Suresh Chandra vs The State of Bihar and Others

G.C. Bharuka, J.—The present writ application has been filed for issuance of a writ of mandamus on the Respondents commanding upon them to pay the entire retiral benefits to the Petitioner which has not been paid to him pursuant to his superannuation on 31.8.1986 from service in the cadre of the Additional District Magistrate.

In this case it is not in dispute that the Petitioner has retired as a Government servant about seven years back and pursuant to his service conditions, he is entitled to the payment of pension, gratuity and provident fund as envisaged under the Bihar Pension Rules, Bihar General Provident Fund Rules read with the provisions of the Provident Fund Act, 1925.

According to the Petitioner, he is being paid only 90 per cent of the pension admissible to him and nothing has been paid on account of gratuity or provident fund.

A counter-affidavit has been filed on behalf of the Secretary, Department of Personnel and Administrative Reforms, Bihar, Patna Respondent No. 2) wherein it has been stated that certain allegations are pending enquiry against the Petitioner which pertains to the period 20th December, 1981 to 31st August, 1984 when he was on deputation in the Bihar state Food and Civil Supplies Corporation and since that matter has not been finally disposed off for want of effective explanation from the Petitioner, the aforesaid payments have not been made to him.

The Petitioner is entitled to pension and gratuity under the provisions of the above referred Pension Rules. Rule 27 thereof provides that pension includes gratuity. This Rule have made elaborate provision with regard to the mode of computation for pension and gratuity in respect of the Government servants serving in the State Rule 139 of the said Rules provides as under:

139(a) The full pension admissible under the rules is not to be given as a matter of course, or unless the service rendered has been really approved.

(b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper.

(e) The State Government reserve to themselves the powers of revising an order relating to pension passed by subordinate authorities under their control, if, they are satisfied that the service of the pensioner was not thoroughly satisfactory or that there was proof of grave misconduct on his part while in service. No such power shall, however, be exercised without giving the pensioner concerned a reasonable opportunity of showing cause against the action proposed to be taken in regard to his pension, or any such power shall be exercised after the expiry of three years from the date of the order sanctioning the pension was first passed.

Admittedly no order has been passed against the Petitioner under Rule 139 as quoted above and, therefore, he has a right to receive the entire amount of pension admissible to him.

Mr. P.K. Sinha, learned Counsel for the Petitioner has submitted that the Petitioner is entitled to entire pension as admissible in law. He has brought to my notice the decision of the Supreme Court in Deokinandan Prasad Vs. The State of Bihar and Others, wherein it has been held as follows:

We are not inclined to accept the contention of the learned Counsel for the Respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purpose of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the Petitioner to receive pension under the circumstances mentioned therein.

The same view has been taken by the Apex Court with regard to the grant of gratuity. In F.R. Jesuratnam v. Union of India and Ors. 1988 PLJR (S.C.) 611 it has been held that:

gratuity is no longer a bounty but it is a matter of right of the employee and it can therefore no longer be regarded as a provision in the discretion of the President as provided in the Pension Regulations.

In the case of State of Kerala and Others Vs. M. Padmanabhan Nair, , the Supreme Court has taken a serious exception and expressed displeasure at the delays made in payment of the retiral benefits by holding that:

Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.

In the present case no plausible explanation is coming forth for non-payment of entire retiral benefits to the Petitioner.

Accordingly it is hereby directed that Respondent No. 2 must ensure the payment of entire retirement benefits which includes full pension, gratuity and provident fund to the Petitioner within two months from the date of communication of this order either by the Petitioner or learned Counsel for the State with interest calculated at the rate of 15 per cent per annum from the date the said payments have fallen due subject to any final and lawful order passed under Rule 139 of the Bihar Pension Rules within the said period. It may be clarified that the said Rule has no bearing on payment of provident fund. Cost is assessed at Rs. 1,000/ - (Rupees one thousand) to be paid to the Petitioner along with the aforesaid retirement benefits which may be recovered from the salary of the officer concerned who is found to be responsible for causing the delay in question.

In the result, this application is allowed with the aforesaid directions.