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Rajasthan High Court · body

2010 DIGILAW 2045 (RAJ)

M. L. Wadhwa v. State of Rajasthan

2010-12-09

VINEET KOTHARI

body2010
JUDGMENT Hon'ble Dr. KOTHARI, J.—By this writ petition, a retired Chief Engineer of the Irrigation Department of Government of Rajasthan, has claimed interest @ 24% p.a. from the date of his retirement on 31.3.1999 till the date of actual payment of retiral benefits for the delay occurred in the payment of such retiral benefits to him. The petitioner has further claimed damages to the extent of Rs. 1,00,000/- for causing harassment and mental agony against the respondent-State. 2. Learned counsel for the petitioner submitted that the petitioner was falsely implicated in certain disciplinary enquiries and also a criminal case under the provisions of Section 13(1)(d) of the Prevention of Corruption Act, 1988; however, despite exoneration from the charges in the departmental proceedings and acquittal by the competent court in the aforesaid corruption case against him, the respondent State delayed the payment of retiral dues to him until 2003 when the final Pension Payment Order (PPO) was issued to him on 11.2.2003. Therefore, for the period of about four years, from the date of retirement on 31.3.1999 till the payment of retiral dues on 11.2.2003, the petitioner, deserves to be paid interest thereon @ 24% p.a. However, learned counsel for the petitioner during the course of arguments submitted that the rate of interest can be reduced as per prevailing rate of interest at 9% p.a. 3. Learned counsel for the petitioner also submitted that against the order of acquittal in the Criminal Case No. 12/1998 (State vs. Mohan Lal) under Section 7, 13(1)(d)(2) of the Prevention of Corruption Act, 1988 on 5.7.2001, the State filed a criminal leave to appeal before High Court being S.B. Criminal Leave to Appeal No. 304/2001 (State of Rajasthan vs. Mohan Lal), which came to be rejected by this Court on 28.2.2002. Thereafter, the State took the matter further to the Apex Court by way of filing SLP (Criminal Appeal No. 85/2003 (State vs. Mohan Lal), which also came to be dismissed by the Apex Court on 16.4.2009; and thus the petitioner having been acquitted from the alleged charges of corruption against him, there remains no reason with the respondent-State to delay the payment of retiral dues to the petitioner which fell due on the date of retirement on 31.3.1999, and the petitioner is entitled to interest on the aforesaid delayed payment of retiral dues. He, therefore, prayed for allowing of the writ petition. 4. He, therefore, prayed for allowing of the writ petition. 4. Per contra, learned counsel for the respondent-State submitted that Rule 89 of the Pension Rules, 1996 as substituted on 12.6.2001 vide Note No. (ii) under sub-rule (6) did not permit the date of retiral dues to be taken as the date of retirement, in case of Government servant against whom disciplinary/judicial proceedings are pending on the date of retirement, and such due date could be taken only on the date of issue of the orders by the competent authority releasing such retiral dues to the official concerned. He also submitted that said Rule 89(6) as amended with effect from 9.9.2008, and which is sought to be relied upon by the petitioner in the present case by way of filing additional affidavit, does not apply to the present case as the petitioner retired way back on 31.3.1999 and immediately after dismissal of the leave to appeal of the State by the High Court on 28.2.2002, the petitioner was paid the retiral benefits on 11.2.2003, therefore, no interest on such alleged delay in payment of retiral dues was payable to the petitioner. Drawing attention of the Court towards para 6 of the reply filed by the State, learned counsel for the non-petitioner also submitted that the petitioner also produced No Objection Certificate with respect to his loan for vehicle only on 1.8.2002 and, therefore, the final pension payment order and amended pension payment order was issued to him on 11.2.2003. Hence, the delay occurred in payment of retiral dues was not attributable to the respondent-State and, therefore, the petitioner is not entitled to any interest on the delayed payment of pension and retiral benefits. He also submitted that provisional pension was, of course, issued in favour of petitioner on 1.10.1999 with effect from 1.4.1999 itself. 5. Learned counsel for the petitioner Mr. S.P. Sharma and Mr. He also submitted that provisional pension was, of course, issued in favour of petitioner on 1.10.1999 with effect from 1.4.1999 itself. 