Partly allowed

Mercy Suja P.A v. the State of Kerala

Kerala HC16 Sept 2020WP(C)/11728/2020

Case brief

AI extract

What is this about?

The court directed the 8th respondent to verify the petitioner's discharge of specific liabilities. Upon submission of proof, the 5th respondent must issue a certificate enabling the Sub-Treasury to disburse the admitted DCRG within one month.

What did the court decide?

Direction to 8th respondent to forward verification documents; 5th respondent to issue LC/NLC and 3rd respondent to disburse DCRG within one month upon receipt.

Mercy Suja P.A Vs the State of Kerala — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.S.DIAS

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WEDNESDAY, THE 16TH DAY OF SEPTEMBER 2020 / 25TH BHADRA, 1942

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WP(C).No.11728 OF 2020(M)

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PETITIONER/S:

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MERCY SUJA P.A LPSA SEL.GR.(RETIRED VOLUNTARILY), STO.ANTONY'S L.P.SCHOOL, SAUDI, MUNDAMVELI.P.O., KOCHI TALUK, ERNAKULAM DISTRICT, PIN-688507(MERCY SUJA.P.A, W/O.LATE O.G.SANTHOSH MATHEW, AGED 50, OLIVE HEIGHTS, FALT NO.16B, K.P.VALLON ROAD, KADAVANTHRA, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN682020, ODATHAKKAL HOUSE, 1067, ST.JOHN PATTOM, ERNAKULAM, KERALA PIN-682001

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BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SMT. KEERTHI B. CHANDRAN SHRI.VIJAYAN PILLAI P.K.

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM DISTRICT, PIN-695001

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2 THE DIRECTOR OF GENERAL EDUCATION DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHPURAM, THIRUVANANTAHPURAM DISTRICT, PIN 695014.

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3 THE DEPUTY DIRECTOR OF EDUCATION CIVIL STATION, KAKKANAD, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN-682030

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4 THE DISTRICT EDUCATION OFFICER, ERANAKULAM, NEAR DISTRICT COURT COMPLEX, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN682011

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5 THE ASSISTANT EDUCATION OFFICER, GOVERNMENT DEPARTMENTS,MATTANCHERRY, ERNAKULAM DISTRICT, PIN-682001

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6 THE ACCOUNTANT GENERAL OFFICE OF THE ACCOUNTANT GENERAL, PALAYAM, THIRUVANANTHAPURAM DISTRICT, PIN-695001

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7 THEMANAGER, THE CORPORATE MANAGEMENT OF SCHOOLS, DIOCESE OF ALLAPPEY, LEO XIII CAMPUS, ALAPPUZHA DISTRICT, PIN-688004

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8 THE HEAD MASTER, ST.ANTONY'S LP SCHOOL, SAUDI, MUNDAMVELI.P.O, KOCHI TALUK, ERNAKULAM DISTRICT, PIN-688507

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R1-6 BY GOVERNMENT PLEADER C K PRASAD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.11728 OF 2020

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JUDGMENT

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Dated this the 16^th day of September 2020

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The petitioner was working as Lower Primary School Assistant (Sel.Gr.) at different aided schools under the 7^th respondent Corporate Management during the period from 10.6.1994 to 30.9.2009.

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The petitioner had submitted an application for voluntary retirement on 30.9.2019. The 6^th respondentthe Accountant General approved the petitioner's length of total service as 25 years 3 months and 23 days and net qualifying service as 30 years 3 months and 23 days, for the purpose of pension. Thereafter, the 5^th respondent granted permission to the petitioner to retire voluntarily w.e.f 30.9.2019, as per Ext.P1, as provided under the Section V Rule 56, Part III of the Kerala Service Rules.

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Pursuant to Ext.P1, the petitioner submitted draft pension book, formal application for pension/commutation

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in Form 2A etc., before the 5^th respondent, for further proceedings. However, the respondents 1 to 6 have not finalized the proceedings or disbursed pension, gratuity, provident fund and other retiremental benefits to the petitioner.

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The petitioner is a widow. She has two children. Her older son is pursuing his higher studies in the United Kingdom. Her younger daughter is studying in a CBSE School. The petitioner has a dependent mother. The petitioner has to pay monthly rent of Rs.23,000/-. Her late husband, who was a businessman, had incurred huge liabilities, which has now devolved on the petitioner. The inordinate delay in disbursing retiremental benefits is causing prejudice to the petitioner. Hence, the petitioner seeks a direction to the respondents 1 to 6 to finalize the proceedings pursuant to Exts.P1 and P2 and disburse pension and other retiremental benefits to her.

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The 5^th respondent has filed a counter affidavit.

