Chattisgarh High Court
J.R. Bhagat vs State Of Chhattisgarh on 14 October, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 18-07-2022
Pronounced on 14-10-2022
Writ Petition (S) No. 3824 of 2021
J.R. Bhagat S/o Late Shri Ramdev Bhagat Aged About 68 Years
Resident Of A-6, Kranti Nagar, Bilaspur , Tahsil And District Bilaspur
Chhattisgarh., District : Bilaspur, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Commercial Tax
Department, Atal Nagar, Mantralaya, Mahanadi Bhawan, Nawa
Raipur Chhattisgarh.
2. The Accountant General Government Of Chhattisgarh, Zero Point
Balodabazar Road, Raipur Chhattisgarh.
3. The Upper Chief Secretary Government Of Chhattisgarh,
Commercial Tax Department , Mahanadi , Nawa Raipur Chhattisgarh.
4. The Joint Director Treasury, Accounts And Pension, Raipur
Chhattisgarh.
5. The Joint Deputy Commissioner Commercial Tax Division No. 1,
Commercial Building Raipur Chhattisgarh.
---- Respondents
For Petitioner : Mr. Umakant Singh Chandel, Advocate
For State : Mr. Suyash Dhar, Panel Lawyer
For UOI : Mr. Raj Kumar Gupta, Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1) The petitioner who retired as Joint Commissioner, Commercial Tax has
filed petition under Article 226 of the Constitution of India and has
prayed for quashment of the order dated 01.03.2021 by which the claim
of the petitioner for grant of interest at the rate of 12% per annum on the
delayed payment of pension and gratuity from the date of entitlement of
the petitioner to the date of actual payment has been denied.
2) The brief facts as reflected from the record are that the petitioner while
working as Divisional Deputy Commissioner, Commercial Tax, Bilaspur
was served with charge sheet vide order dated 24.09.2007 and inquiry
was initiated against him. During the pendency of the inquiry he was
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retired after completion of the age of superannuation on 02.11.2011. The
amount of gratuity was withheld on account of departmental inquiry and
further vide order dated 01.12.2012, 90% of the pension was sanctioned
in favour of the petitioner and remaining 10% pension was withheld. The
inquiry was completed on 23.03.2017 wherein he was exonerated by the
inquiry officer from the charges levelled against him and respondent No.
1 closed the inquiry proceeding on 01.05.2018. Since, the pension and
gratuity have been paid belatedly, therefore, he has filed application for
payment of interest on the gratuity and pension amount which was
rejected vide memo dated 01.03.2021 on the count that there is no
provision under the Chhattisgarh Civil Services (Pension) Rules, 1976
for grant of interest over the belated amount of gratuity and pension.
3) The State has filed their return in which they have stated that the petition
is barred by limitation. The petitioner has filed petition after 7 years of his
retirement without giving any proper explanation. As such, the petition
deserves to be dismissed by this Court on the count of delay and
latches. It is further contended that the petitioner has received the
provisional pension and other admissible retiral dues in year 2013
except gratuity without any demur and protest, now he is claiming for
grant of interest invoking the Rules 9(4) of the Rules, 1976 as such the
petition is not tenable and deserves to be dismissed. It has been further
contended that the petitioner has not disclosed any fact what efforts
have been made by him for early conclusion of the departmental inquiry.
The petitioner was getting the provisional pension, therefore, the
grievance raised by the petitioner is after thought and the petition
deserves to be dismissed.
4) Learned counsel for the petitioner would submit that the petitioner has
been exonerated from the charges and the pension was withheld by the
respondents, therefore, he is entitled to get interest on withheld pension
and gratuity. He would refer to the judgment of the Hon'ble Supreme
Court in case of State of Jharkhand and Others vs Jitendra Kumar
Shrivastava and Another 1 wherein Hon'ble Supreme Court has held as
under :-
"10. The present case is admittedly governed by Bihar Pension Rules,
as applicable to the State of Jharkhand. Rule 43(b) of the said
Pension Rules confers power on the State Government to withhold or
1
(2013) 12 SCC 210
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withdraw a pension or part thereof under certain circumstances. This
Rule 43(b) reads as under:
"43(b) The State Government further reserve to
themselves the right of withholding or withdrawing a
pension or any part of it, whether permanently or for
specified period, and the right of ordering the recovery
from a pension of the whole or part of any pecuniary loss
caused to Government if the pensioner is found in
departmental or judicial proceeding to have been guilty to
grave misconduct, or to have caused pecuniary loss to
Government misconduct, or to have caused pecuniary
loss to Government by misconduct or negligence, during
his service including service rendered on re-employment
after retirement".
