Allahabad High Court
Ashok Kumar Rana S/O Late Sh. Ram Saran ... vs State Of U.P. Through Chief Secretary, ... on 14 September, 2007
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri Sudhir Kumar, learned Counsel for the petitioner and Sri M.R. Jaiswal. learned Standing Counsel representing the respondents.
2. Affidavits have been exchanged between the parties and with the consent of the learned Counsel for the parties, the writ petition is being disposed of at the admission stage itself.
3. The petitioner filed writ petition under Article 32 of the Constitution of India before the Apex Court claiming arrears of salary and pension alongwith interest at the rate of 12% per annum since the date of his retirement i.e. 31.12.1997. The Apex Court disposed of the writ petition filed under Article 32 of the Constitution of India vide order dated 16.9.2005, by which order the writ petition filed by the petitioner was transmitted to this Court to be registered as writ petition under Article 226 of the Constitution of India. This writ petition has been registered accordingly. The Apex Court, while disposing of the writ petition, desired the High Court to dispose of the writ petition within six months but in view of the fact that the State could file its supplementary counter affidavit dated 30.7.2007 only after passing of the order by this Court on 11.7.2007, directing the filing of the supplementary counter affidavit by 31.7.2007 failing which Chief Medical Officer was directed to appear in person and after filing of the supplementary counter affidavit, time was allowed to the petitioner to file supplementary rejoinder affidavit, which was filed by the petitioner on 1.9.2007, the writ petition could be heard on 7.9.2007 and is being disposed of by this order.
4. Brief facts necessary for deciding the writ petition are that the petitioner joined the Health Department of the State of U.P. On 20.6.1964 as Food Inspector at district Meerut and was regularised w.e.f. 4.4.1975. In the seniority list issued by the Department from time to time, the petitioner's name was shown along with his posting. During the tenure of service, the petitioner worked in different districts of State of U.P. Including Meerut. Ghaziabad, Budaun, Sitapur. Moradabad and Pilibhit. The Chief Medical Officer. Pilibhit passed an order on 9.12.1997. intimating that petitioner after attaining the age of superannuation shall retire on 31.12.1997. The petitioner was relieved on 31.12.1997 on attaining the age of superannuation. The petitioner after retirement represented for payment of his balance salary and pension. He claimed to have written a letter to the Chief Medical Officer in the year 1998. The Chief Medical Officer wrote a letter dated 9.9.2002 to the petitioner that he should complete his service book and submit combined photographs of his wife so that pension papers could be prepared.
5. The petitioner's case is that on 18.10.2002, he presented himself before the Chief Medical Officer and as per direction again completed the formalities for retiral benefits. The Additional Director Pension vide letter dated 18.9.2002 wrote to the Chief Medical Officer, Pilibhit for his comments with regard to non payment of pension to the petitioner. The petitioner's wife wrote a latter to the Chief Medical Officer, Pilibhit on 5.10.2003, requesting for taking steps for payment of pensioner/benefits to the petitioner. The Additional Director, Medical Health and Family Welfare on 22.2.2003 directed the Chief Medical Officer, Pilibhit to ensure that petitioner gets all his retiral benefits without any further delay. The Chief Medical Officer, Pilibhit wrote to the Chief Medical Officer, Meerut on 25.2.2003 asking documents available in office for preparation of service book. Chief Medical Officer, Meerut on 24.5.2003 wrote to Chief Medical Officer Pilibhit that since long time has passed, the pensionery benefits can be paid in accordance with Government Order dated 28.7.1989. When no progress was made with regard to payment of pension, the writ petition was filed by the petitioner on 29.8.2005 under Article 32 of the Constitution of India before the Apex Court.
