Research › Search › Judgment

Gauhati High Court · body

2004 DIGILAW 612 (GAU)

Tsubongse Sangtam v. State of Nagaland

2004-12-09

BROJENDRA PRASAD KATAKEY

body2004
JUDGMENT B.P. Katakey, J. 1. The question to be decided in the present case is, whether pensionary and other service benefits of a deceased Govt. employee can be withheld without holding disciplinary proceeding and without ascertaining the amount due by the said employee during his lifetime. 2. The writ petitioner No. 1 who is the father and the writ petitioner No. 2 who is the widow of T. Horiba Sangtam filed the present writ application challenging the action on the part of the State-respondents as well as the Nagaland University Authority in withholding the retiral benefits payable under the provisions of Central Civil Services (Pension Rules, 1972 (hereinafter referred to as the Rules) and gratuity, provident fund etc., and other benefits which were payable to the said deceased employee. 3. The facts in brief in the present case is as follows : T. Horiba Sangtam, son of the petitioner No. 1 and husband of petitioner No. 2 was an Executive Engineer in Public Works Department under the Govt. of Nagaland was deputed to the Nagaland University for appointing him as an Executive Engineer in the said University vide order dated 27.1.1997. After the expiry of the period of deputation, T. Horiba Sangtam was repatriated to the parent department w.e.f. 1.1.2002. Mr. Sangtam, before his order of repatriation to the parent department fell ill and eventually died in harness on 25th April, 2002. When the writ petitioners claimed the benefits payable to them for the services rendered by T. Horiba Sangtam, they were informed by the State of Nagaland that the same could not be paid to them because of the request from the Naglanad University to withheld the payment of any benefit on the ground that certain amount was found to be payable by the said Mr. Sangtam to the University authority. 4. I have heard Mr. N.K. Luikham, learned counsel for the petitioner and Ms. Y. Longkumer, learned Govt. Advocate appearing on behalf of the respondents 1, 2 and 3, and Mr. H. Savi, learned counsel for respondent Nos. 4 and 5. No affidavit in opposition has been filed on behalf of the respondents 1, 2 and 3; but the affidavit in opposition has been filed by the University authority i.e., respondent Nos. 4 and 5. 5. Mr. Advocate appearing on behalf of the respondents 1, 2 and 3, and Mr. H. Savi, learned counsel for respondent Nos. 4 and 5. No affidavit in opposition has been filed on behalf of the respondents 1, 2 and 3; but the affidavit in opposition has been filed by the University authority i.e., respondent Nos. 4 and 5. 5. Mr. Luikham, learned counsel for the petitioners submits that benefits payable under the aforesaid Rules can only be withheld under the Rule 9 of the said Rules and for withholding the benefits, holding of a departmental proceeding or judicial proceeding is a condition precedent. According to Mr. Luikham, in the present case, no departmental proceeding or other judicial proceeding was initiated against Late T. Horiba Sangtam during his lifetime and therefore the respondents cannot withheld the payment of benefits under the aforesaid Rules as well as the other service benefits. 6. Mr. Luikham, learned counsel for the petitioner has further submitted that the University authority, only after the death of T. Horiba Sangtam has quantified an amount of Rs. 33,77,371 as payable by T. Horiba Sangtam to the University authority and during his lifetime no such quantification was made by the University authority by holding any enquiry whatsoever, and therefore, according to Mr. Luikham, the University authority cannot advice the Government to withheld the payment of benefits payable to the writ petitioners, on the basis of such quantification which was done after the death of Mr. Sangtam. 7. Ms. Y. Langkumer, learned State counsel appearing on behalf of respondent Nos. 1, 2 and 3 has submitted that the Govt. of Nagaland withheld the payment of benefits to the writ petitioners only on the basis of the request made by the University authority. 8. Mr. N.K. Luikham, learned counsel for the petitioners, in support of his contention has relied upon the decision rendered by this Court in Aruna Sadhanidar (Saikia) v. State of Assam and Ors. reported in (2002) 2 GLT 322 wherein this Court has held that since no disciplinary proceeding has been initiated against the deceased employee during his lifetime, and there was no ascertainment of any dues payable by him to the Govt., the right of the widow to get the retiral benefits of her husband cannot be denied by the Government. 9. Mr. 9. Mr. Luikham has also relied upon a decision of the Apex Court in D.V. Kapoor v. Union of India and Ors., reported in [1990] 3 SCR 697, wherein the Apex Court has held as under:-" "10. Rule 9 of the Rules empowers the President only to withhold or withdraw pension permanently or for a specified period in whole or in part or to order recovery of pecuniary loss caused to the State in whole or in part subject to minimum. The employee's right to pension is a statutory right. The measure of deprivation therefore, must be correlative to or commensurate with the gravity of the grave misconduct or irregularity as it offends the right to assistance at the evening of his life as assure under Article 41 of the Constitution. The impugned order discloses that the President withheld on permanent basis the payment of gratuity in addition to pension. The right to gratuity is also a statutory right. The appellant was not charged with nor was given an opportunity that his gratuity would be withheld as a measure of punishment. No provision of law has been brought to our notice under which, the President is empowered to withhold gratuity as well, after his retirement as a measure of punishment. Therefore, the order to withhold the gratuity as a measure of penalty is obviously illegal and is devoid of jurisdiction.'" 