Uttarakhand High Court
Smt Daya Pant vs Additional Director Lekha And Haqdari ... on 17 May, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 917 of 2014
Smt. Daya Pant ....Petitioner
Versus
Additional Director, Lekha & Haqdari & others
.... Respondents
Mr. C.D. Bahuguna, Senior Advocate assisted by Mr. A.K. Verma, Advocate for the petitioner
Mr. Vikas Pande, Brief Holder for the State..
Judgment Reserved - 05.05.2017
Date of Judgment - 17.05.2017
Hon'ble Rajiv Sharma,J.
The husband of the petitioner Sri Lalit Mohan Pant was initially posted as a Clerk in the Electricity Department of the State of Uttar Pradesh in the year 1975. He was promoted to the post of 'Office Superintendent- I' in the year 1996. The corporation called as Uttar Pradesh Power Corporation was constituted.
2. Petitioner's husband died after 05 days' of his superannuation on 05.09.2010. Petitioner applied for family pension. It was sanctioned on 07.09.2011.
3. Petitioner came to know in the month of February, 2012 that she was entitled for the amount of commutation, being a legal heir. Petitioner submitted 'Consolidated Pension Forms' on 08.02.2012 to the Electricity Distribution Circle, Ranikhet. The documents were duly verified and the authorities calculated and determined the amount of commutation to be paid to the legal heirs of the deceased employee as Rs.7,45,479.00/-. The information supplied by the Superintending Engineer, Electricity Distribution Circle, Ranikhet to the Deputy General Manager (Finance), Regional Accounts of Power Corporation, Kathgodam, Haldwani.
24. However, the fact of the matter is that the claim of the petitioner was rejected on 27.06.2013, on the ground that the application was not submitted for commutation of pension by the husband of the petitioner within one year of his death.
5. The rules for commutation of pension of Govt. employees were in existence since 1940 called U.P. Pension Commutation Rules, 1940. It was amended drastically in the year 1984 and the provisions were liberalized. In Rule 4 of the 'Commutation Rules of 1984', it was stipulated that the commutation, of admissible pension of a Govt. employee, would be permissible for being paid, by one time payment, to the extent not exceeding 1/3rd of the total pension. Later on it was increased to 40%.
6. In the year 1989, the State of Uttar Pradesh further liberalized the procedure for commutation of pension vide G.O. dated 28.07.1989. Earlier there were 18 forms, which were required to be filled-up and thereafter, as per Govt. order dated 28.07.1989, only one 'Consolidated Pension Form' was to be submitted.
7. In the year 1995, Statutory Rules, governing the pension were promulgated. According to these Rules, all the codal formalities were to be completed expeditiously. The State of Uttarakhand also framed the Rules called "Uttaranchal Pension Rules, 2003". According to these Rules, pension papers of the employee, who is likely to be retired in near future, have to be supplied by the Head of the Office/Head of the Department to the employee, eight months before the date of his/her retirement on superannuation. It is further provided in Rule 4 that the pension papers have to be duly filled in by such employee, six months 3 before the date of his/her retirement. It is further stipulated in Para 8 that it would be an obligation upon the Head of the Office/Head of the Department, to forward pension papers to the concerned authority, five months before the date of retirement of the employee. According to Para 13, on the date of retirement of the employee on superannuation, an order for payment of the amount of pension, gratuity and commutation is required to be sanctioned by the concerned authority.
8. According to the averments made in the counter affidavit, as per Rule 10(2) of the U.P. Pension Commutation (Ist Amendment) Rules, 1984 and Govt. order dated 03.06.1980, retired Govt. employee become entitled for commuted pension after he submits complete application to the Head of the Office/Head of the Department.
9. It is also averred categorically in the counter affidavit that as per Para 6(3) of the Govt. order dated 18.05.1983, for seeking commutation of pension, formal sanction is not necessary. The only requirement was that the employee has to submit the application for the commutation of pension prior to his retirement to the Head of the Department.
10. The husband of the petitioner has died 05 days' after his superannuation. It was the duty cast upon the department to prepare the papers of commutation of pension before the death of the petitioner's husband. The rules have now been liberalized, as noticed hereinabove. Petitioner had submitted the papers, which are duly verified by the concerned authority seeking commutation of pension, amounting to Rs.7,45,497.00/-. The ground taken, as 4 per impugned order dated 27.03.2013 is that the application was not submitted within a period of one year of the retirement. The plea taken by the respondents is unjust and oppressive. The respondents were required to deal with the matter in a compassionate manner, since, they were dealing with the case of a widow. The widow has done everything possible by submitting the application for commutation of pension. All the facts were duly verified by the concerned authority.
11. The procedure for submission of application for commutation, pension etc. have been liberalized in the erstwhile State of Uttar Pradesh on the basis of instructions, which are also applicable to the State of Uttarakhand. The State has framed its own Pension Rules in the year 2003. It has come, as noticed hereinabove, in the reply, that no separate order was necessary, as per instructions issued in the year 1983.
12. The action of the respondents to deny the commutation of pension to the widow/petitioner, by taking into consideration a hyper-technical plea that the application was not submitted within one year by her husband, is illegal, arbitrary, unreasonable and capricious, thus, violative of Articles 14 and 16 of the Constitution of India. The petitioner could not visualize that the husband would die five days after his superannuation. She was supposed to submit the application only after the death of her husband. She has submitted all the documents and on that basis commutation of pension was to be paid. It is a fit case where principle of Lex non cogit ad impossibilia would be attracted i.e. the law does not force impossibilities. The petitioner being a legal heir is legally entitled to get the amount of commutation of pension from the 5 respondent department. The authorities were required to complete the procedure in a time bound manner, as prescribed under the Rules. The Head of the Department is required to ensure that the employee gets the pensionary/retrial benefits on the date of his retirement.
13. The pension is the property within a meaning of Article 300-A of the Constitution of India. No person can be deprived of the same, save in accordance with law.
14. Accordingly, the writ petition is allowed. The impugned Annexure No.1 dated 27.06.2013 is quashed and set-aside. Respondents are directed to release the amount of commutation to the petitioner, already determined, within a period of six weeks from the date of production of a certified copy of this order with interest @18% per annum w.e.f. 31.08.2010.
15. Pending application, if any, stands disposed of accordingly.
Date: 17.05.2017 (Rajiv Sharma, J.) NISHANT