Madras High Court
R. Lakshmikanthan vs The Government Of Tamil Nadu on 3 February, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 03/02/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.26602 of 2005
R. Lakshmikanthan ... Petitioner
-Vs-
1. The Government of Tamil Nadu,
rep.by its Secretary to Government,
Rural Development Department,
Fort St.George,
Chennai 600 009.
2. The District Collector,
Tiruvannamalai District,
Tiruvannamalai. ... Respondents
This writ petition came to be numbered by way of transfer of
O.A.No.5727 of 2002 from the file of the Tamil Nadu Administrative Tribunal
seeking direction to the respondents to grant 12% interest for the delayed
payment of retirement benefits viz., Death-cum-Retirement Gratuity, commuted
value of pension and arrears of pension from 31.3.1992 till 6.8.2002.
!For Petitioner : Mr.V. Suthakar
For Respondents : Mrs.D.Malarvizhi
Government Advocate
:O R D E R
In this petition, petitioner seeks a direction to the respondents to grant 12% interest for the delayed payment of retirement benefits viz., Death-cum-Retirement Gratuity, commuted value of pension and arrears of pension from 31.3.1992 till 6.8.2002.
2. The necessary facts for disposal of this writ petition are as follows,
(a) The petitioner retired as a Block Development Officer on 31.3.19 92 on attaining the age of superannuation. On the date of retirement, he was working at the Polur Panchayat Union, Tiruvannamalai District. On 28.12.1991, the District Collector, Tiruvannamalai/second respondent herein framed certain charges against the petitioner under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, relating to the discharge of petitioner's duty while he was working as Block Development Officer, Thurinjapuram Panchayat Union. The Charge mainly deals with non-entry of 26.680 MT of rice in the stock register, causing loss to the Government to the tune of Rs.53,138/-. Consequential charge was also framed for non-appointment of Manager ( RLEGP), when the then manager Venkatasubramaniam was on medical leave, to hold additional charges, thus giving opportunity for non-entry of the incoming rice stocks in the stock register. On 21.1.1992, petitioner submitted his explanations denying the charges levelled against him.
(b) The District Collector, Tiruvannamalai/second respondent appointed the District Town Panchayat Officer, Tiruvannamalai as Enquiry Officer, who conducted enquiry and submitted his report on 10.2.1992. As the petitioner's date of retirement fell on 31.3.1992, the Director of Rural Development, by his order dated 26.3.1992, permitted the petitioner to retire from services on 31.3.1992, but without prejudice to the disciplinary proceedings initiated against him under the charge memo dated 28.12.1992. Accordingly the petitioner retired on 31 .3.1992.
(c) On 23.5.1992, the Principal Accountant General, Tamil Nadu sanctioned Death-cum-Retirement Gratuity of Rs.42,884/- and commuted value of 1/3rd pension of Rs.54,225/-, but however, with a direction to disburse the said amounts after finalisation of the disciplinary proceedings.
(d) The disciplinary proceeding was kept pending for more than seven years and on 7.12.1999, the Secretary to Rural Development Department/the first respondent herein furnished a copy of the enquiry report to the petitioner and asked for his written representation, which the petitioner offered on 8.1.1999. On 14.7.2000, the first respondent issued a show cause notice conveying the provisional conclusion to the effect of reduction of Rs.100/- per month for a period of three years from the pension payable to the petitioner, besides recovering a sum of Rs.1,32,585/- from the retirement benefits. On 13.8.2000, the petitioner replied that the provisional conclusion arrived at to recover a sum of Rs.1,32,585/- is excessive since the actual loss is only to the tune of Rs.53,138/-, even as per the charge memo. Thereafter petitioner received another letter dated 14.7.2000 asking him to show cause against the provisional conclusion to the effect of reduction of Rs.100/- per month for a period of three years from the pension payable to the petitioner, besides recovering a sum of Rs.13,285/- from DCRG. For the said show cause notice, petitioner sent his reply on 18.10.2000 stating that the provisional conclusion amounts to imposing double punishment inasmuch as there is a cut in pension, as well as recovery of a sum of Rs.13,285/-. Subsequently, on 12.12.2000, the first respondent issued another letter asking the petitioner to state as to whether he admits the proposed penalty or to offer his reply. For that letter also petitioner sent a reply on 8.1.2001 stating that the provisional conclusion arrived at amounts to double punishment and expressed his willingness to pay a sum of Rs.13,285/-.
(e) It is the case of the petitioner that in spite of the above replies sent by him, the respondents have not concluded the disciplinary proceeding and hence he filed O.A.No.519 of 2002 before the Tamil Nadu Administrative Tribunal with a prayer to direct the respondents to conclude the disciplinary proceedings initiated against him under charge memo dated 28.12.1991. The Tribunal by order dated 9.2.2002 directed the respondents to pass final orders in the disciplinary proceedings within one month from the date of receipt of copy of that order. As the said order was not complied with, petitioner filed Contempt Application No.193 of 2002, and during pendency of the said contempt application, first respondent passed an order imposing punishment of reduction of Rs.100/- per month for a period of three years from the pension payable to the petitioner, besides recovery of Rs.13,285/- from the DCRG payable to the petitioner, to make good the loss caused to the Government.
(f) It is further stated in the petition that the petitioner attained the age of superannuation as early as on 31.3.1992, but in the disciplinary proceedings initiated against him on 28.12.1991, though enquiry was completed and enquiry report was submitted on 10.2.1992 to the disciplinary authority, much prior to the date of retirement, for no fault of the petitioner, the proceeding was kept pending for more than ten years and only after filing contempt application for the disobedience of the direction of the Tamil Nadu Administrative Tribunal dated 9.2.2002 in O.A.No.519 of 2002, final orders were passed in the disciplinary proceeding. In these circumstances, petitioner prays for grant of 12% interest for the delayed payment of retirement benefits from 31.3.2002 to 6.8.2002.
