Devendra Joshi vs State of Uttarakhand and others

Hon''ble Tarun Agarwala, J.—The petitioner took a voluntary retirement while serving as a Junior Engineer in the Nagar Palika Parishad, Nainital on 1st November, 2007 which was accepted in accordance with Rule 38 (2) of the Palika Centralised Service Regulation, 1966 by an order dated 31st December, 2007. Accordingly, the petitioner handed over the charge and was relieved. The petitioner applied for pensionary dues, etc. which remained pending and was not released and, consequently, the present writ petition was filed praying for a writ of mandamus commanding the respondents to pay the pensionary benefits, such as, leave encashment, gratuity, pension and group insurance alongwith interest at the rate of 18% per annum. Counter affidavit, supplementary counter affidavit and other affidavits have been filed by the Nagar Palika Parishad, Director, Urban Development Directorate as well as by the Secretary, Urban Development Deptt, Dehradun.

The Nagar Palika Parishad in their various affidavits contended that the petitioner did not submit the necessary papers, namely, the charge of the Junior Engineer to the Deptt. at the time when his voluntary retirement was accepted and also did not submit the pension papers to the pension clerk and did not file the no objection certificate from the sections, such as, Health Section, Municipal Engineer Section, Misc. Section, etc. These allegations were denied by the petitioner who contended that the relieving certificate was issued on 31st December, 2007 and the question of handing over the charge certificate did not arise.

From the affidavit of the Nagar Palika Parishad, it transpires that there exists on record an application of the petitioner dated 21st October, 2008, in response to which, the Nagar Palika Parishad, by a letter dated 22nd September, 2009, directed the petitioner to fill in the requisite form for sanctioning the pension and other post retirement dues. The record suggests that the papers were processed by the Nagar Palika Parishad and forwarded to the Directorate Local Bodies on 6th October, 2009.

The counter affidavit of the Directorate Local Bodies respondent No. 2 indicates that the papers were received in the Deptt. for the first time in 15th October, 2009 and the matter was processed and pension and gratuity was sanctioned on 9th December, 2009 and the group insurance was released on 17th November, 2009. The Directorate Local Bodies further contended that leave encashment was required to be paid by the Municipal Board.

During the pendency of the writ petition, the petitioner received the pension, gratuity and group insurance including leave encashment. Subsequently, an affidavit was filed contending that pursuant to the VIth Pay Commission, the petitioner is also entitled to receive the arrears of pension, gratuity and other dues. A supplementary counter affidavit was filed by the respondent Nos. 1 and 2 admitting that the petitioner was entitled for arrears of revised pension and gratuity w.e.f. 1st October, 2007 and contended that the same would be paid on the availability of funds in the pension fund. The respondents contended that sufficient funds were not available in the Palika Centralised Service Pension Fund and that the State Govt. had issued a Government Order No. 484 dated 30th December, 2010 to clear the arrears in three financial years.

The Court by an order dated 28th December, 2011 directed the Secretary, Urban Development Deptt. to file an affidavit seeking therein the steps taken by him for the arrangement of necessary funds for the retired employees and also directed that pension of the petitioner from the month of August, 2011 till date be paid on or before the next date fixed, namely, 19th March, 2012. No affidavit was filed by respondent No. 1 and 2 indicating the steps taken by them. The Court took the matter seriously and directed the Secretary to appear or show cause on 9th April, 2012. On 9th April, 2012, the respondent No. 1, namely, Principal Secretary, Urban Development Deptt., Govt. of Uttarakhand did not appear nor cause was shown. This Court, by an order dated 9th April, 2012, was constrained to observe that the dignity and the majesty of the Court was being lowered because of the non appearance and, consequently, directed the Chief Secretary to take immediate action against the Principal Secretary by suspending him and initiating disciplinary proceedings. Pursuant to the said order of the Court dated 9th April, 2012, a suspension order dated 12th April, 2012 was issued suspending Dr. Ranbir Singh, Principal Secretary with immediate effect. A copy of the said suspension order has been brought on record.

A recall application No. 3119 of 2012 has been filed for the recall of the order dated 9th April, 2012. The Advocate General has appeared on behalf of the Principal Secretary and has submitted that the Principal Secretary had no intention to lower the dignity or the majesty of the Court and has tendered un-conditional apology for his non-appearance before the Court on 9th April, 2012. The Advocate General contended that the non appearance was not willful nor deliberate but was on account of the fact that he had fallen ill and had applied for leave. It was also contended that a fax message was sent to the office of the Chief Standing Counsel but for reasons best known, the request for fixing another date was not intimated to the Court which resulted in the passing of the order of suspension. The Advocate General contended that the Principal Secretary had no intention whatsoever to disobey the direction of the Court. The affidavit further indicates the steps taken with regard to the compliance of the order of the Court dated 28th December, 2011. Paragraph 8 of the affidavit indicates that a sum of Rs. 2,21,931/- which includes pension for the month of February and March towards the arrears of pension and gratuity pursuant to the VIth Pay Commission has been credited in the account of the petitioner and that the remaining 1/3 of arrears of pension and gratutity in terms of the VIth Pay Commission would be released from the pension funds in the current financial year 2012-13.

