Allahabad High Court
Dev Verma Son Of Late Chauhal Singh, ... vs State Of U.P. Through Principal ... on 29 September, 2005
Author: V.M. Sahai
Bench: V.M. Sahai, Sabhajeet Yadav
JUDGMENT V.M. Sahai, J.
1. The petitioner was working as Chief Engineer in the Irrigation Department. He retired on 31.7.1998. The Chief Engineer (Eastern Ganga) Department of Irrigation, Moradabad wrote a letter on 3.10.1998 to Chief Accounts Officer (Pension Section) in the office of Engineer-in-Chief, Department of Irrigation, U.P., Lucknow for payment of petitioner's post retiral benefits. It was mentioned' in this letter that the post retiral benefits were (a) Monthly Pension of Rs. 8,194.00/- (b) Gratuity Rs. 3,14,177/- and (c) Commutation Rs. 4,11,455/-. On 31.10.1998 provisional pension of Rs. 8,194/- per month was sanctioned, but post-retiral benefits of the petitioner were not released. Therefore, the petitioner made a representation for payment of gratuity, insurance etc. and requested for issuance of no objection certificate. Even he met personally the Engineer-in-Chief (Western Canals); Department of Irrigation, Lucknow on 24.8.1999 and requested for payment of his gratuity and other post retiral benefits. The Engineer-in-Chief directed the petitioner to fill the bond for payment of provisional gratuity. The petitioner filled the bond. The Engineer-in-chief (Western Canals) granted permission on 18.12.1999 for payment of provisional gratuity amounting to Rs. 2,25,000/-. The petitioner received the provisional gratuity amount, in December, 1999 after about 17 months of his retirement. In the bond which the petitioner had filled it was provided that if any loss of amount was pointed out by the government against the petitioner up to two years from the date of his retirement, then the same could be recovered from him as arrears of land revenue. No recovery order was passed against the petitioner by the respondents till 31.7.2000. On 21.6.2001 the Finance Controller in the office of Engineer-in-Chief sanctioned the post retiral benefits to the petitioner (a) Monthly pension Rs. 8,200/-, (b) Gratuity Rs. 3,39,191/- and (c) Commutation Rs. 4,11,706/-. It was also mentioned in the footnote that according to the government order dated 28.11.2000 Rs. 44,713/- was being withheld.
2. By means of this writ petition the petitioner has challenged the recovery notice dated 19.10.2002 issued by the respondents and has prayed that gratuity amount withheld by the respondents be released alongwith 18% per annum interest and the same interest be paid to the petitioner for delayed payment of gratuity.
3. In the counter affidavit filed by the respondents it has been stated that payment of Rs. 2,25,000/- towards provisional gratuity was made to the petitioner with a condition that if any amount is found due from the petitioner then it would be adjusted from the amount of gratuity. It has been stated in paragraphs 13 and 70 that recovery had been initiated against the petitioner after vigilance- and departmental enquiry. The petitioner had knowledge about it which is clear from the letter written by him on 22.3.1997 and 27.10.1997. The recovery had been initiated against the petitioner by the respondents after enquiry. In the vigilance enquiry report dated 26.2.1993 it was found that the petitioner is liable to reimburse the government for a sum of Rs. 48,937.14 p. Therefore, the notice had been issued to the petitioner for recovering this amount on 19.10.2002. In the supplementary counter affidavit a copy of the vigilance enquiry report dated 26.2.1993 had been filed along with letters of government dated 28.10.1999, 28.11.2000,; 11.12.2001 and 5.12.2001. It had been stated that after fixing of liability of the petitioner proportionately an amount of Rs. 48937.14 p. is to be recovered from the petitioner and the remaining amount mentioned in the vigilance enquiry report would be recovered from other employees.
