IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 RSA.No. 177 of 2007() -------------------------------- AS.59/2003 of SUB COURT, KASARAGOD OS.403/2001 of PRL.MUNSIFF COURT, KASARAGOD .................... APPELLANTS/RESPONDENTS IN THE A.S. ------------------------ 1. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 2. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, KASARAGOD. 3. THE DEPUTY DIRECTOR OF EDUCATION, KASARAGOD. BY GOVERNMENT PLEADER SMT.REKHA C.NAIR RESPONDENT(S): APPELLANT IN THE A.S. ------------------------------------ K.KRISHNA BHAT, S/O.K.MAHALINGA BHAT, HINDU, RIAT JAMBE OF MALIYAR VILLAGE, KASARAGOD TALUK, P.O.MULIYAR. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO. 1186/2007 IN R.S.A. NO.177/2007 DISMISSED 10/06/2010 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------- R.S.A No. 177 of 2007 -------------------------- Dated this the 10th June, 2010 J U D G M E N T This appeal is preferred against the judgment and decree in A.S No.59 of 2003 of the Sub Court Kasargod. 2. By the said judgment, the lower appellate court reversed the findings of the trial court and granted a decree in favour of the plaintiff. 3. Plaintiff was functioning as Mathematics Teacher and he retired from service on 31.3.2000 as High School Assistant. Plaintiff received his provident fund amount of Rs.2,66,699/- on 16.9.2000 with interest only upto 31.7.2000. He claimed interest at the rate of 13% for the said amount from 1.8.2000 to 16.9.2000, which is shown in the plaint A schedule. Commuted value of pension of Rs.2,17,620/- was received on 28.8.2001. Though the amount was due to the plaintiff as on 1.4.2000 the amount was actually R.S.A No. 177 of 2007 2 paid on 28.8.2001 without interest. For the said amount also, the plaintiff is entitled to 13% interest from 1.4.2000 to 27.8.2001. Various other claims made, which according to the plaintiff, are disbursed to him belatedly without any justification. He therefore claimed a total sum of Rs.88,344/- as shown in plaint A schedule with 18% interest from the date of suit till payment and also the cost of the suit. 4. The suit was resisted by the defendants. They disputed the claim of the plaintiff for interest. It is is pointed out that application for pension dated 25.5.2000 of the plaintiff was forwarded to the District Educational Officer, Kasargod which was received in the office on 8.6.2000. While processing the pension proposal, certain objections raised by the Accountant General's Office were noticed, which resulted in delayed disbursement of pension. 5. The matter was referred to the Accountant General and reply was received only on R.S.A No. 177 of 2007 3 6.2.2001. It is averred that the third defendant sanctioned the pensionary claims and proposal was forwarded to the Accountant General for authorisation on 23.2.2001. Authorisation was received in the office of the third defendant on 24.7.2001. As per the communication No.85/3778/2000 dated 15.7.2001 L.P.C and N.L.C of the plaintiff, which were received by the third defendant on 31.7.2001, was forwarded to the Sub Treasury, Kasargod on 1.8.2001. It is pointed out that there was no deliberate delay on the part of the third defendant in sanctioning the pensionary benefits of the plaintiff. 6. It is pointed out that plaintiff retired from service on 31.3.2000. Instead of filing an application for pension under Rule 110 of Part III of K.S.R within the time scheduled therein, application was filed long thereafter. That caused the delay, if there is any. Other reasons for the delay was due to non-receipt of the pension papers. It is pointed out R.S.A No. 177 of 2007 4 that plaintiff is not entitled to any relief in the suit. 7. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and Exts. A1 to A8 were marked from the side of the plaintiff. Ext. B1 was produced from the side of the defendants. They did not adduce any oral evidence. The trial court found that reason for the delay was due to belated submission of application by the plaintiff and it could be forwarded only on 25.5.2000. Thereafter, steps have been taken to compute and disburse the pensionary benefits. The suit was accordingly dismissed. 8. Plaintiff carried the matter in appeal as A.S. No.59 of 2003. The lower appellate court reversed the finding of the court below and granted a decree as prayed for with future interest at the rate of 12% p.a from the date of suit till the repayment. 