Lok Nath Sharma vs U.O.I and Others

Instant petition is directed against order of the Ld. Tribunal dt.10.12.2013.

It is glaring case as to how an innocent person could be dragged into litigation and can be deprived of his legitimate dues on attaining superannuation age because of abuse of discretion available to the authorities/disciplinary authority.

Brief facts of the case which are relevant for our consideration are that the present petitioner joined service after due selection by the Rajasthan Public Service Commission in 1967. He is a graduate and for the purpose of date of birth, he has furnished certificate issued by the statutory Board in which his recorded date of birth is 20.7.1949 which was inserted into the service record and throughout maintained and according to his date of birth he has to retire on 31.7.2009 on attaining the age of superannuation.

This is one of such incidence brought to our notice that how the right of fair consideration of a senior officer could be jeopardized and that is possible only if the senior is ousted by serving him a charge sheet/initiation of disciplinary enquiry and the petitioner was sidelined a week before his retirement by serving charge sheet dt.21.7.2009 for major penalty under the Central Civil Services (Pension) Rules, 1972 (Rules 1972) and the only charge leveled against him was that there is complaint received by the department that the date of birth recorded in the school record is false and fabricated and the department intends to enquire upon and he entered into service canceling his correct date of birth and treating it to be a misconduct which he committed while he submitted application and participated in the selection process relate back to the year 1967 and immediately after charge sheet came to be served he stood retired from service on 31.7.2009 and the very charge sheet dt.21.7.2009 served upon him came to be challenged by the petitioner by filing original application-317/2009 before the Tribunal and the Ld. Tribunal after hearing the parties allowed his original application vide order dt.1.4.2011 and quashed the charge sheet and also recorded the finding that it was malafide act of the respondent/disciplinary authority and with ulterior motive charge sheet was served upon the petitioner and the order of the Tribunal dt.1.4.2011 came to be challenged by the department by filing DBCWP-7005/2011 and that came to be dismissed by the Division Bench of this Court vide order dt.25.7.2011. However, on request made by counsel for the UOI in reference to the finding recorded by the Tribunal to initiate disciplinary enquiry for the malafide act and for oblique motive, the Division Bench took a lenient view and set aside the observation made by the Ld. Tribunal but at the same time upheld the order of the Tribunal and in view of the final order passed by the Division Bench dt.25.7.2011 charge sheet and disciplinary enquiry initiated pursuant thereto against the petitioner stands finally quashed and set aside.

It has come on record that provisional pension equal to the maximum pension was sanctioned to the petitioner vide order dt.29.7.2009 and that was paid to him and as regard gratuity, partly the leave encashment to the extent of 75% and other retiral benefits are concerned, the same came to be withheld in view of R. 69 of Central Civil Services Pension Rules, 1972 (Rules 1972) which postulate that where departmental or judicial proceedings are pending against the employee at the time of retirement he may be entitled for provisional pension equal to the maximum pension but no gratuity shall be paid to the govt. servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon.

After the charge sheet dt.21.7.2009 came to be quashed and set aside and confirmed by the Division Bench on rejection of writ petition preferred by the department vide judgment dt.25.7.2011, the gratuity and balance of leave encashment was paid to him after two years and six months in the month of February 2012 and permitted for commutation of pension.

However, the payments were made to him of gratuity and leave encashment in particular but he was deprived of interest which was due and entitled for in view of the fact that charge sheet was quashed and set aside by the Tribunal and confirmed by this Court and to ventilate his grievance original application came to be filed by the appellant and prayed before the Tribunal that as per the provisions of R. 68 of the Rules 1972 read with the Govt. decision appended thereto are read conjointly it clearly envisage that after conclusion of the proceedings departmental or judicial if the delinquent/employee is fully exonerated he will be entitled to interest on delay in payment of gratuity and as regard leave encashment is concerned which indisputably is one of the retiral benefits, either counsel has not brought to our notice that what will be the effect if the employee has been exonerated or departmental proceedings have been dropped in regard to leave encashment but we can still took note appended to R. 68 of the Scheme of Rules which clearly postulate that if there is either exoneration or disciplinary proceedings stands dropped it will be deemed and presumed to be effected from the date of retirement and as consequence thereof the employee will become entitled for payment of interest for the delay in payment of retiral dues and we consider appropriate to quote R. 68 of Rules 1972 and Government of India''s decisions appended thereto for the present purpose-

"68- Interest on delayed payment of gratuity

(1) If the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with instructions issued from time to time-

Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers.

(2) Every case of delayed payment of gratuity shall be considered by the Secretary of the Administrative Ministry or the Department in respect of its employees and the employees of its attached and subordinate offices and where the Secretary of the Ministry or the Department is satisfied that the delay in the payment of gratuity was caused on account of administrative lapse, the Secretary of the Ministry of the Department shall sanction payment of interest-

(3) The Administrative Ministry or the Department shall issue Presidential sanction for the payment of interest after the Secretary has sanctioned the payment of interest under sub-rule (2).

(4) In all cases where the payment of interest has been sanctioned by the Secretary of the Administrative Ministry of the Department, such Ministry of the Department shall fix the responsibility and take disciplinary action against the Government servant or servants who are found responsible for the delay in the payment of gratuity.

Government of India''s Decisions-

(1) Admissibility of interest on gratuity allowed after conclusion of judicial/departmental proceedings- 1. Under the rules, gratuity becomes due immediately on retirement. In case of a Government servant dying in service, detailed time-table for finalizing pension and death gratuity has been laid down, vide R. 77 onwards.

(2) Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity, if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the Competent Authority.