4. In the rejoinder affidavit it has been stated that by government notification No. Sa-3-424/10-933-89 dated 12.02.1996 Regulation 470 of the Civil Services Regulations have been repealed and by government order No. 1176/96-27-^10-73/96 dated 4.4.1996 it had been clarified that no recovery of government loss would be made from a retired person from his gratuity. In compliance of this government order Engineer-Chief, Department of Irrigation, U.P., Lucknow had issued a letter on 27.6.1996 that departmental enquiry against an employee must be concluded one year before his superannuation and another letter had been issued by him on 4.4.1996 for conducting the proceedings under Regulation 351-A of the Civil Services Regulations within time. It had further been stated that from the government order dated 28.11.2000 it is clear that no departmental or administrative enquiry was pending against the petitioner. The petitioner by his letter dated 22.3.1997 and 27.10.1997 had written to the respondents that the petitioner's explanation in pursuance of the letter dated 19.2.1997 had been sought. It was requested by the petitioner that if any minor or major penalty is to be imposed then charge sheet be issued. But no charge sheet was issued to him. The alleged financial irregularity against the petitioner was of the year 1988-89. It was nearly ten years earlier from the date of retirement of the petitioner. 'And was sufficient for holding any disciplinary enquiry against him. Further the petitioner had filed a government order issued on 28.7.1989 as Annexure-R.A.3 to the rejoinder affidavit. It provides that vigilance enquiry is a fact finding enquiry and if on the date of retirement such an enquiry is pending, the pension and gratuity of the employee could not be withheld.
5. We have heard Sri K.B. Srivastava, learned counsel for the petitioner, Sri Sudhir Agarwal learned Additional Advocate General and Sri Peeyush Shukla learned standing counsel appearing for the respondents. Sr. Peeyush Shukla has also produced the records before us.
6. Learned counsel for the petitioner has urged that even if there was a vigilance enquiry report against the petitioner the respondents having not held any departmental or administrative enquiry against him for holding him guilty for causing any loss to the government, the respondents could not withhold the post-retiral benefits of the petitioner. He further urged that gratuity of the petitioner cannot be withheld even if any amount was due against him. He further urged that under Regulation 351-A of the Civil Services Regulations the amount of gratuity could not be withheld. The respondents have committed illegality in withholding gratuity of the petitioner and if it is not paid after retirement, then interest is liable to be paid by the respondents on the amount of gratuity at the rate of 18% per annum.
7. On the other hand the learned Additional Advocate General assisted by learned standing counsel has urged that gratuity of the petitioner was withheld by the respondents under the letter of the government dated 28.11.2000. The government had written that it will take decision separately in the matter of payment of Rs. 44,713.14 p. The learned Additional Advocate General, after going through the records, has fairly stated that there is no order for stopping the payment of Rs. 44,713.14 p. Neither there is any order for deducting the aforesaid amount from the gratuity-of the petitioner nor any disciplinary or administrative enquiry proceedings were initiated against the petitioner. The government order dated 28.11.2000 is ß la[;k &5829@2000&27 fla&10&16 lsñfuñ@98 izs"kd] vkjñihñ flag] vuqlfpo] mÙkj izns'k 'kklu A lsok esa] izeq[k vfHk;Urk] flpkbZ foHkkx] mñizñ y[kuÅ A vuqHkkx&10 y[kuÅ& fnukad % 28 uoEcj] 2000 fo"k;%& Jh nso oekZ] lsokfuo`Rr eq[;
