Madras High Court
State Of Tamilnadu vs Tmt.R.Rukmani on 21 December, 2018
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.12.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2859 of 2018
and
C.M.P.No.23755 of 2018
1.State of TamilNadu
rep. by the Secretary to Government,
Backward Classes, Most Backward Classes
and Minorities (BC.I) Department,
Secretariat, Chennai-9.
2.The Director of Backward Classes and Minorities
Welfare, Chepauk, Chennai-5. ... Appellants
vs.
Tmt.R.Rukmani ... Respondent
Prayer: Writ Appeal is filed under Clause 15 of Letters Patent, against
the order made in W.P.No.7442 of 2007, dated 04.03.2014.
For Appellants : Mr.R.Udayakumar
Additional Government Pleader.
JUDGMENT
(Judgment of the Court was made by S.MANIKUMAR, J) http://www.judis.nic.in Instant writ appeal has been filed against the order made in 2 W.P.No.7442 of 2007, dated 04.03.2014, by which, the writ court has directed the appellants herein to pay interest at the rate of 9% per annum, on the belated payment of retirement-cum-pensionary benefits, to the respondent herein.
2. Short facts leading to the filing of the writ appeal are as follows:
i) The respondent herein worked as an Assistant in the O/o the Member Secretary, State Minorities Commision, Chennai-18 before her retirement. The 2nd appellant herein, namely Director of Backward Classes & Minority Welfare, Chepauk, Chennai -5, permitted her to retire voluntarily with effect from 31.3.98. The Member Secretary, State Minorities Commission recommended her pension proposals in his letter dated 18.5.98 to the Director of Backward Classes along with the request of the applicant for sanction of provisional pension and Provisional gratuity. The Director, recommended pension proposals to the Accountant General, in his letter dated 15.3.99 after a delay of 300 days. But, he had failed to take any decision on the request of the applicant for sanction of provisional pension and provisional Gratuity, and no reply was given.
http://www.judis.nic.in 3
ii) It is the further case of the respondent that the Accountant General, had taken a decision to return the proposals in Feb.2000, after a lapse of nearly a year, stating that the retirement order itself was incorrect and ratification of the government should be obtained. Even though the Accountant General had taken a decision, after a delay of 329 days, he has given a direction to the Director, to sanction provisional pension and provisional gratuity, considering the delay and sufferings of the pensioner. At this stage, the respondent again represented to sanction provisional pension and provisional gratuity. Though voluntary retirement was ordered, the office was very particular, to get ratification of the voluntary retirement from the government. Thus the respondent was made to suffer, and no decision was taken on her request, as well as, on the directions of the Accountant General. The delay in taking decision by the department, on the administrative side, for three years, made her to suffer with mental agony.
iii) Government have issued ratification orders in G.O.(2D)No.33,BC,MBC&MW Dept., dated:4.9.2000. Again proposals were forwarded to the Accountant General, by the Director. At last, on 01.08.2000, Director sanctioned provisional pension. But orders http://www.judis.nic.in were issued sanctioning provisional pension only from August 2000, instead of April 98. It is the contentions of the respondent that the 4 instructions of the Accountant General and the Government, have been flouted and the respondent was made to suffer.
iv) It is the further case of the respondent that the Accountant General, in his order dated 27.12.2000, cleared her pension, gratuity and commutation, in the references cited. The Pension payment Officer, in his letter dated 15.2.2001, ordered for payment of Provisional gratuity, but it was not drawn and paid, till gratuity was sanctioned by the Accountant General. As against a total amount of Rs.70125/-, sanctioned by the Accountant General on 27.12.2000, the Director, in his Proceedings sanctioned only Rs.55273/-. The above reduced amount was paid to the respondent only on 27.6.2001. Reasons for such reduction was not communicated to the respondent till date. Thus the department, delayed sanction of provisional pension, and provisional gratuity, for more than two years.
v) It is the case of the respondent that, she was made to suffer mental agony, and put to financial strain due to the inordinate delay of the department. Even though, the Accountant General pointed out the defect, in her case and suggested remedy, by directing the department, to sanction provisional pension and provisional gratuity, the department, had failed to adhere to the instructions of the http://www.judis.nic.in Accountant General. Even after the direction of the Accountant 5 General dated 07.02.2000, provisional pension was sanctioned only in August 2000, that too, from August 2000, instead of April 1998.
vi) Provisional gratuity was sanctioned to the respondent on 1.9.2000, but not paid till May 2001. It is the further case of the respondent that the Accountant General, had sanctioned gratuity on 27.12.2000. Narrating the above facts, the respondent made a representation to the Secretary to the Government, Backward Classes, Most Backward Classes and Minorities (BC.I) Department, the first appellant herein, but the same was rejected, stating that it was not feasible of compliance. Hence the respondent herein, filed a writ petition, to call for the records in connection with the order passed in letter No.8132/BC.I/2001-3 dated 04.01.2002, and to quash the same, and for a direction to the appellants herein, to pay interest, on the belated payment of pension and gratuity.
