Parmanand Sharma vs B S N L And Ors on 28 September, 2016

[Cites 1, Cited by 0]

Rajasthan High Court - Jaipur

Parmanand Sharma vs B S N L And Ors on 28 September, 2016

1) The present writ petition arises from order dated 08/01/2015 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur in OA No.291/00126 of 2014. The Tribunal declined to grant any interest on delayed payment of pensionary dues.

2) The petitioner appearing in person submitted that a departmental proceeding was initiated against him while in service. The order of punishment for 'Censure' and recovery of Rs.211.20 was passed on 30/04/2011 after superannuation on 31/08/2009. There has been delay in payment of pension even after conclusion of the departmental proceeding and which has been paid as late as 03/05/2013 and therefore the petitioner is entitled to interest from the date of punishment till the date of payment @24%.

3) Counsel for the respondents has opposed the application submitting that in the earlier OA No.657/2012 also claim for interest was made which was however not granted and the order attained finality. There is no question of granting any interest now on the same grounds.

DBCWP No.14360/2015

Parmanand Sharma Vs. The Bharat Sanchar Nigam Ltd. & Ors. {3}

4) We have considered the submissions on behalf of the parties.

5) The petitioner superannuated on 31/08/2009 while holding the post of Chief Section Supervisor. Departmental proceedings were started while in service. Orders were therefore passed on 31/08/2009 for payment of provisional pension under the Central Civil Services (Pension) Rules, 1972 (hereinafter called the "Pension Rules") adopted by the respondents, with further direction that death-cum- retirement gratuity and commuted value of pension should be withheld till conclusion of the departmental proceedings according to the Pension Rules with the approval of the competent authority.

6) Punishment was ordered on 30/04/2011 imposing 'censure' and recovery of Rs.211.20. The 'master & servant' relationship between the petitioner and the respondents stood severed on 31/08/2009 and therefore the respondents rightly ordered that release of full pension, death-cum-retirement gratuity and commuted value of pension would be governed by the Pension Rules. Rule 33 (a) of the BSNL CONDUCT, DISCIPLINE AND APPEAL RULES, 2006 provides that DBCWP No.14360/2015 Parmanand Sharma Vs. The Bharat Sanchar Nigam Ltd. & Ors. {4} 'Censure' was a minor punishment to be imposed upon an employee. Rule 35 provides the procedure to be followed with regard to imposition of minor punishment on the employee. If the employer employee relationship stood severed on 31/08/2009 the imposition of punishment of 'Censure' thereafter on 30/04/2011 has necessarily to be held to be the outcome of complete non-application of mind vitiating the punishment itself, though severence of the order is possible.

7) Rule 8 of the Pension Rules provides that payment of pension was subject to future good conduct and Rule 9 provides for withholding or withdrawing pension. No fault can be found with the order dated 31/08/2009 to that extent. But the order worked itself out on 30/04/2011 when punishment came to be imposed.

8) Rule 8(1)(a) provides that the future good conduct was impliedly a condition for every grant of pension and its continuance. Sub-clause (b) provides that by an order in writing, the pension or part thereof could be withheld whether permanently or for a specified period if the pensioner was convicted of a DBCWP No.14360/2015 Parmanand Sharma Vs. The Bharat Sanchar Nigam Ltd. & Ors. {5} serious crime or found guilty of grave misconduct. The petitioner obviously does not fall in either category. Rule 8(3) requires that if the disciplinary authority comes to the conclusion that petitioner was prima- facie guilty of grave misconduct, another notice under Rule 8(1)(a) was required to be given to show cause why the action proposed be not taken. The pensioner has a right of appeal against such an order under Rule 8(5).

9) Rule 9 provides for withholding or withdrawing of pension for any pecuniary loss caused to the government in a departmental or judicial proceeding if the pensioner was found guilty of grave misconduct or negligence during the period of service. Rule 9(5) provides that where it is satisfied to withhold or withdraw pension, recovery of the pecuniary loss can be ordered from pension. These procedures have admittedly not been followed by the respondents.

10) The petitioner even after 30/04/2011 was not paid his death-cum-retirement gratuity and other pensionary benefits and approached the Tribunal in O.A. No.657/2012. It is true that no directions for payment of interest were made and it was observed DBCWP No.14360/2015 Parmanand Sharma Vs. The Bharat Sanchar Nigam Ltd. & Ors. {6} that the retirement benefits may be released after the petitioner deposits Rs.211.20 paise. Rule 71 further provides for recovery and adjustment of government dues and that it shall be the duty of the head of office to ascertain and assess government dues payable by the government servant due for retirement and such dues can be adjusted from the retirement gratuity payable. Notwithstanding the same, in shelter of the order of the Tribunal dated 17/01/2013, payment was released to the petitioner on 01/05/2013 of Rs.11,45,504/-. It shocks the conscience of the court with regard to the manner in which for a paltry sum of Rs.211.20 paise, and with regard to which the authorities had more than sufficient powers to make deductions and release the balance under their own orders dated 31/08/2009, the petitioner who is in the evening of his life and had limited resources of provisional pension only, has been made to run from pillar to post including having to move the Tribunal twice with his meager resources. Harassment to the petitioner in the facts of the case is writ large.

11) Justice cannot be denied on technicalities that on the first occasion the Tribunal did not grant DBCWP No.14360/2015 Parmanand Sharma Vs. The Bharat Sanchar Nigam Ltd. & Ors. {7} interest and the petitioner did not challenge the same but raised the claim only after depositing sum of Rs.211.20 paise. In the entirety of the facts and circumstances of the case, considering the conduct of the respondents, we are satisfied that the petitioner is entitled to interest from 01/09/2009 till 01/05/2013 on the arrears paid to him @18%.

12) The government is an impersonal body which functions through its officers. The government reposes powers in the officers in trust. The officer therefore is in the position of a trustee to protect and promote the interest of the government and therefore has a bounden duty to act in accordance with law. If the power is used contrary to the trust reposed in the officer and the government consequently suffers a loss, it has to be made good by the officer. The amount of interest on the dues paid shall be paid by the respondents to the petitioner within a maximum period of six weeks from the date of receipt and/or production of copy of this order. This amount will naturally have to be paid from the coffers of the respondents generated from the tax payers money. We therefore direct that after the payment is made, the DBCWP No.14360/2015 Parmanand Sharma Vs. The Bharat Sanchar Nigam Ltd. & Ors. {8} respondents shall hold enquiry in accordance with law, fix responsibility and recover the interest paid to the petitioner from the concerned due to whose fault interest has been awarded to the petitioner. This exercise must be concluded within six months thereafter.

                   13)        The writ petition is allowed.



                   (VIJAY KUMAR VYAS) J.                (NAVIN SINHA), CJ
Anil Goyal PS/38

Unlock Advanced Research with PRISMAI

Rajasthan High Court - Jaipur