Kedara Chandra Samal vs State Of Odisha & Ors
2022 Latest Caselaw 3898 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                   WPC (OAC) No.3987 of 2013
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).

  Kedara Chandra Samal                      ....         Petitioner
                               -versus-
  State of Odisha & Ors.                    ....          Opp. Parties



  Advocates appeared in the case through Hybrid Mode:
  For Petitioner               :            Mr. Satyajit Behera, Adv

                               -versus-

  For Opp. Parties            :            Mr. H.K. Panigrahi, ASC

             CORAM:
             DR. JUSTICE S.K. PANIGRAHI

                DATE OF HEARING:-27.07.2022
               DATE OF JUDGMENT:-11.08.2022

    Dr. S.K. Panigrahi, J.

1. The petitioner has filed this Writ Petition seeking a direction to

be issued to the Opp. parties to pay the revised gratuity to an

amount of about Rs.3,46,995/-. He has additionally prayed for a

direction to be issued to the Opp. parties to pay the interest at

the rate of 8.5% for such intentional delayed payment of

gratuity as per Rule 49 (5) of Odisha Civil Services (Pension)

Rules, 1992 from the date of actual entitlement till actual

payment.

2. Shorn of unnecessary details, the factual matrix of the case in

brief is that the petitioner while working as District Welfare

Officer at Kandhamal, retired from service w.e.f. 31.01.2007 on

attaining age of superannuation. After retirement pension

payment order was issued bearing No.367366. After 6 months

of retirement, proceeding was initiated against the petitioner

vide memorandum dated 25.06.2007 under Rule-15 of OCS

(CC&A) Rules, 1962 read with Rule-7 of O C S (Pension), Rules,

1992. The petitioner was directed to file his written statement

of defence within 30 days from the date of receipt of the

memorandum of charges. Accordingly, the petitioner

submitted his written statement of defence on 12.08.2008.

3. After submission of written statement, there was no progress

in the Departmental Proceeding. While the matter stood, the

Finance Department published a resolution dated 02.04.2011

regarding revision of pension/Family pension, Gratuity,

Commutation of pension for State Government employees

w.e.f 1st January 2006. The maximum limit of DCRG (Death

Cum Retirement Gratuity) was enhanced from Rs. 2.5 lakhs to

7.5 lakhs w.e.f 01.01.2006 instead of 01.12.2008. It had also been

clarified that the employee who have retired during the period

from 01.01.2006 to 30.11.2008 are entitled to DCRG up to a

maximum of Rs.7.5 lakhs on revision of pay scale w.e.f.

01.01.2006. The petitioner retired on 31.01.2007. So, he comes

under the Notification of Finance Department and is entitled to

get such enhanced gratuity amount.

4. In pursuance of notification under Annexure-3, the Director

(ST/SC) wrote letter dated 28.04.2011 to AG Odisha for revision

of pension and other pensionary benefits of petitioner bearing

PPO No.367366. In the said letter Director(ST/SC) forwarded

the following documents of petitioner for Revision of pension

and other pensionary benefits. While forwarding the

documents of petitioner for Revised pension, the DCRG

amount was held up on the ground of Departmental

Proceeding.

5. While the matter stood, the petitioner submitted a

representation to the Opp. party No.2 on 12.09.2013 for release

of Gratuity. However, on rejection of the same, the petitioner

approached the Tribunal by filing OA No.3987/2013 with a

prayer for release of Gratuity with interest. On 13.02.2014, the

Tribunal was pleased to issue notice for filing of counter and

during the pendency of case, the Opp. party No.1 passed the

final order in the Departmental proceeding vide order dated

29.11.2014 imposing punishment of 5% of the pension of the

delinquent officer Kedar Ch. Samal be withheld for a period of

one year.

6. The enquiry report was received from PA ITDA, Baliguda vide

letter dated 30.05.2008 and he has been requested to conduct

further enquiry on some point vide letter dated 07.05.2009 for

finalization of the proceeding and the enquiry report is waited.

It was further stated in the counter that as per Rule- 66(2) of

O.C.S. (Pension) Rules, 1992 no gratuity shall be paid to the

Government servant until conclusion of departmental

proceedings & issue of final order thereon. Accordingly,

petitioner representation was not considered. Being aggrieved

of the same, the petitioner has filed this writ petition.

7. Learned Counsel for the petitioner has submitted that due to

administrative lapses, the petitioner is deprived to get gratuity

after retirement w.e.f. 31.01.2007 due to pendency of

proceeding and it was finalized only on 29.11.2014. The

petitioner is entitled for revised Gratuity as per finance

department notification dated 2nd April 2011 and interest on

delayed payment of gratuity.