3. Upon hearing the learned counsel for the parties, Writ court, on 04.03.2014, allowed writ petition No.7442 of 2007, and directed the appellants herein, to pay interest, on the belated payment of retirement-cum-pensionary benefits to the respondent, at the rate of 9%, for the period of delay. Operative portion of the order made in the said writ petition No.7442 of 2007 is as follows:
http://www.judis.nic.in 6
4. Being aggrieved by the same, instant writ appeal has been filed on the following grounds:
i) Writ court ought to have considered that the services rendered by the respondent/petitioner herein, who had the habit of going on leave intermittently right from the date of her appointment, and availed the following leave, throughout her service from 3.2.1973 to 31.03.1998, which hindered the office administration to regulate her service, taking action against her and imposing punishment, during her service and even after retirement, she has claimed the benefits, as if put in, clear and regular service.
Sl.No. Type of leave No.of days 1 Earned leave 574 Unearned leave on Medical540 2 Certificate 3 Unearned leave on Private 180 Affairs 4 Maternity leave 210 5 Leave on loss of pay669 without Medical certificate 6 Leave on loss of pay with626 Medical certificate Total 2799 (or) http://www.judis.nic.in 93 months (or) 7 7.75 years
Had her services been clear and regular, as that of the other retired staff of the department, the Director of Backward classes and Minorities Welfare, could have obtained the pension, sanctioned by the Accountant General within a month. There is no deliberate act or omission on the part of the appellants / respondents herein, to delay the payment.
iii) Writ court ought to have considered the fact that the individual was permitted to retire voluntarily on 31.3.1998 by the competent authority. Pension proposals from the Unit Office i.e) State Minorities Commission, in which the individual worked was received at the O/o Head of the Department on 18.05.1998, and all the leave availed in piecemeal during her tenure in the Directorate for the period from 1993 to 1995 had been regularized during June 1998, the leave availed by her at the State Minorities Commission, the office, where she worked last , had been regularized during June, July and August of 1998 for the whole number of 1309 days of leave taken during the period 1992 to 1998 and her pay in the revised scale, as per the Tamil Nadu Sixth pay Commission from 1.1.1996 was fixed during the month of December 1998 and then the pension proposals were http://www.judis.nic.in sent to the Accountant General on 15.3.1999.
Respective offices, regularly took steps to streamline 8 her service period and never delayed intentionally, but the delay occurred was purely, due to her irregular service.
iv) Writ court ought to have considered the fact that the Accountant General, took nearly one year, to scrutinize her pension papers, and Service register of the individual, and then returned the same, with the objection in permitting her, on voluntary retirement while she was on Leave, on Loss of Pay, which was against the rules. The proposals for ratifying the action of having permitted to go on voluntary retirement was received from Head of the Department only on 27.3.2000. Government, in G.O. (2D) No. 33, Backward Classes, Most Backward Classes and Minorities Welfare Department, dated 04.09.2000, ratified the action, granting voluntary retirement, while she was on Leave on Loss of Pay, during the notice period. It is due to irregular attendance, which involved process, at various offices, as mentioned above, it took time, to settle her claims in the year 2001, except for a portion of amount in Death Cum Retirement Gratuity, and not, as stated in the order, during the year 2005.
v) Writ court ought to have considered the fact that out of the Death Cum Retirement Gratuity amount of Rs. 70,125/- authorized by the Accountant General, payable to her, a sum of Rs. 55,273/- was sanctioned and paid to her on 27.6.2001, whereas, the balance http://www.judis.nic.in amount of Rs. 14,852/- was not paid, during 2001, as per the general instructions of the Government in 9 Lr.No. 33724/PC-1/98-1, Finance Department, dated 22.05.1998, wherein, Government have ordered to release the entire 40% of the Gratuity arrears amount, to the pensioners who retired between 01.01.1996 and 31.03.1998, in one lump sum along with interest allowed upto 31.03.2005. Hence a sum of Rs. 14,852/- residual balance amount, withheld was calculated with interest up to 31.03.2005, as per the order in G.O (Ms) No. 145 Finance (PC) dept dt: 13.4.05 and thereby, a sum of Rs.28,079/- (Rupees twenty eight thousand and seventy nine only) was sanctioned and paid to the individual, vide the Director of Backward Classes and Minorities welfare proceedings No. A2/9684/05 dt:
1.9.05.
