Himachal Pradesh High Court
Pass Road Kather vs Downloaded On - 31/01/2022 ... on 28 December, 2021
Bench: Mohammad Rafiq, Jyotsna Rewal Dua
1
IN HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 28 th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ,
CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) No. 2319 of 2020
Between :-
SH. GOVIND RAM SHARMA, S/O SHRI
WAZIROO RAM SHARMA, R/O H. No.
88/3, NEAR CHAMUNDA MANDIR, BYE
PASS ROAD KATHER, P.O., TEHSIL
AND DISTRICT SOLAN, H.P.
...PETITIONER
(BY MR. NARENDER SHARMA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY
(REVENUE), SHIMLA-171002.
2. SECRETARY (PERSONNEL) GOVT. OF
HIMACHAL PRADESH, SHIMLA-171
002.
3. DIVISIONAL COMMISSIONER, DIVISION
SHIMLA, H.P.
4. DEPUTY COMMISSIONER, DISTRICT
::: Downloaded on - 31/01/2022 23:30:19 :::CIS
2
SOLAN, H.P.
5. SUB DIVISIONAL OFFICE, SUB
DIVISION KANDAGHAT, DISTRICT
SOLAN, H.P.
.
...RESPONDENTS
(BY MR. ASHOK SHARMA, ADOVCATE
GENERAL WITH MR. RANJAN SHARMA,
ADDITIONAL ADVOCATE GENERAL)
____________________________________________________
This petition coming on for admission this day,
Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the following
ORDER
The petitioner submits that though during pendency
of the present petition, respondents have released his withheld
retiral benefits, but withholding of retiral benefits was neither
justified nor legal, therefore, the respondents are liable to pay him
interest on delayed payment of retiral benefits.
2. Facts
2(i) The petitioner was appointed as a clerk in the year
1972. He was promoted to the post of Superintendent Grade-II on
24.01.2007. The petitioner was transferred and posted in the
office of Sub Divisional Officer (C) Kandaghat, District Solan, H.P.
on 11.02.2008.
2(ii) A team of accounts experts headed by Accounts
Officer from the office of Deputy Commissioner Solan inspected
and audited the accounts of the office of Sub Divisional Office (C)
.
Kandaghat, District Solan, H.P. The team reported
misappropriation of substantial amount of money. In this regard a
show-cause notice was issued to the petitioner on 23.09.2010 as
to why disciplinary action be not initiated against him for the
alleged lapses which happened under his supervision as
Superintendent Grade-II.
2(iii) Vide order dated 24.09.2010 passed by the
Divisional Commissioner Shimla in exercise of powers under Rule
10(1) of CCS (CCA) Rules 1965, the petitioner was put under
suspension pending contemplated disciplinary proceedings. The
petitioner filed reply to the show-cause notice on 30.09.2010. He
retired from service on 30.09.2010 on attaining age of
superannuation.
2(iv) On 26.04.2011 i.e. six months after the
superannuation of the petitioner, a memorandum was issued to
him by the respondents under Rules 14 and 15 of the CCS (CCA)
Rules 1965. This charge-sheet was issued pursuant to the
sanction accorded by the Government under Rule 9(2)(b)(i) of the
CCS (Pension) Rules 1972. Petitioner filed his reply to the charge
sheet on 21.05.2011.
2(v) The petitioner had superannuated on 30.09.2010. In
.
view of his having been suspended vide order dated 24.09.2010,
retiral benefits were not released to the petitioner by the
respondents. Petitioner submitted various representations to the
respondents for revocation of his suspension and for release of
retiral benefits due to him. In these representations, the petitioner
submitted inter-alia that it was the then Sub Divisional Officer (C)
who was actually responsible for the lapses alleged against the
petitioner in the charge-sheet. That the concerned Sub Divisional
Officer (C) Kandaghat had been released all retiral benefits on
his superannuation. However, the petitioner had been made
scapegoat. Due and admissible retiral benefits were not released
to him. The respondents did not respond to the petitioner's
representations in a meaningful manner, he, therefore, was
compelled to institute the present writ petition for the following
reliefs :-
"(a) That in view of the facts and circumstances as well as
submissions made hereinabove, the humble applicant
prays for quashing of impugned order of suspension dated
24.09.2010 Annexure A/1, memorandum of Charges dated
26.04.2011 Annexure A/2 and all subsequent proceedings
thereupon in the interest of justice.
