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Allahabad High Court · body

2011 DIGILAW 93 (ALL)

RAM CHANDRA GUPTA v. UNION OF INDIA

2011-01-13

PANKAJ MITHAL, S.P.MEHROTRA

body2011
JUDGMENT By the Court.—The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India making the following prayers: “(a) Issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned orders dated 7.12.2004 passed by Hon’ble Central Administrative Tribunal, Allahabad Bench, Allahabad (Annexure No. 12 to this writ petition). (b) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay leave encashment alongwith interest @ 18% per annum since 30.9.1995 till the date of actual payment. (c) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay interest @ 18% per annum on C.G.E.I.S (since 30.1.1995 to August 1996), on security deposits, on the amount of back wages for suspension period (i.e. 30.5.1995 to 13.3.1999) and 18% interest per annum on gratuity. (d) Issue a writ, order or direction in the nature of mandamus commanding the respondents to calculate the commutation value on the basis of age factor on 30.9.1995. (e) Issue any other suitable writ, order or direction, as this Hon’ble Court may deem fit and proper in the circumstances of the case; (f) Award cost of this petition to the petitioner.” It appears that the petitioner was working on the post of Store Superintendent (Civilian Group ‘C’ Post) in Ordnance Depot, Fort, Allahabad. The petitioner was suspended on 24th June, 1994 by the Order dated 24th June, 1994 (Annexure 1 to the Writ Petition) with effect from 20th May, 1994. The suspension of the petitioner was revoked by the Order dated 6.5.1995 (Annexure 3 to the Writ Petition). On 30th September, 1995, the petitioner retired from service on attaining the age of superannuation. During the service period, disciplinary proceedings were initiated against the petitioner under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [in short “the CCS (CC & A) Rules, 1965”] by issuing a Charge-Sheet by Charge Memo dated 1st August, 1995. The inquiry was conducted against the petitioner. The Inquiry Officer submitted his report that charge levelled against the petitioner was not proved. Copy of the Inquiry Report was forwarded to the petitioner to make any representation or submission, if he so wished in writing to the Disciplinary Authority. The inquiry was conducted against the petitioner. The Inquiry Officer submitted his report that charge levelled against the petitioner was not proved. Copy of the Inquiry Report was forwarded to the petitioner to make any representation or submission, if he so wished in writing to the Disciplinary Authority. The petitioner submitted his Representation dated 12th January, 1998 wherein he prayed for dropping the charge against him. The Disciplinary Authority by the Order dated 25th June, 1998 after considering the Inquiry Report and relevant records agreed with the findings of the Inquiry Officer and held the petitioner ‘not guilty’ of the charge levelled against the petitioner. 2. Accordingly, the Disciplinary Authority ordered that the charge levelled against the petitioner be dropped. Copy of the said Order dated 25th June, 1998 has been filed as Annexure 5 to the Writ Petition. 3. The petitioner thereafter made a Representation dated 27th July, 1998, inter alia, praying for final settlement of his retiral dues. Copy of the said Representation dated 27th July, 1998 has been filed as Annexure 6 to the Writ Petition. 4. It further transpires from a perusal of paragraph 14 of the Writ Petition that various payments in respect of retiral dues were made to the petitioner in the year 1999. Even though in paragraph 11 of the Counter-affidavit filed on behalf of the respondents, there is general denial of the averments made in paragraph 14 of the Writ Petition, a perusal of paragraph 16 of the Counter-affidavit shows that the details given in paragraph 14 of the Writ Petition have not been disputed by the respondents. 5. As per the averments made in the said paragraph 14 of the Writ Petition, payment of C.G.E.I.S. was made to the petitioner on 26th July, 1996 while the payment of leave encashment was made to the petitioner on 4th April, 2000. 6. In the mean-time, the petitioner filed an Original Application being Original Application No. 124 of 2000 before the Central Administrative Tribunal (in short “the Tribunal”) seeking the following reliefs: “(i) to issue writ order or direction in the nature of mandamus commanding the respondents to pay leave encashment along with penal interest at the rate of 18% per annum since 30.9.1995 till the payment is made. (ii) to issue writ, order or direction in the nature of mandamus commanding the respondents to pay penal interest at the rate of 18% per annum on C.G.E.I.S. (since 30.9.1995 to August, 1996) on security deposits, on the amount of back wages for suspension period 30.5.95 to 13.3.99 and 18% per annum penal interest on gratuity. (iii) issue writ, order or direction in the nature of mandamus commanding the respondents to calculate the commutation value on the basis of age factor on 30.9.1995.” 