Briefly stated, the petitioner, having retired on 31.03.2011 as Assistant Engineer from the service of the first respondent Housing Board, filed the present writ petition complaining of non payment of terminal benefits even after a lapse of 3½ years. According to the learned counsel for the petitioner, the authorities have not settled the petitioner's retirement benefits on a mere excuse that there is an audit objection, as could be seen from Exhibit P1 proceedings issued by the first respondent Board. 2. Assailing the unjustifiability of the employer's action, the learned counsel for the petitioner has drawn the attention of this Court to Exhibit P4, which is an extract of the Executive Orders on Pension issued by Government of Kerala in G.O.(P)No.185/2002/Fin. dated 27.03.2002. Laying specific emphasis on clause (iv) thereof, the learned counsel would urge that the pensionary benefits cannot be withheld on the ground of non-clearance of audit objection.
3. The learned counsel has also laid emphasis on Exhibit P6, which is the order issued by the second respondent on 14.08.2014 exonerating the petitioner and other employees of the Board from all charges levelled against them initially through a charge memo dated 24.02.2007. According to the learned counsel, since a clean chit has been given to the petitioner, the action of the respondent authorities in withholding the terminal benefits is all the more untenable.
4. The learned counsel has also submitted that other employees, who faced the disciplinary proceedings along with the petitioner, on their retirement, had their terminal benefits settled long back notwithstanding the pendency of the disciplinary proceedings. In this regard, the learned counsel has drawn the attention of this Court to the judgment dated 06.02.2013 in W.P.(C)No.8739/2012, wherein one of the employees when approached this Court on his retirement complaining of non payment of the terminal benefits, this Court did direct that he be paid all the benefits. The learned counsel has also shown to this Court the proceedings dated 04.09.2012, said to have been issued by the Secretary of the respondent Board facilitating another employee, an Accounts Officer, who has also faced the disciplinary proceedings, with the payment of all the terminal benefits. Passing on a copy of the said proceedings across the Bar, the learned counsel submits that in the case of this particular employee, there was a clear finding by the Vigilance and Anti Corruption Bureau that her action had resulted in loss to the Board to a tune of Rupees 1½ crores; despite such finding, the Board has settled the terminal benefits of that particular employee. Summing up his submissions, the learned counsel for the petitioner has urged this Court to issue a positive direction to the respondents to pay all the terminal benefits to the petitioner forthwith along with interest.
5. Per contra, the learned Standing Counsel for the respondent Board has submitted that in terms of the Regulations governing the retired employees of the Board, it is mandatory that to process the application for retirement benefits, the said employee should obtain 'No Objection Certificate' from all the departments concerned, including the Audit Department. He has also pointed out that till August 2014, the disciplinary proceedings were pending and as such it does not lie in the mouth of the petitioner to accuse the respondent Board of any delay, much less inordinate delay. The learned Standing Counsel has also submitted that in the light of Exhibit P6 order, through which all the disciplinary proceedings against the petitioner and other employees were dropped, the Board has been taking every step to ensure a speedy finalisation of the issue.
6. The learned Standing Counsel has brought to the notice of this Court paragraph 5 of the counter affidavit filed by the respondent Board. He urged this Court not to issue any mandamus at this juncture, inasmuch as the process of settling the terminal dues of the petitioner, an elaborate procedural parameters were to be observed. Accordingly, he urged this Court to dismiss the writ petition.
7. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Board, apart from perusing the record.
8. Indeed, Exhibit P4 Government Order, especially clause (iv) thereof, makes it manifestly clear that the pensionary benefits cannot be withheld on the ground of non clearance of audit objection/inspection reports of the National Audit Wing, etc., unless there are convincing reasons to believe that there are mala fide intentions on the part of the retired officer to cause loss to Government. It is further mandatory that the 'No Liability Certificate' should be issued in all cases, where departmental action is not pending, within three months after the retirement of the employee. It is true that the respondent Board does not have a case that there has been any reason for the Board to believe that the petitioner harbored mala fide intention to cause loss to Government. At the same time, the No Liability Certificate could not be issued once departmental proceedings are pending.
