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2003 DIGILAW 343 (JK)

Birbal Dutt v. Union Of India

2003-11-10

S.K.GUPTA

body2003
Petitioner was enrolled in the Army in EME Branch, wherefrom he was discharged on 29-09-1955. He made relentless efforts for the release of his pension for a space of 38 years, but without any positive response. This necessitated the petitioner to approach the Court claming the release of his pension by filing OWP No. 1379/1993. It has never been the stand of the respondents in the aforesaid writ petition that the petioner is neither eligible for grant of pension nor it was found credible that the petitioner has received gratuity in lieu of pension. While deciding the writ petition, the Court held as under : "In the circumstances I deem it appropriate to direct the respondents to examin the petitioners case in the right earnest uninfluenced by the destruction of his service record and to grant him appropriate relief of reeleasing pention, in case it is established that he had put in pensionable service in the army. The process of consideration shall be finalized in six months from the date of receipt of this order, even if it entail re-constrution of the records. This shall be without prejudice to the claim of the petitioner for payment of interest to him. In the event it is found that the respondents had deliberatly delayed the payment of pension to him, petitioner shall be at liberty to move the Court again, if so advised." 2. The pension claim of the petitioner was, however, processed by the Sanctioning Authority and Pension Payment Order was issued by CDA (P), Allahabad on 16th june, 1995 and first payment of pension with arrears was released to the petitioner by the Pension by the Pension Disbursing Authority on 25th July, 1995. According to the petitioner, pensionary benefits have been withheld by the respondents illegally, arbitrarily and without any justification. The pension and other retiral benfits were required to be paid to the petitioner in time. His further submission is that in the absence of any justifiable explanation about the delay on the part of the employed in releasing the retiral and other benifits, he must be compensated with interest on the amount to be paid to him. The petitioner, thus, claims interest @18% per annum on the wrongful withholding of the amount of pension from the date the petitioner become entitled to the grant of payment of pension on the date of his retirement. 3. The petitioner, thus, claims interest @18% per annum on the wrongful withholding of the amount of pension from the date the petitioner become entitled to the grant of payment of pension on the date of his retirement. 3. The stand taken by the respondents in their demurrer is that after the discharged of the petitioner, he must have received either pension or service gratuity. It is admitted by the respondents that after his discharge from service as to wether the petitioner that after his discharge from service as to wether the petitioner was granted pension or gratuity, the same could not be ascertained in the absence of service documents, which were destroyed by burning, being 25 years old non-pensionable case. It was further sumitted that the petitioners claim for interest was also considered in writ petitio No. 1379/1993, but no interest was granted to the petitioner. In such circumstances, his claim for interest cannot be adjudicated upon in this writ petition. 4. Heared the learned counsel appearing for the respective parties and also perused the record, meticulously. 5. It is by now well settled that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but vaaluable right and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The liability to pay penal interest on these dues at the current market rates commences at the expiry of two months from the date of retirement. In the absence of specific plea in their counter by the respondents as to whether pension/gratuity had been paid to the petitioner after his discharge, the claim put forth by the the petitioner sounds credible on the face of it that no pension has been paid to him, despite persistant attempt made for a period of 38 years for the release of his pension. According to the petitioner, he has served army for 15 years and 263 days and on his retirement, he was informed that the pension payment Order has been sent to him on his changed address, but the same was never received till the date he was allowed by the Court in OWP No. 1379/1993. 6. According to the petitioner, he has served army for 15 years and 263 days and on his retirement, he was informed that the pension payment Order has been sent to him on his changed address, but the same was never received till the date he was allowed by the Court in OWP No. 1379/1993. 6. It is clearly emanated fron the record that the petitioner has been deprived of his retiral benefits without any cogent reasons, illegally and wrongfully. The delay of depriving retiral benefit is clearly attributed to the resondents and, thus entitled him to a penal interest on the dues at the current market rate to commence at the expiry of to months from the date of retirement. 