The petitioner had joined the service as Overseer in the Public Works Department in 1967 and later he was working as Assistant Engineer in the 3rd respondent-Thrissur Municipal Corporation, since 1979 till his date of retirement from service on 30.1.1999. The grievance of the petitioner is in respect of the withholding of an amount of Rs.1,50,820/- from the DCRG (Death-cum-Retirement Gratuity) amount of Rs. 1,86,416/- sanctioned to him. 2. It is stated in Ext.P1 proceedings dated 10.2.2000 issued by the 2nd respondent-Director of Municipal Administration that as per the proceedings dated 1.2.1999 referred to therein, the petitioner has been permitted to commute an amount of Rs.1,575/- from the sanctioned pension and that accordingly commuted value of pension amounting to Rs. 2,15,238/-, pension amount of Rs. 76,734/- as arrears from 1.2.1999 to 31.3.2000 and DCRG amount of Rs. 1,86,416/- has been duly sanctioned to him, thus totalling to an amount of Rs. 4,78,988/-. Earlier the respondents alleged as per Ext.P2 dated 26.4.2000 that there is an outstanding unsettled liability of Rs. 2,55,820/- pending due to non-finalisation of accounts of advance amount entrusted with the petitioner for carrying out various project works and accordingly the respondents deducted the said amount and disbursed only the balance amount from above said total sanctioned amount. The petitioner submitted representations and stated that all the necessary vouchers and accounts pertaining to the amounts entrusted with him for carrying out the works of the Municipality have been duly submitted to the authorities of the respondent Corporation and that there are no outstanding liabilities subsisting against the petitioner and that if the authorities have not actually finalised such accounts, after going through the vouchers and accounts submitted by the petitioner, then he should not be blamed for the delay on the part of the respondent Corporation's officials concerned in such non-finalisation of the accounts and that he should be paid all the amounts withheld from his retiral benefits. Since this was not acceded to by the respondent Corporation, the petitioner was constrained to approach this Court by filing a Writ Petition as O.P.No.15786/2000 praying for direction to issue the entire withheld pensionary benefits along with interest etc. This Court as per Ext.P5 judgment dated 29.6.2000, finally disposed of O.P.No.15786/2000 by holding that any alleged liability in respect of the retired employee has to be fixed expeditiously by the authorities concerned and accordingly directed the 2nd respondent therein, viz. Director of Municipalities, to take immediate steps to fix and determine the liabilities against the petitioner after affording him a reasonable opportunity within a period of four months from the date of receipt of a copy of the judgment. It was further directed therein that if the liabilities are not fixed and determined as directed therein, then the person who is responsible for such delay will be liable to pay interest from the date of expiry of the said four months. While things stood so, instead of fixing and finally determining the liability in accordance with the provisions of Notes 2 and 3 of Rule 3 Part III KSR, the 3rd respondent issued Ext.P6 notice dated 1.8.2000 ordering that revenue recovery proceedings will be taken against the petitioner for such alleged outstanding liabilities by virtue of the powers conferred under the Kerala Municipalities Act and Rules. So the petitioner was constrained to impugn the revenue recovery proceedings as per Ext.P6 herein by filing another Writ Petition as O.P.No. 24222/2000 before this Court. This Court, as per Ext.P7 judgment dated 23.8.2000, finally disposed of O.P.No. 24222/2000 by directing that the petitioner's representation against the impugned revenue recovery notice should be considered by the respondent Thrissur Municipality and necessary orders passed thereon, within two months and that while passing such orders, the judgment of this Court as per Ext.P5 herein, will have to be taken into consideration if it is applicable to the facts of the case and further ordered that until then, the impugned revenue recovery proceedings shall remain stayed. It appears that no further action has been taken in pursuance of the above said impugned revenue recovery notice as per Ext.P6 herein, as no pleadings in this regard are placed on record. The 2nd respondent-Director of Municipal Administration later passed Ext.P8 proceedings dated 7.11.2000 in purported compliance of Ext.P5 judgment by holding that the total outstanding liability of Rs.1,50,820/- is still pending to be cleared by the petitioner and that therefore the said amount shall be deducted from the DCRG amount of the petitioner and all the other balance amounts withheld from the retiral benefits were disbursed to him. It is challenging this withholding of the amount of Rs. 1,50,820/- as per the impugned Ext.P8 that the petitioner has approached this Court by filing the above Original Petition with the following prayers:
“i) Issue a writ of Mandamus or any other appropriate writ order or direction directing the 2nd to 4th respondents to sanction and disburse the petitioner's withheld pensionery benefits, in te light of Ext.P9, P10 and P11 for a tune of Rs. 1,50,820/- along with the interest at the rate of 24% per annum within a time bound manner.
