Calcutta High Court (Appellete Side)
Chanchal Kumar Misra vs The State Of West Bengal & Ors on 12 November, 2014
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
12.11.2014
srm
W.P. No. 25311 (W) of 2014
Chanchal Kumar Misra
Versus
The State of West Bengal & Ors.
Mr. Debabrata Saha Roy,
Mr. Indranath Mitra
...For the Petitioner.
Md. Yamin Ali,
Mr. Saidul Islam
...For the State.
Mr. Suman Sengupta,
Mr. Sanatan Panja,
Ms. Rima Das,
Ms. Riyanka Chakraborty
...For the Municipality.
This writ application is filed by the petitioner for issuing a writ in the
nature of mandamus for releasing his arrear pension, arrear dearness relief
together with interest for delayed payment of the same as also interest on
gratuity for delayed payment of the same.
The petitioner retired from the service of the respondent‐Municipality
with effect from July 31, 2011. A Pension Payment Order was issued by the respondent authority under Memo No.M/01132/2013 dated September 24, 2013 in favour of the petitioner. On the basis of the above pension payment order the gratuity money and current pension have been released in his favour. 2 There was delay in payment of gratuity. The arrear pension, arrear dearness relief is yet to be paid.
It is submitted by Mr. Debabrata Saha Roy, learned Advocate appearing on behalf of the petitioner, that the respondent‐Municipality is under obligation to release the above payment in favour of the petitioner. It is also submitted by him that the above issue has already been settled by a judgment dated October 6, 2010 passed in the matter of Bimal Nath Chakraborty vs. State of West Bengal & Ors. (In Re: W.P. No.15624 (W) of 2009.
It is submitted by Md. Yamin Ali, learned Advocate appearing on behalf of the State‐respondents, that it is the settled principles of law that the Municipality is under obligation to release the terminal benefits of the employees and in the event there is any failure on the part of the respondent‐ Municipality they are liable to pay interest for such delayed payment. Mr. Ali relies upon the decision of D.D. Tewari vs. Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. reported in AIR 2014 SC 2861.
It is submitted by Mr. Suman Sengupta, learned Advocate appearing on behalf of the respondent‐Municipality, on instruction, that, according to the procedure prevailing, the State Government is under obligation to release 40% of the arrear pension and dearness relief of the officers/employees of the Municipality. Since the above portion of payment has not yet been received 3 even after issuing a communication dated July 3, 2014, the Municipality is not under obligation to the aforesaid amount to the petitioner.
Having heard the learned Counsel appearing for the respective parties as also after considering that a point of law is to be decided on the basis of the materials available on record this matter is taken up for final hearing with the consent of the parties.
It is not in dispute that a Pension Payment Order dated September 24, 2013 was issued in favour of the petitioner. On the basis of the above pension payment order the petitioner is entitled to receive the arrear pension, arrear dearness relief together with interest for delayed payment of the same as also interest on delayed payment of gratuity apart from his other terminal benefits. With regard to the responsibility of releasing the above terminal benefits the relevant portions of the above decision of D.D. Tewari (supra) are quoted below:
"5. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants therein 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 4 amount falls due to the deceased employee. With the above directions, this appeal is allowed."
The judgment dated October 6, 2010 delivered in the matter of Bimal Nath Chakraborty (supra) dealing with the identical issued is also required to be taken into consideration and the relevant portions of the above decision are quoted below:
"After considering the decision of Tshering Bhutia & Ors. and Bidhannagar (Salt Lake) Welfare Association (supra), I find that these decisions have no manner of application in this case in view of the distinguishable fact and circumstances involved in this case. Since no legally tenable ground has shown for non payment of arrear pension as also gross gratuity to the petitioner, I direct the respondent Municipality to act in terms of the aforesaid order dated January 7, 2009 passed by the Chairman of the respondent Municipality by releasing Rs.96,220/‐ towards the arrear pension and Rs.1,51,000/‐ towards gross gratuity to the petitioner subject to adjustment of any amount of gratuity, if already paid, together with an interest the highest prevailing rate payment on fixed deposit by a nationalized bank from January 7, 2009 till the actual date of payment within a period of three months from the date of communication of this order."
Considering the facts and circumstances in the light of the above decisions, I am of the opinion that approaching the State Government for releasing of 40% of the arrear pension, arrear dearness relief together with interest for delayed payment of the same as also interest on delayed payment of gratuity cannot be a valid ground for withholding the payment for releasing of the above dues to the petitioner. No material is produced before this Court 5 to substantiate the above submissions made on behalf of the respondent‐ Municipality with regard to the obligation of the State Government.
Needless to point out that the payment of arrear pension, arrear dearness relief together with interest for delayed payment of the same as also interest on delayed payment of gratuity is not a bounty payable to the petitioner. It is his earning kept in the custody of the employer for payment of such amount to the petitioner to cope with his financial needs after his superannuation from the above service.
In view of the above, I find no substance in the above submissions made on behalf of the respondent‐Municipality.
The respondent‐Municipality is directed to release arrear pension and arrear dearness relief to as also interest on delayed payment of gratuity the petitioner within a period of two months from the date of communication of this order together with interest at the rate of 9% per annum for the period from the date when it was due and payable till the actual date of its payment.
If the same is not paid within the period mentioned hereinabove from the date of receipt of the 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 petitioner. Such payment shall be made within further period of six weeks. 6 Let it be recorded that the rate of interest is fixed at 9% per annum taking into consideration the highest rate of interest payable by a nationalised bank on fixed deposit.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Urgent photostat certified copy of this order be supplied to the parties, if applied for, subject to compliance with all necessary formalities.
( Debasish Kar Gupta, J. )