(b) That the respondents be directed to fix the pension of
the applicant on actual basis instead of provisional as has
.
been releasing.
(c) That the respondents be directed to release the withheld
amount of DC & RG, Commutation of pension amount,
salary due for the period of 24.09.2010 to 30.09.2010 and
arrears of pension if found payable on fixation of actual
basis. The entire amount withheld and due may be directed
to be released alongwith interest @ 18% compound
interest from the due date (01.10.2010) till final realization."
3.
We have heard learned counsel for the petitioner and
learned Additional Advocate General for the respondent-State.
Learned counsel for the petitioner submitted that
during the pendency of the present petition, the respondents
passed an order on 10.08.2017 whereunder the due and
admissible retiral benefits have been released to the petitioner.
Learned counsel contended that in the instant case, the
respondents had no justification for withholding petitioner's retiral
benefits, therefore, interest @ 18% per annum deserves to be
paid to the petitioner on the delayed payment of retiral benefits.
The stand of the respondents is that due and
admissible retiral benefits through now stand released in
petitioner's favour. However, petitioner had failed to discharge his
duties with due devotion while being posted as Superintendent
Grade-II in the office of Sub Divisional Officer (C) Kandaghat.
.
4. Observations
4(i) Hon'ble Apex Court in (2020) 4 SCC 346, titled Dr.
Hira Lal Versus State of Bihar and others, while interpreting the
Bihar Pension Rules etc., reiterated that pension and gratuity are
not mere bounties, or given out of generosity by the employer.
The employee earns these benefits by virtue of his long,
continuous, faithful and unblemished service. The right to receive
pension of a public servant was held to be covered under the
"right to property" under Article 31(1) of the Constitution of India in
Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330. The
right to receive pension has been held to be a right to property
protected under Article 300-A of the Constitution even after the
repeal of Article 31(1) by the Constitution (Forty-Fourth
Amendment) Act, 1978 w.e.f. 20-6-1979, as held in State of W.B.
v. Haresh C. Banerjee, (2006) 7 SCC 651.
In (2008) 3 SCC 44 titled S.K. Dua Vs. State of
Haryana and another, the appellant was served with three
charge-sheets few days before his retirement. Provisional
pension was paid to him but other retiral benefits were not given
to him. They were withheld till finalization of disciplinary
proceedings. The retiral benefits were given to him four years
after superannuation. The appellant claimed interest @ 18% per
.
annum for the delayed payment. Hon'ble apex Court held that if
there is no specific rule or order providing for interest, relief can
be claimed on the basis of Articles 14, 19 and 21 of the
Constitution of India because retirement benefits are not a
bounty. Relevant para from the judgment reads as under :-
"14.
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.
.
18. In the affidavit filed by the State-
Authorities in this Court, the stand taken by
Government is that vigilance enquiries are still
pending against the appellant. The said affidavit is
of January, 2005. In the affidavit in rejoinder, the
writ-petitioner has stated that the alleged pendency
of the vigilance enquiry if any is insignificant .
We are also not aware as to what has happened
thereafter though considerable period has elapsed.
In view of all these facts, in our opinion, it would be
in the interest of both the parties that we may remit
the matter to the High Court so as to enable the High
Court to consider the matter on merits and pass an
appropriate order in accordance with law. We are
mindful that the appellant is a senior citizen and the
prayer relates to interest on retiral dues paid to him
after four years. Keeping in view the totality of facts
and circumstances, we request the High Court to
give priority to the case and decide it finally as
expeditiously as possible, preferably before June 30,
2008.
