Madras High Court
The Commissioner For Milk Production vs S. Venkatachalam on 20 November, 2018
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/11/2018
CORAM
The Honourable Mr.Justice S.Manikumar
and
The Honourable Mr.Justice Subramonium Prasad
Writ Appeal No.2517 of 2018
1. The Commissioner for Milk Production
and Dairy Development
Madhavaram Milk Colony
Chennai 51.
2. The Deputy Registrar (Dairying)
Dairy Development Department
Villupuram 605 401. ... Appellants
Vs
1. S. Venkatachalam
2. The Secretary
Government of Tamil Nadu
Animal Husbandry and
Dairy Development Department
Secretariat
Chennai 9.
3. The Principal Accountant General
(A & E) Tamil Nadu
No.261 Anna Salai
Chennai 18. ... Respondents
http://www.judis.nic.in
2
Appeal filed under Clause 15 of the Letters Patent against the
order dated 3/6/2015 passed in W.P.No.9941 of 2015.
For Appellant ... Mrs.Narmada Sampath
AAG
for Mr.T.K.Ashok Kumar
For Respondents ... Mr.P.S.Sivashanmuga Sundaram
Spl G P for R.2.
No appearance for R.R.1 and 3.
------
JUDGMENT
(Judgment of the Court was made by Subramonium Prasad,J) The Commissioner of Milk Production and Dairy Development, by this instant Writ Appeal, has challenged the order, dated 3/6/2015, passed in W.P.No.9941 of 2015, whereby the learned Single Judge has issued the following directions:-
a. directed the Commissioner of Milk Production and and Dairy Development and the Deputy Registrar (Dairying), Dairy Development Department, Villupuram, to pay death-cum-retirement gratuity (DCRG), with interest, as provided under the Tamil Nadu Pension Rules, for the http://www.judis.nic.in 3 services rendered by the writ petitioner, in the Government, within a period of twelve weeks, from the date of receipt of a copy of the said order and b. directed the Commissioner of Milk Production and Dairy Development and the Deputy Registrar (Dairying), Villupuram, to pay interest, at the rate of 10%, for the belated payment of provisional pension, within a period of twelve weeks, from the date of receipt of a copy of the said order.
c. directed the Principal Accountant General, Chennai, to authorise regular pension, pursuant to the proposal of the second respondent, in R.C.No.634/12/A, dated 26/12/2014, within a period of three weeks, from the date of receipt of a copy of the said order.
2. The first respondent/writ petitioner joined the Dairy Development Department, on 18/7/1963 and he worked in the said department, upto 31/1/1981. He was absorbed in the service of the Tamil Nadu Co-operative Milk Producers Federation from 1/2/1981 and http://www.judis.nic.in 4 retired from service, on 30/6/1995. The first respondent/writ petitioner claimed that was entitled to pension, on his retirement, for the service rendered in the Government.
3. A perusal of the material on record would show that certain departmental proceedings were pending against him on the date of retirement. Order permitting the first respondent/petitioner, to retire from service, reads as under:-
Proc.No.281/Pers.Estt.1/95 Dated: 30/6/1005 PROCEEDINGS Sub: TCMPF Limited – Pers & Estt. - Thiru.S.Venkatachalam
- Manager (Dairying) – Relieving on attaining the age of superannuation – Regarding ***** ORDER Thiru.S.Venkatachalam, Manager (Dairying), formerly Managing Director, South Arcot District Co- op. Milk Producers' Union Limited under orders of transfer as Managing Director, to Dindigul – Anna District Co-operative Milk Producers' Union and who is on leave, on attaining the age of superannuation is relieved from the services of the TCMPF Limited with effect from 30/6/1995 A.N without detrimental to the disposal of the charges already framed and now http://www.judis.nic.in 5 pending against him and also pending settlement of audit objections against him.
The Management also reserves the right to recover the loss from him if any caused by him to the District Milk Producers' Unions and Federation during his tenure.
He is also specifically informed that the terminal benefits will not be released till the disposal of all the cases pending against him.”
4. The pensionary benefits of the first respondent/petitioner were not paid to him. Records filed by the appellants would show that the first respondent/petitioner was constantly making repeated pleas, for releasing his retiral benefits. Records filed by the appellants further show that on 18/6/2012, office of the Commissioner, Milk Production and Dairy Development, wrote a letter, stating that since there are proceedings against the first respondent/petitioner, there would not be a drawl and disbursement of the benefits.
