Madras High Court
C.Lakshmi vs The Canara Bank on 2 December, 2016
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.12.2016 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.No.34651 of 2016 C.Lakshmi ... Petitioner Vs. The Canara Bank, rep.by the Chief General Manager, HRM Section Circle Office, No.524, Anna Salai Teynampet, Chennai-600 018. ... Respondent Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, to direct the respondent to disburse all the terminal benefits, such as provident fund, leave encashment, gratuity etc., including pension with interest @ 18% for the delayed payment. For Petitioner : Mr.Yogesh Kannadasan For respondent : Mr.P.Amirtharaj * * * * * ORDER
This writ petition has been filed by the petitioner praying for issuance of a Writ of Mandamus, to direct the respondent to disburse all the terminal benefits, such as provident fund, leave encashment, gratuity etc., including pension with interest @ 18% for the delayed payment.
2.In the affidavit filed in support of the writ petition, it has been averred by the petitioner as follows_ 2-1.The petitioner belongs to Hindu Kondareddis community, which is a scheduled Tribe Community. The petitioner joined the service of the respondent-Bank on 07.11.1977, in clerical cadre under the quota reserved for Schedule Tribes. At the time of her appointment, the petitioner had produced a valid community certificate dated 27.11.1976. The respondent-Bank verified the said community certificate and only after satisfaction, an order of appointment was issued to the petitioner. Subsequently, the petitioner was confirmed and later on, she was promoted as an Officer during the year 2003.
2-2.While so, on the basis of certain third party complaints, the petitioner's community certificate was sent for verification to the District Level Vigilance Committee, Chennai. At that time, the petitioner had filed a writ petition in W.P.No.10873 of 2004 seeking to quash the proceedings; the Division Bench of this Court disposed of the said writ petition by order dated 18.09.2008, directing the petitioner to file an application before the State Level Committee and to communicate the filing of the application, to the respondent, failing which it is open to the respondent to take action in accordance with law. Accordingly, the petitioner filed an application dated 16.10.2008 before the State Level Vigilance Committee and communicated the same by letter dated 05.12.2008 to the respondent. Thereafter, the petitioner did not receive any communication from the State Level Committee. Meanwhile, when the petitioner was due to retire on superannuation on 20.06.2016, to his shock and surprise, she received an order dated 29.06.2016 from the 1st respondent to the effect that her terminal benefits are withheld pending disposal of her application by the State Level Scrutiny Committee. According to the petitioner, there is no justification in withholding her terminal benefits. Hence, the petitioner has come forward with the present writ petition for the relief as stated supra.
3.When the matter was taken up for consideration, the learned counsel appearing for the petitioner made a detailed argument by advertting to the averments made in the affidavit. The learned counsel for the petitioner relied upon the judgment of a Division Bench of this Court delivered in W.P.No.19234 of 2014 (Union of India and others Vs. Central Administrative Tribunal and others), dated 07.07.2015, and submitted that while dealing with an identical issue in that case, the Division Bench of this Court has directed the petitioner therein-Railway Administration to pay the terminal benefits to the 2nd respondent therein-employee. Relying upon the said decision, the learned counsel for the petitioner submitted that following the above said decision, similar order could be passed in the present writ petition also.
4.Per contra, the learned counsel appearing for the respondent, by filing a detailed counter, would contend that the petitioner had submitted a community certificate dated 27.11.1976 issued by the Tahsildar, stating that she belongs to Konda Reddis community which is a caste recognised under Schedule Tribe. The said certificate was referred for verification in terms of guidelines in vogue at that point of time to the District Collector. Upon initiating the verification process by the District Verification Committee in the year 2004, the petitioner moved this Court by filing W.P.No.10873/2004 for stay of the verification process and this Court disposed of the said writ petition on 18.09.2008, with a direction to the petitioner to file an application before the State Level Scrutiny Committee. Accordingly, the petitioner has also filed an application before the State Level Scrutiny Committee and now, the matter is pending before the State Level Scrutiny Committee for verification of the community certificate of the petitioner. The learned counsel appearing for the respondent-Bank would further submit that until the community status of the petitioner is decided, there is no need for the respondent-Bank to release the terminal benefits to the petitioner.
5.The learned counsel for the respondent has also relied upon the decision of the Hon'ble Supreme Court reported in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) and submitted that if the very basis of the appointment of an employee viz., the community category was taken away, there is no appointment in the eyes of law and such employee could not claim any right to a post to which he/she was appointed on the basis of false community certificate, thereby usurping the post meant for a Scheduled Tribe. A genuine reserved candidate was deprived of the benefits conferred on him. Hence, no relief could be granted as the right to salary, pension and other service benefits arises only from the valid and legal appointment to the post. Thus, the learned counsel for the respondent sought for dismissal of the writ petition.
6.Heard the submissions made on either side and perused the materials available on record.
7.The learned counsel for the petitioner is seeking a direction to the respondent to disburse the petitioner's retirement benefits, by placing reliance on the decision of a Division Bench of this Court in W.P.No.19234 of 2014 (Union of India and others Vs. Central Administrative Tribunal and others), dated 07.07.2015. But, per contra, the learned counsel for the respondent replied upon the decision of the Hon'ble Supreme Court in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others).
