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2019 DIGILAW 840 (ALL)

Nooruddiin v. State of U. P.

2019-04-03

AJAY BHANOT

body2019
JUDGMENT : Ajay Bhanot, J. Heard Sri. S.T. Ali, learned counsel for the petitioner, Sri. Nityanand Mishra, learned counsel holding brief of Sri. Nagendra Nath Mishra, learned counsel for the respondent Nagar Nigam and learned Standing Counsel for the State respondent. 2. No counter-affidavit has been filed till date despite time being granted by this Court. Learned counsel for the respondents prays for additional time to file counter-affidavit. The prayer is rejected. Matter relates to terminal and pensionary benefits which are due to the petitioner. Consequently this Court is proceeding to hear in the matter on merits. 3. The petitioner superannuated from service on 31.01.2010 as a senior clerk in Nagar Nigam, Moradabad. Certain amounts from his terminal benefits which are detailed hereinafter have been withheld and not released in favour of the petitioner even after his retirement. An amount of Rs.41,271/- has been withheld from the pension of the petitioner. An amount of Rs.1,35,056/- has been withheld from the gratuity payable to the petitioner. The total amount which has been illegally retained and not disbursed to the petitioner is to the extent of Rs.1,76,327/-. 4. The petitioner asserts that immediately prior to his retirement, No Dues Certificate was issued by the competent authority on 19.01.2010. No dues certificate is appended as Annexure 1 to the writ petition clearly records that no amount is payable from the petitioner to the Nagar Nigam, Moradabad nor is the petitioner required to make over possession of any immovable property or documents to the Nagar Nigam, Moradabad. The petitioner made a number of representations to the respondent authorities regarding non payment and illegal retention of terminal dues. 5. The Uppar Nagar Ayukta, Nagar Nigam, Moradabad by order dated 30.04.2015 cites various reasons for not releasing the terminal dues of the petitioner to the extent of Rs.1,35,056/-. The order dated 30.04.2015 records that certain discrepancies were found in the account books for the year 2004-2005. A report of the Chief District Accounts Inspector purportedly sent on 25.10.2010 records that there was a short deposit of certain amounts is cited in the order dated 30.04.2015. Further, there is a recital in the order dated 30.04.2015 that certain relevant documents were not made over by the petitioner to his successor one Madan Lal. 6. A legal opinion was sought in the matter. Further, there is a recital in the order dated 30.04.2015 that certain relevant documents were not made over by the petitioner to his successor one Madan Lal. 6. A legal opinion was sought in the matter. On the foot of such legal opinion, No Dues Certificate issued to the petitioner was recalled by order dated 24.12.2011 passed by the Nagar Ayukta, Nagar Nigam, Moradabad. The order dated 30.04.2015 thereafter finds that the petitioner failed to submit documents relating to Hackney Carriage to his successor in his office. The petitioner declined to do so despite several communications was sent in this regard. Finally, the order directs the petitioner to submit the aforesaid documents which will pave the way for payment of his terminal dues which have been retained by the department. 7. Learned counsel for the petitioner Sri. S. T. Ali submits that the petitioner had categorically denied the allegations against him by order dated 24.02.2015. However, the respondent authorities did not consider the aforesaid letter. 8. The petitioner regularly appeared before the authorities even after his retirement and personally made a statement of his defence denying the charges against him. Thereafter, the petitioner submitted a detailed reply by an application dated 25.03.2015 reiterating his defence and refuting the charges against him. The aforesaid defence of the petitioner was never considered. It is evident that the denial made by the petitioner of the charges against him has not been disputed. Further, the stand of the petitioner is also liable to be believed in the absence of any counter-affidavit to traverse the averments made in the writ petition. 9. Sri. S. T. Ali, learned counsel for the petitioner further contends that no pecuniary loss has been caused by the petitioner to the State exchequer hence the recovery of any amount is completely arbitrary. He also submits that no disciplinary proceedings were pending against the petitioner at the time of his retirement. No enquiry proceedings were held which indicted the petitioner of any charges of embezzlement or causing any loss to the State exchequer. 10. Learned counsel for the Nagar Nigam could not show or establish that any enquiry was conducted in this regard. 11. The arguments of the learned counsel for the petitioner are also borne out by specific pleadings in this regard. 10. Learned counsel for the Nagar Nigam could not show or establish that any enquiry was conducted in this regard. 11. The arguments of the learned counsel for the petitioner are also borne out by specific pleadings in this regard. Further, the stand of the petitioner is also corroborated by the order dated 30.04.2015 passed by the Uppar Nagar Ayukta, Nagar Nigam, Moradabad. The order does not record any indictment in any enquiry proceedings. Further, no lawful finding of causing loss to the State exchequer is in the record. Any finding of loss to the State exchequer has to be preceded by an appropriate enquiry. Admittedly, no such enquiry was conducted in the instant case. 12. The Court finds that the order dated 30.04.2015 further records findings on the foot of some adverse material. The petitioner was never furnished any adverse material nor he was afforded any opportunity to tender his defence to the adverse material and refute the same. 13. The order dated 30.04.2015 is arbitrary and illegal. The order dated 30.04.2015 cannot stand. The order dated 30.04.2015 passed by Uppar Nagar Ayukta, Nagar Nigam, Moradabad is quashed. 14. The petitioner superannuated with an unblemished record of service which is attested by No Dues Certificate in favour of the petitioner. The petitioner is in the evening of his life and he has been made to run from pillar to post. The denial of terminal dues in an arbitrary manner causes untold harassment to a superannuated employee. 15. The courts have set their face against the illegal denial of terminal dues. It would now be apposite to fortify the narrative with judicial authorities on point. 