IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 21287 of 2008(H) -------------------------- PETITIONER(S): --------------- C.LEELAMONY, W/O.RAJENDRA BABU SPECIAL GRADE SECRETARY (RETD., FROM EAST KALLADA GRAMA PANCHAYAT) R/A.AUNUGRAHA , TOWN LIMIT, KILIKOLOOR PO., KOLLAM-4. BY ADV. SRI.M.V.THAMBAN RESPONDENT(S): --------------- 1. EAST KALLADA GRAMA PANCHAYAT, REP. BY ITS SECRETARY, EAST KALLADA PO., KOLLAM. 2. DEPUTY DIRECTOR OF PANCHAYAT, CIVIL STATION, KOLLAM 3. DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM 4. STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVT., DEPARTMENT OF LOCAL SELF GOVTS., THIRUVANANTHAPURAM ADV. SRI.P.K.VIJAYAMOHANAN FOR R1 GOVERNMENT PLEADER SRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.7.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 21287/08. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE LETTER DTD.28.1.06. P2. COPY OF THE ORDER OF THE ACCOUNTANT GENERAL DTD.23.2.06. P3. COPY OF THE ORDER OF THE ACCOUNTANT GENERAL DTD.1.1.07. P4. COPY OF THE ORDER OF THE ACCOUNTANT GENERAL DTD.4.10.2007. RESPONDENT(S)'EXHIBITS R1A. COPY OF THE COMMUNICATION DTD.5.6.07 OF THE PANCHAYAT. “B. COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DTD.27.6.07. “C. COPY OF THE COMMUNICATION DTD.23.5.07 OF R1. Sdk+ ///True copy/// . P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.21287 of 2008 ================== Dated this the 17th day of July, 2009 J U D G M E N T The petitioner retired from service of the Government as a Special Grade Secretary of the Local Self Government Department on 30.6.2005. But so far only her pension and commuted value of pension were disbursed to her. Her DCRG, although finally determined by Ext.P4 order of the Accountant General on 4.10.2007, has not been paid to her till date. The petitioner, therefore, seeks the following reliefs: “(i) to issue declarations as follows: a) that the petitioner is entitled to the NLC and the full amount of gratuity immediately after the retirement. b) that the respondents were duty bound followed the provisions under Rule 116 Pat III KSR in case the audit was pending. c) No liability can be fixed against the petitioner on completion of 3 years after completing on 30.6.2005 and the respondents are bound to release the gratuity with interest @ 12%. (ii) to issue a writ of mandamus or other writ or order direction, directing the respondents to issue NLC and disburse the gratuity to the petitioner with penal interest @ 12% per annum calculated from date of retirement to the date of actual payment. (iii) to issue such other further reliefs as this Honourable Court may deem fit and proper in the facts and circumstances of this case. And (iv) to award exemplary cost of this proceedings to the petitioner.” 2. Counter affidavits have been filed by the 1st respondent and the 2nd respondent. Both take the contention that Non Liability Certificate could not be issued because the audit for the period W.P.C.21287/08 2 2003-04, 2004-05 and 2005-06 was not over. Without completing audit, the liability on the petitioner could not have been fixed and adjusted against her gratuity. The 1st respondent would contend that in view of the delay in completing the audit, by Ext.R1(c) dated 23.5.2007, the petitioner was given an option to get the DRCG released on execution of an indemnity bond, which was not availed of by the petitioner and, therefore, the same could not be given. It is further submitted that on receipt of the audit report for 2003-04, the same was forwarded to the petitioner, by Ext.R1(a) dated 5.6.2007, to which the petitioner has submitted Ext.R1(b). According to them, NLC could not be issued only because the audit for the part of the period during which the petitioner was working could not be completed. The 2nd respondent would take an identical contention. They would further submit that on the basis of the audit reports for the years 2002-03 and 2003-04, liabilities were assessed. This would come to Rs.1,03,729/- and the audit reports for the years 2004-05 and 2005-06 are not yet completed. It is further contended that delay in completing the audit is partly due to the delay on the part of the petitioner in forwarding the annual financial statements during her tenure in time. 3. A reply affidavit is filed by the petitioner controverting the contentions of the respondents. It is submitted by the petitioner that Ext.R1(c) itself was issued to the petitioner long after one year was over, on 23.5.2007. If the respondents are invoking Rule 116 of Part W.P.C.21287/08 3 III of KSR, then the release of gratuity after obtaining bond should also have been done at least immediately after one year, which has not been done. In the above circumstances, the petitioner's contention is that no fault could be attributed to the petitioner for not complying with Ext.R1(c). She would further submit that in any event, in view of the limitation prescribed in Note 3 of Rule 3 of Part III of the KSR, no liability could have been fixed and recovered from her gratuity, since three year period is already long over after her retirement. 4. I have considered the rival contentions in detail. 5. It is not disputed before me by either of the respondents, even as on today, that the liability due from the petitioner has not been fixed with notice to the petitioner. Ext.R1(c) is only a covering letter, under which the audit report for 2003-04 has been forwarded to the petitioner for her reply. She has submitted Ext.R1(b) reply also on 27.6.2007. No steps pursuant to the same have been taken even today, even assuming that Ext.R1(a) is a communication for fixation of liability due from the petitioner. Note 3 of Rule 3 of Part III of KSR stipulates that liability should be fixed with notice to the retired employee within three years. Almost five years have already elapsed after the retirement of the petitioner. In fact the petitioner filed this writ petition itself after three years of her retirement. Since the liability has not been fixed with notice to the petitioner within three years, applying Note 3 of Rule 3 of Part III of KSR, no liability can be W.P.C.21287/08 4 recovered from the DCRG due to the petitioner. Therefore, the petitioner has become entitled to release of the gratuity due to her without any deduction therefrom. Accordingly, I direct the respondents to see that the DCRG due to the petitioner is released to her within one month from the date of receipt of a certified copy of this judgment. 6. The petitioner presses for interest. It is a fact that non- fixation of liability was on account of the non-completion of the audit report. It is also a fact that there is some default on the part of the petitioner in forwarding the annual financial statement in time for taking up of audit for the period during the tenure of the petitioner. Further, nothing prevented the petitioner from availing of the opportunity to get the DCRG by executing a bond pursuant to Ext.R1 (c). In the above circumstances, I am not inclined to give full interest to the petitioner. However, I direct that the petitioner be paid an amount of Rs.10,000/- towards compensation for non-payment of gratuity due to her in time. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.C.21287/08 5