IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 27TH AUGUST 2009 / 5TH BHADRA 1931 WP(C).No. 14334 of 2009(J) ----------------------------------- PETITIONER(S): ---------------------- N.J.SOSAMMA, W/O.P.I.JOSEPH, AGED 56 YEARS, PUTHUMENIKKAL, S.H.MOUNT, CHAVITTUVARI, KOTTAYAM-6. BY ADV. SRI.T.R.RAVI RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE ADDITIONAL REGISTRAR (CONSUMER), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. SENIOR GOVT.PLEADER SMT. ANU SIVARAMAN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14334/2009-J APPENDIX PETITIONER'S EXHIBITS : EXT.P1 COPY OF THE VERIFICATION REPORT OF ACCOUNTANT GENERAL EXT.P2 COPY OF THE PROCEEDINGS DT.19.7.2008 OF 2ND RESPONDENT EXT.P3 COPY OF THE GRATUITY PAYMENT ORDER. EXT.P4 COPY OF THE NOTICE DATED 17.10.2008. EXT.P5 COPY OF THE NOTICE DATED 21.10.2008. EXT.P6 COPY OF THE REPLY DATED 28.10.2008. EXT.P7 COPY OF THE LETTER FROM PETITIONER TO PUBLIC INFORMATION OFFICER EXT.P8 COPY OF THE LETTER FROM PETITIONER TO 2ND RESPONDENT. RESPONDENTS' EXHIBITS : EXT.R2(a) COPY OF THE GOVT.LETTER DATED 25.1.2006. EXT.R2(b) COPY OF THE PROCEEDINGS DATED 8.4.2002. EXT.R2(c) COPY OF THE LETTER DATED 10.6.2002. / TRUE COPY / PA TO JUDGE. P.N.RAVINDRAN, J ------------------------------------------------ W.P.(C) No. 14334 of 2009-J ------------------------------------------------ Dated this the 27th day of August, 2009 JUDGMENT The petitioner is a pensioner. She retired from service on 30.11.2007 while she was working as Additional Registrar of Co-operative Societies. After the petitioner retired from service, by Ext.P2 order dated 19.7.2008 the Registrar of Co-operative Societies sanctioned payment of terminal benefits to her, including Rs.3,21,552/- as D.C.R.G. By Ext.P3 Gratuity Payment Order dated 1.8.2008, payment of the said sum was admitted by the Accountant General. Before the petitioner could receive payment of the D.C.R.G., Ext.P4 notice dated 17.10.2008 was issued by the Additional Registrar of Co-operative Societies (Consumer) calling upon her to be present for a hearing on 25.10.2008. Later, Ext.P5 notice dated 21.10.2008 was issued informing the petitioner that an allegation has been levelled against her that contrary to the directions issued by this Court in the judgment delivered on W.P.(C) No.14334/2009-J 2 25.8.2000 in O.P.No.9459 of 2000, four higher grades were sanctioned by order dated 31.1.2001 to Sri.C.M. Devassia, a Class IV employee of the Co-operation Department. She was also called upon to attend a hearing scheduled to be held on 28.10.2008. 2. On receipt of Ext.P5 notice, the petitioner sent Ext.P6 reply dated 28.10.2008 pointing out that she retired from service in November, 2007 and that as eight years have passed after the grant of higher grade, she is not in a position to furnish a reply. The petitioner did not however appear for the hearing held on 28.10.2008. Later, she sent Ext.P7 letter dated 15.5.2009 requesting for details of the hearing held on 28.10.2008. She also sent Ext.P8 letter dated 22.5.2009 requesting for payment of D.C.R.G. This writ petition was thereafter filed, seeking the following relief:- i) to issue a writ of mandamus or such other writ, order or direction, directing the 2nd respondent to issue NLC to the petitioner for payment of the DCRG and direct the release of the DCRG amount payable to the petitioner as per Exts.P1, P2 and P3 orders, with interest at the rate of 12% per annum for the delayed payment, from the date when the amount became due. W.P.(C) No.14334/2009-J 3 3. I heard Sri.T.R.Ravi, the learned counsel appearing for the petitioner and Smt.Anu Sivaraman, the learned Senior Government Pleader appearing for the respondents. The petitioner contends that as no proceedings under Rule 3 of Part III, K.S.R. have been initiated against her and no order fixing her liability has been passed, the respondents cannot withhold payment of the D.C.R.G. She also contends that she had not issued any order on 31.1.2001 as alleged in Ext.P5. The second respondent has filed a counter-affidavit contending that contrary to the directions issued by this Court in the judgment delivered on 25.8.2000 in O.P.No.9459 of 2000 that was partially modified by the Division Bench of this Court in W.A.No.2784 of 2000, the petitioner, who was then working as Joint Registrar of Co-operative Societies (Audit), Kottayam, had issued Ext.R2(b) order dated 8.4.2002 wherein besides maintaining the fourth higher grade sanctioned to Sri.C.M.Devassia, she also directed revision of the pensionary benefits payable to him on that basis. It is contended that as the petitioner was responsible for conferring an unmeritted advantage on Sri.C.M. Devassia, she is liable to make good, the pecuniary loss caused to the Government. W.P.