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2010 DIGILAW 753 (GAU)

Mihir Datta v. State of Tripura

2010-09-23

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. This writ petition has been filed by the Petitioner, who is a retired employee under the State Government of Tripura, seeking direction to the Respondents herein to make payment of the Petitioner's gratuity, pension and other pensionary benefits. 2. The case of the Petitioner may, in brief, be set out as under: (i) The Petitioner was appointed, on 19.08.1968, as a Junior Engineer in the Public Works Department, Government of Tripura, and, having been promoted to the posts of Assistant Engineer with effect from 05.09.1972, and as Executive Engineer with effect from 06.09.1980, the Petitioner, while working as an Executive Engineer in the Department of Public Health Engineering, Government of Tripura, retired, on 31.03.2005, on superannuation, in terms of the order, dated 26.03.2005, passed in this regard, by the Engineer-in-Chief, PWD (WR), Agartala, directing the Petitioner to hand over the charge of his office on 31.03.2005. The Petitioner accordingly handed over the charge of his office, on superannuation, on the date fixed, i.e., on 31.03.2005. By order, dated 20.04.2005, issued by the office of the PWD (WR), Government of Tripura, provisional pension was directed to be paid to the Petitioner in terms of the provisions of the Central Civil Services (Pension) Rules, 1972 (for short, 'the Pension Rules'), as adopted by the State Government of Tripura. (ii) Though, on the retirement of the Petitioner, as indicated hereinabove, the Respondents were, according to the Petitioner, under legal obligations to pay gratuity, pension and other pensionary benefits, an order was issued, on 24.05.2005, by the Government of Tripura, PWD (WR), directing payment of only provisional pension for a period of six months, with effect from 01.04.2005 to 30.09.2005, under Rule 71 of the Pension Rules. The Respondents have accordingly paid provisional pension to the Petitioner for a period of six months and, since thereafter, the Respondents have neither sanctioned payment of gratuity, final pension and other pensionary benefits to the Petitioner nor have they continued payment of the provisional pension despite the fact that the Petitioner had duly submitted, as far back as on 01.03.2005 (i.e., prior to his retirement), all necessary papers/documents, etc., to the Respondent No. 2, namely, Chief Engineer (PHE), Government of Tripura, for making payment of gratuity, final pension and other pensionary benefits available to him. (iii) The Petitioner is a permanent resident of Kolkata, West Bengal, and, on his retirement, he has left Agartala and has been residing in Kolkata. The Petitioner has been facing great hardship for non-payment of his pension and other pensionary benefits. The Respondents, by their action, have, thus, denied the Petitioner's legal rights to receive pension and other retiral benefits though, in terms of the Memorandum, dated 06.11.2004, issued by the Government of Tripura, General Administration (Personnel & Training) Department, a direction stands issued to all concerned to make all retiral benefits, like final withdrawal of CPF, leave salary, gratuity, provisional pension, etc., available to the retired employees, so that they are not required to visit the office in order to obtain payment of their retiral benefits. According to the Petitioner, there is no valid and justifiable reason for not making available to the Petitioner pension and other pensionary benefits. The Petitioner has, accordingly, sought for appropriate directions to be issued to the Respondents so as to make all the retiral benefits, including pension, available to him. 3. While resisting the writ petition and justifying their delay in making pension and other retiral benefits available to the Petitioner, the Respondents have averred, in brief, thus: Pension, gratuity and other retiral benefits could not be made available to the Petitioner, though he had retired, on superannuation as far back as on 31.03.2005, because of the fact that before payment of retiral benefits, particularly, to the holders of gazetted posts under the Government of Tripura, Vigilance Clearance Certificate from the Department of Vigilance Organization, Government of Tripura, is required to be submitted by the department concerned. Since the Petitioner, prior to his retirement, held a gazetted post as an Executive Engineer, a vigilance clearance certificate was sought for by the Accountant General, Tripura, but the vigilance clearance certificate could not be given in favour of the Petitioner for the reason that the Government of Tripura had received a complaint against the Petitioner, on 06.07.2000, as regards alleged misappropriation of government money by him, while he was posted and functioning as Executive Engineer, and, therefore, the Government of Tripura decided to cause a preliminary enquiry against the Petitioner. The Vigilance Organization accordingly started a preliminary enquiry against the Petitioner and asked the Petitioner and his wife to attend the office of the vigilance organization, i.e., the Superintendent of Police (Vigilance), Government of Tripura. The Vigilance Organization accordingly started a preliminary enquiry against the Petitioner and asked the Petitioner and his wife to attend the office of the vigilance organization, i.e., the Superintendent of Police (Vigilance), Government of Tripura. However, instead of appearing before the vigilance authority, the Petitioner and his wife filed a writ petition in the High Court, which gave rise to WP(C) No. 118/2001 and WP(C) No. 150/2001, respectively, challenging the authority of the vigilance organization to direct them to appear for the enquiry. By