Calcutta High Court (Appellete Side)
In Re: Raja Ram Roy vs State Of U. P. And on 28 January, 2014
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
1
28.1.14
W. P. 14832 (W) of 2009
In re: Raja Ram Roy ... Petitioner
Mr. Chitta Ranjan Chakraborty
Mr. Sumanta Chakraborty ... For the Petitioner
The denial of the respondents to disburse the retiral dues
of the petitioner is the subject matter of challenge in this writ application.
The petitioner had, inter alia, averred in the writ application that he was initially appointed to the post of librarian of Ahiran Shyamali Pathagar on and from 1st of May, 1964 and that thereafter he was transferred to Jharna Samity Rural Library on 16th of December, 1994 and that upon completion of 33 years of service, the petitioner was superannuated on and from 1st of March, 1997.
The petitioner further averred that challenging the order of transfer to Jharna Samity Rural Library, the petitioner had earlier preferred an application under Article 226 of the Constitution of India and that the said writ application was subsequently withdrawn by the petitioner since the respondents withheld the pensionary benefits of the petitioner for pendency of the said writ application.
It appears from the documents annexed to the instant writ application that the pension papers of the petitioner were belatedly prepared and forwarded to the Director of Pension, Provident Fund and Group Insurance by the respondent no.4 2 vide memorandum dated 2nd of April, 2008 and that upon perusal of the pension papers, the audit observations were forwarded to the respondent no.4 vide memorandum dated 28th of March, 2009.
A perusal of the said memorandum dated 28th of March, 2009 reveals an observation to the effect that the period of service of the petitioner with effect from 5th of January, 1995 to 28th February, 1997 had not been regularised by sanctioning leave as admissible.
On the basis of the said audit observations, the respondent no.4 vide memoranda dated 24th July, 2009 and 10th August, 2009 requested the petitioner to furnish necessary documents pertaining to sanction of leave for the period from 5th of January, 1995 to 28th of February, 1997.
According to the petitioner, the said period of service with effect from 5th of January, 1995 to 28th of February, 1997 had already been regularised and adjusted by a competent authority through grant of special leave.
In spite of such clarification granted by the petitioner, the respondents did not proceed any further and illegally withheld pensionary benefits of the petitioner without any reason whatsoever.
Aggrieved by such inaction on the part of the respondents, the instant writ application had been filed.
The instant writ application was initially admitted by this Court by an order dated 16th of November, 2009 with direction upon the parties to exchange affidavits and by the said order, 3 the respondents were directed to release the provisional pension of the petitioner in accordance with law.
The petitioner, thereafter, filed an application for appropriate order being CAN 1064 of 2011 and the same was disposed of by an order dated 14th of June, 2013 directing the matter to appear for final disposal.
In spite of direction passed by this Court towards filing of affidavit, the respondents have not filed any affidavit-in- opposition till date and even today, none appears on behalf of the respondents in spite of issuance of a notice by the petitioner. Let a copy of the said notice be kept on record.
The perusal of the records reveal that the pensionary benefits of the petitioner had been withheld only on the ground that the period of service from 5th of January, 1995 to 28th February, 1997 had not been regularised through grant of appropriate leave.
The petitioner categorically averred in paragraph 12 of the writ application that his "leave was adjusted about 300 days and rest by granting 'Special Leave' and all the papers were forwarded through the Block Development Officer, Suti-I Block in the year1997".
The said categoric averments had not been controverted by the respondents.
A writ application is decided on the basis of "affidavit of evidence" and in the absence of contravension of averments made by the petitioner, in the writ application, the Court is to proceed on the basis that the said averments had been admitted 4 by the respondents. Reliance is placed on the judgement delivered in the case of Naseem Bano -vs- State of U. P. and others, reported in AIR 1993 SC 2592.
A perusal of the petitioner's representation dated 4th of August, 2009 in annexure 'P-6' to the writ application contains a categoric statement to the effect that papers pertaining to regularisation of the period from 5. 1. 1995 to 28. 2. 1997 were submitted by the petitioner to the then Block Development Officer, Suti-I Block, who was an Administrator of Ahiran Shyamali Pathagar, at the relevant time. The said fact of submission of papers pertaining to regularisation of the said period of service from 5.1.1995 to 28.2.1997 through adjustment and grant of special leave had also not been disputed by the respondents and thus on a purported plea of non-traceability of the said records, the respondents cannot withhold the disbursement of pensionary benefits of the petitioner.
In this context, it needs to be stated that pursuant to the earlier order dated 16th of November, 2009 passed in the instant matter, the respondents had sanctioned provisional pension to the petitioner @ Rs.726/- with effect from 1st of December, 2009 vide memorandum dated 16th of December, 2009 issued by the respondent no.4.
It is now settled by several judgements of the Hon'ble Apex Court that payment of gratuity and retirement benefits are not bounty and those are deferred payments and are to be paid immediately on the retirement of the employee concerned. 5 Reliance may be placed on the judgement delivered in the case of Gorokpur University -vs- Dr. Shitla Prasad Nagendra and others reported in (2001) 6 SCC 591 wherein the Hon'ble Apex Court relied on earlier judgement passed in the case of R. Kapur
-vs- Director of Inspection reported in (1994) 6 SCC 489 and in the case State of Kerala -vs- Padmanavan Nair reported in AIR 1985 SC 356 and Som Prokash Reki -vs- Union of India and others reported in AIR 1981 SC 212 and held that "gratuity and provident fund amount is a property in the hand of the retired employee and it is not a bounty and it cannot be withheld for any reason".
Mr. Chakraborty, learned senior counsel appearing for the petitioner, submits that the respondents had in a most illegal manner withheld the pensionary benefits of the petitioner and that there is no dispute as regards entitlement of the petitioner to avail pensionary benefits and that merely on a ground of non- traceability of records in government offices, the petitioner's pensionary benefits cannot be withheld.
It is submitted by Mr. Chakraborty that the petitioner is presently aged about 77 years and that he is suffering from several ailments.
Upon hearing Mr. Chakraborty and upon considering the materials on record, I find that there is no dispute that the petitioner was an approved librarian and that he had rendered service without any break and that there is no departmental and judicial proceedings pending against the petitioner and in the 6 backdrop of the said admitted facts, the respondents ought to have disbursed the full pensionary benefits of the petitioner.
The records reveal an extreme lethargy on the part of the respondents to finalise the petitioner's claim and to disburse his pensionary benefits and such inaction warrants the intervention of this Court.
In the circumstances, I direct the respondents particularly the respondent no.4, to sanction and disburse full pensionary benefits of the petitioner including the gratuity amount, treating the petitioner's date of superannuation to be 1st March, 1997, together with an interest @ 6% per annum with effect from the date of filing of the instant writ application on 21st August, 2009 till the date of actual disbursement of the full pensionary benefits to the petitioner, within a period of twelve weeks from the date of communication of this order.
The writ application is, accordingly, disposed of. There shall be no order as to costs.
Urgent certified photocopy of this order, if applied for, be supplied as expeditiously as possible.
(Tapabrata Chakraborty, J.)