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2000 DIGILAW 398 (RAJ)

Surendra Mohan Saxena v. State of Rajasthan

2000-03-31

ARUN MADAN, V.S.KOKJE

body2000
JUDGMENT 1. - This special appeal arises out of order dated 29.7.1998 of the learned Single Judge in aforesaid writ petition, whereby the learned Single Judge while dismissing writ petition of the appellant on limited issue as to the interest on the payment of pensionary and retiral benefits having been granted and made after about two years of his retirement, declined to grant interest over the same. 2. The facts relevant for deciding this appeal, briefly stated, are that admittedly the appellant (petitioner) retired as Dy. Director, Animal Husbandry Department, Government of Rajasthan on attaining his age of superannuation on 31.7.1995, for which an order dated 11.10.94 (Ann.1) was passed in advance by the Director, Animal Husbandry communicating about it to the all concerned, so as to proceed for preparation of pension papers in time. The case of the appellant is that he should have been given pensionary benefits together with gratuity amount on the date of retirement, itself. But despite his several representations, his retrial dues were not settled in time, resulting in sending notice for demand of justice to the department on 10.8.96 (Ann.5), specifically mentioning therein that the Dy. Secretary, Animal Husbandry Government of Rajasthan by his letter dated 14.3.1996 (Ann.3) had already intimated as to non-pendency of any preliminary or departmental inquiry against him. Thereafter, the petitioner had filed the writ petition for issuing writ of mandamus for payment of pensionary benefits, viz. pension, gratuity and commuted pension along with interest thereon @ 24% per annum from 1.8.95 till the date of payment. Upon notice, reply to the writ petition was filed on 31.1.1997 by the respondent Nos. 1&2 and on 27.2.1997 by the respondent No.3, contending inter alia that though final pension payment order and commutation of pension besides gratuity payment order were issued on or about 11.12.1996 but before it the appellant was already given provisional pension, gratuity etc. by issuing provisional pension and gratuity payment orders on or about 10.9.1996 (Ann.9 & 10) and hence in these circumstances, there was no question of any delay on the part of the respondents inasmuch as this delay had occurred only because of non- submission of the no dues certificate in respect of the house building advance. 3. by issuing provisional pension and gratuity payment orders on or about 10.9.1996 (Ann.9 & 10) and hence in these circumstances, there was no question of any delay on the part of the respondents inasmuch as this delay had occurred only because of non- submission of the no dues certificate in respect of the house building advance. 3. When the writ petition came up for final disposal, it had been admitted at the bar that the petitioner has been paid all his dues and retirement benefit, therefore, the learned Single Judge observed that the only question remained in the petition was with regard to interest on the delayed payment as the payment was made after about two years. However, the learned Single Judge did not find any justification for granting any interest holding that since substantial relief has been granted to the petitioner, the writ petition has become in fructuous. Hence this special appeal has been preferred by the appellant claiming payment of interest and cost of the writ petition as also of the appeal. 4. We have heard the learned counsel for the parties and considered the documents on record and examined legal aspect of the matter qua the rival contentions made at the bar. 5. R.286, Rajasthan Service Rules, 1951 (for short, "R.S.R.") provides as under: "286. Payment of provisional pension and gratuity.-(1) A Gazetted Government servant should begin to draw pension from the date he retires from service irrespective of whether pension papers have been prepared and sent to the Director, Pension Department Rajasthan for issue of pension or not. In cases where pension papers have not been prepared and sent to the Director, Pension Department, Rajasthan, the Head of Department shall, after the most careful summary investigation, authorise payment of provisional pension to the extent of 75% of the maximum amount of pension and also of the gratuity to which he is entitled under these rules. If pension papers have been prepared and sent to the Director, Pension Department, Rajasthan before the date of retirement of a Government servant, the payment of provisional pension not exceeding the maximum amount of pension shall be sanctioned and 75% of the gratuity to which he is entitled to under these rules shall be sanctioned as may be admissible in each case. The sanction for provisional pension shall invariably be issued by the Head of Department under these rules immediately before or latest by the date of retirement of a Government servant which shall remain valid till the pension case is finalised by the Director, Pension Department, Rajasthan, (2) Head of Office in which he was last employed at the time of retirement shall draw provisional pension and gratuity in Form P.5 for each pensioner separately at the treasury at which pay and allowance was drawn by him and arrange to disburse pension on the 1st day of the month following the month in which the officer was retired. If the pensioner desires payment of pension through money order or bank draft at the place he is residing, the same shall be remitted to him through money order or bank draft at his cost. The date on which payment of the provisional pension and gratuity is made to the pensioner shall be intimated to the Director, Pension Department, Rajasthan. (3) The payment of provisional pension and gratuity shall be adjusted against the final payment of pension and gratuity. If the amount of provisional pension or gratuity granted and disbursed to a Government servant is found to be in excess of final pension or gratuity assessed by the Director, Pension Department, Rajasthan, he shall be called upon to refund such excess in the manner and subject to the conditions specified in Rule 283." 