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2000 DIGILAW 684 (KER)

Uthaman v. K. S. R. T. C

2000-12-21

K.A.ABDUL GAFOOR

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Judgment :- K.A. Abdul Gafoor, J. The petitioners in these Original petitions were employees of the Kerala State Road Transport Corporation. They have not been paid the retiral benefits due to them. That is why they have approached this Court seeking directions for payment of the retiral benefits. They submitted that even though the monthly pension and DCRG have been sanctioned only 50% is directed to be paid. The balance 50% is directed to be paid in four equal annual instalments. This is illegal. The entire amount of retirement benefits shall be paid in lumpsum. During the last few months, I noticed that several cases are being filed in this Court by retired employees of the K.S.R.T.C. seeking payment of retirement benefits. Even admittedly 50% of the amount also was not being paid to the employees. Every day atleast half a dozen cases of the same nature were coming up for admission and similar directions were used to be issued in all the cases directing payment within three months. This became a prevalent practice. Then I directed the Managing Director of the K.S.R.T.C. to file an, affidavit stating how many retired employees had been paid their retirement benefits without the intervention of the Court. From the details collected from the Registry I could notice that from 1.4.2000 to 16.11.2000 several cases have been filed. Out of that, 100 cases have already been disposed of and 121 cases are still pending. That means, 221 cases had been filed during the aforesaid period regarding payment of retirement benefits concerning a single establishment alone. In several of these cases there are more than one petitioner. The affidavit filed by the Managing Director shows that 1144 employees retired during the period from 1.4.2000 to 31.10.2000. Out of that, 53 persons were given pensionary benefits without the intervention of the court. That means, 1091 persons were not paid the retiral benefits due to them by the respondents. As mentioned above, 221 cases have been filed during the said period which includes the persons retired from 1.4.2000 and in several petitions there are more than one petitioner. Out of that, 53 persons were given pensionary benefits without the intervention of the court. That means, 1091 persons were not paid the retiral benefits due to them by the respondents. As mentioned above, 221 cases have been filed during the said period which includes the persons retired from 1.4.2000 and in several petitions there are more than one petitioner. Thus, whoever had not been paid their retirement benefits during the last six months have approached this Court, except the fortunate 53 who had been satisfied by the Management of the K.S.R.T.C. It is pathetic situation that retired employees after serving their whole man life in the Corporation have to stand with begging bowl before the respondents seeking payment of their entitlement and have to finally turn to litigation spending large amounts to get their entitlement. It is submitted that the Corporation is unable to find fund because of its present financial situation to pay the retiral benefits. That shall not be the stand of the Corporation which has been established long ago. Provident fund amount is the amount collected from the employees. That has to be really accounted and disbursed. No employer can say that no fund is available to pay the welfare fund and provident fund which are the amounts collected from the employees from their monthly salary. It is incumbent on every management to set apart fund every year to pay off the dues towards retiral benefits. The quantum of the fund necessary can be easily ascertained as the Corporation knows the number of employees retiring every month and the extend of their eligibility. The K.S.R.T.C. cannot say that it has no fund to disburse the retiral benefits. This is a matter which should engage the attention of the Government which constituted the Corporation. It is matter regarding policy necessitating strict directions to be issued in terms of S. 34 of the Road Transport Corporation Act. Accordingly, I directed the Government to bestow its attention urgently to this aspect and to issue necessary directions to redress the grievances of the retired employees so that they shall not be compelled to approach Court to get their entitlement on retirement.As mentioned above, there is a contention that because of the paucity of fund the Corporation is unable to pay off DCRG, commuted value of pension, provident fund, welfare fund etc. So 50% of the amount be paid immediately and the balance in instalments. The concept of DCRG is to pay the lumpsum amount either to the dependent of those who died in harness or to the retiring employees. It cannot be delayed or directed to be paid in instalments. Really, it has to be paid on the date of retirement itself. As it is known well to the employer that an employee will retire on a particular day, the necessary amount can be made ready to be paid on his retirement. At any rate, it should be paid within three months of the incumbents retirement. Majority of the