5. Learned counsel for the petitioner Mr. S.P. Sharma and Mr. Sandeep Singh, in rejoinder, also relied upon a decision of Hon'ble the Supreme Court in the case of S.K. Dua vs. State of Haryana & Anr., reported in (2008) 3 SCC 44 = 2008(3) RLW 2592 (SC), particularly, para 14 and submitted that even if there was no specific rule in this regard, the petitioner could claim interest on the delayed payment of retiral benefits as per provisions of Interest Act and in view of Article 14, 19 and 21of the Constitution of India as held by the Apex Court. Learned counsel for the petitioner also urged that Rule 89(6) as amended in the year 2008 could be given a retrospective effect since this was a beneficial Legislation and, therefore, in view of acquittal of the petitioner by the competent court on 5.7.2001, the petitioner was entitled for interest on the delayed payment of retiral dues. 6. I have given an objective consideration to the rival submissions advanced at bar by learned counsel for both the sides and carefully perused the record and case laws cited before me. 7. It would be appropriate here to first reproduce the Rule 89 of the Pension Rules, 1996 as it was substituted with effect from 12.6.2001 and as amended from time to time. The complete Rule 89 substituted by notification No. F. 15(3) FD(Rules)/97/Part II dated 12.6.2001 read as under: Rule 89- Interest on delayed payment of retiral benefits: (1) Except in exceptional circumstances, if the payment of retiral benefits has been authorised after 60 days from the date when its payment became due, and it is clearly established that the delay in payment was not on account of failure on the part of the Government servant to comply with the procedure laid down in this Chapter or elsewhere in these rules, interest @ 12% per annum for the period beyond 60 days after retiral benefits become due would be payable till the end of the on the month preceding the month in which the retrial benefits are authorised. (2) Every case of delayed payment of retiral benefits shall, suo moto, be examined by the Head of Office and shall be forwarded to the Administrative Department through the Head of Department, and where the Administrative Department is satisfied that the delay in payment of retrial benefits was caused on account of administrative lapse or inaction, the Administrative Department concerned shall issue sanction for the payment of interest to the Director, Pension Department. (3) In all cases, where the payment of interest has been authorised, the Administrative Department concerned shall fix responsibility and take disciplinary action under the Rajasthan Civil Services (CCA) Rules, 1958 against the Government servant(s) who is/are found responsible for the delay in the payment of retiral benefits and shall recover the loss caused to the Government due to payment of interest to the pensioner from the Government servant(s) held responsible. (4) In the order for payment of interest, the Administrative Department shall also mention the name(s) of officer/(s)/official (s), responsible for delay and the amount of interest recoverable from him/them. (5) If, as a result of Government's decision taken subsequent to the retirement of a Government servant, the amount of retiral benefits already paid on his retirement is enhanced on account of:- (a) grant of emoluments higher than the emoluments on which retiral benefits, already paid, were determined, or (b) liberlisation in the provisions of these rules from a date prior to the date of retirement of the Government servant concerned, no interest on the arrears on retiral benefit shall be paid. (6) In case any delay is caused in the Pension Department, responsibility shall be fixed for such delay and suitable action taken against such erring official(s) to recofer the interest paid to the petitioner. NOTES (i) The payment of retiral benefits becomes due on the date of retirement and in the case of death while in service, from the date of application for payment of respective retiral benefits. (ii) In case of Government servant against whom disciplinary/judicial proceedings are pending on the date of retirement, no retiral benefits be paid except provisional pension, until the conclusion of the proceedings and the issue of the final orders thereon. The retiral benefits, if allowed to be drawn by the competent authority on the conclusion of the proceedings, will be deemed to have fallen due on the date of issue of orders by the competent authority." 8. The retiral benefits, if allowed to be drawn by the competent authority on the conclusion of the proceedings, will be deemed to have fallen due on the date of issue of orders by the competent authority." 