ii) Issue a writ of mandamus or any other appropriate writ order or direction, directing the 3rd respondent to pay 12% interest on the delayed payment of Rs. 3,32,144/- from the date of retirement to the date of payment.
iii) Issue a writ of certiorari to call for the entire records pertaining to the unadjustment of the 5 project works viz. (1) PW5-38382/92 dated 4.10.91, N.R.Y for Rs. 95,000/- (2) PW5-38263/91 dated 30.12.91 traffic wing for Rs. 1,500/-
3) PW2-36531/91 demolition of unathorised bunk dated 22.9.93 for Rs. 3,000/- 4) PW2-35009/94 dated 4.1.94 Prime Minister's visit for Rs. 15,000/- and (5) PW3-440/97 dated 26.3.97 purchasing drum for Rs. 36,320/- and quash the Ext.P8 to the extend of fixing liability of Rs. 1,50,820/- on the shoulders of the petitioner.
iv) Issue a writ of Mandamus or any other appropriate writ order or direction as this Hon'ble Court deems fit and proper in the interest of justice and circumstances of the case.”
3. The main contention urged by the petitioner is that all the amounts which are found as liability as per Ext.P8 are based on irrelevant considerations and in violation of procedural propriety and without considering crucial relevant aspects. The petitioner would urge that items 1, 2 and 3 of the amounts tabulated in page No.2 of Ext.P8, are actually covered by the amounts referred to in Ext.P9, at page 62 of the paper book and that Ext.P9 is the official file noting and proceedings of the 3rd respondent Thrissur Municipal Corporation. These crucial aspects discernible from Ext.P9 have not been taken into account and if those relevant aspects were actually reckoned by the second and third respondents, then they would have been convinced that all the amounts in that regard were duly settled by the petitioner with necessary vouchers and that there are no outstanding liabilities pending against the petitioner in that regard. The petitioner would further urge that the amounts shown as item No.4 tabulated in page 2 of Ext.P8 are fully covered and accounted by Ext.P4 and that this crucial relevant aspect has not been taken into consideration by the respondents and that there are no outstanding liabilities in that regard. The petitioner further submits that the amounts shown as item No.8 of Ext.P8 is fully covered and accounted by Ext.P11 and this crucial aspect has not been taken into consideration and that there are no outstanding liabilities against the petitioner. It is common ground that the amounts shown as per items Nos.5, 6 and 7 of Ext.P8 have been acknowledged by the respondents themselves in Ext.P8 as not liabilities of the petitioner. The 2nd respondent-Director of Municipalities, who has fixed the alleged liabilities as per Ext.P8, has not chosen to file counter affidavit and has not rebutted the averments and contentions of the petitioner raised in this Writ Petition. The 3rd respondent-Thrissur Municipal Corporation has filed a counter affidavit dated 26.10.2006.
4. It is by now well established by the ruling of the Apex Court in D.N.Nakara and others v. Union of India, reported in (1983) 1 SCC 305, that the antiquated notion of pensionary or retiral benefits as a bounty or as a gratituous payment depending upon the sweet will or grace of the employer and not claimable as a right and therefore no right to pension can be enforced through court, has been swept under the carpet by a catena of decisions of the Supreme Court, wherein it has been authoritatively held that pensionary or retiral benefits is a right and the payment of it does not depend upon the discretion of the Government, but that is governed by the rules and that a Government servant coming within those rules is entitled to claim such pensionary benefits. It is also held therein that grant of retiral benefits does not depend upon anyone's discretion and it is only for the limited purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect, but that the right to receive pension flows to the officer not because of any such order of the administrative authority but by virtue of the rules. Deoki Nandan Prasad v. State of Bihar and Ors. reported in (1971) 2 SCC 330 and State of Punjab and Anr.