(C) No.14334/2009-J 4 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also called for and perused the judgments of this Court in O.P.No.9459 of 2000 and W.A.No.2784 of 2000 and the judge's papers in O.P.No.38159 of 2002 filed by Sri.C.M.Devassia. Sri.C.M.Devassia entered service in the Co-operation Department on 14.7.1969. He had during the period from 5.9.1963 to 26.6.1968 served as Police Constable in the Special Armed Police-II Battalion (SAP-II), that was later disbanded. He retired from service on 11.1.2000 while working as a Class IV employee in the office of the Assistant Registrar of Co-operative Societies, Kanjirappally. While in service in the Co-operation Department, Sri.C.M.Devassia was sanctioned higher grade promotions, including the fourth time bound higher grade promotion on completion of 30 years of service, reckoning his service in SAP-II Battalion. After his retirement, by order passed on 8.3.2000, the Joint Registrar of Co-operative Societies (Audit), Kottayam rectified the mistake in reckoning his service in the SAP-II Battalion for the grant of second, third and fourth higher grade promotions on completion of 20, 25 and 30 years of service. He also ordered W.P.(C) No.14334/2009-J 5 recovery of the excess pay drawn by Sri.C.M. Devassia. Sri.C.M. Devassia thereupon filed O.P.No.9459 of 2000 in this Court. In the said original petition he contended relying on G.O.(P) No.1373/98/Fin. dated 15.4.1998 that though on the terms thereof, the service rendered by him in the disbanded SAP-II Battalion can be reckoned for the grant of pension only, it was directed therein that the cases of those who got other benefits will not be reviewed. By judgment delivered on 25.8.2000 in O.P.No.9459 of 2000, after Sri.C.M. Devassia retired from service, this Court held that as the fourth higher grade was granted to him on 25.7.1998, that is after the Government order dated 15.4.1998 he was not entitled to the fourth time bound higher grade sanctioned, taking into account his service in SAP-II Battalion. This Court accordingly directed grant of pensionary benefits by reviewing the fourth higher grade sanctioned to him, preserving his rights under the orders sanctioning the first three higher grade promotions. Sri.C.M.Devassia challenged the said judgment by filing W.A.No.2784 of 2000. By judgment delivered on 24.9.2001, the Division Bench of this Court directed as follows:- “We find no reason to interfere with the judgment of the W.P.(C) No.14334/2009-J 6 learned single Judge. However with regard to the order of the learned judge directing the Department to recover the amount paid granting on the basis of fourth grade, we find the judgment is to be modified. State shall not recover the amount already paid. In all other respects, judgment of the learned single Judge will stand. The appeal is disposed of as above.” 5. In view of the directions issued by the Division Bench of this Court, the State of Kerala was prevented from recovering from Sri.C.M.Devassia, the monetary benefits given to him pursuant to the wrongful grant of the fourth time bound higher grade promotion. However, the judgment of the learned single Judge in all other aspects was confirmed. After W.A.No.2784 of 2000 was disposed of, the petitioner herein, who was then working as Joint Registrar of Co-operative Societies (Audit), Kottayam issued Ext.R2(b) order dated 8.4.2002 protecting the fourth higher grade granted to Sri.C.M.Devassia. The said direction was in tune with the direction of the Division Bench in W.A.No.2784 of 2000. She also directed redetermination of the pensionary benefits with reference to the salary that Sri.C.M.Devassia had drawn on 31.1.2001. W.P.(C) No.14334/2009-J 7 Sri.C.M.Devassia thereafter filed O.P.No.38159 of 2002 in this Court on 16.12.2002 contending that he is entitled to have his entire service including the service in SAP-II Battalion reckoned for the grant of pensionary benefits. In that original petition he prayed for a writ in the nature of mandamus commanding the respondents therein to refix his pension by reckoning the benefit of the fourth time bound higher grade. Reliance was placed on G.O.