8. Sub-Rule (1) of Rule 89 was further amended with effect from 7.6.2004 and the amended sub-Rule (1) of Rule 89 reads as under:- 1. (i) These rules may be called the Rajasthan Civil Services (Pension) (Amendment) Rules, 2004. (ii) These rules shall come into force with immediate effect. 2. The existing sub-rule (1) of Rules 89 of Rajasthan Civil Services (Pension) Rules, 1996, shall be substituted by the following, namely:- "If the payment of retiral benefits has been authorised after 60 days from the date when its payment became due, and it is established that the delay in payment in payment was not on account of failure on the part of the Government servant in compliance of the procedure laid down in this chapter or elsewhere in these rules interest @ 9% per annum from the date retiral benefits become due would be payable till the end of the month preceding the month in which the retiral benefit are authorised. No. F. 15(3) FD (Rules)/97 Pt. I." 9. There was further amendment in the said Rule by the Rajasthan Civil Services (Pension) (Amendment) Rules, 2008 by notification No. F. 15(3)FD (Rules)/97/Pt. I, dated 9.9.2008, which is also produced hereunder for ready reference:- 1. These rules may be called the Rajasthan Civil Services (Pension) (Amendment) Rules, 2008. 2. These rules shall come into force with immediate effect. 3. In the aforesaid rules-the existing Note (ii) below sub-rule (6) of Rule 89 shall be substituted by the following, namely:- "(ii) In case of a Government servant against whom disciplinary/judicial proceedings are pending on the date of retirement, no retiral benefits be paid except provisional pension, until the conclusion of the proceedings and the issue of the final orders thereon. If, on the conclusion of the disciplinary/judicial proceedings: (a) a Government servant is fully exonerated the retiral benefits may be deemed due on the date following the date of retirement and the interest on delayed payment of retirement gratuity may be allowed from the date, the gratuity has fallen due. The rate of interest on delayed payment will be in the prevailing rate of interest on General Provident Fund. The rate of interest on delayed payment will be in the prevailing rate of interest on General Provident Fund. (b) If a retired Government servant who dies during the pendency of judicial/disciplinary proceedings against him and against whom proceedings are consequently dropped, no interest on delayed payment of retiral benefits shall be payable in such a case for the period from the date of retirement to the date of death. (c) In other cases, the retiral benefits if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of order by the Competent Authority." 10. In view of existence of Rule 89 in the present case as far as question of falling back on Constitutional provisions and the on provisions of interest Act is concerned, there is no need for the same as the rule for payment of interest in cases of delayed payment of retiral dues thus exists on the statutory book in the present case. This is what Hon'ble the Supreme Court in the case of S.K. Dua (supra) in para 14 also observed that if there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for that purposes, the appellant may claim the interest on that basis. But even in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution and Articles 14, 19 and 21 of the Constitution of India. The entire para No. 14 of the said judgment is reproduced herein below for ready reference: "14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents." 11. The question which falls for determination by this Court in the present case is as to whether Rule 89 as amended in the year 2008 with effect from 9.9.2008 will apply in the present case or the Rule which was substituted with effect from 12.6.2001, as quoted above, will apply in the present case. The dates are clear and admitted, the date of retirement of the petitioner as Chief Engineer on 31.3.1999 is undisputed and the date of payment of final pension as per amended PPO on 11.2.2003 is also clear and admitted. Thus, both the relevant dates of period of delay is admittedly prior to the amendment of Rule 89(6) with effect from 9.9.2008. 12. The State Government has enacted the Rajasthan Civil Service (Pension) Rules, 1996 in exercise of power conferred by the proviso of Article 309 of the Constitution. Thus, both the relevant dates of period of delay is admittedly prior to the amendment of Rule 89(6) with effect from 9.9.2008. 