Himachal Pradesh High Court
Pushpender Kumar vs State Of H.P. And Others on 24 March, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 6288 of 2012
Date of Decision 24th March, 2018
________________________________________________________
Pushpender Kumar
....Petitioner.
Versus
State of H.P. and others
r ....Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes
________________________________________________________________________
For the Petitioner: Shri Rajiv Rai, Advocate.
For the Respondents: Shri Shiv Pal Manhans, Additional
Advocate General with Mr.R.R.Rahi,
Deputy Advocate General for
respondents No.1 to 3 and
Mr.V.B.Verma, Central Government
Counsel, for respondent No.4.
__________________________________________________________________
Vivek Singh Thakur, J.(Oral)
Petitioner, son of a deceased retired employee Shri Jagdishanand, has filed present writ petition seeking direction to respondents to release GPF amount of his father and also for the 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 2 release of entire retiral benefits along with interest at the rate of 15% per annum from the date of superannuation of his father till .
the date of realisation of amount, which were due after his superannuation but not released for department proceedings.
2. Respondents have contested the petition stating that Jagdishanand, father of the petitioner, had retired as Deputy Ranger of Forest from the department on 31.12.1990, but his pensionary benefits were not released due to penalty of recovery of Rs.2,51,914/- imposed upon him by Conservator of Forests, Rampur against which the delinquent employee had filed an appeal, during the pendency of which, he had expired on 29.12.2003. It is also contended that part of retiral benefits i.e. GPF, GIS had already been released to the father of petitioner during May 1991 and August 1992 and in support of this contention copies of relevant pages of cash book have also been placed on record as Annexures R-1 and R-2. It is further stated that retiral benefits i.e. DCRG, leave encashment and pension etc. have also been released. Letter dated 8.7.1991 is also placed on record as Annexure R-3 to establish that pension has also been released by Accountant General H.P. vide PPO No. 22589/HP. Copy of office order dated 27.3.1997 (Annexure R-IV) issued by the Conservator of Forest Rampur Forest Circle has ::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 3 been placed on record whereby amount of DCRG and leave encashment of deceased Jagdishanand was forfeited and .
withheld with further direction to take steps for recovery of balance amount out of penalty Rs.2,51,914/-.
3. During pendency of appeal/representation of deceased employee against order dated 27.3.1997 he had expired on 29.12.2003. Thereafter present petition was preferred on 17.07.2012.
4. As evident from communication dated 1.11.2012, (Annexure R-6) after death of father of petitioner and filing of present petition, representation of father of petitioner was considered by the Government and approval for waiving off the penalty in favour of deceased employee was communicated by the Additional Secretary (Forest) to the Government of H.P. vide letter dated 25.10.2012. This comunication was also sent to the DFO Kinnaur by the office of Chief Conservator of Forest for information with direction to release of all pending dues of the retired official to the legal heirs of retired official immediately.
Thereafter vide communication dated 3.11.2012 (Annexure R-7) petitioner was informed in this regard by the Divisional Forest Officer Kinnaur with further information that GIS amounting to Rs.105/- and GPF amounting to Rs.30,000/- stood released to the ::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 4 retiree during the months of May 1991 and August 1992. Along with this letter (Annexure R-7), cheques No. 145770 and 145771 .
dated 3.11.2012 amounting to Rs.28380/- and 19210/- against the payment of amount of DCRG and leave encashment of deceased employee late Shri Jagdishanand was also transmitted in favour of the petitioner.
5. In the aforesaid circumstances, as on date, there is nothing due to be paid to the petitioner on account of retiral benefits of late Shri Jagdishanand. However, it is contended by learned counsel for the petitioner that interest on delayed payment of DCRG and leave encashment has not been paid and as evident from communication dated 1.11.2012 (Annexure R-6) the employee i.e. deceased father of the petitioner was exonerated from charge levelled against him, petitioner is entitled for interest upon payment made in the year 2012 from the date of retirement of his father till date of payment.
6. Rule 9 of CCS (Pension) Rules empowers the Government to withhold the pension or gratuity or both either in full or in part or withdrawing the pension in full or part, either permanently or for a specified period or to order a recovery from pension or gratuity of the whole or part of any pecuniary loss caused to the Government by the servant, if, in any ::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 5 departmental or judicial proceedings, for grave misconduct or negligence on the part of employee during the period of his .
service including service rendered upon re-employment after retirement.
7. Rule 68 of the CCS (Pension) Rules provides interest on delayed payment of gratuity, in case the delay in payment is attributtable to the administrative lapses and delay in payment is not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers. It is clarified by the Government vide O.M. No.1(4)/Pen.Unit/82, dated 10th January, 1983 that in order to mitigate the hardship to the Government servants who, on conclusion of proceedings, are fully exonerated, it has been decided that interest on delayed payment of retirement gratuity may also be allowed in their cases and in such cases, the grautuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity.
However, it is further clarified that the benefit of these instructions would not be available to such of the Government Servants who die during pendency of judicial/disciplinary ::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 6 proceedings against them and against whom the proceedings are consequently dropped.
.
8. In present case, communication dated 1.11.2012 (Annexure R-6) clearly indicates that it is undisputed in the present case that after disciplinary proceedings, recovery was imposed upon deceased father of the petitioner and he died during pendency of his representation/appeal against the said order. Thereafter Government of H.P. had approved for waiving off the penalty of recovery in favour of the deceased and thereafter on the basis of said waiving off the penalty, deceased employee was exonerated from the charges levelled against him.
Therefore, in present case, it is not an exoneration simplicitor but it is pursuant to the waiver of recovery and therefore, delinquent in present case can not be said to have been fully exonerated.
Here, exoneration is in consequence of waiver of recovery of penalty. Hence keeping in view the provisions of Rule 9 read with Section 68 of CCS (Pension) Rules read with O.M. No. 1(4)/Pen.Unit/82, dated 10.1.1983 and O.M.No.7(1) PU/79, dated 11.7.1979, petitioner is not entitled for any interest for delayed payment of DCRG and leave encashment.
9. Learned counsel for the petitioner, in support of his contention, has relied upon the pronoucement of the Apex Court ::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 7 reported in (2008)3 SCC 44 titled S.K.Dua vs. State of Haryana and another and (2014)8 SCC 894 titled D.D.Tewari (dead) through LRs vs. .
Uttar Haryana Bijli Vitran Nigam Ltd. and others.
10. In S.K.Dua's case, disciplinary proceedings were finally dropped and all retiral benefits were extended to the employee after four years and in those circumstances, it was held that employee was entitled to the interest of such benefits and in those circumstances, prima facie finding that grievances voiced by the appellant appeared to be well founded, he was held entitled to the intererst on retiral benefits. Whereas in present case, proceedings had not been dropped and father of the petitioner has been exonerated for waiver of penalty imposed upon him by the Government after his death.
11. In D.D.Tiwari's case retiral benefits of the employee were withheld on the ground that some amount was due to the employer but no disciplinary proceedings were pending against employee on the date of his retirement and it was found by the Court that erroneously witholding of gratuity amount for which employee was legally entitled entailed the penalty on delayed payment and for that reason, employer was also held liable to make payment of penalty amount on delayed payment of gratuity under the provisions of Payment of Gratuity Act, 1972.
::: Downloaded on - 20/05/2018 21:15:17 :::HCHP 8Facts of present case are entirely different to the case in D.D.Tiwari's case.
.
12. In view of above, present petition being devoid of any merit is dismissed.
March 09, 2018 (Vivek Singh Thakur)
(ms) Judge
r to
::: Downloaded on - 20/05/2018 21:15:17 :::HCHP