9. In this case, it is evident that there were departmental proceedings initiated based on a charge memo issued on 24.02.2007. In fact, Exhibit P6 reveals that the petitioner and some other employees of the respondent Board faced certain charges based on the observations of the Local Fund Audit Department and also on the basis of the report of the Ernakulam Division Executive Engineer. Having found a prima facie case, the Board, through its Resolution dated 25.09.2007, decided to conduct Vigilance enquiry into the charges. Eventually, after having the enquiry conducted, the Board found that the charges could not be substantiated against the delinquents including the petitioner. In those circumstances, through Exhibit P6 order dated 14.08.2014, the respondent dropped the proceedings against the petitioner, as well as other employees of the Board, who faced the charges.
10. Going by the judgment in W.P.(C)No. 8739/2012, it is clear that this Court directed the respondent Board to pay the service benefits to one Mr.K.V.Prasannan, the petitioner therein, pending enquiry. A perusal of the said judgment reveals that the said petitioner retired from service way back on 28.02.2007 and even after a lapse of six years, disciplinary proceedings continued against him. Under those circumstances, this Court directed the respondent Board to pay the retiral benefits to the said employee.
11. Regarding the proceedings dated 04.09.2012 concerning Smt.K.M.Thankamma, the Accounts Officer, who is said to have been paid the terminal benefits despite the finding of the Vigilance Department that her omissions and commissions while in duty resulted in financial loss to the tune of Rupees 1½ crores to the Board, I am afraid, the proceedings dated 04.09.2012, handed over to me do not indicate any such finding having been entered against the said employee to disentitle her to the terminal benefits. In any event, for want of authentic information, this Court does not want to make any observation on the issue of settling the retirement dues of the said employee.
12. Be that as it may, it is indisputable that the petitioner got superannuated and retired from service on 31.03.2011. The initial objection raised by the respondent Board, as could be seen from Exhibit P1, is that in view of the pendency of certain audit objections and enquiry proceedings, the terminal benefits of the petitioner could not be settled. That particular order does not speak about the pendency of any disciplinary proceedings. Thus stated, this Court further observes that Exhibit P6 clearly reveals that there had been disciplinary proceedings pending against the petitioner, but they came to be finalised only on 14.08.2014. At no point of time has the petitioner ventilated his grievance, as is evident, either before the authorities concerned or before this Court as Mr.Prasannan did in W.P. (C)No.8739/2012, that he be paid his terminal benefits notwithstanding the pendency of the disciplinary proceedings.
13. In view of the subsequent developments, especially after filing of the present writ petition, since Exhibit P6 proceedings were issued by the respondent Board exonerating the petitioner and other employees of the Board from all the charges levelled against them, I do not see any tenable reason for the respondent Board to still withhold the terminal benefits of the petitioner on mere technicalities that they need clearance from one or other department. As there is a profusion of judicial pronouncements holding that the terminal benefits are not a bounty, there shall not be any further delay in settling the retirement dues of a superannuated employee.
In the facts and circumstances, this Court allows the writ petition directing the respondent Board to settle the terminal benefits of the petitioner as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. It is further made clear that if the petitioner is required to comply with any other statutory formalities, other than No Liability Certificate from any of the departments, he shall comply with the same to enable the respondent Board to settle the issue at the earliest. At this juncture, the learned counsel for the petitioner has submitted that in view of the inordinate delay in settling the terminal benefits, interest may be ordered to be paid by the respondent Board. This Court is not inclined to adjudicate the issue in view of the fact that Exhibit P6 was issued only in the month of August 2014. At any rate, if the petitioner is statutorily entitled to any interest, it is left open for the petitioner to make a proper application before the first respondent, which shall take a decision on that issue in accordance with law.
Dama Seshadri Naidu, Judge tkv