High Court

Legal Reasoning

HON’BLE MR. JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER (ORAL) Issue raised in this petition is the entitlement of the petition er to payment of interest on delayed pension. Shorn of details, the facts of the case may be briefly noted. 2. Petitioner entered service in the Directorate of Soil Conservation, Assa 3. m as Soil Conservation Demonstrator (Junior) in the year 1963. In the course of his service career, petitioner was promoted to the post of Ranger. He retired fr om service on attaining the age of superannuation on 31.03.1996. 4. Petitioner was served with a show cause notice dated 20.05.1996 under Ru le 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India. The gist of the allegation against the petiti oner was that at the time of entry into service, he had produced a manipulated m atriculation certificate which on verification was found to be that of one Sri N ayeb Ali. The age mentioned in the certificate was changed from 18 to 15 years. Therefore, petitioner overstayed in service for 3(three) years. 5. Petitioner challenged the show cause notice and the disciplinary proceed ing initiated pursuant thereto before this Court in Civil Rule No. 568/1997. A S ingle Bench of this Court by the judgment and order dated 04.12.1999, after obse rving that the departmental proceeding was initiated after retirement of the pet itioner without the sanction of the Governor, held the same to be violative of R ule 21 of the Assam Services (Pension) Rules, 1969. Consequently, the show cause notice was quashed. It was ordered that petitioner would be entitled to salary upto 31.03.1996 and entitled to all retiral benefits. 6. The State preferred appeal against the said judgment, which was register ed as W.A No. 106/1999. A Division Bench of this Court by the order dated 16.08. 1999 dismissed the appeal as the departmental proceedings were initiated on 20.0 5.1996 after superannuation of the petitioner on 31.03.1996 without obtaining th e sanction of the Governor to initiate such proceeding after his retirement. 7. Petitioner again filed W.P(C) No. 3090/2004 before this Court with the g rievance that though he was promoted to the post of Senior Demonstrator in the y ear 1977, he ought to have been promoted to the said post in the year 1972 when his immediate junior was promoted. In the course of the hearing, petitioner file d an additional affidavit clarifying the reliefs sought for by him in the said p roceeding. One of the reliefs claimed was interest on delayed payment of pension . According to the petitioner, pension was paid to him in the year 2004. This Co urt by the judgment and order dated 20.06.2006 noted that pension was paid to th e petitioner after institution of the said writ petition. Therefore, it was obse rved that the grievance relating to claim for payment of interest on delayed pay ment of pension constituted a separate cause of action, which was not the subjec t matter of the aforesaid writ petition. Consequently, it was observed that the respondents in the said writ petition were not able to place before the Court th e precise facts and circumstances which had led to delayed payment of pension to the petitioner. Declining to adjudicate on the entitlement of the petitioner to interest on delayed payment of pension in the said proceeding, the Court grante d liberty to the petitioner to approach this Court by way of a separate writ pet ition for such interest, if so advised. Accordingly, the present writ petition has been filed seeking a directio 8. n to the respondents to pay interest @ 18% per annum on the pension paid to the petitioner. 9. According to the petitioner, he was paid provisional pension of Rs. 21,4 08/- for the period from 01.04.1996 to 31.03.1997 vide order dated 09.01.2002 an d Rs. 22,962/- for the period from 01.04.1997 to 31.03.1998 vide order dated 02. 06.2003, totalling Rs. 44,370/-. Thereafter, he was paid arrear pension amountin g to Rs. 2,65,666/- on 24.05.2004. He has contended that under Rule 95 of the As sam Services (Pension) Rules, 1969, provisional pension is not intended to be co ntinued beyond the period of 6(six) months from the date of retirement. The firs t provisional pension was paid on 09.01.2002 which was after almost 4 (four) yea rs after the judgment of this Court. Referring to Rule 197-A of the Pension Rule s, petitioner has contended that he is entitled to interest on the delayed payme nt of pension. He had submitted a representation in this regard on 20.03.2007 be fore the Director of Soil Conservation, Assam but there was no response. Aggriev ed, he has filed the present writ petition. 