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Rajasthan High Court · body

2016 DIGILAW 15 (RAJ)

Moola Ram Choudhary v. State of Rajasthan

2016-01-05

JAISHREE THAKUR

body2016
ORDER: 1. The petitioner has filed the present writ petition seeking a direction for release of interest on late payment of retiral benefits along with correction value of commutation of pension and to release the value of pension by considering the age of the petitioner on the date of retirement, i.e. 5.7.2010. 2. The petitioner joined service of the State of Rajasthan on 13.11.1978 and was thereafter promoted in the Rajasthan Administrative Service. On completion of service, the petitioner working in Senior School of Rajasthan Administrative Service and sought voluntary retirement on 5.10.2010. On 17.6.2009, a charge-sheet was served under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. In response to the charge-sheet, the petitioner submitted a written statement denying all the charges levelled against him. On account of certain family circumstances, the petitioner served notice dated 3.3.2010 for voluntary retirement under Rule 50 of the Rajasthan Civil Services Pension Rules, 1996. The same was accepted vide order dated 30.6.2010 and the petitioner was ordered to be retired with effect from 5.7.2010 keeping the enquiry pending. The petitioner on retirement was entitled to all retiral benefits including pension, retiral gratuity and encashment of un-utilized privilege leave, but on account of the pendency of the disciplinary proceedings, the retiral benefits were with held by the respondents. Several requests were made for release of pension and, ultimately, provisional pension was allowed by PPO No. 773676 (R) dated 19.7.2011 and the same was made to the petitioner on 11.8.2011. As the disciplinary proceedings were continuing against the petitioner, the petitioner approached this Court by way of filing S.B. Civil Writ Petition No. 6900/2012 praying for dropping of the proceedings initiated against him. This Court vide judgment dated 6.11.2012 allowed the writ petition by quashing the proceedings and further gave a direction to the respondents to settle all post retiral benefits of the petitioner expeditiously as far as possible on or before 31.1.2013. After the aforesaid judgment was passed by this Court, the petitioner again submitted three sets of pension papers and requested the respondents to settle all post retiral benefits together with interest on delayed payment of retiral benefits in terms of Rule 89 of the Pension Rules. 3. After the aforesaid judgment was passed by this Court, the petitioner again submitted three sets of pension papers and requested the respondents to settle all post retiral benefits together with interest on delayed payment of retiral benefits in terms of Rule 89 of the Pension Rules. 3. Since the retiral benefits were not allowed to the petitioner, he again submitted representation dated 5.3.2013 and thereafter issued a legal notice on 11.4.2013 and, ultimately, the respondents sanctioned retiral benefits in favour of the petitioner in the first week of June, 2013 without affording any interest on the delayed payment of retiral benefits. Gratuity payment order was also issued on 5.6.2013 whereby gratuity of Rs. 7,92,396/-was sanctioned in favour of the petitioner. The petitioner has submitted an application for commutation of pension in the prescribed form and the commutation of pension was sanctioned on 7.6.2013 and pursuant thereto, a sum of Rs. 5,48,931/-was paid to the petitioner in June,2013. The commutation was allowed to the petitioner considering the age of the petitioner as on the date of sanction. The petitioner was also entitled for leave encashment for unavailed privilege leave and the same has not been paid to him. Aggrieved against the non-release of retiral benefits, wrong calculation of value of commutation, denial of interest of delayed payment etc., the present writ petition has been filed. 4. Notice was issued of the said writ petition and the reply has been filed on behalf of the respondents no.1,3 and 4, wherein it is denied that the petitioner is entitled to any interest on delayed payment on account of the fact that there were disciplinary proceedings pending against him. On behalf of respondents no.3 and 4 reply has been filed that there is no delay caused on the part of the respondent in grant of pension and that the commutation amount has been correctly calculated from the date of the application in accordance with Scheduled-1 part III Rule 12 of the Rajasthan Civil Services (Commutation Rules of Pension), 1996. 5. Heard learned counsel for the parties and have perused the record of the case. 6. As per Rule 89 of the Rajasthan Civil Services Pension Rules, a Government Servant is entitled to receive interest @ 9% per annum from the date the retiral benefits become due, if such benefits have not been disbursed within a period of 60 days from the date of retirement. 6. As per Rule 89 of the Rajasthan Civil Services Pension Rules, a Government Servant is entitled to receive interest @ 9% per annum from the date the retiral benefits become due, if such benefits have not been disbursed within a period of 60 days from the date of retirement. Rule 89 of the Rajasthan Civil Services Pension Rules is reproduced as under:- "89. Interest on delayed payment of retiral benefits : (1) 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 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 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 the Department, and where the Administrative Department is satisfied that the delay in the payment of retiral 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 payment of interest has been authorised, the Administrative Department concerned shall fix responsibility and take disciplinary action under the Rajasthan Civil Services (C.C.A.) 