IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 23617 of 2008(J) -------------------------------------- PETITIONER: ------------------- P.J.JOSEPH, 57 YEARS, S/O.JOSEPH, CHIRAPPURATH HOUSE, PERUMBAIKKAD POST, SANKRANTHI, KOTTAYAM. BY ADVS. SRI.MATHEW JOHN (K), SRI.AJEESH K.SASI. RESPONDENTS: ----------------------- 1. THE DIRECTOR, SCHEDULED TRIBE, DEVELOPMENT DEPARTMENT, TRIVANDRUM. 2. THE PROJECT OFFICER, INTEGRATED SCHEDULED TRIBE DEVELOPMENT PROJECT OFFICE, (I.T.D.P.) IDUKKI, THODUPUZHA. 3. THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008. THE COURT ON 15/01/2009 DELIVERED THE FOLLOWING: prv. P.N.Ravindran, J. ===================== W.P(C).No.23617 of 2008 ===================== Dated this the 15th day of January, 2009. JUDGMENT The petitioner retired from service on 30.4.2006 while he was working as Senior Superintendent in the Scheduled Tribe Development Department. He has filed this Writ Petition aggrieved by the non-payment of death-cum-retirement gratuity. The brief facts of the case are as follows:- 2. The petitioner was the Tribal Extension Officer at Poomala in Idukki district during the period from 1.5.2002 to 2.2.2006. While the petitioner was working as Tribal Extension Officer at Poomala, the Government issued G.O.(Rt) No.279/2002 dated 3.6.2002 directing all Tribal Extension Officers to distribute rice in scheduled tribe colonies. Pursuant to the Government order dated 3.6.2002, the District Collector, Idukki instructed the Project Officer, Integrated Scheduled Tribe Development Project, Idukki under whose jurisdiction, the petitioner was then working, to implement the direction issued by the Government urgently. The Project Officer thereupon instructed all the Tribal Extension Officers under his control to utilise the cash balance in their respective Tribal Extension Offices to meet the handling charges for transportation of rice from F.C.I. godowns and wholesale shops to the respective tribal settlements. As instructed by his senior officers, the WP(C) 23617/08 -: 2 :- petitioner spent a sum of Rs.1,58,467/- during the period from June, 2002 to September, 2002 for transportation of rice from F.C.I. godowns and wholesale depots to the tribal settlements. 3. Out of the expenditure of Rs.1,58,467/- incurred by the petitioner, the sum of Rs.86,500/- was reimbursed by the Project Officer. Since the sum of Rs.86,500/- alone was reimbursed, the petitioner sent Ext,P7 letter dated 30.12.2002 to the Project Officer setting out the details of the expenditure incurred by him and requested for reimbursement of the balance sum of Rs.71,967/-. In Ext.P7 the petitioner had specifically pointed out that though the total expenditure incurred was Rs.1,58,467/- only the sum of Rs.86,500/- was made available to him and that the balance sum of Rs.71,967/- was taken from the cash balance available in the Tribal Extension Office as orally instructed by the Project Officer. The second respondent received the original of Ext.P7 on 6.11.2002. The Tribal Extension Officers at Idukki, Adimali and Marayoor had also likewise spent various amounts from the cash balance available in their respective offices to meet the handling charges for transportation of rice to the tribal settlements. 4. Since the petitioner's request for reimbursement of the amount spent from the cash balance available in his office was kept pending, he sent Ext.P9 letter dated 26.11.2003 requesting the second respondent to reimburse the sum of Rs.71,967/-. By Ext.P10, the second respondent reimbursed the sum of Rs.6,940/- leaving a balance of Rs.65,027/-. The WP(C) 23617/08 -: 3 :- reason stated by the second respondent for not reimbursing the sum of Rs.71,967/- in full was paucity of funds. After reimbursing the sum of Rs.6,940/-, the second respondent sent Ext.P11 letter dated 17.7.2004 to the Director of the Scheduled Tribe Development Department requesting him to reimburse the amount spent from the cash balance available in the various Tribal Extension Offices. The second respondent thereafter sent Ext.P11(a) letter dated 13.12.2004 to the Director setting out the details of expenditure incurred by the various Tribal Extension Officers including the Tribal Extension Officer at Poomala. In Ext.P11(a) letter, the second respondent had also set out the balance amount to be reimbursed to the various Tribal Extension Officers. The second respondent had in Ext.P11(a) letter also pointed out that in view of the urgency, as the requisite funds were not made available, the cash balance available in the respective offices was utilised to meet the expenses for transportation of rice. Though the second respondent had sent Exts.P11 and P11(a) letters to the Director of the Scheduled Tribe Development Department, there was no reply in the matter. The petitioner thereafter retired from service on 30.4.2006. 