(2014) 8 SCC 894, titled D.D. Tewari (Dead)
through Legal Representatives Vs. Uttar Haryana Bijli Vitran
Nigam Limited and others, was a case where the appellant
had retired from service on 31.10.2006 and his retiral benefits
were released pursuant to order dated 25.08.2010 passed by
the High Court wherein no interest was awarded for delayed
.
payment. Holding that denial of interest from the date of
entitlement till date of payment resulted in miscarriage of justice,
interest @ 9% on delayed payment was allowed by the Hon'ble
apex Court as under :-
"5. The said legal principle laid down by this
Court still holds good in so far as awarding the
interest on the delayed payments to the appellant is
concerned. This aspect of the matter was adverted
to in the judgment of the learned single Judge
without assigning any reason for not awarding the
interest as claimed by the appellant. That is why that
portion of the judgment of the learned single Judge
was aggrieved of by the appellant and he had filed
L.P.A. before Division Bench of the High Court. The
Division Bench of the High Court has passed a
cryptic order which is impugned in this appeal. It has
adverted to the fact that there is no order passed by
the learned single Judge with regard to the payment
of interest and the appellant has not raised any plea
which was rejected by him, therefore, the Division
Bench did not find fault with the judgment of the
learned single Judge in the appeal and the Letters
Patent Appeal was dismissed. The correctness of
the order is under challenge in this appeal before this
Court urging various legal grounds.
6. 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.
7. 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.
.
8. 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."
4(ii) The record shows that the petitioner was suspended
on 24.09.2010 for his alleged supervisory failure. The allegation
against the petitioner was that he failed to check the working of
Sh. Dhani Ram, Senior Assistant (the then cashier) in the office of
Sub Divisional Officer (C) Kandaghat, District Solan, H.P. FIR No.
107 of 2010 was registered at Police Station Kandaghat for
embezzlement of Government money against said Sh. Dhani
Ram.
4(iii) The petitioner superannuated from service on
30.09.2010. The charge-sheet under Rules 14 and 15 of CCS
(CCA) Rules was issued to the petitioner on 26.04.2011 i.e. more
than six months after his retirement. In the FIR registered against
the alleged offender Dhani Ram, cancellation report was
prepared which was accepted by the Court. The concerned Sub
Divisional Officer (C), who was also exercising the Drawing and
.
Disbursing powers and according to the respondents was
responsible for checking and signing the cash-book against
whom the joint proceedings were to be initiated alongwith the
main offender Dhani Ram-cashier and the petitioner, retired from
Government service on 31.03.2015. All his retiral dues were
released to the said officer by the respondents.
4(iv) The order dated 10.08.2017 passed by the Divisional
Commissioner Shimla Division reflects that after the issuance of
charge-sheet against the petitioner, no inquiry proceeding was
ever initiated against him. Realizing the above facts, the
Divisional Commissioner Shimla on 10.08.2017 ordered that
pensionary benefits of the petitioner i.e. DCRG, Leave
encashment, GIS as well as due salary w.e.f. 24.09.2010 to
30.09.2010 be released to him immediately. Pursuant to the order
dated 10.08.2017, the withheld retiral benefits now have been
paid to the petitioner.
4(v) Present is a fit case where the petitioner deserves to
be paid interest on his withheld retiral/pensionary benefits. The
petitioner was suspended on 24.09.2010. He superannuated on
30.09.2010. The charge-sheet was issued to him on 26.04.2011.
FIR was not registered against the petitioner. Inquiry was never
initiated against him even after a lapse of 7 years from the date
.
of issuance of charge-sheet. The petitioner was charge-sheeted
for supervisory failure. For the same supervisory failure, the retiral
benefits were not withheld from the then Sub Divisional Officer
(C) Kandaghat, District Solan, H.P. Despite repeated
representations of the petitioner, withheld retiral benefits were not
released to him. The same were released only pursuant to the
order dated 10.08.2017 passed by respondent No. 3.
For the aforesaid reasons, we allow the instant
petition and direct the respondents to pay interest @ 6% per
annum to the petitioner on his all withheld retiral/pensionary
benefits w.e.f. due date till the date of actual payment. This
exercise be done within a period of two months from today. The
writ petition stands disposed off, so also the pending applications,
if any.
(Mohammad Rafiq )
Chief Justice
28th December, 2021 (K) ( Jyotsna Rewal Dua )
Judge
.
