IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 OP.No. 35440 of 2002(R) ---------------------------------- PETITIONER: ------------------- GEORGE J.PRASAD, KUNNAYYATHU HOUSE, PULLIKKANATHU P.O., ALAPPUZHA DISTRICT. BY ADVS. SRI.M.V.BOSE, SRI.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, P.W.D. (ADMINISTRATION), THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, NATIONAL HIGH WAYS, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. P.M. MANOJ. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28/05/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 35440/2002-R: ORDER ON C.M.P. NO. 59840/2002 IN O.P. NO. 35440/2002-R DISMISSED 28/05/2010. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 03/03/1999 OF THE SUPERINTENDING ENGINEER, N.H. NORTH CIRCLE, KOZHIKODE. EXT.P.2: COPY OF THE LETTER DTD. 10/03/1999 OF THE SUPERINTENDING ENGINEER, N.H. CIRCLE, KOZHIKODE. EXT.P.3: COPY OF THE JUDGMENT DTD. 09/12/1999 IN O.P. NO. 26410/1999. EXT.P.4: COPY OF THE LETTER DTD. 02/05/2000 WITH THE DETAILS OF LIABILITIES OUTSTANDING OF THE PETITIONER, ISSUED FROM THE CHIEF ENGINEER, NATIONAL HIGHWAYS. EXT.P.5: COPY OF THE GRATUITY PAYMENT ORDER DTD. NIL----2--2000. EXT.P.6: COPY OF THE COMMUTED VALUE OF PENSION OF RS. 3.36.160/- WAS ORDERED TO BE PAID BY THE AUTHORITIES FORM DTD. 04/05/2000. EXT.P.7: COPY OF THE LETTER DTD. 16/05/2000 FROM THE PETITIONER TO CHIEF ENGINEER (N.H), TRIVANDRUM. EXT.P.8: COPY OF THE CHALAN DTD. 16/05/2000. EXT.P.9: COPY OF THE LETTER DTD. 17/06/1995 FROM THE PETITIONER TO CHIEF ENGINEER, P.W.D. BUILDINGS AND LOCAL WORKS, THIRUVANANTHAPURAM. EXT.P.10: COPY OF THE APPLICATION FROM THE PETITIONER DTD. 21/11/1992. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. ----------------------------------------- O.P.No.35440 of 2002 ----------------------------------------- Dated this the 28th day of May, 2010 JUDGMENT The petitioner retired from service on 28-2-1999 while he was working as Superintending Engineer in the Public Works Department (National High Way, Northern Circle Office) Kozhikode. Shortly after retirement, Ext.P1 non-liability certificate was issued by the petitioner's successor stating that no liability is outstanding against the petitioner who was the Superintending Engineer in Northern Circle during the period from 6-2-1997 to 28-2-1999. Prior to his service as Superintending Engineer in National Highways Division he had worked in PWD District Panchayat Division, Kottayam during the period from 24.2.1992 to 5.2.1997. A non-liability certificate from the said office was also issued as can be seen from Ext.P2. Even thereafter when the retirement benefits were not paid, the petitioner filed O.P.No.26410 of 1999 in this Court. When the said writ petition came up for hearing it was submitted on behalf of the State of Kerala that the sum of Rs.11,315/- has been provisionally fixed as the petitioner's liability and that a show cause notice has also been issued to him. In the light of the said submission this Court disposed of O.P.No.26410 of 1999 by Ext.P3 judgment delivered on 9-12-1999 with a direction to disburse O.P.No.35440 of 2002 -:2:- the pensionary benefits and the DCRG after deducting the sum of Rs.11,315/-. The petitioner was given liberty to challenge the fixation of the abovesaid liability. The question of payment of interest was left open. 2. The respondents herein complied with the aforesaid direction, though belatedly, and paid the terminal benefits other than the sum of Rs.11,315/- on 16-5-2000 as can be seen from Exts.P4 to P8. The petitioner who was aggrieved by the deduction of the sum of Rs.11,315/- from his DCRG thereupon filed Ext.P9 representation before the Chief Engineer, the 3rd respondent herein, contending that the sum of Rs.11,315/- was illegally recovered from him. He stated that he had occupied a room in the PWD Rest House, that he was paying rent at the rate of 7½% of the basic pay, that he had vacated the room on 13-5-1995, that he was paying rent at a higher rate than that was due and therefore, appropriate steps be taken to waive the levy of the sum of Rs.11,315/-. This writ petition was thereupon filed on 25-11-2002 challenging Ext.P4 to the extent it deducts the sum of Rs.11,315/- from the DCRG and the fixation of the sum of Rs.11,315/- as the liability. The petitioner has also prayed for a direction to the 3rd respondent to refund the sum of Rs.11,315/- deducted from his DCRG. He has also claimed interest on the amount of gratuity and O.P.No.35440 of 2002 -:3:- commuted value of pension at the rate of 18% per annum. 3. A counter affidavit has been filed on behalf of the first respondents. Paragraphs 1, 2 and 6 thereof read as follows:- “The petitioner retired from service on 28.2.1999 on superannuation as Superintending Engineer, NH North Circle, Kozhikode. While working as Executive Engineer, Kottayam he was occupying a room in Public Works Department Rest House at Kottayam from 1-12-1992 to 13-5-1995 at a stretch. He had remitted Rs.18,187/- as room rent by way of salary deduction. But in the surprise check conducted by Deputy Collector (General), Kottayam at the Public Works Department Rest House in the presence of an officer on Vigilance Unit, Kottayam, it was found that the petitioner while working as Executive Engineer occupied a room from 24-11-1992 to 13-5-1995. The enquiry disclosed that the petitioner violated the rules relating to the occupation of rooms in Public Works Department Rest House. Accordingly the Government as per letter No.6507/F1/95/PW&T, dated 31-3-1995 directed to realise rent @ Rs.33/- per day of occupation after deducting the rent. They had actually deducted from their salary towards rent. The officers vacated the rooms they were occupying at the Rest House and action was taken O.P.No.35440 of 2002 -:4:- to recover the loss sustained to the Government on account of their continued stay in the Rest House. 