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. (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 gratuity already paid on his retirement is enhanced on account of - (a) grant of emoluments higher than the emoluments on which gratuity, already paid, was determined, or (b) liberalistion 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 of gratuity 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 recover interest paid to the pensioner. NOTES (i) The payment of retiral benefits become 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 servants 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 had fallen due. The rate of interest on delayed payment will be the prevailing rate of interest on General Provident Fund. (b) If a retired Government servant who dies during the pendency of a judicial/disciplinary proceedings against him and against whom proceedings are consequently dropped, no interest on delayed payment 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.” 7. Admittedly, the petitioner sought voluntary retirement from the department and he was retired from service on 5.7.2010. (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.” 7. Admittedly, the petitioner sought voluntary retirement from the department and he was retired from service on 5.7.2010. On account of the pendency of the disciplinary proceedings initiated against him, the retiral benefits were withheld. Provisional pension was released to him on 19.7.2011. The petitioner approached this Court for quashing of memo of charges served upon him as well as for release of retiral benefits. This High Court vide a judgment dated 6.11.2012 directed that all retiral benefits be paid on or before 31.1.2013. The petitioner was released revised pension on 19.6.2013, gratuity on 19.6.2013 and leaves encashment. However, the payments were made to him of gratuity and leave encashment but he was deprived of interest which was due and entitled for in view of the fact that charge sheet was quashed and set aside by the High Court . 8. It has been argued by the counsel for the petitioner that if there was no fault of the employee and he had been unnecessarily dragged into litigation and charge sheet has been set aside by this Court, in consequence thereof he is entitled for all the retiral benefits with interest from the date it became due & payable. A perusal of note appended to the provisions of R. 89 of the Pension Rules 1996 clearly envisage that after conclusion of the proceedings departmental or judicial if the delinquent/employee is fully exonerated he will be entitled to interest on delay in payment of gratuity . in the present case too the petitioner was charge sheeted and ultimately by an order passed by this court the proceedings were dropped. Having been drawn into litigation for no fault of his he is certainly entitled to interest on the delayed payment of gratuity and pension/revised pension. Similarly as regard payment on leave encashment is concerned, which indisputably is one of the retiral benefits, it will be deemed & presumed to be due from the date of retirement and as consequence thereof the employee will become entitled for payment of interest for the delay in payment . 9. Similarly as regard payment on leave encashment is concerned, which indisputably is one of the retiral benefits, it will be deemed & presumed to be due from the date of retirement and as consequence thereof the employee will become entitled for payment of interest for the delay in payment . 9. As regards the question of commutation of pension and from the date the same has to be calculated, the provision of the Rules may be looked at. Commutation of Pension means payment of lump sum amount in lieu of a portion of pension surrendered voluntarily by the pensioner and this is purely an optional facility provided by the Government to the pensioner. The duration is fixed with reference to age as number of years purchased. In this case admittedly the petitioner was facing departmental enquiry on the date of his superannuation and after exoneration he was granted the benefit but keeping the date of exoneration in mind which is not proper. In reply, no reasons are given by respondents as to why petitioner is not entitled for commutation while taking into consideration his age on the date of superannuation. Therefore in my opinion, after exoneration, the commutation was to be allowed to the petitioner for which he was entitled on the date of his superannuation because any employee becomes entitled to pensionary benefits on the date of retirement. Therefore, I deem it just and proper to direct the respondents to grant the benefits of commutation of pension amount to the petitioner for which he was entitled on the date of his superannuation in accordance with the Rules of 1996 and at the time of granting said benefits, the table prescribed under the Rules of 1996 and date of superannuation shall be taken into account and after recalculating amount of commutation, arrears shall be paid to the petitioner if any amount is paid to the petitioner, the same may be adjusted from the arrears. 10. 10. As regards the submission in respect of interest over delay in commutation of pension is concerned, a Division Bench of this court in Lok Nath Sharma Vs DB Civil Writ Petition No. 1352/2014 decided on 18.5.2015 has held ”As regards the submission in respect of interest over delay in commutation of pension is concerned, we find no substance for the reason that commutation is a facility provided to the employee and to get the pension commuted he was paid provisional pension equal to the maximum pension and that may not make him entitled for interest on commutation of pension as prayed for.” Relying on the said judgment there is no requirement to award interest on delayed payment in commutation of pension is concerned. 11. Accordingly, the writ petition succeeds and is hereby allowed. The respondents are directed to release interest @ 9% over the delay in payment of pension, leave encashment and other retiral benefits (Other than gratuity as interest has been paid during the pendency of these proceedings) from the date of retirement until actual payment within a period of two months and if the respondents fails to pay the interest @ 9% as awarded by this Court within the stipulated period it shall carry further interest at the rate of 12% until actual payment. Further more the correction to be made in the commutation is to be carried out as well within the stipulated period and thereafter the amount released. 12. No order as to costs.