Anuradha vs State of Rajasthan and Others

Veerender Singh Siradhana, J.—Wife of the deceased employee Late Shri Vijai Kumar has instituted the instant writ application praying for grant of interest on the delayed payment of pensionary benefits contemplated under Rule 89 of the Rajasthan Civil Services Pension Rules, 1996 (for short ''the Rules of 1996''). The prayer clause reads thus:--

"(i) An appropriate writ, order or direction to the respondents for quashing impugned order Dt. 01.08.2011 (Annexure-18) as well as communication Dt. 18.07.2012 (Annexure-25) with consequential relief(s).

(ii) An appropriate writ, order or direction to the respondents for grant of interest as per Rule 89 of the Rules of 1996 to the petitioner for the period i.e. 01.08.1996 to November 2008 on the pension payable to the petitioner''s husband as per Schedule-A.

(iii) An appropriate writ, order or direction to the respondents for grant of interest as per Rule 89 of the Rules, 1996 on the gratuity amount i.e. 1,03,277/- for the period 01.08.1996 to 30.11.2009 (the date of actual payment).

(iv) An appropriate writ, order or direction to the respondents for quashing the adverse order, if passed, during the pendency of the writ petition adversely affecting the cause of writ petition.

(v) Any other appropriate writ, order or direction to the respondents, which this hon''ble court deems just, and proper in the circumstances of the case.

(vi) Cost of the writ petition."

Briefly, the skeletal material facts necessary for appreciation of the controversy raised herein are that the petitioner''s husband entered the service with the State of Rajasthan as ''Excavation & Exploration Officer on 5th August, 1964. Late Shri Vijai Kumar retired from the service attaining the age of superannuation from the post of Director, Department of Archeology & Museum, Government of Rajasthan, Jaipur, on 31st July, 1996. It is pleaded case of the petitioner that her late husband, on the eve of superannuation; handed over the charge to the next incumbent. It is further pleaded that despite lapse of reasonable period as contemplated under the Rules of 1996, the retiral benefits of the petitioner''s husband were not released even though there was neither any departmental nor any judicial proceeding was pending against him. On 6th May, 1999, the petitioner''s husband was informed of missing of some articles/antiquities. The communication was responded on 18th May, 1999, stating that the articles, which were stated to be untraceable, were not in the charge of petitioner''s husband rather those articles were in the charge of one Shri Hari Chand Mishra. Late Shri Vijai Kumar also cooperated with the authorities in order to trace out the missing articles/antiquities. Be that as it may, on 29th June, 2000, the petitioner''s husband was served with a charge sheet and on a detailed inquiry, he was exonerated on 5th January, 2004, but even till then, no retiral benefits were released. A representation was addressed by Late Shri Vijai Kumar for release of his retiral benefits on 11th August, 2008. Pension was released on 19th November, 2008 and the gratuity, which was withheld on the pretext of some dues against house building and vehicle loan, was released on 5th November, 2009. The petitioner''s husband died on 20th April, 2009.

Learned counsel for the petitioner, Mr. Ashish Saksena, reiterating the pleaded facts and grounds of the writ application, has vehemently argued that the retiral benefits of the petitioner''s husband were withheld in an arbitrary and illegal manner contrary to the mandate of Rule 80, 81, 82, 83, 84, 85, 86 and 87 of the Rules of 1996.

According to the learned counsel, the pretext of pension papers were not complete, is only a ruse for the reason that no documentary evidence has been placed on record in support thereof from where it could be reflected that the petitioner''s husband was ever called upon to make good the alleged deficiencies, if any, in the pension papers. Moreover, even if, there was any contingency, the petitioner''s husband was entitled to provisional pension as contemplated under Rule 86 of the Rules of 1996.

Learned counsel further contended that the issue of delay was well realized by the departmental authorities and an inquiry was conducted, as would be reflected from the Annexure-16 available on record. In this regard, a finding was also arrived at by the Inquiry Officer holding that the delay in release of terminal benefits of the petitioner''s husband was on the part of the State-respondents for no fault of the petitioner''s husband. Referring to the finding arrived at vide Annexure-16 under Clause (iv) of Para 12, learned counsel would submit that the process ought to have been initiated by the predecessor in the office of the Director to the petitioner''s husband for the petitioner''s husband was promoted as Director with effect from 1st February, 1996, and was due to retire on 30th June, 1996. However, on account of extension of one month, the petitioner''s husband retired on 31st July, 1996. In support of his submissions, reliance has been placed on the opinion of this Court in the case of Surendra Kumar Sharma v. State of Rajasthan & Anr.: S.B. Civil Writ Petition Number 8807 of 2002, decided on 22nd September, 2010 and in the case of R.K. Chaudhary Vs. State of Rajasthan and Others, .

