High Court Kerala High Court

C.S.Udayavally vs K.S.Kamala Devi Amma on 5 April, 2010

Kerala High Court
C.S.Udayavally vs K.S.Kamala Devi Amma on 5 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP.No. 29 of 2008()


1. C.S.UDAYAVALLY, PADMA MANDIRAM,
                      ...  Petitioner

                        Vs



1. K.S.KAMALA DEVI AMMA,
                       ...       Respondent

2. THE STATE OF KERALA, REPRESENTED

3. THE DEPUTY DIRECTOR OF EDUCATION,

4. THE DISTRICT EDUCATION OFFICER,

                For Petitioner  :SRI.B.KRISHNA MANI

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :05/04/2010

 O R D E R
                   S.S.SATHEESACHANDRAN, J
                   -------------------------------------
                       C.R.P No.29 OF 2008
                      --------------------------------
               Dated this the 5th day of April 2010

                                 ORDER

Revision is directed against the judgment rendered by

the learned Sub Judge, Neyyattinkara in A.S No.158 of 2001

whereunder the decree passed by the learned Munsiff in favour of

the 1st respondent/plaintiff in a suit for money was reversed and

set aside.

2. Short facts giving rise to the revision may be

summed up thus: The respondent hereinafter referred to as the

plaintiff was the retired Head Mistress of a Govt. High School.

She retired from service on superannuation on 31.03.1997. Her

claim for gratuity had been delayed on account of the objection

raised by her successor in office, the 4th defendant in the suit, in

sending a false report imputing her liability in the missing of

books from the library of the school, was the basis of the suit

claim for delayed payment. Plaintiff claimed a sum of Rs.12,240/-

as interest on the gratuity amount, the payment of which was

delayed by two years on the objection raised by the 4th defendant.

Suit claim was sought against the State and public officials

including the 4th defendant. Third and fourth defendants filed

separate written statements resisting the suit claim. The trial

court after examining the materials produced found merit in the

C.R.P No.29 OF 2008 Page numbers

case canvassed by the plaintiff and decreed the suit in favour of

the plaintiff but fixing the liability only as against the 4th

defendant alone. Fourth defendant filed an appeal challenging

the decree and judgment of the trial court. The appellate court

after reappreciating the materials produced in the case reversed

the judgment of the trial court and nonsuited the plaintiff by

allowing the appeal. Propriety and correctness of the judgment

so rendered by the appellate court is assailed in this revision.

2. I heard the counsel on both sides. The appellate

court went wrong in interfering with the finding arrived by the trial

court that the 4th defendant was liable to pay interest on the

delayed payment as canvassed in the suit is the submission of the

learned counsel appearing for the revision petitioner/plaintiff.

Reliance is placed on “Chacko v State of Kerala and others”

(2000(1) KLJ 751) to contend that when an amount legally due

was withheld the party responsible for withholding such payment

is liable to pay interest on the amount due as compensation to

the claimant. It was on account of a false report sent by the 4th

defendant fixing liability on the plaintiff for the missing of the

books in the library of the school there was delay in payment of

her gratuity and, so much so, the wrong doer 4th defendant, is

liable to pay interest on the amount which was belatedly paid, is

C.R.P No.29 OF 2008 Page numbers

the submission of the counsel. Per contra, the learned counsel for

the respondent/4th defendant in the suit contended that as the

successor in office it was her duty to report the missing of the

books to the higher authorities and it was on the orders passed by

the 2nd defendant, Deputy Director of Education, liability was fixed

directing reduction of the gratuity amount to the extent of the

amount due to the Govt. from the plaintiff. The fact that the

Govt. has later absolved the plaintiff from the liability in no way

enable her to fix any liability on the 4th defendant, the successor

to the office held by the plaintiff, for the delay in the payment of

gratuity as she had only discharged her duty as an officer holding

a public office, according to the counsel. The reversal of the

decree granted by the appellate court does not warrant any

interference in the given facts of the case is the submission of the

learned Government Pleader.

3. I have perused the judgment passed by the learned

Sub Judge and also by the learned Munsiff. It is an admitted fact

that the 4th defendant took over charge as the Head Mistress of

the school after the retirement of the plaintiff. Plaintiff has no

case that charge was handed over to the 4th defendant on her

retirement from service. It is also not disputed that a good

number of books, nearly 1409, were missing from the school

C.R.P No.29 OF 2008 Page numbers

library at a time when the 4th defendant took over charge as the

Headmistress of the institution. The audit wing after verification

had also reported the missing of the books in the library. When

that be the position, it goes without saying that it was the duty of

the 4th defendant to report the missing of the books before the

higher officials of the department of education. That alone

appears to have been done by the 4th defendant, successor in

office of the plaintiff, in reporting the missing of the books. It was

the 2nd defendant, Deputy Director of Education, who had fixed

the liability of the missing of the books on the plaintiff issuing

directions to the 4th defendant that nonliability certificate should

not be issued for releasing her gratuity before clearing of the

liability. It also appears from the judgment rendered by the

learned Sub Judge that the communication sent by the 2nd

defendant, Deputy Director of Education to the 4th defendant

warned her that in the event of any default on her part in issuing

nonliability certificate overlooking the direction, then the liability

will be fixed on her for reimbursement of the amount due to the

Govt. towards the missing of the books. It is also seen from the

judgment that copy of the communication was sent to the plaintiff

as well. Whatever be the merit of the case of the plaintiff to claim

interest on the delayed payment in the given facts, such delay in

C.R.P No.29 OF 2008 Page numbers

the release of gratuity cannot be imputed against the 4th

defendant as she had discharged only the duty cast on her, as

expressed by the learned Sub Judge. The gratuity amount was

delayed by two years in view of the liability fixed on her by the 2nd

defendant is the basis for the suit claim. The liability fixed was

only to the tune of Rs.5,000/-, and nothing prevented the plaintiff

from getting the gratuity amount except to the extent of the

liability fixed. If at all she was entitled to any interest on delayed

payment, such claim could have been pressed into service only in

respect of the sum fixed as liability. She was later absolved from

the liability by the Govt. since there was no concrete evidence to

show that she alone was culpable for the missing of the books

does not lead to a conclusion nor even an interference supporting

her claim for interest on the delayed payment. As stated earlier,

the 4th defendant had only discharged her duties as the successor

to the office held by the plaintiff in sending a report to the higher

officials as to the missing of books. She cannot be found fault

with for sending a report which no doubt was her duty. Failure or

omission to do so would have resulted in fixing of liability on her

for the missing of the books. I do not find any impropriety in the

judgment rendered by the learned Sub Judge reversing the decree

granted in favour of the plaintiff and nonsuiting her in the given

C.R.P No.29 OF 2008 Page numbers

facts of the case. No interference with that judgment is called for.

The decision relied by the learned counsel for the plaintiff has no

application to the facts of the case, which related to a claim

allowed in a proceeding under the Industrial Disputes Act.

Revision is dismissed.

Sd/-

S.S.SATHEESACHANDRAN
JUDGE
//TRUE COPY//

P.A TO JUDGE

vdv