Central Administrative Tribunal - Delhi
Anjana Sharma vs Health And Family Welfare on 29 January, 2025
1
OA No. 1977/2024
Item No. 63/C-I
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1977/2024
Reserved on: - 03.12.2024
Pronounced on: - 29.01.2025
Hon'ble Mr. Rajinder Kashyap, Member (A)
1. Ms. Anjana Sharma
W/o Late Shri Manoj Sharma
2. Master Ojas Vashishth
S/o Late Shri Manoj Kumar Sharma
(Through his mother & natural guardian
Ms. Anjana Sharma)
Both presently residents of:
Flat No. 215, Gangotri Apartment
Sector-12, Dwarka
New Delhi-110078 ... Petitioners
(By Advocate: - Mr. Naresh K. Daksh)
Versus
1. All India Institute of Medical Sciences
AIIMS Campus, Ansari Nagar
New Delhi-110029.
(Through its Director)
2. Jai Prakash Narayan Apex Trauma Centre
All India Institute of Medical Sciences
Raj Nagar, Near Safdarjung Hospital
Ring Road, New Delhi-110029.
3. The Asstt. Administrative Officer
Jai Prakash Narayan Apex Trauma Centre
All India Institute of Medical Sciences
Raj Nagar, Near Safdarjung Hospital
Ring Road, New Delhi-110029. ... Respondents
(By Advocate: -Mr. Mayank Yadav with Mr. Jitendra Verma)
2
OA No. 1977/2024
Item No. 63/C-I
ORDER
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant, in para 8 of the OA has prayed for the following reliefs: -
"(a) to pass an appropriate order in the nature of Writ of Mandamus or such other appropriate Writ, Order or direction against the Respondent thereby holding the impugned Memorandums/communications dated 1.2.2023 and 3.3.2023 issued by the Respondents as bad in law, illegal, arbitrary, unjustified, discriminatory and unconstitutional;
(b) to issue appropriate Writ or Order or Directions thereby directing the Respondents to immediately release the statutory benefits and entitlements viz.
Death Gratuity, Leave Encashment, NPS amount, Family Pension and other entitlements and benefits as applicable arising due to death of husband of Petitioner No. 1 and father of Petitioner No. 2 with interest @12% per annum from 8.8.2032 (ibid 2023) till the date of actual payment;
(c) to award the costs of the present Petition in favour of the Petitioners and against the Respondent; and/or
(d) to pass any further or other order(s) or direction(s) in favour of the Petitioners and against the Respondent as the Hon‟ble Court may deem just, fit and proper in the circumstances of the present case." FACTS OF THE CASE
2. The brief facts of the present case are that the husband of petitioner no. 1 and father of petitioner no. 2 (i.e. Shri Manoj Kr. Sharma) joined the services of respondent no. 1 as Nursing Officer. Subsequently, he joined the office of respondent no. 2. Unfortunately, Shri Manoj Kr. Sharma dies while in service of the 3 OA No. 1977/2024 Item No. 63/C-I respondent no. 1 and 2. He left behind the petitioners nos. 1 and 2 being widow and minor son respectively.
3. The petitioner no. 1 submits that despite the fact that the husband of petitioner no. 1 expired on 07.08.2022 and the respondents have not released single penny till now. She further submits that she is visiting the office of respondents regularly and making enquiries but instead of releasing the statutory entitlements, the respondents have issued the impugned communication. She further contends that such inordinate delay, inaction, illegality and discrimination on the part of the respondents in not releasing the statutory benefits and entitlements viz. Death Gratuity, Leave Encashment, NPS amount, Family Pension and other entitlements and benefits as applicable arising due to death of husband of petitioner no. 1 and father of petitioner no. 2 is totally illegal, discriminatory and is violative of fundamental rights.