vfHk;ark] flapkbZ foHkkx dh tkap dh fLFkfr A egksn;] mi;qZDr fo"k; ij tkWp vuqHkkx ds i= la[;k&743@tkñvuqñ@530bZbZt@Mtt@2000] fnukad 17-2-2000 ds lanHkz esa eq>s ;g dgus dk funsZ'k gqvk gS fd Jh nso oekZ] rRdkyhu vf/k'kklh vfHk;Urk] ck< [k.M eqjknkckn ds cnk;qW iap mi[k.M esa o"kZ 1988-89 esa dh x;h vfu;ferrkvksa ds varxZr QthZ eki vafdr djus rFkk lkexzh vkiwfrZ esa igqWpk;h x;h 'kkldh; {kfr 4 o"kZ ls vf/kd dh vof/k dk ekeyk gksus ds dkj.k muds fo:) 'kkldh; {kfr :i;k 44]713 ¼pkSokfyl gtkj lkr lks rsjg :i;s½ dh olwyh ds fy, flfoy lwV nk;j fd;s tkus ds laca/k esa 'kklu ds i= la[;k&3105@99&27&fla&10&199@91 fnukad 28-10-99 }kjk vkns'k fuxZr fd;s x;s Fks ftldh vuqikyu vk[;k vHkh rd izkIr ugha gqbZ gS A blds vfrfjDr Jh nso oekZ ds fo:) miyC/k vfHkys[kksa ds vuqlkj lEizfr dksbZ vuq'kklfud tkap@iz'kklukf/kdj.k tkWp ,oa vfHk;kstu dh dk;Z okgh yfEcr ugh gS A 2- iz'uxr izdj.k esa vkids }kjk izkIr vuqikyu vk[;k ds vk/kkj ij 'kklu vfUre :i ls fu.kZ; fy, tkus ds mijkUr mDr jksdh x;h /kjkf'k dks voeqDr fd;s tkus gsrq vyx ls vkns'k fuxZr fd;s tk;sxsa A Hkonh;] ¼vkjñihñflag½ vuqlfpo A la[;k&5929¼1½@2030&27&fla&10 rnfnukad izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr ¼1½ Jh nso oekZ] lsokfuo`Ùk eq[; vfHk;Urk] }kjk izeq[k vfHk;ark] flpkbZ foHkkx] mñizñ] y[kuÅ A ¼2½ ofj"B LVkQ vf/kdkjh ¼izs'ku izdks"B½ dk;kZY; izeq[k vfHk;Urk flpkbZ foHkkx] mñizñ y[kuÅ A ¼3½ flapkbZ vuqHkkx&1 ¼4½ xkMZ cqd vkKk ls ¼vkjñohñ flag½ vuqlfpo A dk;kZy; izeq[k vfHk;Urk flapkbZ foHkkx] mÙkj izns'k la[;k 9976@bZ&1d@1ch&1971 bñ y[kuÅ fnukad % fnlEcj % 15@2000 izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq %& 1- foRr fu;a=d ¼ia'ku½ vuqñ dk;kZy; izeq[k vfHk;Urk] flñfoñ dks bl vk'k; ls izsf"kr fd os 'kklu ds funs'kkuql;kj izdj.k esa rqjUr dk;Zokgh djkuk lqfuf'pr djsa A 2- Jh nso oekZ] lsñfuñ eq[;
vfHk;Urk] flñfoñ }kjk eq[;k vfHk;Urk ¼iwohZ xaxk½ flñfoñ eqjknkckn dks bl vk'k; ls izf"kr gS fd os jh oekZ] dks vius Lrj ls gLrxr djkdj voxr djk;s A ¼t; dqekj tSu½ ofj"B LVkQ vf/kdkjh izñvñ d`rs izeq[k vfHk;Urk] flñfoñ A Þ
8. From the aforesaid government order dated 28.11.2000 it is apparent that the petitioner while working as Executive Engineer, Flood Division, Moradabad at Budaun Vth division in the year 1988-89, had committed some irregularity with regard to supply of goods due to, which a loss of Rs. 44,713/- was alleged to have been caused to the government. However, more than eight years have elapsed since the alleged irregularity is said to have been committed,, but no action had been taken by the respondent. On 28.10.1999, the government directed for filing a suit for recovery of the aforesaid amount from the petitioner, but no suit was filed nor any departmental or administrative enquiry was initiated against the petitioner. It was further mentioned that separate orders would be passed to withhold the amount after final decision was taken by the government. But no final decision was taken by the government. In pursuance of this government: order, Chief Engineer (Litigation) passed an order on 11.12.2000 for withholding the aforesaid amount. However, in the order dated 28.11.2000 there is no mention of any order for stopping the payment of Rs. 44,713/- and deducting it from the gratuity of the petitioner.