5. After the petitioner retired from service, the second respondent sent Ext.P11(b) letter dated 11.12.2006 and Ext.P11(c) letter dated 24.7.2007 to the Director seeking reimbursement of the expenses incurred from the various Tribal Extension Offices. Thereafter, the Accountant General sanctioned to the petitioner the sum of WP(C) 23617/08 -: 4 :- Rs.1,79,998/- as death-cum-retirement gratuity as per Ext.P1 order dated 3.7.2007. The death-cum-retirement gratuity was however not disbursed for the reason that NLC/LC had not been issued by respondents 1 and 2. The audit of the accounts of the Tribal Extension Office, Poomala, during the period from 1.5.2002 to 2.2.2006, when the petitioner was the Tribal Extension Officer was conducted later. The audit raised an objection regarding utilisation of the cash balance in the office for the purpose of meeting the expenses for transportation of rice for distribution in settlement colonies. Along with Ext.P2 letter dated 2.2.2008, the second respondent forwarded a copy of the audit objection to the petitioner. On receipt of Ext.P2, the petitioner submitted Ext.P3 reply wherein he pointed out that the cash balance available in the office was utilised to meet the expenses for transportation, in view of the directions issued by his superior officers and that other Tribal Extension Officers in Idukki district had utilised the cash balance in their respective offices to meet the expenses for transportation of rice. The petitioner also submitted Ext.P5 representation to the first respondent requesting that the death-cum-retirement gratuity sanctioned to him may be disbursed expeditiously. The second respondent considered Ext.P5 representation submitted by the petitioner and directed that as only the sum of Rs.7,445/- out of the sum of Rs.7,475/- sanctioned had been disbursed to the inmates of Girls Hostel, Thodupuzha as stipend, the petitioner is liable to refund the sum of Rs.30/-. As directed by the WP(C) 23617/08 -: 5 :- second respondent, the petitioner remitted the said sum of Rs.30/- in the Sub Treasury on 29.5.2008. 6. On such deposit being made, the second respondent sent Ext.P11(d) letter dated 3.7.2008 to the Director of the Scheduled Tribe Development Department stating that the petitioner had utilised the cash balance available in his office to meet the handling charges for transportation of rice, that the cash balance was utilised in view of the urgency and that out of the sum of Rs.71,967/-, which remained to be reimbursed, the sum of Rs.6,940/- alone was reimbursed for want of funds. The second respondent also requested that utilisation of the cash balance may be regularised and the petitioner may be exonerated of the liability. The first respondent thereafter issued Ext.P6 notice dated 16.7.2008 calling upon the petitioner to show cause why the sum of Rs.65,027/- should not be fixed as his liability. On receipt of Ext.P6 notice, the petitioner submitted Ext.P12 reply dated 2.8.2008. This Writ Petition was thereupon filed on 5.8.2008 challenging Ext.P6 and seeking the following reliefs: “(a) Call for the records leading upto Ext.P12 and to issue a writ in the nature of certiorari or any other appropriate writ, direction or order quashing Ext.P6. (b) Declare that the proposal in Ext.P6 to fasten the liability of Rs.65,027/- on the petitioner is without power or jurisdiction. (c) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding WP(C) 23617/08 -: 6 :- respondents 1 and 2 to issue necessary N.L.C. to the petitioner forthwith to enable him to withdraw the D.C.R.G. sanctioned as per Ext.P1 proceedings. (d) Issue a writ in the nature of mandamus or any other appropriate writ, direction or order commanding respondents 1 and 2 to pay interest to the petitioner at the rate of 12% per annum on the amount of Rs.1,79,998/- from the 1st of May, 2006 to the date of actual disbursal of the amount.” 