3. In the counter affidavit filed by the respondents it is stated that though the Accountant General, Chennai had sanctioned pension, Death-cum-Retirement Gratuity, etc., in the release order it is mentioned that the amount will be disbursed only after the finalisation of the disciplinary proceedings and therefore it cannot be termed as delayed payment as the same was held up only due to the pendency of the disciplinary proceedings. It is further stated that under the Tamil Nadu Pension Rules, no interest shall be payable in cases where the delay in the payment of Death-cum-Retirement Gratuity is due to the institution of departmental or judicial proceedings against the Government servant concerned. Hence the petitioner is not entitled to claim interest for the delayed payment of Death-cum-Retirement Gratuity amount.
4. The learned counsel for the petitioner argued that in the normal course, the Government is bound to settle the retirement benefits to its employees immediately after the retirement, and if any disciplinary proceeding is pending, the Government is empowered to withhold the retirement benefits, but in the instant case, though the enquiry was over as early as on 10.2.1992 well before the date of superannuation of the petitioner, the retirement benefits were disbursed to the petitioner only on 6.8.2002 after the final order was passed belatedly, and hence the undue delay in disbursing the retirement benefits caused irreparable loss, mental agony and financial loss to the petitioner. Hence, according to the learned counsel, the petitioner is entitled to interest for the delayed payment of DCRG, commuted value of pension and arrears of pension from 31.3.1992 to 6.8.2002.
5. I have considered the rival submissions made by the learned counsels on either side, in the light of the averments made in the affidavit as well as counter affidavit. There is no explanation on the part of the respondents for the undue delay of ten years in passing final orders, that too after submission of enquiry report as early as on 1 0.2.1992.
6. The Honourable Supreme Court in its very recent decision reported in 2006(1) Law Weekly 157 (P.V.Mahadevan v. M.D., Tamil Nadu Housing Board) dealt with the issue relating to the delay in initiation of disciplinary proceeding. In paragraph 16 of the Judgment the Apex Court held thus, "Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a Government employee should, therefore, be avoided not only in the interests of the Government employee but in public interest and also in the interests of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer." In the case on hand, even though there was no delay in initiating the disciplinary proceedings against the petitioner, admittedly there is an undue delay in completing the disciplinary proceedings, that too after submission of enquiry report as early as on 10.2.1992. Had the final orders been passed immediately or within a reasonable time, the petitioner would have got his retirement benefits 10 years earlier.
7. In yet another earlier decision reported in (1974) 4 SCC 308 ( State of Mysore v. C.R.Sheshadri), the Honourable Supreme Court, in paragraph 8 held that a retired government official is sensitive to delay in drawing monetary benefits and to avoid posthumous satisfaction of the pecuniary expectation of the superannuated public servant not unusual in government we direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his due if so found on or before April 15, 1974 . The Apex Court in paragraph 7 of the Judgment agreed with the findings of the High Court, which reads as under, "While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document."
8. (a) In so far as the award of interest for the belated payment of retirement benefits is concerned, the Supreme Court in the decision reported in (1987) 4 SCC 328 (O.P.Gupta v. Union of India), in paragraph 15, after taking note of the 20 years of protracted departmental enquiry, held as follows, "... It is clear principle of natural justice that the delinquent officer when placed under suspension is entitled to represent that the departmental proceedings should be concluded with reasonable diligence and within a reasonable period of time. If such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress for an indefinite duration."
In the said case, the Supreme Court awarded 12% interest in favour of the appellant for the delayed payment of pension.
(b) In the decision reported in (1999)3 SCC 438 (Dr.Uma Agrawal v. State of U.P.), the Apex Court quantified the interest as Rs.1.00 lakh for the belated payment of retirement benefits.
(c) In (1985) 1 SCC 429 (State of Kerala v. M.Padmanabhan Nair) also the Supreme Court endorsed the findings of the High Court in payment of interest for the belated settlement of retirement benefits. Further, in paragraph 5 of the judgment, the Court observed thus, "We are also of the view that the State Government is being rightly saddled with a liability for the culpable neglect in the discharge of his duty by the District Treasury Officer who delayed the issuance of the L.P.C., but since the concerned officer had not been impleaded as a party defendant to the suit the Court is unable to hold him liable for the decretal amount. It will, however, be for the State Government to consider whether the erring official should or should not be directed to compensate the Government the loss sustained by it by his culpable lapses. Such action if taken would help generate in the officials of the State Government a sense of duty towards the Government under whom they serve as also a sense of accountability to members of the public."
9. In this case, petitioner's contentions in respect of the belated settlement of retirement benefits, are well founded. As observed earlier, the enquiry report having been filed as early as on 10.2.1992, there is no justification on the part of the respondents to delay the said proceedings for over ten years. Hence I hold that the petitioner is entitled to interest as claimed in the petition. But, the petitioner has not made any demand to that effect. It is well settled in law that no mandamus can be issued without a demand being made before the appropriate authority. However, in the interest of justice, the petitioner is given four weeks time from the date of receipt of copy of this order to make proper representation/demand before the first respondent herein, claiming interest for the belated settlement of retirement benefits and on such representation being made, the first respondent is directed to dispose of the same within a period of four weeks therefrom. The interest amount that is to be paid to the petitioner shall be recovered from the concerned Officers, who were responsible for causing such an undue delay of over ten years in finalising the disciplinary proceedings.
The writ petition is ordered in the above terms. No costs.
vr To
1. The Secretary to Government, Rural Development Department, Fort St.George, Chennai 600 009.
2. The District Collector, Tiruvannamalai District, Tiruvannamalai.