IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 AS.No. 312 of 2001(C) --------------------- OS.105/1994 of SUB COURT, PATHANAMTHITTA .................... APPELLANT(S)/DEFENDANTS :- ------------------------------------------- 1. THE STATE OF KERALA REP. BY THE CHIEF SECRETARY. 2. THE DEPUTY DIRECTOR OF THE EDUCAITON, ALAPPUZHA. 3. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. BY SR.GOVERNMENT PLEADER MR.P.K.BABU RESPONDENT(S)/PLAINTIFF :- ------------------------------------------ R. KARUNAKARAN NAIR, S/O.RAGHAVAN NAIR, VIJAYA BHAVAN, PANAYIL HOUSE, NOORANADU, PALAMEL VILLAGE, MAVELIKKARA TALUK. ADV. SRI.K.SASIKUMAR FOR R1 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt M.N.KRISHNAN, J. ------------------------- A.S.No.312 of 2001 --------------------------------- Dated this the 29th day of June 2010 J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Pathanamthitta in O.S.No.105 of 1994. The suit is one for realisation of the amount from the state. 2. The plaintiff was working as a Headmaster and retired on 31.3.1991. As per the proceedings of the Accountant General dated 21.2.1991, the plaintiff was sanctioned a death cum retirement gratuity of Rs.46,613/-, pension as well as commuted value of the pension. The facts of the case reveal that the DCRG was disbursed only after a considerable delay in January 1994, ie;4.1.1994 and therefore the plaintiff has instituted the suit for getting interest in the form of penalty for the inordinate delay in A.S.No.312 of 2001 : 2 : disbursing the amount. The Government would contend that on account of the scarcity of staff strength, audit could not be conducted in time and the department was under obligation to issue a No Liability Certificate only on clearing any arrears due to the department from the retired employee. 3. Here the proceedings itself were initiated only after his retirement and it went on and on and the amount that was found to be recoverable from the plaintiff was about Rs.3,679.75. Then on representations etc. the liability was reduced to Rs.2,275/- and ultimately the gratuity was paid to him on 4.1.1994. As per ruling No.5 to Rule 116 of Kerala Subordinate Rules “in all cases where the liabilities could not be fixed before retirement of the government employee, effort should be made to assess and adjust recoverable dues within a period of one year from the date of retirement of the government employee concerned. If in any case the liability could not be assessed and adjusted within one year, the amount withheld from the death cum retirement A.S.No.312 of 2001 : 3 : gratuity or the surety bond or cash deposit accepted in part 103 above will be released.” There is a mandatory obligation on the part of the employer to disburse the pensionary benefits of which death cum retirement gratuity is a main component. The salutory purpose for which such provisions are made is to recognize the service rendered by an individual and to avoid undue hardship to the employee. When a person join services the only certainity in service if alive is the date of retirement. The department is totally conscious about the date of retirement of the individual and that is also within the knowledge of the department to see that whatever proceedings are to be initiated or found out has to be done before the employee retires from service. One cannot simply postpone the payment of retirement benefits on the ground that there was no staff strength in the department. So it creates suffering and for a paltry amount of Rs.2,700/-. Ultimately for the negligible liability of the person a sum of Rs.46,000/- is retained by the A.S.No.312 of 2001 : 4 : department without any benefit to the plaintiff. Therefore, it has to be stated that the department has failed in discharging its duties under the provisions and that has resulted for the delay which had lead to the loss of the employee. 4. The learned counsel for the Government submitted that there must be some provisions for realization from the person responsible for the delay. Even without sanction of the court the rule itself provides for the same. If everything is within law, the government is at liberty to proceed against the person for fixing the liability in accordance with law. It has also to be stated that the mental agony of a retired government servant when he is refused to the benefits also has to be taken into consideration. That is why the provisions speak for stringent action as well as grant of penal interest to the person who is suffering. Therefore, I do not find any mistake committed by the court below but I find that the A.S.No.312 of 2001 : 5 : court below has been slightly liberal in granting the interest and it has given the same at commercial rate. I find that the interest has to be reduced to 15% instead of 18%. When it is calculated the plaintiff will be entitled to an amount of Rs.19717.62 which is rounded to Rs.19718/-. Therefore, the decree has to be modified and revised. A decree is passed as follows :- The plaintiff is given a decree for realization of the amount of Rs.19,718/- from the defendants and their assets with proportionate costs. If this amount is not paid within three months from today, then the decreed amount shall carried an interest at the rate of 12% from today till realization. Appeal disposed of accordingly. M.N.KRISHNAN, JUDGE Jvt