7. The Tribunal by its Judgment and Order dated 7th December, 2004 dismissed the said Original Application filed by the petitioner. The petitioner, thereupon, filed the present Writ Petition seeking the reliefs as mentioned in the earlier part of this judgment. 8. We have heard Shri Sanjiv Singh, learned counsel for the petitioner and Shri N.P. Shukla, learned counsel for the respondent Nos. 1 to 4, and perused the record. 9. Shri Sanjiv Singh, learned counsel for the petitioner submits that the petitioner was exonerated of the charge levelled against him, and the disciplinary proceedings against the petitioner were dropped by the Order dated 25th June, 1998, and as such, the withholding of retiral benefits payable to the petitioner was not justified, and the petitioner was entitled to get interest on the delayed payment of retiral benefits. 10. Shri Sanjiv Singh, learned counsel for the petitioner submits that the petitioner would be entitled to payment of such interest in respect of gratuity, commuted amount of pension, leave encashment and C.G.E.I.S. 11. As regards the relief (iii) claimed in the Original Application filed before the Tribunal, and the prayer (d) made in the Writ Petition, Shri Sanjiv Singh, learned counsel for the petitioner states that the said relief/prayer is not being pressed by the petitioner, and therefore, the Writ Petition may be considered in regard to the claim of interest in respect of gratuity, commutation value, leave encashment and C.G.E.I.S. 12. Shri Sanjiv Singh has placed reliance on the following decisions of Supreme Court: (1) Vijay L. Mehrotra v. State of U.P. and others, 2002 SCC (L & S) 278. (2) Dr. Uma Agrawal v. State of U.P. and another, AIR 1999 SC 1212 . 13. In reply, Shri N.P. Shukla, learned counsel for the respondent Nos. Shri Sanjiv Singh has placed reliance on the following decisions of Supreme Court: (1) Vijay L. Mehrotra v. State of U.P. and others, 2002 SCC (L & S) 278. (2) Dr. Uma Agrawal v. State of U.P. and another, AIR 1999 SC 1212 . 13. In reply, Shri N.P. Shukla, learned counsel for the respondent Nos. 1 to 4 has referred to the provisions contained in Rule 68 (1) and Rule 69 (1) (c) of the Central Civil Services (Pension) Rules, 1972 [in short “the CCS (Pension) Rules, 1972”]. 14. Shri N.P. Shukla submits that in view of the provisions contained in sub-rule (1) of Rule 68, interest in respect of gratuity is to be paid when the delay in payment was attributable to administrative lapses. 15. In the present case, the payment of gratuity was not made in view of the pendency of disciplinary proceedings against the petitioner, as in such circumstances, the payment of gratuity was required to be withheld by the respondent Nos. 1 to 4 in view of the provisions contained in Rule 69 (1) (c) of the aforesaid Rules. 16. Shri Shukla has placed reliance on a decision of the Supreme Court in R. Veerabhadram v. Government of Andhra Pradesh, AIR 2000 SC 1918 . 17. We have considered the submissions made by the learned counsel for the parties. Rule 68 of the CCS (Pension) Rules, 1972 lays down as under: “68. Interest on delayed payment of gratuity (1) If the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with the instructions issued from time to time: Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers. (2) Every case of delayed payment of gratuity shall be considered by the Secretary of the Administrative Ministry or the Department in respect of its employees and the employees of its attached and subordinate offices and where the Secretary of the Ministry or the Department is satisfied that the delay in the payment of gratuity was caused on account of administrative lapse, the Secretary of the Ministry or the Department shall sanction payment of interest. (3) The Administrative Ministry or the Department shall issue Presidential sanction for the payment of interest after the Secretary has sanctioned the payment of interest under sub-rule (2). (4) In all cases where the payment of interest has been sanctioned by the Secretary of the Administrative Ministry or the Department, such Ministry or the Department shall fix the responsibility and take disciplinary action against the Government servant or servants who are found responsible for the delay in the payment of gratuity.” Rule 69 of the aforesaid Rules provides as follows: “69. Provisional pension where departmental or judicial proceedings may be pending.