Madras High Court
N.Kandhimathinathan (Deceased) vs The Commissioner on 15 November, 2021
Author: R. Mahadevan
Bench: R. Mahadevan, P.D. Audikesavalu
Review Application (MD) No. 161 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.10.2021 Pronounced on : 15.11.2021
CORAM
THE HON'BLE MR. JUSTICE R. MAHADEVAN
and
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
Review Application (MD) No. 161 of 2014
in
W.A. (MD) No. 616 of 2014
1. N.Kandhimathinathan (Deceased)
2. K.Amirthavalli
3. K.Natarajan
4. K.Gomathi Vinayagam
5. K.Kannan
6. K.Ramalakshmi
7. K.Padmavathi ... Petitioners
-vs-
The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli. ... Respondent
Prayer:- Review Application filed under Order XLVII Rules 1 and 2 read with
Section 114 of the Code of Civil Procedure, 1908, praying to set aside the order
dated 08.08.2014 passed in W.A. (MD) No. 616 of 2013 before this Court.
For Petitioners : Mr. J.Titus Enock
For Respondent : Mr. Aayiram K.Selvakumar
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Review Application (MD) No. 161 of 2014
ORDER
(through video conference) Heard Mr. J.Titus Enock, Learned Counsel for the Petitioners and Mr. Aayiram K.Selvakumar, Learned Counsel for the Respondent and perused the materials placed on record, apart from the pleadings of the parties.
2. This application for review of the judgment dated 08.08.2014 in W.A. (MD) No. 616 of 2013 confirming the judgment dated 18.04.2013 in W.P. (MD) No. 7285 of 2010 passed by this Court, has been filed by Mr. N.Kandhimathinathan (hereinafter referred to as 'the employee' for clarity and convenience), who was the Petitioner in W.P. (MD) No. 7285 of 2010 and the Appellant in W.A. (MD) No. 616 of 2013. Since the employee died during the pendency of this Review Application, his wife, sons and daughters have been substituted as the Second to Seventh Petitioners to continue the proceedings.
3. The sequence of events leading to the filing of the Writ Petition have been captured in the judgment dated 18.04.2013 in W.P. (MD) No. 7285 of 2010 passed by this Court and as such, it is not repeated in this order except with regard to the material facts relevant for the purpose of this Review Application.
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4. The employee, who had joined in the services of the Respondent (which was then a Municipality) as Junior Assistant and had obtained promotions till the post of Zonal Officer, had attained the age of superannuation on 31.05.2001, but he was not permitted to retire on the ground that disciplinary proceedings were pending against him for certain charges of misconduct and his retirement benefits had been withheld. After pursuing several Writ Petitions before this Court relating to the said disciplinary proceedings, the employee was ultimately imposed with a punishment of compulsory retirement by G.O. (D) No. 283, Municipal Administration and Water Supply Department dated 24.07.2006 passed by the Government of Tamil Nadu, which was given effect from 31.05.2001. The terminal benefits that the employee was entitled had been thereafter paid to him on 24.03.2010. A representation dated 03.04.2010 was then made by the employee to the Respondent to sanction and pay interest for the belated settlement of his terminal benefits. As there was no response for such claim made, the employee filed the Writ Petition in W.P. (MD) No. 7285 of 2010 for directing the Respondent to pay interest on his retirement benefits and pension from 01.06.2001 or from the date on which it became due till the date of payment. Though the employee had contended that he had submitted his application for pension prior to 31.05.2001 when he had https://www.mhc.tn.gov.in/judis 3/16 Review Application (MD) No. 161 of 2014 attained the age of superannuation, the Respondent resisted the claim by pointing out that the employee was responsible for the delay in payment of pensionary benefits as he had not submitted the pension proposal till the Respondent called for the same from him by Letter in Na. Ka. No. C1/30761/95 dated 23.10.2007. The Learned Judge, who heard the Writ Petition, accepted the version of the Respondent and declined to grant interest till October 2007, but held that from then onwards, the Respondent was responsible for the delay in making payment till February 2010 and in the judgment dated 18.04.2013 passed in W.P. (MD) No. 7285 of 2010, it was held that the employee is entitled to interest at the rate of 18% per annum for the period from October 2007 to February 2010, and rejected the claim for the earlier period. The said judgment was confirmed by the Division Bench of this Court in the judgment dated 18.08.2014 passed in W.A. (MD) No. 616 of 2013 preferred by the employee against it. It is accepted that in furtherance thereto, the sums of Rs. 4,30,373/- and Rs. 94,783/- totalling Rs. 5,25,156/- have been disbursed to the employee on 28.06.2013 and 02.07.2013 respectively. Aggrieved by the denial of interest for the period from 01.06.2001 to 23.10.2007, this Review Application filed by the employee is prosecuted.
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5. The justification canvassed by the Respondent for denying interest for the delayed payment of terminal benefits is that disciplinary proceedings were pending against the employee when he attained the age of superannuation and it was not possible to disburse the terminal benefits till it was concluded, meaning thereby that the delay cannot be said to be without reason so as to fasten the Respondent with liability to compensate the employee with interest, more particularly when the relevant rules do not contain any provision for awarding the same.