4. The learned counsel submits that despite the fact that deceased Government employee Shri Manoj Kr. Sharma nominated his minor son i.e. petitioner no. 2 for the purpose of Gratuity and other benefits, the respondents did not release the said benefits. Learned counsel further submits that the impugned memorandum issued by the respondents is not sustainable and is liable to be quashed in terms of Rule 45 of CCS (Pension) Rules, 4 OA No. 1977/2024 Item No. 63/C-I 2021 as the same mentions about the Death Gratuity and Rule 46 has stipulated about the nominations for receiving the retirement gratuity and death gratuity payable under Rue 45. It is further stated that Rule 47 of the CCS (Pension) Rules, 2021 clearly mentions about the persons to whom gratuity is payable. Sub-rule (5) and (6) of Rule 47, there is clear mention about payment of gratuity payable to a minor is to be paid to the natural guardian. The relevant extract of Section 47 of CCS (Pension) Rules, 2021 is reproduced as hereunder: -
"47. Persons to whom gratuity is payable. - (1)
(a) The gratuity payable under rule 45 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under rule 46.
(b) In case there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the manner indicated below,-
(i) ...
........
(5) Where gratuity is granted under rule 45 to a minor member of the family of the deceased Government servant, it shall be payable to the guardian on behalf of the minor.
(6) Payment of the minor's share of gratuity shall be made to the natural guardian of the minor, if any. In the absence of a natural guardian, the payment of minor's share of gratuity shall be made to the person who furnishes a certificate of guardianship. (7) In the absence of a natural guardian, payment of an amount not exceeding twenty percent of minor's share 5 OA No. 1977/2024 Item No. 63/C-I of gratuity may be made to the guardian without the production of a guardianship certificate but on production of an indemnity bond in Format 7 and the balance amount of minor's share of gratuity may be paid to the guardian on production of the certificate of guardianship."
SUBMISSION MADE BY RESPONDENTS
5. The respondents have filed their counter reply on 27.12.2023 wherein they have stated that admittedly there existed matrimonial discords between the petitioner no. 1 and the deceased AIIMS employees, namely Late Shri Manoj Kumar Sharma. It is further submitted that in this light the deceased AIIMS employees had duly amended his nomination forms and removed the petitioner no. 1 as a nominee for his benefits and exclusively had nominated only his minor son, namely Master Ojas Vashishth/Petitioner No. 2. They also submit that the respondents were duty bound to release the benefits only in favour of the minor son but his whereabouts were not known.
6. It is submitted that the respondents in compliance with the directions of this Hon'ble Court duly issued OM dated 21.03.2023 calling the grandparents of the Petitioner No. 2 and both the petitioners to appear before the AIIMS administration on 22.03.2023 at 4:00 pm in the office of the Chief Administrative Officer, 15 Floor, Administrative Block, AIIMS New Delhi. It is submitted that however both the petitioners and also the 6 OA No. 1977/2024 Item No. 63/C-I grandparents did not turn up on 22.03.2023 at 4:00 pm nor any correspondence to the same end was received. Later on, a request was received from the petitioner no.1 for providing another opportunity of appearance. Hence, the answering respondent again requested both the petitioners and the grandparents of petitioner no. 2 to appear before the Chief Administrative Officer, AIIMS at 3:00 pm on 01.07.2023. The petitioner no. 1 along with petitioner no. 2 duly appeared in the office of the CAO but the grandparents of petitioner no. 2 did not appear on the appointed date and time. It is submitted that from the interaction held with both the petitioners it became evident that Master Ojas Vashishth (Petitioner No. 2) was living with his mother, i.e. the petitioner no. 1. In view of the above and in compliance of the order of this Hon'ble Court, a cheque bearing no. 310732 dated 17.07.2023 amounting to Rs.2,50,000/-in favour of petitioner no.2 has been handed over to the petitioner no.1 on22.07.2023. CASE LAWS RELIED UPON BY THE PARTIES
7. Learned counsel appearing for the applicant places reliance upon the following orders/judgments (i) Gita Hariharan Vs. Reserve Bank of India reported as 1999 (2) SCC 228; (ii) H. Gangahanume Gowda Vs. Karnataka Agro Industries Corporation Ltd.reported as AIR 2003 SC 1526; (iii) State of Kerala & Ors. Vs. M. Padmanabhan Nair reported as 1985 7 OA No. 1977/2024 Item No. 63/C-I (1) SCC 429, (iv) Deokinandan Prasad Vs State of Bihar & Ors. reported as 1971 SUPP. S.C.R. 634; (v) Jodh Singh Vs Union of India and Anr. reported as 1980 AIR (SC) 2081; (iv) D.D. Tiwari Vs Uttar Haryana Bijni VitranNigam Ltd.reported as 2014 (8) SCC 894; (vii) H.N. Sharma & Anr. Vs Govt. of NCT of Delhi & Ors. in W.P. (C) No. 1724/2017 and (viii) S. K. Mastan Bee Vs General Manger, South Central Railway 2003 (1) SCC 184
8. Learned counsel appearing for the applicant also places reliance upon the OM No. 28/91/2022-P&PW (B)/8331 dated 11.10.2022 issued by the Ministry of Personnel, Public Grievances and Pensions.