In response to the notice of the writ application, the respondents have filed their separate counter affidavits resisting the claim of the petitioner.

Mr. R.P. Agarwal, learned counsel appearing on behalf of the respondent number 2 and 3 submits that the petitioner''s husband submitted unsigned and incomplete pension set and did not place joint photographs in the pension set. Further, ''No Dues Certificate'' with regard to house building and conveyance advance was also not furnished, which resulted into delay in release of terminal benefits. Further, late Shri Vijai Kumar submitted revised pension set on 11th August, 2008, and soon thereafter, pension was released on 19th November, 2008. Thus, there is no delay on the part of the respondent number 2 and 3.

Mr. Rishipal Agarwal, learned counsel appearing for the Pension Department (respondent number 4), pleaded that the matter was processed the soon pension set was received from the principal department (respondent number 2 and 3). Heavily relying upon the finding as arrived at vide Annexure-16 dated 25th July, 2011; learned counsel would submit that late Shri Vijai Kumar retired from the post of Director and as such, he was fully aware with the Pension Rules and the Procedure. Moreover, the petitioner''s husband did not take any interest for finalization of his pension case so much so that the no dues/dues certificates were not submitted in time. So also no request for grant of provisional pension was made, if he was not in a position to submit the pension set complete in all respects, and therefore, the Pension Department cannot be faulted for any delay in releasing the retiral benefits.

Heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.

Indisputably, the petitioner''s husband retired on 31st July, 1996. There was no charge sheet or any other judicial proceeding pending against him until he was served with a charge sheet on 29th June, 2000. The respondents are completely silent about the delay for not finalizing the pension case of the petitioner''s husband uptill issuance of the charge sheet dated 29th June, 2000. That apart, the authorities have not acted in consonance with the mandate of the Rules of 1996, which contemplates preparation of pension papers in Form 7 two years before the date on which a Government servant is due to retire on superannuation, or on the date on which he proceeds on leave preparatory to retirement whichever is earlier.

Rule 80 of the Rules of 1996, details out the stages for the completion of pension papers. Nothing is discernible from the reply to sustain the pretext that the delay was caused by the employee. Rule 83 of the Rules of 1996 makes it obligatory on the Head of Office to forward to the Director, Pension Department, Rajasthan, the pension matter completed in all respects as required under Rule 81 and 82. Sub-rule (4) of Rule 83 of the Rules of 1996 specifically contemplates that the papers referred to in sub-rule (1) shall be forwarded to the Director, Pension Department, Rajasthan, not later than six months before the date of retirement of the Government servant.

That apart, if he was any contingency, the State-respondents were obliged to release provisional pension as contemplated under Section 86 of the Rules of 1996. Moreover, if there was any dues as pleaded in the reply, the required amount could have been adjusted as contemplated under Section 87(3) of the Rules of 1996.

From the materials available on record, it is reflected that son of Late Shri Vijai Kumar, raised certain issues regarding his father''s pension case for late Shri Vijai Kumar retired on 31st July, 1996 and his pension was released only on 19th November, 2008. The then Additional Chief Secretary, Finance Department, called for a report for the reasons of delay. The report on delay in release of pension to late Shri Vijai Kumar under paragraph 12, recorded the reasons for delay, which reads thus:--

"12. The reasons for delay in processing the pension case of Shri Vijay Kumar are as under:--

(i) The Department has not followed the instructions prescribed for Head of Office/Department for timely finalization of pension cases as contained in Appendix-VIII of RCS (Pension) Rules, 1996. In these instructions, the actions required to be taken by the Department before two years, once year, eight months and six months of the date of retirement have been laid down.

