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2009 DIGILAW 367 (GAU)

H. K. Dutta v. State of Nagaland

2009-05-29

ASHOK POTSANGBAM

body2009
JUDGMENT Asok Potsangbam, J. 1. Heard Mr. I. Longjem, learned Counsel appearing for the Petitioner, Mr. N.M. Jamir, learned Counsel appearing for the Respondent Nos. 1 and 2 and Mr. T.B. Jamir, learned Counsel appearing for the Respondent No. 3. 2. The affidavit on behalf of the State Government as well as Accountant General have been filed explaining their respective stand in the case. 3. The brief facts, which have given rise to the filing of this writ petition, may be noticed as hereunder 4. The Petitioner who was working as Chief Town Planner in the Planning and Coordination Department, Govt. of Nagaland, was placed under suspension by an order dated 18.2.1998 in contemplation of a disciplinary proceeding against him. At the time of issuing the aforesaid suspension order, there was hardly seven (7) months for the Petitioner to serve in the Government before superannuation. A Memorandum of charges dated 3.8.98 along with article of Charge and statement of imputation of misconduct was served upon him. A perusal of the charges levelled against the Petitioner simply suggest that the charges are drawn on flimsy ground and apparently incapable of being substantiated. The charges were replied by filing defence statement wherein the Petitioner had vehemently denied all the charges. 5. By an order dated 21.9.1998, the Petitioner was allowed to retire from service w.e.f. 30.9.1998. However, in the superannuation order, a condition was stipulated in the following words "pension will, however, be settled only on finalization of the Disciplinary Proceeding pending against the Officer." It appears from the order dated 5.12.2000 (Annexure-F) passed by the Additional Deputy Commissioner (Judicial), Kohima, that the Petitioner had been discharged along with three others from Kohima P.S. Case No. 172/97 under Sections 165/384/129/34 IPC. Even after issuance of the order dated 21.9.1998 (Annexure-D) allowing the Petitioner to retire from service w.e.f. 30.9.1998, another order dated 4.2.2002 was issued by the Government revoking the suspension order dated 18.2.1998 and restoring the Petitioner of his right to avail of pension, subject to the condition that Government would still have the right to withhold pension in future. After the Petitioner retired from service as discussed above, the question of revocation of suspension at a subsequent date does not arise in as much suspension can be enforced only on a Serving Officer. The procedure adopted by the Government is somewhat strange and unknown to law. 6. After the Petitioner retired from service as discussed above, the question of revocation of suspension at a subsequent date does not arise in as much suspension can be enforced only on a Serving Officer. The procedure adopted by the Government is somewhat strange and unknown to law. 6. The grievance of the Petitioner is that even during the pendency of the Disciplinary Proceeding, he is entitled to provisional pension under Rule 9.4 read with Rule 69 of the CCS (Pension) Rules, 1972 and denial of the provisional pension could only entail penal interest. The other grievance of the Petitioner is that his entitled amount of Rs. 11,689.00 under Group Insurance Scheme was paid after three years three months, leave encashment amounting to Rs. 2,10,307/ - was paid after three years eight months, gratuity amounting to Rs. 3,46,713/- was paid after four years and eleven months, commuted pension amount of Rs. 1,28,196/ - after four years eleven months. His pension arrear accrued from October 1998 to July 2003 was paid after five years and arrear Dearness Allowance and Medical Allowance amounting to Rs. 51,421.00 was paid after five years. Thus, it is submitted that the Petitioner is entitled to interest on the aforesaid amount for delayed payment. 7. The counter affidavit on behalf of the Respondent No. 3, Accountant General, has been filed explaining that insofar as the Office of the Accountant General is concerned, there was no inordinate delay in clearing/sanctioning the authorization for payment which were due to the Petitioner. The learned Counsel for the Respondent No. 3 submits that pension papers for the Petitioner were forwarded to the office of the Accountant General on 1.4.2002 and the pension case of the Petitioner was settled in pre-revised scale on 12.8.2002 and as such, there was no unreasonable delay on the part of the Accountant General. The order dated 4.2.2002 revoking the suspension order was received by the Office of the Accountant General on 4.3.2002 and the Respondent No. 2 issued leave admissibility report for leave encashment on 7.3.2002. On 3.4.2002 the Office of the Accountant General issued authority for Rs. 2,10,729/ - on account of leave encashment and arrear pay allowances and arrear house rent. The order dated 4.2.2002 revoking the suspension order was received by the Office of the Accountant General on 4.3.2002 and the Respondent No. 2 issued leave admissibility report for leave encashment on 7.3.2002. On 3.4.2002 the Office of the Accountant General issued authority for Rs. 2,10,729/ - on account of leave encashment and arrear pay allowances and arrear house rent. Therefore, the submission of the Respondent No. 3 is that as soon as the papers are received from the State Government for authorization of payment on any of the retiral benefits, there was no delay on the part of the Accountant General in issuing necessary sanction and authorization and as such, the Respondent No. 3 is not at all liable for any delayed payment. The affidavit of the State Government is a simple denial of the contentions raised in the writ petition. However, it is contended by the State Govt. that because of the pendency of the Disciplinary Proceeding against the Petitioner, pension and other retiral benefit papers were not submitted to the Office of the Accountant General for its clearance and sanction and above is the only justification given for such a long delay. 