9. I have heard learned counsels for the parties and considered the submissions made by them.
ANALYSIS
10. Chapter VIII of CCS (Pension) Rules, 2021 deals with Family Pension (i.e. Rule 50). For facility of reference, Rule 50 of the same is reproduced as under:-
"50. Family Pension. - (1) Where a Government servant dies,-
(i) after completion of one year of continuous service; or
(ii) before completion of one year of continuous service, provided the deceased Government servant concerned immediately prior to his appointment to the service or post was examined by the appropriate medical authority and declared fit by that authority for Government service; or 8 OA No. 1977/2024 Item No. 63/C-I
(iii) after retirement from service and was on the date of death in receipt of a pension, or compassionate allowance, referred to in these rules, the family of the deceased shall be entitled to a family pension from the date following the date of death of the Government servant or the retired Government servant, as the case may be.
Explanation - „Continuous service‟ means service rendered in a temporary or permanent capacity in a pensionable establishment and does not include period of suspension, if any and period of service, if any, rendered before attaining the age of eighteen years.
*** ***
***
(6) The family pension shall be payable to the members of the family of the deceased Government servant or pensioner in the following order, namely:-
(i) subject to provisions of sub- rule (8), widow or widower, (including a post-retiral spouse and judicially separated wife or husband),"
11. The petitioners also submitted a representation dated 07.11.2022 (Annexure-A/8) to the respondents requesting Payment of Gratuity, Leave Encashment, Family Pension and other entitlements and benefits arising out of death of Shri Manoj Kumar Sharma, Nursing Officer.
12. Along with the aforementioned representation, the petitioners also submitted an affidavit. For facility of reference, the said affidavit reads as under: -
"AFFIDAVIT I, Anjana Sharma W/o Late Shri Manoj Kumar Sharma permanent resident of Flat No. 105, Radhika Apartment, Pocket- l, Sector-14, Dwarka, New Delhi-110078, presently residing at Flat No. 215, Gangotri Apartments, Pocket-1, Sector-12, Dwarka, New Delhi-110078, do hereby solemnly affirm and state as under:
1. It is stated my marriage with Shri Manoj Kumar Sharma S/o Shri Murari Lal Sharma was solemnized on 22nd February, 2008, accordingly to Hindu rites, customs and ceremonies at Jaipur, Rajasthan and the same was duly registered vide Registration No. 408001301.9 OA No. 1977/2024
Item No. 63/C-I
2. It is stated that due to some temperamental differences, myself and my husband filed First Motion i.e. Petition under Section 13-B (1) of Hindu Marriage Act. That Second Motion i.e. Petition under Section 13-B(2) of Act was to be filed after expiry of six months period. It is stated that myself and my husband never filed any Second Motion for grant of Divorce.
3. It is stated that neither any Divorce was granted nor our marriage was dissolved by any of the Hon'ble Court regarding my marriage with Shri Manoj Kumar Sharma.