11. From the reading of the aforesaid Rule 43(b), following position
emerges:-
(i) The State Government has the power to withhold or
withdraw pension or any part of it when the pensioner is
found to be guilty of grave misconduct either in a
departmental proceeding or judicial proceeding.
(ii) This provision does not empower the State to invoke
the said power while the department proceeding or judicial
proceeding are pending.
(iii) The power of withholding leave encashment is not
provided under this rule to the State irrespective of the
result of the above proceedings.
(iv) This power can be invoked only when the proceedings
are concluded finding guilty and not before.
12. There is also a Proviso to Rule 43(b), which provides that:-
"A. Such departmental proceedings, if not instituted while
the Government Servant was on duty either before
retirement or during re-employment.
i. Shall not be instituted save with the sanction of the State
Government.
ii Shall be in respect of an event which took place not
more than four years before the institution of such
proceedings.
iii Shall be conducted by such authority and at such place
or places as the State Government may direct and in
accordance with the procedure applicable to proceedings
on which an order of dismissal from service may be
made:-
B. Judicial proceedings, if not instituted while the
Government Servant was on duty either before retirement
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or during re-employment shall have been instated in
accordance with sub clause (ii) of clause (a) and C. The
Bihar Public Service Commission, shall be consulted
before final orders are passed.
It is apparent that the proviso speaks about the institution of
proceedings. For initiating proceedings, Rule 43(b) puts some
conditions, i.e, Department proceeding as indicated in Rule
43(b), if not instituted while the Government Servant was on
duty, then it shall not be instituted except:-
(a) With the sanction of the Government,
-
(b) It shall be in respect of an event which took place not
more than four years before the institution of the
proceedings.
(c) Such proceedings shall be conducted by the enquiry
officer in accordance with the proceedings by which
dismissal of the services can be made.
Thus, in so far as the proviso is concerned that deals with
condition for initiation of proceedings and the period of
limitation within which such proceedings can be initiated.
13. Reading of Rule 43(b) makes it abundantly clear that even
after the conclusion of the departmental inquiry, it is permissible
for the Government to withhold pension etc. ONLY when a
finding is recorded either in departmental inquiry or judicial
proceedings that the employee had committed grave
misconduct in the discharge of his duty while in his office.
There is no provision in the rules for withholding of the pension/
gratuity when such departmental proceedings or judicial
proceedings are still pending."
5) He would further refer to the judgment passed by the coordinate Bench
of this Court in the matter of P.L. Dubey vs. State of Chhattisgarh
and Others (decided on 12.08.2014 in Writ Petition (S) No.
5541/2012) wherein Hon'ble Coordinate Bench of this Court has held
as under:-
"10. Sub-rule (4) of Rule 9 of the Rules, 1976 makes it explicit that
in the case of a Government servant, who has retired on
attaining the age of superannuation or otherwise and against
whom any departmental or judicial proceedings are instituted or
where departmental proceedings are continued under sub-rule
(2) a provisional pension and death-cum-retirement gratuity as
provided in Rule 64, as the case may be, shall be sanctioned,
and thereafter providing in clause (b) of third proviso that if the
departmental proceedings are not completed within a period of
two years from the date of institution the entire amount of
pension so withheld shall stand restored on the expiration of
the aforesaid period of two years."
6) He would further submit that as per Rule 9(4) of the Rules, 1976, if
departmental proceedings are not completed within a period of two
years from the date of institution of the inquiry, the entire amount of
pension so withheld shall be restored on the expiration of two years. He
was charge-sheeted on 24.09.2007 and inquiry has been completed on
23.03.2017 i.e. after 6½ years of retirement wherein he was exonerated,
therefore, as per Rule 9(4) of the Rules, 1976 the petitioner should have
been paid entire pension after two years from his retirement i.e. on
01.11.2013. The petitioner has preferred representation on 22.09.2014
and 14.09.2017 but the same has not been considered and remaining
amount of pension and gratuity has not been paid to the petitioner.
Thereafter, vide order dated 01.05.2018, the respondent No. 1 has
closed the inquiry proceeding and he has been paid the amount of
gratuity and difference of 90% of pension in the year 2019 without any
interest, therefore, he would pray for release of interest on the delayed
payment of gratuity and the pension amount.
