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2006 DIGILAW 1 (JK)

Mubarik Ahmad (Dr. ) v. State Of J. &K.

2006-01-01

MANSOOR AHMAD MIR

body2006
1. The petitioner has filed this writ petition in terms of Article 226 of the Constitution of India read with Section 103 of Jammu & Kashmir State Constitution, for commanding the respondents to settle the pension case of the petitioner at the rate of 18% interest and to award compensation in favour of the petitioner on the grounds taken in the writ petition, which can be aptly and precisely summarized as under: - The petitioner, who was the employee of Health Department, attained the age of superannuating in terms of annexure-P2. The respondents had not settled the pension case of the petitioner in time which constrained the petitioner to file the present petition. The petitioner has prayed for grant of following reliefs:- "(a) Writ of mandamus, commanding the respondents to take effective and proper steps and to settle the pension case of the petitioner and to release all pensioner benefits, gratuity and other Service benefits to which the petitioner is otherwise entitled to under rules, and further, (b) by issuance of an appropriate writ, all service benefits be released retrospectively with interest at 18% applicable for all nationalize banks and further, (c) by issuance of appropriate writ, direction or order, the petitioner be awarded compensation to the tune of Rs. five lacs and, further, (d) by issuance of an appropriate writ, direction or order, the respondents barring the respondent No.3 (Chief Medical officer, Pulwama) be commanded to initiate disciplinary action proceedings against Respondent No.3 in committing intentional and deliberate delay towards the settlement of the pension case of the petitioner and necessary orders be issued against respondent No. 3 and respondent No. 3 be penalized for making deliberate attempt in causing harm to the petitioner and effecting service rights and benefits of the petitioner. " 2. This Writ petition came to be admitted vide order dated 10th September, 1999. The respondents 1 and 2 have filed reply. It is profitable to reproduce para (a) of the preliminary objections, herein, which read as under :- "(a) That petitioner was asked by the CMO, Pulwama to provide relevant service record in order to complete his pension case. The service book of petitioner was not supported with the history sheet w.ef 14.6.61 i.e. the date of first appointment on 30.4.77 and service history sheet had to be completed from the records. The service book of petitioner was not supported with the history sheet w.ef 14.6.61 i.e. the date of first appointment on 30.4.77 and service history sheet had to be completed from the records. Not only that the service records was also not complete in respect of time bound promotion as petitioner had not applied for time bound promotion well in time during his service period, so the same has now been completed after petitioner s retirement. It is pertinent to mention it here that the petitioner had spent a period of about 9 years in foreign assignment during his service period with the result his service record was not complete due to his absence from duty. Petitioner was also required under rules to provide No Demand Certificate from the Estates Department as required under rules for completion of his pension case. Petitioner did not provide Form (A) and no demand certificate and other service record neither to the respondent No.5(Accountant General) nor to the parent department for completion of his pension case. However, the pension case of petitioner has now been submitted to the respondent No. 5 without aforementioned documents. So at no point of time, answering respondents can be held liable for not completing the pension case of petitioner. It is only because of negligence of petitioner that the pension case has not been settled, as petitioner did not complete the formalities. The writ petition, as such is. not maintainable and is liable to be dismissed. " 3, Petitioner has filed rejoinder affidavit. It is profitable to reproduce para-1 of the rejoinder affidavit, herein, which reads as under- "l/ That the facts stated in the heading preliminary objections points towards the negligence and undue delay caused by the respondents 1 and 2 in completing the pension case of the petitioner. It is submitted that it is for the employer to keep upto date service record of its employees particularly of those employees who are likely to attain the age of retirement. In the present case the respondents had not taken any pains to update the service record of the petitioner who retired in April 1996, but notwithstanding this fact an attempt has been made to blame the petitioner for such lapse. In the present case the respondents had not taken any pains to update the service record of the petitioner who retired in April 1996, but notwithstanding this fact an attempt has been made to blame the petitioner for such lapse. It is further submitted that the respondents have stated a patent lie in the para under reply that the petitioner had not furnished no demand certificates and other documents. It is submitted that primely it was the duty of the employer to collect these certificates from the concerned quarters, however the petitioner in order to facilitate the job of the respondents and expedite the finalization of his pension case supplied all these documents to the Chief Medical Officer Pulwama on 11.11.98. Subsequently the petitioner was again required to submit these documents and he again submitted these documents on 28.06.99. After filing the present writ petition the pension case of the petitioner was forwarded to the Accountant General Srinagar without annexing No demand Certificate from Estates Department, Form A and No demand Certificate on Form 8, notwithstanding the fact that these documents were already with the respondents. Consequently the pension case of the petitioner could not be finalised for want of these documents and the chief Medical Officer was asked by the Accountant General to submit these documents, but the Chief Medical Officer instead of doing the needful again required the petitioner to furnish these documents. The petitioner vide letter dated:01.02.2000 requested the Chief Medical Officer that the documents have already been furnished by him on 11.11.98 and thereafter again on 28.06.99, but even then no action was taken. The petitioner again on 01.05.2000 delivered these documents to Chief Medical Officer Pulwana along with his letter, copy whereof of is being annexed herewith. (Annexure-I)The facts stated, hereinabove clearly indicate that the respondents due to their inaction and negligence for which they have to, account for and are also liable to compensate the petitioners have deprived the petitioner of his legitimate dues. " 4. Learned counsel for the petitioner stated at bar that during the pungency of .the inquiry the case of-the petitioner was settled but petitioner is entitled to interest and prayed that interest be granted at the rate of 18% from the date the petitioner was entitled to till the date of release. And prayed that the compensation be also awarded in his favor. And prayed that the compensation be also awarded in his favor. Petitioner was entitled to pension from May, 1996 but the same has been settled on 28.09.2000. 