(P) No.1373/98/Fin. dated 15.4.1998. I find from the pleadings in O.P.No.38159 of 2002 that Sri.C.M.Devassia had not produced Ext.R2(b) order in the said proceedings. In fact there is not even a reference to the said order passed by the petitioner, in O.P.No.38159 of 2002 filed by Sri.C.M.Devassia, which was disposed of by a learned Single Judge of this Court by judgment delivered on 1.4.2002 in the following terms:- “Armed Police Service that was rendered by the petitioner, according to him has to be counted for purpose of pension. He relies on the observation in Ext.P9 judgment. The grade promotion given to him has been salvaged, and he becomes entitled to a refixation of pensionary benefits as well. W.P.(C) No.14334/2009-J 8 2. In the aforesaid circumstance, the Joint Registrar of Co-operative Societies, Kottayam, should ensure that for purpose of refixation of the petitioner's pension claims, the necessary particulars are to be forwarded within a period of one month from the date of receipt of a copy of this judgment. On receipt of such details, the petitioner's pensionary benefits should be appropriately reworked by the second respondent. Arrears are also to be paid without further delay. The writ petition is disposed of with the above directions.” 6. The second respondent has in paragraphs 4 and 5 of the counter-affidavit filed in this case stated that for non-compliance with the aforesaid directions, Sri.C.M.Devassia had filed Cont.Case (C) No.1022 of 2005 in this Court and that to avoid being proceeded against for contempt of this Court, pensionary benefits were authorised to Sri.C.M.Devassia by the Accountant General on 23.9.2005. It is also stated that though steps were taken on the directions issued by the Government to file a review petition seeking a review of the judgment in O.P.No.38159 of 2002, legal opinion was given by the Special Government Pleader (Co-operation) with the W.P.(C) No.14334/2009-J 9 approval of the learned Advocate General that there is no scope for filing a review petition. 7. It is evident from the judgment of this Court in W.A.No.2784 of 2000 filed by Sri.C.M.Devassia that though he was entitled to retain the monetary benefits received by him pursuant to the grant of fourth time bound higher grade promotion, the fourth higher grade could not have been reckoned for the purpose of fixing his pensionary benefits. That in my opinion is the effect of judgment of this Court in O.P.No.9459 of 2000 as modified by the Division Bench in W.A.No.2784 of 2000. In the light of the decision of the Division Bench to which Sri.C.M.Devassia and the State Government were parties, I am of the opinion that he could not have, relying on the directions issued by this Court in O.P.No.38159 of 2002 claimed that his pensionary benefits should be refixed taking note of the fourth higher grade promotion granted to him. Sri.C.M.Devassia could not have claimed anything other than what was granted to him by this Court in O.P.No.9459 of 2000 and W.A.No.2784 of 2000. Though directions contrary to the directions issued by the Division W.P.(C) No.14334/2009-J 10 Bench in W.A.No.2784 of 2000 were issued in O.P.No.38159 of 2002, the State of Kerala did not canvass the correctness of the said directions either by filing a review petition or a writ appeal. The State of Kerala had an opportunity and the right to file an appeal or a review petition and prevent excess payment of pensionary benefits to Sri.C.M.Devassia. That was admittedly not done. Instead, the State of Kerala revised the pensionary benefits payable to Sri.C.M.Devassia. Such being the situation, it cannot be said that it was by reason of the petitioner's misconduct or negligence that pecuniary loss was caused to the Government. I accordingly hold that the petitioner cannot be proceeded against for realisation of the excess pensionary benefits paid to Sri.C.M. Devassia. In the result, I allow this writ petition and direct the respondents to disburse to the petitioner the D.C.R.G. sanctioned to her expeditiously and in any event within one month from the date on which she produces a certified copy of this judgment before the Registrar of Co-operative Societies. Since, in the facts and circumstances of this case, it cannot be said that there was culpable W.P.(C) No.14334/2009-J 11 delay on the part of the respondents in disbursing the D.C.R.G., I am of the opinion that the respondents should not be burdened with the liability to pay interest. However, it is clarified that if payment is not made within the time limit stipulated above, the petitioner will be entitled to interest at the rate of 7.5% per annum on the amount of D.C.R.G. from this day onwards. Sd/- P.N.RAVINDRAN,JUDGE. dkr / TRUE COPY / PA TO JUDGE