8. When the statutory rules i.e. CCS (Pension) Rules, 1972 provides for provisional pension during the pendency of Departmental or judicial proceeding in terms of Rule 9.4 read with Rules 69 of the Pension Rules, 1972, the State Government of which the Petitioner was an employee, is bound under law to submit pension papers for provisional pension to the Accountant General, even if, assuming that final settlement of pension could be made only after finalization of Disciplinary Proceeding as stipulated in Notification dated 21.9.1998 by which the Petitioner was retired from service. Secondly, even assuming that the stipulation made in the Notification dated 21.9.1998 is legally sustainable, the stipulation being confined to pension alone, there cannot be any justification on behalf of the Government for delaying the payment in respect of Group Insurance Scheme, Gratuity, Leave encashment, arrear on dearness allowance and medical allowance etc. and withholding of the aforesaid retiral benefits is arbitrary and against law. and withholding of the aforesaid retiral benefits is arbitrary and against law. Further, when the order dated 21.9.1998 was issued allowing the Petitioner to retire from service on 30.9.1998 on attaining the age of superannuation, the suspension order dated 18.2.1998 would automatically cease to exist in law and as such the question of revocation of the suspension by issuing Notification dated 4.2.2002 could not have arisen. A reading of the documents together with the explanation given by the Accountant General, would make clear that the State Government, without any justifiable reason, withheld the payment of pension and other retiral benefits due to the Petitioner, as mentioned above. 9. In AIR 1985 SC 356 State of Kerala and Ors. v. M. Padmanabhan Nair, the Apex Court held that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on the retirement but have become, under the decision of this Court, 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. In 1987 (Supp.) SCC 56 Harendra Nath v. State of Bihar and Ors., wherein interest on the amount of retirement benefit due to delayed payment from the date of filing writ petition, was reversed by the Apex Court and ordered that such interest on the amount of retirement benefit should be awarded from the date of superannuation instead of the date the writ petition was filed before the High Court. In (2001) 9 SCC 687 Vijay L. Mehrotra v. State of U.P. and Ors., the Apex Court held in the following words-- It is expected that all retiral benefit should be paid on the day of retirement or soon thereafter if for some unforeseen circumstances the payment cannot be made on retirement day itself. In the aforesaid case, the Appellant therein retired on 31.8.1997 and her retiral benefit was paid in between 27.11.1997 to 5.11.1999 without giving any justifiable reason for the delay in between. In the circumstances, the Apex Court directed for payment of 18% interest to the amount due to the Appellant therein from the date of her retirement till the date of actual payment. 10. In the circumstances, the Apex Court directed for payment of 18% interest to the amount due to the Appellant therein from the date of her retirement till the date of actual payment. 10. Now, coming back to the instant writ petition, the Petitioner who also was supperannuated from service w.e.f. 30.9.1998, was statutorily entitled to have provisional pension even assuming that there was a valid departmental and criminal proceeding pending against him and the denial of such benefit is violation of Rule 9.4 read with Rule 69 of the CCS (Pension) Rules 1972 and such, the Petitioners would be entitled to an interest at the rate of 7% per annum on the arrear pension amount w.e.f. 1.10.1998 to 24.10.2003 on which date, pension arrear for the period between October, 1998 to July, 2003 was paid. Secondly, as there was no legal obstacle under any circumstances to pay gratuity, leave encashment, group insurance etc. the Petitioner shall also be entitled to interest at the rate of 7% per annum, on group insurance amounting to Rs. 11,689/ - w.e.f. 1.10.1998 to 11.1.2002, leave encashment amounting to Rs. 2,10,307/ - w.e.f. 1.10.1998 to 10.6.2002 and lastly, on the gratuity amount of Rs. 3,49,713/ - w.e.f. 1.10.1998 to 26.9.2003. 11. In view of the reasons and discussions made herein above, this Court is of the opinion that explanation given by the State Govt. for delayed payment is not acceptable in as much as there was no legal obstacle for the State Govt. to submit the necessary papers to the Office of the Accountant General, wherever, it is necessary, for necessary clearance and sanction and as such it is the State Govt. which is responsible for delayed payment. Thus, the aforesaid interest amount as ordered above shall be paid by the State Government within a period of six (6) months from the date of receipt of a certified copy of this order. 12. With the above observation and direction the writ petition stands disposed of.