Uttarakhand High Court
WPSB/224/2020 on 9 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE NARAYAN SINGH DHANIK
WRIT PETITION (S/B) NO. 224 OF 2020
9th DECEMBER, 2021
Between:
State of Uttarakhand & others ...... Petitioners
and
Mahesh Chandra Agarwal ...... Respondent
Counsel for the petitioners : Mr. B.S. Parihar, learned Standing
Counsel for the State / petitioners
Counsel for the respondent : Mr. M.C. Pant, learned counsel
The Court made the following:
JUDGMENT: (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
The State has challenged the legality of the
order dated 23.07.2019, passed by the Uttarakhand
Public Services Tribunal at Dehradun, whereby the
learned Tribunal had allowed the Claim Petition No.
87/DB/2018, filed by the claimant Mr. Mahesh Chandra
Agarwal, and has directed that "the respondents shall
pay interest at the rate of six per cent per annum on the
unpaid amount of pension from the date it had fallen
due, and interest at the rate of eight per cent per annum
on the unpaid amount of gratuity from the date of
retirement of the employee till the date of actual
payment". The respondents were further directed to
pay the aforesaid interest on delayed payment of retrial
dues to the petitioner within a period of twelve weeks
from the date of presentation of certified copy of this
order before the authorities concerned. The learned
Tribunal further observed that "needless to say that an
amount of Rs.3,71,838/- which was deducted from
gratuity of the petitioner, be refunded to him along with
interest."
2) Briefly, the facts of the case are that on
15.11.1966, the claimant was appointed on the post of
Junior Engineer in the Irrigation Department. On
30.04.2008, he retired from his service. Despite the
lapse of five years, the claimant was not paid his
pension, gratuity, commutation of pension, and other
retiral benefits. Therefore, he filed a complaint before
the Hon'ble Lokayukta of Uttarakhand. By order dated
23.04.2013, the complaint was decided, in favour of the
claimant. But, despite the decision of the Lokayukta,
certain delays were caused by the Executive Engineer in
payment of the retiral benefits to the claimant. While, in
accordance with the order passed by the Lokayukta, an
amount of gratuity was paid, but an amount of
Rs.3,71,838/- were illegally withheld. Since the said
amount was withheld illegally, the claimant claimed that
the said amount along with interest should be paid to
him. He further claimed that interest on the delayed
payment of gratuity should be granted to him.
According to the claimant, the pension was credited in
his account on 06.09.2013. Therefore, there was an
inordinate delay in payment of the pension from
30.04.2008 to 06.09.2013. Since the claimant was
aggrieved by the non-payment of the interest of the
delayed payment of the pension, and the delayed
payment of the gratuity amount, he filed a Claim Petition
before the learned Tribunal. By order dated 23.07.2019,
as mentioned hereinabove, the learned Tribunal allowed
the said Claim Petition with the aforementioned
directions. Hence, this petition before this Court.
3) Mr. B.S. Parihar, the learned Standing Counsel
for the State has raised the following contentions before
this Court :-
Firstly, the learned Tribunal has overlooked
the fact that the claimant did not raise his voice for
five long years with regard to the delayed payment
of his pension and his gratuity. It is only after an
order was passed by the Hon'ble Lokayukta on
23.04.2013, that the wheel started rolling.
Secondly, the fault does not lie on behalf of
the Department, but lies on behalf of the claimant.
For, the claimant never submitted the No-dues
Certificate, which was required. The said plea
although raised by the State before the learned
Tribunal has not been taken note of by the learned
Tribunal.
Thirdly, the amount of Rs.3,71,838/- were
withheld, as in the year 2017, it was discovered
that there were some discrepancy in the stock. The
respondent No. 3 was of the opinion that it is the
claimant, who is responsible for the said
discrepancy. Since, a financial loss was caused to
the State, the respondents were legally justified in
withholding the said amount.
4) On the other hand, Mr. M.C. Pant, the learned
counsel for the claimant, has raised the following
contentions before this Court :-
Firstly, merely because the claimant never
raised his voice with regard to the non-payment of
the pension and gratuity would not absolve the
responsibility of the respondents to pay the pension
and the gratuity. For, the payment of pension and
gratuity is not an act of charity, but pension and
gratuity, and other retiral benefits, accrued to an
employee are by way of a right. Therefore, the
denial of such a right is a continuous wrong being
committed by the respondents.