9. The Standing Counsel has produced the record and we have examined it along with him and the learned Additional Advocate General, From a perusal of the records it is clear that no order had been passed by the government or by the department for stopping payment of Rs. 44,713/- nor there is any order on record for deducting the aforesaid amount from gratuity of the petitioner. The expression used in the letter dated 28.11.2000 written by Under Secretary, U.P. Government to the Engineer-in-Chief that separate orders would be passed by the government with regard to the amount withheld by the respondents appears to be superfluous as no amount by any order had been directed to be withheld. In pursuance of the letter of the government dated 28.11.2000 Chief Engineer (Litigation) had passed an order that a separate order was required to be passed by the government with regard to the payment of Rs. 44,713/-. We find from the records that no departmental or administrative enquiry had been initiated against the petitioner. Therefore, the petitioner again made a representation on 14.8.2002 for payment of his post retiral benefits. On 19.10.2002 Executive Engineer, Flood Division, Moradabad wrote a r letter to the petitioner that during the period 27.11.1088 to 28.11.1990 while the petitioner was posted as Executive Engineer, Flood Division, Moradabad the government had suffered a loss of Rs. 84,464.01p. and Rs. 83,463.39 p. in connection with irregularities in payments made for two contracts for supply of stone from Agra through U.P. State Minerals Development Corporation, Lucknow for which the petitioner was also liable This amount was to be recovered from the petitioner proportionately and in case the petitioner did not; pay the amount suitable legal action would be taken against him for recovery of the aforesaid amount. The petitioner submitted his reply on 9.1.2003 that' the notice was illegal as it had been issued after four years three months of the retirement of the petitioner and as per Regulation 351-A of the Civil Services Regulations no enquiry or recovery can be made from a retired employee after lapse of four years from the date of his retirement. In the counter affidavit it is admitted to the respondents that no objection certificate was issued to the petitioner on 28.11.2000] after stopping payment of Rs. 44,713/-, but there is no mention of the amount of Rs. 48,937.14 p.
10. Regulation 351-A(1) provides that if any pecuniary loss is caused to the government then the amount of loss could be recovered from the employee from his pension If the employee is found guilty In departmental or judicial proceedings. But 351-A(1)(a) provides that such departmental proceedings if not instituted while the officer was on duty either before retirement or during employment, shall be in respect of an event which took place not more than four years before the institution of such proceedings.. The argument of learned counsel for the petitioner has force that: no departmental disciplinary enquiry or administrative enquiry having been held, the liability of alleged loss to the government fastened on the petitioner was based on suspicion. Unless the loss caused to the government was ascertained and the petitioner was found guilty in departmental or administrative enquiry proceedings, the petitioner would not be held liable to reimburse the government merely on the basis of fact finding vigilance enquiry. We do not find any material on record to establish that any enquiry as contemplated under Regulation 351-A was conducted against the petitioner. The amount sought to be recovered from the petitioner was on the basis of probable or suspected loss. Regulation 351-A does not permit the respondents to recover the amount of suspected or probable loss from the gratuity of an employee. It only permits recovery from the pension of an employee by following the procedure as prescribed by Regulation 351-A. Further the alleged incident is of 1988-89. The petitioner retired in the year 1998 and the proceedings for recovery have been initiated against the petitioner without any enquiry proceedings after more than eight years which is not permissible under Regulation 351-A.
11. The only material against the petitioner on record is vigilance enquiry report dated 26.2.1993 wherein it was found that the petitioner is liable to reimburse the government for a sum of Rs. 48,937.14p. The vigilance enquiry report is a fact finding preliminary enquiry directed by the employer to investigate into the complaint of corruption or misappropriation or misutilisation of fund or other malpractices against the Gazetted Officer. It is conducted under the Uttar Pradesh Vigilance Establishment Act, 1965. The purpose of holding a vigilance enquiry is to find out as to whether disciplinary action should or should not be taken against the delinquent employee. It helps the disciplinary authority to decide as to whether to proceed against a particular employee or not. A preliminary enquiry is of a very informal character and can be made against an employee ex-parte. No opportunity of hearing is required to be given to the employee. The Constitution Bench of Hon'ble Supreme Court in Amlendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katiyar, held that a preliminary enquiry held in respect of as particular instance is for the purpose of finding a particular fact and prima facie, to know as to who may be the person responsible for negligence/misconduct alleged. However, on the basis of findings of facts recorded in the preliminary enquiry, no order of punishment can be passed. Rather, if in view of result of the preliminary enquiry the competent authority is of the opinion that it require certain disciplinary proceedings against delinquent (s), a regular enquiry may be held under the rules applicable. Nonetheless, a preliminary enquiry cannot be the basis for imposing any punishment upon delinquent (s) for misconduct.