16. The Hon'ble Supreme Court in the case of State of Kerala and others v. M. Padmanabhan Nair, (1985) AIR SC 356, reiterating the established position of law that pension and gratutity are not any bounty to be distributed by the Government to its employee, but have been elevated as valuable rights of the superannuating employees. The Hon'ble Supreme Court, looked askance at the delay in payment of retiral dues. Emphasizing the need for prompt payment of retiral dues to a Government servant upon his retirement the Hon'ble Supreme Court directed payment of interest to delay in disbursal of terminal benefits by holding thus:- "1. The Hon'ble Supreme Court, looked askance at the delay in payment of retiral dues. Emphasizing the need for prompt payment of retiral dues to a Government servant upon his retirement the Hon'ble Supreme Court directed payment of interest to delay in disbursal of terminal benefits by holding thus:- "1. Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. 2. Usually the delay occurs by reason of non-production of the L.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement." 17. A similar view was reiterated by the Hon'ble Supreme Court in the case of D.D. Tewari v. Uttar Haryana Bijli Vitran Nigam Ltd., (2014) 8 SCC 894 , in the following terms: "4. The learned single Judge has allowed the writ petition vide order dated 25.08.2010, after setting aside the action of the respondents in withholding the amount of gratuity and directing the respondents to release the withheld amount of gratuity within three months without awarding interest as claimed by the appellant. The High Court has adverted to the judgments of this Court particularly, in State of Kerala V.M. Padmanabhan Nair, wherein this Court reiterated its earlier view holding that: "1. The High Court has adverted to the judgments of this Court particularly, in State of Kerala V.M. Padmanabhan Nair, wherein this Court reiterated its earlier view holding that: "1. [the] pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decision of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment to the employees." 18. In the case of Vijay L. Mehrotra v. State of U.P., (2001) 9 SCC 687 , timely payment of retiral benefits was emphasized by the Hon'ble Supreme Court: 3. In case of an employee retiring after having rendered service, It is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforseen circumstances the payments could not be made on the date of retirement. 19. While in the case of S.K. Dua v. State of Haryana, (2008) 3 SCC 44 , the Hon'ble Supreme Court held that interest of delayed pension and retiral dues was not contingent on the existence of statutory rules, administrative instructions or guidelines. Even in the absence thereof, the appellant was entitled to claim interest under Part 3 of the Constitution of India, on the foot of the rights vested by Articles 14, 19 and 21 of the Constitution of India by holding thus: "14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part-III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents." 20. The Hon'ble Supreme Court did not countenance delay in settlement and disbursement in pension to an employee who had superannuated from service in the case of Gorakhpur University v. Shitla Prasad Nagendra (Dr.), (2001) 6 SCC 591 . The action of non-payment of retiral dues by an employer was viewed seriously and dealt with severely by imposing penalty in form of payment of interest in Shitla Prasad Nagendra (supra) by ruling as under: "5. We have carefully considered the submission on behalf of the respective parties before us. The earlier decision pertaining to this very University, report in S.N. Mathur is that of a Division Bench, rendered after considering he principles laid down and also placing reliance upon the decisions of this Court report in R. Kapur which, in turn, relied upon earlier decisions in State of Kerala v. M. Padmanabhan Nair, (1985) AIR SC 356 and Som Prakash. This Court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest." 21. In the case of D.D. Tewari (supra), interest at the rate of 9% has been granted by the Apex Court on delayed payment of pension and other dues which is as follows: "8. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date the amount falls due to the deceased employee. With the above directions, this appeal is allowed." 22. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date the amount falls due to the deceased employee. With the above directions, this appeal is allowed." 22. A view consistent with past authorities was taken by the Hon'ble Supreme Court in the case of Y.K. Singla v. Punjab National Bank, (2013) 3 SCC 472 , by awarding interest on delayed payment of retiral dues along with costs for expenses incurred: "26. We, accordingly, direct PNB to pay to the appellant, interest at "... the rate notified by the Central Government for repayment of long-term deposits". In case no such notification has been issued, we are of the view, that the appellant would be entitled to interest, as was awarded to him by the learned single Judge of the High Court vide order dated 4-5-2011 [Y.K. Singla v. Punjab National Bank, CWP No. 6469 of 2010, order dated 4-5-2011 (P&H)] i.e. interest @ 8%. PNB is directed to pay the aforesaid interest to the appellant within one month of the appellant's furnishing to PNB a certified copy of the instant order. The appellant shall also be entitled to costs quantified at Rs. 50,000, for having had to incur expenses before the writ court, before the Division Bench, and finally before this Court. The aforesaid costs shall also be disbursed to the appellant within the time indicated hereinabove." 23. In the light of the narrative in the preceding paragraphs, this Court finds that the terminal benefits of the petitioner were arbitrarily retained by the respondents and denied to the petitioner. Denial of terminal benefits violated the fundamental rights of the petitioner guaranteed under Articles 14, 19 and 21 of the Constitution of India. The petitioner is entitled to disbursal of the terminal benefits in his favour. The authorities are liable to pay interest and costs to the petitioner. 24. The petitioner shall be forthwith paid all the terminal dues which are retained by the respondent authorities along with 10% interest from the date of the aforesaid amounts become due to the petitioner till the date of actual payment. Costs of Rs. 25,000/- are imposed upon the respondent Nagar Nigam, Moradabad payable to the petitioner along with the terminal dues. 25. Costs of Rs. 25,000/- are imposed upon the respondent Nagar Nigam, Moradabad payable to the petitioner along with the terminal dues. 25. The petitioner further claims to be entitled for Assured Career Progression (ACP) Scheme and such dues are payable to the petitioner have also been denied to him. The authorities shall decide the claim of the petitioner for grant of ACP to which he claims entitlement within a period of one month from the date of receipt of a certified copy of this order along with a representation in this regard. 26. The writ petition is allowed to the above extent.