4. It is stated that my marriage with Shri Manoj Kumar Sharma has still been subsisting as on the date of his demise.
5. It is stated that my husband left behind myself being Widow and minor son - Ojas Vashishth.
6. It is stated that the statement made in this Affidavit is correct."
13. It is submitted by the respondents in their counter reply filed on 27.12.2023 that there existed matrimonial discords between the petitioner No. 1 and the deceased AIIMS employees, namely Late Shri Manoj Kumar Sharma. It is further submitted that in this light the deceased AIIMS employees had duly amended his nomination forms and removed the petitioner no. 1 as a nominee for his benefits and exclusively had nominated only his minor son, namely Master Ojas Vashishth/Petitioner No. 2. They also submit that the respondents were duty bound to release the benefits only in favour of the minor son but his whereabouts were not known. It is further submitted by the respondents that in compliance with the directions of this Hon'ble Court duly issued OM dated 21.03.2023 calling the grandparents of the Petitioner No. 2 and both the petitioners to appear before the AIIMS administration on 22.03.2023 at 4:00 pm in the office of the Chief Administrative Officer, 15 Floor, Administrative Block, AIIMS 10 OA No. 1977/2024 Item No. 63/C-I New Delhi. It is submitted that however both the petitioners and also the grandparents did not turn up on 22.03.2023 at 4:00 pm nor any correspondence to the same end was received. They further stated that later on a request was received from the petitioner no. 1 for providing another opportunity of appearance. Hence, the answering respondent again requested both the petitioners and the grandparents of petitioner no. 2 to appear before the Chief Administrative Officer, AIIMS at 3:00 pm on 01.07.2023. The petitioner no. 1 along with petitioner no. 2 duly appeared in the office of the CAO but the grandparents of petitioner no. 2 did not appear on the appointed date and time. It is submitted that from the interaction held with both the petitioners it became evident that Master Ojas Vashishth (Petitioner No. 2) was living with his mother, i.e. the petitioner no. 1. In view of the above and in compliance of the order of this Hon'ble Court, a cheque bearing no. 310732 dated 17.07.2023 amounting to Rs. 2,50,000/- in favour of petitioner no. 2 has been handed over to the petitioner no. 1 on 22.07.2023.
14. In the matter of Gita Hariharan Vs. Reserve Bank of India reported as 1999 (2) SCC 228 decided on 17.02.1999, the Hon'ble Apex Court has held as under:-
"7. The expression 'natural guardian' is defined in S. 4 (c) of HMG Act as any of the guardians mentioned in Section 6 (supra). The term 'guardian' is defined in S. 4 (b) of HMG Act as a person having the care of the person of a minor or of his property or of 11 OA No. 1977/2024 Item No. 63/C-I both, his person and property, and includes a natural guardian among others. Thus, it is seen that the definitions of 'guardian' and 'natural guardian' do not make any discrimination against mother and she being one of the guardians mentioned in S. 6 would undoubtedly be a natural guardian as defined in Section 4
(c). The only provision to which exception is taken is found in Section 6 (a) which reads "the father, and after him, the mother".
(underlining ours). That phrase, on a cursory reading, does give an impression that the mother can be considered to be natural guardian of the minor only after the life time of the father. In fact that appears to be the basis of the stand taken by the Reserve Bank of India also. It is not in dispute and is otherwise well settled also that welfare of the minor in the widest sense is the paramount consideration and even during the life time of the father, if necessary, he can be replaced by the mother or any other suitable person by an order of Court, where to do so would be in the interest of the welfare of the minor.
30. For convenience sake however section 6 of the Act of 1956 is set out herein below:
"6. Natural guardians of a Hindu minor- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl-the father, and after him, the mother : provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband:
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation-In this section, the expressions „father‟ and „mother‟ do not include a step-father and a step-mother."
44. The expression „natural guardian‟ has been defined in S 4
(c) as noticed above to mean any of the guardians as mentioned in S. 6 of the Act of 1956. This section refers to three classes of guardians viz., father, mother and in the case of a married girl the husband. The father and mother therefore, are natural guardians in terms of the provisions of S. 6 read with S. 4 (c). Incidentally it is to be noted that in the matter of interpretation of statute the same meaning ought to be attributed to the same word 12 OA No. 1977/2024 Item No. 63/C-I used by the statute as per the definition section. In the event, the word `guardian' in the definition section means and implies both the parents, the same meaning ought to be attributed to the word appearing in section 6 (a) and in that perspective mother's right to act as the guardian does not stand obliterated during the lifetime of the father and to read the same on the statute otherwise would tentamount to a violent departure from the legislative intent. Section 6 (a) itself recognises that both the father and the mother ought to be treated as natural guardians and the expression „after‟ therefore shall have to be read and interpreted in a manner so as not to defeat the true intent of the legislature.