12. The State Government has enacted the Rajasthan Civil Service (Pension) Rules, 1996 in exercise of power conferred by the proviso of Article 309 of the Constitution. The Article 309 of the Constitution of India, which deals with recruitment and conditions of service of the person serving the Union or State stipulates that subject to provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the union of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made, shall have effect subject to the provisions of any such Act. 13. Thus, the Rajasthan Civil Services (Pension) Rules, 1996 having been made by the Governor in exercise of power conferred under the aforesaid Proviso of Article 309 of the Constitution of India is a delegated legislation and is to hold the field till the Act is enacted in this respect as per aforesaid Proviso of Article 309 of the Constitution of India. It is well settled rule of construction that a delegated legislation cannot be given a retrospective effect unless it is specifically stated to be so. 14. The amendment in Rule 89(6) in the aforesaid Pension Rules of 1996 vide notification No. F.15(3) FD(Rules)/97 Pt. II dated 9.9.2008 by `Rajasthan Civil Services (Pension) (Amendment) Rules, 2008' is also in exercise of delegated powers of the legislation conferred upon the State Government by proviso of Article 309 of the Constitution of India. 14. The amendment in Rule 89(6) in the aforesaid Pension Rules of 1996 vide notification No. F.15(3) FD(Rules)/97 Pt. II dated 9.9.2008 by `Rajasthan Civil Services (Pension) (Amendment) Rules, 2008' is also in exercise of delegated powers of the legislation conferred upon the State Government by proviso of Article 309 of the Constitution of India. What the amendment in Rule 89(6) brought in the year 2008 did, was to make three exceptions or three categories of the Government servant, against whom disciplinary/judicial proceedings are pending on the date of retirement. The Note (ii) to sub-Rule (6) of Rule 89 as amended in 2008 stipulates that in case such disciplinary/judicial proceedings are pending on the date of retirement, no retiral benefits be paid except provisional pension until the conclusion of the proceedings and issue of final orders thereon. The three categories as aforesaid are : (a) If on the conclusion of the disciplinary proceedings, if the Government servant is fully exonerated, the retiral benefits may be deemed to due on the date following the date of retirement; and (b) if the retired Government servant dies during the pendency of the disciplinary/judicial proceedings, then no interest on delayed payment of retiral benefits shall be payable for the period from the date of retirement till the date of death and the residuary Clause (c) provides that in other cases (Other than Clause (a) cases of Government servant completely exonerated, and Clause (b) cases of Government servant dying during the pendency of the disciplinary/judicial proceedings against him) and in such residuary cases, the date of retiral dues falling due will be deemed to be the date of issue of order by the competent authority for release of such retiral dues. Since, the date of falling due of retiral dues is important date to determine the period of commencement of period for which interest is to be paid under Rule 89, the determination of that date is crucial; and aforesaid three categories were made for drawing the presumption of the date of falling due of retiral benefit in three contingencies given under Clauses viz. (a), (b) and (c) of Note No. (ii) in Rule 89(6) of the 1996 Rules. 15. (a), (b) and (c) of Note No. (ii) in Rule 89(6) of the 1996 Rules. 15. Such a Government servant in three categories for the purposes of deciding their date on which the retiral dues all due cannot be said to be an amendment of procedural nature, which could be given a retrospective effect because the said amendment brought in the year 2008 does not specifically say it to be with retrospective effect. As already stated, a delegated legislation cannot be given retrospective effect unless it is specifically said to be so. Therefore, the contention of the learned counsel for the petitioner that amendment made in the year 2008 in Rule 89(6) should be given retrospective effect and applied to the case of the present petitioner, cannot be sustained and same is liable to be rejected and is, therefore, accordingly rejected. 