6. The very object of the State legislature in incorporating aforesaid provision in the statute viz. R.S.R. is that a Gazetted Government servant should begin to draw pension immediately from the date he retires from service on attaining superannuation irrespective of whether pension papers have been prepared and sent to the Director Pension Department Rajasthan for issuance of pension or not. According to this specific provision, a gazetted Government servant becomes entitled to get provisional pension and gratuity from the date he retires irrespective of whether pension papers have been prepared and sent for issue of pension or not. According to this specific provision, a gazetted Government servant becomes entitled to get provisional pension and gratuity from the date he retires irrespective of whether pension papers have been prepared and sent for issue of pension or not. In the instant case, despite the fact that the appellant retired on 31.7.95 but provisional pension and gratuity was not given to the appellant either from the date he retired i.e. 31.7.95 or thereafter on the 1st day of the month following the month in which he was retired, as has been envisaged in R.286 of the R.S.R. The appellant was given provisional pension and gratuity as has been admitted by the respondent department in their reply only on or about 10.9.96, i.e. after about more than one year. Hence it stands proved that there has been failure on the part of the respondents to comply with the statutory duty as envisaged in R.286 of the R.S.R. in respect of the appellant. Thus the delay in settling the pensionary dues under R.286 of the R.S.R. for the period from the date of retirement till the order of provisional pension and gratuity was issued and till the payment towards the same was made to the appellant, stands proved against the respondent department, irrespective of whether pension papers have been prepared and sent to the Director Pension Department Rajasthan for settlement of pension any dues or not. 7. It is relevant to emphasise that the respondents failed to exercise statutory duty of having made up to date entry in the service book of the appellant and thus failed to discharge their obligation notwithstanding the assurances conveyed to the public at large that there has to be a transparency in State action on the principles of accountability. The delay in payment of pensionary and retral dues is grossly unjust and reflects arbitrariness on the part of the respondents which besides financial hardship, has caused mental agony as also deprived the appellant of his valuable right to livelihood even after his retirement further resulting in violation of his right of life and liberty under Article 21 of the Constitution of India. 8. 8. Under Rule 285 of the R.S.R. it is the statutory duty of the Director Pension Department in case of every gazetted Government servant, to send to him copy of Form P.1 (Form of application for pension) two years in advance of the date on which the Government servant attains the age of superannuation. In the instant case, the respondent Department failed to perform statutory duty envisaged in R. 285 of the R.S.R. i.e. neither the Director Pension Department nor the Head of Office had sent a copy of Form P-1 to the petitioner at any time prior to his retirement, what to say of two years in advance of the date of superannuation of the appellant. 9. As per sub-rule (3) to Rule 285 of the R.S.R., statutory duty is also cast upon the appointing authority of the administrative department to communicate orders sanctioning payment of pension to the Director, Pension Department within a period of three months from the date of receipt of the intimation from the Director but in no case, later than the date of retirement of the Government servant. The Annexures produced by the appellant along with the petition, reply and rejoinder dearly and unmistakably prove the delay on the part of the respondent department in finalisation of the pension papers and further prove no fault on the part of the appellant. 10. The law is well settled by the Apex Court in (1) D.S. Nakara Vs. Union of India ( 1983(1) SCC 305 ) that the pension and the gratuity are neither bounty nor grace which do not depend upon the sweet will of the employer but a right to which the appellant is entitled, at the earliest and immediate settlement of his claims. Hence their settlement do not depend upon whims and fancies of the employer nor can it be dealt at the sweet will of the employer. In the present case, as already mentioned above, even provisional pension was released after a lapse of one year in utter disregard of R.285 of the R.S.R. and the final pension, commutation thereof any gratuity payment orders and other retral dues were released after date of his retirement, without any justification proved on record, and that too after lapse of two years. It is sad reflection of the manner in which the State machinery is functioning in utter disregard to principles of transparency in State action as well as principles of accountability in such matters. This results obviously in causing great mental agony to the employee concerned who has to await endlessly for early settlement of his retral dues such as the petitioner in the case on hand. Hence the delay is dearly on the part of the respondents, for which there appears to be little or no justification on record. 