IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 RSA.No. 845 of 2007 ----------------------- (A.S. NO 122 OF 2004 OF THE DISTRICT COURT, KOZHIKODE) (O.S. NO 294/2000 OF MUNSIFF COURT-II, KOZHIKODE) APPELLANTS-RESPONDENTS/DEFENDANTS: ------------------------------------------------ 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. FINANCIAL ADVISER & CHIEF EXECUTIVE OFFICER, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM,THIRUVANANTHAPURAM 3. EXECUTIVE ENGINEER, REGIONAL STORES, KERALA STATE ELECTRICITY BOARD, KALLAI, CALICUT-3. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENTS: APPELLANT/PLAINTIFF: ------------------------------------------- C. APPUKUTTY NAIR, AGED 63 YEARS, S/O. UNNI NAIR, "PADMALAYAM", ARAKINAR P.O., NADUVATTOM AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.A.RANJITH NARAYANAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. -------------------------------------------------------- R.S.A. No 845 of 2007 -------------------------------------------------------- Dated this the 2nd June 2008 JUDGMENT The defendants in O.S. No 294 of 2000 on the file of the Munsiff's Court-II, Kozhikode are the appellants. The respondent retired as a Senior Watchman of the Kerala State Electricity Board from the office of the third respondent on 30.04.1997. The suit aforesaid was filed by him on 25.03.2007 for realisation of a total amount of Rs 30,974/- by way of interest at 18% per annum on the belated pensionary benefits. According to him, he has submitted pension papers sufficiently early but the pensionary benefits were not paid to him at the time of retirement and he issued notice to the respondents on 12.05.1998, a copy of which is Ext A1, seeking payment of pensionary benefits with interest at the rate of 24% per annum to which there was no response. He received the pension for May 1998 on 15.09.1998 and arrears of pension for the period from 01.05.1997 to 30.04.1998 amounting to Rs 58,338/- on 04.06.1998. D.C.R.G amounting to Rs 54,450/- was paid to him only on 08.09.1998. Commuted value of pension amounting to Rs 64,511/- was paid to him only on 16.09.1998. All the above payments were without interest. Hence he issued Ext A2 notice to respondents on 16.02.1999 claiming interest at the rate of 18% per annum amounting to Rs 30,474/- RSA 845/07 2 to which also there was no reply and hence the suit. 2. The appellants contended that the respondent retired on the afternoon of 30.04.1997, that the preliminary papers for commutation of pension were submitted only two months before his retirement, that the pension papers were forwarded to the Accounts Officer, Trivandrum on 12.02.1997, that final pension papers were submitted after clearing the observations of the Accounts Officer on 26.07.1997 and resubmitted on 29.11.1997. According to them, if the respondent had forwarded his pension papers one year before his retirement appellants would have cleared the same within time. According to the appellants, they are not liable to pay any interest. The trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of only the oral evidence of the plaintiff as P.W.1 and documentary evidence of Exts. A1 to A3 dismissed the suit. On appeal filed by the plaintiff before the District Court, Kozhikode as A.S. No 122 of 2004 the District Judge allowed the appeal and decreed the suit in reversal of the judgment of the trial court. Hence this appeal by the aggrieved defendants. 3. It is vehemently contended before me by the learned counsel for the appellants that the respondent retired on 30.04.1997 RSA 845/07 3 and pension papers were forwarded only on 11.02.1997 and that resulted in some delay in processing the pension papers and that the respondent has to blame himself and the appellants are not liable to pay any interest for the belated payment of pensionary benefits and that the finding of the first appellate court to the contrary deserves to be set aside and the suit dismissed. It is worthy to note that the appellants did not adduce any oral or documentary evidence. All papers necessary for a proper adjudication of the case are admittedly in the possession of the appellants. They did not care to produce even a scrap of paper to substantiate their defence. According to the respondent-plaintiff the delay in granting the benefits was because of the delay in pay fixation in accordance with the agreement signed in the year 1995. There is no dispute however for the appellants in that the amounts are paid to the respondent only on the dates made mention of in the plaint. Ext A1 is the registered lawyer notice issued by the respondent-plaintiff to the appellants- defendants on 12.05.1998 as no service benefits or even pension was sanctioned and given to him. Ext A2 is another lawyer's notice issued by the respondent to the appellants on 16.02.1999 after disbursement of the pensionary benefits claiming an amount of Rs RSA 845/07 4 30,474/- towards interest at ther ate of 18% per annum for the belated payment of pensionary benefits. For both the notices there was no reply. Ext A3 is a copy of the letter produced by the respondent. Counsel for the appellants is unable to say as to what was the said letter and submits that a copy of the letter is not in the case file. However it is seen observed by the first appellate court that the letter is a photo copy of a letter which according to P.W.1, the plaintiff, he had given to the Assistant Engineer on 07.01.1996, more than one year prior to his retirement. It is also observed by the Munsiff and the first appellate court that it contained an endorsement by the Assistant Engineer to the effect that the original is forwarded to the Executive Engineer for favour of further action. It