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2022 DIGILAW 373 (ORI)

Kedara Chandra Samal v. State of Odisha

2022-08-11

S.K.PANIGRAHI

body2022
JUDGMENT : Dr. S.K. Panigrahi, J. 1. The petitioner has filed this Writ Petition seeking a direction to be issued to the Opp. parties to pay the revised gratuity to an amount of about Rs.3,46,995/-. He has additionally prayed for a direction to be issued to the Opp. parties to pay the interest at the rate of 8.5% for such intentional delayed payment of gratuity as per Rule 49 (5) of Odisha Civil Services (Pension) Rules, 1992 from the date of actual entitlement till actual payment. 2. Shorn of unnecessary details, the factual matrix of the case in brief is that the petitioner while working as District Welfare Officer at Kandhamal, retired from service w.e.f. 31.01.2007 on attaining age of superannuation. After retirement pension payment order was issued bearing No.367366. After 6 months of retirement, proceeding was initiated against the petitioner vide memorandum dated 25.06.2007 under Rule-15 of OCS (CC&A) Rules, 1962 read with Rule-7 of OCS (Pension), Rules, 1992. The petitioner was directed to file his written statement of defence within 30 days from the date of receipt of the memorandum of charges. Accordingly, the petitioner submitted his written statement of defence on 12.08.2008. 3. After submission of written statement, there was no progress in the Departmental Proceeding. While the matter stood, the Finance Department published a resolution dated 02.04.2011 regarding revision of pension/Family pension, Gratuity, Commutation of pension for State Government employees w.e.f 1st January 2006. The maximum limit of DCRG (Death Cum Retirement Gratuity) was enhanced from Rs. 2.5 lakhs to 7.5 lakhs w.e.f 01.01.2006 instead of 01.12.2008. It had also been clarified that the employee who have retired during the period from 01.01.2006 to 30.11.2008 are entitled to DCRG up to a maximum of Rs.7.5 lakhs on revision of pay scale w.e.f. 01.01.2006. The petitioner retired on 31.01.2007. So, he comes under the Notification of Finance Department and is entitled to get such enhanced gratuity amount. 4. In pursuance of notification under Annexure-3, the Director (ST/SC) wrote letter dated 28.04.2011 to AG Odisha for revision of pension and other pensionary benefits of petitioner bearing PPO No.367366. In the said letter Director(ST/SC) forwarded the following documents of petitioner for Revision of pension and other pensionary benefits. While forwarding the documents of petitioner for Revised pension, the DCRG amount was held up on the ground of Departmental Proceeding. 5. In the said letter Director(ST/SC) forwarded the following documents of petitioner for Revision of pension and other pensionary benefits. While forwarding the documents of petitioner for Revised pension, the DCRG amount was held up on the ground of Departmental Proceeding. 5. While the matter stood, the petitioner submitted a representation to the Opp. party No.2 on 12.09.2013 for release of Gratuity. However, on rejection of the same, the petitioner approached the Tribunal by filing OA No.3987/2013 with a prayer for release of Gratuity with interest. On 13.02.2014, the Tribunal was pleased to issue notice for filing of counter and during the pendency of case, the Opp. party No.1 passed the final order in the Departmental proceeding vide order dated 29.11.2014 imposing punishment of 5% of the pension of the delinquent officer Kedar Ch. Samal be withheld for a period of one year. 6. The enquiry report was received from PA ITDA, Baliguda vide letter dated 30.05.2008 and he has been requested to conduct further enquiry on some point vide letter dated 07.05.2009 for finalization of the proceeding and the enquiry report is waited. It was further stated in the counter that as per Rule-66(2) of O.C.S. (Pension) Rules, 1992 no gratuity shall be paid to the Government servant until conclusion of departmental proceedings & issue of final order thereon. Accordingly, petitioner representation was not considered. Being aggrieved of the same, the petitioner has filed this writ petition. 7. Learned Counsel for the petitioner has submitted that due to administrative lapses, the petitioner is deprived to get gratuity after retirement w.e.f. 31.01.2007 due to pendency of proceeding and it was finalized only on 29.11.2014. The petitioner is entitled for revised Gratuity as per finance department notification dated 2nd April 2011 and interest on delayed payment of gratuity. 