6. A counter affidavit came to be filed in this writ petition sworn on 2.3.2006 by one Dr. Desh Bandhu, District Administrative Officer, Pilibhit. In the counter affidavit, it has been admitted that the petitioner retired w.e.f. 31.12.1997 from district Pilibhit. It has been mentioned that prior to retirement, the petitioner gave a certificate showing his date of birth as 1.1.1941, which was got verified and Principal of the Government Inter College, Hastinapur, Meerut informed that date of birth of petitioner was 1.1.1940. The petitioner was retired on 31.12.1997 treating his date of birth as 1.1.1940. It has been stated in the counter affidavit that service record of the petitioner has not yet been received. It has been further stated that although that petitioner stated that he was first appointed at Meerut but from perusal of the service book of the petitioner, it is clear that the seal which was there on the first page, is not on accordance with the seal of that time and signature of Dr. S.N. Dutta are not similar to signatures of Dr. Dutta available in the records. It has been stated that it is open for the petitioner to approach the U.P. Public Service Tribunal with regard to his grievances. It has been further stated that no documents from the office of the Chief Medical Officer, Sitapur has been received. On 29.12.2004, the petitioner was transferred from Moradabad and jointed at Pilibhit. The letters of the Chief Medical Officer, Meerut and Chief Medical Officer, Moradabad dated 15.12.1997 and 11.12.1997 have been referred to. It has been stated in paragraph 6 of the counter affidavit that it appears that the petitioner has served in the department on the basis of forged appointment letter and his services records are not available. It has been mentioned that letters written by Chief Medical Officer, Pilibhit for obtaining the service record of the petitioner, has not yet been received hence till the service record of the petitioner are completed, it is not possible to pay pension to the petitioner. It has been stated that Chief Medical Officer. Moradabad has informed that entries in the service book of the petitioner are forged. The Chief Medical Officer, Sitapur has informed that no person with the name of A.K. Rana has ever worked in district Sitapur as Food Inspector. Copy of the letter dated 30.7.1997 written by Chief Medical Officer, Sitapur to Chief Medical Officer, Pilibhit has been filed as Annexure C.A. 6, which mentions that no person with the name of A.K. Rana has ever worked in the district as Food Inspector hence, it is not possible to make available his service record. It has been stated that although letter was received from Additional Director Medical Health but Chief Medical Officer of various districts have not provided the service records of the petitioner rather Chief Medical Officer, Sitapur has informed that no such official had worked in the district hence, it is not justifiable to make payment of pension.
7. In reply to the counter affidavit, the petitioner filed rejoinder affidavit giving details of his all postings from time to time. The petitioner claims his date of birth as 1.1.1940 and stated that on that basis he worked up to 31.12.1997. The petitioner has referred to seniority list dated 13.6.1992 in which his name has been mentioned. In annexure-4 to the rejoinder affidavit, the petitioner has given details of his appointment order and all his posting from 20.6.1964 till retirement i.e. 31.12.1997.
8. The writ petition was heard and learned Standing Counsel made a prayer on 10.5.2007 to grant time to file supplementary counter affidavit with regard to several documents filed by the petitioner in the rejoinder affidavit. This Court on 10.5.2007 allowed time to the learned Standing Counsel to file supplementary counter affidavit. A supplementary counter affidavit has been filed by the learned Standing Counsel in which a letter dated 19.7.2007 of Chief Medical Officer, Meerut has been annexed as Annexure-1 stating that service of the petitioner from 20.6.1964 to 20.6.1965 cannot be verified since records are not available with regard to his posting at Primary Health Centre. The services of the petitioner has been verified from May 1969 to December, 1970 as payment of salary has been made to him for the aforesaid period. The Chief Medical Officer Moradabad wrote a letter on 3.7.2007 verifying the services of the petitioner from 15.10.1970 to 2.7.1975, 6.6.1982 to 4.10.1984 and from 5.10.1984 to 31.7.1991. The Chief Medical Officer, Budaun also vide letter dated 13.7.2007 has verified the services of the petitioner from August, 1978 to January, 1980, Chief Medical Officer, Sitapur vide his letter dated 17.7.2007 has verified the services of the petitioner from 7.7.1975 to 30.9.1977. Chief Medical Officer, Pilibhit vide letter dated 24.7.2007, forwarded the pension papers of the petitioner to Director Pension Directorate, Indira Bhavan, Lucknow requesting for early disposal of the pension matter of the petitioner, a copy of which has been filed as Annexure-8 to the supplementary counter affidavit.
9. Learned Counsel for the petitioner in support of the writ petition submitted that petitioner having been retired by respondents themselves w.e.f. 31.12.1997, was entitled for grant of pension and other retiral dues and non payment of retiral benefits are due to inaction of the respondents, which shows gross negligence and callousness on the part of the respondents in finalising the pension. Learned Counsel for the petitioner submits that in the counter affidavit filed to me writ petition, even appointment of the petitioner was sought to be doubted which is again an example of irresponsible manner in which the petitioner's claim has been dealt. Learned Counsel for the petitioner further submits that the petitioner has also not been paid salary for 67 months from August, 1991 to December, 1997 excluding ten months' salary which was received by the petitioner during that period. Learned Counsel for the petitioner submits that the respondents are liable to pay to the petitioner the entire retiral benefits including arrears of salary of 67 months with interest. He further submits that petitioner is also entitled for compensation and damages from the respondents due to nonpayment of his legitimate dues.
