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2005 DIGILAW 418 (HP)

DHANI DEVI v. STATE OF H. P.

2005-11-10

M.R.VERMA

body2005
JUDGEMENT M. R. Verma, J. (Retd.) Chairman: In this original application the applicant has claimed the following reliefs: 1. "That the respondents No.1 to 3 may be directed to make due entries in the service book of the applicant with regard to the grant of proficiency increments w. e. f. 1.1.1986 and consequently, arrive at the revised last pay which would have been drawn by the applicant on the date of retirement. ii. That the respondents No. 1 to 3 may be directed to fix the pay of the applicant at Rs.1485/- as on 1.1.1993 and thereafter give due increments as per the notifications issued by Finance department regarding revision of pay scales and grant of master scale from time to time and consequently fix the last pay of the applicant at Rs.1580/- on the date of retirement. iii That the respondents No.1 to 3 may be directed to send the corrected service books as prayed for in prayers (1) and (ii) to the respondent No.4 and respondent No.4 may be directed to consequently issue revised PPO or any other order in favour of the applicant for the payment of revised pension and arrears of other pensionary benefits permissible under law to the applicant, immediately within reasonable period. iv. That the respondents No. 1 to 3 may be directed to pay interest @18% per annum to the applicant on the arrears of pensionary benefits payable to her on account of her correct fixation of pay as prayed for above from 31.7.1995 till the date of realisation of the same, in the interest of justice; v. Any other order in the circumstances of the case as deemed fit may also be passed in favour of the applicant. vi. That the respondents may be burdened with the cost of this application and they may also be directed to produce the entire record pertaining to this case". 2. I have heard the learned counsel for the applicant and the learned Additional Advocate General for the respondents and has also gone through the record. 3. The brief facts leading to_ the filing of the present original application are that the applicant retired as mid wife on 31.7.1995. According to the applicant for want of complete entries in her service book, her retiral benefits were assessed, settled and paid on the basis of lesser basic pay than the pay she was actually entitled to. 3. The brief facts leading to_ the filing of the present original application are that the applicant retired as mid wife on 31.7.1995. According to the applicant for want of complete entries in her service book, her retiral benefits were assessed, settled and paid on the basis of lesser basic pay than the pay she was actually entitled to. Her representations dated 27.8.2004, 20.9.1994, 6.10.1994, 8,12.1994, 11.1.1995, 22.1.1995 and 24.1.1995 for making necessary entries in the service book did not yield any fruitful result which finally led to assessment and payment of lesser retiral benefits to her. 4. In reply, the claim was disputed by the respondents. When the same was re-agitated by the applicant in her rejoinder, the respondents in their sur-rejoinder came forward with the plea that the applicant, in fact, was given two proficiency increments w. e. f. January 1, 1986 when her basis pay was Rs.1580/-. The requisite entries, however, were not carried out in her service book and thus "there remained an un-intentional mistake with regard to making of entries in the Service Book of the applicant, and this may have led to some misunderstanding between the office of the Block Medical Officer, Lad-Bharol and the office of the AG, H.P. with regard to the instant case. The un-intentional mistake so occurred was subsequently rectified and the pension of the applicant got revised from the office of the AG, HP by the Office of the Block Medical, officer, Lad-Bharol and the areas of increments alongwith the arrears of the difference of the DCRG also paid other which had already been received by her in the year 2001, as intimated by the office of the Chief Medical Officer Mandi, i.e. after the date of filing of rejoinder on November 21, 2000." 5.In view of the above admission by the respondents it is clear that at the , first instance the retiral benefits of the applicant were work out and paid to her on the basis of incomplete service book which resulted in lesser payment to her than she was entitled to. 6. 6. Since the lapse committed in proper maintenance of the service book, has been rectified and resultant payments, though after considerable delay had been made to the applicant, therefore, according to the learned counsel for the applicant except the claim for interest on the delay payments, all other reliefs claimed n this applicant have become infructuous. Therefore, the only question which services for determination in this original application is as to whether the applicant is entitled for: [interest for the delayed payment and if so, at what rate. 7. In view of the provisions of Rule 68 of CCS (Pension) Rules, (hereinafter referred to as the rules) in case of delay in payment of gratuity attributable to administrative lapses, interest has to be paid to the retiree at such rate as may be prescribed. Similar provision regarding payment of interest in the event of delay attributable to administrative lapses regarding determination and settlement of pension do not exist in the Rules, therefore, it was submitted for the respondents that in the absence of any provision for payment of interest on delayed payment of pensionary benefits, interest as claimed may not be awarded. 8. No doubt, the Rules provided for payment of interest in case of delayed payment of gratuity but it is not so in case of delayed payment of other pensionary benefits. However, in view of the scheme of the Rules the contention that in the absence of any provisions for payment of interest on delayed settlement/payment of pension, no interest can be awarded, cannot be sustained. As is evident form the perusal of the relevant Rules, these are so framed that it is ensured that finalisation of payment of retiral benefit to the retiree is not delayed. 9. Rule 58 of the Rules mandates that every Head of Office shall undertake the work of preparation of pension papers two years before the date on which the government servant is to retire on superannuation or on the date on which he proceeds on leave preparatory to the retirement whichever is earlier. 10. Rule 59 provides stages for completion of pension papers. 