IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 22466 of 2008(Y) ----------------------------------------- PETITIONER: -------------------- C.P.RAJU, CHIRAYIL HOUSE, THAIKKAL PO, CHERTHALA, ALAPUZHA. BY ADV. SRI.T.R.MOHANAKUMAR RESPONDENTS: ------------------------- 1. THE DIRECTOR OF MUNICIPALITY MUNICIPAL COMMON SERVICE, THIRUVANANTHAPURAM. 2. KOTTAYAM MUNICIPALITY REPRESENTED BY ITS SECRETARY, KOTTYAM 686 001. GOVERNMENT PLEADER SMT. ANU SIVARAMAN FOR R1 ADV. SRI.SIBY MATHEW FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.22466 of 2008 ------------------------------- Dated this the 16th October, 2008. J U D G M E N T The petitioner retired from service while serving in the second respondent Municipality on 31.5.2007, on attaining the age of superannuation. The terminal benefits payable to him were sanctioned by the Director of Urban Affairs by Ext.P1 order dated 22.1.2008. By the said order, the Director of Urban Affairs directed payment of the sum of Rs.2,05,215/= consisting of arrears of pension from 1.6.2007 to 31.3.2008, DCRG and commuted value of pension. It was also ordered that the above sum shall be paid by the Secretary of Kottayam Municipality and adjusted against the contribution payable by the Kottayam Municipality to the Central Pension Fund. In this writ petition, the petitioner complains that notwithstanding Ext.P1, the second respondent has not disbursed the terminal benefits sanctioned to him thereunder. The petitioner has also prayed for a direction to the second respondent to pay the arrears of dearness allowance payable to him. W.P.(C) No.22466 of 2008 2 2. A statement dated 2.9.2008 has been filed on behalf of the first respondent wherein it is stated that the sum of Rs.14,05,353/= is due from the Muncipality towards the Central Pension Fund and that by Ext.P1, the Secretary, Kottayam Municipality, was directed to disburse the benefits sanctioned to the petitioner as per Ext.P1 and to adjust it against the amount payable by the Municipality to the Central Pension Fund. The second respondent has filed a counter affidavit pleading want of funds at its disposal and non allotment of funds by the Director of Urban Affairs to meet its pension liability. 3. I have heard Sri.T.R.Mohanakumar, the learned counsel appearing for the petitioner, Smt.Anu Sivaraman, the learned Government Pleader appearing for the first respondent and Sri.Siby Mathew, the learned counsel appearing for the second respondent. The learned counsel appearing for the petitioner contends relying on Ext.P1 that the Municipality cannot plead non availability of funds to withhold the payment of W.P.(C) No.22466 of 2008 3 terminal benefits sanctioned to the petitioner as per Ext.P1. The learned Government Pleader appearing for the first respondent submits that the Municipality is bound by the directions issued in Ext.P1 and that the Director was justified in directing the Secretary, Kottayam Municipality, to make the payment as ordered in Ext.P1 and to adjust the amount thus paid towards the amount payable by the Municipality to the Central Pension Fund. Per contra, the learned counsel appearing for the second respondent submitted relying on Rules 9(3) and 11 of the Kerala Municipality (Employees Death-Cum-Retirement Benefit) Rules, 1996, hereinafter referred to as 'the Rules' for short, that as the Director was bound to make available the requisite funds, so as to enable the Municipality to disburse the terminal benefits sanctioned to the petitioner and that the direction issued in Ext.P1 to make the payment and to adjust it against the amount payable by the Municipality to the Central Pension Fund was uncalled for. W.P.(C) No.22466 of 2008 4 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is now settled by various decisions of this Court as well as of Apex Court that pension and gratuity are not bounty and that the pensioner has the right to receive the same. The Apex Court has also held that belated payment of terminal benefits should be compensated by awarding interest either under the rules governing disbursement of pension or under the government orders governing the field, and if no rule or order exists, under Articles 14, 19 and 21 of the Constitution of India. 5. In the instant case, by Ext.P1 order passed on 22.1.2008, the Director of Urban Affairs has directed the Secretary, Kottayam Municipality to make the payment as ordered therein and to adjust it towards the amount payable by the Municipality to the Central Pension Fund. The Municipality does not dispute its liability to contribute to the Central Pension Fund. Such being the situation, the Municipality cannot be W.P.(C) No.22466 of 2008 5 heard to contend, relying on Rules 9(3) and 11 of the Rules, that unless the Director makes available the funds, it will not be in a position to disburse the terminal benefits sanctioned to the petitioner. In my opinion, the stand taken by the Municipality is too technical a plea and in gross disregard of the directions issued by the Director of Urban Affairs. For the reasons stated above, I hold that the Municipality is bound to comply with the directions issued by the Director of Urban Affairs in Ext.P1 and pay the terminal benefits sanctioned to the petitioner thereunder. 6. In the result, this Writ petition is allowed, and the second respondent is directed to disburse the terminal benefits sanctioned to the petitioner as per Ext.P1 in two equal monthly instalments, the first of which shall be paid on or before 15.11.2008 and the second on or before 15.12.2008. It is clarified that if payment as directed above is not made and the Municipality defaults payment of any one of the instalments, the W.P.(C) No.22466 of 2008 6 petitioner will be entitled to interest at 7.5% per annum on the defaulted amount from 1.2.2008, till the date of payment. The petitioner has yet another claim as regards payment of arrears of dearness allowance. As regards the said claim, on the petitioner filing a representation in that regard, the second respondent shall consider the same and pass orders thereon expeditiously, and in any event, within three months from the date of receipt of such a representation. P.N.RAVINDRAN, JUDGE nj.