16. The next question is as to what is the entitlement of the present petitioner under Rule 89(6) as it was substituted with effect from 12.6.2001, as reproduced above and existed on relevant date for the petitioner on the date of retirement on 31.3.1999 and actual payment of retiral dues on 11.2.2003, Clause (ii) of Rule 89(6) quoted above, stipulated that in case of Government servant against whom disciplinary/judicial proceedings are pending on the date of retirement, no retiral benefits be paid except provisional pension until the conclusion of the proceedings and issue of the final orders thereon. The retiral benefits, if allowed to be drawn by the competent authority on the conclusion of the proceedings, will be deemed to have fallen due on the date of issue of orders by the competent authority. The purpose of aforesaid Note (ii) is very clear that in case some disciplinary/judicial proceedings are pending against the Government servant on the date of retirement, and the fate of which cannot be immediately known at that point of time, he should be allowed the provisional pension immediately for survival but the final payment of retiral dues including the pension would depend upon the fate of disciplinary/judicial proceedings against him and upon the orders to be passed by the competent authority depending upon the result of such judicial proceedings/disciplinary proceedings for release such payment of retiral dues and the date of such retiral dues falling due itself has to be deemed to be the same date on which such competent authority passes such orders. Thus, where a favourable order is passed in favour of the Government servant who retired, but on the date of retirement some disciplinary/judicial proceedings were pending against him, however, is ultimately able to succeed in those proceedings and obtained acquittal or exoneration, as the case may be, the date of retiral dues will depend upon the date of passing of order by the competent authority after such favourable order is passed by the disciplinary authority or competent court having the jurisdiction in the matter. Thus, exception to the normal rule of payment of interest in the case of delayed payment of retiral dues is carved out to protect the interest of State in such contingencies, the fate of which is not within the control of the State itself. The pendency of the disciplinary/judicial proceedings are concluded only by the orders passed by the competent authority or the competent courts. Therefore, in such cases, no interest is required to be paid because the date on which retiral dues will be deemed to be falling due would be shifted to a future date when such competent authority/competent court passes the orders favourable to the Government servant and consequently the competent authority passes order releasing the retiral dues to the Government servant. 17. In the present case, admittedly, the petitioner, the Government servant, who retired on 31.3.1999 was acquitted of the criminal charges of corruption against him by the competent court on 5.7.2001, which was upheld even by the High Court with the dismissal of the criminal leave to appeal filed by the State on 28.2.2002 and was further affirmed by the Apex Court with effect from dismissal of the SLP on 16.4.2009 but the fact remains that the State Government soon after passing of order by High Court dismissing their leave to appeal on 28.2.2002 took the steps to pass amended/final PPO and paid such benefits to the petitioner, Government servant, on 11.2.2003 after about one year. The period of delay claimed by the petitioner from the date of his retirement i.e. 31.3.1999 to 11.2.2003, therefore, cannot be said to be delay at all, and the State is not liable to pay any interest for the period up to 11.2.2003 because that it is the date of order passed by the competent authority releasing the retiral dues to the petitioner and the case falls within the exception made in Clause (c) of Note No. (ii) of Rule 89(6) of the Pension Rules, 1996. 18. In the opinion of this Court, the date of retirement falling due in the case of present petitioner itself got shifted from the date of his retirement on 31.3.1999 to the date of passing of the order by the competent authority on 11.2.2003 releasing such retiral dues; and the period, which lapsed in between was the period taken by the competent courts in concluding the judicial proceedings in favour of petitioner and competent authority passing the order releasing the retiral dues to the petitioner. It is worth noting that the State in the present case instead of waiting for the fate of SLP filed by them, which was dismissed much afterwards only on 16.4.2009, acted with promptitude after dismissal of the leave to appeal by the High Court on 28.2.2002 and amended the provisional pension order issued in favour of petitioner, Government servant, in the year 1999, and passed the final pension order on 11.2.2003. Therefore, in the opinion of this Court, the petitioner is not entitled to any interest under Rule 89 of the Rajasthan Pension Rules, 1996. 19. Consequently, the writ petition for claim of interest by the petitioner is liable to be dismissed and same is accordingly dismissed. No costs.