5. Material on record further disclose that on 26/10/2012, i.e., after seventeen years, of the retirement of the first respondent/petitioner, Dairy Development Department, wrote a letter, to the Commissioner of Milk Production, Dairy Development, Chennai and that the same reads as under:-
http://www.judis.nic.in 6 “In the letter cited, I have been requested to send necessary proposals for sanction of provisional pension to Thiru.S.Venkatachalam, SG Dairy Assistant of the Dairy Development Department for the services rendered by him in the Department and the TNDDC on deputation basis till 31/1/1981 as per the provisions of the pension code 61 and 66 and 69 and gratuity as per Rules 66 (1) (c) (ii) of the pension rules.
Thiru.S.Venkatachalam, SG Dairy Assistant (Retired) had joined the department on 18/7/1963 (AN) i.e., 19/7/1963 FN and served in the Department. Later, he was deputed to work on deputation basis on FS terms with the erstwhile TNDDC and continued in its successor federation (TCMPF) also. He had retired from the federation on 30/6/1995, while working as Managing Director, Villupuram District cooperative Milk Producers Union Limited and as such he is entitled for the payment of Pension and family pension with the further liberalised application of the pension in terms of the judgment and orders of the Hon'ble Supreme Court dated 18/7/1994 read with G.O.Ms.No.1921, http://www.judis.nic.in 7 Agriculture (MPIL) Department, dated 8/11/1983 read with G.O.Ms.No.55, Animal Husbandry and Fisheries (MP) Department dated 26/4/2000.
Pursuant to the Letter RC No.15737/B5/2006 dated 18/6/2012 of the Commissioner for Milk Production and Dairy Development, Chennai 600 051, I submit herewith proposals for the sanction of provisional pension as per Rules 66 read with the provisions of the pension code 61 and 66 and code 69 and gratuity as per Rules 66 (1) (c) (ii) of the pension Rules, since some audit objections pending settlement.
I submit here with the following required applications and other documents in duplicate, whenever necessary, for sanction of provisional pension and gratuity (80%).
Enclosures:
1. Pension application form and DCRG claim of the officer
2. Working sheet showing the details of service
3. Working sheet of the average emoluments and last pay drawn
4. Working sheet for DCRG admissible
5. Specimen signature of Thiru.S.Venkatachalam, SG Dairy Assistant in the DDD
6. Joint passport, size photo of Thiru.S.Venkatachalam, SG Dairy Assistant in the DDD
7. Details of family members
8. Declaration under G.O.Ms.No.845, dated 29/10/75 http://www.judis.nic.in 8
9. Declaration under Article 920 of Pension Code Thiru.S.Venkatachalam, SG Dairy Assistant in the DDD
10. Description roll of Identification mark
11. Service register 2 volumes I request early admittance and authorisation of provisional pension and gratuity benefits to Thiru.S.Venkatachalam, Retired SG Dairy Assistant in the Dairy Development Department for services rendered by him in the Department and the TNDDC on deputation basis till 31/1/1981 as per the provision of the pension code 61 and 66 and code 60 and gratuity as per Rules 66 (1) (c) (ii) of the pension rules.”
6. Once again, on 26/7/2013, the Deputy Registrar (Dairying), Villupuram, in R.C.No.634/12C, has recommended that the first respondent/petitioner is eligible to draw provisional pension, as ordered, in G.O.Ms.No.1921, Agriculture (MP.1) Department, dated 8/11/1983 from 1/7/1995 onwards. In fact, the said provisional claim, for pension, was also calculated and the abstract of the same is hereunder:-
http://www.judis.nic.in 9 Abstract Pension Rs.4,20,504 Recoveries DA Rs.1,58,406 Health Fund Rs. 7,340 MA Rs. 13,150 FSF Rs.11,750
--------------- ------------
Total Rs.5,92,060 Total Rs.19,090
--------------- ------------
Net payable Rs.5,72,970
7. No action was taken for release of pension and hence, the first respondent/petitioner had filed W.P.No.9941 of 2015. A Learned Single Judge, allowed the writ petition and directed as under:-
“(i). Respondents 1 and 2 are directed to pay the DCRG with interest as provided under the Tamil Nadu Pension Rules, for the service rendered by the petitioner in the Government, within a period of twelve weeks from the date of receipt of a copy of this order.
(ii). Respondents 1 and 2 are directed to pay interest at the rate of 10% for the belated payment of provisional pension, within a period of twelve weeks from the date of receipt of a copy of this order, as per the Division Bench judgment of this Court referred to http://www.judis.nic.in 10 above.
(iii). The Principal Accountant General, Chennai is directed to authorise regular pension pursuant to the proposal of the second respondent in R.C.No.634/12/A dated 26/12/2014 within a period of three weeks from the date of receipt of a copy of this order.”