6. At this juncture, it cannot be lost sight of the fact that when disciplinary proceedings against the concerned employee is eventually dropped, the terminal benefits would have to be paid to him. Even in cases where the charges against a delinquent employee are proved, he may be entitled to disbursement of some part of his terminal benefits depending upon the nature of punishment that may be ultimately imposed upon him. In other words, the maximum amount of terminal benefits that an employee would be entitled gets crystallized on the date when he attains the age of superannuation, irrespective of the fact that its disbursement is deferred on account of continuation of disciplinary proceedings after such date.
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7. It must be recapitulated here that the Hon'ble Supreme Court of India in State of Jharkhand -vs- Jitendra Kumar Srivastava [(2013) 12 SCC 210] has highlighted that the terminal benefits which have been conferred in favour of the employees by statute partake the character of emoluments protected as a right to property of the concerned employee under Article 300-A of the Constitution, which cannot be arbitrarily taken away without any authority of law. Since the withholding of such terminal benefits would amount to depriving the employee of his legitimate right to make use of his property at the time when he ought to have been paid the same on attaining the age of superannuation, he would have to be compensated for such delay by awarding interest.
8. The Hon'ble Supreme Court of India in a catena of decisions in State of Kerala -vs- M.Padmanabhan Nair [(1985) 1 SCC 429], Vijay L.Mehrotra -vs- State of U.P. [(2001) 9 SCC 687] and D.D.Tewari -vs- Uttar Haryana Bijli Vitran Nigam Ltd., [(2014) 8 SCC 894] has reiterated that an employee has to be compensated by way of interest for delayed payment of his terminal benefits. It has been ruled by the Hon'ble Supreme Court of India in S.K.Dua -vs- State of Haryana [(2008) 3 SCC 44] that even in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under https://www.mhc.tn.gov.in/judis 6/16 Review Application (MD) No. 161 of 2014 Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution inasmuch as the retiral benefits are not in the nature of bounty and needs no authority in support thereof.
9. Before proceeding further, it would be appropriate to notice that Rule 36 of the Tamil Nadu Municipal Corporation Services Rules, 1996, which applies to the matters of settlement of pension of the employees of the Respondent, provides as follows:-
"36. Application of Government rules to the Corporation Employees:-
In matters of settlement of pension, regulation of pay and other allowances, leave benefits, claiming of travelling allowances and daily allowances and other allowances and control of conduct of the Corporation employees, the Tamil Nadu Pension Rules, the Fundamental Rules, the Tamil Nadu Travelling Allowance Rules, the Manual on Special Pay and Allowances and the Tamil Nadu Government Servant Conduct Rules shall apply to the Corporation employees as nearly as possible to the Government Servant of similar status and standing. In matters in respect of which no provision has been https://www.mhc.tn.gov.in/judis 7/16 Review Application (MD) No. 161 of 2014 made in these rules, every member of the service shall as nearly as possible, be governed by the provisions applicable to Government Servants of similar status and standing."
Insofar as death cum retirement gratuity is concerned, Rule 45-A of the Tamil Nadu Pension Rules, 1978, provides the rate and manner in which interest would have to be paid for its delayed payment. Though there is no express provision for grant of interest in respect of terminal benefits other than death cum retirement gratuity, there is equally no specific bar for its grant in the Tamil Nadu Pension Rules, 1978.
10. The Hon'ble Supreme Court of India in Dr. Uma Agrawal -vs- State of Uttar Pradesh [(1999) 3 SCC 438] after referring to the relevant provisions of the Fundamental Rules applicable to the employees in the State of Uttar Pradesh prescribing time schedule for various steps to be taken in regard to the payment of pension and other retiral benefits, has held that the governmental departments are required to take cognizance of the same atleast two years in advance of the date of retirement of an employee, and had awarded interest in that case on account of the delay in settling the terminal benefits of the employee concerned. In this context, it must be recapitulated that corresponding provisions exist in Rules 53 to 66 of the Tamil Nadu Pension https://www.mhc.tn.gov.in/judis 8/16 Review Application (MD) No. 161 of 2014 Rules, 1978, including sanction and disbursement of provisional pension till the disciplinary proceedings are concluded. This would obviously mean that any delay on the part of the concerned employee in submitting the pension proposal before or after attaining the age of superannuation is inconsequential insofar as it relates to the question as to his entitlement to receive interest for the delayed payment of the terminal benefits due to him from the respective dates on which it falls due. Viewed from this perspective, it is not possible to uphold the judgment dated 18.04.2013 in W.P. (MD) No. 7285 of 2010, which has been confirmed in judgment dated 18.08.2014 in W.A. (MD) No. 616 of 2013 passed by the Division Bench of this Court, insofar as it denies award of interest to the employee for delayed payment of his retirement benefits from the date on which he had attained the age of superannuation till he had submitted the pension proposal.
