V. Gopinathan Nair vs State of Kerala and Others

K. Sreedharan, J.—When C.M.P. 22393/1991 came up for orders, learned Counsel appearing on either side wanted the Original Petition itself heard and disposed of. Accordingly, I heard them at lengthy I am disposing of the Original Petition.

Petitioner retired from service on 31st August 1989, while working as Municipal Commissioner in Mavelikkara Municipality. He had worked as Municipal Commissioner in Cherthala, Vadakara, Kunnamkulam, Angamali, Ponnani and Mavelikkara Municipalities. He filed necessary papers for getting the pensionary benefits on 26th July 1988, an year before his retirement. Second Respondent, as per Exhibit P-1 dated 30th November 1988, sanctioned pensionary benefits subject to production of Last Pay Certificate and Non Liability Certificate at Sub Treasury, Vellayambalam, Thiruvananthapuram. In reply to Petitioner''s request for issue of Non Liability Certificate, second Respondent stated that there are liabilities of Rs. 200 and Rs. 500 towards Travelling Allowance advances drawn by the Petitioner from Kunnamkulam and Vadakara Municipalities respectively. Petitioner gave consent to deduct the said amount of Rs. 700 from his Death-cum-Retirement Gratuity. On account of the delay in issuing Non Liability Certificate, Petitioner requested the second Respondent to let him know whether any surety bond is to be executed for the release of the amount. Thereupon, by Exhibit P-4 letter dated 8th February 1990, Petitioner was called upon to produce a surety bond. In compliance with that direction, Petitioner submitted surety bond dated 23rd April 1990 with two sureties, one a permanent officer of the State Government; and the other an officer of a State Government Undertaking, Kerala State Industrial Products Trading Corporation. On receipt of the bond, second Respondent informed the Petitioner that the said bond is not proper and a fresh bond should be produced. Petitioner expressed his inability to produce a fresh bond. Continued representations for the issue of Non Liability Certificate did not evoke any response. Hence this Original Petition.

On behalf of the second Respondent, a detailed statement has been filed. The contentions taken therein are to the following effect.- Though as per Exhibit P-1 Gratuity has been sanctioned, it can be paid to the Petitioner only after production of the Non Liability Certificate. On 14th January 1992, Non Liability Certificate has been issued. On the basis of the above certificate, Petitioner can receive Death-Cum-Retirement Gratuity from the Treasury, less the amount shown in the certificate. Petitioner worked in various Municipalities. Second Respondent can issue Non Liability Certificate only after receipt of those Non Liability Certificate from the Commissioners of the Municipalities. Commissioners of Kunnamkulam and Vadakara informed the liabilities outstanding against the Petitioner as Rs. 200 and Rs. 500 respectively. Commissioner, Cherthala reported that there is no liability outstanding against the Petitioner. But, Municipal Commissioners of Angamaly, Ponnani and Mavelikkara reported that audit of accounts was not over and hence the liability could not be assessed. In the absence of the Non Liability Certificate from those Municipalities, second Respondent could not issue the Non Liability Certificate. Death-Cum-Retirement Gratuity has been released after deducting ten per cent towards the liability that may be found due. Now Petitioner can receive the Death-Cum-Retirement Gratuity from the Treasury as per the certificate dated 14th January 1992.

The certificate dated 14th January 1992 issued by the second Respondent is marked as Exhibit P-9. It shows that ten per cent of the Death-Cum-Retirement Gratuity, amounting to Rs. 2,829, has been kept under Suspense Account. A sum of Rs. 200 has been deducted as the liability towards Kunnamkulam Municipality. A further sum of Rs. 500 towards the liability due to Vadakara Municipality has also been deducted. This Non Liability Certificate has not been accepted by the Accountant General, as per his communication dated 11th February 1992, a copy of which is marked as Exhibit P-10. The defects noted therein are the P.D. Accounts of Kunnamkulam Municipality and Vadakara Municipality are not stated in Exhibit P-9. Only after, knowing those numbers, can the balance be disbursed, according to the Accountant General, to the Petitioner.

