Madras High Court
N.Rajagopal vs The Secretary To Government on 24 September, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.09.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI W.P.(MD)Nos.3288 of 2009 and 3384 of 2009 N.Rajagopal .. Petitioner in W.P.(MD) No.3288/2009 A.Swaminathan .. Petitioner in W.P.(MD) No.3384/2009 Vs. The Secretary to Government, Home Department, Fort St. George, Chennai - 600 009. .. 1st respondent in both the W.Ps. The Superintendent of Police, Thanjavur. .. 2nd respondent in W.P.(MD) No.3288/2009 The Superintendent of Police, Tirunelveli. .. 2nd respondent in W.P.(MD) No.3384/2009 Prayer in W.P.(MD) No.3288/2009:- This Writ Petition has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondents to pay 18% interest for the belated payment of retirement benefits from 30.06.1998 till the retirement benefits were paid by the respondents and also to pay an adequate compensation to the petitioner for the illegal departmental proceedings initiated against the petitioner and for keeping the departmental proceedings pending for more than 20 years. Prayer in W.P.(MD) No.3384/2009:- This Writ Petition has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondents herein to pay 18% interest for the belated payment of retirement benefits and other monetary benefits from the date of the petitioner's retirement till realization and also to pay adequate compensation to the petitioner for the action taken by the respondents. !For Petitioner : Mr.Veerakathiravan (in both the W.Ps.) For Respondents :Mr.A.K.Baskara Pandian (in both the W.Ps.) Special Government Pleader Date of reserving the Judgment : 23.06.2014 Date of pronouncing the Judgment : 24.09.2014 :COMMON ORDER
These Writ Petitions have been filed by the petitioners directing the respondents to pay 18% interest for the belated payment of retirement benefits and other monetary benefits from the date of retirement till realization and also to pay an adequate compensation to the petitioners for the illegal departmental proceedings initiated against them. W.P.(MD) No.3288 of 2009:-
2.The petitioner was enlisted as Police Constable in the year 1965. He served for 33 years without any charge memo, adverse remarks or any other default in his service. He attained the age of superannuation on 30.06.1998. The petitioner was kept under suspension by the second respondent, on 08.08.1988, in view of a criminal case in Crime No.9 of 1988, filed by the second respondent police. The said criminal case was transferred to the Tamil Nadu Disciplinary Proceedings Tribunal. The petitioner, number of Police Constables and Police Personnels were made as accused in the said case.
3.The petitioner filed O.A.No.1332 of 1989 before the Tamil Nadu Administrative Tribunal, Chennai, challenging the order of suspension. The suspension order was stayed by the Tribunal. The petitioner was reinstated into service. On attaining the age of superannuation, on 30.06.1998, he was not permitted to retire and retained into service. The petitioner filed O.A.No.3733 of 2001 before the Tamil Nadu Administrative Tribunal, Chennai, challenging the disciplinary proceedings initiated by the Department. The said O.A. was allowed on 11.07.2002. Against the said order, the Government filed Writ Petitions in W.P.(MD) Nos.3658 and 2665 of 2006, which were dismissed on 03.09.2007. After dismissal of the Writ Petitions, the first respondent, by the order dated 16.02.2008, permitted the petitioner to retire.
4.The respondents have driven the petitioner from pillar to post without paying the retirement benefits for ten years. Therefore, the petitioner had suffered a lot and could not conduct the marriage of his two daughters, in time. In spite of several demands and reminders, the respondent did not pay his retirement benefits, for ten years. Hence, the petitioner prayed for issue a direction to the respondents to pay 18% interest for the belated payment of retirement benefits from 30.06.1998 till the retirement benefits were paid by the respondents and also to pay an adequate compensation to the petitioner for the illegal departmental proceedings initiated against him and for keeping the departmental proceedings pending for more than 20 years.
