Ratindra Bose vs State Of Chhattisgarh

This petition has been preferred under Article 226 of the Constitution of India for issuance of writ in the nature of mandamus directing the respondents to pay retiral dues to the petitioner with interest.

Brief facts of the case are that the petitioner was appointed as Physical Training Instructor (PTI) vide order dated 09.11.1977 on temporary basis. Subsequently, he was awarded UGC pay scale w.e.f. 24.05.2004 by the Department of Medical Education, erstwhile State of Madhya Pradesh and the same was affirmed by the Department of Health and Family Welfare, State of Chhattisgarh vide order dated 12.01.2005. Later on, the petitioner's post was transformed into the post of Sports Oficer vide order dated 22.08.2008. The further case of the petitioner is that an unknown complaint regarding false appointment of him in the service was lodged against the petitioner, thereafter the petitioner submitted an application for voluntary retirement on 01.10.2010 with 3 months' prior notice to the Department. The petitioner informed the respondent No.3 regarding completion of 3 months period in reference to his application for voluntary retirement vide letter dated 31.12.2010 and requested for payment of pension and gratuity and even filed representations in this behalf, but neither he was given pension and gratuity nor his representations were decided. Hence this petition.

The petitioner has prayed for the following reliefs:-

That the Hon’ble court may be kind enough to call the record of the petitioner.

That the Hon’ble court may be kind enough to command the respondents by issuance of a writ in the nature of mandamus and to direct the respondents to pay the retiral dues to the petitioners with interest.

That the Hon’ble court may be kind enough to pass any order or direction as deemed fit in the circumstances of the case.

Learned counsel for the petitioner submits that the respondents have failed to exercise the statutory Rule 42 (1) (a) of Chhattisgarh Civil Services (Pension) Rules 1976, wherein within the statutory period of 3 months, prior notice was given by the petitioner on 01.10.2010 and the same was also intimated on 31.12.2010 after completion of 3 months and completion of statutory period of 20 years in service therefore the petitioner is entitled to pension and other benefits. He further submits that the respondents have neither suspended the petitioner nor instituted any enquiry against the petitioner prior to completion of statutory period of 3 months and even thereafter, thus the payment of pension and other retiral dues are bound to be paid to the petitioner as early as possible in accordance with Rule 43 of the Pension Rules, but neither the pension nor the gratuity was paid till today from the date of his superannuation i.e. 31.12.2010. He further submits that the respondents have illegally and maliciously refuted the voluntary retirement application of the petitioner and instead proposed action against him under the Civil Services Conduct Rules 1965 despite the VRS application being effectuated on 31.12.2010 i.e. 11 months prior to the above mentioned illegal action. The respondents have violated Pension Rules, wherein pension applicable would be payable from the date when the government servant retires from the duty, but till date no amount in form of retiral dues has been paid to the petitioner. The respondents have also violated Rule 74 of the Pension Rules, wherein pension pay order was required to be issued within 15 days from the date of superannuation, but neither the same was done nor any anticipatory and provisional pension/gratuity was paid. He next submits that the respondents have further failed to exercise their powers devolved in them under Rule 57 of the Pension Rules, wherein the preparation of pension papers and verification of service was required to be started two years prior to the date of actual retirement, as such nothing remains to restrain the release of pension and death-cum-retirement gratuity in favour of the petitioner, but none of these were ever paid to the petitioner. The respondents have also failed to submit the records to the Office of Accountant General for verification by the Audit Officer and the same was kept without any reason, as such legal formalities could not be completed by the Office of Accountant General, therefore, the petition may kindly be allowed and the respondents be directed to pay the retiral dues to the petitioner with interest. Learned counsel has placed his reliance upon the judgment rendered by the Hon'ble Supreme Court in the matter of Vijay L. Mehrotra Versus State of U.P. & Others (2001) 9 SCC 687, Ashok Kumar Chhajed Versus State of Chhattisgarh & Others rendered by this High Court in WPS No.7092/2021 vide Order dated 14.03.2022, Dr. Bharat Singh Chouhan Versus Public Health & Family Welfare rendered by the High Court of Madhya Pradesh in WP No.6549/2015 vide order dated 22.09.2015, State of M.P. & Others Versus M. K. Verma & Others, reported in (2002) 3 MPLJ 25 and in the matter of Chandrakanta Versus State of M.P. & Others passed by the M.P. High Court in WP No.6475/2003 vide order dated 11.01.2007.