10. Director of Soil Conservation, Assam, respondent No. 2 has filed affidav it. It is stated that initially pension dues could not be paid as the matter rel ating to the exact date of retirement of the petitioner was pending before the C ourt. The said respondent has stated that pension papers of the petitioner could not be submitted to the Government timely as the petitioner did not submit his pension papers even after repeated requests. Petitioner did not submit his pensi on papers including the prescribed form duly filled in and other necessary detai ls to the authority for finalizing his pension case which caused the delay. Ther efore, petitioner is not entitled to interest as claimed. After submission of pe nsion papers by the petitioner, those were sent by the Director to the Soil Cons ervation Department in the Government on 16.02.2000. The Government thereafter s ent the pension papers to the office of the Accountant General on 16.03.2000. Th e office of the Accountant General returned back the pension papers with certain suggestions for regularization of the overstay in service by the petitioner for the period under consideration by way of re-employment. The observance of vario us procedures caused delay, which was, however, finally done. He has stated that petitioner was involved in tampering of his service book for which an FIR was a lso lodged resulting in registration of a criminal case, being Barama P.S. Case No. 47/1996 under Sections 468/471 IPC. Considering the nature of the case, the said respondent has contended that this is not a fit case for awarding interest on delayed payment of pension. 11. Respondent No. 4 i.e. Accountant General (A & E), Assam has also filed a ffidavit. It is stated therein that the pension case of the petitioner was recei ved in the office of the Accountant General in the year 2000 but as the case was not in proper form since the order for regularisation of service for the period of overstay did not accompany the pension case, the same was returned back to t he Government. It was resubmitted in proper and complete form by the Government on 28.01.2004, following which pension payment order was issued on 05.05.2004 au thorizing payment of admissible monthly pension w.e.f 01.03.1996 (should be 01.0 4.1996). Likewise, all other admissible retiral dues of the petitioner including gratuity were settled. Therefore, it is contended that there was no delay in th e settlement of the pension case of the petitioner on the part of respondent No. 4. Petitioner has not filed any rejoinder affidavit. 12. 13. Heard Mr. D. Choudhury, learned counsel for the petitioner and Mr. J. Ha ndique, learned Government Advocate, Assam appearing on behalf of respondent Nos . 1, 2 and 3. Also heard Mr. R. K. Talukdar, learned Standing counsel, Accountan t General, Assam. 14. Learned counsel for the petitioner has contended that from the sequence of events as can be seen from the averments made in the writ petition, there was delay in payment of pension and gratuity to the petitioner which is clearly att ributable to the State respondents. Referring to the provisions of Rules 95 and 197-A of the Pension Rules and also the provisions of the Payment of Gratuity Ac t, 1972, learned counsel for the petitioner submits that petitioner would be ent itled to interest on the delayed payment of pension and gratuity. He has placed reliance on a decision of this Court in the case of Shri Upendra Nath Rajkhowa - vs- State of Assam and others reported in 1991 (1) GLJ 506 to contend that pensi on and gratuity are valuable rights and property of a Government employee which cannot be withheld or denied. 15. Mr. Handique, learned State counsel and Mr. Talukdar, learned Standing c ounsel, Accountant General submits that the present is not a fit case for awardi ng interest in as much as the delay in settlement of the pension case of the pet itioner is attributable to the petitioner himself as he did not submit the pensi on papers on time despite repeated requests and since the delay is not attributa ble to the respondents, no interest is payable to the petitioner. Moreover, ther e is serious allegation against the petitioner regarding manipulation of matricu lation certificate which resulted in his overstay in service by about three year s. This could not be enquired into and disciplinary action could not be taken be cause of technical reasons. Submissions made have been considered. 16. 