10. Learned Standing Counsel appearing for the respondents submitted that papers with regard to petitioner's claim of pension has already been forwarded on 24.7.2007 to the Director of Pension Directorate but he submits that petitioner is not entitled for any interest. Learned Standing Counsel submits that the petitioner had submitted a certificate of his date of birth on 1.12.1997, showing his date of birth as 1.1.1941. The certificate was verified and Principal of the institution namely Government Inter College, Hastinapur, Meerut vide letter dated 8.12.1997 informed the petitioner's date of birth as 1.1.1940 hence he was retired on 31.12.1997, Learned Standing Counsel submits that in view of the above fact, it is petitioner who is to be blamed for delay in payment of pension as he has wrongly submitted the certificate claiming his date of birth as 1.1.1941, learned Standing Counsel subnets that earlier papers could not be prepared because service record of the petitioner could not be completed and verified from various districts where he was posted.
11. Learned Counsel for the parties relied on various judgments of this Court and also of the Apex Court in support of their respective submissions, which would be referred to hereinafter.
12. I have considered the submissions and perused the record.
13. As noted above, when the counter affidavit was filed in the writ petition, respondents submitted that record of service of the petitioner could not be verified. Letter dated 30.7.1997 of Chief Medical Officer, Sitapur was filed as Annexure-C.A. 6 to the counter affidavit in which it has been stated that no officer with the name of A.K. Rana was posted in district Sitapur. In paragraph 6 of the counter affidavit, sworn by one Dr. Deshbandhu, it has been even suggested that the petitioner had served the department on the basis of forged appointment order and his service record is not available. When the petitioner filed rejoinder affidavit annexing therewith various documents including seniority list, mentioning name and details of all his postings at various places from 20.6.1964 till 31.12.1997, the State took time to file supplementary counter affidavit. In supplementary counter affidavit, the respondents have come up with the case that Chief Medical Officer, Meerut, Chief Medical Officer, Moradabad, Chief Medical Officer, Budaun, Chief Medical Officer, Sitapur has verified the service of the petitioner for different periods in their districts. Now the respondents have also annexed the letter dated 24.7.2007 by which the pension papers of the petitioner have been forwarded to the Director, Directorate of Pension. This Court on 11.7.2007, passed an order directing that in case supplementary counter affidavit was not filed before 31.7.2007, the Chief Medical Officer should appear in person. After this order, the Chief Medical Officer, Pilibhit appears to have expedited the matter and obtained verification of the service records of the petitioner.
14. From the materials brought on record specially the fact brought on record by means of the supplementary counter affidavit, now it is not the case of the respondents that the petitioner had not served at different places as claimed by him. The retirement of the petitioner w.e.f. 31.12.1997 vide order of the Chief Medical Officer dated 9.12.1997 has not been denied. Thus, now there is no dispute with regard to entitlement of the petitioner to receive his pension after his retirement on 31.12.1997. The respondents themselves have now forwarded the pension papers of the petitioner on 24.7.2007 to the Director, Directorate of Pension. All these facts of this case disclose the callous and irresponsible manner in which the claim of the petitioner regarding retiral benefits have been dealt with by the respondents. A person who has served for more than 33 years in the Department, his retiral benefit has been dealt with in a manner which tells a sorry tales about the functioning of the office of the Chief Medical Officer and the entire Health Department of the State. The entitlement to receive pension has been held to be right of a Government servant. It is not a bounty to be paid by the Government. It is in lieu of valuable services rendered by a Government servant in a department. The Apex Court in the case of D.S. Nakara v. Union of India has laid down following:
Pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion.
In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, an escape from underserved want was recognized and as a first step pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The quid pro quo was that when the employee was physically and mentally alert, he rendered unto master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement leceives the same amount.