5.In the counter affidavit, the second respondent has stated that the Prohibition Enforcement Wing, Kumbakonam at Thanjavur District, registered a case in Crime No.9 of 1988 under Section 7 of Prevention of Corruption Act against the petitioner and 21 other Police Personnels for demanding and accepting Mamool from the Bootleggers. The case was transferred to the Tribunal for Disciplinary Proceedings, Thanjavur, for enquiry. The Tribunal framed the charge in D.E.4/90 (New No.08/97). By the order, dated 08.08.1988, the petitioner was placed under suspension. The petitioner challenged the order of suspension before the Tamil Nadu Administrative Tribunal, Chennai. As the Tribunal stayed the order of suspension, the petitioner was reinstated into service. The Commissioner for Disciplinary Proceedings, Thanjavur, conducted an enquiry and in his report, held that the charge was proved. A copy of the report was communicated to the petitioner and others by the first respondent Government in Letter No.SC/1300-3/2001, dated 15.03.2001.
6.Challenging the said findings, the petitioner and others have filed O.A.Nos.2853, 3731 and 3733 of 2001 before the Tamil Nadu Administrative Tribunal, Chennai. The Tribunal, by the order dated 11.07.2002, set aside the charge memo. Against the said order, the respondents filed Writ Petitions before this Court. The Writ Petitions were dismissed on 29.08.2007 and 03.09.2007. On dismissal of the Writ Petitions, the first respondent by G.O.(2D)No.408, Home (SC) Department, dated 15.07.2008, permitted the petitioner to retire.
W.P.(MD) No.3384 of 2009:-
7.The petitioner joined into service as Police Constable and was posted at Thanjavur, on 01.01.1966. According to the petitioner, during the service of 35 years, he was not subjected to any adverse remarks or punishment and he was also given promotion as Grade-II Police Constable. To his shock and surprise, on 12.06.1990, he was suspended by the Department for a pending enquiry by the Vigilance and Anti Corruption Wing, for an alleged occurrence, which took place in the year 1988. In the said case, several Police Personnels were prosecuted and subsequently, the suspension order was revoked during the year 2001.
8.On attaining the age of superannuation, once again the petitioner was suspended and not allowed to retire on 30.11.2001. He was paid subsistence allowance. Number of Police Personnels charge sheeted along with the petitioner, approached the Tamil Nadu Administrative Tribunal, Chennai. The Tribunal quashed the charges framed against them. The respondents filed Writ Petitions before this Court and the Writ Petitions were dismissed. Some of the Police Constables said to have been involved in the occurrence, were allowed to retire and no prosecution was proceeded with and some of them were reinstated into service. As the respondents, adopted pick and choose method, the petitioner filed W.P.No.436 of 2006 and another Police Constable, by name M.Murugan, filed W.P.No.437 of 2006. This Court, by the common order, dated 19.01.2006, directed the respondent to complete the disciplinary proceedings within twelve weeks from the date of receipt of a copy of that order. The first respondent decided to drop the disciplinary proceedings in the year 2007. After dropping the proceedings, the respondents paid pensionary benefits to the petitioner on 23.05.2008. According to the petitioner, the respondents have not fixed allowances and the gratuity was paid only after six years of his retirement. The retirement benefits was not paid to him on the date of his retirement and he was under suspension. Because of non-
payment of his retirement benefits, the petitioner could not conduct his daughters' marriage. The respondents unnecessarily kept the disciplinary proceedings pending for 19 years. The petitioner was put in unbearable mental agony. Even after quashing the charges by the Tribunal, the respondents paid retirement benefits only after five years. Therefore, the petitioner has filed the above writ petition seeking for a direction to the respondents to pay interest at 18% for the belated payment of retirement benefits and other monetary benefits from the date of his retirement till realization of payment and also to pay an adequate compensation.
