IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 11739 of 2008(V) --------------------------------------- PETITIONER: ------------------- G.SATHIA SEELAN, S/O.GOPALAN, RT.ASST. DIRECTOR OF SURVEY, RESIDING AT SATHIAGIRI PRAMADAN VILLAGE, KOZHANCHERY TALUK, PATHANAMTHITTA. BY ADVS. MR.T.SETHUMADHAVAN, MR.PUSHPARAJAN KODOTH, MR.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON. RESPONDENTS: ------------------------ 1. THE GOVT.OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF SURVEY, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, PATHANAMTHITTA. R1 TO R3 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.11739/2008-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LR.NO.P-04/PEN A/620/08/06-07/1596 DTD. 23/01/2006. EXT.P.2: COPY OF THE G.O.(P)185/2002/FIN. DTD. 27/03/2002. EXT.P.3: COPY OF THE G.O.(P).803/FIN. DTD. 30/12/2002. EXT.P.4: COPY OF THE LETTER NO.F7-6691/06 DTD. 28/10/2006. EXT.P.5: COPY OF THE LETTER NO. C7-38600/2000 DTD. 10/02/2007. EXT.P.6: COPY OF THE STATEMENT DTD. 04/04/2008 FILED BY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BEFORE THE HUMAN RIGHTS COMMISSION. EXT.P.7: COPY OF THE JUDGMENT DTD. 25/08/2006 IN W.P.(C).NO.21911/2006 ON THE FILE OF THIS HONOURABLE COURT. EXT.P.8: COPY OF THE REPORT OF THE DEPUTY DIRECTOR, SURVEY, PATHANAMTHITTA DTD. 28/12/2003. RESPONDENTS' EXHIBITS: //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 11739 of 2008-V ------------------------------ Dated this the 17th day of August, 2009. J U D G M E N T Heard Sri.K.Jayesh Mohankumar, the learned counsel appearing for the petitioner and Sri.Antony Mukkath, the learned Government Pleader appearing for the respondents. 2. The petitioner was the Head Surveyor of Kozhenchery Taluk in Pathanamthitta District during the year 1999-2000. He later retired from service on 31.5.2006, while he was working as Assistant Director of Survey and Land Records. Though while in service, on the allegation that the petitioner had demanded bribe from the owner of a quarry, disciplinary action was initiated against him, no progress was made in the disciplinary proceedings and the petitioner retired from service on 31.5.2006. Thereafter, as held by this Court in Xavier V. Kerala State Electricity Board (1979 KLT 80) the disciplinary action cannot be continued except for the purpose of quantifying the pecuniary loss if any caused by the petitioner to the Government. Even going by the memo of charges, the petitioner had not caused any pecuniary loss to the Government. However the non-liability certificate was not issued and DCRG was not disbursed, though other terminal benefits were disbursed. This writ petition was thereupon filed seeking payment of the DCRG W.P(C) No. 11739 of 2008-V 2 together with interest at the market rates with effect from 1.6.2006. The second respondent had filed a counter affidavit wherein it is stated that DCRG was not paid for the reason that a vigilance case was pending against the petitioner. It is also stated that the Vigilance and Anti- Corruption Bureau have after investigation filed a final report recommending initiation of disciplinary action against the petitioner. 3. As noticed earlier, the petitioner retired from service on 31.5.2006. Though in para 15 of the counter affidavit filed by the second respondent it is stated that the vigilance have after enquiry registered a case against the petitioner and it is pending in the Vigilance Court, in para 17 of the counter affidavit it is stated that Vigilance and Anti Corruption Bureau, has recommended initiation of disciplinary action against the petitioner. As noticed earlier, after the petitioner's retirement from service, the Government cannot impose any punishment on him. In the instant case, the second respondent has no case that the petitioner has caused any pecuniary loss to the Government. The allegation against the petitioner was that he had demanded bribe from the owner of a quarry. In such circumstances, I am of the opinion that non payment of the DCRG to the petitioner for the past several years is patently illegal. Further, a learned Single Judge of this Court has in Aravindaksha Panicker V. Accountant General (2007(4) KLT 1031) held that even when W.P(C) No. 11739 of 2008-V 3 judicial proceedings are pending, payment of DCRG cannot be withheld applying Rule 3A of Part-III, KSR after the expiry of three years from the date of retirement. I am therefore persuaded to agree with the learned counsel appearing for the petitioner that payment of DCRG to the petitioner was illegally withheld. The learned counsel for the petitioner prays for award of interest for the delayed payment of DCRG. The learned Government Pleader appearing for the second respondent disputes the petitioner’s entitlement for interest and submits that there was no culpable delay on the part of the respondents in the matter of disbursement of terminal benefits. 4. The fact that a disciplinary action was pending against the petitioner on the date on which he retired from service is not seriously disputed. It is common ground that though a memo of charges had been issued in the year 2005, an enquiry into the charges against the petitioner was not conducted. From the stand taken by the second respondent in the counter affidavit it is evident that no criminal case is also pending against the petitioner. In such circumstances I hold that there was culpable delay on the part of the respondents in disbursing the DCRG sanctioned to the petitioner. The Apex Court has in State of Kerala & 2 others V. M.Padmanabhan Nair (AIR 1985 SC 356) held that DCRG should be paid within two months from the date of retirement and that if W.P(C) No. 11739 of 2008-V 4 it is not paid, interest on the DCRG should be paid. In the instant case, as the petitioner retired from service on 31.5.2006, applying the dictum laid down by the Apex Court in State of Kerala & 2 others V. M.Padmanabhan Nair (supra), the petitioner is entitled to interest on the unpaid amount of DCRG with effect from 1.8.2006. I accordingly allow this writ petition and direct the respondents to disburse to the petitioner the DCRG sanctioned to him together with interest thereon at the rate of 6% per annum form 1.8.2006 onwards. Payment as directed above shall be made within six weeks from the date on which the petitioner produces a certified copy of this judgment before the Director of Survey and Land Records. The writ petition is allowed as above. No costs. Sd/- P.N.RAVINDRAN, JUDGE //True Copy// PA to Judge ab