45. Be it noted further, that gender equality is one of the basic principles of our Constitution and in the event the word „after‟ is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differenciation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution is supreme and the statute shall have to be in accordance therewith and not de hors the same. The father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category and in that view of the matter the word „after‟ shall have to be interpreted in terms of the constitutional safe-guard and guarantee so as to give a proper and effective meaning to the words used.
46. In our opinion the word „after‟ shall have to be given a meaning which would sub-serve the need of the situation viz., welfare of the minor and having due regard to the factum that law courts endeavour to retain the legislation rather than declaring it to be a void, we do feel it expedient to record that the word „after‟ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as „ in the absence of ‟ - be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word „after‟ as used in S. 6 then and in that event the same would be in accordance with the intent of the legislation viz. welfare of the child."
15. In the case of State of Kerala & Ors. Vs. M. Padmanabhan Nair reported as 1985 (1) SCC 429 decided on 17.12.1984, the Hon‟ble Apex Court has held as under: - 13 OA No. 1977/2024
Item No. 63/C-I "Pension and gratuity are no longer bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment."
16. In the case of D.D. Tiwari Vs Uttar Haryana Bijni Vitran Nigam Ltd. reported as 2014 (8) SCC 894 decided on 01.08.2014, the Hon'ble Supreme Court has allowed the aforesaid case with the following directions: -
"4. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the employer- respondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.
5. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, we do not propose to do that in the case in hand.
6. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed."14 OA No. 1977/2024
Item No. 63/C-I
17. In the case of Deokinandan Prasad Vs State of Bihar & Ors. reported as 1971 SUPP. S.C.R. 634 decided on 04.05.1971, the Hon'ble Supreme Court concluded with the following directions: -
"Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.
To conclude: No relief can be granted in respect of the orders dated September 2, 1953 and March 5, 1960 as they are already covered by the decision of the Patna High Court dated May 4, 1967 in Second Appeal No. 640 of 1967. Even assuming that the contention of the petitioner that the order dated September 2, 1953 was not the subject of adjudication in the litigation leading up to the decision of the High Court, in the second appeal, is correct, nevertheless, no relief can be granted as the order has been passed as early as 1953. Further, the representations made by him for cancellation of the said order have been rejected long ago. Further, there is no infringement of any fundamental right of the petitioner by that order. The order dated August 5, 1966 declaring under r. 76 of the Service Code that the petitioner has ceased to be in government employ is set aside and quashed. The order dated June 12, 1968 stating that under r. 46 of the Pension Rules, the Department is unable to grant the petitioner pension is also set aside and quashed. As the petitioner himself claims that he has been retired from service on superannuation, a writ of mandamus will be issued to the respondents directing them to consider the claim of the petitioner for payment of pension according to law. The writ petition is allowed to the extent indicated above. The petitioner is entitled to his costs from the first respondent, the State of Bihar."