It is common case that Petitioner retired from service on 31st August 1989. He had served various Municipalities. Among them, Municipalities of Kunnamkulam and Vadakara informed the liabilities outstanding against the Petitioner. Those liabilities amounted to Rs. 700. Petitioner agreed to have that amount deducted from the Death-Cum-Retirement Gratuity due to him. The Commissioner of Cherthala Municipality informed the second Respondent that no liability is outstanding against the Petitioner. In the case of Municipalities of Angamaly, Ponnani and Mavelikkara, Commissioners reported that since audit has not been completed, the liability cannot be assessed. In such a situation, second Respondent ought to have released the Death-Cum-Retirement Gratuity either on taking a security bond from the Petitioner or by retaining 10 per cent of the amount of Death-Cum-Retirement Gratuity due to the Petitioner. This is made clear by the Rulings to Rule 116 of Part III, Kerala Service Rules. Purporting to be in exercise of this power, second Respondent called upon the Petitioner to produce surety bond, by Exhibit P-4 communication dated 8th February 1990. In compliance with that direction, Petitioner produced a surety bond. One of the sureties happened to be an employee of a Public Sector Undertaking. Consequently, by Exhibit P-5 letter dated 9th May 1990, the bond was rejected. In such a Situation when the liability of the Petitioner could not be ascertained, second Respondent ought to have released the Death-Cum-Retirement Gratuity after withholding 10 per cent of it, as provided by ruling No. 3. This course was not adopted by the second Respondent either. He was delaying the issue of Non Liability Certificate. When he issued the so-called Non Liability Certificate dated 14th January 1992, he withheld 10 per cent of the Death-Cum-Retirement Gratuity amount as also accepted the surety bond furnished by the Petitioner. This procedure is clearly against the provisions contained in Part III Kerala Service Rules. When the Municipal Commissioners of Angamaly, Ponnani and Mavelikkara reported that they are not in a position to furnish the liabilities outstanding against the Petitioner on account of the absence of audit report, second Respondent ought to have taken urgent steps to release the Death-Cum-Retirement Gratuity due to the Petitioner, either on the basis of the surety bond filed by him or after withholding 10 per cent of the Death-Cum-Retirement Gratuity. Instead of doing that, he has accepted the surety bond and retained 10 per cent of the Death-Cum-Retirement Gratuity, after a lapse of more than 2 years and 5 months from the date of retirement of the Petitioner. At this juncture, it is worthwhile to note Ruling No. 5 under Rule 116 of Part III Kerala Service Rules. For a proper understanding of that Ruling, I read the same:

In all cases where the liabilities could not be assessed and fixed before retirement of the 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. If in any case the liability could not be assessed and adjusted within one year, the amount withheld from the death-cum-retirement gratuity or the surety bond or the cash deposit accepted under paragraph (1) or (3) above will be released. Disciplinary action shall be taken against the employees responsible for the failure to assess and adjust the liabilities within the prescribed period.

From this, it is evident that an officer, who has retired, should be given the Death-Cum-Retirement Gratuity at the earliest opportunity. If the dues recoverable from him are not assessed within a period of one year from the date of the retirement, the amount withheld from the Death-Cum-Retirement Gratuity or the surety bond should be released. Any failure in this regard should be meted out with disciplinary action. In the case on hand, the second Respondent not only did not comply with the provisions contained in the above Ruling, but he showed scan, respect to that provision by acting against it. He accepted surety bond as also retained 10 per cent of the Death-Cum-Retirement Gratuity after a lapse of more than 2 years and 5 months from the date of retirement of the Petitioner. On the expiry of one year from the date of retirement, if the surety bond or the cash deposit had not been. released, he would have been subjected himself to disciplinary action. In ignorance of that provision, he issued Exhibit P-9 certificate, that too, with defects, so that the Accountant General could not disburse the amount. In such situation, I direct the first Respondent to pay the entire amount due to the Petitioner by way of Death-Cum-Retirement Gratuity with interest at the rate of 12 per cent per annum from 1st November 1989 till the date of actual payment. After paying the amount together with interest, as stated above, first Respondent should take effective steps to recover the interest portion from those officers who were responsible for delaying the disbursement of the Death-Cum-Retirement Gratuity due to the Petitioner. First Respondent should also take disciplinary action against the employees responsible for the failure to assess and adjust the liabilities as provided in Ruling-5 to Rule 116 of Part III Kerala Service Rules.

Original Petition is allowed in the above terms.