7. This Writ Petition came up for admission on 14.8.2008. On that day, while admitting the Writ Petition, this Court directed the respondents to disburse the undisputed portion of the death-cum- retirement gratuity. The first respondent thereafter passed Ext.P13 order dated 19.9.2008 fixing the sum of Rs.65,027/- as the petitioner's liability and directed recovery of the said amount from the death-cum- retirement gratuity sanctioned to him. The Writ Petition thereupon was amended incorporating a prayer to quash Ext.P13. The petitioner contends that the cash balance available in the Tribal Extension Office at Poomala was utilised to meet the expenses for transportation of rice for distribution in tribal settlement colonies in view of the urgency of the situation as directed by his superior officers. He submits that all the seven Tribal Extension Officers at Idukki district had utilised the cash balance in their respective offices to meet the expenses for transportation of rice in view of the directions issued by the second respondent and the District Collector and that as the respondents have WP(C) 23617/08 -: 7 :- no case that he has misappropriated the cash balance or any part thereof, the decision taken by the first respondent in Ext.P13 is not sustainable in law. 8. The respondents have filed a counter affidavit contending inter alia that the Tribal Extension Office at Poomala was sanctioned only a sum of Rs.93,440/- to meet the transportation expenses and that the petitioner who was the Tribal Extension Officer, had no authority to incur expenditure in excess of the said sum for the purpose of meeting the transportation expenses. The respondents contend that the petitioner had diverted funds which had been set apart for construction of temporary shed in the Pre-metric Hostel, Poomala and for payment of monthly stipend to pre-metric students without the permission or sanction of the competent authority. The respondents also contend that no other Tribal Extension Officer in Idukki district had effected such diversion. Shorn off details, the stand taken by the respondents is that as the expenditure incurred by the petitioner was in excess of the sanctioned limit, it is unauthorised and therefore the sum of Rs.65,027/- which is the expenditure incurred by the petitioner in excess of the sanctioned limit, was fixed as his liability. 9. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The pleadings and the materials on record disclose that the respondents have no case that the petitioner has misappropriated the cash balance available in his office WP(C) 23617/08 -: 8 :- while he was the Tribal Extension Officer at Poomala during the period from 1.5.2002 to 2.2.2006. Ext.P11 series of letters sent by the second respondent to the first respondent indicate that the petitioner and other Tribal Extension Officers in Idukki district had utilised the cash balance in their respective offices to meet the expenses for transportation of rice to settlement colonies in view of the urgency of the situation. Ext.P11(b) letter dated 11.12.2006 sent by the second respondent to the first respondent discloses that seven Tribal Extension Officers had to spent amounts in excess of the sanctioned limits to meet the expenses for transportation of rice and that all of them had utilised the cash balance available in their respective offices and also their own funds to meet the transportation expenses. The only ground on which the petitioner is held liable for the sum of Rs.65,027/- is that without prior authorisation he had utilised the cash balance available in his office to meet the transportation expenses. The allegation is that the petitioner utilised the cash balance available in the office without the prior sanction of the competent authority. The respondents have no case that the petitioner did not in fact utilise the money to meet the transportation expenses. The respondents also have no case that in respect of four other officers, who had also incurred additional expenditure and had utilised the cash balance available in their respective offices, similar steps were taken. In fact, the letters sent by the second respondent to the first respondent would indicate that it was with the concurrence of the Project Officer that WP(C) 23617/08 -: 9 :- the Tribal Extension Officers in Idukki district had utilised the cash balance available in their respective offices to meet the expenses for transportation of rice. In fact, the said letters disclose that some of the Tribal Extension Officers had utilised their own funds to meet the transportation expenses. From the materials on record, it is evident that for no fault of the petitioner, he has been held liable for the sum of Rs.65,027/-. In my considered opinion, the stand taken by the respondents in the counter affidavit and in Ext.P13 is patently arbitrary. 