8. Learned Counsel for the Opposite Party No.3 has submitted

that the office of the Respondent No.3 has been cast with the

duties for authorization of pensionary/family pensionary

benefits in favour of the retired/ family members of the

retired/deceased Government servants of State Government of

Odisha in terms of O.C.S. (Pension) Rules and subsequent

Government of Odisha orders from time to time. In the instant

case, the Director (ST/SC) & Ex-Officio, Additional Secretary to

Government of Odisha, ST/SC Development Department in

letter dated 28.07.2007, in letter No. 3059 dated 22.01.2008 and

in letter No. 13760 dated 28.04.2011 (Annedure-4 of O.A) has

categorically requested this office to withhold DCRG of the

Applicant till receipt of further clearance from their

Department. Accordingly, the DCRG amounting to

Rs.3,46,995/- (Arrived as per ORSP Rules-2008) has been kept

withheld by this office. On receipt of final clearance (final

NDC) from the office of the Respondent No.1, the Respondent

No.3 shall be duty bound to authorize the admissible DCRG of

the Applicant as per OCS (Pension) Rules. Further, the

allegation of the Applicant for payment of interest for delayed

payment of DCRG is not at all attributable to Respondent No.3

as the office of the Respondent No.1 has categorically

instructed not to release the DCRG of the Applicant. Since

there are no deficiencies and/or delay or fault on the part of

Respondent No. 3 in the matter in controversies, the O.A.C

should be dismissed as against him.

9. This Court is of the opinion that as there was a delay in the

payment of arrears of salary for which the petitioner is not at

all responsible, he is entitled to the interest on the delayed

payment. Because of the administrative laches, there was a

delay in the payment of arrears of salary and/or settling the

dues and hence, the retired employee should not be made to

suffer for no fault of his.

10. It is well-settled that salaries and pensions are due as a matter

of right to employees, and, as the case may be, to former

employees who have served the State. Since, the petitioner

rendered his services till superannuation as a Government

servant, his entitlement to the payment of salary is intrinsic to

the right to life under Article 21 and to right to property which

is recognized by Article 300A of the Constitution.

11. The Supreme Court in the case of State of Andhra Pradesh &

Anr v. Smt. Dinavahi Lakshmi Kameswari1 observed that:

"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."

12. There is no dispute about the delayed payment as it was

withheld for insufficient reasons. There is no material

justification to take such time for fixing arrears of the

CIVIL APPEAL NO. 399 OF 2021

petitioner. On this undisputed position, the Court is not

inclined to accept the submissions of the Opposite Parties

regarding non-payment of interest without any specific

provisions in the service conditions. The late decision taken by

the opposite parties is attributable to administrative laches

across different levels and the same cannot be the reason to

withhold the payment to the employees who admittedly

worked at the relevant time. The fact remains that there was

delay in making payment of arrears of salary and other

benefits with or without intention, is immaterial. In the view of

this court and the admitted position on record, the payment

was not made on due dates according to service conditions,

and there is no disputed question of facts involved.

13. Moreover, the employees cannot be allowed to suffer because

of inaction on the part of the employer. The employee is

definitely entitled to get the payment as per the service

conditions on due dates and/or in a given case within

reasonable time. The employees, had the payment been

received within time and/or on due dates, could have utilized

the same for various purposes.

14. Highlighting the need for consideration on grounds of equity

in cases of deferred payments, the Supreme Court, in the case

of Union of India & Ors v. Dr. J.K Goel2, observed that:

1995 SCC Supl. (3) 161 1995 SCALE (3)550

"Before any interest can be granted on equitable considerations, it is necessary that the facts of the case should be examined to ascertain whether there are any special equities which would justify the grant of such interest although there is no provision in law for such grant"

15.Similarly, in the case of D.D. Tewari vs. Uttar Haryana

Bulivitran Nigam Limited and others3, the Supreme Court

held that

"......denial of interest from the date of entitlement till the date of actual disbursement would take away the valuable rights of the retired government servant. It was reiterated in that decision that pension and gratuity are not bounty to be distributed by Government to its employees on their retirement, but are valuable rights and property in its hands and any culpable delay in settlement and disbursement thereof is to be visited with penalty of payment of interest."

16. In light of the above-mentioned facts and precedents cited

hereinabove, this Court is inclined to allow this petition. This

Court, accordingly, directs the State to pay simple interest

computed at the rate of 6% per annum on account of deferred

salaries within a period of 30 days from today. The direction

for payment of interest @ 6% per annum is made bearing in

CIVIL APPEAL NO. 7113 OF 2014

mind the decision of the Supreme Court in the case of State of

Andhra Pradesh & Anr v. Smt. Dinavahi Lakshmi Kameswari4.

17. Accordingly, this Writ Petition is disposed of.

(Dr. S.K. Panigrahi) Judge

Orissa High Court, Cuttack, Dated the 11th of July, 2022/B. Jhankar

CIVIL APPEAL NO. 399 OF 2021