Karnataka High Court
K.N.Subramanya vs State Of Karnataka on 14 September, 2017
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR.JUSTICE B. VEERAPPA
WRIT PETITION NO.6351 OF 2014 (S-R)
Between:
K.N.Subramanya
S/o Nageshaiah,
Aged about 63 years,
Retd.Revenue Officer,
R/o "Ambik", Near Basrimatta,
Nana Saheb Road, Vaderahobli
Kundapura, Udupi Dist - 576 201.
...Petitioner
(By Sri.P.M.Nayak, Advocate)
And:
1. State of Karnataka
By its Secretary to Government,
Urban Development Department,
M.S.Building,
Bengaluru - 560 001.
2. The Director of Municipal Admn.,
9th floor, Visveswaraiah Towers,
Bengaluru - 560 001.
3. The Assistant Controller,
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Local Audit Circle,
Udupi - 576 201.
4. The Chief Officer,
Town Municipal Council,
Kundapura - 576 201
Udupi District.
... Respondents
(By Smt.Shweta krishnappa, AGA for
R1 and R2; R3 and R4 served, unrepresented)
This writ petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
endorsement dated 2.1.2013 issued by the respondent
No.2 vide Annexure-H and etc.
This writ petition coming on for Preliminary
Hearing in 'B' Group this day, the court made the
following:
ORDER
The retired Revenue Officer is before this Court for a writ of certiorari to quash the impugned endorsement dated 02.01.2013 passed by the 2nd respondent as per annexure-H and writ of mandamus directing the 2nd respondent to sanction the interest on the amount of Rs.5,73,644/- @ 12% per annum for the period from -3- 01.06.2011 to 07.01.2013 and also for writ of mandamus, directing the 3rd respondent to authorize the interest @ 12% on the amount of Rs.5,73,644/- for the period from 01.06.2011 to 07.01.2013 to the petitioner.
2. It is the case of the petitioner that he had joined the service as Dafedar in the year 1981 under 2nd respondent-Municipal Department and changed the cadre as Bill Collector and was promoted as Revenue Inspector and rendered services in various municipalities. When he was working in the 4th respondent-Town Municipal Council, on attaining the age of superannuation, he retired on 31.05.2011. The 3rd respondent is the authority for authorizing the pension and other pensionery benefits to the municipal employees. Accordingly, the 3rd respondent by its order dated 30.09.2011, authorized District Treasury Officer to pay minimum pension amount of Rs.2,250/- every -4- month from 01.06.2011 to the petitioner. Accordingly, 3rd respondent issued endorsement dated 05.04.2012 informing the petitioner that he is not entitled for full pension and pensionery benefits.
3. Against the said endorsement issued by the 3rd respondent, the petitioner filed writ petition No.19496/2012(S-R) before this Court and this Court, after hearing both the parties, by an order dated 23.08.2012, allowed the writ petition by quashing the impugned communication dated 05.04.2012 passed by the 3rd respondent and the matter was remitted to the Assistant Controller, Local Audit Circle, Udupi i.e., 3rd respondent to consider the documents produced by the petitioner and also the notification and if the petitioner fulfills all the requirements, his pension shall be settled as early as possible, but not later than three months from the date of receipt of copy of the order. -5-
4. In pursuance of the order passed by this Court, the 3rd respondent after verifying the entire material on record, by its order dated 11.12.2012, issued the order for the payment of full pension and revised monthly pension to the petitioner @ Rs.6057/- from 01.06.2011 and also authorized the Treasury Officer to make payment of full pension and arrears of pension amount at Rs.3807/- every month from 01.06.2011 till the date of actual payment i.e. 07.01.2013. It is the further case of the petitioner that in pursuance of settlement of full pension amount, 3rd respondent by an order dated 11.12.2012, issued direction to the Treasury Officer for payment of Rs.1,99,875/- towards Death-cum-Retirement Gratuity and Rs.2,37,677/- towards commuted value of the pension amount. Accordingly, the petitioner received a sum of Rs.1,99,875/- towards Death-cum-Retirement Gratuity and Rs.2,37,677/- towards commuted value of -6- the pension amount on 07.01.2013 as per annexure - D and E respectively.