—(1) (a) In respect of a Government servant referred to in sub-rule (4) of Rule 9, the Accounts Officer shall authorize the provisional pension equal to the maximum pension which would have been admissible on the basis of qualifying service up to the date of retirement of the Government servant, or if he was under suspension on the date of retirement up to the date immediately preceding the date on which he was placed under suspension. (b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. (b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the competent authority. (c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon: Provided that where departmental proceedings have been instituted under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for imposing any of the penalties specified in Clauses (i), (ii) and (iv) of Rule 11 of the said Rules, the payment of gratuity shall be authorized to be paid to the Government servant: (2) Payment of provisions pension by made under sub-rule (2) shall be adjusted against final retirement benefits sanctioned to such Government servant upon conclusion of such proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension or the pension is reduced or withheld either permanently or for a specified period.” 18. It will thus be noticed that sub-rule (1) of Rule 68 lays down that if the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with the instructions issued from time to time. 19. Thus, this provision lays down that in case the delay in payment of gratuity can be attributed to administrative lapses, interest would be payable on account of the delay in payment of gratuity. 20. Clause (c) of sub-rule (1) of Rule 69 lays down that no gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final order thereon. Thus, this Rule prohibits the payment of gratuity to the Government servant until conclusion of the departmental proceedings and issue of final order in such departmental proceedings. 21. Thus, this Rule prohibits the payment of gratuity to the Government servant until conclusion of the departmental proceedings and issue of final order in such departmental proceedings. 21. Reading the aforesaid two provisions together, it follows that in case the payment of gratuity has not been made on account of pendency of departmental proceedings, the delay in payment of gratuity cannot be attributed to administrative lapses so as to entitle the Government servant for payment of interest in respect of the delayed payment of gratuity. 22. In the present case, as noted above, the departmental proceedings were going on when the petitioner retired on 30th September, 1995. The proceedings concluded on 25th June, 1998 when the order was passed by the Disciplinary Authority dropping the charge against the petitioner. The payment of gratuity was thereafter made to the petitioner, as per the averments made in paragraph 14 of the Writ Petition, on 23rd March, 1999. 23. In our view, no fault can be attributed to the respondent Nos. 1 to 4 for the delay in payment of gratuity. The payment of gratuity could not be made to the petitioner till the conclusion of the disciplinary proceedings against him. After the conclusion of the disciplinary proceedings on 25th June, 1998, the payment of gratuity was made to the petitioner on 23rd March, 1999. 24. The delay between 25th June, 1998 and 23rd March, 1999 cannot be said to be inordinate delay having regard to the facts and circumstances of the case, particularly the fact that the disciplinary proceedings came to an end on 25th June, 1998, and thereafter, time was taken for finalizing the payment of gratuity to the petitioner. Therefore, the payment of interest in respect of the delayed payment of gratuity has been rightly denied to the petitioner by the Tribunal in the impugned Judgment and Order. 25. In R. Veerabhadram case (supra), relied upon by Shri N.P. Shukla, learned counsel for the respondent Nos. 1 to 4, their Lordships of the Supreme Court held as follows (paragraph 7 of the said AIR): “(7) The payment of gratuity was withheld, in the present case, since the criminal prosecution was pending against the appellant when he retired. Rule 52 (c) of the A.P. Revised Pension Rules, 1980 expressly permits the State to withhold gratuity during the pendency of any judicial proceedings against the employee. Rule 52 (c) of the A.P. Revised Pension Rules, 1980 expressly permits the State to withhold gratuity during the pendency of any judicial proceedings against the employee. In the present case, apart from Rule 52 (c), there was also an express order of the Tribunal which was binding on the appellant and the respondent under which the Tribunal had directed that death-cum-retirement gratuity was not to be paid to the appellant till the judicial proceedings were concluded and final orders were passed thereon. In view of this order as well as in view of Rule 52 (c), it cannot be said that there was any illegal withholding of gratuity by the respondent in the case of the appellant. We, therefore, do not see any reason to order payment of any interest on the amount of gratuity so withheld.” (Emphasis supplied) 26. The above decision thus support the conclusion mentioned above. 