Karnataka High Court
Sri F J M Crasta vs The State Of Karnataka on 1 September, 2017
Equivalent citations: 2017 (4) AKR 666
Author: B.Veerappa
Bench: B. Veerappa
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF SEPTEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.22931 OF 2017 (S-R)
BETWEEN:
SRI.F.J.M.CRASTA,
S/O SUNDAR CHAWAN,
AGE: 73 YEARS,
OCC: RETIRED PROFESSOR IN PHYSICS,
ST.ALOYSIUS COLLEGE,
MANGALORE,
R/O AVE MARIA, ROHAN LAYOUT,
JEPPU MAJILA,
MANGALORE-575 002.
... PETITIONER
(BY SRI.RAJASHEKAR HEGDE, ADVOCATE FOR
SRI.CHANDRAKANTH R.GOULAY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY,
EDUCATION DEPARTMENT,
M.S.BUILDING,
BENGALURU-560001.
2. THE COMMISSIONER FOR
COLLEGIATE EDUCATION,
PALACE ROAD,
BENGALURU-560001.
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3. THE ACCOUNTANT GENERAL,
IN KARNATAKA (A & E),
P.B.NO.5360, RESIDENCY PARK ROAD,
BENGALURU-560001.
... RESPONDENTS
(BY SMT.SHWETA KRISHNAPPA, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO
DECLARE THE ENDORSEMENT DTD.13.8.2013 IN ANNEX-D
ISSUED BY R-2 AS ILLEGAL AND VOID, CONSEQUENTLY,
DIRECT THE R-1 AND 2 TO PAY INTEREST @ 18% ON THE
AMOUNT OF RS.3,03,921/- FROM THE DATE DUE TILL
PAYMENT TO THE PETITIONER AND TO PASS APPROPRIATE AND
SUITABLE ORDERS AND DIRECT THE R-1 AND 2 TO PAY THE
PETITIONER AN AMOUNT OF RS.50,000/- TOWARDS COSTS
DUE TO WRONG DEDUCTION OF THE AMOUNT OF
RS.3,03,921/- (I.E., RECOVERY OF RS.2,50,000/- FROM DCRG
AND RS.53,921/- FROM PENSION) AND ALSO FOR COMPELLING
HIM TO INITIATE MULTIPLE PROCEEDINGS BEFORE COURT.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner, who is a retired professor in Physics is before this Court for a writ of certiorari to quash the endorsement dated 13.08.2013 made in No.KhaShiAha:251:TriSouYo:2005-06 issued by respondent No.2 and to issue a writ of mandamus directing respondent Nos.1 and 2 to pay interest at the rate of Rs.18% on the 3 amount of Rs.3,03,921/- from the date due till payment to the petitioner and further direction to respondent Nos.1 and 2 to pay the petitioner a sum of Rs.50,000/- towards costs due to wrong deduction of the amount of Rs.3,03,921/- (i.e., recovery of Rs.2,50,000/- from DCRG and Rs.53,921/- from pension) and also for compelling him to initiate multiple proceedings before the Court.
2. It is the case of the petitioner that the petitioner joined St.Aloysius College, Mangalore on 01.08.1967 as 'Demonstrator' and the same was regularized and the said post was abolished and he was deputed to pursue the Post- Graduation i.e., M.Sc degree to enable him to get promotion as 'Lecturer'. Accordingly, he acquired the said qualification and consequently, his appointment as Lecturer was approved by an order dated 25.04.1986, with effect from 15.06.1976 and also fixed the pay with the approval of the respondents- Authorities.
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3. It is further case of the petitioner that after successful completion of 38 years of his service, he retired from service on attaining the age of superannuation. When the papers were sent by the petitioner for fixation of pay on the ground of retirement benefits, the local Joint Director of Education cancelled the fixation of pay done on 25.04.1986 by an order dated 08.02.2006 and ordered for recovery. Upon the order of recovery, a sum of Rs.3,03,921/- was recovered (i.e., Rs.2,50,000/- from DCRG and Rs.53,921/- from pension). Inspite of making representation to the Authorities stating that said recovery is bad in law, the same has not been considered. Therefore, the petitioner was constrained to approach this Court in W.P.No.9936/2008 with a direction to the respondents to re-fix the pay scale. This Court by an order dated 08.08.2008 disposed of the petition and directed the Director of Collegiate Education, Seshadri Road, Bengaluru to consider the representation of the petitioner with regard to deficit in pension and gratuity due to fixation 5 of pay within an outer limit of six months from the date of receipt of the said order.