vi) Writ court ought to have considered the fact that rule 45-A of the Tamil Nadu Pension Rules 1978, permits, payment of interest on delayed payment of gratuity after six months in respect of voluntary retirement. Period of six months is allowed in respect of voluntary retirement, as it will take 3 months for preparation of pension proposals, after the date of voluntary retirement and 3 months, for the Accountant General to process. This being a peculiar case, where calculation of qualifying service itself was complicated, period of service to be regulated, fixation of pay in the revised scale, as per the Tamil Nadu Sixth Pay Commission w.e.f. 01.01.1996 had to be done, and http://www.judis.nic.in thus, for completion of all these processes, it took a year, for sending the pension proposals and the 10 Accountant General, in turn for scrutiny, had taken a year, for which the department was at no fault, and as stated supra, ratification was to be obtained from the government and resubmission of the proposals made, to the Accountant General, and finally authorized by Accountant General only during the year 2001. Had her services been clear and regular, as that of the other retired staff of the department, the Director of Backward Classes and Minorities Welfare, could have obtained the pension, sanctioned by the Accountant General, within a month. There is no deliberate act or omission, on the part of the appellants / respondents herein, to delay payment.
5. Though several reasons are stated for the delay in disbursement and grounds raised challenging the order impugned in the writ appeal, we are not inclined to interfere with the order of the writ court, in view of the decision made in S.K.Dua vs. State of Haryana, reported in 2008 (3) SCC 44, wherein, the Hon'ble Supreme Court, held thus:-
"In the reported case, 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 http://www.judis.nic.in included commuted value of pension, leave encashment, gratuity, etc. They were withheld till the finalisation of 11 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 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."
6. Said decision has been followed by a Hon'ble Division Bench of this court, to which one of us is a party (Hon'ble Mr.Justice S.Manikumar) in Govt., of T.N., v. M.Deivasigamani reported in 2009 (3) MLJ 1. In the said case, the first respondent-employee therein http://www.judis.nic.in was not permitted to retire, in view of the disciplinary proceedings, which was set aside in the year 1992, though he was due to retire on 12 31.01.1987, on attaining the age of superannuation. Earlier, the first respondent therein was dismissed from service and aggrieved by the same, he preferred an appeal before the Special Commissioner and Commissioner for Revenue Administration, Madras, which was rejected on 06.11.1988. Thereafter, he preferred an appeal before the Government on 22.12.1988. Pursuant to the order of the Tribunal, dated 17.02.1992, the Government, by its order in G.O. (2D) No.123, Revenue Department, dated 18.11.1992, set aside the order of dismissal and allowed the petitioner to retire from service. In the above reported judgment, though he had preferred the statutory appeal in the year 1998, the Government have taken nearly four years to pass orders on the appeal. Thereafter, the Government took further period of two years for disbursement of retiral benefits. It was the case of the Government before the Division Bench that insofar as belated payment of DCRG, recommendations were made for sanction of interest, but for other retiral benefits, including pension, commutation of pension, interest cannot be granted. Following the decisions of the Apex Court in Dr.Uma Agarwal v. State of U.P., reported in (1999) 3 SCC 438 and S.K.Due v. State of Haryana reported in 2008 (3) SCC 44, the Division Bench of this Court held that, http://www.judis.nic.in "7. In view of the judgment of the 13 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 t can make his he Constitution."
7. We have given our consideration to the contentions of the appellants herein. Delay in disbursement of retiral benefits cannot be attributed to the respondent, to deny interest, but on the contra to the appellants. Courts have to consider the constitutional rights of a government servant to pension, for their subsistence, for having rendered their services to government. Employer, does not suffer due to delay, but the employee suffers, and continues to suffer, till payment is made. Though several grounds have been raised, we are of the view that the interest of a government servant, to receive pensionary and retirement benefits, at the earliest for subsistence, should be given priority, vis-a-vis, the interest of the government. If the department and the office of the Accountant General have delayed in scrutiny and approval, why should the respondent be http://www.judis.nic.in denied of interest for the belated payment of retirement benefits, in the light of the decision of the Hon'ble Supreme Court in S.K.Dua's 14 case, and our answer is in favour of the respondent.
8. In view of the above, instant Writ Appeal is dismissed. No Costs. Consequently, the connected civil miscellaneous petition is closed.
(S.M.K., J.) (S.P., J.) 21.12.2018 dm/asr http://www.judis.nic.in 15 S.MANIKUMAR,J.
AND SUBRAMONIUM PRASAD, J.
dm/asr W.A.No.2859 of 2018 and C.M.P.No.23755 of 2018 21.12.2018 http://www.judis.nic.in