v. Iqbal Singh reported in (1976) 2 SCC 1 are some of the land mark judgments of the Apex Court, wherein the law in this regard has been so settled. In Deoki Nandan Prasad's case reported in (1971) 2 SCC 330, the Supreme Court in paragraphs 29 to 35 thereof categorically held that the right to receive retiral or pensionary benefits by a retired Government servant is property so as to attract the then existing provisions of Articles 19(1)(f) and 31(1) of the Constitution and it was held that the State cannot, by an executive order, curtail or abolish altogether the right of the retired public servant to receive pensionary benefits. In the case State of West Bengal v. Haresh C.Banerjee and Ors., reported in (2006) 7 SCC 651, the Apex Court held that even after the repeal of Articles 19(1) (f) and 31(1) of the Constitution, as per the Forty-Fourth Constitutional Amendment Act, 1978, with effect from 20.6.1979, the right to property though no longer a fundamental right is still a constitutional right as enshrined in Article 300A of the Constitution and right to receive retiral or pensionary benefits has been treated as right to property. After scanning the case law in this regard, the Apex Court in the recent judgment rendered in the case Jitendra Kumar Srivastava's case reported in (2013) 12 SCC 210, has held that Article 300A postulates that persons are not to be deprived of property save by authority of law and that no person shall be deprived of his property save by authority of law and therefore a person cannot be deprived of retiral or pensionary benefits without the authority of law, which is constitutional mandate enshrined in Article 300A of the Constitution and it follows therefore that to withhold or forfeit part or whole of the pension or gratuity or even leave encashment without statutory provision and under the umbrage of administrative instructions cannot be countenanced and that executive instructions orders are not having statutory character and therefore cannot be termed as 'law” within the meaning of Article 300A of the Constitution of India. On this basis, it was held that the administrative circular impugned therein was not having the force of law and it was held that the State cannot withhold even part or whole of pension or gratuity on the basis of the administrative circular impugned therein. So it is now too well settled that the right to receive retiral benefits including DCRG cannot be forfeited or withheld either partially or in whole, without the authorisation on the basis of a statutory prescription. The statutory prescription has to be just fair and reasonable and exercise of the power under the statutory provision should also be reasonable and proper and should be fully in consonance with the principles of fairness and natural justice. Otherwise, it will be unlawful deprivation of the property right and such impugned action will be ultra-vires and unenforceable.
5. It is common ground that provisions of Part III KSR regulates the grant of pensionary benefits to employees like the petitioner in the 3rd respondent-Thrissur Municipal Corporation. Rule 3 Part III KSR authorises withholding in part or in whole, pension of retired Government servant on the basis of the departmental or judicial proceedings referred to therein. Notes 2 and 3 of Rule 3 of Part III KSR read as follows:
“Note 2.- The word 'pension' used in this rule does not include death-cum-retirement gratuity. Liabilities fixed against an employee or pensioner can be recovered from the death-cum-retirement gratuity payable to him without the departmental/judicial proceedings referred to in this rule, but after giving the employee or pensioner concerned a reasonable opportunity to explain.
Note 3.- The liabilities of an employee should be quantified either before or after retirement and intimated to him before retirement if possible or after retirement within a period of three years on becoming pensioner. The liabilities of a pensioner should be quantified and intimated to him.”
It is now well established by rulings of this Court in the case State of Kerala v. Moideen reported in 1999 (1) KLT 515, paragraph 10 thereof, that Note 2 to Rule 3 clarifies that the word, 'pension' used in that Rule does not include DCRG and that by the applicability of Note 2 to Rule 3, it is not possible for the Government to withhold the DCRG or order recovery of the whole or any part of a pecuniary loss caused to the Government from the DCRG as per Rule 3 and that, however, Note 2 to Rule 3 provides that liabilities fixed against an employee or pensioner can be recovered from the DCRG payable to him without the departmental or judicial proceedings referred to in Rule 3, but after giving the employee of pensioner concerned, a reasonable opportunity to rebut the alleged liabilities and further that Note 3 to Rule 3 enjoins that the liability of an employee should be quantified either before or after retirement and intimated to him if possible before retirement or after retirement, but within a period of three years from becoming a pensioner and that the date of beginning a pensioner is a constant factor viz., the date of attaining the age of superannuation. It is by now well established by a series of rulings of this Court that the liability fixation process should be done after due notice and reasonable opportunity to the pensioner and such liability fixation process should be fully finalised within the outer time limit of three years from the date of retirement. In fact, Ruling No.5 under Rule 116 of Part III KSR clearly provides that in all cases, where liability could not be assessed and fixed before the retirement of Government employees, efforts should be made to assess and adjust the recoverable dues within a period of one year from the date of retirement of the Government employee concerned and if, in any case, liability could not be assessed and adjusted within one year, the amount withheld from the DCRG will be released and disciplinary action shall be taken against the employees responsible for the failure to assess and adjust the liabilities within the said prescribed period. So the respondents are under the statutory obligation to ensure that the liabilities against the pensioner are duly fixed within a period of one year from the date of retirement of the employee concerned. However, in view of the provisions contained in Note 3 to Rule 3 Part III KSR, the outer time limit, within which, the liabilities has to be finalised and settled is three years from the date of retirement and if such liabilities are not lawfully finalised in full compliance with the principles of natural justice and fairness, the authorities are under the legal obligation to release the DCRG amount of the pensioner.