Learned counsel for the Respondent Nos.1 to 3 submit that the complaint dated 15.06.2010 was made by one Vijay Bahadur Singh and the same was received by the respondents, in which he alleged that some ineligible persons were appointed and promoted against the provisions of law and thereby heavy monetary loss has been caused to the State Exchecker. Thereafter a report was called by Director, Medical Education, Respondent No.2 from the Dean, Pt. Jawaharlal Nehru Memorial Medical College, Respondent No.3. The respondent No.3 submitted its report on 01.12.2012, in which it was mentioned that the appointment of the petitioner was not as per law and was not done by the competent officer. It was also mentioned in the said report that the petitioner was not holding the degree of MPED, which was minimum qualification for the post of PTI as per rules prevalent at the relevant point of time. On 12.07.2012 the Respondent No.1 has categorically stated in the official notesheet that there is no question to accept the application for voluntary retirement of the petitioner, as there are irregularities in the appointment of the petitioner and also in his promotions and the directions were issued to take the opinion of the General Administrative Department/Finance Department for removing the petitioner from the government services and the matter was pending for taking decision before the concerned department. Therefore, this petition is premature and is not maintainable accordingly and be dismissed and consequent of which the petitioner is not at all entitled to any relief prayed for. Learned counsel has placed his reliance on the judgment rendered by the Supreme Court in the matter of Mahadeo and others vs Smt. Sovan Devi and others, reported in 2022 LiveLaw (SC) 730.

No one appears on behalf of the respondent No.4, despite notice being served.

Heard both the counsels for the parties and perused the material available on record.

The petitioner filed various documents from the date of his joining in the services to the date of filing of application for voluntary retirement. It is not in dispute that the petitioner was appointed on 09.11.1977 as Physical Training Instructor (PTI) vide Annexure-P/1. On 10.03.1978 his post was extended till further order vide Annexure-P/2. Vide order dated 24.05.2004 (Annexure-P/3) petitioner was granted UGC Pay Scale and as per order dated 12.01.2005 (Annexure-P/4) petitioner's pay was upgraded and fixed. On 17.08.2007 his post was named as Sports Officer vide Annexure-P/5. As per the order dated 22.08.2008 the aforesaid post of PTI was named as Sports Officer vide Annexure-P/6. On

10.05.2010 vide Annexure-P/7, the petitioner was awarded revised pay scale. On 01.10.2010 the petitioner filed application for voluntary retirement with 3 months’ priot notice vide Annexure-P/8, but no action was taken on his VRS application and instead departmental action was proposed against the petitioner. The petitioner has filed several applications and representations for fixation of his pension and retiral benefits, but no decision was taken by the respondents. The respondents instead issued a letter dated 30.01.2013 vide Annexure-P/25 to the petitioner, which reads as under:-

Apart from the documents filed by the petitioner, the respondents have also filed one document (Annexure-R/1), which is a letter dated 01.12.2010, which relates to complaint. The relevant part of the letter is as under:-

The petitioner also filed entries of his service book, which shows that UGC pay scale was granted to the petitioner by the respondent authorities. The respondents filed some note sheet, which shows that the application of the petitioner was not accepted by the Department and he did not join his service after notice period i.e. 01.01.2011 and due to this misconduct some disciplinary action was proposed against him. The petitioner filed copy of this notesheet

(Annexure-P/22), which is as under:-

It is clear from all the documents that till filing of VRS application by the petitioner, no action was taken by the respondents against the petitioner. The notesheet further discloses that these proceedings were initiated after several months of petitioner's VRS application and the respondents did not grant pension and retiral dues to the petitioner. The respondents have not denied this fact that earlier the petitioner was granted UGC pay scale and other benefits as per orders of erstwhile M.P. State Administrative Tribunal, Jabalpur as well as the Hon'ble High Court of Madha Pradesh.

