Allahabad High Court
Dr. Bansh Narain Singh vs State Of U.P. Through Prin. Secy. ... on 20 June, 2018
Equivalent citations: AIRONLINE 2018 ALL 2799
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED WRIT PETITION NO. 145 (SB)2014 Dr. Bansh Narain Singh .......Petitioner Versus State of U.P. and others ....Respondents === Hon'ble Dr. Devendra Kumar Arora , J.
Hon'ble Virendra Kumar - II, J.
Heard Mr. S.M. Raikwad, learned Counsel for Petitioner and Mr. Satyanshu Ojha, learned Counsel for respondent nos.2 to 6.
"In case of an employee retiring after having rendered the services, it is expected that all the payments of retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payment could not be made on the date of retirement"
The afore-stated mandate of the Supreme Court rendered in the matter of Vijay L. Mehrotra Vs. State of U.P. & others; (2001) 9 SCC 687 has been observed by the authorities of the University in the present case in its blatant breach.
The essential facts to demonstrate the above-stated callousness on the part of the University Authorities in making payment of retiral dues to the petitioner are as under:
Dr Bansh Narain Singh, a retired Professor of Narendra Dev University of Agriculture and Technology, Faizabad has filed the instant writ petition for a Mandamus to the opposite party nos. 2 to 6, for making regular pension as and when the same falls due in each month, arrears of salary as also other post-retiral dues including arrears of pension, gratuity, remaining provident fund, leave encasement etc. to the petitioner, as admissible to him, alongwith 18% interest thereupon for the period when the same became due till its actual payment. The petitioner inter-alia has also sought for quashing the communication dated 26.10.2013 issued by the opp. Party no. 6 in response to the representation dated 30.09.2013 preferred by the petitioner before the opp. Party nos.2 to 5.
In the year 1986, the petitioner was selected as Production Economist/Associate Professor in the University through direct recruitment process conducted by the University in accordance with law by issuing public advertisement no. 3/1985. The petitioner joined on the said post of Production Economist/Associate Professor in the Directorate of Agriculture Experiment Station of the University on 13.02.1986 pursuant to the appointment order dated 12.02.1986 issued by the University.
During his engagement with the University, the petitioner was promoted as Professor (Agriculture Economics) after he was found eligible by the University w.e.f. 12.02.1996 vide order dated 06.09.1996 issued by the University. From 1978 to 2009, the petitioner served the University for nearly 32 years in whatsoever post/capacity, he was asked by the University. Ultimately, the petitioner attained the age of superannuation and finally retired from the service of the University on 10.02.2009. However, he was allowed to continue to work as such by giving academic session benefit till 30.06.2009.
Learned Counsel for the petitioner has submitted that the petitioner was duly accorded pay fixation etc. in accordance with pay scale applicable to the post to which he was appointed/ promoted under the orders of the competent authority from time to time. There has never been any role whatsoever of the petitioner towards such pay fixation at any level. There is no allegation of any sort of fraud or misrepresentation on the part of the petitioner in that behalf. Since there was correct pay fixation each time, there was no occasion for the petitioner to feel aggrieved in that regard.
It is said that an audit objection with respect to pay fixation of the petitioner was raised during audit exercise in the year 2002-03. The petitioner was served with the copy of the said audit objection vide letter dated 14.01.2003 issued by the Director. A perusal of audit objections shows that audit team has raised two objections. Firstly, the pay protection was wrongly granted to the petitioner at the time of initial joining as Subject Matter Specialist (Farm Management)with effect from 01.03.1978 vide order dated. 15.06.1978 and secondly there was wrong pay fixation in the revised pay-scale of the post of Production Economist/ Associate Professor with effect from 01.01.1986 vide order dated 12.09.1989, which resulted in excess payment of Rs. 28,120/- due to former wrong fixation and further excess payment of Rs. 99,540/- due to latter wrong payment. The total excess payment was reported to the tune of Rs. 1,27,660/- in the audit report.
The petitioner submitted his response to the said audit objection before the Director, Agriculture Experiment Station of the University, who in turn, forwarded it to the Director, Administration & Monitoring of the University vide letter dated 05.11.2004.
