decision, the question arises as to how any recovery could be made and any liability could be fastened based on a mere audit objection. If the Syndicate decision was in any way wrong, then necessarily, the University ought to have corrected its decision, in which case, such later decision of the Syndicate could be the basis of fastening any liability or recovery thereafter.” 6. In the light of Ext.P5 judgment dated 1.2.2007 in W.P.(C) No.5908/2005 and also in the light of the contentions raised in the counter affidavit filed on behalf of the fourth respondent, I am of the view that the petitioner is entitled to get his retirement benefits disbursed by the University. Ext.P10 certificate dated 25.10.2007 fixing the liability of the petitioner at Rs.2,70,185/- is, therefore, unsustainable. Withholding of pensionary benefits due to the petitioner as mentioned in Ext.P6 communication is also illegal and unsustainable. The second respondent shall pass appropriate orders granting WP(C) No.30649/2007 7 the pensionary benefits due to the petitioner in accordance with law and disregarding the liability as fixed in Ext.P10 certificate dated 25.10.2007. The second respondent shall finalise the matter within a period of one month from the date of receipt of a copy of this judgment and disburse the pensionary benefits due to the petitioner within a period of one month thereafter. The Writ Petition is disposed of as above. K.T. SANKARAN, JUDGE. cks