15. The payment of pension is regulated by statutory regulations and the Government Orders issued from time to time. The State of U.P. had issued a Government Order dated 13.12.1977 providing for a time schedule for finalising the pension and gratuity. According to the said Government Order, process for preparing the documents for pension has to be begun 16 months before the retirement. According to the said Government Order, an order for payment of gratuity and pension is required to be issued even before a person attains the superannuation so that from the next month of retirement, he starts getting his pension. The process of pension has been finalised by subsequent Government Order, the said process has been modified and simplified to enable the Government servant to receive his pension without any difficulty. Relevant Government Orders deal with all contingencies including a case where service book of an employee is lost. The Chief Medical Officer, Meerut vide his letter dated 24.5.2003 requested the Chief Medical Officer, Pilibhit for making payment of pension to the petitioner in accordance with the Government Order dated 28.7.198G, which provides for payment of pension in case service book is lost.
16. The main ground which has been sought to be urged on behalf of the respondents for non-payment of pension is non-verification of service of the petitioner from various districts where he was posted from time to time. From the materials brought on record, it is clear that all such verifications have been obtained by the Chief Medical Officer, Pilibhit within one month i.e. July, 2007, when matter has been raised and agitated by the petitioner and order was passed by this Court directing the Chief Medical Officer to appear in person in case the supplementary counter affidavit was not filed. The verification which has been obtained in July, 2007, could have been very well obtained even earlier had appropriate steps been taken with seriousness.
17. In view of the foregoing discussions, the entitlement of the petitioner for receiving the pension, gratuity and other benefits after his retirement is not being denied. Although the records, which nave been forwarded by the respondents vide letter dated 24.7.2007, entire service period of the petitioner has not been verified and only after verification of part service, the papers with regard to pension have been forwarded. It is not the case of the respondents that there was any break in petitioner's service or there is any period which can be held not to be eligible for pension. Neither any such order has been brought on record nor referred to nor mentioned from which any period of petitioner's service can be said to be unqualified for pension. The mere fact that respondents have been unable to verify certain period of working of the petitioner due to non availability of the record, should not prejudice the entitlement of the petitioner to receive pension for the entire period in facts of the present case. In this view of the matter, the petitioner has made out a case for commanding the respondents to treat the entire period of service of the petitioner i.e. from 20.6.1964 to 31.12.1997 eligible for pension and other retiral benefits.
18. The next submission pressed by Learned Counsel for the petitioner is for payment of interest, damages and compensation from the respondents due to his sufferings for all these periods on account of non payment of pension.
19. It is well settled that in the event of non payment of retiral benefits to an employee on account of delay caused by the State authorities, employee is entitled for payment of retiral benefits with penal interest. The Apex Court in the case of State of Kerala and Ors. v. M. Padmanabhan Nair reported in 1985 (1) SLR 750, has laid down following:
Since the date of retirement of every Government Servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed atleast a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following months. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over emphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.
20. The learned Standing Counsel has submitted that on account of wrong certificate of date of birth given by the petitioner vide his letter dated 1.12,1997 in which his date of birth was mentioned as 1.1.1941, it is the petitioner who delayed the process. The letter of the petitioner dated 1.12.1997 has been filed as Annexure-C.A.3 to the counter affidavit. The respondent's case is that they got the date of birth verified from the Principal Government inter College. Meerut, who vide letter dated 8.12.1997 wrote that date of birth of the petitioner is 1.1.1940 and acting on that basis an order of retirement was passed on 9 12.1997 retiring the petitioner w.e.f. 31.12.1997. Thus, the respondents treated the date of birth of the petitioner as 1.1.1940 and they have retired the petitioner treating the said date of birth. The said issue is not relevant. The respondents cannot take benefit of the said fact.
21. The issue is as to why after retirement of the petitioner, his pension papers were not forwarded for retiral benefits for about nine and half years. The petitioner has also referred to and brought on record the letter of the Chief Medical Officer, Pilibhit dated 9.9.2002 by which he was asked to appear for completing his service book end submit combined photographs in response to which the petitioner again gave photographs etc. on 18.10.2002. The petitioner's case throughout has been that he applied for pension in January, 1998 but till date he has not been paid his pension. The delay on the part of the respondents in verifying the service record or getting the service book prepared, cannot be imputed on the petitioner. It is not the case of the respondents that petitioner was not available or did not co-operate in preparation of pension papers. Till the counter affidavit filed by the respondents in writ petition on 2.3.2006, the respondents were stating that petitioner's service record are not verified and even stand was taken that the petitioner served in the Department on the basis of forged appointment letter which fact was specifically mentioned by Dr. Desh Bandhu, Administrative Officer, Pilibhit, which shows the callous and irresponsible attitude of the respondents in dealing with the petitioner's claim of pension. Instead of making efforts for verification and completion of the service record, they acted in unreasonably manner. In the present case, the delay has to be imputed on the part of the respondents and the petitioner is fully entitled for grant of interest on the payment of pension.