12. In Champak Lal Chiman Lal Shah v. Union of India, , again a Constitution Bench of Hon'ble Supreme Court held as under:-
"...a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two (preliminary enquiry & regular enquiry) should not be confused .... Therefore, so far as the preliminary enquiry is concerned, there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a ...government servant.... In short, a preliminary enquiry is for the purpose of collection of facts in regard, to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex Parte, for it is merely for the satisfaction of the government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the government and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Article 311 and all the rights that the protection implies as already indicated above. There must, therefore, no confusion between the two inquiries and it is only when the "Government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishment indicated in Article 311 that the government servant is entitled to the protection of that Article, nor prior to that.
13. In Government of India, Ministry of Home Affairs and Ors. v. Tarak Nath Ghosh, , Hon'ble Supreme Court observed :
"...even before a formal departmental enquiry is launched, a preliminary enquiry is usually held to find out against a government servant This preliminary enquiry is directed to the collection of facts in regard to the work and conduct of a government servant in which he may or may not be associated, so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry...and such a preliminary enquiry may even be held ex parte."
14. In Narayan Dattatraya Ramteerathakhar v. State of Maharashtra and Ors., , Hon'ble Supreme Court has held that a preliminary enquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice or not, remains of no consequence.
15. The G.O. dated 28.7.1989 provides that a vigilance enquiry is a fact finding enquiry. It further provides that if any departmental or judicial or administrative enquiry is pending or any administrative enquiry is contemplated then provisional pension be paid and gratuity could be withheld till the conclusion of enquiry. It further provides that proceedings under Regulation 351-A shall not be initiated for an event that happened four years prior to the initiation of enquiry. Inspite of letter dated 22.3.1997 and 27.10.1997 written by the petitioner no departmental proceedings were initiated against the petitioner nor any charge sheet was issued to him. The letter issued from the office of Chief Engineer (Enquiry) Irrigation Department dated 11.12.2000 clearly certifies that no departmental disciplinary or administrative enquiry is pending against the petitioner. Therefore, we are of the opinion that merely on the basis of a vigilance enquiry report which was nothing but a fact finding preliminary enquiry, no minor or major punishment could be inflicted on the petitioner nor the respondents could have directed to deduct any amount from the gratuity. Further, the preliminary fact finding enquiry was not followed by any departmental enquiry by the respondents, therefore, on the strength of the vigilance enquiry report the respondents could not have deducted any amount from the gratuity nor they could have, in law, initiated any recovery proceedings against the petitioner. The apex court in Lakshmi Narayan Mukhooadhvav v. Union of India and Ors. 2002(4) AWC 2766 (SC) has held that for recovery of an amount from the petitioner opportunity of hearing is required to be given to him. There is no material on record to sugges that any opportunity of hearing was afforded to the petitioner before quantifying the amount sought to be recovered from the petitioner. The action of the respondents in deducting the amount of Rs 44,713.H| from the gratuity of the petitioner was illegal and arbitrary.
16. The next question is whether the amount could be recovered after eight years from the gratuity of the petitioner. This question is no longer resintegra. The apex court In F.R Jesuratnam v. Union of India and Ors. 1990 (Supp) Supreme Court Cases 640 has held as under:-
" We are of the view that gratuity is no longer a bounty but it is a matter of right of the employee and it can therefore no longer be regarded as a provision in the discretion of the President as provided in the Pension Regulations. Since there is no legal provision empowering the authorities to forfeit the gratuity payable to an employee, the order passed by the Government forfeiting the gratuity payable to the appellant must be held to be bad and must be set aside. We accordingly set aside the order of the High Court as also the order of the Government forfeiting the gratuity of the appellant and direct that gratuity shall be paid to the appellant forthwith."