10. The respondents also have no case that the expenditure incurred for transportation of rice has not been properly accounted for. Their case is that the petitioner utilised the cash balance available in his office without proper authorisation. The pleadings and materials on record disclose that rice had to be distributed in settlement colonies urgently in view of the directions issued by the Government. Since the Tribal Extension Officers could not wait for receipt of funds from the Government before transporting the rice and as the entire funds required were not made available in time, they were forced to meet the expenses by utilising the cash balance available in their respective offices. In some cases, they had to utilise their own funds. If the petitioner had not utilised the cash balance for the above purpose, it would have led to disciplinary action for not distributing rice in implementation of the Government's directions. To comply with the Government orders, the petitioner utilised the cash balance available in his office to meet the WP(C) 23617/08 -: 10 :- transportation expenses as was done by four other Tribal Extension Officers. The petitioner alone is held liable for utilising the cash balance in his office to meet the transportation expenses on the ground that such utilisation was unauthorised and without proper sanction. In my opinion, even if prior sanction had not been granted, in view of the contents of Ext.P11 series of letters sent by the second respondent, the competent authority ought to have granted retrospective sanction or ratified the expenditure, instead of adopting a hyper technical stand. The respondents have no case that by the petitioner's conduct, any pecuniary loss has in fact been caused to the Government. 11. In such circumstances, I am persuaded to hold that Ext.P13 order passed by the first respondent cannot be sustained. The materials on record disclose that the death-cum-retirement gratuity was sanctioned to the petitioner by Ext.P1 order passed on 3.7.2007, more than one year after he retired from service. Payment of the death-cum-retirement gratuity was however withheld by the respondents for no justifiable reason. The Apex Court has in Dua v. State of Haryana - 2008(3) K.L.T. 58 held that where payment of terminal benefits is delayed for no justifiable reason, the pensioner will be entitled to interest either under the rules governing payment of pension or Government orders governing the field and if no rule or Government order exists under Articles 14, 19 and 21 of the Constitution of India. In the instant case, though death- cum-retirement gratuity was sanctioned to the petitioner on 3.7.2007, WP(C) 23617/08 -: 11 :- the respondents did not pay even the undisputed portion of the death- cum-retirement gratuity to him. The undisputed portion of the death- cum-retirement gratuity was paid only after this Court passed an interim order on 25.11.2008. It is evident from the materials on record that the death-cum-retirement gratuity sanctioned to the petitioner was not disbursed, though no justifiable reasons existed therefor. I accordingly, hold that the petitioner is entitled to be compensated by award of interest at the rate of 7.5% per annum on the death-cum-retirement gratuity from 3.7.2007 onwards till the date of payment. 12. For the reasons stated above, the Writ Petition is allowed, Ext.P13 is quashed and the respondents are directed to disburse to the petitioner the balance amount of the death-cum-retirement gratuity together with interest thereon at 7.5% per annum from 3.7.2007 till date of payment. The petitioner will also be entitled to interest at the same rate on the undisputed portion of the death-cum-retirement gratuity from 3.7.2007 till the date of payment. Payment as directed above, shall be made within two months from the date on which the petitioner produces a certified copy of this judgment before the Director of the Scheduled Tribe Development Department. It will be open to the Government to recover interest thus paid from the officers responsible for the delay in disbursing the death-cum-retirement gratuity to the petitioner. P.N.Ravindran, Judge. ess 8/1