10. Rule 59 provides stages for completion of pension papers. The first stage is the verification of the service, second stage is to make good the omissions in the service book and calculation of average emoluments and the third stage is to afford opportunity to the retiring government servant to object to the length or qualifying service for the purpose of pension and gratuity as determined at stage-2 and take final decision in the matter after taking into account .the representation if any made by the government servant. Sub Rule (ii) Rule 59 provides that the aforesaid actions be taken in three stages shall be completed 8 months prior to the date of retirement of the government servant. 11. Rule 60 requires the Head of Office to complete pension papers not later than six months before the date of retirement of the government servant and Rule 61 provides for forwarding of pension case to the Accounts Officer after completion in all respect before 6 months of the retirement of the government servant. 12.Rule 64 provides that if for any reason like the Accounts Officer returning pension papers to the Head of the Office for eliciting further information and such or similar action on his part is likely to result in non-finalization of the assessment and settlement of the pension and gratuity of the government servant, the Head of the Office shall determine the amount of provisional pension and provisional retirement gratuity. 13.In view of the above Rules, it is clear that the Head of Office is required to ensure completion of settlement and assessment of the gratuity and pension of a retiring government servant in a manner that such servant has not to wait for receipt of his pensionary benefits on his retirement. Therefore, in case the payment of pensionary benefits is delayed because of any administrative lapse and the delay is not attributable to the retiring government servant, there is no reason in equity or in law on the basis of which the government servant may be dis-allowed interest for delayed payment of pensionary benefits. 14 In "State of Kerala and others Virs. 14 In "State of Kerala and others Virs. M.Padmanabhan Nair, AIR 1985 Supreme Court 356, the Apex Court held as under: - "Pension and gratuity are no longer any bounty to be distributed by the government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands." It was further held:- "The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over emphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the expiry of two months from the date of retirement." 15 in "Vijay L. Mehrotra Vrs. State of U.P. and others, (2001) 9 Supreme Court Cases 687" the Apex Court while dealing with the delayed payment of retiral benefit held as under: - 2. The appellant retired from service on 31.8.1997. From the response filed by the respondent, it is clear that mot of the payments of the retiral benefits to her were made long after she retired on 31.8.1997. The details of the payments so made areas under:- Sr. No. Particulars Amount paid Date. (i) GPF 90% Rs. 1,80,899.00 27.11.1997 (ii) GPF 10% Rs. 20,751.00 24.4.1998 (iii) GIS Rs. 13,379/00 27.2.1998 (iv) Encashment of Leave Rs. 41,358.00 27.9.1998 (v) Arrears of pay. Rs. 15,495/- 27.9.1998 (vi) Gratuity Rs. 1, 09, 753, 00 5.12.1998 (VII) Commuted pension Rs. 20,484,00 5.12.1998 (viii) Detained amount. Rs. 45,000.00 5.11.1999 3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement. 4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the Appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement, i.e. 31.8.1997 till the date of payments." 16. In view of the above settled position in law the contention that in the absence of any provisions regarding payment of interest on the delayed payment of pensionary benefits other than gratuity interest cannot be granted is unsustainable. 17. In view of the above settled position in law the contention that in the absence of any provisions regarding payment of interest on the delayed payment of pensionary benefits other than gratuity interest cannot be granted is unsustainable. 17. In the case in hand the applicant admittedly retired from government service on 31.7.1995. However, her pensionary benefits were wrongly calculated because of her service book having not been correctly completed despite her; various representations even before her retirement. It was only during the pendency j of the present original application that the respondents completed her service book and paid consequential retiral benefits in the year 2001 i.e. after almost six years of her retirement. It was duty of the Head of the Office to maintain the service book of the applicant correctly updated. The head of Office not only failed to discharge this part of his duty but also failed to take prompt action on the representation made by the applicant to correct her service book. The want of action on the part of the head of Office resulted in lesser payment of pensionary benefits to the applicant for no fault on her part. Therefore, the applicant is entitled to interest on the amount which was finally and admittedly paid to her in the year 2001 from the date after expiry of two months from the date of retirement of the applicant. 18. Nothing has been brought on record to say that current/relevant rate of interest was 18% per annum as claimed in the original application. However, interest of justice will be met if the interest is awarded at the rate of 12 per annum. 19. In view of the above, this original application is allowed and the t respondents are directed to pay interest at the rate of 12% per annum on the amount which was paid to the applicant on account of retiral benefits after correction and updating of her service book for the period commencing after two months of the retirement date of the applicant i.e. from 1.10.1995 till the date of payment of such amount in the year 21001 within three months from the date of this order. 20. In the facts and circumstances of the case the respondents are further directed to pay costs of this litigation to the applicant quantified at Rs.3000/- within three months from today. 21. 20. In the facts and circumstances of the case the respondents are further directed to pay costs of this litigation to the applicant quantified at Rs.3000/- within three months from today. 21. It may be pointed out that the State Government has been saddled with a liability for culpable neglect in the discharge of duties by its concerned functionaries, therefore, it is left open to the State Government to consider whether the erring officer (s)/officials(s) should or should not be directed to compensate the government for the loss sustained by it by his/their negligence. This original application is disposed of in terms of the above. Orders.