11. We are fortified in our observations from the decisions of the Apex Court in (2) Dr. Uma Agrawal Vs. State of U.P. (JT 1999(2) SC 359) , (3) O.P. Gupta Vs. Union of India ( AIR 1987 Sc 2257 ) and (4) State of Kerala Vs. M. Padamanabhan Nair ( AIR 1985 SC 356 ) . We have examined ratio of the aforesaid decisions and without exception, the Apex Court has well settled the law on the aspect of early and expeditious settlement of pension, gratuity and other retral benefits which are due and admissible to the Government employees and which as aforesaid in D.S. Nakara's case (supra) which are held to be no longer any bounty or grace to be disturbed by the Government to its employees on their attaining age of superannuation but in fact have assumed character of valuable right to life and liberty, and in fact have been held to be valuable right to property in the hands of the concerned employees and inculpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the prevailing market rate till actual payment is made. The liability to pay interest including penal interest on these dues has been held to commence from the date of retirement. (See M. Padmanabhan Nair's case (supra). In that case, the claim of interest made by the Government servant on his pension and gratuity dues which were settled with inordinate delay of two years and three months from the date of his retirement on account of non-production of last pay certificate by the employee. (See M. Padmanabhan Nair's case (supra). In that case, the claim of interest made by the Government servant on his pension and gratuity dues which were settled with inordinate delay of two years and three months from the date of his retirement on account of non-production of last pay certificate by the employee. It was held by the Apex Court that he was rightly entitled to the payment of interest on the delayed payment due to lapse on the part of the Treasury Officer who was enjoined with a statutory duty under Rule 186 of the Treasury Code and the employee was held entitled to the payment of interest @ 12% per annum. 12. In the latest decision of the Apex Court in Dr. Uma Agrawal's case (supra), it has been held while reaffirming its earlier aforesaid law that retiral benefits must be settled within time and any delay which is caused in the matter frustrates the employee which must be avoided at all costs. The Apex Court consequently held it to be a fit case for award of interest @ 12% per annum from the due date till actual payment. 13. Applying the aforesaid principles of law enunciated by the Apex Court (supra) which squarely apply to the facts and circumstances of the present case, we are of the view that the appellant is entitled to claim for interest for the delayed payment of his retiral dues which were admittedly paid to him belatedly during the course of pendency of the writ petition. 14. Before parting with this judgment, we may observe that it is a case where at least after notice for demand of justice was received by the respondent department surprisingly enough that the respondents department took about two years to settle retiral dues of the appellant. The uncalled for litigation could be avoided at the instance of the State by saving much time of the Court and burden on public exchequer and the present one is a glaring example of the inaction on the part of the State functionary after notice for demand of justice. Therefore, in these circumstances, although we may have imposed costs on the respondents but have thought not to do so with a view to avoid burden on State exchequer. 15. Therefore, in these circumstances, although we may have imposed costs on the respondents but have thought not to do so with a view to avoid burden on State exchequer. 15. As a result of the above discussion, this appeal is allowed with a direction to the respondents to pay interest @ 12% per annum to the appellant calculating from 1.8.95 till the appellant was actually made payment of his retiral dues for which the appellant is directed to submit computation of interest payable stating all details about retiral dues, to the respondent No.1 and No.3 within four weeks from today who upon submission of that computation shall after verifying the date of actual payment from the concerned payment authority, make payment of interest within three months from the date of submission of the computation made by the appellant, failing which he shall be entitled to penal interest @ 18% per annum from the date of his retirement, itself. In view of the above observations, the order dated 29.7.98 of the learned Single Judge is set aside and to the above extent, the writ petition is allowed. 16. A copy of this judgment be sent to the Chief Secretary of the Government of Rajasthan who is directed to take initiative to avoid such recurrence of events for the delay in payment of retiral dues that too after the notice for demand of justice in future and ensure that whenever the retiral dues are payable on the date of retirement, itself, it should be paid with no delay in utter regard to the statutory duty under the R.S.R. to the retiree so as to avoid uncalled for litigation resulting in imposition of penal interest. There will be no order as to costs.Spl. Appeal Allowed. *******