8. Heard Mrs.Narmada Sampath, learned Additional Advocate General for Mr.T.K.Ashok Kumar for the appellants and Mr.P.S.Sivashanmuga Sundaram, learned Special Government Pleader for the second respondent.
9. The first respondent/writ petitioner is 78 years old, retired way back in the year 1995. 23 years have passed and he has not been granted pension. A perusal of the records filed by the first respondent/petitioner would indicate that his case has been recommended, for sanction of provisional pension and gratuity. In fact, even, on 26/12/2014, the Deputy Registrar (Dairying), Villupuram, has written a letter, to the Principal Accountant , General (A & E), Chennai, for releasing the pension. The said letter though has been quoted, by http://www.judis.nic.in 11 the learned Single Judge, is being quoted once again, to show the act of the government, in releasing the pension of the writ petitioner. The said proposal reads as under:-
“I wish to state that the final (pro-rate) pension proposals of Thiru.S.Venkatachalam, former Selection Grade Dairy Assistant of this Department who was later on absorbed in the services of Tamil Nadu Co-op Milk Producers Federation (TCMPF), an Apex Dairy Co- op body were twice forwarded to the Principal Accountant General (A & E) Tamil Nadu Chennai in the reference 2nd cited for admittance authensation of final pension (Prorate) and payment order for settlement of his DCRG.
The AG (A & E) Chennai, had returned the pension proposals in both times as per the referneces 3 & 4th cited for want of a reference of specific order for acquitting him of the charges framed and permitting to retire from the Government service with an advise to riverward the proposals with above said Government order in spite of having produced a reference of the Commissioner for Milk Production and Dairy Development (vide Ref 5) who is the Head of Department and Subordinate to Govt. along with http://www.judis.nic.in 12 proposals which contained specific mention that no surcharge proceeding (a legal proceedings under Section 87 of TNCS Act 1983)/Audit objections are pending against Thiru.S.Venkatachalam and also further mentioned that no govt. dues are pending against him during his govt. service.
In this regard, I wish to furnish the following clarifications based on the ground realities involved in this matter and also on official proceedings issued by the CMPDD and the M.D.TCMPF in order to speed up the process of issuing authorisation of pension and PPO for his govt. service.
Thiru.S.Venkatachalam, former Selection Grade Dairy Asst. performed two different type of service in his employment career from 19/7/1963 to 30/6/1995.
A. Govt Service – Thiru.S.Venkatachalam entered into the govt. service (Dairy Dev. Dept) on 19/7/1963 and served continuously upto 31/1/1981 for which the govt/Dairy Dev. Dept has to settle his pensionary benefits in the usual manner in which the claims are settled to retired govt. employees after his retirement from the services of TCMPF Ltd as per the guidelines specified in the G.O 1st cited.
B. Service in the co-op body on absorption: He http://www.judis.nic.in 13 was absorbed in the service of TCMPF Ltd 1/2/1981 as per the above said G.O and thereafter served continuously as employee of the TCMPF (Co-op body) till his retirement on 30/6/1995 on attaining the age of superannuation for this service, the TCMPF management has to settle his terminal benefits applicable under the provision of Co-op Act and Rules and the service rules of the TCMPF.
It is specifically pointed out in the ref.RC.No.6099/B5 dt. 26/5/2014 of the CMPDD that there were no charges framed against him and pending disposal and no dues to payable to govt. on account of any disciplinary proceedings during the period of his govt. service from 19/7/1963 to 31/1/1981.
But during the course of his services in the TCMPF Ltd certain charges were framed against him by the TCMPF management which led to initiate a Department proceedings (surchage proceeding) under Section 87 of the ANCS Act 1983 by the CMPAD who is the functional Registrar of Milk Co-ops in the Tamil Nadu State Administering statutary matters as per the Co-op Act.
On attaining the age of superannuation, the http://www.judis.nic.in 14 TCMPF management had relieved him from the services on 30/6/1995 as per the ref.6th cited without detrimental to the disposal of the charges already framed by the TCMPF and pending against him and also settlement of audit objections related to District Co-op Milk Producers Union where he had worked.
These Departmental proceedings initiated by the CMPDD/functional registrar of milk co-ops under the provision of Section 87 of the Co-op Act were disposed off in his favour with no monetary liabilities to the TCMPF as well as to the District Co-op milk unions where he had worked and the audit objections related to the M.D.TCMPF by the CMPDD/the functional registrar in his ref.No.14780/D3.2009 dated 8/7/2013 and requested the M.D.TCMPF to release his terminal benefits with a deduction of Rs.6782/- payable to the Villupuram Milk Union.
