Calcutta High Court (Appellete Side)
Dayaram Barma vs The State Of West Bengal & Ors on 9 September, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
9.9.2014
ac
M.A.T. 1189 of 2014
(CAN 8909 of 2014)
Dayaram Barma
-versus-
The State of West Bengal & Ors.
Mr. Subir Sanyal,
Mr. Sakti Pada Jana,
Mr. Sourav Mitra,
Mr. Subhrangsu Panda.
... For the Appellant/Writ Petitioner.
Mr. Md. Yamin Ali.
... For the State.
This mandamus appeal is directed against an order passed by the Learned Single
Judge of this Court on 13th May, 2014 in W.P.9057(W) of 2014 at the instance of
the appellant/writ petitioner. By the said order, the writ petition filed by
the appellant was rejected by holding interalia, that the writ petitioner was
lacking bonafide in not approaching the Writ Court promptly. It was also held
therein that there was no statutory provision regarding grant of interest on
delayed payment of gratuity to the retired teaching and/or non-teaching staff of
the primary school and as such, writ in the nature of mandamus cannot be issued
commanding the State respondent to pay interest on delayed payment of gratuity.
These are the two reasons for which the writ petition was dismissed by the Learned Trial Judge.
Let us now consider as to how far the Learned Trial Judge was justified in rejecting the petitioner's claim for interest on delayed payment of gratuity in the facts of the instant case.
The writ petitioner who was an Assistant Teacher of a primary school retired from service on superannuation with effect from 30th June, 2010. Though he retired from service on 30th June, 2010 but the pension payment order was not issued immediately. It was issued on 6th July, 2011. The retiral benefits as per the said pension payment order was paid to him on 10th September, 2013. It is only then, the writ petitioner came to know that no interest was paid on delayed payment of gratuity. As such, he filed the writ petition on 18th March, 2014. Thus, we find that he approached the writ court seeking the aforesaid relief within six months from the date of payment of his retiral dues as per the pension payment order issued on 6th July, 2011. Pension is payable to the pensioner from the month following the date of his retirement. The reason as to why such delay was caused in issuance of the pension payment order remains unexplained from the side of the said authority.
As a matter of fact, the State respondent was benefited due to delay in payment of such retiral dues of the petitioner. The State respondent enjoyed the money which was payable to the writ petitioner until such payment was made to him. It has already been held by the Hon'ble Supreme Court in the case of D.S. Nakara - vs- Union of India, reported in A.I.R. 1983 S.C. 130 that pension is not bounty and/or charity. It was held therein that right to pension is, as good as a right to the property of the pensioner. As such, if somebody is deprived of enjoying his property, the loss which he suffered due to deprivation of his right of enjoyment, should be compensated by the employer who is responsible for such delay in payment of retiral dues to the pensioner. Thus, the State respondent cannot deny payment of interest on delayed payment of gratuity to the writ petitioner.
Let us now consider as to whether in the absence of any statutory provision and/or government instruction, a pensioner can claim interest on delayed payment of gratuity or not.
We find answer to this question in the decision of the Hon'ble Supreme Court in the case of S.K. Dua -vs- State of Haryana & Anr., reported in 2008(3) SCC, Page-44, wherein it was held as follows :
"Para - 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 absence of statutory rules, administrative instructions or 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."
In view of the aforesaid dictum of the Hon'ble Supreme Court, we have no hesitation to hold that even in the absence of any statutory rule, administrative instruction and/or guideline, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution.
As such, we cannot agree with the findings of the Learned Trial Judge that in the absence of any statutory instruction and/or rules, the writ petitioner cannot claim interest on delayed payment of gratuity.
Let us now consider the other reason which was assigned by the Learned Trial Judge for rejecting the petitioner's claim for interest on delayed payment of gratuity.
The Learned Trial Judge held that the writ petitioner was lacking bonafide in not approaching the Writ Court promptly.
Here is the case where we have already stated above that he retired from service on superannuation with effect from 30th June, 2010. The pension payment order was issued on 6th July, 2011. The retiral dues as per the said pension payment order was paid to him on 10th September, 2013. He approached the writ court on 18th March, 2014. Thus, we find that almost within six months from the date of receiving the retiral benefits, he approached the writ court seeking the aforesaid relief.
Thus, we do not find that the writ petitioner was lacking bonafide in not approaching the Writ Court promptly.
That apart, we like to mention here that here is the case where the State Government was not prompt enough in payment of the retiral dues of the writ petitioner. We have already indicated above that the retiral benefits was required to be paid immediately after his retirement. Pension should have been paid to him from the month following his date of his retirement. The State Government failed to discharge its duty in this regard. When the State Government itself is a defaulter, the State Government cannot complain about the default of its employee. Under such circumstances, we cannot agree with the findings of the Learned Trial Judge.
Accordingly, the impugned order stands set aside.
We dispose of the appeal by directing the State respondent to pay interest @ 10% per annum from the date of his retirement upto the date of actual payment of the retiral dues to the writ petitioner. Such payment should be made within four weeks from the date of communication of this order.
The Learned Advocate-on-record of the State respondent is directed to communicate this order to his client immediately.
The appeal and the writ petition, thus, stand allowed.
(Jyotirmay Bhattacharya, J.) (Tapash Mookherjee, J.)