22. The Standing Counsel has placed reliance on the judgment of the Apex Court in the case of Baij Nath Gupta v. State of Bihar and Ors. , in which Apex Court directed the appellant to file a petition before the Government of Bihar, which was directed to be decided as to whether the pension was not determined on account of laches on the part of the appellant or not. The present is not a case where the respondents are required to be examine the part of the delay. All the facts as brought on record, dearly point out the delay, carelessness and negligence on the part of the respondents hence, the matter is not to be remitted for examination. The said judgment does not help the respondents. The learned Standing Counsel also placed reliance in the case of Samal Chand Tiwari v. State of U.P. and Ors. reported in 2006 (2) Additional District Judge 176 (All). In that case also this Court allowed the writ petition holding that said employee was entitled for interest at the rate of 6%.
23. Learned Counsel for the petitioner in support of his submission that petitioner is entitled for interest, relied on judgment of the Apex Court in the case of Union of India v. Justice S.S. Sandhawalla (Retd.) reported in {1994) 1 UPLBEC 192, Rajesh Kumar Saxena v. Bharat Sanchal Nigam Ltd. and Ors. reported in (2007) 1 UPLBEC 723.
24. As noted above, the Apex Court in State of State of Kerala and Ors. v. M. Padmanabhan Nair (supra) has laid down that liability to pay penal interest has to be fastened on the authorities who are responsible to finalise the payment of pension and gratuity. In the facts of the present case, ends of justice will be served in directing the respondents to make payment of pension and gratuity along with interest at the rate of 9% per annum. It is however, to be emphasised that in the facts of the present case, the Principal Secretary, Health and Family Welfare may recover the amount of interest which is to be paid to the petitioner, from the officials of the department due to whose laches and negligence, the pension of the petitioner could not be finalised till date. Principal Secretary. Medical Health may look into the matter and take appropriate steps for fixing the responsibility and liability for payment of interest and such interest may be recovered from siring officials. As noted above, the role of the Officer, who filed counter affidavit namely; Dr. Desh Bandhu as well as Chief Medical Officer. Sitapur, who sent letter dated 30.7.1997 to the Chief Medical Officer, Pilibhit that no officer with the name of A.K. Rana has ever worked in district Sitapur, be specially looked into.
25. The one more submission of the petitioner remains to be examined i.e. claim of the petitioner for payment of salary of 67 months; from August 1991 to December, 1997. In the counter affidavit, it has been mentioned that the attendance of the petitioner from February, 1995 to 31.7.1995 could not be verified and it has also been stated that fictitious verification letter has been submitted by the petitioner.
26. The payment of salary for 67 months although has been Claimed but there is no material in the writ petition on the basis of which the entitlement or otherwise can be determined by this Court in this writ petition. However, the said claim of the petitioner needs to be examined afresh by Chief Medical Officer, Pilibhit from where the petitioner retired. The petitioner is given an opportunity to submit a detailed representation claiming details of his payment along with relevant materials within one month from today and the said representation of the petitioner be decided expeditiously preferably within a period of three months thereafter. It is made clear that with regard to entitlement of 67 months' salary of the petitioner, it is for the Chief Medical Officer to consider all relevant aspects of the matter and take appropriate decision in accordance with law.
27. In view of the foregoing discussions, the writ petition is allowed to the extent as indicated below:
(i) The petitioner is held entitled for payment of pension, gratuity and other retiral benefits w.e.f, 1.1.1998 alongwith interest at the rate of 9% per annum. The pension of the petitioner be calculated on the basis of entire period of service of the petitioner w.e.f. 20.6.1964 to 31.12.1997.
(ii) Director, Pension Directorate to whom the pension papers nave been forwarded on 24.7.2007 by Chief Medical Officer. Pilibhit may finalise the claim of pension and issue necessary orders within a period of two months from the date of production of a certified copy of this order.
(iii) On a representation being made by the petitioner with regard to entitlement of 67 months' salary, due since before retirement, be considered and decided by the Chief Medical Officer, Pilibhit expeditiously within a period of three months from the date of production of a certified copy of this order.
(iv) The petitioner is also held entitled for cost to be paid by Chief Medical Officer, Pilibhit which is quantified as Rs. 10,000/-.
28. A copy of this order be also sent to Principal Secretary, Health and Family Welfare for taking appropriate action as indicated above.