(3) In order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases, in accordance with the aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the Government servants who die during the pendency of judicial/disciplinary proceedings against them and against whom proceedings are consequently dropped."

Main thrust of submission of counsel for the petitioner is that if there was no fault of the employee and he has been unnecessary dragged into litigation and charge sheet dt.2.7.2009 came to be served with an oblique motive and once that has been set aside by the Tribunal and confirmed by the Division Bench of this Court in consequence thereof he is certainly entitled for all the retiral benefits with interest from the date it became due and payable and the Ld. Tribunal committed error in depriving of his right of interest entitled for and that requires interference of this Court.

Counsel for respondent while supporting the order of the Tribunal submits that the authority holds competence to withhold retiral benefits (gratuity) invoking R. 69 of the Scheme of Rules and immediately after the charge sheet came to be set aside by the Tribunal and confirmed by this Court, few months of procedural delay cannot be attributed to the Department and under these circumstances the Tribunal has not committed any error in declining to grant interest on alleged delay in payment of retiral dues under order impugned and which does not call for interference.

We have heard counsel for the parties and with their assistance perused the material available on record.

The indisputed facts which we have already noticed and considered appropriate to summaries are that the petitioner joined service in 1967 and he was a graduate and in support of his date of birth which is 20.7.1949, he submitted the certificate issued by the statutory Board which was also recorded in the service record and that continued to be maintained until retirement and there was no complaint even according to the respondent at any point of time from entering into service and rendered almost 40 years of service and a week before when he was going to retire, was served with a charge sheet dt.21.7.2009 for major penalty u/R. 14 of the Rules 1972 holding disciplinary enquiry in respect of date of birth which was recorded in service record at the time of entering into service the narration of facts noticed by this Court in the earlier litigation indicates that it was a malafide act of the department and with oblique motive the charge sheet was served upon him, however, the Division Bench of this Court might have diluted the observation of the Tribunal but the conspicuous facts cannot be ruled out and the petitioner was one who was dragged in disciplinary enquiry for no fault of his but only fault of the petitioner was that he was senior in the cadre and was due for promotion and which was not acceptable to the department and has paid price for it.

After the matter being heard by the Tribunal, sub para 2 of R. 68 of Government decision has been taken note of and para 3 which was relevant to the issue under consideration appears to be missed and placing reliance on para 2 of the Govt. decision in the light of R. 68 of the Pension Rules, the Ld. Tribunal dismissed the O.A. vide order dt.10.2.2013 and observed that whatever the delay thereafter has been caused is procedural and cannot be attributed to the department and the employee also was not at fault but at least if there was no delay attributable to the department he would not be entitled to interest over the delay in payment of retiral dues under order impugned and that is the subject matter of challenge in the instant proceedings.

It is true that u/R. 69 of the CCS Rules, the department holds competence to withhold gratuity if the departmental or judicial proceedings are pending but it does not indicate as to what will be the effect if the employee is finally exonerated or disciplinary enquiry after kept pending for few years stands dropped but it can be borrowed and considered in the light of R. 68 which might deals with interest on delayed payment of gratuity but the pith and substance remain the same as to what will be the effect if the retiral dues (leave encashment) become due but withheld because of pending disciplinary/judicial enquiry and if R. 68 with para 2 and 3 of the govt. decision are read conjointly it clearly envisage that after conclusion of the proceedings departmental or judicial if the delinquent/employee is fully exonerated or the proceedings stands dropped the employee will be entitled to interest on delay in payment of gratuity and as regard leave encashment is concerned which indisputably is one of the retiral benefits either counsel has not brought to our notice any provision to the contrary employee will be entitled to interest on delay in payment of retiral dues (leave encashment) and it shall be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of retiral benefits.

In the instant case, we find that he was paid provisional pension equal to the maximum pension which is the requirement of R. 69 of the Rules but as regard gratuity and leave encashment are concerned to the extent it was withheld and paid to the petitioner in February 2012, interest over the delay in payment was not made and after taking note of Scheme of Rules of 1968 and material which has come on record, we are of the considered view that the petitioner has made out a case for entitlement of interest over the delay in payment of retiral dues over gratuity and leave encashment paid to him upto February 2012 from the day it became due and payable on the date of retirement and either party has not brought to our notice if rate of interest has been notified by the Govt. of India on delay in payment of retiral dues but it can be gathered from R. 89 of Raj. Civil Services (Pension) Rules 1996 and it award interest @ 9% to the retired govt. servant for delay in payment of retiral dues and taking note thereof we are of the view that the petitioner be held entitled for interest for delay in payment of retiral dues @ 9% interest keeping in view the mandate of R. 89 of Rules 1996.

As regards the submission in respect of interest over delay in commutation of pension is concerned, we find no substance for the reason that commutation is a facility provided to the employee and to get the pension commuted he was paid provisional pension equal to the maximum pension and that may not make him entitled for interest on commutation of pension as prayed for.

In our considered view the Tribunal in the facts and circumstances has committed a manifest error of law in not awarding interest over delay in payment of retiral dues and the order is not sustainable and deserves to be quashed and set aside.

Accordingly, the writ petition succeeds and is hereby allowed and the order of the Ld. Tribunal dt.10.12.2013 is quashed and set aside and the respondent No. 3 is directed to release interest @ 9% over the delay in payment of gratuity and leave encashment from the date of retirement until actual payment and after due computation it shall be paid within a period of two months and if the respondent fails to pay the interest @ 9% as awarded by this Court within the stipulated period it shall carry further interest at the rate of 12% until actual payment.

No cost.