is also observed by the first appellate court that though the present appellants challenged Ext A3 as fabricated by the respondent they did not challenge the endorsement seen on Ext A3 made by the Assistant Engineer. The appellants have not examined the then Assistant Engineer who has made the endorsement, if at all they really wanted to challenge the endorsement seen on Ext. A3. The file containing the correspondence in relation to the disbursement of pension to the respondent-plaintiff is not produced. If the RSA 845/07 5 authenticity of Ext A3 was desired to be assailed it was up to the appellants-defendants to produce the file containing all the correspondence papers and also examine the Assistant Engineer to establish that Ext A3 is concocted by the respondent as is contended. The trial court dismissed the suit only for the reason that it eschewed Ext A3 from evidence as according to the learned Munsiff the authenticity of Ext A3 was not established. But the first appellate court rightly held that the trial court was not justified in sidelining Ext A3 especially when respondent-plaintiff produced the best evidence in his possession and the appellants who were parties to the suit, if so desired, had the opportunity to produce the file and examine the Engineer to disprove the genuineness of Ext A3 if at all according to them Ext A3 was concocted. I agree with the first appellate court and hold that Ext A3 has to be accepted in evidence for the reason that the best evidence was withheld by the appellants- defendants disabling the court in arriving at a correct conclusion basing on the facts of the case. First appellate court has observed that by Ext A3 the respondent has informed his superior officer that he had not so far received the benefit of the pay revision as per the agreement signed in the year 1995 and that he had only 14 months RSA 845/07 6 time to retire and that he apprehended that unless pay fixation is made his pensionary benefits also would be delayed. Pointing out all these aspects he requested the Assistant Engineer to take steps for pay fixation. It is also seen observed by the first appellate court that the head of office under Rule 115 of Part III K.S.R is duty bound to draw the attention of the retiring employee calling upon him to submit pension papers duly filled up in Form No II as mandated in Rule 115 (a). Appellants have no case that the head of office has invited the attention of the respondent-plaintiff and called upon him to submit the papers one year before his retirement on 30.04.1997. It is contended; before me by the learned counsel for the appellants that till an application is made by the retiring employee for sanction of his pension no action requires to be taken for disbursement of pension. Under Rule 114 of Part III K.S.R it is the duty of the head of office to undertake the work of preparing pension papers one year in advance of the date on which a government employee is due to retire on superannuation. The rule further provides that this work shall not be delayed till the government employee has actually submitted his formal application for pension. Rule 115(a) provides that as the first step, Head of office shall send to every non gazetted RSA 845/07 7 employee a copy of form II (formal application for pension) one year in advance of the date on which the government employee attains the age of superannuation requiring him to return it duly filled up along with necessary documents within a period of three months, but in no case later than the actual date of retirement. In the instant case, appellants have no case that form II had been forwarded to the respondent calling upon him to fill up the same and to return it along with necessary documents as required in rule 115(a) of Part III K.S.R. Rule 115 (a) further mandates that the head of office shall also draw the attention of the government employee to rule 119 which provides that an ordinary pension is payable from the date on which the pensioner ceases to be borne on the establishment. Even this also was not done in the case of the respondent. Appellants are trying to accuse the respondent to contend that there was no default on their part in the matter of disbursement of pension and that therefore they are not liable to pay interest as held by the first appellate court. By Ext A3 the respondent had expressed his apprehension that non fixation of his pay may result in delay in payment of pension and that therefore his pay may be revised and fixed as per the agreement signed in the year 1995. Ext A3 was so RSA 845/07 8 send 14 months prior to his retirement. Despite that letter appellants did not get alerted and did not act as per rules 114 and 115 of Part III K.S.R either to revise his salary or to take steps for disbursement of his pension. In the circumstances, first appellate court has rightly come to the conclusion that the appellants are liable to pay interest for the belated payment of pensionary benefits. It is also worthy to note that; the first appellate court granted only 9% interest on the belated payments and not 18% interest as claimed till date of suit and after the date of suit the interest allowed is only at the rate of 6%. No interference requires to be made in the judgment so passed by the first appellate court. There is no merit at all in the second appeal and no question of law and much less any substantial question of law does arise for consideration by this court in this second appeal as attempted to be formulated in the memorandum of appeal. In the result, confirming the decree of the first appellate court I dismiss this R.S.A in limine refusing admission. Sd/- K.P. BALACHANDRAN Judge 02/06/08 en [true copy] RSA 845/07 9