5. It is the further case of the petitioner that even though the petitioner is entitled for pension amount and pensionery benefits from 01.06.2011, he has availed the said benefits totally amounting to Rs.5,73,644/- only on 07.01.2013 for no fault on the part of the petitioner. Therefore, the petitioner has made a representation dated 24.01.2013 to the 2nd respondent for payment of interest @ 12% per annum for the period from 01.06.2011 to 07.01.2013. In pursuance of the said representation, the 3rd respondent by letter dated 09.04.2013, furnished information under the RTI Act, stating that there is no order from Hon'ble High Court for payment of interest amount and there was no authorization issued for payment of interest amount and further informed that the Administrative Department can examine about the -7- payment of interest. Accordingly, 2nd respondent also issued endorsement informing the petitioner that the proposal relating to the payment of pension amount was only for want of approval of the Government, therefore, there is no authorization for payment of pension and apart from that, this Court by order dated 23.08.2012, had not issued any orders for payment of interest and therefore, the 2nd respondent issued endorsement dated 09.04.2013 declining the payment of interest to the petitioner as per annexure - H i.e., the present impugned order , Therefore, the petitioner is before this Court for the relief sought for.
6. The respondent-State Government has not filed objections.
7. I have heard the learned counsel for the parties to the lis.
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8. Sri.P.M.Nayak, learned counsel for the petitioner reiterating the grounds urged in the writ petition has contended that the denial of interest amount on delayed payment from 01.06.2011 to 07.01.2013 is erroneous and contrary to the material on record. He further contended that without any fault on the part of the petitioner, the amount of Death-cum- Retirement Gratuity and commuted value of the pension amount, totally a sum of Rs.5,73,644/- was paid only on 07.01.2013, even though the pension was sanctioned to the petitioner with effect from 01.06.2011. Therefore, there was a delay on the part of the respondents in payment towards Death-cum-Retirement Gratuity and commuted value of the pension amount till 07.01.2013. Therefore, petitioner is entitled for interest on the delayed payment of pension and commuted pension amount from 01.06.2011 to 07.01.2013 and the said aspect of the matter has not been considered by the authorities. He would further contend that the 3rd -9- respondent authority issued endorsement denying the interest mainly on the ground that this Court while disposing of writ petition No.19496/2012 dated 23.08.2012, has not passed any order for payment of interest on the delayed payment. Therefore, petitioner is not entitled for any interest for the delayed payment. The said finding in the form of an endorsement is erroneous. He would further contend that what was challenged before this Court in the said writ petition was that the petitioner was not entitled for full pension and pensionary benefits. Therefore, he sought to quash the impugned order passed by the respondents and allow the writ petition as sought for.
9. Per contra, Smt.Shwetha Krishnappa, learned Government Advocate sought to justify the impugned order and contended that, earlier petitioner filed writ petition against the endorsement issued by the 3rd respondent dated 05.04.2012 informing that the
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petitioner was not entitled for full pension and pensionery benefits and this Court while disposing of the writ petition No.19496/2012 dated 23.08.2012 directed the 3rd respondent to consider the documents produced by the petitioner and also notification and if the petitioner fulfills all the requirements, his pension shall be settled as early as possible, but not later than three months from the date of receipt of copy of the order. In pursuance of the said order by this Court, within the time i.e., three months, the amount of Death- cum-Retirement Gratuity and commuted pension/ pensionery benefits have been settled. Therefore, the petitioner is not entitled for any interest on the delayed pension amount and there was no delay on the part of the respondent-State Government. She further contended that interest, if any, is payable only from 01.06.2011 to 11.12.2012, on which date the order for payment of pension came to be passed. Therefore, sought to dismiss the writ petition.