4. It is further case of the petitioner that thereafter, communications have been made between the Authorities on 22.10.2008, 26.08.2009 and 20.10.2009. In view of the same, on 24.02.2010, the Joint Director has prepared a 'Refund Bill' of Rs.3,03,921/- as per Annexure-B. Therefore, the said amount was paid to him in the month of March, 2010. The said amount is apparently paid belatedly, after the lapse of four years of the order of the cancellation and two years after the order of this Court dated 08.08.2008. There has been unnecessary communications made for the said purpose and for no good reason. Such benefits have been extended to all the persons, who are similarly placed apart from interest being paid on such refund of the DCRG and Pension. Therefore, the petitioner made a detailed representation to the respondents on 15.07.2013 with a request to pay the interest @ 18% . The respondents are legally obligated to pay the 6 interest on the amount paid to the petitioner belatedly nearly after four years.
5. However, respondent No.2 by his endorsement dated 13.08.2013 rejected the request for interest on the ground that there are no rules for giving interest on the belated sanction of pensionary benefits invoking provision of Section 87 of the Education Act, which is clear that Rules for retirement of an employee shall be same as Government Institutions. Therefore, the petitioner is before this Court for the relief sought for.
6. The respondents have not filed any objections.
7. I have heard the learned counsel for the parties to the lis.
8. Sri.Rajashekar Hegde, learned counsel appearing for Sri. Chandrakanth.R.Goulay, learned counsel for the petitioner vehemently contended that the impugned endorsement issued by respondent No.2 rejecting the claim 7 for the interest on belated payment is erroneous and contrary to material on record. He further contended that the respondents have not considered the representation made on 15.07.2013 as per Annexure-C though they are obligated to consider the same as the petitioner has retired from service on 30.11.2005. The amount of Rs.3,03,291/- was recovered from DCRG and Pension on 08.02.2006, which has been paid back in the month of March, 2010 i.e., after lapse of four years. Therefore, the petitioner is entitled for interest on the said amount. He further contended that this Court while disposing W.P.No.9936/2008 on 08.08.2008, directed the Director of Collegiate Education, Seshadri Road, Bengaluru to consider the representation for fixation of pay of the petitioner from the date of promotion as 'Lecturer'. The same has not been complied by the Authorities. Therefore, he sought to quash the impugned order passed by respondent No.2 by allowing the present writ petition.
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9. In support of his contention, learned counsel for the petitioner relied upon the judgment of the Supreme Court in the case of D.D.Tewari (Dead) through Legal Representatives vs. Uttar Haryana Bijli Vitran Nigam Limited and Others reported in (2014) 8 SCC 894 held that denial of interest from date of entitlement till date of payment has resulted in miscarriage of justice. Hence, interest @ 9% on delayed payment awarded to be paid within six weeks failing which interest @ 18% p.a. need to be paid. Therefore, he sought to allow the writ petition.
10. Per contra, Smt.Shweta Krishnappa, learned AGA appearing for the respondents submits that the representation of the petitioner has been considered by respondent No.2 and passed the impugned order and the same is in accordance with law. She further contended that in the absence of any specific rule, the interest on delayed payment of pension cannot be granted. Hence, the petitioner 9 is not entitled to any interest. Therefore, she sought to dismiss the writ petition.