11. After referring to the earlier binding decisions on the subject, the Hon'ble Supreme Court of India in Kamlesh Verma –vs- Mayavati [(2013) 8 SCC 320] has succinctly culled out the legal principles governing the ambit and scope of review under Section 114 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908, as follows:-
https://www.mhc.tn.gov.in/judis 9/16 Review Application (MD) No. 161 of 2014 “Summary of the principles:-
20. Thus, in view of above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of record;
(iii) Any other sufficient reason. The words “any other sufficient reason” has been interpreted to mean a reason sufficient on grounds at least analogous to those specified in the rule.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
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(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” In the light of the aforesaid legal position, this Court is of the considered view that the denial of interest to the employee for delayed payment of his terminal https://www.mhc.tn.gov.in/judis 11/16 Review Application (MD) No. 161 of 2014 benefits clearly falls within the meaning of an error apparent on the face of the record, and that the correction of that apparent error does not come under any of the categories for which review could not be entertained.
12. The question that remains for consideration pertains to the rate of interest for terminal benefits other than death cum retirement gratuity which is covered by Rule 45-A of the Tamil Nadu Pension Rules, 1978. Having regard to the current rate of interest on fixed deposit offered by Nationalized Banks during the relevant time, it would be appropriate to award interest at the rate of 9% per annum for the entire period from 01.06.2001 to 24.03.2010. Though the Learned Judge in the judgment dated 18.04.2013 in W.P. (MD) No. 7285 of 2010 has granted interest at the rate of 18% per annum for the period from October 2007 to February 2010 and the aggregate sum of Rs. 5,25,156/- has been paid in satisfaction of the same, such rate of interest appears to be on the higher side and the amount paid would have to be given credit while re-working interest in terms of the directions issued in this order for the entire period from 01.06.2001 to 24.03.2010.
In view of the foregoing discussion, the Review Application is disposed on the following terms:-
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(i) The relief granted to the employee in the judgment dated 18.04.2013 in W.P. (MD) No. 7285 of 2010 is modified by directing the Respondent:
(a) to pay interest at the rate and in the manner provided in Rule 45-A of the Tamil Nadu Pension Rules, 1978, for the delayed payment of death-cum-retirement gratuity for the period from 01.06.2001 to 24.03.2010;
(b) to pay interest at the rate of 9% per annum on pension payable to the employee for each month on the respective dates on which it falls due for the period from 01.06.2001 to 24.03.2010; and
(c) to pay interest at the rate of 9% per annum on all terminal benefits except death-cum-retirement gratuity and pension for the period from 01.06.2001 to 24.03.2010;
(ii) The Respondent shall give credit to the aggregate sum of Rs. 5,25,156/-
paid to the employee in furtherance to the judgment dated 18.04.2013 passed in W.P. (MD) No. 7285 of 2010;
(iii) The amount remaining due in terms of clauses (i) and (ii) supra shall be paid by way of Demand Draft in favour of the Second Petitioner/Wife along with a working-sheet showing calculation for the same under written acknowledgment after verifying her identity proof and obtaining https://www.mhc.tn.gov.in/judis 13/16 Review Application (MD) No. 161 of 2014 authorization in her favour to receive that amount on behalf of the Third to Seventh Petitioners besides herself;
(iv) There shall be no order as to costs.
(R.M.D., J.) (P.D.A., J.)
15.11.2021
vjt
Index: Yes/No
Note: Issue order copy by 19.11.2021.
To
The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli.
Copy to
1. The Registrar (Judicial),
Madras High Court,
Chennai - 600 104.
2. K.Amirthavalli,
W/o. N.Kandhimathinathan,
D. No. 89D, V.O.C. Street,
Tirunelveli Town,
Tirunelveli District.
3. K.Natarajan,
S/o. N.Kandhimathinathan,
D. No. 89D, V.O.C. Street,
Tirunelveli Town, Tirunelveli District.
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Review Application (MD) No. 161 of 2014
4. K.Gomathi Vinayagam,
S/o. N.Kandhimathinathan,
D. No. 89D, V.O.C. Street,
Tirunelveli Town,
Tirunelveli District.
5. K.Kannan,
S/o. N.Kandhimathinathan,
D. No. 89D, V.O.C. Street,
Tirunelveli Town,
Tirunelveli District.
6. K.Ramalakshmi,
D/o. N.Kandhimathinathan,
D. No. 89D, V.O.C. Street,
Tirunelveli Town,
Tirunelveli District.
7. K.Padmavathi,
D/o. N.Kandhimathinathan,
D. No. 89D, V.O.C. Street,
Tirunelveli Town,
Tirunelveli District.
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Review Application (MD) No. 161 of 2014
R. MAHADEVAN, J.
and
P.D. AUDIKESAVALU, J.
vjt
Review Application (MD) No. 161 of 2014
Reserved on : 26.10.2021
Pronounced on : 15.11.2021
https://www.mhc.tn.gov.in/judis
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