Thiru.S.Venkatachalam Selection Grade Dairy Assistant has already been sanctioned with provisional pension the reference RC 634/12/c-dated 26/7/2013 and the same has been entered in his service register Volume II in page No.43 however his DCRG accrued upto 1/2/1981 is yet to be draw and paid by this office.
http://www.judis.nic.in 15 Based on the above said reference of the CMPDD/the Functional Registrar and also the Head of the Department of Dairy Development, the M.D.TCMPF, the employer of Thiru.S.Venkatachalam had ordered for the release of his terminal benefits with deduction of Rs.6783/- being the dues payable to the VPM Milk union in the ref. 7th cited. Accordingly, the amount of Rs.6783/- was also deducted from his leave salary paid by the TCMPF through Milk Union as per the ref.No.8 of the GM Villupuram Milk Union. His terminal benefits pertaining to his TCMPF service fully settled after disposal of all the departmental proceedings initiated by the TCMPF as per the provision of TCS Act, 1983 administered by the CMPDD/The Functional Registrar of Milk Co-ops.
According to the G.O.Ms.1921 dated 8/11/1983 the pensionary benefits related to these Govt. employees of the DDD who were absorbed in the services of the TCMPF to be settled by the Govt/Dairy Dev.Department only after their retirement from the services of TCMPF after the disposal of legal proceedings and his retirement order was officially approved, the CMPDD/Dairy Development Department had sanctioned his pro-rate full pension as per the http://www.judis.nic.in 16 ref.9th cited as per the guidelines of the GO Ms.No.1921 dated 8/11/1983 and directed the DR (D) vpm to arrange for the settlement of pro-rate final pension.
The entire process of departmental proceedings initiated and its disposal were within the provision of TNCS Act, 1983 and nothing mentioned in the Act and rules that the matter of disposal of charges, to be informed to the govt. for issuance of specific orders for the payment of terminal benefits to them. It is enough that functional Registrar of Milk Co-operatives issues certificate for the disposal of any Departmental proceedings under provision of TNCS Act 1983. As such insisting for a govt. order to produce as evidence for the disposal of legal proceeding under the Co-op Act for admitting the pension proposals of pension to Thiru.S.Venkatachalam for his govt. service rendered is not justifiable. The reference of CMPDD under ref.No.(Ref.5) indicating the position of dues to govt/and to the co-op body would satisfy the legal requirement needed by AG (A & E) for processing of his pension proposals. By going through the above points of clarification the following issues have clearly emerged.
1. Thiru.S.Venkatachalam after serving in govt.
http://www.judis.nic.in 17 dept from 19/7/1963 to 31/1/1981 had worked as employee of Co-ops body (TCMPF) on absorption and retired as an employee of Co-op institution not as a govt. employee.
2. The Departmental proceedings (surcharge proceeding) initiated against him under the provision of Co-op Act and rules were disposed as per the provision of the TNCS Act under the administrative supervision of the functional Register of milk co- ops/CMPDD who has been empowered to administer the co-op act rules in respect of milk co-ops in the State.
3. The CMPDD/head of the dairy Dev. Dept and pension sanctioning authority has clearly indicated in his ref.No.6099/B5/14 dated 26/5/2014 that Thiru.S.Venkatachalam has no dues to govt/and all the departmental proceedings have been disposed of with no dues to co-op institutions.
4. The M.D., the employer of Thiru.S.Venkatachalam for the service in the TCMPF has settled his terminal benefits in full after confirming his retirement in the ref. 7th cited for the service rendered in TCMPF 1/2/1981 to 30/6/1995 rendered from 1/2/1981 to 30/6/1995.
http://www.judis.nic.in 18 It is hoped that the above points would be sufficient to enlighten the AG (A & E) for the queries raised for the admittance of pension proposals of Thiru.S.Venkatachalam.
As such, I am herewith reforwarding the pension proposals of Thiru.S.Venkatachalam in the third time with furnishing necessary explanation to satisfy the query raised by the AG (AE) to enclose the Govt. order for the disposal of the disposal of charges framed by the Co-op body for your kind perusal and request you to admit the pension proposals and to issue necessary authorisation of pension and PPO along with an order to release the DCRG of the pensioner at any early date.”