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It is contended that as per the Kerala Service Rules Part III Section V Rule 56, an employee who intends to retire voluntarily, has to give notice in writing to the appointing authority or the pension sanctioning authority at least three months before the proposed date. The petitioner had submitted the application for voluntarily retirement belatedly to the office of the 5^th respondent and the same was forwarded to the 6^th respondent. However, the petitioner was sanctioned to retire voluntarily from service w.e.f 30.9.2019. Several correspondences took place between the respondents in order to finalise the petitioner's pensionary benefits. The 7^th respondent-the Corporate Manager submitted Ext.R5(a) liability certificate stating that the petitioner has a liability of Rs.4,44,598.65/- as on 20.8.2019.

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During the online verification of the petitioner's pension papers, it was noted that there was a symbol of %20 in between the details given by the petitioner. The

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petitioner was not willing to submit the ratified online application and the other documents. She was also not willing to submit the liability particulars or the declaration for deducting the liability from the DCRG. In the meantime, the 3^rd respondent forwarded Ext.R5(b) letter dated 9.3.2020, directing the 5^th respondent to recover an amount of Rs.3,81,081/- from the pensionary benefits of the petitioner, since she had availed a personal loan from the Kerala State Financial Enterprises (KSFE) and has failed to discharge the loan amount. The petitioner's online proposal was received by the office of the 8^th respondent on 23.06.2020. The petitioner was informed on 24.6.2020 to submit the hard copy of the proposal for verification. Ext.P7 reveals that the petitioner submitted the pension proposal only on 26.6.2020. Hence, it is only due to non-cooperation of the petitioner that the delay has occurred. As per the proposal submitted by the petitioner, she is entitled to a

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pension of Rs.25,200/- per month and DCRG for Rs.4,62,601/-. At the same time, the petitioner has liability of Rs.4,44,599/- assessed by the 7^th respondent, as on the date of preliminary verification. In addition to the above liabilities, the petitioner has not refunded Rs.13,108/- towards the excess amount drawn on account of surrender of earned leave. The respondents have addressed the 8^th respondent to submit the details of settlement of the liabilities of the petitioner. The 8^th respondent by Ext.R5(c) has reported that only an amount of Rs.34,472/- is settled towards liability.

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The 5^th respondent has further contended that, it is the duty of the Pension Sanctioning Authority to verify and rectify the defects and forward the online application to the Accountant General for admission of pension along with the hard copies, the Service Book, identification particulars and other relevant documents.

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The petitioner has filed reply affidavit refuting

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WP(C).No.11728 OF 2020

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the allegations in the counter affidavit. According to the petitioner, it is only due to the delay caused by the 8^th respondent, that the proposal was not submitted on time. The petitioner applied for voluntary retirement for the specific purpose of discharging the liabilities of her late husband. It is, inter alia, contended that the liability to the tune of Rs.3,91,559/- is a personal loan which was availed by the petitioner from the KSFE not on the strength of a salary certificate issued by the 8^th respondent School. The loan was availed only in August, 2017 and the tenure of loan is till August, 2022. The default in payment of monthly installments to the KSFE was only due to the fact that the petitioner has no monthly income. The petitioner is prepared to regularise the loan with the KSFE. Hence, the writ petition may be allowed by directing the respondents 1 to 6 to disburse the pension and the pensionary benefits to the petitioner.

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Heard Dr.V.N.Sankarjee, the learned counsel

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WP(C).No.11728 OF 2020

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appearing for the petitioner and the learned Government Pleader appearing for the respondents 1 to 6. In view of the relief that I propose to pass, I have dispensed with notice to the respondents 7 and 8, as this judgment is not adverse to them.

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The learned counsel for the petitioner submitted that the petitioner had voluntarily retired on 30.9.2019, with the sole intention to discharge the liabilities of her late husband. However, even after the lapse of nearly one year, the respondents 1 to 6 have not paid the retiremental benefits legally due to her. The respondents 1 to 6 cannot deduct any amount from the DCRG, payable to the petitioner in view of Section 60(1) (g) of the Code of Civil Procedure read with Rule 124 of Chapter IX of Kerala Service Rules Part III. The petitioner had availed the loan from the KSFE on the basis of the guarantee of the petitioner's colleague. Therefore, no liability is cast on the Government, on the said loan.

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WP(C).No.11728 OF 2020

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Immediately, on getting the DCRG, the petitioner would regularise the loan account and start paying the monthly installments to the KSFE.

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The learned counsel further argued that the liability No.(i) shown in the counter affidavit payable to the Ernakulam District Co-operative Bank has already been discharged by the petitioner and the same is acknowledged by the 5^th respondent. Liability No.(ii) due to the Kerala State Co-operative Bank would be discharged on getting the admitted DCRG. Similarly, the petitioner would regularize the liability No.(iii) with the KSFE. With respect to liability No.(iv), the petitioner is prepared to pay off the amount due to the Government. Hence, the respondents 1 to 6 may be directed to pay the DCRG at the earliest. The learned counsel relied on the decisions of this Court in Leela Bhai.K.R V. Indian Overseas Bank, Kollam 2014(1)KHC 789 and Shine Varghese V. District superintendent of Police,

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Pathanamthitta 2013(1)KHC 741, to fortify his contentions that gratuity payable to an employee cannot be attached.