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10. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arise for consideration in the present writ petition is :-
"Whether petitioner is entitled for interest on the delayed payment of Death-cum-Retirement Gratuity and commuted pension from 01.06.2011 to 07.01.2013 in the facts and circumstances of the present case?"
11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties. It is not in dispute that the petitioner was appointed in the year 1981 and he has worked as Revenue Inspector after rendering services in various municipalities till 31.05.2011 i.e, on attaining his age of superannuation. It is also not in dispute that 3rd respondent authorized District Treasury Officer for payment of minimum pension of Rs.2250/- every month from 01.06.2011 to the petitioner. On the basis of the same, the 3rd respondent issued endorsement on
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05.04.2012, informing the petitioner that he is not entitled for full pension and pensionery benefits, which was the subject matter before this Court in writ petition No.19496/2012. After hearing both the parties, this Court, by an order dated 23.08.2012, allowed the writ petition and quashed the endorsement dated 05.04.2012 and directed the 3rd respondent to consider the documents produced by the petitioner and also the notification and if he fulfills all the requirements, his pension shall be settled as early as possible, but not later than three months from the date of receipt of copy of the order. The said order passed by this Court has reached finality.
12. It is also not in dispute that in pursuance of the order passed by this Court, the 3rd respondent by an order dated 11.12.2012, issued order for payment of full pension and revised monthly pension to the petitioner at Rs.6057/- every month from 01.06.2011 and
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authorized the Treasury Officer for payment of full pension and arrears pension amount of Rs.3807/- every month from 01.06.2011 till the date of actual payment that is 07.01.2013. It is also not in dispute that, in pursuance of the said order passed by the 3rd respondent, the petitioner had drawn the Death-cum- Retirement Gratuity of Rs.1,99,875/- and Rs.2,37,677/- towards commuted value of the pension amount only on 07.01.2013 totally amounting to Rs.5,70,644/-. It is the specific case of the petitioner that though the petitioner is entitled for full pension from 01.06.2011, the amount paid to the petitioner was only on 07.01.2013 and unnecessarily petitioner was drawn before this Court in an earlier proceedings in writ petition No.19496/2012 and ultimately when the respondent-authorities were satisfied, they passed an order of full payment of pension and arrears of pension on 11.12.2012. Thereafter, the process proceeded before the different
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departments of the respondents and ultimately the amount paid was only on 07.01.2013.
13. Therefore, there was a delay in settlement of pension and pensionery benefits to the petitioner from 01.06.2011 to 07.01.2013. Therefore, he is entitled for interest on the delayed payment. It is also not in dispute that the very State Government issued the Government notification dated 13.09.1994 authorizing interest to be paid for delayed payment i.e., from six months to one year - 7% interest payable and for one year and above - 10% interest is payable. The main contention raised by the Government Advocate is that this Court has not directed to pay interest on the delayed amount and had only directed to consider the representation for payment of full pension, which was done. Therefore, in the absence of any direction by this Court, the petitioner is not entitled for interest on the delayed payment. The learned AGA would further contend that in pursuance
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of the order passed by this Court on 23.08.2012, pension was fixed to the petitioner from 01.06.2011 by an order dated 11.12.2012. Therefore, interest if any, the respondent-Government has to pay from 01.06.2012 to 11.12.2012 only which cannot be accepted for the simple reason that it is not the case of the respondent- Government that they have passed the full pension order on 30.09.2011. It is also not in dispute that 3rd respondent issued endorsement on 05.04.2012, informing the petitioner that he is not entitled for full pension and pensionery benefits which clearly indicates that from the inception while passing the order of authorization to the District Treasurer, the State Government has not settled the full pension and the endorsement dated 05.04.2012 was the subject mater of writ petition before this Court. This Court only directed the Government to consider the documents produced by the petitioner and also the notification and if he fulfills all the requirements, his pension shall be settled as
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early as possible, but not later than three months from the date of receipt of copy of the order.