9.The second respondent in his counter stated that the petitioner was placed under suspension with effect from 12.06.1990 along with other Police Personnels for habitually collecting Mamool from Prohibition Enforcement Wing, Kumbakonam. The petitioner was not allowed to retire on 30.11.2001 on the date of his superannuation, as disciplinary proceedings were pending against him. For that reason only, the retirement benefits were not paid to him. But subsistence allowance was paid to him. Number of similarly placed Police Personnels approached the Tamil Nadu Administrative Tribunal, Chennai, and therefore, the suspension order was stayed and subsequently, the charge memo was quashed. The Writ Petition filed by the respondents were dismissed. Therefore, those Personnels were reinstated and subsequently, they were allowed to retire. Since the petitioner is also similarly placed, the charges were dropped by the first respondent. As per the Government Order in G.O.(2D) No.342, Home (Pol.2) Department, dated 31.05.2007, communicated by the Superintendent of Police, Thanjavur District, in his Letter No.K4/29538/03, dated 07.06.2007, the petitioner was allowed to retire from service on superannuation on 30.11.2001. The period of suspension was regularised as per the rules and regulations and allowances and promotion were given to him. The pension proposal was sent to the Accountant General, Chennai, in C.No.C.No.F1/Pen.63/2007, dated 09.01.2008. As per the order of Accountant General, dated 31.03.2008, in Admissibility Report No.AG (A & E)/PEN PO5/3/S 571-1724/PA/2007-2008/PA 13528/22, dated 31.03.2008, his retirement benefits were paid to him. The retirement benefits were not paid on 30.11.2001 on the date of superannuation, as he was not allowed to retire and he was continued to be in service. As per orders of this Court passed in respect of similarly placed persons, the petitioner was permitted to retire and he was paid all the retirement benefits within the short period after obtaining orders from the Accountant General. Therefore, there is no delay on the part of the respondents in paying the retirement benefits. Hence, the respondents are not liable to pay any interest.
10.In support of his submission, the learned counsel for the petitioner relied on the following Judgments:
(i) Government of Tamil Nadu v. M.Deivasigamani [2009 (3) MLJ 1], wherein at paragraph Nos.6 and 7, it has been held as follows:-
"6.The contention of the appellant that as per the Government norms, interest can be paid only on Death-cum-Retirement Gratuity, in case of delay and the same cannot be awarded to any other retiral benefits, is not tenable, in view of the decision of the Supreme Court in S.K.Due v. State of Haryana reported in 2008 (3) SCC 44. 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 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 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."
7.In view of the judgment of the 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 can make his claim for interest, under Part III of the Constitution, relying on Articles 14, 19 and 21 of the Constitution."
(ii) Vijay L.Mehrotra v. State of U.P. and Others [2001 (9) SCC 687], wherein at paragraph Nos.3 and 4, it has been held as follows:-
"3.In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
4.In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement, i.e., 31-8- 1997 till the date of payments."
(iii) D.P.Selvaraj v. Government of Tamil Nadu [2009 (5) MLJ 1361], wherein at paragraph Nos.3 and 8, it has been held as follows:-
"3.The petitioner had submitted his explanation to the charges. Even though an enquiry had been conducted, belatedly, it was finally found that the charges against the petitioner had not been proved. Thereafter, on receipt of the final orders, the Treasury Office, Coimbatore, by a letter Ref.Rc.27040/99/A2, dated 31.5.1999, had forwarded the proposals for payment of the pension and other retiral benefits due to the petitioner to the Accountant General of Tamil Nadu, Chennai. Based on the said proposals, the Accountant General of Tamil Nadu, Chennai, had passed orders for the payment of pension and other retiral benefits by a letter, dated 15.7.1999. Thus, there has been a delay of nearly 3 1/2 years in the disbursement of the retiral benefits to the petitioner and therefore, he is entitled to receive the interest on the belated payment of retiral benefits for the period, from 1.1.1996 to 14.7.1999, at the rate of 18% per annum.
8. Considering the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondent, this Court finds that nothing has been shown by the learned counsel appearing on behalf of the respondent to deny the claims made on behalf of the petitioner. Further, the learned Government Advocate appearing for the respondent has not been in a position to show that the delay in payment of the arrears of the retiral benefits is due to the petitioner. In such circumstances, the respondent is directed to pay the arrears of the retiral benefits, due to the petitioner, along with the interest at the rate of 12% per annum, from the date when the amounts fell due till the date of its actual payment. Such payment shall be made within a period of twelve weeks from the date of receipt of a copy of this order."