7) On the other hand learned State counsel opposes the submission made
by the learned counsel for the petitioner and submit that the petition
deserves to be dismissed. He would further submit that in the present
facts and circumstances of the case the provisions of Rule 9 (4) of the
Rules, 1976 is not applicable, as such petitioner is not entitled to get any
interest on delayed payment of pension and gratuity.
8) I have heard learned counsel for the parties and perused the records
with utmost satisfaction.
9) Before adverting to the controversy raised in the petition, it is expedient
for this Court to extract relevant provisions of the Rules, 1976 which is
necessary for adjudicating the case:-
"9(4). of the Rules, 1976 - In the case of a Government servant
who has retired on attaining the age of superannuation or
otherwise and against whom any departmental or judicial
proceedings are instituted or where departmental
proceedings are continued under sub-rule (2), a provisional
pension and death-cum-retirement gratuity as provided in
[Rule 64], as the case may be, shall be sanctioned :
[Provided that where pension has already been finally
sanctioned to a Government servant prior to institution of
departmental proceedings, the Governor may, by order in
writing, withhold, with effect from the date of institution of
such departmental proceedings fifty per cent of the pension
so sanctioned subject however that the pension payable
after such withholding is not reduced to less than [the
minimum pension as determined by the Government from
time to time] :
Provided further that where departmental proceedings have
been instituted prior to the 25th October, 1978, the first
proviso shall have effect as it for the words "with effect from
the date of institution of such proceedings" the words "with
effect from a date not later than thirty days from the date
aforementioned," had been substituted :
Provided also that-
(a) If the departmental proceedings are not completed
within a period of one year from the date of institution
thereof, fifty per cent of the pension withheld shall stand
restored on the expiration of the aforesaid period of one
year;
(b) If the departmental proceedings are not completed
within a period of two years from the date of institution
the entire amount of pension so withheld shall stand
restored on the expiration of the aforesaid period of two
years; and
(c) If in the departmental proceedings final order is
passed to withhold or withdraw the pension or any
recovery is ordered, the order shall be deemed to take
effect from the date of the institution of departmental
proceedings and the amount, of pension since withheld
shall be adjusted in terms of the final order subject to the
limit specified in sub-rule (5) of Rule 43].
10) From the above facts, it is not in dispute that the petitioner was charge-
sheeted in year 2007 and he stood retired on 02.11.2011. Entire
pension was not paid to him till he got exonerated from the charges on
01.05.2018. Rule 9(4) provides that if inquiry is not completed within
two years from the date of retirement, the entire amount of pension
shall be released to the petitioner. The respondents have not filed any
document to demonstrate that inquiry proceeding was pending on
account of delay tactics adopted by the petitioner to stall the
departmental proceeding nor the State has filed any averments in the
return to explain why provisions of Rule 9(4) of the Rules, 1976 has not
been complied with by them before withholding of the pension. From
the perusal of the judgment passed by the Hon'ble Supreme Court in
case of Jitendra Kumar Shrivastava (supra) it is quite vivid that the
respondents have no power to withhold the pension after two years and
as per judgment passed by the Coordinate Bench of this Court and
considering the provision of Rule 9(4) it is quite vivid that if inquiry is not
concluded within two years from the date of retirement of the
government servant, the government servant is entitled to get full
pension and gratuity. Thus, action of the respondents in not releasing
the pension and gratuity is deliberate one on their part.
11) The law has been well settled by the Hon'ble Supreme Court that
pension shall be released to the government servant immediately after
his retirement and withholding of the same is also permissible as per
the service rules applicable to the government servant. In the present
case it is crystal clear that the Rules, 1976 have been violated which
has entitled the petitioner to get interest on delayed payment of pension
and gratuity.
12) The Hon'ble Supreme Court in case of State of Andhra Pradesh and
Another vs. Dinavahi Lakshmi Kameswari 2 has examined this issue
and directed for payment of 6% interest on the delayed payment,
relevant part of the judgment are extracted below :-
"13. The direction for the payment of the deferred portions of the
salaries and pensions is unexceptionable. Salaries are due to
the employees of the State for services rendered. Salaries in
other words constitute the rightful entitlement of the employees
and are payable in accordance with law. Likewise, it is well
settled that the payment of pension is for years of past service
rendered by the pensioners to the State. Pensions are hence a
matter of a rightful entitlement recognised by the applicable
rules and regulations which govern the service of the
employees of the State. The State Government has complied
with the directions of this Court for the payment of the
outstanding dues in two tranches. Insofar as the interest is
concerned, we are of the view that the rate of 12% per annum
which has been fixed by the High Court should be suitably
scaled down. While learned counsel for the respondents
submits that the award of interest was on account of the action
of the Government which was contrary to law, we are of the
view that the payment of interest cannot be used as a means to
penalize the State Government. There can be no gainsaying
the fact that the Government which has delayed the payment of
salaries and pensions should be directed to pay interest at an
appropriate rate.