judgment and order, dated 07.12.2001, a learned Single Judge of this Court dismissed the writ petitions by observing that the Petitioner, being a government servant, ought to cooperate in the enquiry, which was being conducted by the vigilance organization. Aggrieved by the dismissal of their writ petitions, the Petitioner and his wife preferred appeals, the appeal preferred by the Petitioner gave rise to WA No. 8/2002, wherein a miscellaneous application was also made, which gave rise to CM Application No. 4/2002. A Division Bench of this Court passed an order, on 13.04.2002, in the CM Application No. 4/2002 aforementioned staying, until further order, operation of the impugned judgment and order, dated 07.12.2001, aforementioned, whereby the writ petitions had been dismissed. In such circumstances, the Vigilance Organization could not proceed further with the said enquiry. As the vigilance clearance was not given, necessary proposal could not be submitted to the Accountant General by the Respondents/authorities concerned for payment of pension and other retiral benefits to the Petitioner. 4. I have heard Mr. A. K. Bhowmik, learned Senior counsel, appearing on behalf of the Petitioner, and Mr. S. Chakraborty, learned Counsel, appearing on behalf of the Respondents. 5. 4. I have heard Mr. A. K. Bhowmik, learned Senior counsel, appearing on behalf of the Petitioner, and Mr. S. Chakraborty, learned Counsel, appearing on behalf of the Respondents. 5. While considering the present writ petition, it needs to be noted that there is no dispute with regard to the fact that the Petitioner stood retired, on superannuation, on 13.03.2005, while he was holding the post of Executive Engineer in the Public Works Department, Government of Tripura, and that there has been a Memorandum, dated 06.11.2004, in forpe, whereby all the departments of the State Government have been directed to make all the retiral benefits, such as, pension, gratuity, CPF, etc., available to a retired employee, expeditiously, so that the retired employee is not required to visit the office in order to obtain payment of their retiral benefits and, if there is any genuine problem for making payment of the retiral benefits to any retiring Government employee, the same should be brought to the notice of the Department of General Administration (Personnel & Training), Government of Tripura, before the date of retirement of the employee concerned. 6. It is, however, neither pleaded nor is there any material on record to show that, in terms of the Office Memorandum, dated 06.11.2004, aforementioned, any communication had been made to the Department of General Administration (Personnel & Training), Government of Tripura, as regards the fact that there was a vigilance enquiry pending against the Petitioner. Having noticed that, due to non-finalization of pension and other pensionary benefits, in time, the retired government employees had been facing difficulties in obtaining pension and other retiral benefits, the Government of Tripura, Department of General Administration (Personnel & Training) issued an Office Memorandum, as far back as on 13.10.1996, directing to the effect that pension and pensionary benefits shall be made available to the retired employees without any inordinate delay and, for this purpose, necessary papers shall be sent to the office of the Accountant General six months before the date of retirement of the employee concerned and, if any claim for payment for interest on the amount of pension and other pensionary benefits are allowed by any competent authority, the amount of interest, payable to the retired employee, shall be recovered from the salary of the head of the office, who is primarily responsible for finalization of pension and pensionary benefits in time. All such salutary instructions, as indicated hereinbefore, issued by the Government of Tripura, appear to have not made any material benefit to a retired employee, such as, the Petitioner. There is no dispute that, in terms of the Office Memorandum, dated 06.03.1991, read with Office Memorandum, dated 03.05.1991, issued by the Finance Department, Government of Tripura, necessary reference to the vigilance organization shall be made well in time and, if no reply is received from the vigilance department within fifteen days from the date of issue of the letter seeking information from Vigilance Organization, it should be deemed that there is no departmental or judicial proceedings against the retiring government employee and the pension and other retiral benefits shall be made available to the retired employee accordingly. 7. On retirement of the present Petitioner, as contended by the Respondents, the Petitioner and his wife were served with a notice, issued by the Vigilance Organization, directing the Petitioner and his wife to appear before the Vigilance Organization on 06.02,2001. This notice was put to challenge by way of two separate writ petitions. The writ petition, filed by the Petitioner having given rise to WP(C) No. 118/2001, and the writ petition, filed by the Petitioner's wife having given rise to WP(C) No. 105/2001. By judgment and order, dated, 07.12.2001, a learned Single Judge of this Court dismissed the two writ petitions. This dismissal came to be challenged by the Petitioner's wife and the Petitioner by way of appeals, which gave rise to WA No. 7/2002 and WA No. 8/2002 respectively. 