S.D. Bharwal vs State of H.P. and Others

Surinder Singh, J.—By means of the present petition, preferred under Article 226 of the Constitution of India, the Petitioner has sought the writ of mandamus and certiorari on the following relief(s):

The writ of mandamus as well as certiorari be issued against the Respondents.

That the Respondent may be directed to pay interest at the rate of 18% per annum to the Petitioner w.e.f. 27.11.2007 and as per the Rule 68 Clause 4 the liability may be fixed against the government servants who are found responsible for the delay in the payment of gratuity.

That the Respondent may be to pay leave salary admissible for the number of days of earned leave at the credit of the employee on the last day of his service, there is a 298 leave encashment is due out of maximum 300 days.

The Petitioner is a retiree from the Health Department of the State. Some departmental inquiry is alleged to be pending against him. He was pre-maturely retired vide Notification dated 27.11.2007 (Annexure P-1). Ultimately after his retirement, he was exonerated on 31st December, 2008 vide Annexure P-6. When the retiral benefits were not released, the Petitioner filed the present petition seeking above reliefs.

During the pendency of this petition, an amount of Rs. 3,50,000/- was sanctioned in his favour vide order dated 15.1.2009 (Annexure P-8) which was paid to him by depositing in his Bank Account on 29.1.2009.

According to the Petitioner, delay of 14 months after giving three months allowance, as per Decision No. 2 below Rule 68 of CCS (Pension) Rules, the Petitioner is entitled for the interest on the aforesaid delayed payment of gratuity amount.

According to Shri A.K. Bansal, learned Additional Advocate General, the gratuity is not payable to the retiree, until the conclusion of the department or judicial proceedings as per Rule 69 (1) ( c ) of the CCS (Pension) Rules and also in view of the Government of India''s decision No. 3 below Rule 68 of the aforesaid Rules, which gives discretion to the department.

Matter considered.

Admittedly, the Petitioner was exonerated from the departmental enquiry, therefore, in view of the judgment passed in Basanti Devi v. State of Himachal Pradesh and Ors. in CWP No. 3060 of 2010, on 3.3.2011, Latest HLJ 2011 (HP) 474, by this Court, once an employee is exonerated in departmental proceedings or acquitted in judicial proceedings in that event the gratuity would be deemed to have fallen due on the date of retirement for the purpose of interest.

Since there is delay in making the payment of gratuity and because of the fact that the Petitioner stood exonerated, he becomes entitled for the interest @ 9% per annum, on the gratuity amount with effect from his retirement till its release.

Further, the payment of leave encashment was also delayed. Learned Additional Advocate General submits that there has been dispute with respect to 20 days joining period pertaining to the month of November, 2004 and also the year 2006.

The Petitioner admittedly retired on 27.11.2007 whereas leave encashment was paid on 31.1.2009 after the delay of 14 months. The reason for non-depositing about the disputed joining period is not spelt out from the reply and even otherwise, there is a dispute with respect of 20 days in all, which could have been decided by the Respondent-department before the retirement of the Petitioner or in any case immediately within three months of his retirement, which was not done.

Therefore, in my opinion, after giving the allowance of three months from the date of retirement, the Petitioner is entitled for interest @ 9% per annum on the delayed payment w.e.f. 27.2.2008 to 31.1.2009, the date of actual payment of leave encashment and also on the delayed payment of gratuity and leave encashment, as mentioned herein above, which shall be paid by the Respondents to the Petitioner within a period of four months from the production of the copy of this judgment, failing which the interest shall be @ 12; P.A. and the Officer responsible for causing delay will be personally liable for the entire interest. Please see Dr. J.C. Katoch and Ors. v. State of Himachal Pradesh and Ors. decided on 30.8.2010 by the Principal Division Bench of this Court.

With these directions, the petition stands disposed of, so also the pending application(s), if any.