17. In view of the aforesaid decision it is apparent that the amount of gratuity withheld by the respondents could not be utilized for the alleged recovery from the petitioner that too after eight years of his retirement arid a direction is liable to be issued to the respondents to release gratuity of the petitioner forthwith along with interest. The next question is whether interest at the rate of 18% p.a. on the withheld amount of gratuity Rs. 44,713/- and delayed payment of gratuity is liable to be paid to the petitioner. We have held that without there being any enquiry departmental or administrative or any order of the State Government for withholding the aforesaid amount from gratuity, the aforesaid amount had been withheld by the respondents from the gratuity of the petitioner. As held by the apex court gratuity is to longer a bounty, but is a right of an employee, therefore, it could not be withheld by the respondents without any valid reason. We have also held that there is no material on record to justify withholding the aforesaid amount from the gratuity of the petitioner. The petitioner retired on 31.7.1998 and interest on gratuity became payable to him after the expiry of three month's period from the date of his retirement. Provisional gratuity of Rs. 2,25,000/- was released to him on 18.12.1999. The government order no Sa-3-712/Das/2001-305(4)/2000 which provides for interest on delayed payment of gratuity is extracted below:-
la[;k% lk&3&712@nl&2001&305 ¼4½@2000 izs"kd] HkksykukFk frokjh] eq[; lfpo] mÙkj izns'k 'kklu A lsok esa] leLr foHkkxk/;{k ,oa izeq[k dk;ky;k/;{k] mÙkj izns'k] foÙk ¼lkekU;½ vuqHkkx&3 y[kuÅ% fnukad % 17 ebZ] 2001 fo"k;% lsokuSo`fRrd ykHkksa dk le; ls Hkqxrku U;kf;d@foHkkxh; dk;Zokfg;ksa dh lekfIr ij xszP;qVh ds foyEc ls Hkqxrku ij C;kt dk Hkqxrku A egksn;] eq>s ;g dgus dk funsZ'k gqvk gS fd jkT; ljdkj vius isz'kujksa@ikfjokfjd isa'kujksa ds isa'ku izdj.kkksa ,oa ;Fkk vuqeU; ns;ksa dks le; ls Hkqxrku djus ds laca/k esa le;≤ ij foLr`r vkns'k fuxZr djrh jgh gS A xzsP;qVh dh vuqeU; /kujkf'k dks le; ls Hkqxrku u gksus ij C;kt fn, tkus dh Hkh O;oLFkk dh x;h gS rFkk le; ls Hkqxrku u djus ds fy, nks"kh dkfeZdksa ds fo:) dk;Zokgh ,oa C;kt ds :i esa Hkqxrku dh x;h /kujkf'k dh olwyh ds Hkh vkns'k fuxZr fd, x, gSaA bl lUnHkZ esa 'kklukns'k la[;k&lk&3&684&nl& 971@80] fnukad 29-04-1986] 'kklukns'k la[;k lk&3&1776@nl&971@80] fnukad 30&11&1984] 'kklukns'k la[;k&lk&3&3102@nl&971@80] fnukad 06-12-1994 ,oa v/k'kkldh; i= la[;k lk 3&902@nl&99&303@99] fnukad 28-09-1999 Hkh fuxZr fd, x, gS A fofHkUuu foHkkxksa ls bl vk'k; dh foKklk dh tk jgh gS fd ftu deZpkfj;ksa ds fo:) U;kf;d@foHkkxh; dk;Zokgh yfEcr gksus ds dkj.k miknu ,oa jkf'kd`r /kujkf'k ds Hkqxrku esa foyEc gksrk gS] mu izdj.kksa esa C;kt fdl izdkj vuqeU; gksxk A bl lUnHkZ esa lE;d~ fopkjksijkur eq>s ;g Li"V djus dkl funsZ'k gqvk gS fd %& 1- ;fn fdlh deZpkjh dh lsokfuo`fRr dh frfFk dks mlds fo:) vuq'kklfud vFkok U;kf;d dk;Zokgh yFEcr gS] rks mls