6. As already stated above, fixation and determination of liabilities against a pensioner cannot be an idle formality by merely conducting the ritual of an oral hearing. The respondent authorities are duty bound to enumerate the specific details of each of the alleged liability amounts and also refer to the materials on the basis of which such liabilities are provisionally alleged against the pensioner and details of all such provisional assessment of liabilities against the petitioner should be made known to the petitioner through notice calling upon him to give the explanation and all the relevant materials on the basis of which such liabilities are provisionally found against the petitioner, should also be made available to him so that the pensioner can effectively controvert the allegations of such liabilities. All the materials made available by the pensioner to controvert such provisional assessed liabilities should be duly taken into account by the respondents and after affording such reasonable opportunity to the pensioner, the respondent authority shall advert to all the relevant aspects in the matter and then pass final orders as to the sustainability or otherwise of the explanation given by the pensioner as against the alleged liabilities and based on relevant aspects, the authority should pass a considered order finally fixing and determining the liabilities against the pensioner. Only if the power granted under Note to 2 to Rule 3 Part III KSR is so reasonably and properly exercised, the exercise of power can be said to be lawful and intra- vires. If the details of the liabilities provisionally alleged against the petitioner are not cogently and clearly given in the notice calling upon the pensioner to give his explanation, then it cannot be said to be a fair and reasonable exercise of power in consonance with the principles of fairness and natural justice and such exercise of power would be unreasonable, improper and ultra vires. This is because the right to receive pensionary benefits including DCRG is right to property as enshrined in Article 300A of the Constitution of India and right to such property can be deprived of or forfeited or withheld only on the basis of a statutory prescription and exercise of such power on the basis of such statutory prescription should also be reasonable and proper and must be fully in consonance with the principles of fairness and natural justice as warranted in the facts of the case. This is the only lawful manner by which the constitutionally conferred right to property can be deprived by exercise of the power contained in the statutory prescription. With the above said legal framework, the issues raised in this case has to be considered.
7. In the instant case, this Court had directed the 2nd respondent to fix and finalise the liabilities alleged against the petitioner after giving him a reasonable opportunity. The power under Notes 2 and 3 of Rule 3 Part III KSR for fixation and finalisation of alleged liabilities has to be exercised in the aforementioned reasonable and proper manner and in accordance with the principles of fairness and natural justice. Prior to the impugned decision at Ext.P8 dated 7.11.2000 consequent on Ext.P5 judgment dated 29.6.2000, the 3rd respondent has merely made a bald allegation in Ext.P2 dated 26.4.2000 about alleged liability of Rs. 2,55,820/-, without showing any details. In the instant case, other than calling upon the petitioner for a hearing before passing Ext.P8 order, the 2nd respondent or the 3rd respondent had not given any notice or memo to the petitioner enumerating the details of each one of the alleged liabilities and as to the material basis on which such liabilities are provisionally alleged against the petitioner, in pursuance of Ext.P5 judgment. The authorities have not supplied necessary documents on the basis of which they have come to the conclusion for such liabilities are subsisting against the petitioner. Merely by calling the petitioner for a hearing can at best be to termed as purported compliance of the directions in Ext.P5 judgment. When various large amounts of liabilities as in Ext.P8 are alleged against the pensioner and that too, non-adjustment of accounts, certainly elementary principles of fairness and reasonableness required that all the details of the same are given in advance to the petitioner along with the materials on the basis of which such liabilities are alleged. The petitioner should have been allowed to peruse through all such records before a decision is taken as per Ext.P8. That is not seen done. For this reason alone, the exercise of the power to fix liability as per Ext.P8 is plainly unreasonable and improper, and amounts to violation of principles of fairness and natural justice. This court has no hesitation to hold that exercise or power by the 2nd respondent is unreasonable and ultra vires due to the above said aspects. It is to be seen that judicial review is primarily aimed at decision making process rather than the decision itself. Due to the above said aspects, it is only to be held that the decision making process that led to the impugned order as per Ext.P8 is nothing but unreasonable, improper and unfair and hence the exercise of power is ultra vires.