In his reply, the petitioner indicated that the objections so raised in the audit objection are unfounded and baseless. He clarified that in pursuance to order dated 29.06.2006, recovery to the tune of Rs. 1,67,754/- has already been made from the arrears of salary (from February, 2009 to June, 2009) of the petitioner by the University. Vide order dated 12.08.2010, 90% amount of the G.P.F. of the petitioner has been paid on 01.09.2010, without any payment of interest thereon. Remaining G.P.F. amount i.e. Rs. 1,18,575/- is lying with the University, arbitrarily. Apart from that after recovery in pursuance to order dated 29.06.2006 from the salary of the petitioner, still arrear of salary to the tune of Rs. 74,000/- (approx) is due and has not been paid.
It has been argued that the the petitioner is not only entitled for payment of such arrear of salary which is legally due but is also entitled for interest on account of delayed payment. It is submitted that petitioner is lawfully entitled for payment of regular pension, gratuity, arrears of salary alongwith interest thereon, however due to highhandedness and arbitrariness of the University, the same is stuck up in red tape.
Lastly, the petitioner has urged that the audit objections have no legs to stand,for the reason that even if it is assumed that wrong fixation was done to the petitioner, the excess salary paid due to such wrong fixation has already been recovered from the petitioner. Non payment of legally admissible amount is causing serious problem for the petitioner, who is not only at the fag end of his life but is in dire need of money for his survival/sustenance keeping in view the medical expenses which invariably suck a chunk of amount in this era of old age.
In contrast, the Counsel for the University has stated that the petitioner initially joined on the post of Subject Matter Specialist (Farm Management) in the University on 01.03.1978 in the pay scale of Rs. 550-1200 and earlier the petitioner had worked as per fixed salary of Rs.700/-. The pay scale of Rs 550 -1200 was revised to Rs 850-1720 from 01.07.1979. Therefore, under the provisions of Government Order, the salary of the petitioner was fixed as Rs.1200/- from 01.07.1979.
According to the Respondent, the petitioner was appointed on the post of Production Economist/Associate Professor in the University on 12.02.1986 in the pay scale of Rs. 1200-1900 and at that time the petitioner was drawing gross salary of Rs. 1540 in the pay scale of Rs.850-1750 and as a result of which, on the basis of recommendation of Finance Controller, the gross salary of the petitioner was fixed as Rs. 1540/- in pay scale of Rs. 1200-1900 on 13.02.1986. As the petitioner was appointed on the post of Production Economist/Associate Professor after 01.01.1986, therefore in view of Government Order dated 09.12.1988, the petitioner was not entitled for getting the benefit of merit promotion. In these circumstances, vide order dated 11.06.2010 the recovery was made from 01.01.1996 to March 2009 from the salary of the petitioner.
It has been urged by the University's Counsel that against the pay fixation of the petitioner, the Audit department raised an objection and till the disposal of the said objection, the post-retiral dues of the petitioner could not be made and the information in this respect have also been given to the petitioner vide letter dated 26.09.2013.
Having heard learned Counsel for the parties and examining the material on record, we are of the view that there is no dispute to the fact that the petitioner has never represented wrong facts or manipulated the record or otherwise in any manner he is responsible for the wrong fixation of salary. It has been averred in explicit words in the counter affidavit that merit promotion granted to the petitoner was cancelled and recovery was also made from the salary of the petitioner. It has not been disputed by the Univesity that against the audit objections, petitioner has already submitted his reply and recovery has also been made from the salary, there is no justification in not paying the remaining terminal benefits merely on account of non disposal of the audit objection. It is the obligation of the University to ensure that the audit objections are redressed and there is no role of the petitioner in disposal of the audit objections and it is wrong to say that the petitioner himself is responsible for delay in disposal of the audit objections.