The Chhattisgarh Civil Services (Pension) Rules, 1976 reads as under:-

“42. Retirement on completion of [20 years] qualifying service. - [(1) (a) A Government servant may retire at any time after completing 20 years qualifying service, by giving a notice in Form 28, to the appointing authority at least three months before the date on which he wishes to retire or on payment by him of pay and allowances for the period of three months or for the period by which the notice actually given by him falls short of three months :

Provided that where the Government servant giving such notice is under suspension, he shall not be allowed to retire from service without the prior permission in writing of the appointing authority.

(b) The appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed [20 years qualifying service or he attains the age of 50 years whichever is earlier], with the approval of the State Government by giving him three months notice in Form 29 :

Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing then immediately before his retirement or, as the case may be, for the period by which such notice falls short of three months.”

As per Rule 42 (1) (A) of the Pension Rules, the employee who voluntarily retires after completing 20 years qualifying service by following the requisite procedure laid down thereunder would be entitled to pension under the said Rules. But in petitioner's case, the respondents did not accept his VRS application within notice period of 3 months and after several months they proposed departmental enquiry proceeding against the petitioner. In their reply, the respondents did not mention any reasonable ground that as to why they did not take any action against the petitioner within the notice period and whey they did not accept or reject the application of the petitioner before completion of notice period on 31.12.2010. Neither the departmental enquiry or any proceeding was pending against the petitioner before 31.12.2010 nor any dues was pending till 04.06.2011, as is evident vide Annexures-P/19 & P/20 and after 7 months of his proposed retirement, initiation of departmental proceeding was proposed against the petitioner and after 2 years of his retirement, the notice for removal of his service was issued on 30.01.2013 vide Annnexure-P/25. Thus, it is evident that the petitioner has been illegally denied to his pension and retiral benefits and the enquiry was proposed against the petitioner after several months of his retirement.

This Court in the matter of Ashok Kumar Chhajed vs State of Chhattisgarh and others, passed in WPS No.7092/2021 vide order dated 14.03.2022, held in paras 9 & 10 as under:-

“9. The aforesaid view of the Hon'ble Supreme Court stands further fortified by the recent decision which has been relied upon by the petitioner in the case of Dr. A. Selvaraj (supra) wherein again in paragraphs 7 & 8 the Supreme Court has held as under:-

Having heard learned counsel for the respective parties, we are of the opinion that as there was a delay in making the payment of retirement benefits and settling the dues for which the appellant employee is not at all responsible, he is entitled to the interest on the delayed payment. Even the Division Bench of the High Court has also observed in the impugned judgment and order that the appellant is entitled to the interest on the delayed payment. However, there is an inter se dispute between the Secretary, Management and the Government as to who is responsible for  the delay in making the payment to the appellant and therefore, he has been denied the interest on delayed payment though entitled to. It is to be noted that as such pursuant to the interim order dated 09.08.2021, the Government did conduct an enquiry and fastened the liability on the college and observed that the former Secretary, Shri C.M. Ramaraj was responsible for the delay in disbursal of the terminal benefits to the original writ petitioner. In that view of the matter, subject to the further final order that may be passed by the Government, the College/Management is first liable to pay the interest on the delayed payment of retirement dues subject to the final decision, which may be taken by the Government, after hearing the Management and the former Secretary. However, because of the inter se dispute between the Management, Secretary and the Government on who is responsible for the delay in making the payment and/or settling the dues, the retired employee should not be made to suffer for no fault of his.

In view of the above discussion and for the reasons stated above, present Appeal Succeeds. The impugned judgment and order passed by the Division Bench of the High Court and that of the learned Single Judge denying the interest on delayed payment of retirement benefits to the appellant is hereby quashed and set aside. The Management / Trustees / College are hereby directed to pay the interest on the delayed payment of retirement benefits to the Appellant, from the date of retirement till the actual payment was made, subject to the final decision that may be taken by the Government on the objections to the enquiry report that may be filed by the former Secretary and/or the College and it will be open for the College / Management / Trustees to recover the same from the person, who, ultimately is held to be responsible for the delay. The payment of interest on delayed payment of retirement benefits to be paid strictly within a period of six weeks from today. In the meantime, the Government to pass a final order on the enquiry report after giving an opportunity to the College / Management / former Secretary. It goes without saying that it would be open to the aggrieved party to challenge the said decision before the appropriate forum.”