5. The moot point for consideration is whether the petitioner is entitled to interest till the date pension case was settled i.e. 28.09.2000.It is the duty of employer to process the case of employee well in time before the employee reaches superannuating and it is the duty of employer to obtain "No Objection Certificate from the concerned offices wherever the employee had worked. it cannot lie in the mouth of respondents that they considered their case of petitioner but could not settle the same in time for the reasons that petitioner had spent a period of nine years in foreign assignment and had not obtained No Demand Certificate" from Estates Department. Respondents have taken contradictory stands and are blowing hot and cold. In one breath have pleaded that they could not settle the case well in time for the reasons discussed hereinabove and in second breath pleaded that they submitted the pension case, without requisite documents, well in time. The learned counsel for the petitioner slated that pension case of petitioner stands settled now. Keeping in view the above circumstances, 1 am of the considered view those respondents without any justification had failed to settle the pension case of the petitioner in time. 6. The Apex Court in case titled Vijay L. Mehrotra v. State of UP. and others reported in AIR2000 SC 3513 held that if the retiral benefits are delayed to an employee, the employee is entitled to retiral benefits with interest. It is profitable to reproduce para-4 of the said judgment herein, which read as under: - "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., 3rd August, 1997 till the dale of payments. " The Apex Court in case titled Uma Aardwolves. State of U.P. reported in AIR 1999 SC 1212 has held as under: - 5. " The Apex Court in case titled Uma Aardwolves. State of U.P. reported in AIR 1999 SC 1212 has held as under: - 5. We have referred in sufficient detail to the Rules and instructions which prescribe the time schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement. If the rules /instructions are followed strictly much of the litigation can be avoided and retired Government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the Government servant/ Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In case where a retired Government servant claims interest for delayed payment, the Court can certainly keep in mind the time-schedule prescribed in the rules/instructions apart from other relevant factors applicable to each case. 6. The case before us is a clear example of departmental delay, which is not excusable. The petitioner retired on 30.4.1993 and it was only after \ 2-2-1996 when an interim order was passed in this writ petition that the respondents woke up and started work by sending a special messenger to various places where the petitioner had worked. Such an exercise should have started at least in 1991, two years before retirement. The amounts due to the petitioner were computed and the payments were made only during 1997-98. The petitioner was a cancer patient and was indeed put to great hardship. Even assuming that some letters were sent to the petitioner after her retirement on 30-3-1993 seeking information from her, an allegation which is denied by the petitioner, that cannot be an excuse for the lethargy of the department inasmuch as the rules and instructions require these actions to he taken long before retirement, The exercise which was to be completed long before retirement was in fact started long after the petitioners retirement". The Apex Court in case titled H. Gangahanume Gowdav. The Apex Court in case titled H. Gangahanume Gowdav. Karnataka Agro Industries Corp. Ltd., reported in AIR 2003 " It is clear from -what is extracted above from the order of learned single Judge that interest on delay payment of gratuity was denied only on the ground that there was doubt whether the appellant was entitled to gratuity, cash equivalent to leave etc., in view of divergent opinion of the Courts during the pendency of enquiry. The learned single Judge having held that the appellant was entitled for payment of gratuity was not right in denying the interest on the delayed payment of gratuity having due regard to Section 1 (3A) of the Act. It was not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the Controlling Authority for the delayed payment on that ground. As noticed above, there is a clear mandate in the provisions of Section 1 to the employer for payment of gratuity within time and to pay interest on the delayed payment of gratuity. There is also provision to recover the amount of gratuity with compound interest in case amount of gratuity payable was not paid by the employer in terms of Section 8 of the Act. Since the employer did not satisfy the mandatory requirements of the proviso to Section 7 (3A), no discretion was left to deny the interest to the appellant on belated payment of gratuity. Unfortunately the Division Bench of the High Court, having found that the appellant was entitled for interest, declined to interfere with the order of the learned single Judge as regards the claim of interest on delayed payment of gratuity only on the ground that the discretion exercised by the learned single Judge could not be said to be arbitrary. In the first place in the light of what is stated above, the learned single Judge could not refuse the grant of interest exercising discretion as against the mandatory provisions contained in Section 1 of the Act. The Division Bench, in our opinion, committed an error in assuming that the learned single Judge could exercise the discretion in the matter of awarding interest and that such discretion exercised was not arbitrary. The Division Bench, in our opinion, committed an error in assuming that the learned single Judge could exercise the discretion in the matter of awarding interest and that such discretion exercised was not arbitrary. " Keeping in view the aforesaid facts, the petitioner is entitled to 18% simple interest from 1st July 1996 till 28-.09.2000. Accordingly, the respondents are directed to calculate the interest and release the same to the petitioner within three months from the date the copy of this order is served upon the respondents. This writ petition is accordingly disposed of along with all connected CMP( s).