The petitioner has filed a supplementary affidavit-II dated 19th April, 2012 indicating that there has been a delay in the release of the pension, gratuity, leave encashment as well as a delay in the release of the revised arrears of gratuity, pension, etc. Consequently, the petitioner is entitled for payment of interest. In addition to the aforesaid, the petitioner contends that the pension for the month of December, 2011 and January, 2012 has not been released and the remaining 1/3 pension and gratuity as per the VIth Pay Commission is still required to be released. In the light of the aforesaid, the learned counsel contends that necessary direction in this regard be issued.

With regard to the payment of interest, the law is clear that pension is not a bounty but a fundamental right and, if there is a delay in the release of the pensionary benefits, the department is liable to pay interest. The petitioner has prayed for payment of interest @ 18% p.a. The Nagar Palika Parishad contends that there has been no willful delay on their part since necessary papers, documents and no objection certificates were not filed by the petitioner.

This Court finds that nothing has been indicated as to whose duty is it to place these documents. Is it the responsibility of the retired employee to run from one department to another after retirement in order to collect the no objection certificates or is it the duty of the Nagar Palika Parishad itself to collect the no objection certificate from each of their departments ? This anomaly has not been explained but it has been contended that the onus is upon the petitioner to produce these documents. The record indicates that an application was made by the petitioner on 21st August, 2008 which was responded by the Nagar Palika Parishad by their letter dated 22nd September, 2009 after almost 13 months. No justification has been given as to why the respondents could not respond to the said letter earlier. Consequently, for this delay of 13 months, the Court is of the opinion that interest is liable to be paid @ 6% per annum. Let the Nagar Palika Parishad calculate the interest of 13 months on the initial pension, gratuity and leave encashment. Since details are lacking with regard to the payment of revised arrears of pension pursuant to the VIth Pay Commission, no interest is payable by the respondents on that amount.

In so far as the pension for the month of December, 2011 and January, 2012 is concerned, the learned Addl. C.S.C. appearing for the respondent No. 2 submitted that the amount has already been transferred in February, 2012 and March, 2012.

In the light of the aforesaid, the grievance of the petitioner has substantially been settled. In the event, any other arrears or dues are required to be paid, the same is required to be spelt out with clarity, the details of which the petitioner may place before the appropriate authority concerned which would be expeditiously decided by the authority.

In so far as the suspension order of respondent No. 1 is concerned, in Mohd. Iqbal Khanday Vs. Abdul Majid Rather, AIR 1994 SC 2252, the Supreme Court held that prompt steps are required to be taken and the contemnor cannot ignore the order or plead about the difficulties in the implementation of the order. The Court is concerned with the compliance of the order, whether the order is right or wrong. The order of the court is to be obeyed as held by the Supreme Court in Prithawi Nath Ram Vs. State of Jharkhand and others, (2004) 7 SCC 261.

In the instant case, pensionary benefits were not being released. The arrears of pension pursuant to the VIth Pay Commission was not being released. A stand was taken by the respondents that they do not have the funds in the pension account to pay the amount. This Court by an order dated 28th December, 2011 directed the respondent No. 1 to file a supplementary affidavit indicating the steps taken by him for arrangement of necessary funds. Inspite of sufficient time of almost three months being granted, no counter affidavit was filed nor steps taken by the respondent No. 1 was indicated to the Court. The Court found that non compliance of its order was a serious matter and, consequently, directed the Principal Secretary to appear and show cause on 9th April, 2012. On 9th April, 2012, the respondent did not appear and the Court was constrained to observe that the dignity and majesty was being lowered deliberately for not appearing before the Court. The Court, consequently, directed the competent authority to suspend the respondent No. 1.

Now compliance of the order dated 28th December, 2011 has been made and it has been indicated in the recall application that arrears have also been paid to some extent. An attempt has been indicated by the respondent No. 1 that he could not appear as he had fallen ill. Justification has been sought by respondent No. 1 indicating that he had intimated the C.S.C. but for reasons best known, the said intimation was not made known to the Court.

The Court is not happy with the stand taken by the respondent No. 1. It is not known as to what medical infirmity occurred which made the respondent No. 1 unable to appear before the Court. Applying for medical leave is not sufficient. Nothing has been indicated in support of the medial leave. It is quite apparent that the reasons indicated by respondent No. 1 is clearly an afterthought.

No one is above the law. Every one whether individually or collectively is under the supremacy of law. The dignity and the authority of the Courts cannot be allowed to be tarnished or diminished or wiped out by the contumacious behaviour of any person. The Court in order to protect itself has the only weapon, namely, the long arm of the contempt of the Court. Whoever tends to undermine the authority of the Court and brings it to disrepute will come within the purview of the contempt proceedings. The exercise of the contempt power is not to vindicate the dignity of a Judge but to uphold the majesty of the Court and the administration of justice.

Without commenting anything further on the conduct of the respondent No. 1, since the Court finds that the grievance of the petitioner has now been substantially given, the Court is not vindictive but has a large heart and is magnanimous and accepts the unconditional apology furnished by the respondent No. 1. In the light of the aforesaid, the writ petition stands disposed of in terms of the observations made aforesaid. The order of the Court dated 9th April, 2012 is recalled. The Chief Secretary is directed to recall the suspension order against Dr. Ranbir Singh, Principal Secretary, Urban Development Deptt., Govt. of Uttarakhand. The personal presence of respondent No. 1, Dr. Ranbir Singh is discharged accordingly.