Madras High Court
The Commissioner vs P.Venkatesan on 9 July, 2021
W.A.No.1570 of 2021 and
C.M.P. No.9905 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.07.2021
CORAM
THE HONOURABLE Mrs. JUSTICE PUSHPA SATHYANARAYANA
and
THE HONOURABLE Mr.JUSTICE KRISHNAN RAMASAMY
W.A.No.1570 of 2021 and C.M.P. No.9905 of 2021
The Commissioner
Udhagamandalam Municipality
Udhagamandalam ... Appellant
Vs.
1.P.Venkatesan
2.The Principal Secretary to Government
Municipal Administration & Water Supply Department
Fort St. George, Chennai - 600 009
3.The Commissioner of Municipal Administration
Chepauk, Chennai - 600 005
4.The Director of Local Fund Audit
Kuralgam, Chennai.
5.The Commissioner
Corporation of Erode
Erode ...Respondents
PRAYER : Writ Appeal filed under Clause 15 of the Letters Patent
against the order dated 22.03.2019 passed in W.P. No.47 of 2013.
For Appellants : Mr.P.Srinivas
For R1 : Mr.Alagu Gowtham Muthappan
For R2 to R4 : Mr.R.Neelakandan,
State Govt. Counsel
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JUDGMENT
(Delivered by PUSHPA SATHYANARAYANA, J.)
This intra-court appeal is preferred by the Commissioner,
Udhagamandalam Municipality challenging the order dated
22.03.2019 passed in W.P. No.47 of 2013.
2. The first respondent herein/writ petitioner retired from
service as Assistant Revenue Officer on superannuation and he was
relieved from the services of the appellant-municipality on
28.02.2001 subject to audit objections pending against him in other
municipalities. The appellant has forwarded the pension proposal on
26.09.2001 and the same was returned by the fourth respondent
herein, namely the Director of Local Fund Audit, Chennai, citing
pending audit objections. All the audit objections were cleared by
the 1st respondent in 2013 only and thereafter the proposal was
forwarded and the benefits were sanctioned to the first
respondent/writ petitioner on 03.05.2018, after more than a
decade. Hence the petitioner has approached this writ court.
3. Before the writ court, the writ petitioner contended that the
retirement benefits of a government servant cannot be withheld
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endlessly and action should be taken on the file then and there, in
order to settle the retirement benefits, but in the case on hand, in
the absence of any disciplinary proceedings initiated against the writ
petitioner, keeping the file pending and refusing to settle the
retirement benefits, amounts to invidious discrimination, violating
Articles 14 and 16 of the Constitution of India.
4. It was the contention of the appellant before the writ court
that the delay in sanctioning the benefits was due to the inaction of
the first respondent in settling the audit objections and that there
was no delay on the part of the appellant in sanctioning the
benefits.
5. The learned single Judge, upon hearing the arguments of
both sides and relying on a decision of the Division Bench of this
court in Commissioner for Milk Production and Dairy
Development and Ors. vs. S.Venkatachalam and Ors. reported
in (2019) 1 MLJ 1, has held that Rule 45-A of the Tamil Nadu
Pension Rules, 1978, provides for interest on delayed payment of
Gratuity and that the petitioner is entitled to interest on the delayed
payment of Gratuity at the rate prescribed in the said Rule. So also,
the learned single Judge directed that the petitioner is entitled to
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interest at the rate of 12% per annum for the delayed payment of
pension from the date of superannuation till the date of payment.
Aggrieved by the said order, the appellant has preferred this appeal.
6. Heard both sides and perused the materials available on
record.
7. It is the case of the writ petitioner that he retired on
28.02.2001 and his terminal benefits had been settled to him much
beyond a decade. But it is the version of the appellant that the
delay was due to inaction on the part of the first respondent in
settling the audit objections. The learned single Judge, after
referring to Rule 45-A of the Tamil Nadu Pension Rules, 1978, and a
decision of the Division Bench of this court in Commissioner for
Milk Production and Dairy Development and Ors. vs.