8. When the appeals aforementioned came up for hearing, it was submitted, on behalf of the State Respondents, that the communications, which had been impugned in the writ petitions, were not directions issued to the Petitioner and his wife compelling them to appear before the Vigilance Organization on the date and time specified in the said notices, but the same was a request made to them for appearance before me Vigilance Organization, and that non-compliance with the request did not entail any legal consequence adverse to the Appellants. In such circumstances, the appeals were disposed of with appropriate amendments in the impugned judgment and order passed by the learned Single Judge. Thus, there remains no vigilance enquiry pending against the Petitioner. In such circumstances, the appeals were disposed of with appropriate amendments in the impugned judgment and order passed by the learned Single Judge. Thus, there remains no vigilance enquiry pending against the Petitioner. On the ground, therefore, that there is a vigilance enquiry pending against the Petitioner, pension and other retiral benefits cannot be denied to the Petitioner. 9. There is, however, yet another aspect of the present writ petition. While the Petitioner was still in service, a departmental proceeding was started against him on the charges of misappropriation of Government money and he was awarded a penalty of reduction of pay by five stages in the existing time scale for a period of three years, having the effect of postponing his future increments. Against the penalty, so awarded, the Petitioner preferred an appeal to his departmental authority but the same was rejected by order, dated 25.09.1998. This was challenged by the Petitioner by way of a writ petition, which gave rise to WP(C) No. 227/1999. The writ petition was, however, dismissed by order, dated 08.04.2005. The dismissal of the writ petition was put to challenge in Writ Appeal No. 25/2005, which has been disposed of, by judgment and order, dated 18.08.2010, allowing the appeal and the judgment and order, under appeal, have been set aside and the penalty, awarded to the writ Petitioner, has been quashed. There is, therefore, no disciplinary proceeding presently pending against the Petitioner nor any penalty remains imposed on the Petitioner. Consequently, the Petitioner becomes entitled to receive his pension and other retiral benefits without the penalty, which had been imposed following the departmental proceeding drawn against him 10. It is further contended, on behalf of the Petitioner, that with the disposal of the appeal, namely, WA No. 25/2005, aforementioned, the avenue of re-opening of the said departmental proceeding and/or initiating a fresh proceeding, against the Petitioner, on any ground, whatsoever, has been closed for good. It is further contended, on behalf of the Petitioner, that with the disposal of the appeal, namely, WA No. 25/2005, aforementioned, the avenue of re-opening of the said departmental proceeding and/or initiating a fresh proceeding, against the Petitioner, on any ground, whatsoever, has been closed for good. In support of the submission, so made, the Petitioner has referred to, and relied upon, Sub-section (2)(b)(ii) of Rule 9 of the Pension Rules (as adopted by the Government of Tripura), which read as under: 9 (2Xb) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment, (1) * * * (ii) shall not be in respect of any event which took place more than four years before such institution. 11. A bare reading of Sub-section (2) (b) (ii) of Section 9 of the Pension Rules makes it abundantly clear that after the disposal of WA No. 25/2005, setting aside and quashing the departmental proceeding and the consequential penalty awarded against him, the Respondents cannot, now, reopen the chapter of proceeding against the Petitioner by initiating departmental proceeding afresh, on any ground whatsoever, for, the provisions of Section 9(2)(b)(ii) bar initiation of any departmental proceedings, against a government servant, in respect of any event, which took place more than four years before such institution. The Petitioner having retired on 31.03.2005, the Respondents cannot, in terms of Section 9(2) (b)(ii), initiate any proceeding, now (i.e., after more than five years), even if there were substantial reasons to proceed against the present Petitioner. Consequent to the setting aside of the departmental proceedings, initiated against the present Petitioner, the quashing of the penalty awarded to him and, in the light of the provisions of Section9(2)(b)(ii), as indicated above, there remains no reason for the. Respondents to refuse to release the Petitioner's pension and other retiral benefits on the ground that no clearance from Vigilance Organization has been obtained. 12. Respondents to refuse to release the Petitioner's pension and other retiral benefits on the ground that no clearance from Vigilance Organization has been obtained. 12. In the light of the provisions of Rule 9(2)(b)(ii) of the Pension Rules and the various Administrative instructions, issued from time to time by the Government of Tripura with regard to release of pension and other retiral benefits to the government servants and also considering the rival submissions, made in this writ petition, this Court is of the considered view that the impugned action of the Respondents in not releasing the pension and other retiral benefits to the Petitioner cannot but be considered as arbitrary, illegal and contrary to the law and the same cannot be allowed to stand good on record. 13. In the result and the reasons discussed above, this writ petition succeeds. The Respondents are hereby directed to do the needful to make the Petitioner's final pension and other retiral benefits available to him within a period of three months from the date of passing of this order. It is further directed that, while determining the amount of final pension and other retiral benefits, the penalty, which had been imposed on the Petitioner in the said departmental proceeding, shall be treated as non est in law. 14. With the above observations and directions, this writ petition shall stand disposed of. 15. No order as to costs. Petition allowed.