8. Now it has to be examined whether all relevant aspects have been duly taken into account by the 2nd respondent before arriving at the impugned decision as per Ext.P8 and also as to whether the irrelevant aspects have been totally eschewed by the decision maker. It is contended by the petitioner that item Nos.1, 2 and 3 of the amounts tabulated in page 2 of Ext.P8 are fully covered and accounted by Ext.P9 official proceedings of the 3rd respondent, which is given at page 62 of the paper book. Ext.P9 is the photocopy of the official file notes and proceedings of the 3rd respondent-Thrissur Municipal Corporation. It is stated in Ext.P9 that from the Nehru Rozgar Yojana (NRY) funds a total amount of Rs. 1,50,000/- has been given as advance to the petitioner for the above said works and that the petitioner has expended a total amount of Rs. 1,68,920/-in this regard and that the said amount of Rs. 1,68,920/- has been authorized by the Municipal Council. The petitioner has produced vouchers for Rs. 1,68,920/- for the above said works and it is stated in Ext.P9 that for payment of the balance amount of Rs. 18,920/- to the petitioner the file has to be sent. Apart from the fact that it is not stated anywhere in Ext.P8 as to the materials based on which the amounts shown as item Nos.1, 2 and 3 in page 3 of Ext.P8 has been arrived at, the crucial aspects of the petitioner's rebuttal on the same on the basis of the above said aspects discernible from Ext.P9 file proceedings of the respondent Corporation has not been adverted to anywhere by the 2nd respondent in the impugned Ext.P8. Such non-consideration of crucial relevant aspects would amount to vitiating the decision. It is the case of the petitioner that if Ext.P9 has been properly taken into account by the 2nd respondent, then he would have convinced that the liabilities alleged as per items 1, 2 and 3 of Ext.P8 are non- existing as the said amounts are part of the larger amounts covered by Ext.P9. It is clear from Ext.P9, which is the official proceedings of the 3rd respondent, that the petitioner has duly produced vouchers for the total expended amount of Rs. 1,68,920/-. It is also evident from Ext.P9 that the Council of the 3rd respondent had approved the expending of the amount of Rs.1,68,920/- by the petitioner and then all what remained was payment of the balance amount of Rs.18,920/- to the petitioner, as only Rs. 1,50,000/- was entrusted to him. Since these crucial and relevant aspects have not been adverted or considered anywhere in Ext.P8 by the 2nd respondent, the impugned action is vitiated by non-consideration of relevant aspects. Moreover, the 2nd respondent, who has taken the impugned decision as per Ext.P8, has not chosen to file any counter affidavit controverting the averments and contentions of the petitioner based on Ext.P9. The 3rd respondent has not in any way effectively controverted the above said averments and contentions of the petitioner based on Ext.P9, in the counter affidavit filed by the 3rd respondent.
9. As regards the amounts shown in item No.4 of Ext.P8, it is to be noted that the same is in respect of the amount expended towards the works done by the petitioner for the respondent Municipality in relation to the Prime Minister's visit during that time. Ext.P4 is the copy of the office note proceedings of the 3rd respondent-Thrissur Corporation, wherein it is, inter alia, shown that an amount of Rs.15,000/- was given as advance to the petitioner and that he had to totally expend an amount of Rs. 18,631/- towards the works done under him in that regard and that the balance amount of Rs.3,361/- is to be refunded to the petitioner as the total amount advanced to him was only Rs.15,000/- and that the above said advance amount of Rs. 15,000/- can be adjusted in this regard and that for further action, the file is being sent to the higher authority. As regards the amounts of Rs.36,320/- shown in item No.8 of Ext.P8, it is stated by the petitioner that it was the amounts expended by him for purchase of the tar drums for the 3rd respondent Corporation from the Kerala State Road Transport Corporation and that he had given all the bills and vouchers in that regard to the 3rd respondent and that in spite of repeated request, the same was not traced out and examined by the officials of the 3rd respondent and that he therefore made a request to the KSRTC to examine their records and then certify about the said amount paid by the petitioner to the KSRTC. In this regard, he has produced Ext.P11, wherein the receipt has been endorsed by the KSRTC stating that an amount of Rs. 28,188/- plus sales tax at the rate of 4% on costs plus A.S.T. plus 10% ST of 300 numbers of empty engine oil barrel by cash receipt No.AC 092624 dated 11.4.1997 has been received on behalf of the Thrissur Municipality, etc. These crucial and relevant aspects based on Exts.P4 and P11 are not even adverted to and considered anywhere in Ext.P8. These averments of the petitioner based on Exts.P4 and P11 have not been controverted either by the 2nd respondent or by the the 3rd respondent in their pleadings. Since these relevant aspects have not been take into account, the decision making process in this regard is vitiated by non-consideration of the relevant aspects, which renders the impugned action unlawful and ultra vires. If these documents have been taken into account, then it is only reasonable to infer that the respondents would have been convinced that there were no liabilities subsisting against the petitioner in that regard.
