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2016 DIGILAW 391 (JHR)

Hanuman Singh v. State of Jharkhand

2016-02-29

SHREE CHANDRASHEKHAR, VIRENDER SINGH

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JUDGMENT : Virender Singh, J. 1. On a reading of the impugned order dated 20.03.2015 in W.P.(S) No.393 of 2014, what appears to us, is that the learned Single Judge has overlooked the right of the employee to receive pension immediately preceding the day the employee superannuates from service. 2. The debate regarding nature of pension; whether it is purely gratuitous or a reward for past services, was finally settled in “Deokinandan Prasad Vs. State of Bihar & Others”, reported in (1971) 2 SCC 330 wherein, the Hon'ble Supreme Court held that right of an employee to receive pension is akin to right to property under Article 31(1) and by a mere executive order, the State cannot withhold the same. 3. The concept of retiral benefits to a citizen has evolved on the consideration that an employee, who rendered service during the useful years of his life, must not be left to penury in his old age. A Constitution Bench of the Hon'ble Supreme Court in “D.S. Nakara & Others Vs. Union of India” reported in (1983) 1 SCC 305 held as under : “31. From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and clause (5) of Article 148 of the Constitution; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to 10 months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” 4. The right to receive Leave Encashment earned on retirement has been held, in “Union of India Vs. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.” 4. The right to receive Leave Encashment earned on retirement has been held, in “Union of India Vs. Gurnam Singh” reported in (1982) 2 SCC 314 , a condition of service. Equally true is the concept that Gratuity and Provident Fund are retiral benefits, which are governed by various statutes. The various enactments on the subject are in pursuance of the Constitutional goal enshrined under Article 37, Article 41 and Article 43 of the Constitution of India. In “Sudhir Chandra Sarkar Vs. Tata Iron & Steel Co. Ltd. & Others”, reported in (1984) 3 SCC 369 , the Hon'ble Supreme Court has held thus: “17. Can such social security measure be denuded of its efficacy and enforcement by so interpreting the relevant rules that the workman could be denied the same at the absolute discretion of the employer notwithstanding the fact that he or she has earned the same by long continuous service? If Rule 10 is interpreted as has been done by the High Court, such would be the stark albeit unpalatable outcome. It is therefore necessary to take a leaf out of history bearing on the question of retiral benefits like pension to which gratuity is equated. In Burhanpur Tapti Mills Ltd. v. Burhanpur Tapti Mills Mazdoor Sangh this Court observed that : “a scheme of gratuity and a scheme of pension have much in common. Gratuity is a lump sum payment while pension is a period payment of a stated sum”. Undoubtedly both have to be earned by long and continuous service.” 5. Denial of pension to an employee has been held violative of Article 21 of the Constitution of India. In “S.K. Mastan Bee Vs. General Manager, South Central Railways & Another”, reported in (2003) 1 SCC 184 , the plea of limitation raised by the Department contending that the claim for the pension was raised after more than 20 years, was rejected by the Hon'ble Supreme Court, holding that it is an obligation of the employer to calculate and pay the retiral dues of the employee. 6. 6. The appellant, after not being awarded the interest on certain components, after he superannuated, which includes Gratuity, GIS, Commutation of Pension, T.A., Leave Encashment and MECP, moved the Writ Court through the medium of W.P.(S) No.393 of 2014, which now stands disposed of vide impugned order dated 20th March, 2015, whereby directing the respondents to pay interest on the balance 10% Gratuity at the rate of 5% per annum from the period beyond three months after the Gratuity became due till the end of the month preceding the month in which the final payment is made. So far as other components are concerned, the learned writ Court has not granted any interest to the appellant-writ petitioner vis-a-vis the delayed payment. 7. It needs to be mentioned that the grievance projected before the Writ Court was with regard to interest payment for 90% Gratuity also, in which there is delay of 7 months in making the payment as the payment fell due on 01.06.2012 and the payment made on 08.01.2013 i.e. after 7 months, which delay, as per the learned Single Judge, has not been considered as inordinate delay. With regard to the interest to be paid on other components, perhaps, the impugned judgment is silent on this issue. This has given cause to the appellant-writ petitioner to knock at the door of this Court through the medium of the instant Letters Patent Appeal, in which pursuant to the notice, Mr. Himanshu Kumar Mehta, learned AAG with Mr. Atanu Banerjee, learned G.A. appear for the State. 8. A complete compilation of relevant statutes, Government rules and Resolutions has been provided by the learned G.A. to the Court for perusal, which in fact, has really facilitated the Court in disposing of the instant appeal. 9. So far as Gratuity is concerned, what appears to the Court is that the appellant-writ petitioner is entitled to statutory interest in terms of Section 7(3A) of Payment of Gratuity Act, 1972, read with the Government circular being Memo No.PC-2-1-46/79/1355 dated 7.11.1981 of the Bihar Pension Rules, 1950. In terms of the rule position, the appellant-writ petitioner will be getting interest on his entire Gratuity right from 1.06.2012 till it was paid, may be in two different parts, viz. 90% on 8.1.2013 and 10% on 12.3.2014. In terms of the rule position, the appellant-writ petitioner will be getting interest on his entire Gratuity right from 1.06.2012 till it was paid, may be in two different parts, viz. 90% on 8.1.2013 and 10% on 12.3.2014. The restriction in government circular dated 7.11.1981, in view of Section 7(3A) of Payment of Gratuity Act, 1972 must be held inoperative. Since the appellant-writ petitioner has already been awarded 5% interest on the balance 10% Gratuity by the learned Writ Court, he shall be now entitled to 5% interest on 90% Gratuity from 1.6.2012 till 8.1.2013 and for 10% of the Gratuity from 1.6.2012 till 12.3.2014. Ordered accordingly. 10. So far as amount payable to the appellant-writ petitioner vis-a-vis Group Insurance Scheme, Rule 11 of the Bihar Government Servant's Compulsory Group Insurance Rules, 1979 shall govern the field. Rule 11 reads as under : “11. Repayment in case of superannuation, resignation, dismissal, discharge, permanent change of cadre of officer of All-India Services, etc. In case of superannuation, resignation, dismissal, discharge, etc. the Government shall be paid the entire amount of contributions made plus 6 per cent compound interest in one lump sum as shown in Appendix-'A'.” 11. So far as other components, reference thereto made in paragraph-3 of the impugned judgment are concerned, one fact is apparent on record that there is delay in making the payment to the appellant-writ petitioner, may be it is considered as not an “inordinate delay” by the learned Single Judge, nevertheless the appellant-writ petitioner shall be entitled to interest component on the length of the delay, may be there are no statutory rules in this regard. Thus, in our considered view, the appellant-writ petitioner shall be entitled to 5% interest for the delayed payment on other components also, except commutation of pension for the reasons that after the commuted value of pension is paid, the pension is reduced. Ordered accordingly. 12. We make it clear that so far interest on delayed payment of Travelling Allowance is concerned, the same shall be considered in terms of the Finance Department Resolution issued vide Memo No.6/S-16(F.C.)-01/2009(Part)-336(Finance) dated 17.9.2014. 13. Let the entire exercises be carried out within 8 weeks only from today, failing which, suo motu contempt proceedings shall be initiated against the erring officials. 13. Let the entire exercises be carried out within 8 weeks only from today, failing which, suo motu contempt proceedings shall be initiated against the erring officials. The respondent State may realise the amount of interest from the Government servant responsible for the delay in terms of Bihar Pension Rules, 1950. 14. The appeal, on hand, stands disposed of in the aforesaid terms.