14 We accordingly order and direct that in substitution of the
(2021) 11 SCC 543
interest rate of 12% per annum which has been awarded by the
High Court, the Government CA 399/2021 of Andhra Pradesh
shall pay simple interest computed at the rate of 6% per annum
on account of deferred salaries and pensions within a period of
thirty days from today. This direction shall, however in the facts
and circumstances, be confined to categories 3, 4, 5 and 6 of
GOMs No 26 dated 31 March 2020. We clarify that interest
shall be paid to all pensioners of the State at the rate of 6% per
annum on the deferred portion, for the period of delay. Having
regard to the prevailing bank interest, the rate of 12% per
annum which has been fixed by the High Court, would need to
be and is accordingly reduced."
13)The Hon'ble Supreme Court very recently in case of Dr. A. Selvaraj
vs. C.B.M. College and Others 3 has deprecated the practice of
releasing retiral dues with delay and directed for payment of interest
and held as under:-
"4. Having heard learned counsel for the respective parties, we
are of the opinion that as there was a delay in making the
payment of retirement benefits and settling the dues for which
the appellant employee is not at all responsible, he is entitled to
the interest on the delayed payment. Even the Division Bench
of the High Court has also observed in the impugned judgment
and order that the appellant is entitled to the interest on the
delayed payment. However, there is an inter se dispute
between the Secretary, Management and the Government as
to who is responsible for the delay in making the payment to
the appellant and therefore, he has been denied the interest on
delayed payment though entitled to. It is to be noted that as
such pursuant to the interim order dated 09.08.2021, the
Government did conduct an enquiry and fastened the liability
on the college and observed that the former Secretary, Shri
C.M. Ramaraj was responsible for the delay in disbursal of the
terminal benefits to the original writ petitioner. In that view of
the matter, subject to the further final order that may be passed
by the Government, the College/Management is first liable to
pay the interest on the delayed payment of retirement dues
subject to the final decision, which may be taken by the
Government, after hearing the Management and the former
Secretary. However, because of the inter se dispute between
the Management, Secretary and the Government on who is
responsible for the delay in making the payment and/or settling
the dues, the retired employee should not be made to suffer for
no fault of his.
5. In view of the above discussion and for the reasons stated
above, present Appeal Succeeds. The impugned judgment and
order passed by the Division Bench of the High Court and that
of the learned Single Judge denying the interest on delayed
payment of retirement benefits to the appellant is hereby
Order dated 04.03.2022 in Civil Appeal No. 1698/2022
quashed and set aside. The Management / Trustees / College
are hereby directed to pay the interest on the delayed payment
of retirement benefits to the Appellant, from the date of
retirement till the actual payment was made, subject to the final
decision that may be taken by the Government on the
objections to the enquiry report that may be filed by the former
Secretary and/or the College and it will be open for the
College / Management / Trustees to recover the same from the
person, who, ultimately is held to be responsible for the delay.
The payment of interest on delayed payment of retirement
benefits to be paid strictly within a period of six weeks from
today. In the meantime, the Government to pass a final order
on the enquiry report after giving an opportunity to the College /
Management / former Secretary. It goes without saying that it
would be open to the aggrieved party to challenge the said
decision before the appropriate forum."
14) From the above factual and legal position, it is quite vivid that there is
no justifiable reason for the respondents to withhold the pension even
after two years from the date of retirement coupled with the fact that the
petitioner has been exonerated in the departmental inquiry vide order
dated 01.05.2018. Therefore, the petitioner is entitled to get interest on
the delayed payment of gratuity and withheld pension of 10% which has
been released to the petitioner in the year 2019. Accordingly, the
respondents are directed to pay interest of 6% per annum on the
amount of gratuity and withheld amount of pension from 01.11.2013 to
the date of actual payment made to the petitioner within two months
from the date of receipt of copy of this order.
15) Accordingly, the writ petition is allowed to the extent above mentioned.
16) No order as to costs.
Sd/-
(Narendra Kumar Vyas)
Judge
Deshmukh