9. The following substantial questions of law have been raised in the Second Appeal: R.S.A No. 177 of 2007 5 i) Does the finding of the First Appellate Court that "on a combined reading of Rule 109, 110, 114 and 115 it is clear that filing of the application by the employees is only formal" is legally correct being these are mandatory provisions.? ii) Does the finding of the First Appellate Court to the effect that even though no application for pensionary benefits, these appellants has to process the application for pensionary benefits is legally sustainable? iii) Does the granting of interest at the rate of 13% on the amounts received by the respondent is justifiable in law? iv) Whether the granting of future interest at the rate of 12% per annum from the date of the suit till the release is justifiable in law? v) Whether the interpretation of Rule 110 of the KSR Part II is justifiable in law and whether it is in consensus with the legislative intentions? vi) Does the reliance placed on reported decision 1985 KLT 86 and 1992 (1) KLT 838 are legally correct for the reason that the factual position in the reported case and the case in hand are entirely distinct and different? R.S.A No. 177 of 2007 6 vii) Does the decision of the First Appellate Court is legally sustainable. 10. Learned Government Pleader points out that in view of Rules 109, 110, 114 and 115 K.S.R, the argument that filing of an application is a formality cannot be accepted. The person who retired from service has to follow the procedure contemplated by Rule 110 of K.S.R within the time stipulated. Any delay on his part may cause delay in disbursement of the pensionary benefits. 11. Referring to the records made available before this Court, it is pointed out that as soon as the application was received, it was immediately processed and amounts were computed and disbursed to the plaintiff. Accordingly, it is said that the lower appellate court was not justified in decreeing the suit. 12. Learned counsel appearing for the respondent on the other hand contended that a reading of Rules 109, 110, 114 and 115 of K.S.R clearly R.S.A No. 177 of 2007 7 show that computation of pensionary benefits need not await formal application by the plaintiff and that process had to start within the time stipulated under Rule 109 of the K.S.R. Even assuming that there is a delay in filing the application, that is not a ground to delay the disbursement of pensionary benefits. 13. The appellants had given cogent reasons for the delay. The trial court accepted the case of the appellants and had dismissed the suit on the basis that the application filed by the plaintiff as contemplated under the Rule was highly belated. 14. May be the reasons given are not fully justifiable. Going through the provisions, it could be seen that in fact the computation of pensionary benefits need not await the receipt of the application from the retiring person. The process has to be started before his retirement as envisaged under Rule 109 of Part III KSR. However, the defendants in their written statement have detailed the various steps taken by R.S.A No. 177 of 2007 8 them in relation to the matter. It is therefore contended that they had taken prompt steps in the matter. 15. The lower appellate court, which decreed the suit, did not address itself as to whether the reasons given by the appellants are justifiable or not. The lower appellate court seems to be of the view that an application as envisaged under Rule 110 of Part III KSR is an empty formality and it has nothing to do with the disbursement of pensionary benefits. It is difficult to agree with the view. Even assuming that the process of computation had to begin prior to the date of retirement, that does not mean that the employee concerned need not take steps as is expected of him within a reasonable time. 16. Rule 115 deals with the procedure to be followed by the Head of Office and it says that strictly the authorities need not wait for the receipt of the application from the employee. But to say that the R.S.A No. 177 of 2007 9 employee need not file an application at all is a different thing. Even going by the provisions, it will not be possible to say that an application is not necessary. Whether a belated application from the side of the employee can be taken as a ground for delayed payment is yet another matter. It could be said that if that alone was the reason, then there would have been some substance in the submission. But one ought to have noticed that the appellants have given reasons in the written statement as to how the matter was processed and final decision was taken. These aspects have not been considered by the appellate court at all. The appellate court was carried away by the fact that the stand of the authorities that since the application filed by the employer was belated, the entire delay was occurred was not acceptable. It is felt that a reconsideration of the whole issue is necessary at the hands of the first appellate court. R.S.A No. 177 of 2007 10 In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law. The parties shall appear before the court below on 7.7.2010. The lower appellate court shall dispose of the appeal untramelled by any of the observation made by this court while disposing of this appeal. The lower appellate court shall make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties. There will be no order as to costs. Office shall send back the records to the lower appellate court at the earliest. P.BHAVADASAN, JUDGE sb.