17. Rule 95 of the Pension Rules prescribes the procedure for completion of pension record and documents timely. It provides that to avoid the possibility o f any delay in the commencement of pension, the head of the department should ha ve a superannuation statement prepared on the 1st of January in each year, showi ng a list of all officers, gazetted or non-gazetted, who will attain the age of superannuation in the course of the next calendar year, i.e. between 1st January to 31st December of the next year. The officers due to retire during that perio d should be informed to enable them to make formal applications for pension one year in advance of the dates of their anticipated retirement. If no intimation i s issued to the concerned officers, this should in no way be understood to have changed the dates of superannuation and shall not confer on them any right to re main in office beyond the dates of their superannuation. Rule 197-A provides tha t if the payment of pension and gratuity has been authorized later than the date when the payment became due, and it is clearly established that the delay in pa yment was attributable to administrative lapses, interest shall be paid at the s pecified rates. As per the proviso, the Government servant would be entitled to interest if the delay in payment was not caused on account of his failure to com ply with the laid down procedure for processing pension papers. Every case of de layed payment of pension and gratuity shall be considered by the Secretary of th e Department and where he is satisfied that the delay in payment of pension and gratuity was caused on account of administrative lapses, the Secretary of the De partment shall sanction payment of interest with the concurrence of Pension and Public Grievances Department at the prescribed rate. In the present case, admittedly, there was a dispute regarding the date 18. of birth of the petitioner. According to the Department, though the petitioner c ontinued in service till 31.03.1996, he ought to have retired on superannuation three years earlier. The allegation was of manipulation in the matriculation cer tificate. However, the show cause notice was issued on 20.05.1996, which was aft er the superannuation of the petitioner on 31.03.1996, that too without obtainin g any sanction from the Governor. For the aforesaid technical reason, the show c ause notice was quashed by the Single Bench of this Court, which was also affirm ed by the Division Bench on 16.08.1999. Therefore, atleast till 16.08.1999, it c annot be said that there was deliberate and intentional delay in payment of pens ion as the related issue of date of retirement of the petitioner was before the Court. Moreover, the Director in his affidavit has stated that the pension paper s of the petitioner could not be processed because of the lack of cooperation on the part of the petitioner despite repeated requests. Both respondent Nos. 2 an d 4 in their respective affidavits have contended that the delay in the payment of pension and gratuity cannot be attributed to the said respondents, as various procedures and formalities had to be complied with, such as regularization of t he overstay period of the petitioner. 19. Sub - rule (1) of Rule 197-A stipulates that in a case where it is clear ly established that the delay in payment of pension and gratuity was attributabl e to administrative lapses, interest shall be paid as per prescribed rate. Under sub-rule (2), in every case of delayed payment of pension and gratuity, the Sec retary of the Department shall consider the delay and if he is satisfied that th e delay in payment of pension and gratuity was caused on account of administrati ve lapses, he shall sanction payment of interest at the prescribed rate with the concurrence of the Pension and Public Grievances Department. 20. In the present case, without entering into or expressing any opinion on the merit of the allegation against the petitioner, it is clear that petitioner had retired on 31.03.1996 and he received pension on 04.05.2004, though two amou nts of provisional pension were paid to him in 2002 and 2003 respectively. There fore, keeping in mind the provision of Rule 95, it is evident that there was del ay in payment of pension and gratuity. The question is whether such delay was ca used on account of administrative lapses. The condition precedent for payment of interest on delayed payment of pension and gratuity is that it must be clearly established that the delay is attributable to administrative lapses. Though resp ondent No. 2 has contended that the delay was not because of administrative laps es and no rejoinder to contest the same has been filed by the petitioner, the fa ct remains that the requirement of the Rule is that such finding or satisfaction has to be that of the Departmental Secretary. No such finding or satisfaction o f the Departmental Secretary has been placed on record or brought to the notice of the Court. 21. In such circumstances and in the light of the discussions made above, th e Secretary to the Government of Assam, Soil Conservation Department is directed to look into the matter and to pass appropriate order(s) in accordance with law within a period of 3 (three) months from the date of receipt of a certified cop y of this order. 22. 23.