10. Thus the decision making process that led to the impugned Ext.P8 is vitiated by non-consideration of crucial relevant aspects as per Exts.P9, P4 and P11, etc. and also by taking into account irrelevant considerations. As regards the amounts shown as Item Nos.5, 6 and 7, the 2nd respondent himself has stated in Ext.P8 that those amounts cannot be attributed as liabilities against the petitioner.
11. It is also to be noted that the respondents have no consistent case even as against the amounts alleged by them as liabilities against the petitioner. In Exts.P2 and P6, the amount alleged is Rs. 2,55,820/-. In Ext.P5 the amount alleged is Rs. 2,25,820/-.
12. In Ext.P8 the amount alleged is Rs. 1,50,820/-. It is evident from a mere reading of Ext.P8 that the amounts to the tune of Rs. 1,05,000/- alleged earlier against the petitioner was without any basis and without verifying the basic records and files. Even after issuance of impugned Ext.P8 on 7.11.2000, and well after the expiry of the three year outer time limit, the 3rd respondent has now alleged in paragraph 9 of their counter affidavit dated 26.10.2006 that a further amount of Rs. 1,30,820/- is still pending adjustment, etc. This clearly shows that there has been no careful verification of all relevant records in the custody of the 3rd respondent before alleging liabilities against the petitioner.
13. As the impugned decision making process, which led to Ext.P8, is vitiated by non-consideration of relevant aspects, the impugned order is ultra vires and unenforceable and cannot said to have been effected on the basis of reasonable and fair exercise of power. Therefore, this Court is of the considered opinion that the impugned Ext.P8 order is liable to be set aside. Accordingly, the impugned Ext.P8 order is set aside.
14. The petitioner retired as early as on 30.1.1999 and therefore the three year outer time limit prescribed in Note 2 to Rule 3 Part III KSR has expired long ago on 30.1.2002. Therefore, the respondents cannot now fasten any liability against the petitioner on the basis of Notes 2 and 3 to Rule 3 Part III KSR. Therefore, there is no question of remitting the matter back to the 2nd respondent. This Court has considered the contentions of the petitioner based on Exts.P9, P4 and P11 not only to examine the contention of non- consideration of relevant aspects, but also to examine the bonafides of the case of the petitioner and to decide whether discretionary jurisdiction under Article 226 of the Constitution should be exercised in favour of the petitioner in the facts and circumstances of this case. As the liabilities assessed in Ext.P8 are unenforceable, the respondents are legally bound to forthwith disburse to the petitioner Rs. 1,50,820/- withheld from the DCRG of the petitioner.