In the case of Gorakhpur University vs. Dr. Shitla Prasad Nagendra and others, reported in 2001 (92) SCSLJ 247, the post-retiral dues of the Professor of the University had been withheld on the ground that the Professor has retained the University's accommodation after his retirement. The Apex Court has held that pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. The Apex Court has held as follows:
"We have carefully considered the submission on behalf of the respective parties before us. The earlier decision pertaining to this very university, reported in S.N. Mathur is that of a Division Bench, rendered after considering the principles laid down and also placing reliance upon the decisions of this Court reported in R. Kapur which in turn, relied upon earlier decisions in State of Kerala Vs. M. Padmanabhan Nair and Som Prakash. This Court has been repeatedly emphasizing the position that pension and gratuity are not longer matters of any bounty to be distributed by the Government bur are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be waived seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding to withhold disbursement of the terminal benefits. Such is the position with reference to amounts due towards provident fund, which is rendered immune from attachment and deduction or adjustment as against any other dues from the employee."
In the case of State of Kerala Vs. M. Padmanabhan Nair and Som Prakash, reported in (1985) 1 SCC 429, the Apex Court observed that prompt payment of retirement benefits is the duty of the Government and any failure in that direction will entail the Government liable to pay penal interest to the government servant. In that case, the Supreme Court, finding that there was delay in disbursement of the terminal benefits, directed the respondents therein to disburse the pensionary benefits with interest at the rate of 6% per annum.
In the matter of State of Jharkhand v. Jitendra Kumar Shrivastava and another;(2013) 12 SCC 210 , it has been held by their Lordships of the Supreme Court that gratuity and pension are not bounty and it is thus a hard earned benefit which accrues to an employee and is in the nature of property. This right to property cannot be taken away without the due process of law as per the provisions of Article 300-A of the Constitution of India.
This Court in the case of Ram Sewak Gupta Versus State of U.P. & Ors. (decided on 1.12.2014) while considering the significance of audit objection, observed as under:-
"It is well established that audit report cannot be used as substantive evidence of the genuineness or bonafide nature of the transactions referred to in the accounts. As has been held by this Court in the case of Dilip Singh Rana vs State of U.P. reported in 1993 (7) SLR 706, audit is only official examination of the accounts in order to make sure that the accounts have been properly maintained according to prescribed mode and further that audit report is a statement of facts pertaining to the maintenance of accounts coupled with the opinion of the auditor and thus it can only give rise to reasonable suspicion of commission of a wrong."
In a very recently delivered judgment in the matter of State of Uttar Pradesh & others Vs. Dhirendra Pal Singh;(2017) 1 SCC 49, the Hon"ble Supreme Court following the principle of law laid down in State of Kerala and others Vs. M. Padmanabhan Nair; (1985) 1 SCC 429, held that culpable delay in disbursement of payment of gratuity must be visited with penalty of payment of interest.
Applying the ratio laid down by the Honourable Supreme Court in the above cases to the facts of this case, there is a delay of around 8 years in settling the terminal benefits payable to the petitioner. Such a delay is attributable on the part of the respondents. The audit objection was raised way back in the year 2002, which was communicated to the petitioner vide letter dated 14.1.2003 to which petitioner had already tendered reply. The petitioner attained the age of superannuation way back in the year 2009 and since then eight long years have elapsed but still it is said that the terminal benefits and pension could not be paid due to pendency of audit objection. It is contended by the respondents that the delay has occurred due to an audit objection. Such a contention on the part of the respondents cannot be countenanced. This Court is of the view that the delay on the part of the respondents in settling the withheld portion of the terminal benefit and pension payable to the petitioner for about 9 years purportedly due to audit objection cannot be accepted that too when the excess amount has already been recovered from the dues of the petitioner.
The present case is a clear example of inexcusable department delay. Respondents contend that letter with regard to audit objection was sent to the petitioner. It is not the stand of the respondents that the petitioner had not given any information Even if it is assumed that such letter was sent, this cannot be an excuse for lethargy of the department because rules/instructions provide for initiation of process much before retirement. The exercise which was to be completed much before retirement was in fact started long after petitioner's retirement.
Considering the facts in its entirety, the University authorities are directed to get the audit objection corrected/redressed within a period of six weeks from the date of production of certified copy of the said order. It is further provided that the petitioner shall be paid all his admissible dues/retiral benefits including arrears of salary and pension, leave encashment etcetra within a period of three months. The petitioner shall be entitled for 9% interest on account of delay in payment of admissible dues.
Subject to the aforesaid observations and directions, the writ petition stands disposed of finally.
Order Date: 20 June, 2018 MH/-