10. Rule 66 (1) of the Pension Rules, 1978 and 69 (1) which are relevant for this case are extracted hereunder:-
66. Sanction, drawal and disbursement of provisional pension and of gratuity: (1) After the pension papers of a Government servant have been sent to the Audit Officer concerned, the Head of office shall draw full gratuity admissible along with the provisional pension not exceeding the maximum even in the first http://www.judis.nic.in 19 instance as indicated in Part II of Form 5 and for this purpose adopt the following procedure, namely:-
a. he shall issue a sanction letter to the Government servant endorsing a copy thereof to the Audit officer indicating amount of provisional pension along with the full gratuity not exceeding the maximum payable to such Government servant on retirement from service.
b. he shall indicate in the sanction letter the amount recoverable out of the gratuity under sub-rule (3) of rule 65;
c. after the issue of the sanction letter he shall draw -
(i). the amount of provisional pension; and
(ii). The amount of full gratuity not exceeding the maximum admissible after deducting there from the dues mentioned in clause (b) in M.T.C.47 A appended to the Treasury Rules of the Government from the Treasury at which the pay and allowances of the establishment are drawn by him; and d. he shall obtain from such Government servant on retirement from service a certificate of non-
employment as mentioned in sub-rule (6) and append the same to the said form M.T.C.47 – A. http://www.judis.nic.in 20
69. Provisional pension where departmental or judicial proceedings or enquiry by the Director of Vigilance and Anti-corruption may be pending (1) (a) In respect of a Government servant referred to in sub- rule (4) of 9, the Head of office shall pay the provisional pension not exceeding the maximum pension which would have been admissible on the basis of qualifying service upto the date of retirement of the Government servant.”
11. A perusal of the above said Rules would show that the first respondent/writ petitioner was entitled to provisional pension, from the date of his retirement. The reasons stated by the appellants, in denying the pension, is not acceptable. Learned Single Judge, therefore, was correct in awarding interest, on the belated pension.
12. It is well known that pension is not a bounty, but is deferred wages. The Hon'ble Supreme Court has time and again deprecated the action of the Government in delaying release of pension. It is now settled that even if the pension rules do not provide for grant of interest.
http://www.judis.nic.in 21 Writ Court is not powerless to grant interest on the delay in payment of pension. The Hon'ble Supreme Court, in S.K.Dua Vs. State of Haryana & Others {2008 (3) SCC 44}, has observed as under:-
“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. 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.”
13. It is to be noted that this judgment was passed, when the High Court refused to grant interest, on the belated payment of retiral benefits, on the ground that there was no provision in the Pension Rules, http://www.judis.nic.in 22 permitting grant of interest for belated pension. Law laid down by the Hon'ble Supreme Court squarely applies to this case.
14. In fact, a Hon'ble Division Bench of this Court, in Government of Tamil Nadu, represented by the Secretary to Government, Revenue Department, Chennai and another Vs.M.Deivasigamani {2009 (3) MLJ – 1}, wherein one of us (Mr.Justice S.Manikumar), is a party, has granted interest, on delayed payment of pension.
15. Keeping the above said principle in mind, there is no infirmity in the order made by the learned Single Judge. It is surprising that the Board, after recommending the grant of pension has chosen to challenge the order of the learned Single Judge. Order of the learned Single Judge, in directing the Accountant General to pay the amount, does not affect the right of the appellants. It is the appellants which are duty bound to pay interest, for the belated payment and no fault can be found with the impugned order, which is in accordance with law, laid down by the Hon'ble Supreme Court, and the Hon'ble Division Bench of this Court, cited supra.
http://www.judis.nic.in 23
16. In view of the above, writ appeal is dismissed, with costs of Rs.10,000/- (Rupees Ten thousand only), to be paid to the account of Juvenile Justice Fund, Director of Social Defence, Ministry of Social Welfare, Government of Tamil Nadu, Kellys, Kilpauk, Chennai 600 010, within a period of fifteen days, from the date of receipt of a copy of this order, failing which the District Collector, shall initiate proceedings under the Revenue Recovery Act. No costs. Consequently, the connected Miscellaneous Petition is closed.
(S.M.K., J.) (S.P., J.)
20th November, 2018
Index : Yes
Internet : Yes
Speaking / Non Speaking Order
mvs.
http://www.judis.nic.in
24
To
1. The Secretary
Government of Tamil Nadu
Animal Husbandry and
Dairy Development Department
Secretariat
Chennai 9.
2. The Principal Accountant General
(A & E) Tamil Nadu
No.261 Anna Salai
Chennai 18.
http://www.judis.nic.in
25
S.MANIKUMAR,J
AND
SUBRAMONIUM PRASAD,J
mvs/gsp
Writ Appeal No.2517 of 2018
20/11/2018
http://www.judis.nic.in