The view of the Supreme Court in the aforesaid judgment again is on the ground that unless the employee is held responsible for the delay, he should not be made to suffer for the delayed payment for no fault of his.”

The Hon’ble Madhya Pradesh High Court in the matter of Bharat Singh Chauhan vs Public Health and Family Welfare, passed in WP No.6549/2015, order dated 22.09.2015, held in paras 6, 9, 10 & 11 as under:-

In the present case, it is an admitted fact that the petitioner was appointed as Assistant Surgeon on 14. 8.1985. He has completed 25 years of qualifying service on 14.8.2010. He has submitted an application seeking voluntary retirement on 26. 10.2013 in the prescribed formate and has also deposited a month's salary in lieu of notice period amounting to Rs.78,595/-. He has sought voluntary retirement on 26.10.2010. Rule 42 of M.P. Civil Services (Pension) Rules, 1976 reads as under :-

"42. Retirement on completion of 15/20 years qualifying service- (1). (a)-

Government servant may retire at any time after completing 15 years qualifying service, by giving a notice in form 28 to the appointing authority at least three months before the date on which he wishes to retire or on payment by him of pay and allowances for the period of three months or for the period by which the notice actually given by him falls short of three months;

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“9. This Court in the case of Narayan Prasad Vs. The Honourable District and Sessions Judge, Ratlam in paragrahs 9 and 10 has held as under :-

"9. A perusal of Rule 42(1) (a) shows that no reasons are required to be given in the notice seeking voluntary retirement. It is the volition and choice of the Government servant to seek voluntary retirement after completing 20 years of service by giving three months notice. This notice comes into operation after the expiry of the period of three months automatically. The relationship of master and servant comes to an end on completion of the notice period by the unilateral act of the Government servant. Such a notice does not require any acceptance by the appointing authority. The volition act of the Government servant brings an end to the "binding knot".

The decision of this Court in Indra Prakash v. State of M.P. 1985 MPLJ 229 has taken the same view. It was held that a Government servant who has completed 20 years qualifying service has an absolute and indefeasible right to retire at any date of his choice. The notice of voluntary retirement does not require any order or acceptance by the appointing authority."

A similar petition has also been decided by this Court in the case of Dr. Umesh Chandra Sharma (supra).

In light of the aforesaid judgments, the writ petition is allowed. The petitioner shall be deemed to be retired voluntarily w.e.f. 26.10.2013. The respondents are directed to finalise the terminal/penionary dues within a period of three months and also to pay the arrears of other terminal/pensionary dues and regular pension by treating the petitioner as retired from service voluntarily w.e.f. 26. 10.2013. The respondents shall release the actual payment also in favour of the petitioner within a period of three months from the date of receipt of a certified copy of this order.”

Applying the aforesaid principles in the present case as well, it is quite vivid that in the present case in hand also, the petitioner completed his 20 years qualifying service and after completion of the said period, he filed application for voluntary retirement. True it is that some unknown complaint was filed against the petitioner and the same may have some substance in it, but the fact remains that the action was required to be proposed or taken within the expiry of notice period of 3 months and after expiry of the said period, the petitioner was proposed to be retired from service i.e. on 31.12.2010 and even thereafter the action was proposed and his pension and retiral dues were retained, which should not have been done. Even otherwise, it is the volition and choice of the government servant to seek voluntary retirement after completion of 20 years by giving three months prior notice and the same does not require any order or acceptance by the appointing authority.

In view of the foregoing discussions, this writ petition is allowed. The petitioner shall be deemed to be retired on 31.12.2010. The respondents are directed to finalize his retiral/pensionary dues within a period of 3 months and also to pay arrears of other terminal/pensionary dues and regular pension by treating the petitioner as retired from service voluntarily w.e.f. 31.12.2010. The respondent shall release the actual pension also in favour of the petitioner within a period of 3 months from the date of receipt of copy of this order. Since the petitioner is not responsible for the delayed payment of the retiral dues, the petitioner would be entitled to interest on the delayed payment. Accordingly, all the retiral dues payable to the petitioner shall carry interest @ 6% p.a. from the date of retirement i.e. 31.12.2010 till final payment.