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Madhya Pradesh High Court · body

2014 DIGILAW 1621 (MP)

Manmohan Kaur v. State of M. P.

2014-12-08

SUJOY PAUL

body2014
JUDGMENT : Sujoy Paul, J. 1. The petitioner, a retired professor and Head of Department filed this petition under Article 226 of the Constitution seeking various terminal/retiral dues. 2. Shri Sourabh Verma, learned counsel for the petitioner, submits that during pendency of this matter respondents have paid certain claims including payment of surrender leave, pension and gratuity etc. However, these payments were made belatedly for which petitioner is entitled to get interest. He submits that respondents have not paid the amount arising out of Compulsory Deposit Scheme (CDS). In addition, respondents have not paid the amount flowing from insurance scheme of 1985, fund scheme of 1974 and insurance scheme of 2003. By placing reliance on the orders of Indore Bench in WP.3121/2006 (Dr. Pramod Kushwaha Vs. State of M.P. & Ors.) and WP.6690/2006 (Smt. Shakuntala Saxena Vs. State of M.P.), it is submitted that petitioner is entitled to get interest on delayed payment. In addition, Shri Verma submits that by the impugned order petitioner's pension was reduced. Before such reduction, no opportunity of hearing was given to the petitioner. As per Rule 52 of M.P. Civil Services (Pension) Rules, 1976 (Pension Rules) the reduction in pension without granting opportunity was impermissible. 3. Shri Praveen Newaskar, learned Dy. Govt. Advocate, opposed the relief. By placing reliance on various paragraphs of the return, he submits that reduction of pension is in consonance with law. He submits that most of the payment have been made and petitioner is not entitled for any relief. So far reduction of pension and recovery of Rs. 6152/- is concerned, it is contended that Non-practicing Allowance (NPA) was paid to the petitioner w.e.f 01.06.1972 to 31.12.2000. Petitioner was entitled to get the benefit of NPA w.e.f. 01.12.1982 to 31.10.2000 i.e. for total 120 months. Pension Rules were amended and sub rule (3) was inserted in Rule (30) of the Pension Rules. In view of aforesaid amendment, petitioner was entitled to get NPA only for the period from 01.12.1982 to 31.10.2000 whereas she has been erroneously paid the amount of NPA w.e.f. 01.06.1972 to 31.12.2000. 4. I have heard learned counsel for the parties and perused the record. 5. As canvassed by learned counsel for the parties, the pension and gratuity has already been paid. However, the payment has been made belatedly. 4. I have heard learned counsel for the parties and perused the record. 5. As canvassed by learned counsel for the parties, the pension and gratuity has already been paid. However, the payment has been made belatedly. The respondents have not shown any reason which may justify their action in belatedly paying the said amount. This is settled in law that pension and gratuity are not bounty. They are earned by employee by rendering long and sincere service to the Department. Same deferred payment of salary. This payment is required to be paid promptly in order to give helping hand to the retired employee to settle down in the december of her life and to enable her to discharge social obligations etc. The retiral dues are held to be property under Article 300(A)of the Constitution of India. An employee can be deprived from retiral dues only in accordance with law. This view is taken by this Court after considering catena of judgments in 2013 (4) MPLJ 35 (Bhaskar Ram Chandra Joshi Vs. State of M.P. & Ors).This Court opined as under :- “10. The Apex Court on different occasions had considered the scope and ambit of property. In Madhav Rao Scindia Vs. Union of India, AIR 1971 SC 530 opined that Privy Purse payable to ex-rulers is property. In Nagraj, K v. State of A.P. AIR 1985 SC 553, Apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala v. Padmanabhan, AIR 1985 SC 356 the Apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia Vs. State of M.P., AIR 1961 SC 298 and State of M.P. Vs. Ranojirao, AIR 1968 SC 1053 , the Apex Court opined that property in the context of Article 300-A includes 'money', salary which has accrued pension, and cash grants annually payable by the Government ; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute. This view was also taken in AIR 1971 SC 1409 (Deokinandan Vs. State of Bihar). Bombay High Court in the case reported in (2012) 3 Mah.L.J 126 (Shapoor M. Mehra Vs. Allahabad Bank) opined that retiral benefits including pension and gratuity constitute a valuable right in property. This view was also taken in AIR 1971 SC 1409 (Deokinandan Vs. State of Bihar). Bombay High Court in the case reported in (2012) 3 Mah.L.J 126 (Shapoor M. Mehra Vs. Allahabad Bank) opined that retiral benefits including pension and gratuity constitute a valuable right in property. In Deokinandan (supra) Apex Court opined as under: “(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable.” 11. In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues...” 6. The respondents have stated that reduction of pension and recovery is arising out of erroneous payment to the petitioner. Suffice it to say that reduction and recovery entails civil consequences. Thus, this action could not have been taken without following the principle of natural justice and mandate of Rule 52 of Pension Rules. Thus, I find force in the argument of Shri Verma that reduction and recovery without affording opportunity is bad in law. Action of respondents to this extent is held to be illegal and recovery and reduction in pension is set aside. However, liberty is reserved to the respondents to take said action after following principle of natural justice. Since petitioner stood retired on 30.11.2005, if respondents intend to take action as per liberty aforesaid, they may do so within 30 days from the date of production of copy of this order. If they fail to enjoy aforesaid liberty within aforesaid time, it will not be open to them to exercise said power/enjoy the liberty after 30 days aforesaid. 7. If they fail to enjoy aforesaid liberty within aforesaid time, it will not be open to them to exercise said power/enjoy the liberty after 30 days aforesaid. 7. Admittedly, certain retiral dues have been paid to the petitioner belatedly, Shri Newaskar could not point out any explanation from the return which may throw light on the reasons for delay. Thus, it is clear that delay in making the payment is solely attributable to the respondents. Petitioner deserves payment of interest on delayed payment of all the dues. I find support in my view from , (1994) 2 SCC 240 (Union of India Vs. Justice S.S. Sandhawalia (Retd.) and Ors.), : 2014 (8) SCC 894 (D.D. Tewari (Dead) through LRs Vs. Uttar Haryana Bijli Vitran Nigam Ltd. and ors.) and the judgments of Indore Bench cited by Shri Verma. Accordingly, it is directed that respondents shall pay 12% interest to the petitioner for all the dues including retiral dues which have been belatedly paid. Needless to mention that interest shall be paid from the date of entitlement till the date of actual payment. Amount arising out of interest shall be paid to the petition within 90 days from the date of production of copy of this order order. 8. So far question of non-payment of amount arising out of CDS, group insurance, welfare scheme etc. is concerned, respondents are directed to examine the claim of the petitioner and if she is entitled, make such payments within 90 days aforesaid. If petitioner is found entitled for the payment, they shall make the payment with 12% interest on delayed payment. If she is not found entitled for any reason whatsoever, respondents shall pass a reasoned and detailed order and communicate it to be petitioner within 90 days aforesaid. 9. Petition is allowed to the extent indicated above. No costs.