(iv) L.L.Kuppusamy v. The Commissioner for Municipal Administration and others [2011 (1) CWC 18], wherein at paragraph Nos.9 and 11, it has been held as follows:
"9.The pension or gratuity being no longer a bounty, has to be disbursed on the date of retirement of a Government servant. The Hon'ble Apex Court in O.P.Gupta vs. Union of India, [1987] 4 SCC 328 crystallized the payment of interest for the delayed payment as a normal practice in the following words:
" 24. Normally, this Court, as a settled practice, has been making direction for payment of interest at 12 per cent on delayed payment of pension. There is no reason for us to depart from that practice in the facts of the present case."
11.It is not brought to the notice of this Court as to whether the Government by virtue of its powers under Rule 45-A(2) of the Tamil Nadu Pension Rules, 1978 has increased the rate of interest. However, taking note of the fact that the Hon'ble Apex Court has consistently granted interest at the rate of 12% and above, I am of the view that the petitioner shall be entitled to 12% interest.
For the foregoing reasons, the writ petition stands disposed with a direction against the respondents to pay interest at the rate of 12% per annum on the amount of terminal benefits due from the date of retirement of the petitioner, namely 31.3.1994, till the amount is paid. It is also made clear that if the amount has already been paid, the interest as stated has to be paid within eight weeks. Further, if any arrears are due, the arrears along with interest shall be paid within the above stipulated time. No costs."
11.Since common issues are involved in these two writ petitions, they were heard together and disposed of by this common order.
12.From the Judgments relied on by the learned counsel for the petitioners that it is seen that all retirement benefits must be paid to the employee on their date of retirement or within a reasonable period. If there is delay in payment, the employee is entitled to interest on the belated payment. The rate of interest granted by the Court varies from 10% to 18% p.a.
13.In the present case, the petitioners were not allowed to retire on the date of superannuation, due to pendency of the disciplinary proceedings. After the Tamil Nadu Administrative Tribunal set aside the charge memo on 11.07.2002, the respondents filed Writ Petitions, which were dismissed by this Court, on 29.08.2007 and 03.09.2007. After dismissal of the writ petitions, the petitioner in W.P.(MD) No.3288 of 2009, by the order dated 15.07.2008, was allowed to retire. The respondents have taken eleven months time for passing orders allowing the petitioner to retire. Therefore, the contention of the respondent that terminal benefits are paid within three months from the date of allowing him to retire and therefore, the petitioner is not entitled to interest is untenable and unsustainable. The petitioner is entitled to interest on the terminal benefits from the date of dismissal of writ petition. Similarly, the petitioner in W.P.(MD) No.3384 of 2009 did not initiate any legal proceedings, but as similarly placed employees were permitted to retire, the petitioner was also allowed to retire on 07.06.2007.
14.As the disciplinary proceedings were pending on the respective dates of retirement, they were not allowed to retire from service, but continued in service. They were paid subsistence allowance. Therefore, the petitioners cannot claim interest from the date of retirement. The petitioner in W.P.(MD) No.3288 of 2009 is entitled to interest from the date of dismissal of the writ petition, i.e., 29.08.2007, and the petitioner in W.P.(MD) No.3384 of 2009 is entitled to interest from the date of charges were dropped, namely, 31.05.2007, till the retirement benefits were paid at 12% p.a. to be paid within eight weeks from the date of receipt of a copy of this order. The claim of compensation cannot be agitated by the petitioners in the writ proceedings due to the facts and circumstances of the case.
15.In the result, the writ petitions are partly allowed. No costs.
To
1.The Secretary to Government, Home Department, Fort St. George, Chennai - 600 009.
2.The Superintendent of Police, Thanjavur.
3.The Superintendent of Police, Tirunelveli.