27. In Vijay L. Mehrotra case (supra), there was delay in payment of retiral benefits. However, the said delay was not made on account of any disciplinary proceedings pending against the employee concerned. There was no reason or justification given for the delay in payment of retiral benefits. In the circumstances, payment of interest was directed by the Supreme Court. 28. Thus, the facts of Vijay L. Mehrotra case are distinguishable from those of the present case where disciplinary proceedings were pending against the petitioner, and the same continued for about 3 years after his retirement. 29. In Dr. Uma Agrawal case (supra), there was delay in payment of retiral benefits. Their Lordships of the Supreme Court referred to the various Rules/instructions which ought to be followed in the matter of payment of pension and other retiral benefits, and held as under (paragraphs 5, 6 and 7 of the said AIR): “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. 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 cases 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 12.2.1996 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 be taken long before retirement. The exercise which was to be completed long before retirement was in fact started long after the petitioner’s retirement. 7. Therefore, this is a fit case for awarding interest to the petitioner. We do not think that for the purpose of the computation of interest, the matter should go back. Instead, on the facts of this case, we quantify the interest payable at Rs. 1 lakh and direct that the same shall be paid to the petitioner within two months from today.” (Emphasis supplied) 30. We do not think that for the purpose of the computation of interest, the matter should go back. Instead, on the facts of this case, we quantify the interest payable at Rs. 1 lakh and direct that the same shall be paid to the petitioner within two months from today.” (Emphasis supplied) 30. It will be noticed that the facts of Dr. Uma Agrawal case (supra) were different from those of the present case. 31. In Dr. Uma Agrawal case (supra), there were no departmental proceedings pending against the petitioner at the time of her retirement. There was failure on the part of the authorities in complying with the various Rules/instructions to be followed in the matter of payment of pension and other retiral benefits resulting in delay in making such payments. In the circumstances, the payment of interest was directed by the Supreme Court. 32. In the present case, the delay has occurred on account of pendency of departmental proceedings. Thus, the decision in Dr. Uma Agrawal case (supra) is not applicable to the facts of the present case. 33. As regards the claim of interest on commuted amount of pension, it is noteworthy that no such relief was sought by the petitioner before the Tribunal. The relief sought before the Tribunal was that the respondents be directed to calculate the commutation value on the basis of age factor on 30th September, 1995. 34. As noted above, Shri Sanjiv Singh, learned counsel for the petitioner has stated that the said relief/prayer is not being pressed by the petitioner. 35. As no relief for payment of interest in respect of commuted amount of pension was claimed by the petitioner before the Tribunal in his Original Application, the petitioner cannot make such claim before this Court in the Writ Petition directed against the Judgment and Order of the Tribunal. 36. As regards the claim for interest in respect of payment of leave encashment, the Tribunal has held that encashment of leave is a benefit granted under the leave rules, and the same is not a pensionary benefit, as such, no interest could be awarded to the petitioner in regard to the same. 37. We do not find any illegality or infirmity in the said conclusion drawn by the Tribunal. 38. 37. We do not find any illegality or infirmity in the said conclusion drawn by the Tribunal. 38. As regards the claim of interest in respect of the payment of C.G.E.I.S., it appears that even though the relief in this regard was sought by the petitioner before the Tribunal in the Original Application, the same was not pressed during the arguments before the Tribunal, and therefore, the Tribunal has not dealt with the said aspect. 39. Even otherwise, it will be noticed that the payment of C.G.E.I.S. was made to the petitioner, as per the averments made in paragraph 14 of the Writ Petition, on 26th July, 1996 while the petitioner retired from service on 30th September, 1995. The delay in payment of C.G.E.I.S. cannot, therefore, be said to be inordinate on the facts and in the circumstances of the present case, so as to entitle the petitioner to payment of interest. 40. In view of the above discussion, we are of the opinion that the present Writ Petition lacks merits, and the same is liable to be dismissed. 41. The Writ Petition is accordingly dismissed. 42. However, on the facts and in the circumstances of the case, there will be no order as to costs. —————