retired employees are conductors, drivers or mechanic in which case there can arise no liability or a huge liability. Therefore, there may not be any proceeding pending against them, to delay payment. Even if there is liability the balance shall be paid without delay. To make such payment the Corporation cannot say that they will discharge the liability in instalments. The meaning of commuted value of pension is to pay the amount in lumpsum towards pension payable in future instalments. That is why it is called commuted value of pension. When that commuted value of pension is ordered to be paid in instalments, then there is nothing to be called commuted. Such direction is therefore totally arbitrary. Moreover, the Corporation is following the rules in Kerala Service Rules for reckoning and payment of these benefits : The rules do not allow the employer to pay off such dues in instalments. Those are, the dues to be payable in lumpsum to the retired employees concerned. This is evident from Clause XXIII of Ext. R1(a) that "pension will be paid as per the provisions of Kerala Service Rules followed by the Government from time to time". As per the service rules, the gratuity is to be paid in lumpsum.It is submitted that Government had issued Ext. R1(d) order to pay residuary gratuity and the commuted value of pension to the employees who had retired before the actual introduction of pay revision. Kerala State Road Transport Corporation is following that order and had issued Ext. R1(f) to pay retirement benefits in instalments. Ext. R1(d) cannot be applied in the case on hand for several reasons. First is that Ext. Kerala State Road Transport Corporation is following that order and had issued Ext. R1(f) to pay retirement benefits in instalments. Ext. R1(d) cannot be applied in the case on hand for several reasons. First is that Ext. R1(d) covers only the persons who retired before the issuance of pay revision order and is applicable only to the residuary DCRG and commuted value of pension payable to them because of the retrospectivity of pay revision order. What is attempted in these cases by the K.S.R.T.C. is to pay DCRG and commuted value of pension in instalments. That is not permissible in terms of Ext. R1(d). Moreover, Ext. R1(d) is not an amendment to the KSR. It is an arrangement between the Government and Government employees. Even going by clause XXIII of Ext. R1(a) only the rules in K.S.R. are applicable for payment of DCRG and commuted value of pension. Any order issued by the Government will not apply to K.S.R.T.C. It is further contended on the basis of Ext. R1(f) that K.S.R.T.C. itself has issued orders to the effect that only 50% of the pensionary benefits like DCRG and commuted value of pensionary due to the retired employees shall be paid in lumpsum and the balance 50% in four equal annual instalments. Ext. R1(f) cannot be pressed into service against the petitioners on the short ground that it was issued only on 21.11.2000 far later than the retirement of petitioners on 31.3.2000, 31.5.2000 and 31.5.99 as the case may be Ext. R1(f) is only an executive order. Executive order cannot be issued with retrospective effect from 1.11.99 to take away the benefits accrued to an incumbent. Even statutory rules cannot be issued retrospectively to take away such rights. This point is squarely covered by the Supreme Court decision in Chairman, Railway Board v. C. R. Rangadhamaiah, (1997 6 SCC 623). The Railway Administration issued amendment to the rules taking away the benefits accrued to the retired employees to get a particular quantum of pension. As a result of such amendment amount of pension payable to the respondent as per the rules in force at the time of retirement had been reduced. In such situation the Supreme Court held that such amendment is,"violative of the rights guaranteed under Arts. As a result of such amendment amount of pension payable to the respondent as per the rules in force at the time of retirement had been reduced. In such situation the Supreme Court held that such amendment is,"violative of the rights guaranteed under Arts. 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in R. 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in R. 2544 that were in force at the time of their retirement." A right had been accrued on the petitioners to receive pensionary benefits as lumpsum amount on the date of retirement. The Corporation cannot introduce retrospectively a new pattern to their detriment and to pay it in instalments. So, Ext. R1(f) cannot have any enforcibility so far as the petitioners are concerned. Accordingly, there shall be a direction to pay the entire retirement benefits due to the petitioners including DCRG and commuted value of pension and provident fund and last pay in the case whether it is applicable, less liability if any, at any rate within three months from the date of receipt of a copy of this judgment provided there is no departmental/judicial proceeding pending against any of the petitioners. Even though this is a case where interest has to be granted, taking into account the financial difficulties expressed by the Managing Director, I am not exercising my discretion to grant them interest. O.Ps. are disposed of as above. No costs.