Ghanshyam Giri vs Rajasthan High Court
2021 Latest Caselaw 12470 Raj

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR



                 D.B. Civil Writ Petition No. 11861/2019



Shri Ghanshyam Giri S/o Shri Mohan Giri, dead through LR's:
1/1.     Smt.Chanda Giri w/o Late Shri Ghanshyam Giri, Aged 62
years,
1/2. Gautam Giri s/o Late Shri Ghanshyam Giri, Aged 36 years,
1/3. Vivek Giri s/o Late Shri Ghanshyam Giri, Aged 31 years,


 All are resident of-Goswami Sadan, Near Sunaron Ki Bagichi,
Gangashahar Road, Bikaner (Raj.)


1/4. Smt. Namita w/o Sh. Vinod Bharti, D/o Late Sh. Ghanshyam
Giri, aged 41 years, R/o-Street No.3, Ganeshpura, Ratanada,
Jodhpur.
1/5. Smt. Eilla w/o Sh. Madan Puri, D/o Late Shri Ghanshyam
Giri, Aged 35 years, R/o-Near Raju Primary School, Outside
Uston Ki Bari, Bikaner.
                                                                       ----Petitioner


                                      Versus


1.       Rajasthan High Court, through the Registrar General,
         Rajasthan High Court, Jodhpur.
2.       State    of   Rajasthan,         through         the      Chief   Secretary,
         Government of Rajasthan, Secretariat, Jaipur.


                                                                    ----Respondents



For Petitioner(s)           :     Mr. R.S.Saluja
For Respondent(s)           :     Mr. Prateek Surana for Mr. Manoj
                                  Bhandari
                                  Ms. Pratyushi Mehta for Mr. Sandeep
                                  Shah, AAG




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           HON'BLE MR. JUSTICE SANGEET LODHA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                    Order

10th August, 2021

Per Hon'ble Mr. Sangeet Lodha,J.

1. By way of this writ petition, the petitioner has sought

seeking directions to the respondent to award interest @ 9% in

accordance with Rule 89 of Rajasthan Civil Services (Pension)

Rules, 1996 (for short "Rules of 1996") on retiral benefits

extended to him belatedly.

2. The petitioner-Ghanshyam Giri (since deceased) holding the

post of Additional District Judge was served with a charge sheet

under Rule 16 of Rajasthan Civil Services (Classification, Control &

Appeal) Rules, 1958. The disciplinary proceeding was concluded;

the charges were found proved and consequently, a penalty of

dismissal from service was inflicted upon him. Aggrieved thereby,

the petitioner preferred a writ petition being D.B.Civil Writ Petition

No.637/12 before this Court. The writ petition was disposed of by

a Bench of this Court with the directions in the following terms:

"In view of the above discussion, the writ petition filed by the petitioner is disposed of, the order dated 8/12/2011 (Annex.9) dismissing the petitioner from service is quashed and set aside, the matter is remitted back to the disciplinary authority to take up the inquiry afresh, the petitioner shall be supplied the resolution of the Full Court and an opportunity to make a representation, thereafter, the disciplinary authority shall take final decision on the charges framed against the petitioner. Since in the meantime the petitioner has crossed the age of superannuation, he shall not be entitled for any consequential advantages at this stage and the same shall abide by the ultimate result of the disciplinary proceedings."

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3. Pursuant to the directions of this Court, the matter was

reconsidered by the High Court and vide resolution dated 21.5.18

adopted by the Full Court, it was resolved to drop the disciplinary

proceedings against the petitioner. The resolution adopted reads

as under:

"After elaborate discussions and consideration of matter in its entirety and Particularly in the light of Judgment passed in this matter by the Hon'ble Court, RESOLVED to drop the proceedings. Accordingly, the officer will get actual benefit of pay for the period from the date of dismissal to the date of superannuation."

4. Since, the petitioner had already attained the age of

superannuation, vide order dated 20.11.18 issued by the Principal

Secretary, Department of Law & Legal Affairs, the petitioner was

treated to have retired from service on attaining the age of

superannuation w.e.f. 31.7.12.

5. Precisely, the grievance raised in the instant petition is that

while making payment of retiral benefits, the interest on delayed

payment for which the petitioner was entitled in terms of Rule 89

of the Rules of 1996, has not been paid.

6. Rule 89 of the Rules of 1996 reads as under:

"89. Interest on delayed payment of retiral benefits

(1) If the payment of retiral benefits has been authorised after 60 days from the date when its payment became due, and it is established that the delay in payment was not on account of failure on the part of the Government servant in compliance of the procedure laid down in this chapter or elsewhere in these rules, interest @ 9% per annum from the date retiral benefits become due would be payable till the end of the month preceding the month in which the retiral benefits are authorised.

(2) Every case of delayed payment of retiral benefits shall, suo moto, be examined by the Head of Office and shall be forwarded to the Administrative Department through the Head of Department, and where the Administrative Department is satisfied that the delay in payment of retiral

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benefits was caused on account of administrative lapse or inaction, the Administrative Department concerned shall issue sanction for the payment of interest to the Director, Pension Department.