(ii) Shri Vijay Kumar retired on 30.07.1996 and against him D.E. was commenced on 29.06.2000. During this period of 3 years and 11 months normally he should have been allowed provisional pension/pension. In any case it was not possible for the Department to finalize his pension case than he should have been sanctioned provisional pension which is mandatory under Rule 90 of RCS (Pension) Rules, 1996 even in case where Departmental or Judicial proceedings are pending.

(iii) Shri Vijay Kumar retired on 31.07.1996 but for obtaining no-dues certificate in respect of long term advances, letter was issued to the Treasury Officer, Jaipur on 31.01.2005 i.e. after 8 years and 6 months. In the absence of no-dues certificate pension case can not be withheld. The probable dues amount can be with held from the amount of gratuity.

(iv) The Department has not furnished copy of order of GPO. Hence, it is not clear whether there was any dues pending or not.

(v) D.E. was commenced on 29.06.2000 and it was dropped on 05.01.2004. Even after dropping of D.E., the pension papers were not processed. For early disposal of pending cases a meeting was held on 26.06.2007 in chamber of Collector, Jaipur and only on his direction the Department processed the pension case and it was sent to the AD on 03.10.2008. AD forwarded pension case to the Director pension Department. The Director Pension issued authority of pension on 19.11.2008 (page 56/C).

(vi) The officer was retired from the post of Director and as such he was fully aware from pension rules and procedure of processing the pension case. In case he would have taken interest in finalizing pension case he would have submitted pension set duly filed in properly with no-dues/dues certificate. He also made no request for grant of provisional pension in case it was not possible for him to submit the pension sets completed in all respect."

From a glance of reasons in processing the pension case of late Shri Vijai Kumar, it is admitted and evident that the Department did not follow the instructions prescribed in the matter of release of pension. The fact that the departmental inquiry which commenced on 29th June, 2000, after three years and eleven months, further indicates that the State-respondents were responsible for the avoidable delay. Moreover, the reasons in no uncertain terms indicate fault on the part of the State-respondents for release of the pension to the petitioner''s husband. The reasons as detailed out under clause (iv) of paragraph 12 of the report does not inspire confidence for there is no material available on record to indicate that the petitioner''s husband was ever called upon to make good the deficiencies, if any, in his pension papers.

For the first time, vide communication dated 9th December, 2004, the petitioner''s husband was called upon to furnish ''No Objection Certificate'' with reference to house building/house purchase (repair)/vehicle loan. Thus, even in the communication issued in the year 2004, there was not even a whisper about the deficiencies, if any, in the pension papers of the petitioner''s husband.

The issue of delay in the pension matter, in the case of Harish Chandra Mishra, the incumbent who held the post of Exploration and Excavation Officer, was also compelled to institute writ proceedings before this Court in the year 2002 (S.B. Civil Writ Petition Number 094 of 2002), decided on 17th August, 2009, and it was only thereafter his pension case could be finalized. The operative portion of the order dated 17th August, 2009, reads thus:--

"In the result, the writ petition is allowed. Respondents are directed to finalize the pension case of the petitioner and other retiral dues such as gratuity, pending TA and Medical Bills in case same are still not paid to the petitioner within a period of three months from the date of receipt of copy of this order. Petitioner shall be entitled to interest @ 9% p.a. in terms of Rule 89 of the Pension Rules, 1986."

In the case of R.K. Chaudhary (supra), a Coordinate Bench of this Court dealing with the question whether the respondents were legally entitled to withhold the gratuity amount payable to the petitioner for pendency of inquiry as well as civil suit; referring to the provisions of Rule 19(c) of the Rules of 1996, held thus:--

"10. There is force in the submission of the learned counsel for the petitioner that the respondents, at the most, could have retained the amount of Rs. 22837.50, but that too they had no right to retain the same in view of the order dated 20th September, 1993 passed by this Court, till the injunction order was in force, on furnishing an undertaking by the petitioner in pursuance of the injunction order dated 20th September, 1993. There is also force in the submission of the learned counsel for the petitioner that if because of non renewal of the bank guarantee the interim order stands vacated, then also the respondents could have only retain the above amount and should have paid the gratuity amount to the petitioner forthwith.