18. In the case of H. Gangahanume Gowda Vs. Karnataka Agro Industries Corporation Ltd. reported 15 OA No. 1977/2024 Item No. 63/C-I as AIR 2003 SC 1526; decided on 05.02.2003, the Hon'ble Apex Court has held the following:-
"7. It is evident from Section 7(2) that as soon as gratuity becomes payable, the employer, whether any application has been made or not, is obliged to determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity. Under Section 7(3), the employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable. Under sub- section 3(A) of Section 7, if the amount of gratuity is not paid by the employer within the period specified in sub-section (3), he shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate not exceeding the rate notified by the Central Government from time to time for repayment of long term deposits; provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground. From the provisions made in Section 7, a clear command can be seen mandating the employer to pay the gratuity within the specified time and to pay interest on the delayed payment of gratuity. No discretion is available to exempt or relieve the employer from payment of gratuity with or without interest as the case may be. However, under the proviso to Section 7(3A), no interest shall be payable if delay in payment of gratuity is due to the fault of the employee and further condition that the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground. Under Section 8, provision is made for recovery of gratuity payable under the Act, if not paid by the employer within the prescribed time. The Collector shall recover the amount of gratuity with compound interest thereon as arrears of land revenue and pay the same to the person entitled. A penal provision is also made in Section 9 for non-payment of gratuity. Payment of gratuity with or without interest as the case may be does not lie in the domain of discretion but it is a statutory compulsion. Specific benefits expressly given in a social beneficial legislation cannot be ordinarily denied. Employees on retirement have valuable rights to get gratuity and any culpable delay in payment of gratuity must be visited with the penalty of payment of interest was the view taken in State of Kerala & Ors. vs. M. Padmanabhan Nayyar [1985 (50) FLR 145]. Earlier there was no provision for payment of interest on the delayed payment of gratuity. Sub- section (3A) was added to Section 7 by an amendment, which came into force with effect from 1st October, 1987. In the case of Charan Singh vs. M/s. Birla Textiles and Another [1988 (57) FLR 543 SC], this aspect was noticed in the following words:16 OA No. 1977/2024
Item No. 63/C-I "There was no provision in the Act for payment of interest when the same was quantified by the Controlling Authority and before the Collector was approached for its realization. In fact, it is on the acceptance of the position that there was a lacuna in the law that Act 22 of 1987 brought about the incorporation of sub- section 3 (A) in Section 7. That provision has prospective application."
8. In the background of this legal position, now we turn to the facts of the present case. The appellant was under suspension from 15.3.1999 to 21.5.1999. On attaining the age of superannuation, he retired from services of the respondent- Corporation on 1.1.2000. The learned Single Judge, after considering the rival contentions, disposed of the writ petition issuing directions to the respondent-Corporation to settle the full salary and allowances for the period of suspension, gratuity, cash equivalent to leave salary, deferred leave, concession amount etc. As regards the claim of interest on gratuity, the learned Single Judge held as under:-
"Since there was a doubt as to whether the petitioner is entitled to the gratuity, cash equivalent of leave salary etc., in view of the divergent opinion of the Courts during the pendency of an enquiry proceeding of a retired employee, in my view, the petitioner is not entitled to the relief of interest for the belated payment of gratuity and other amounts."
9. It is clear from what is extracted above from the order of learned Single Judge that interest on delayed payment of gratuity was denied only on the ground that there was doubt whether the appellant was entitled to gratuity, cash equivalent to leave etc., in view of divergent opinion of the courts during the pendency of enquiry. The learned Single Judge having held that the appellant was entitled for payment of gratuity was not right in denying the interest on the delayed payment of gratuity having due regard to Section 7 (3A) of the Act. It was not the case of the respondent that the delay in the payment of gratuity was due to the fault of the employee and that it had obtained permission in writing from the controlling authority for the delayed payment on that ground. As noticed above, there is a clear mandate in the provisions of Section 7 to the employer for payment of gratuity within time and to pay interest on the delayed payment of gratuity. There is also provision to recover the amount of gratuity with compound interest in case amount of gratuity payable was not paid by the employer in terms of Section 8 of the Act. Since the employer did not satisfy the mandatory requirements of the proviso to Section 7 (3A), no discretion was left to deny the interest to the appellant on belated payment of gratuity. Unfortunately, the Division Bench of the High Court, having found that the appellant was entitled for interest, declined to interfere with the order of the learned Single Judge as regards the claim of interest on delayed payment of gratuity only on the ground that the discretion exercised by the learned Single Judge could not be said to be arbitrary. In the first 17 OA No. 1977/2024 Item No. 63/C-I place in the light of what is stated above, the learned Single Judge could not refuse the grant of interest exercising discretion as against the mandatory provisions contained in Section 7 of the Act. The Division Bench, in our opinion, committed an error in assuming that the learned Single Judge could exercise the discretion in the matter of awarding interest and that such a discretion exercised was not arbitrary.
