WPSS/301/2019
2021 Latest Caselaw 4625 UK

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                                      WPSS No.301 of 2019
                                      Hon'ble Sharad Kumar Sharma, J.

Mr. K.P. Upadhyay, Senior Advocate assisted by Mr. Hemant Pant, Advocate for the petitioner.

Mr. Sachin Mohan Singh Mehta, Brief Holder for the State of Uttarakhand.

The respondents' counsel by virtue of I.A. No.3763 of 2021 had filed the supplementary counter affidavit, bringing on record the additional facts and one of the additional facts, which has been particularly pleaded and would have been having a bearing on today's adjudication is to the controversy involved in the writ petition is that as pleaded in para 8 of the supplementary counter affidavit, which is extracted hereunder:-

"8. That in reply to the contents of para no.10 to 12 of the rejoinder affidavit it is submitted that vide order dated 22.09.2021 the pay fixation of the petitioner has been amended and thereafter the pension of the petitioner revised by the Chief Treasury Officer, Pithoragarh on 02.11.2021 and the bill of arrear of Rs.2,44,057/- is submitted in the Treasury on 01.11.2021. It is further submitted that the petitioner has prayed for 6% interest on amount but as the deduction has been made in compliance of Government Order dated 28.11.2017. Therefore it is not possible to pay the 6% interest to the petitioner on the same amount an the process of payment of deduced amount is in progress. A True/Correct Typed Version/Photo Copy of order dated 22.09.2021, Copy of revised pension dated 02.11.2021 and Copy of pay arrear of Rs.2,44,057 dated 01.11.2021 are being filed herewith and marked as Annexure C.A.-1, C.A.-2 and C.A.-3."

Reverting back to the principal controversy, which was raised by the petitioner, the petitioner in the writ petition has contended, that after having rendered his satisfactory service with the respondents, the petitioner had attained the age of superannuation on 31.12.2017 and has retired from the office of Chief Agricultural Office; but however under the garb of Government Order of 28.11.2017 though the petitioner was entitled to be determined with the pensionary benefits on the basis of last salary drawn by the petitioner, but that was curtailed by a wrongful implication and attraction of Government Order of 28.11.2017 and based on the said pretext a deduction of Rs. 2,044,57/- was made from the retiral benefits of the petitioner.

During the pendency of the writ petition, the respondents had filed the instant supplementary counter affidavit, whereby they have submitted that subsequent to it based on yet another decision which was taken by the Chief Treasury Officer, Pithoragarh, on 02.11.2021, the amount of pensionary benefit, which was deduced from the pension of the petitioner has been directed to be remitted back to the petitioner and further the petitioner's retiral benefits has been directed to be revived back, on the basis of the last salary drawn i.e. on the date when the petitioner has attained the age of superannuation i.e. 31.12.2017. As a consequence of the pleading raised in para 8 of the supplementary counter affidavit two controversies now remained to be decided.

1. The respondent had justified dis-entitlement of the petitioner to get a interest on the amount of arrears of the pension, which has been wrongfully withheld under the garb of Government Order of 28.11.2017, contending thereon that their action of curtailment of retiral benefits, since was based on the last salary drawn as on 31.12.2017, since was curtailed on the basis of the Government Order dated 28.11.2017; their action cannot be faulted and hence, they have contended that the petitioner would not be entitled of any interest on withheld amount.

2. As far as this justification given by the respondent is concerned, the same is not acceptable by this Court, the reason being that in the supplementary counter affidavit, the additional facts which has been brought on record are on account of the subsequent development, which has taken place. In fact, it's implication would be, that the sole foundation for the curtailment of the retiral benefits and the consequential recovery made from the petitioner's retiral benefit since was on the basis of the Government Order of 28.11.2017, that itself has been nullified by the subsequent decision which has been taken by the respondents, which will have an effect, that the principal deduction and the principal reduction of retiral benefits of the petitioner was illegal and arbitrary.

In that eventuality, if by virtue of the subsequent decision taken by the respondents particularly when the amount has been refunded back and they have, as a result thereto, had rather admitted the fact, that the implications of the Government Order dated 28.11.2017, has been diluted, in that eventuality, the petitioner cannot be placed in an adverse situation to financially to be deprived of the arrears of the pensionary benefits, which he would have been otherwise entitled based on the last salary drawn by him as he was getting on the date of retirement on 31.12.2017.

A wrongful curtailment would obviously amount to that when it was a curtailment of an actual monetary benefit, which the petitioner was otherwise legally entitled to receive under law and that monetary benefits when it was retained by the respondents obviously it was the principal amount belonging to the petitioner, which was in fact retained by them hence, the petitioner would be entitled for the interest on the same, which is directed to be remitted at the rate of Rs.6% per annum from the date of the order of curtailment of the retiral benefits in pursuance to the Government Order of 28.11.2017 till the date of actual payment.

It is also further made clear that when the basic action of curtailment of retiral benefits in pursuance to the Government Order of 28.11.2017 itself has been subsequently found to be illegal and arbitrary; as would be apparently reflected from the supplementary counter affidavit, in that eventuality, it goes without saying that the petitioner would also be entitled for the arrears of his pension, which has been wrongly curtailed on the basis of the Government Order of 28.11.2017. In that eventuality this writ petition is being disposed of with a direction, that in the light of the additional facts which had been brought on record by the supplementary counter affidavit and for the reasons already given above, the respondents would:-

1. Pay the interest at the rate of Rs.6% per annum to be paid to the petitioner in relation to the amount of withheld pensionary benefits in pursuance to the Government Order of 28.11.2017.

2. The respondents would also pay arrears of the pension as determined based on the last salary drawn by the petitioner on the date of attainment of age of superannuation i.e. 31.12.2017.

The aforesaid amount as directed to be paid to the petitioner, would be remitted by the respondents within a period of two months from the date of production of certified copy of this judgment.

Subject to the above observations, the writ petition stands disposed of.

(Sharad Kumar Sharma, J.) 18.11.2021 Arti