7. Another limb of argument put across by Mr. S.S.Nanda, Sr. Central Government Standing Counsel, is that the petitioner has already been paid the pension in terms of the Court judgement OWP No. 1379/1993 and this writ petition for claiming interest alone is not maintainable. this contraversy has been set at rest By Full Bench of Punjab and Haryana High Court in A.S. Randhawa v. State of Punjab, (1997) 3 SET 468, and held as under : "7. The duty of the State to disburse pension immediately on the retirement of an employee has a statutory recognition and it is so enjoined in Rule 9.1 of the Pension Rules (as applicable in the State of Haryana) which is in the following terms :- "All authorities dealing with applications for pension under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therfore, that a Government employee begins to receive his pension the date on which it becomes due. Note.:- In order to prevent cause for complaint on the part of pensioner, it is most important that pension cases should always be given as high a degree of priority as is possible." The pension Rules in Punjab also provide that lest there is any delay in disbursing pension to a retiring employee the procedure for the payment thereof and the work of preparation of pension papers should commence two years before the due date of retirement of the employee. Reference in this regard may be made to Rule 9.3 and other related rules containd in chapter IX of the Punjab Civil Service Rule Vol.II as applicable in the State of Punjab." "8. Since a Government employee on his retirement becomes immediately entitled to pension and other benefits in terms of thePension Rules, a duty is simultaneously cast on the State to ensure the disbursement of pension and other benefits to the retirer in proper time. As to what is proper time will depend on the facts and circumstances of each case but normally it would not exceed two months from the date of retirement which time limit has been laid down by the Apex Court in M. Padmanabhan Nairs case (supra). If the State commits any default in the performance of its duty thereby denying to the retiree the benefit to the immediate use of his money, there is no gainsaying the fact that he gets a right to be compensated and, in our opinion, the only way to compensate him is to pay him interest for the period of delay on the amount that was due to him on the date of his retirement. Again, as to what should be the rate of interest, it should, in our view, be generally 12% unless the circumstances of particular case warrant the payment of a higher rate which may extend to even 18%." "9. The question now arises for our consideration is whether a retiree can approach this Court under Article 226 of the Constitution to claim interest only on the delayed payment of pension and other retiral benefits. As observed earlier, there is a duty cast on the State to disburse pension and retrial benefits immediately when they become due and it is the nonperformance of this statutory duty, which gives right to the retiree to claim compensation by way of interest. This right to claim interest partakes the nature and character of the retiral benefits and is indeed a concomitant of the right to claim pension and retiral benefits and cannot be separated therefrom. This being so, a claim for interest by a pensioner cannot be equated with aclaim for money simpliciter or any interest thereon arising out of contractual obligations. This right to claim interest partakes the nature and character of the retiral benefits and is indeed a concomitant of the right to claim pension and retiral benefits and cannot be separated therefrom. This being so, a claim for interest by a pensioner cannot be equated with aclaim for money simpliciter or any interest thereon arising out of contractual obligations. Moreover, in a claim for recovering pension or other retiral benefits which the State has wrongfully withheld or even when interest is claimed on those amount, the plea of bar of limitation cannot be permitted to be raised because the State has defaulted in the performance of its duty in not paying the amount when it became due. In this view of the matter, it follows when a retired government employee can seek his remedy by invoking the jurisdiction of this court under Article 226 of the Constitution to claim pension and retiral benifits by the issuance of writ mandamus or any other order or direction, he is equally entitled to seek relief in the same way for claiming interest only on delayed payments which is an enforcement of an incident of the same right. It will, of course, be open to the State to plead and prove that there has been no delay much less culpable delay on its part in disbursing the amount so as to entitle a retired employee to any interest as claimed by him. To put it differently, if a retired government employee can show that there was delay in the payment of pension or any other retiral benifit to him, the onus would be on the State to show that it is not guilty of any culpable delay and if it is anable to discharge the onus or satisfy the court as to the reasons for the delay, a direction to pay interest for the period of delay would invariably issue." 8. In view of the ratio of the aforesaid judgement, the contention raised by the respondents Advocate, Mr. S.S. Nanda, since devoid of any substance and bereft of legal force,thus, can not be accepted. 9. No other point has been urged and debated during argument. 10. In view of the ratio of the aforesaid judgement, the contention raised by the respondents Advocate, Mr. S.S. Nanda, since devoid of any substance and bereft of legal force,thus, can not be accepted. 9. No other point has been urged and debated during argument. 10. In view of the aforesaid discussion, I allow the writ petitions and hold the petitioner entitled to interest on pension for culpable delay in the settlement and disbursement of the pension, at the current market rate, i.e., @ 12% to commence at the expiry of two months from the date of retirement, payable by the respondants till the amount of pension has been disbursed to him, i.e., July, 25, 1995. The amount calculated on account of interest at above said rate shall be paid by the respondents within a period of two months from the date a copy of the order is made available by the petitioner to the respondents and in case, the amount is not paid with in the aforesaid period and the delay has occurred, interest @ 3% over and above the interest already allowed, shall become payable by the Officer on whose remissness the delay has occurred. The petition is disposed of in the terms indicated above.