8.From a perusal of the decision of the Hon'ble Supreme Court in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) relied upon by the learned counsel for the respondent, it seen that in that case, the issue with regard to the community status of the petitioner therein was settled as the petitioner therein did not belong to ST Community. But, so far as the present case is concerned, as the issue with regard to the community status of the petitioner herein is still continuing to be pending before the Scrutiny Committee. As on date, the community certificate of the petitioner herein has not been cancelled. Hence, the above said decision reported in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) relied upon by the learned counsel for the respondent cannot be made applicable to the present facts of the case.
9.As contended by the learned counsel for the petitioner, in an identical situation, in W.P.No.19234 of 2014 (Union of India and others Vs. Central Administrative Tribunal and others), a Division Bench of this Court, by order dated 07.07.2015, has held as follows_ "36. That leaves us with one last question as to what would happen if the State Level Scrutiny Committee eventually holds that the 2nd respondent does not belong to the Scheduled Tribe. We cannot shirk this question, but the answer is too obvious. The right of a person to receive pension continues until his final departure. Even after his departure, his family become entitled to Family Pension. Therefore, if the State Level Scrutiny Committee eventually cancels the Community Certificate of the 2 nd respondent, the petitioner can always pass orders forfeiting the pension as well as the Family Pension.
37. The Railway Administration cannot raise a question as to how they will recover the terminal benefits that they will be now compelled to pay, as that is a very moot question. Logically, another question would also arise as to how they would recover the salary paid for the past 30 years. For both questions, there cannot be an answer in law. So long as the Rules contemplate a particular position, it is not only the 2nd respondent, but also the Railway Administration which is bound by the Rules. The interpretation given to the Rules by various Benches of this Court and of the Supreme Court, in State of Jharkhand v. Jitendra Kumar Srivastava are very clear. Therefore, the Tribunal did not commit any error in law warranting interference by this Court. Hence, the Writ Petition is dismissed. The petitioner-Railway Administration shall settle the terminal benefits within a period of eight weeks from the date of receipt of a copy of this order. The 3rd respondent-State Level Scrutiny Committee is directed to complete the proceedings, in accordance with law, within a period of three months from the date of receipt of a copy of this order. No costs"
10.Similarly, in another decision in W.P.No.25554 of 2015 (Union of India and others Vs. Sowbagiammal and another), dated 14.09.2015, a Division Bench of this Court has held as follows_ "19. It is worth while to extract the decisions of the Hon'ble Apex Court in Dr.Uma Agarwal v. State of U.P., reported in (1999) 3 SCC 438, wherein it is held as follows :
"....grant of pension is not a bounty but a right of the government servant. The Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment, the Court can certainly keep in mind the time-schedule prescribed in the Rules/Instructions apart from other relevant factors applicable to each case."
In the reported case, of the Hon'ble Supreme Court in S.K.Due v. 15 State of Haryana reported in 2008 (3) SCC 44, the appellant therein was served with three charge sheets/show cause notices in June 1998, few days before his retirement. However, he retired on 30.06.1998 on reaching the age of superannuation. He was paid provisional pension, but other retiral benefits were not given to him, which included commuted value of pension, leave encashment, gratuity, etc. They were withheld till the finalisation of disciplinary proceedings. While answering the issue as to whether the appellant therein was entitled to interest on delayed payment of retiral benefits, in the absence of any statutory rules/administrative instructions or guidelines, the Supreme Court, at Paragraph 14 of the judgment, held as follows:
"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 the absence of statutory rules, administrative instructions or 16 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."
A Hon'ble Division Bench of this Court following the above cases in Government of India vs. M. Deivasigamani, reported in 2009 (3) MLJ, held as follows :
7. In view of the judgment of the Hon'ble Supreme Court, it is now well settled that an employee is entitled to interest on belated payment of pension and other retiral benefits, even in the absence of statutory rules/administrative instructions or guidelines and he claim for interest, under Part III of the Constitution, relying on Articles 14, 19 and 21 of the Constitution.
20. In the light of the above decisions and discussion, the Writ Petitioners have not made out a case and hence the Writ Petition is dismissed and the order made in O.A. No. 738 of 2013 dated 30.10.2014 is sustained. Consequently, the writ petitioners are directed to make payment of the monthly pension including the arrears due, with interest, within three months from the date of receipt of a copy of this order."
The above decisions of the Division Benches of this Court are squarely applicable to the present facts of the case.
11.As stated earlier, so far as the case on hand is concerned, as on date, the issue with regard to the community status of the petitioner is still pending before Scrutiny Committee. Therefore, the judgment relied upon by the learned counsel for the respondent reported in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others), wherein the issue with regard to the community certificate of the employee therein was settled, cannot be made applicable to the present facts of the case. Therefore, I am of the opinion that the petitioner is entitled to the relief as prayed for in the present writ petition.
12.Accordingly, the writ petition is allowed as prayed for. The respondent is directed to revise the scale of pay of the petitioner by extending all the allowances and increments from the date of his reinstatement and to disburse all terminal benefits, with reasonable interest from the date of the dues, within a period of six weeks from the date of receipt of a copy of this order. However, the respondent is at liberty to move before the Scrutiny Committee for early completion of the proceedings pending before it with regard to the community status of the petitioner. No costs.
02.12.2016
Index : Yes/No
Internet : Yes/No
To,
The Chief General Manager,
Canara Bank,
HRM Section Circle Office,
No.524, Anna Salai Teynampet,
Chennai-600 018.
R.SUBBIAH, J.
ssv
W.P.No.34651 of 2016
02.12.2016
http://www.judis.nic.in