Secondly, even if, for the sake of argument, it
were accepted that No-dues Certificate were
submitted by the claimant, there was no
information submitted by the Department that such
a No-dues Certificate is required. According to the
Uttar Pradesh Pension Cases (Submission, Disposal
and Avoidance of Delay) Rules, 1995 (for short, 'the
Rules of 1995'), as adopted in the State of
Uttarakhand, it is the duty of the Head of the Office
to issue No-dues Certificate two months prior to the
retirement. Therefore, the petitioner cannot be
blamed for not having submitted the No-dues
Certificate. Therefore, the learned counsel has
supported the impugned order passed by the
learned Tribunal.
Thirdly, admittedly, the claimant had retired
on 30.04.2008. A discrepancy in the stock was not
discovered till 2013 / 2017, i.e., for nine years after
the date of retirement of the claimant. Moreover,
no show cause notice was ever issued; no
departmental enquiry was every held. Therefore,
without giving an opportunity of hearing, an
adverse order of withholding of Rs.3,71,838/- could
not have been passed. Therefore, the retention of
the said amount is an illegal act being committed
by the respondents.
5) Heard the learned counsel for both the parties
and perused the impugned order.
6) In the case of State of Kerala Vs M.
Padmanabham Nair, (1985) 1 SCC 429, the Hon'ble
Supreme Court has clearly opined that pension and
gratuity are no longer any bounty to be distributed by
the Government to its employees on the retirement, but
are valuable rights of the employee. Any delay in
disbursement thereof must be visited with the penalty.
Therefore, the denial of such a right on a daily basis
tantamounts to a continuous wrong being committed by
the Government against its employee. Hence, the
learned counsel for the State is unjustified in claiming
that merely because the claimant maintained a studied
silence over a period of five years, and did not raise his
voice during this period, he cannot take the benefit of
his own wrong. In fact, the wrong was being committed
by the Government in denying the pension, and gratuity,
for five long years.
7) According to the Rules of 1995, a Time
Schedule has been prescribed for taking each and every
step for ensuring that a person is paid his pension on
time. According to the Time Schedule prescribed under
Rule 3(b) and 3(k) of the Rules of 1995, the issuance of
No-dues Certificate is the responsibility of the Head of
the Office. According to the said Schedule, the No-dues
Certificate, in fact, should be issued two months before
the date of retirement. Therefore, it was the duty of the
Head of the Office to ensure that the No-dues Certificate
was, indeed, issued prior to 29.02.2008, as the claimant
was retiring on 30.04.2008. Since the said No-dues
Certificate was never issued, the fault cannot be fixed on
the shoulders of the claimant. It was the fault
committed by the Head of the Office. Therefore, the
learned counsel for the State is unjustified in claiming
that the fault lies on the part of the claimant in not
submitting the No-dues Certificate. In fact, in
accordance with the Rules of 1995, the fault lies on
behalf of the Head of the Office.
8) According to the State, a discrepancy was
discovered in the stock. But, the said discrepancy was
discovered only in 2013, i.e., five years after the
claimant had already retired. The discrepancy was
further confirmed in 2017, i.e., nine years after the
claimant had retired. Most importantly, the discrepancy
was neither brought to the notice of the claimant, nor
any explanation was sought from him. Furthermore, no
Departmental Enquiry was ever initiated against the
claimant. Yet, an amount of Rs.3,71,838/- was withheld
from the gratuity, that the claimant was entitled to. It
is, indeed, trite to state that no adverse order or action
can be taken against a person without putting the
person on notice. Therefore, withholding of the said
amount behind the back of the claimant, and without
giving him an opportunity of hearing, is patently an
illegal act. Therefore, the learned Tribunal was well
justified in directing that the said amount should be paid
to the claimant. Moreover, since there was an inordinate
delay of payment of the pension and the gratuity, the
learned Tribunal was justified in relying on the case of
State of U.P. Vs Dhirendra Pal Singh, (2017) 1 SCC
49, and directing the respondents to pay interest at the
rate of six per cent per annum on the unpaid amount of
pension, and interest at the rate of eight per cent per
annum on the unpaid amount of gratuity.
9) Therefore, this Court does not find any
illegality or perversity in the impugned order dated
23.07.2019.
10) This petition, being devoid of any merit, is
hereby dismissed.
11) No order as to costs.
_______________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
____________________
NARAYAN SINGH DHANIK, J.
Dt: 9th DECEMBER, 2021
Negi
