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2017 DIGILAW 742 (JHR)

Ramanand Jha “Ramana” v. State of Jharkhand

2017-04-21

APARESH KUMAR SINGH

body2017
ORDER : Heard learned counsel for the parties. 2. The order dated 7.5.2012 passed in W.P.S. No. 5626 of 2009 is impugned in the present review petition. Petitioner was unsuccessful in seeking relief of interest on delayed payment of gratuity amount in the said writ petition. As recorded in the said judgment, no provision of law was shown by the petitioner under which statutory interest will be payable on the delayed payment of gratuity amount. Petitioner, being aggrieved, went in appeal against the said judgment before the Letters Patent Court. L.P.A No. 392 of 2012 was disposed of as withdrawn. The permission to withdraw the appeal was granted on the plea that the Appellant wanted to file a review application before the learned Single Judge. Thereafter in the instant review petition petitioner has relied upon a circular dated 7.11.1981 bearing memo no. PC-2-1-46/79/3155 of the Government of Bihar on the subject of payment of interest on delayed payment on all kinds of pension including Family pension and Death-cum-Retirement Gratuity. It is appropriate to quote the text of executive instruction:- “In spite of the various measures taken so far in checking delay in the disposal of pension cases, Government are distressed to find that the delay has not yet been altogether eliminated resulting in financial distress and pecuniary loss to pensioners and families of deceased Government servants. In view of the above and considering the desirability of paying compensation to sufferers by way of interest and imposing monetary punishment to Government servants responsible for delay the State Government have decided as follows:- (a) Interest shall be allowed on delayed payment of all kinds of pension (including family pension) and D.C.R Gratuity @ 5% per annum for the period beyond three months after the pension/D.C.R Gratuity be-comes due and shall be payable till the end of the month preceding the month in which the payments of final pension actually begins and/or the payment of D.C.R, Gratuity is actually made. The interest shall be allowed only where it is clearly established that the payment of pension/D.C.R Gratuity was delayed on account of administrative laps or for reasons beyond the control of the retired Government servants. Each case of payment of interest shall be considered by the concerned Administrative Department in consultation with the Finance Department and the payment of interest must be authorised through a Government order. Each case of payment of interest shall be considered by the concerned Administrative Department in consultation with the Finance Department and the payment of interest must be authorised through a Government order. In all cases, where interest is paid the entire amount of interest shall be realised from the Government servants responsible for the delay. (b) Only provisional pension is authorised to Government servants who are under suspension or against whom Departmental proceedings or enquiries have not been concluded on date of their compulsory retirement vide Finance Department's memo No. 9144 F. dated 22.8.74. According to this circular no final pension and D.C.R Gratuity is paid in such cases until the conclusion of the proceedings and the issue of final orders thereon. Therefore in such cases the final pension and the D.C.R Gratuity if allowed to be drawn by the competent authority on the conclusion of the proceedings; would be deemed to have fallen due on the date of issue of orders by the competent authority and if payment is not made immediately after three months of the finalisation interest shall be allowed. (c) The payment of interest, however, would not apply in cases of payment of arrears of pension/gratuity which become due as a result of enhancement of the emoluments, after retirement/death or liberalisation of Bihar Pension Rules from a date prior to the date of retirement/death of the Government servants. 2. These order shall take effect in cases of Government servants who retire/die on or after the date of issue of this order. The cases of those Government servants who retired/died before this date shall also be covered by these orders, if, in their cases pension/D.C.R Gratuity is not paid within three months from the date of issue of these orders, but in such cases interest should be payable only from three months after this date [Memo No. PC-2-1-46/79/3155, dated 7.11.1981.]” 3. The instant circular of 1981, if not superseded by any subsequent executive instruction or rule was very much in existence when the judgment was passed in the writ petition. Learned counsel for the petitioner however had not been able to show any provision of law under which statutory interest is payable on delayed payment of Gratuity amount when the matter was decided. 4. Learned counsel for the petitioner however had not been able to show any provision of law under which statutory interest is payable on delayed payment of Gratuity amount when the matter was decided. 4. The principle enshrined in Order XLVII Rule 1 of Civil Procedure Code relating to review of a decree or an order are also followed in proceedings under writ jurisdiction. Order XLVII Rule 1 of Civil Procedure Code is quoted herein under:- “ORDER XLVII-REVIEW 1. Application for review of judgment—(1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order”. 5. Review of an order is permissible if the person aggrieved is able to satisfy that certain new and important matter and evidence have been discovered which were not within his knowledge and could not be produced at the time the decree or order was passed even after exercise of due diligence. Review can also be exercised on account of some mistake or error apparent on the face of the record or for any sufficient reason. Review jurisdiction is exercised to correct the mistake of the Court which may have inadvertently crept in. It cannot be argued on behalf of petitioner that circular dated 7.11.1981 could not be obtained despite exercise of due diligence to support the only plea raised in the writ petition relating to claim of interest for the delay in payment of Gratuity. Learned counsel for the petitioner has therefore not been effectively able to overcome the plea of maintainability of the review petition. 6. Learned counsel for the petitioner has therefore not been effectively able to overcome the plea of maintainability of the review petition. 6. Be that as it may, leaving aside the plea of maintainability for the time being, when the contention of the petitioner is examined on merits even in the light of the circular dated 7.11.1981 relied upon by him, it is apparent that on the date of retirement i.e. 31.8.2004 petitioner was facing criminal prosecution in 3 cases being Saharsa P.S. Case No. 380/99, 381/99 and 382/99. In all these cases prosecution has been sanctioned and charge-sheet had also been filed against the petitioner. Therefore, provisional pension was sanctioned vide Department's order no. 0066 dated 6.11.2004 and provisional gratuity was sanctioned vide Department's order no. 6331 dated 24.11.2008 pursuant to the order dated 25.9.2008 passed in W.P.S. No. 4375 of 2007 (Annexure-D to the counter affidavit). Perusal of the order dated 25.9.2008 makes it clear that the Respondents had categorically stated that 2 criminal cases pending against the petitioner in the District of Saharsa under the jurisdiction of State of Bihar were quashed by the Patna High Court vide order dated 3.11.2006 and 2.2.2007 passed in Cr. Misc. Nos. 38500/2007 and 37056 of 2007. Therefore, there being no further impediment, the State Government had passed the sanction order for payment of Gratuity. Apart from Gratuity, all other retirement benefits have been paid after his superannuation. As per the statement made in para 4 of the rejoinder to the counter affidavit, petitioner has been acquitted in another criminal case vide order dated 4.3.2013. 7. The circular dated 7.11.1981 clearly stipulates that claim of interest would be entertainable on payment of pension/D.C.R Gratuity delayed on account of administrative lapse or for reasons beyond the control of the retired Government servants. At the relevant point of time as the law stood, the Respondents could not have been held responsible for the delay in release of amount of Gratuity on account of the pending criminal prosecution against the petitioner. Therefore on merits also petitioner has not been able to justify that Respondents are guilty of delay for the reasons attributable to them in releasing the Gratuity amount after 4 years from the date of retirement for which they should be made liable to pay interest under circular dated 7.11.1981. 8. Therefore on merits also petitioner has not been able to justify that Respondents are guilty of delay for the reasons attributable to them in releasing the Gratuity amount after 4 years from the date of retirement for which they should be made liable to pay interest under circular dated 7.11.1981. 8. Therefore on consideration of the totality of facts, reasons and discussions made herein above, no grounds for review are made out of the impugned judgment. The instant review petition is dismissed accordingly.