15. The petitioner has also claimed for grant of interest at the rate of 24% not only on the withheld amount of Rs. 1,50,820/- but also on the delayed payment of the amount earlier paid consequent to Ext.P2. The Apex Court in the case of S.R.Bhanrale v. Union of India and others reported in (1996)10 SCC 172, has observed that it is highly improper on the part of the governmental authorities to plead the bar of limitation against the claims of retired Government servants for payment of withheld terminal benefits and related benefits like encashment of earned leave, increment arrears, special pay due, leave travel concession arrears etc., especially when the Government had defaulted in making payments promptly when the same fell due and that it is a sad commentary of affairs for making the pensioners run from pillar to posts to get their legitimate dues after serving the Government for long periods and it was specifically held that, had the amounts which was paid due to intervention of the court, been paid to the retired employee at the appropriate time, he would have been saved from a lot of unnecessary harassment and could have earned interest on that amount and could have utilised that amounts for other purposes and accordingly, directed the authorities concerned to pay a lumpsum amount towards interest compensation, litigation expenses etc. for the amounts wrongly withheld from the pensioner. Further, in the case of S.K.Dua v. State of Haryana and another reported in (2008)3 SCC 44, in para 14, the Apex Court held in that case concerning delayed payment of retiral benefits after four years from the retirement, that the grievance of the petitioner regarding payment of interest is well-founded and that if statutory rules are occupying the field, the retired Government servant could claim payment of interest on such delayed payment relying on such rules and if there are administrative instructions, guidelines or norms prescribed for the purpose, he could claim the benefit of interest on such basis, but that even in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest by virtue of the provisions under Part III of the Constitution of India relying on Articles 14, 19 and 21 of the Constitution and that the aspect that retiral benefits are not in the nature “bounty”, is the basis for the claim of interest on the delayed payment of retiral benefits. Accordingly, the Apex Court held therein that the High Court as per the judgment impugned therein, was not right in dismissing the Writ Petition on the ground that, since the Writ Petitioner sought only payment of interest on the delayed payment of retiral benefits, the matter is to be relegated to the civil court. The Apex Court held that the High Court ought to have entered into the merits of the matter on the basis of the records and that the Writ Petition should have been decided on merits. In the instant case, the petitioner retired from service on 30.1.1999. The one year period for payment of DCRG as envisaged in Rule 116, Ruling No.5 of Part III KSR has expired on 30.1.2000. This Court as per Ext.P5 judgment, rendered on 29.6.2000, directed the respondents to complete the liability fixation process within four months and specifically held that if such action is not duly taken, then the person, who is responsible for the delay will be liable to pay interest to the petitioner from the date of expiry of the said four months. The time limit fixed in Ext.P5 judgment dated 29.6.2000 was upto 29.10.2000. It has already been held that the impugned action purportedly taken for liability fixation process as per Ext.P8 is ultra vires and unlawful. The three year outer time limit for lawfully fixing the liabilities as per Note 3 to Rule 3 Part III KSR has expired on 30.1.2002. In the facts and circumstances of this case, this Court is convinced that discretionary jurisdiction should be exercised in favour of the petitioner not only for direction to pay the withheld amounts from the DCRG, but also on his claim for interest on amounts withheld for a long time. Though the respondents were duly alerted by this Court as per Ext.P5 judgment about the liability to pay interest and though payment of interest could be considered for the period after four months of Ext.P5 judgment dated 29.6.2000, viz., for the period form 29.10.2000, this Court is not inclined to do so. As the statutory three year outer time limit in Note 3 to Rule 3 Part III KSR was subsisting upto 30.1.2002, this Court is inclined to award interest on the amount of Rs. 1,50,820/- withheld from the DCRG for the period immediately after 30.1.2002 onwards. Accordingly, it is directed that the 3rd respondent shall pay interest to the petitioner on the above said amount of Rs. 1,50,820/- withheld from the DCRG at the rate of 6% per annum for the period from 31.1.2002 to 31.1.2005 and further at the rate of 7% per annum for the period from 1.2.2005 upto 31.1.2008 and interest at the rate of 8% per annum for the period from 1.2.2008 upto the date of actual payment of the above said amount. However, it is ordered that no interest can be awarded as per prayer No.(ii) of the Original Petition for the delayed payment of the amounts mentioned therein, as the same has been paid well before the expiry of the time limit prescribed in KSR.
16. Accordingly, it is directed that the 3rd respondent or the competent authority among the respondents, shall forthwith pay the amount of Rs. 1,50,820/- withheld from the DCRG to the petitioner as expeditiously as possible, at any rate, within two months from the date of production of the certified copy of this judgment. Interest on the above said amount should also be paid in the manner indicated in the previous paragraph. It is further ordered that in case the amount of Rs.1,50,820/- is not paid by the respondents to the petitioner within the aforesaid period of two months, then the aforesaid amount of Rs. 1,50,820/- shall carry interest at the rate of 8% per annum from 31.1.2002 upto the date of this judgment, viz. 26.6.2014 and further at the rate of 10% per annum from 27.6.2014 upto the date of actual payment of the amount.
The Original Petition stands allowed, to the extent indicated above. There will be no order as to costs.
Sd/-
sdk+ ALEXANDER THOMAS , JUDGE ///True copy/// P.S. to Judge ALEXANDER THOMAS, J.
================== O.P.No. 6373 of 2001-H ================== J U D G M E N T 26th June, 2014