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The learned senior Government Pleader argued that the Accountant General has sanctioned the petitioner's pension on 13.8.2020. The retiremental benefits of the petitioner will be available on the software of the respondents 1 to 6, which can be verified by the petitioner. The liabilities/discharge of liabilities of the petitioner have to be duly intimated to the respondents 7 and 8, who in turn have to inform the 5^th respondent, the Assistant Educational Officer/Sanctioning Authority, who will have to verify the liabilities/ discharge of liabilities and then issue the Liability Certificate (LC)/Non-Liability Certificate (NLC). On production of the LC/NLC, the SubTreasury Officer will release the admitted DCRG to the petitioner. It is only due to the above administrative formalities, that there was delay in disbursing the

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petitioner's retiremental benefits.

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On an appreciation of the pleadings and materials on record, and after having heard the learned counsel for the petitioner and the learned 3 Senior Government Pleader, I find that the Government has already sanctioned the pension to the petitioner. All that remains to be paid is the DCRG to the petitioner.

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The 5th respondent has pointed out four

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liabilities, in the counter affidavit, which are as follows:-

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(i) The Ernakulam District Co-operative Bank Ltd, Mattanchery Branch 27,043.65

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(ii) The Kerala State Co-operative Bank Ltd., Ernakulam Branch 3,83,083.00

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(iii) KSFE Ltd, Chellanam Branch 3,91,559.00

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(iv) Excess amount drawn due to surrender of Earned Leave in connection with census duty 2010 13,108.00

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____________ Total Rs.8,14,793.65

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____________ 15. The petitioner has specifically contented that she

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has already discharged the liability No.(i) and is prepared

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to produce the document to substantiate the discharge. With respect to the liability No.(ii), the petitioner is prepared to pay off the amount immediately on receipt of the admitted DCRG. With respect to the liability No.(iii), admittedly the petitioner had not availed the loan by producing her salary certificate, but by offering a guarantor, who is a Government Servant. Therefore, no liability is cast on the Government due to the said loan. Moreover, the petitioner is prepared to regularise the loan account and promptly pay the future loan installments to the KSFE, on getting the DCRG. The petitioner has also undertaken to pay off the liability No. (iv) of Rs.13,108/-.

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In the above factual situation, I hold that on the petitioner furnishing the discharge certificate in respect of the liability No.(i), a regularization letter from the KSFE in respect of the liability No.(iii) and the petitioner paying the liability No.(iv), the 8^th respondent shall

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forward the documents/discharge/regularisation letter to the 5^th respondent, who after examining the same documents and keeping in mind the provisions of Section 60 of the Code of Civil Proedure read with Rule 124 Chapter IX of the KSR Part III, shall issue LC/NLC, in accordance with law, to the competent Sub-Treasury Office, who shall disburse the admitted DCRG payable to the petitioner, as expeditiously as possible and at any rate within a period of one month from the date of submitting the LC/NLC certificate. It is made clear that, the petitioner's right to challenge the LC/NLC issued by the 5^th respondent is left open to be agitated in appropriate proceedings before the Competent Forum.

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This writ petition is ordered accordingly.

Sd/-

C.S.DIAS

JUDGE

kkj

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WP(C).No.11728 OF 2020

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE 8TH RESPONDENT LETTER NO.37/19-20 DATED 6.12.2019 TOGETHER WITH COPY OF THE ORDER NO.B-1974/19 DATED 16.11.2019 ISSUED BY THE 5TH RESPONDENT (WITH ENGLISH TRANSLATION)

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EXHIBIT P2 TRUE COPY OF THE DRAFT PENSION BOOK, FORMAL APPLICATION FOR PENSION/COMMUTATION IN FORM 2A, DETAILS OF FAMILY IN FORM 5A, NOMINATION FOR DCR GRATUITY, NOMINATION FOR THE LIFE TIME ARREARS OF PENSION IN FORM A, NOMINATION IN FORM 3, DECLARATION REGARDING LONG TERM ADVANCE, DECLARATION UNDER RULE 117A AND FORM NO.2B PARTICULARS ALL DATED 17.12.2019

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R5(A) THE COPY OF LETTER OF CORPORATE MANAGER DATED 20.08.2019.

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EXHIBIT R5(B) TRUE COPY OF LETTER NO.D4/1666/2020 DATED 09.03.2020.

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EXHIBIT R5(C) TRUE COPY OF LETTER DATED 13.07.2020 OF HEADMASTER.

Mercy Suja P.A v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Mercy Suja P.A v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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