11. Having heard the learned counsel for the parties, it is not in dispute that the petitioner joined the service at St.Aloysius College, Mangalore on 01.08.1967 and after completion of Post-Graduation of M.Sc degree, he came to be appointed as 'Lecturer' on approval by an order dated 25.04.1986, with effect from 15.06.1976 and also fixed the salary. It is also not in dispute that the petitioner came to be retired from service after successful completion of 38 years under the respondents on attaining the age of superannuation on 30.11.2005. The local Joint Director of Education cancelled the fixation of pay done on 25.04.1986 by an order dated 08.02.2006 and ordered for recovery. Accordingly, a sum of Rs.3,03,921/- was recovered (i.e., Rs.2,50,000/- from DCRG and Rs.53,921/- from the pension of the petitioner). Inspite of representation made by the petitioner, the respondents have not released the said 10 amount immediately. Therefore, the petitioner approached this Court in W.P.No.9936/2008 and this Court directed to consider and pass orders within a period of six months and thereafter, the Joint Director prepared refund bill of Rs.3,03,921/- on 24.02.2010 as per Annexure-B. The said amount has been re-paid to the petitioner. The said amount has been re-paid to the petitioner only in the month of March, 2010.
12. The material on record clearly depicts that the said amount returned to the petitioner after lapse of four years of the order of cancellation and two years from the date of order passed by this Court i.e., on 08.08.2008. It is well settled principles of law that any delayed payment either DCRG or gratuity or retirement benefits, the concerned employees is entitled for the interest on delayed payment.
13. Admittedly, in the present case, the petitioner was entitled to the said amount of Rs.3,03,921/- and it was unnecessarily withheld and recovered the amount without 11 any fault on the part of the petitioner. The said amount was repaid only after lapse of four years. Therefore, the petitioner is entitled to interest on the said amount on the delayed payment of gratuity and pension amount. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of D.D.Tewari (Dead) through Legal Representatives vs. Uttar Haryana Bijli Vitran Nigam Limited and Others reported in (2014) 8 SCC 894 at para. Nos.6 to 8 held as under:
"6. The case before us is a clear example of departmental delay which is not excusable. The petitioner retired on 30.04.1993 and it was only after 12.2.1996 when an interim order was passed in this writ petition that the respondents woke up and started work by sending a special messenger to various places where the petitioner had worked. Such an exercise should have stared at least in 1991, two years before retirement. The amounts due to the petitioner were computed and the payments were made only during 1997-98. the petitioner was a cancer patient and was indeed put to great hardship. Even assuming that some letters were sent to the 12 petitioner after her retirement on 30.3.1993 seeking information from her, an allegation which is denied by the petitioner, that cannot be an excuse for the lethargy of the Department inasmuch as the Rules and instructions require these actions to be taken long before retirement. The exercise which was to be completed long before retirement was in fact started long after the petitioner's retirement.
7. Therefore, this is a fit case for awarding interest to the petitioner. We do not think that for the purpose of the computation of interest, the matter should go back. Instead, on the facts of this case, we quantify the interest payable at Rs.1 lakh and direct that the same shall be paid to the petitioner within two months from today.
8. The writ petition is disposed of accordingly. There will be no order as to costs."
14. In view of the aforesaid admitted facts, the impugned order passed by respondent No.2 denying the interest on the delayed payment is erroneous and contrary to material on record. On that ground alone, the impugned 13 order passed by respondent No.2 cannot be sustained in law. It is also well settled that pension is not a bounty, but right of a retired employee. The government is obliged to initiate process for payment according to time-schedule prescribed in the Departmental Rules. Non-observance of the time-schedule is one of the factors which Court may take into account while considering employee's request for interest on delayed payment.
15. Admittedly, in the present case, though there is no fault on the part of the petitioner, the amount of Rs.3,03,921/- was recovered from the pension and DCRG and inspite of repeated representations and direction issued by this Court, after lapse of four years, the amount had been repaid to the petitioner. Therefore, the respondents are bound to pay the interest on the delayed pension and DCRG to the petitioner. Therefore, the impugned order cannot be sustained in law.
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16. In view of the aforesaid reasons, the writ petition is allowed. The impugned endorsement issued by respondent No.2 dated 13.08.2013 made in No.KhaShiAha:251:TriSouYo:2005-06 is quashed. The petitioner is entitled to interest on the delayed refund of pension and DCRG amount of Rs.3,03,921/- at the rate of 9% p.a. from 08.02.2006 till the refund of the amount in the month of March, 2010. The respondents are directed to pay the said interest to the petitioner within a period of three months from the date of receipt of copy of this order without fail. Failing which, the petitioner is at liberty to file contempt proceedings against the respondents.
Ordered accordingly.
Sd/-
JUDGE VM