(3) In all cases, where the payment of interest has been authorised, the Administrative Department concerned shall fix responsibility and take disciplinary action under the Rajasthan Civil Service (C.C.A.) Rules, 1958 against the Government servant(s), who is/are found responsible for the delay in the payment of retiral benefits and shall recover the loss caused to the Government due to payment of interest to the pensioner from the Government servant(s) held responsible.

(4) In the order for payment of interest, the Administrative Department shall also mention the name(s) of the officer(s)/official(s), responsible for delay and the amount of interest recoverable from him/them.

(5) If, as a result of Government's decision taken subsequent to the retirement of a Government servant, the amount of retiral benefits already paid on his retirement is enhanced on account of :-

(a) grant of emoluments higher than the emoluments on which retiral benefits, already paid, were determined, or

(b) liberalisation in the provisions of these rules from a date prior to the date of retirement of the Government servant concerned,

no interest on the arrears on retiral benefits shall be paid.

(6) In case any delay is caused in the Pension Department, responsibility shall be fixed for such delay and suitable action taken against such erring official(s) to recover the interest paid to the pension."

7. Learned counsel appearing for the petitioners contended that

whatever delay has occurred in releasing the retiral dues of the

petitioner is due to fault of the respondent inasmuch as, faulty

procedure was adopted in the disciplinary proceedings. Learned

counsel contended that as per Note (ii)(a) appended to Rule 89 of

the Rules of 1996, the disciplinary proceedings having been

dropped by the High Court, the petitioner was entitled to interest

on the amount of gratuity from the date the same fallen due i.e.

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the date of retirement. Further, as per Note (ii) (c), on other

retiral benefits, the petitioner was entitled to interest from the

date of issue of the order by the Competent Authority allowing

him to retiral benefits and therefore, the respondents are under an

obligation to pay interest on other retiral benefits to the petitioner

from the date of issuance of the order dated 21.5.18 issued

pursuant to the order passed by the Governor, setting aside the

order dated 8.12.11. The Note (ii) (a) & (c) appended to Rule 89

of the Rules of 1996, relied upon by the learned counsel reads as

under:

"(ii) In case of a Government servant against whom disciplinary/judicial proceedings are pending on the date of retirement, no retiral benefits be paid except provisional pension, until the conclusion of the proceedings and the issue of the final orders thereon. If, on the conclusion of the disciplinary/judicial proceedings;

(a) a Government servant is fully exonerated the retiral benefits may be deemed due on the date following the date of retirement and the interest on delayed payment of retirement gratuity may be allowed from the date, the gratuity has fallen due. The rate of interest on delayed payment will be the prevailing rate of interest on General Provident Fund.

....x.xxxxxx....

(c) In other cases, the retiral benefits if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of order by the Competent Authority."

8. On the other hand, counsel appearing for the State

contended that the disciplinary proceedings were pending against

the petitioner and therefore, he could not have been retired on

attaining the age of superannuation and it is only after the

conclusion of the disciplinary proceedings, the order retiring him

from service was issued. According to the learned counsel, the

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delay in payment of retiral benefits cannot be attributed to the

State. Learned counsel submitted that there was no direction to

pay interest either in the resolution adopted by the Full Court or in

decision taken by the Governor and therefore, the petitioner was

not entitled to any interest. However, on being confronted with the

Note appended to Rule 89 of the Rules of 1996, relied upon by the

counsel for the petitioners, regarding the petitioner's entitlement

for interest, learned counsel appearing for the State had no

answer.

9. We have considered the rival submissions and perused the

material on record.

10. Indisputably, on the charges of misconduct being proved, the

petitioner was dismissed from service vide order dated 8.12.11.

But the fact remains that the order passed by the Disciplinary

Authority, dismissing the petitioner from service was quashed and

set aside by this Court and pursuant to the directions issued by

this Court, after reconsideration, the disciplinary proceedings

against the petitioner was dropped by the High Court and the

petitioner was held entitled for actual benefit of pay for the period

from the date of dismissal to the date of superannuation. The

actual benefits of service were paid to the petitioner and vide

order dated 20.11.18 issued by the Principal Secretary, Law &

Legal Affairs, he was treated to have retired from service on

attaining the age of superannuation w.e.f. 31.7.12. Thus, in terms

of Rule 89 read with Note (ii) (a) & (c), the petitioner was entitled

for interest at the rate prevailing at the relevant time on General

Provident Fund and on other retiral benefits, the petitioner was

entitled to interest @ 9% from the date of issuance of the order

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dated 21.5.18 issued by the Governor pursuant to the resolution

adopted by the Full Court, dropping the disciplinary proceedings

against the petitioner and holding him entitled for actual benefit of

service.

11. Accordingly, the writ petition is allowed in terms that the

petitioners shall be entitled for interest on delayed payment of

retirement gratuity from the date, the gratuity had fallen due. The

rate of interest payable on gratuity shall be the prevailing rate of

interest on General Provident Fund. On other retiral benefits, the

petitioners shall be entitled to interest @ 9% per annum from the

date of issuance of the order dated 21.5.18 by the Governor

pursuant to the resolution adopted by the Full Court, till the date

of actual payment. The amount of interest payable in terms of this

order shall be computed and paid to the petitioners within a period

of two months from the date of receipt of certified copy of this

order. No order as to costs.

                                   (MANOJ KUMAR GARG),J                                        (SANGEET LODHA),J
                                    Aditya/-









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