10. In Union of India and Ors. v. B. Dev reported in AIR 1998 SC 2709 , on which Mr. Luikham has placed reliance, the Apex Court has held that the power under Rule 9 of the Rules can be exercised only if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The relevant portion of the said judgment passed by the Apex Court is quoted below :- "11. Rule 9 gives to the President the right of - (1) withholding or withdrawing a pension or part thereof, (2) either permanently or for a specified period, and (3) ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power, therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension in a case where any pecuniary loss is caused to the Government, that loss. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable." 11. Relying on the judgment passed by the Apex Court in State of Kerala and Ors. v. M. Padmanabhan Nair, reported in (1985) I LLJ 530 SC, Mr. Luikham, learned counsel for the petitioners has submitted that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights 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. Mr. Luikhman has therefore submitted that the respondents may be directed to release the amounts payable to the writ petitioners under the aforesaid Rules as well as other retiral and service benefits and this Court may also pass order of compensation by imposing interest on such amount due to the writ petitioners. 12. Relying on the averments made in the affidavit-in-opposition, the learned counsel for respondent Nos. 4 and 5 has submitted that since some amount was found to be due by T. Horiba Sangtam during the period in which he was in deputation to the University, the State-respondents were requested not to release the retiral and other benefits. The University authority has also did not release the service benefits payable to the said Shri Sangtam for that reason. The stand of the respondent Nos. The University authority has also did not release the service benefits payable to the said Shri Sangtam for that reason. The stand of the respondent Nos. 4 and 5 as it appears from the affidavit in opposition is that some amount was found recoverable by T. Horiba Sangtam who was on deputation to the University as Executive Engineer and for which an Inquiry Committee was constituted and the Inquiry Committee upon consideration of the materials on record quantified the amount due by Mr. Sangtam to the University authority as Rs. 33,77,371 and as such the said amount is to be recovered from the amount payable to the writ petitioners on account of the service rendered by T. Horiba Sangtam. 13. There is a specific statement made by the writ petitioners in the writ petition that no disciplinary or other proceedings were initiated against T. Horiba Sangtam during his lifetime so as to enable the authority to withheld payment of retiral and other benefits by invoking the power conferred by Rule 9 of the said Rules. The University authority in reply to the said specific statement in the writ petition, has stated in their affidavit-in-opposition that an enquiry committee was constituted on 2.3.2001 and Mr. Sangtam was asked to submit the adjustment bills etc. vide Office Order dated 21st June, 2001 and also to settle and clear the liabilities vide communication dated 21st September, 2001, before Mr. Sangtam was repatriated to the parent department. 14. It is evident from the Notification dated 2.3.2001 (Annexure-B to the affidavit-in-opposition filed by respondents 4 and 5) that an Inquiry Committee was constituted to investigate into all aspects of the utilisation of funds and execution of works under Prime Minister's Economic Package as sanctioned vide order dated 18.7.2000. There is no statement in the affidavit in opposition filed by the University authority about the submission of any report by the said Inquiry Committee during the lifetime of T. Horiba Sangtam. On the other hand, it is evident from the report of the Inquiry Committee dated 15.3.2003 that the Inquiry Committee met on 11 and 12 March, 2003 and in the said meetings only, an amount of Rs. 33,77,371 was found to be due by the said Mr. Sangtam to the University authority. On the other hand, it is evident from the report of the Inquiry Committee dated 15.3.2003 that the Inquiry Committee met on 11 and 12 March, 2003 and in the said meetings only, an amount of Rs. 33,77,371 was found to be due by the said Mr. Sangtam to the University authority. The said meetings were admittedly held much after the death of T. Horiba Sangtam and therefore, it is evident that the Inquiry Committee has conducted the enquiry as well as submitted the report behind the back of Mr. Sangtam who died on 25th April, 2002. 