The petitioner retired from service of the 1st respondent Board with effect from 31/12/2004, while working as Assistant Commissioner/Administrative Officer at Aranmula Devaswom. Despite his retirement in December 2004, pensionary benefits due to him were disbursed only in February 2007. But eligible amounts of gratuity as well as last month pay were not paid to him despite Ext.P2 to P5 representations submitted by the petitioner. Hence this writ petition is filed seeking direction for payment of those benefits. 2. When the writ petition came up for consideration before this court on 28/08/2009, an interim direction was issued to make payment of the amount of DCRG admitted by the 1st respondent. It is evident from counter affidavit of the 2nd respondent that a total amount of Rs.1,35,622.80/- was disbursed towards DCRG due to the petitioner based on the interim order, after withholding an amount of Rs.30,356.20/-, on 28/09/2009. According to the respondents the amount withheld is the liability fixed against the petitioner under various heads with respect to loss caused to the Devaswom when the petitioner had worked at different stations.
3. Learned counsel for the petitioner contended that, the forfeiture of DCRG cannot be sustained in view of Rule 116(5) of Part III of KSR. It is pointed out that at the time of retirement of the petitioner on 31/12/2004, there was no departmental or judicial proceedings pending against him. Hence it is contended that going by Rule 116(5) no liability can be fixed or recovery can be effected against him out of the amount of DCRG due, after a period of one year from the date of retirement. The petitioner relies on a Division Bench decision of this court in Sugathan V.Cochin Devaswom Board [2005(1) KLT 46].
Referring to Rule 116(5), it was held that, liability which could not be assessed and fixed before the retirement should be assessed and adjusted as recoverable dues within a period of one year from the date of retirement. On failure, the amount of DCRG withheld is liable to be released. Even though no departmental proceedings as contemplated under Rule 3(b) is necessary for withholding of DCRG, such liability can be fixed only after giving opportunity to the employee concerned. But such fixation of liability cannot be done beyond three years after the retirement. It is further found that, if the liability could not be assessed before retirement it should be assessed and adjusted from recoverable dues, within a period of one year from the retirement. If the liability could not be assessed and adjusted within one year, the DCRG has to be released. It was pointed out that, the provisions enable the Government to take disciplinary action against the employee who is responsible for such failure. Hence it is observed that if action under Rule 3 is not possible within the time limit prescribed, the retired employee can be proceeded only in a civil suit for recovery of the pecuniary loss caused.
4. Contention of the 2nd respondent is that the delay occurred in fixation of liability is partly due to latches on the part of the petitioner himself. It is contended that service records were made available for processing of terminal benefits, only on a belated stage. It is further contended that, even the claim with respect to payment of DCRG and other benefits were raised by the petitioner only during the year 2007, despite his retirement in December 2004. However, provisions contained in Rule 116(5) restrain the respondent Board from recovering any amount out of DCRG due to the petitioner, based on any fixation of liability, after a period of one year from the date of retirement. Therefore it is evident that the petitioner is entitled to get the full amount of DCRG disbursed, subject to liberty reserved for the respondent to proceed against the petitioner for recovery of the loss by recourse to other methods permissible under law.
5. Learned counsel for the petitioner contended that, since there occurred considerable delay even in payment of the admitted amount, the petitioner is entitled to get interest on delayed payment. He had placed reliance on a decision of the Honourable Supreme Court in S.K.DUA V. State of Haryana and Another[(2008) 3 SCC 44]. It is held therein that, if there are statutory rules occupying the field the party is entitled to claim payment of interest relying on such rules. But even in the absence of statutory rules, administrative instructions or guidelines can enable the employee to claim interest on the basis of Article 14, 19 and 21 of the Constitution. But in the case at hand, as noticed above, the request for payment of DCRG from the side of the petitioner was made only during the year 2007. Admittedly the pensionary benefits of the petitioner was paid after settlement during the year 2007. Of course, as pointed out by the learned counsel for the petitioner, settlement and payment of the DCRG is a statutory obligation on the part of the respondents. However, it is noticed that the petitioner was paid the admitted amount immediately after filing of the writ petition on the basis of undertaking made before this court. Hence, on the facts of the case at hand, this court do not find it a fit case where direction for payment of interest is warranted.
6. Under the above mentioned circumstances this writ petition is disposed of by directing the respondents to make payment of the withheld amount of DCRG to the tune of Rs. 30,356.20/- to the petitioner at the earliest, at any rate within a period of one month from the date of receipt of copy of this judgment.
It is made clear that the above direction will not stand in the way of the respondents initiating any appropriate legal steps as permissible under law for realisation of the loss if any caused by the petitioner.
Sd/-C.K. ABDUL REHIM JUDGE MJL