2. The petitioner, the then Executive Engineer, D.P.Division, Kottayam had occupied a room in Public Works Department Rest House at Kottayam for 894 days at a stretch, was liable to pay Rs.29,502/- as room rent @ Rs.33/- per day. But he had actually remitted Rs.18,187/- only from his salary as room rent as detailed above. Hence the balance amount of Rs.11,315/- had been recovered from his DCRG as per Government orders. As such he was under orders of recovery and hence there is no relevancy for the non-liability certificate issued. xx xx xx 6. The deduction of room rent from the salary and non claiming of HRA is a procedure adopted when Government quarters are allotted to Government officers. In this case the petitioner acted on his own without the support of any codal provisions and Government rules as he was a self drawing as well as treasury officer. No show cause notice was issued to the petitioner but he was heard as per his representation dated 17.6.1995 addressed to the Chief Engineer (Admn), Public Works Department, Thiruvananthapuram.” The contention of the State is that without obtaining the prior O.P.No.35440 of 2002 -:5:- permission of the competent authority, namely the District Collector, the petitioner had occupied a room in the PWD Rest House and that he was in occupation of that room from 24-11-1992 to 13.5.1995. It is also stated that though the petitioner had paid rent, it was at a lesser rate and that he had remitted only Rs.18,187/- as against the sum of Rs.29,502/- which was payable as rent and that the balance amount of Rs.11,315/- was fixed as his liability after hearing him. 4. The petitioner does not dispute the fact that the sum of Rs.11,315/- was fixed as his liability following an enquiry and that he was also heard in the matter. Therefore, the fixation of liability cannot be said to have been made without following the proper procedure. Though the petitioner has contended that he was liable to pay only 7½% of his basic pay as rent for occupation of the room in the PWD Rest House and that he is not liable to pay rent at the rate of Rs.33/- per day, the petitioner has not produced any material in support of the said contention. Though during the course of arguments, the learned counsel for the petitioner referred to and relied on the Rules for the Allotment and Occupation of Government Servants' Quarters in Kerala, 1975, the said rule has no application for occupation of rooms in PWD Rest Houses. The said rule applies only to residential quarters which are let out to Government employees and in such cases the rent O.P.No.35440 of 2002 -:6:- payable is either standard rent or an amount representing 7.5% of pay in the revised scale whichever is higher. In such circumstances I am proceeding on the basis that the petitioner has not been able to establish his contention that he need pay only 7.5% of his basic pay for the occupation of the room in the PWD Rest House. 5. Though the petitioner has produced Ext.P10 letter dated 21- 11-1992 (along with the reply affidavit dated 12.3.2006) sent by him to the Superintending Engineer, South Circle, Trivandrum seeking permission to occupy a room in the PWD Rest House, the endorsement in the said letter discloses that the petitioner had himself given the permission, occupied the room and forwarded it to the Superintending Engineer. It is therefore evident that the occupation of the room by the petitioner was without proper authority. The petitioner has also not pleaded or proved that the permission sought for in Ext.P10 was granted. In such circumstances the petitioner cannot be heard to contend that he had occupied the room with prior permission and that he was liable to pay rent only at the rate of 7.5% of his basic pay. Even if the rule relied on by petitioner is to be applied, the rent payable is either standard rent or an amount representing 7.5% of pay in the revised scale, whichever is higher. From the materials on record it is evident that what is demanded from O.P.No.35440 of 2002 -:7:- the petitioner is only the sum of Rs.33/- per day towards rent. It cannot be said that the levy of Rs.33/- per day towards rent is on the higher side. The petitioner, who was in occupation of the Government building would have used water and electricity apart from occupying the premises belonging to the Government. Therefore, the petitioner cannot be heard to contend that the Government will have to bear the expenses in that regard also. I therefore find no merit in the challenge to the fixation of the sum of Rs.11,315/- as petitioner's liability. 6. I shall now deal with the question whether the petitioner is entitled to interest for delayed payment of DCRG. The petitioner retired from service on 28-2-1999. Exts.P1 and P2 non-liability certificates were issued in March, 1999. The petitioner filed O.P.No.26410 of 1999 in this Court on 25-10-1999. The said writ petition was disposed of by Ext.P3 judgment delivered on 9-12-1999 with a direction to pay terminal benefits after withholding the sum of Rs.11,315/- within two months from the date of receipt of a copy of the judgment. The respondents admittedly received the certified copy of Ext.P3 judgment on 28-1-2000. However, the DCRG was disbursed to the petitioner only on 16-5-2000. The period of two months fixed by this Court expired on 28-3-2000. There was thus a delay of two months in paying over the DCRG. On the admitted facts, I am of the O.P.No.35440 of 2002 -:8:- opinion that the respondents should not be mulcted with the liability to pay interest. The delay on the part of the respondents cannot also be said to be culpable or unduly long. In such circumstances I find no reason to accept the petitioner's claim for payment of interest. The petitioner, who had occupied Government quarters without prior permission from the competent authority, is in my opinion not justified in claiming interest for the short delay in payment of DCRG. The conduct of the petitioner disentitles him to that relief. For the reasons stated above I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- O.P.No.35440 of 2002 ---------------------------- JUDGMENT 28th May, 2010