15. By the office order dated 21st June, 2001 (Annexure-C to the affidavit-in-opposition filed by respondent Nos. 4 and 5), it appears that Mr. Sangtam was directed to settle all pending issue/bills/payment s made by him, including pending payments of Rs. 8,85,647 to the contractors concerned. By the said order also University authority did not come to any finding regarding the amount of Rs. 33,77,371 payable to the University authority. Communication dated 21st March, 2001 (Annexure-D to the affidavit-in-opposition filed by respondents 4 and 5) also reveals that Mr. Sangtam was directed to settle and clear the liabilities failing which the University authority will initiate further proper proceedings. 16. From the perusal of the aforesaid office order and communication, it is clear that the University authority did not come to any definite finding regarding any amount payable by Mr. Sangtam to the University authority. The aforesaid communication and office orders, also do not reveal about issuance of any notice to Mr. Sangtam, who was repatriated to the parent department w.e.f. 1.1.2002, before issuing the said office orders and communications, and therefore, the same is on the face of it, in complete violation of the principles of natural justice. 17. The writ petitioners have claimed the family pension under the provisions of Central Civil Services (Pension) Rules, 1972, which rule is also applicable in the State of Nagaland. 17. The writ petitioners have claimed the family pension under the provisions of Central Civil Services (Pension) Rules, 1972, which rule is also applicable in the State of Nagaland. Rule 9 of the said Rules provides that the President reserved the right of withholding a pension or gratuity or both either in full or in part and also of ordering recovery from pension or gratuity of the whole or part of any pecuniary loss caused to the Govt., if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement. In the instant case, the admitted position is that no departmental or other judicial proceedings were initiated, not to speak of finding the concerned Officer guilty of grave misconduct or negligence of duty, during the lifetime of the officer concerned. 18. The Apex Court in Gorakhpur University and Ors. v. Dr. Shitla Prasad Nagendra and Ors., reported in AIR 2001 SC 2819, has held that pension and other retiral benefits cannot be adjusted or appropriated for satisfaction of any other dues outstanding against the retired employees. 19. In Chandreshwar Prasasd Sinha v. State of Bihar and Anr., reported in : (2001) 9 SCC 369 , the Apex Court has held that in the absence of determination of specific loss alleged to have been suffered by the State without giving the officer concerned an opportunity to contest the same, no recovery or reduction in pension can be made by the State Govt. Similar view has also been taken by the Apex Court in Lakshmi Narayan Mukhopadhayay v. Union of India and Ors., reported in (2002) III LLJ 527 SC, wherein the Apex Court has held that quantification of amount due by the employee without giving an opportunity to the appellant and recovery of the said amount from the gratuity payable, is illegal. 20. In the present case in hand, it is evident that no disciplinary or judicial proceeding was initiated against T. Horiba Sangtam during his lifetime and no quantification of amount due was made by the University authority during his lifetime. The quantification of amount by the University having been made after the death of T. Horiba Sangtam, the said amount cannot be recovered from the benefits payable to the deceased employee. The quantification of amount by the University having been made after the death of T. Horiba Sangtam, the said amount cannot be recovered from the benefits payable to the deceased employee. The pension and gratuity are no longer matter of any bounty to be distributed by the Government; but are valuable rights acquired and property in their hands. The Apex Court repeatedly emphasising the said position and has even directed to impose penalty in the form or payment of interest in cases where such pension and other retiral benefits as well as the service benefits have not been disbursed to the person concerned promptly. 21. In this case the officer concerned died in harness on 25th April 2002; but in spite of the repeated requests made by the writ petitioners, the amount due towards the family pension, gratuity, group insurance scheme, provident fund and other service benefits, including medical reimbursement, leave encashment etc. Have not been paid by the State respondents as well as by the University authority. As already held that the said amount cannot be withheld by the authority in view of the fact that no departmental or other judicial proceedings were initiated and also there was no quantification of amount due by Mr. Sangtam during his lifetime. The respondent authorities have illegally withheld those benefits. Therefore, the respondents are directed to release all the benefits payable to the writ petitioner within a period of 2 (two) months from today. In the event of failure to release the said amounts due to the writ petitioners within the said period, the authorities shall be liable to pay interest @ 18% P.A. from today till the date of actual payment. 22. In view of above the writ petition is allowed with cost of Rs. 10,000 (Rupees ten thousand) to be paid by the University authority to the writ petitioners.