10. In the light of the facts stated and for the reasons aforementioned, the impugned order cannot be sustained. Consequently, it is set aside. The respondent is directed to pay interest @ 10% on the amount of gratuity to which the appellant is entitled from the date it became payable till the date of payment of the gratuity amount. The appeal is allowed accordingly with cost quantified at Rs. 10,000/-."
19. It is stated through an affidavit by the petitioner no. 1 that neither any divorce was granted nor her marriage with the deceased (late Manoj Kumar Sharma) was dissolved by any Court of law. It is further stated in the said affidavit that her (petitioner no. 1) marriage with (late Manoj Kumar Sharma) has been subsisting as on the date of his demise. It is also submitted by petitioner No. 1 that her husband (late Manoj Kumar Sharma) left behind herself being Widow and minor son - Ojas Vashishth (Petitioner No. 2).
20. As mentioned in the matter of Githa Hariharan v. Reserve Bank of India (supra), the Hon'ble Supreme Court in the interpretation of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956, emphasized that natural guardianship should be determined based on the capability and genuine interest of the parent in the child's welfare, rather than gender. This decision reaffirms the principle of equality enshrined in the 18 OA No. 1977/2024 Item No. 63/C-I Constitution and underscores the shared responsibility of both parents in nurturing and safeguarding their children, thereby, laying down that mother is a natural guardian of a child. Further, the respondents themselves have stated in the reply that they again (second time) requested both the petitioners and the grandparents of petitioner no. 2 to appear before the Chief Administrative Officer, AIIMS at 3:00 pm on 01.07.2023. The petitioner no. 1 along with petitioner no. 2 duly appeared in the office of the CAO but the grandparents of petitioner no. 2 did not appear on the appointed date and time. Respondents further state that from the interaction held with both the petitioners, it became evident that Master Ojas Vashishth (Petitioner No. 2) was living with his mother, i.e. the petitioner no. 1. In view of the above, and in compliance of the order of this Hon'ble Court, a cheque bearing no. 310732 dated 17.07.2023 amounting to Rs. 2,50,000/- in favour of petitioner no. 2 has been handed over to the petitioner no. 1 on 22.07.2023.
21. It is a well settled position of law that there may be rule or not but denial of interest on retiral due is violations of Article 14, 19 and 21 of the Constitution of India. For facility of reference, the relevant para in the matter of S.K. Dua Vs. State of Haryana & Anr. decided on 09.01.2008 is mentioned as under: - 19 OA No. 1977/2024
Item No. 63/C-I "11. Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. It is not in dispute by and between the parties that the appellant retired from service on June 30, 1998. It is also undisputed that at the time of retirement from service, the appellant had completed more than three decades in Government Service. Obviously, therefore, he was entitled to retiral benefits in accordance with law. True it is that certain charge sheets/ show cause notices were issued against him and the appellant was called upon to show cause why disciplinary proceedings should not be initiated against him. It is, however, the case of the appellant that all those actions had been taken at the instance of Mr. Quraishi against whom serious allegations of mal- practices and misconduct had been levelled by the appellant which resulted in removal of Mr. Quraishi from the post of Secretary, Irrigation. The said Mr. Quraishi then became Principal Secretary to the Chief Minister.
Immediately thereafter charge-sheets were issued to the appellant and proceedings were initiated against him. The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well- founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of bounty is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."
22. In the matter of R. Kapur Vs Director of Inspection decided on 29.09.1994, interest @ 18 % was allowed. For facility of reference, para 11 of the aforesaid judgement is as under: -
"11. The Tribunal having come to the conclusion that DCRG cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion, have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The DCRG due to the appellant will carry interest at the rate of 18% per annum from 1-6-1986 till the date of 20 OA No. 1977/2024 Item No. 63/C-I payment. Of course this shall be without prejudice to the right of the respondent to recover damages under Fundamental Rule 48- A. Thus, the civil appeal is allowed. However, there shall be no order as to costs."