xzsP;qVh dh /kujkf'k dk Hkqxrku rc rd ugha fd;k tkrk gS] tc rd mDr dk;Zokgh lekIr djds vfUre vkns'k fuxZr ugha gks tkrs gS A ,sls izdj.kksa esa] ;fn xzsP;qVh ds Hkqxrku dk fu.kZ; fy;k tkrk gS rks Hkqxrku dh frfFk ogh gksxh ftl frfFk esa l{ke izkf/kdjh }kjk vkns'k fuxZr f, tkrs gSa A ftu izdj.kksa esa ljdkjh lsod ds fo:) py jgh dk;Zokgh esa vfUre fu.kZ; ds QyLo:i mls iw.kZr;k nks"keqDr fd;k tkrk gS] mu izdj.kksa esa lsokfuo`fRrdh frfFk ls xzsP;qVh dh vuqeU;rk ekuh tk,xh vkSj msls rhu ekg ls vf/kd ds foyEc dh vof/k gsrq vuqeU; gks tk,xk A ijUrq ftu izdj.kksa eaa foHkkxh;@U;kf;d dk;Zokgh yfEcr jgrs gq, ljdkjh lsod dh e`R;q gks tkrh gS] mu izdj.kksa esa C;kt vuqeU; ugha gksxk A 2- mijksDr O;oLFkk dsoy mu izdj.kksa esaa ykxw gksxh tks vHkh rd fu.khZr ugha gks lds gSa] ijUrq ftu izdj.kksa esa fu.kZ; fy;k tk pqdk gS mugsa iquZmn?kkfVr ugha fd;k tk,xk A 3- lsokfuo`Rr depkjh ds lsokfuo`fRrd ykHkksa ds Hkqxrkukns'k lsokfuo`fRr dh frfFk dks gh fuxZr fd, tkus ds izkfo/kku gSa rFkk bl vksj le;≤ ij 'kklukns'k Hkh fuxZr fd, xk, gSaA lsokfuo`fRRkd ykHkksa dks le; ls Hkqxrku djus ds lUnHkZ esa Hkkjrh; laof/kku ds vuqPNsn 309 ds v/khu mRrj izns'k isz'ku ds ekeyksa dk ¼izlrqrhdj.k] fuLrkj.k vkSj foyEc dk ifjotZu½ fu;ekoyh o"kZ 1995 fuxZr dh tk pqdh gS A mDr fu;ekoyh esa isa'ku izdj.kksa ds fuLrkj.k gsrq le; lkfj.kh Hkh fu/kkZfjr gS rFkk foyEc ds fy, nks"kh dkfeZdks ds fo:) n.M fn, tkus dh Hkh O;oLFkk gS A ;g iqu% Li"V fd;k tkrk gS fd mi;qZDr fu;ekoyh dh dMkbZ ls vuqikyu lqfuf'pr djsa rFkk deZpkjh dh lsokfuo`fRr dh frfFk dks lsokfuo`fRrd ykHkksa ds Hkqxrkukns'k fuxZr fd, tk, rFkk ;fn isa'ku fu/kkjZj.k esa foyEc dh lEHkkouk gks rks mUesa vufure isa'ku dk Hkqxrku fd;k tk, A ;fn iz'kklfud dkj.kksa ls xzsP;qVh dk Hkqxrku fu/kkfjr frfFk ls rhu ekg ckn fd;k tkrk gS rks Hkqxrku vuqeu; gksus dh frfFk ls rhu ekg dh vof/k ds ckn ls fu/kkZfjr nj ij C;kt fn;k tk;sxk A ;fn ;g fuf.kZr gks tkrk gS fd xzsP;qVh dk Hkqxrku fd;k tkuk gS rks bldk Hkqxrku rqjUr dj fn;k tk, vkSj C;kt dh en ij 'kh?kz fu.kZ; ysdj dkl;Zokgh dh tk,A ,slk djus ls C;kt ds en esa nh tkus okyh /kujkf'k esa cpr dh tk ldsxh A ijUrq ;g C;kt dsoy mugh ifjfLFkfr;ksa esa fn;k tk,xk tgka ;g Li"V :i ls fl) gks fd xsP;qVh ds Hkqxrku esa foyEc i'kklfud =qfV ds dkj.k vFkok mu dkjk.kksa ls gqvk gS tks lacaf/kr ljdkjh deZpkjh ds fu;a=.k ds ckgj gks A C;kt ds Hkqxrku ds izR;sd ekeysa esa 'kklu ds iz'kklfud foHkkx }kjk fopkj fd;k tk,xk vkSj C;kt dk Hkqxrku 'kklu }kjk gh izkf/kd`r fd;k tk,xk A ftu ekeyksa esa C;kt dk Hkqxrku fd;k tkuk gksxk mu lHkh ekeyksa esa foyEc ds fo, nks"kh vf/kdkjh@deZpkjh ds fo:) vuq'kklfud dk;Zokgh dh tk;sxh rFkk C;kt ds :i esa Hkqxrku dh x;h /kujkf'k dh olwyh nks"kh O;fDr;ksa ls mlds osru ds vuqikr esa dh tk, A 5- izk;% lsokfuo`Rr dkfeZd mRrj izns'k flfoy isa'ku dE;wVs'ku :Yl ds v/khu viuh isa'ku ds ,d Hkkx ds jkf'kdj.k dh /kujkf'k dks foyEc ls Hkqxrku fd, tkus ij Hkh C;kt dh ekax djrs gS A bl lUnHZk esa ;g Li"V fd;k tkrk gS fd mDr fu;e ds v/khu ns'; /kujkf'k dks foyEc ls