8. Learned Counsel for the Opposite Party No.3 has submitted that the office of the Respondent No.3 has been cast with the duties for authorization of pensionary/family pensionary benefits in favour of the retired/ family members of the retired/deceased Government servants of State Government of Odisha in terms of O.C.S. (Pension) Rules and subsequent Government of Odisha orders from time to time. In the instant case, the Director (ST/SC) & Ex-Officio, Additional Secretary to Government of Odisha, ST/SC Development Department in letter dated 28.07.2007, in letter No. 3059 dated 22.01.2008 and in letter No. 13760 dated 28.04.2011 (Annedure-4 of O.A) has categorically requested this office to withhold DCRG of the Applicant till receipt of further clearance from their Department. Accordingly, the DCRG amounting to Rs.3,46,995/-(Arrived as per ORSP Rules-2008) has been kept withheld by this office. On receipt of final clearance (final NDC) from the office of the Respondent No.1, the Respondent No.3 shall be duty bound to authorize the admissible DCRG of the Applicant as per OCS (Pension) Rules. Further, the allegation of the Applicant for payment of interest for delayed payment of DCRG is not at all attributable to Respondent No.3 as the office of the Respondent No.1 has categorically instructed not to release the DCRG of the Applicant. Since there are no deficiencies and/or delay or fault on the part of Respondent No. 3 in the matter in controversies, the O.A.C should be dismissed as against him. 9. This Court is of the opinion that as there was a delay in the payment of arrears of salary for which the petitioner is not at all responsible, he is entitled to the interest on the delayed payment. Because of the administrative laches, there was a delay in the payment of arrears of salary and/or settling the dues and hence, the retired employee should not be made to suffer for no fault of his. 10. It is well-settled that salaries and pensions are due as a matter of right to employees, and, as the case may be, to former employees who have served the State. Since, the petitioner rendered his services till superannuation as a Government servant, his entitlement to the payment of salary is intrinsic to the right to life under Article 21 and to right to property which is recognized by Article 300A of the Constitution. 11. The Supreme Court in the case of State of Andhra Pradesh & Anr v. Smt. Dinavahi Lakshmi Kameswari, CIVIL APPEAL NO. 399 OF 2021 observed that: "The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. 399 OF 2021 observed that: "The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State.” 12. There is no dispute about the delayed payment as it was withheld for insufficient reasons. There is no material justification to take such time for fixing arrears of the petitioner. On this undisputed position, the Court is not inclined to accept the submissions of the Opposite Parties regarding non-payment of interest without any specific provisions in the service conditions. The late decision taken by the opposite parties is attributable to administrative laches across different levels and the same cannot be the reason to withhold the payment to the employees who admittedly worked at the relevant time. The fact remains that there was delay in making payment of arrears of salary and other benefits with or without intention, is immaterial. In the view of this court and the admitted position on record, the payment was not made on due dates according to service conditions, and there is no disputed question of facts involved. 13. Moreover, the employees cannot be allowed to suffer because of inaction on the part of the employer. The employee is definitely entitled to get the payment as per the service conditions on due dates and/or in a given case within reasonable time. The employees, had the payment been received within time and/or on due dates, could have utilized the same for various purposes. 14. Highlighting the need for consideration on grounds of equity in cases of deferred payments, the Supreme Court, in the case of Union of India & Ors v. Dr. J.K Goel, 1995 SCC Supl. The employees, had the payment been received within time and/or on due dates, could have utilized the same for various purposes. 14. Highlighting the need for consideration on grounds of equity in cases of deferred payments, the Supreme Court, in the case of Union of India & Ors v. Dr. J.K Goel, 1995 SCC Supl. (3) 161 1995 SCALE (3)550, observed that: “Before any interest can be granted on equitable considerations, it is necessary that the facts of the case should be examined to ascertain whether there are any special equities which would justify the grant of such interest although there is no provision in law for such grant” 15. Similarly, in the case of D.D. Tewari vs. Uttar Haryana Bulivitran Nigam Limited and others, CIVIL APPEAL NO. 7113 OF 2014, the Supreme Court held that “…...denial of interest from the date of entitlement till the date of actual disbursement would take away the valuable rights of the retired government servant. It was reiterated in that decision that pension and gratuity are not bounty to be distributed by Government to its employees on their retirement, but are valuable rights and property in its hands and any culpable delay in settlement and disbursement thereof is to be visited with penalty of payment of interest.” 16. In light of the above-mentioned facts and precedents cited hereinabove, this Court is inclined to allow this petition. This Court, accordingly, directs the State to pay simple interest computed at the rate of 6% per annum on account of deferred salaries within a period of 30 days from today. The direction for payment of interest @ 6% per annum is made bearing in mind the decision of the Supreme Court in the case of State of Andhra Pradesh & Anr v. Smt. Dinavahi Lakshmi Kameswari, CIVIL APPEAL NO. 399 OF 2021. 17. Accordingly, this Writ Petition is disposed of.