23. In the matter of Vijay L. Mehrotra Vs. State of U.P, AIR 2000 (SC) 3513(2), the Hon'ble Supreme Court allowed 18% interest. Hon'ble Supreme Court not only accorded interest on GIS but also on encashment of leave, gratuity, commuted pension etc., which is a binding precedent.
24. The decision in Vijay L. Mehrotra Vs. State of U.P, AIR 2000 (SC) 3513(2), the Hon'ble Apex Court held that in case of an employee retiring after having rendered service, it is expected that all the payment of retiral benefits should be paid on the date of retirement or soon thereafter, if for some unforeseen circumstances the payment could not be made on the date of retirement interest needs to be paid to the retired employee. In the above case, there was considerable delay in making payment of retirement benefits without any reason or justification for such delay and therefore, the Hon'ble Apex Court awarded simple interest @ 18% per annum from the date of retirement till the date of payment.
25. In the matter of R. Kapur Vs. Director of Inspection decided on 29 September, 1994, interest @ 18 % was allowed. For facility of reference, para 11 of the judgement is as under: - 21 OA No. 1977/2024
Item No. 63/C-I "11. The Tribunal having come to the conclusion that DCRG cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion, have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The DCRG due to the appellant will carry interest at the rate of 18% per annum from 1-6-1986 till the date of payment. Of course this shall be without prejudice to the right of the respondent to recover damages under Fundamental Rule 48-
A. Thus, the civil appeal is allowed. However, there shall be no order as to costs."
26. Rule 68 of CCS (Pension) Rules provides that interest on the delayed payment of Gratuity. For facility of reference, decision of Government of India issued vide OM No. F. 7 (1)-P.U./79, dated 11.07.1979 and OM No. 1(4)/Pen. Unit/82, dated 10.01.1983 is as follows: -
"(1) Admissibility of interest on gratuity allowed after conclusion of judicial/departmental proceedings-
1. Under the rules, gratuity becomes due immediately on retirement. In case of a Government servant dying in service, a detailed time-table for finalizing pension and death gratuity has been laid down, vide Rule 77 onwards.
2. Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity, if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the Competent Authority.
3. In order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases, in accordance with the aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the 22 OA No. 1977/2024 Item No. 63/C-I Government servants who die during the pendency of judicial/disciplinary proceedings against them and against whom proceedings are consequently dropped.
4. These orders (Paragraph 3) shall take effect from the 10th January, 1983. (G1, Dept. of Pst. & A.R, OM. No. F. 7 (1)-PU/79, dated the 11th July, 1979 and No. 1 (4)/Pen. Unit/82, dated the 10th January, 1983.] (2) Interest for delayed payment of Retirement/Death Gratuity to be at the rate applicable to GPF deposits.
1. It has been decided that where the payment of DCRG has been delayed beyond three months from the date of retirement, an interest at the rate applicable to GPF deposits will be paid to retired/dependants of deceased Government servants.
2. The Administrative Ministries are requested to ensure that in all cases where interest has to be paid on Death-cum-Retirement Gratuity because of administrative delay, action should be taken against the officer responsible for the delay."
27. The DOPT has issued O.M. of 1992 wherein 12 % interest has been stipulated to be paid on the delayed payment of Gratuity. The Hon'ble Supreme Court has held that pension is not a bounty by State but is earned. Therefore, for the aforementioned reasons, the applicant is entitled for penal rate of interest on delayed payments of retiral dues.
28. In view of above, original application is allowed with the following directions:-
(a) Order dated 01.02.2023 and dated 03.03.2023 issued by the respondents are quashed and set aside.
(b) Respondents are directed to release the statutory benefits and entitlements viz. Death Gratuity, Leave 23 OA No. 1977/2024 Item No. 63/C-I Encashment and other entitlements and benefits accrued to the deceased employee (who was husband of petitioner no.1 and father of petitioner no. 2) to the petitioners with interest applicable on GPF till the date of actual payment. All dues shall be paid within 10 weeks from the date of receipt of certified copy of this order.
(c) No order to cost.
(d) Pending MAs, if any, stand closed,
(Rajinder Kashyap)
Member (A)
/neetu/