S.Venkatachalam and Ors. reported in (2019) 1 MLJ 1, has
allowed the writ petition and directed the appellant to pay interest
for the delayed payment of gratuity at the rate applicable as per
Rule 45-A of the Rules and further directed to pay interest at the
rate of 12% per annum for the delayed payment of pension.
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8. In this regard, it is useful to refer to the judgment of a
Division Bench of this court in Government of Tamil Nadu,
represented by the Secretary to Government, Revenue
Department, Chennai and another vs. M.Deivasigamani
reported in 2009 (3) MLJ 1. In the said case, the Division Bench,
after referring to a judgment of the Hon'ble Apex Court in Dr.Uma
Agarwal v. State of U.P. reported in (1999) 3 SCC 438 has held
that an employee is entitled to interest on belated payment of
pension and other retiral benefits, even in the absence of statutory
rules/administrative instructions or guidelines and he can make his
claim for interest, under Part III of the Constitution, relying on
Articles 14, 19 and 21 of the Constitution. In the said judgment in
paragraphs 5 to 7, the Division Bench has held thus:
"5. In Dr.Uma Agarwal v. State of U.P., reported
in (1999) 3 SCC 438, the Supreme Court held that,
"....grant of pension is not a bounty but a right of the
government servant. The Government is obliged to
follow the Rules mentioned in the earlier part of this
order in letter and in spirit. Delay in settlement of retiral
benefits is frustrating and must be avoided at all costs.
Such delays are occurring even in regard to family
pensions for which too there is a prescribed procedure.
This is indeed unfortunate. In cases where a retired
government servant claims interest for delayed
payment, the Court can certainly keep in mind the time-
schedule prescribed in the Rules/Instructions apart from
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other relevant factors applicable to each case."
6. The contention of the appellant that as per the
Government norms, interest can be paid only on Death-
cum-Retirement Gratuity, in case of delay and the same
cannot be awarded to any other retiral benefits, is not
tenable, in view of the decision of the Supreme Court in
S.K.Dua v. State of Haryana reported in 2008 (3) SCC
44. In the reported case, the appellant therein was
served with three charge sheets/show cause notices in
June 1998, few days before his retirement. However, he
retired on 30.06.1998 on reaching the age of
superannuation. He was paid provisional pension, but
other retiral benefits were not given to him, which
included commuted value of pension, leave encashment,
gratuity, etc. They were withheld till the finalisation of
disciplinary proceedings. While answering the issue as to
whether the appellant therein was entitled to interest on
delayed payment of retiral benefits, in the absence of
any statutory rules/administrative instructions or
guidelines, the Supreme Court, at Paragraph 14 of the
judgment, held as follows:
"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
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appellant may claim benefit of interest on that
basis. But even in the absence of 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."
7. In view of the judgment of the Supreme Court, it is
now well settled that an employee is entitled to interest
on belated payment of pension and other retiral
benefits, even in the absence of statutory
rules/administrative instructions or guidelines and he
can make his claim for interest, under Part III of the
Constitution, relying on Articles 14, 19 and 21 of the
Constitution."
9. In view of the settled position, we do not find any defect or
error in the order of the learned single Judge directing the appellant
to pay interest on the belated payment of the pension to the writ
petitioner. Accordingly, the order of the writ court is sustained. If
already the respondent/writ petitioner had received the provisional
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pension pending audit objections, the respondent/writ petitioner
would be entitled to interest only on the outstanding amount to be
paid.
10. In the result, the writ appeal is dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
[P.S.N., J.] [K.R., J.]
09.07.2021
Index : Yes / No
Internet : Yes / No
Asr
To
1.The Principal Secretary to Government
Municipal Administration & Water Supply Department
Fort St. George, Chennai - 600 009
2.The Commissioner of Municipal Administration
Chepauk, Chennai - 600 005
3.The Director of Local Fund Audit
Kuralgam, Chennai.
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
W.A.No.1570 of 2021 and
C.M.P. No.9905 of 2021
Date : 09.07.2021
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