14. It is also not in dispute that after the order was passed by this court, after production of the entire documents relating to the petitioner's service, the State Government after satisfying itself has passed an order on 11.12.2012 holding that the petitioner is entitled for payment of full pension and arrears with effect from 01.06.2011 and the amount of pensionery benefits was allowed to be drawn by the petitioner only on 07.01.2013. Therefore, there is deliberate delay on the part of the respondent-State Government in payment of pensionery benefits from 01.06.2011 to 07.01.2013. Therefore, the contention of the learned Government Advocate cannot be accepted. The Government issued notification dated 13.09.1994, which clearly indicates that if there is any delay in payment of pensionery benefits up to one year, they have to pay 7% interest on
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the delayed payment and above one year 10% interest is payable. Admittedly, the delay for payment of pensionery benefit is more than 18 months. Therefore, the petitioner is entitled for interest in terms of Government Order dated 13.09.1994.
15. It is undisputed fact that the petitioner served the respondents for more than 30 years and it is the duty of the State Government who is the custodian to protect the welfare of the citizens of the State to pay pensionery benefits within the reasonable period and admittedly in the present case, the respondents have driven the petitioner before this Court on the earlier occasion and for the second occasion for the payment of pensionery benefits. The pensionery benefits is not bounty for a person who is retired, but is a fundamental right and the Government has to pay the amount within the said period, which has not been done in the present
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case. Therefore, the petitioner is entitled for interest on the delayed payment of pensionery benefits.
16. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of D.D.Tewari (Dead) through Legal Representatives vs. Uttar Haryana Bijli Vitran Nigam Limited and Others reported in (2014) 8 SCC 894 at para. Nos.6 to 8 held as under:
"6. The case before us is a clear example of departmental delay which is not excusable. The petitioner retired on 30.04.1993 and it was only after 12.2.1996 when an interim order was passed in this writ petition that the respondents woke up and started work by sending a special messenger to various places where the petitioner had worked. Such an exercise should have stared at least in 1991, two years before retirement.
The amounts due to the petitioner were computed and the payments were made only during 1997-98. the petitioner was a cancer patient and was indeed put to great hardship.
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Even assuming that some letters were sent to the petitioner after her retirement on 30.3.1993 seeking information from her, an allegation which is denied by the petitioner, that cannot be an excuse for the lethargy of the Department inasmuch as the Rules and instructions require these actions to be taken long before retirement. The exercise which was to be completed long before retirement was in fact started long after the petitioner's retirement.
7. Therefore, this is a fit case for awarding interest to the petitioner. We do not think that for the purpose of the computation of interest, the matter should go back. Instead, on the facts of this case, we quantify the interest payable at Rs.1 lakh and direct that the same shall be paid to the petitioner within two months from today.
8. The writ petition is disposed of accordingly. There will be no order as to costs."
17. In view of the admitted facts stated supra and the law laid down by the Hon'ble Supreme Court
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and the Government Order dated 13.09.1994, the impugned order passed by the 2nd respondent as per annexure - H cannot be sustained. Accordingly, the issue raised in the present writ petition has to be answered in the affirmative, holding that the petitioner is entitled for interest on delayed period from 01.06.2011 to 07.01.2013.
18. For the reasons stated above, writ petition is allowed in part. The impugned endorsement dated 02.01.2013 issued by the 2nd respondent made in ¸ÀA: ¥Ë¤/¹§âA¢/PÀAC/¹Dgï/55/2011-12 as per annexure- H is quashed. Writ of mandamus is issued to 2nd respondent to sanction the interest on the amount of Rs.5,73,644/- with 10% interest from 01.06.2011 to 07.01.2013 to the petitioner and 3rd respondent is also directed to authorize the interest @ 10% on the amount of Rs.5,73,644/- (Death-cum-Retirement Gratuity and commuted pension) for a period from 01.06.2011 and
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07.01.2013 to the petitioner within a period of three months from the date of receipt of copy of this order.
Ordered accordingly.
SD/-
JUDGE dn/-