Not only this, the respondents themselves have now no right to take a plea that they had legal right to retain gratuity amount of the petitioner running in more than Rs. 4 lacs on the ground of pendency of litigation, when the respondents themselves have paid that disputed amount to the petitioner in the month of January, 2006, after dismissal of the petitioner''s civil suit on the ground that the Civil Court has no jurisdiction in the matter and the petitioner already approached the Tribunal for getting relief. Therefore, the respondents firstly are under the impression that during pendency of litigation filed by the employee they can retain the amount of an employee which is not in dispute also and if the employee loses the litigation, then the respondent State is liable to pay the amount. The stand of the State is self contradictory as well as unreasonable. It is virtually saying that the person who wins or who is agitating his claim in the Court of law is not entitled to the amount which is not disputed and if the employee looses his litigation such employee is entitled to the payment of undisputed amount from the State exchequer in spite of sub Clause (c) of Rule 90 of the Rules of 1996. Secondly, the respondents themselves have paid due amount of the petitioner during pendency of the litigation before the Tribunal.

In additional to above, I do not find any reason for non payment of admitted amount due of the petitioner in the respondent State, merely on the ground that the petitioner did not renew the Bank guarantee on subsequent occasions. Thus, non-renewal of bank guarantee by the petitioner, at the most, would have entitled the respondents to deduct the amount of Rs. 22837.50."

In the case of Surendra Kumar Sharma (supra), a Coordinate Bench of this Court made a direction for release of all the retiral dues admissible under the law along with the interest, which were held during the period of inquiry proceedings observing thus:--

"8. Once the petitioner stood exonerated in the departmental inquiry initiated against him, it is bounden duty of the department to see that all his retiral dues which are admissible to him under law should have been paid to him without any further delay since he has already faced agony of departmental inquiry initiated against him which remained as sword over his head for almost a decade and merely passing of necessary orders in compliance of the order of exoneration in departmental inquiry will not absolve the authorities from their responsibility cast upon them.

This Court finds substance in the submissions made by the petitioner that once he stood exonerated, apart from his entitlement of retiral dues admissible to him under law, he is also entitled for salary other than subsistence allowance which must have been paid to him during the period of suspension and at the same time he is also entitled for interest over his retiral dues which remained withheld for almost a decade but this Court is not required to examine the validity of the charge-sheet Dt. 11.12.2000 which has been challenged in the instant petition in view of his final exoneration vide order Dt. 28.5.2010.

Consequently, writ petition stands allowed. The respondents are directed to release all his retiral dues along with salary other than subsistence allowance of the period during which he remained under suspension, along with interest @9% per annum in terms of Rule 89 of the Rajasthan Pension Rules, 1996 from the date it became due till its actual payment after its due computation admissible under law within a period of two months. No costs."

On a glance of the pleadings, materials available on record and upon hearing the counsel for the parties, it is evident that neither any departmental nor judicial proceeding was pending against the petitioner''s husband nor there was any deficiency in the pension papers submitted. Be that as it may, deficiencies, if any, was never pointed out to the petitioner''s husband and he was never called upon the make good the alleged deficiency/deficiencies, if any. The report submitted after a close examination of the reasons for delay, in the release of the terminal benefits, in no uncertain term faulted the departmental authorities for not processing the pension case of the petitioner''s husband in accordance with the scheme of the Rules of 1996. The observations made in the concluding paragraph allegedly for the petitioner''s husband did not take any interest in finalization of his pension case while detailing out the reasons for delay to be a ruse. Petitioner''s husband retired on 31st of July, 1996, but until commencement of the departmental inquiry on 29th of June, 2006, the terminal benefits were not released for any valid reason. Moreover, the departmental inquiry resulted into exoneration of the deceased employee. Thus, the delay for the reasons attributed to the State-respondents, is apparent on the face of record. Consequently, the petitioner is entitled to interest in accordance with the Rules of 1996.

For the reasons and discussions herein above, the writ petition succeeds and is hereby allowed. The respondents are directed to pay interest at the prevailing rate of interest on General Provident Fund in terms of Rule 89 of the Rules of 1996 as amended vide Notification dated 9th September, 2008, from the date of the amount became due till its actual payment after due computation admissible under the law. The respondents shall ensure compliance of this order within a period of two months from the date of receipt of a certified copy of this order.

In the facts and circumstances of the case, the petitioner would be entitled to costs of Rs. 20,000/- (Rupees : Twenty Thousands).