Hkqxrku ij dksbZ C;kt ns; ugha gS D;ksafd isa'ku ds ,d Hkkx dh jkf'kd`r ewY; dh Lohd`fr gks tkus ij Hkh mlds Hkqxrku dh frfFk rd iw.kZ isa'ku dk Hkqxrku gksrk jgrk gS rFkk Hkqxrku dh frfFk ds mijkUr gh isa'ku de gksrh gS ;g Hkh Li"V fd;k tkrk gS fd ;fn fdlh deZpkjh dks lsokfuo`fRr dh frfFk dks mlds fo:) foHkkxh;@U;kf;d dk;Zokgh yfEcr gs rks mls ml dk;Zokgh ds yfEcr jgrs isa'ku ds ,d Hkkx dk jkf'kdj.k vuqeU; guh gksxk A vuqjks/k gS fd mijksDr izLrjksa esa Li"V dh x;h fLFkfr ds vuqlkj dk;Zokgh lqfuf'pr djus dk d"V djsa A Hkonh;
,l Mh ¼HkksykukFk frokjh½ eq[; lfpo la[;k%lk&3712¼1½ @ nl&305¼4½@2000] rnfnukad izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsfZZ"kr%& 1- funs'kd dks"kkxkj] mRrj izns'k] m[kuÅ A 2- funs'kd isa'ku funs'kky;] mRrj izns'k y[kuÅ A 3- egkys[kkdkj] mRrj izns'k] ys[kk ,oa gdnkjh] bykgkckn A leLr e.Myh; la;qDr funs'kd dks"kkxkj ,oa isa'ku mRrj izns'k A 4- leLr e.Myh; la;qDr funs'kd dks"kkxkj ,oa isa'ku mRrj izns'k A 5- leLr foRr fu;a=d] mRrj izns'k A 6- leLr dks"kkf/kdkjh] mRrj izns'k A 7- foRr foHkkx ds leLr vf/kdkjh A 8- lfpoky; ds leLr vuqHkkx A 9- fo/kkulHkk lfpoky;@fo/kkuifj"kn lfpoky; A 10- jktiky lfpoky; A 11- funs'kd foRrh; izcU/k izf'k{k.k ,oa 'ks"k laLFkku 24@3 bfUnjkuxj] m[kuÅ A vkKk ls] ¼fot;
dqekj 'kekZ½ lfpo] foRr A
18. From paragraph 4 of the G.O. dated 17.5.2001 issued in respect of delayed payment of gratuity it is clear that the Merest is liable to be paid, if payment of gratuity was delayed due to administrative mistake or for reasons beyond the control of the employee, Since the payment of gratuity was delayed due to administrative flaw which Was against law and unjustified, the petitioner is entitled for interes on delayed payment. In our opinion, the interest of justice would be served If 6% interest per annum is paid on the delayed payment of gratuity to the petitioner. He would be entitled for simple interest at the rate of 6% p.a. on the amount of Rs. 2,25,000/- w.e.f. 1;11.191.98 to 1742.1999. The petitioner would also be entitled for simple interest at the rate of 6% per annum on the amount of Rs. 44713/- from 1.11.1998 till the date of payment of the said amount
19. For the reasons given above, this writ petition succeeds and is allowed. The recovery notice dated 19.10.2002 issued by respondent No. 4, Annexure-6 to the writ petition, is quashed. A writ of mandamus is issued directing" the respondents to release the amount of gratuity Rs. 44,713/- to the petitioner along with simple interest at the rate of 6% per annum w.e.f. 1.1.1.1998 till the date actual payment of the aforesaid amount is made to the petitioner. The petitioner shall also be paid simple interest at the rate of 6% per annum on delayed payment of gratuity of Rs. 2,25,000/- from 1.11.1998 to 17.12.1999. The aforesaid payment be made to the petitioner within a period of three months from the date a certified copy of this order is produced before the respondent No. 2
20. There shall be no order as to costs.