W. Panchatcharam vs The State of Tamil Nadu

R. Banumathi, J.—Petitioner seeks Writ of Mandamus directing the Respondents to pay interest with effect from the date of retirement on 31.08.1997 and within a specified time at the rate of 18% p.a. on the delayed payment of DCRG of Rs. 2,16,563/- and the difference in value of commutation of pension of about Rs. 68,000/- together with interest due to the delayed payment.

Factual background which led to the filing of Writ Petition are as follows:

(i) Petitioner was holding the post of Jt. Director of Treasuries and Accounts in October 1993. Petitioner was on deputation to the Tamil Nadu Poultry Development Corporation Limited as Senior Manager (Finance) from March 1993 to June 1995. Later, Petitioner was deputed to Chennai Metropolitan Water Supply and Sewerage Board. Petitioner was permitted to retire from service without prejudice to disciplinary proceedings on 31.08.1997.

(ii) While Petitioner was working as Senior Manager (Finance)in Tamil Nadu Poultry Development Corporation Limited, Petitioner committed certain procedural lapses for which Petitioner was charge sheeted under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules [for short TNCS (D&A) Rules].

(iii) Five Charges and 12 additional Charges have been levelled against the Petitioner. Alleging that Petitioner failed to point out the exorbitant difference in the rates quoted by M/s. Leo & Co., and M/s.Sangam Agrovet which has caused the loss.

(iv) Petitioner submitted his explanation and oral enquiry was completed on 21.12.1998. Enquiry Officer submitted his report to the Government on 01.12.2000. On 26.12.2002, report of the Enquiry Officer was communicated to the Petitioner by the Government and the Petitioner has submitted his explanation on 10.01.2003. On 28.02.2005, provisional conclusion was communicated to the Petitioner for cut in Pension of Rs. 50/- per month for six months. On 12.09.2005, final order imposing punishment of cut in Pension of Rs. 50/- per month for six months was imposed. Petitioner was paid payment of Gratuity and Commuted value of Pension as (i) Death-cum-Retirement Gratuity Rs. 2,16,563/-; (ii) Commuted value of Pension Rs. 2,04,509/-. Grievance of the Petitioner is that Respondents have taken more than 9 years from the date of retirement i.e. on 31.08.1997 for completion of enquiry.

(v) Case of the Petitioner is that there was no pecuniary loss to the Government and even if there was pecuniary loss, as per second proviso to the Tamil Nadu Pension Rule 60, a portion of gratuity could have been authorised after deducting the maximum computed financial loss to the Government. Alleging the delayed payment, Petitioner has claimed interest for DCRG and differnece in value of commuted Pension.

Opposing the Petition, Respondents have filed counter stating that disciplinary proceedings initiated against the Petitioner was proceeded with and concluded as per the procedure and there was no delay in concluding the disciplinary proceedings and therefore, Government is not liable to pay any interest.

Mr. S.Vadivelu, learned Counsel for the Petitioner contended that in the enquiry it was proved to be only an administrative lapse and gratuity should have therefore been released to the Petitioner. Learned Counsel for the Petitioner further contended that there was no delay attributable to the Petitioner as is clear from the sequence of events. Placing reliance upon 1992 (3) SLR 35 [All India R.B. Retired Officers Assocn. v. U.O.I.), learned Counsel for the Petitioner further contended that Pension and Gratuity are not charity and are not bounty and is in nature of social security plan and therefore, interest has to be awarded for the deliberate delayed payment of DCRG and difference in commuted Pension.

Mr. N.Senthilkumar, learned AGP submitted that there was no undue delay as alleged by the Petitioner and there was no delay in concluding the proceedings. Learned AGP would further submit that at the time when the provisional punishment was communicated to the Petitioner, he has given his consent for the provisional punishment without any condition and therefore, Petitioner is precluded from contending that there was delay in conclusion of the disciplinary proceedings and imposing punishment.

While working as Senior Manager (Finance) in Tamil Nadu Poultry Development Corporation Limited, Petitioner has committed certain procedural lapses. Petitioner is alleged to have not verified the difference quoted by M/s. Leo & Co., and M/s.Sangam Agrovet and Petitioner has omitted to sign in the comparative statement of difference. Petitioner in collusion with Dr. Arokiasamy Jayakumar and Dr. P.Lakshmanan are alleged to have shown undue favourtism to M/s. Sangam Agrovet and thereby alleged to have caused wrongful loss to the Corporation to the tune of Rs. 90,000/-. As many as five Charges and 12 additional Charges were framed against the Petitioner. After finalisation of the proceedings initiated against the Petitioner, Government have issued final order in G.O. Ms. No. 340 Finance (T&A-1) Dept. dated 12.09.2005 imposing punishment of cut in Pension of Rs. 50/- per month for a period of six months for the proven Charges. After that Accountant General was addressed in 3rd Respondent''s letter in Rc. No. 34615/2000/H3 dated 09.11.2005 to issue authorisation for payment of regular pensionery benefits due to the Petitioner. Accountant General has also issued admissibility report on pensionary benefits in respect of the Petitioner in letter No. Pen.3/III/P.57-1275/05-06/Retd/360 dated 08.02.2006.

Main point falling for consideration is whether there was unexplained and unnatural delay in concluding the disciplinary proceedings. As pointed out earlier, pending disciplinary proceedings under Rule 17(b) of TNCS (D&A) Rules, Petitioner was permitted to retire from the Government service without prejudice to the disciplinary action pending against him. Petitioner submitted his explanation on 10.09.1997 to the Charge Memo issued to him. Thereafter, additional Charges were framed against the Petitioner and the Petitioner submitted his explanation to the additional Charges on 22.07.1998. Charges and the additional Charges framed against the Petitioner, explanation of the Petitioner, report of the Enquiry Officer were sent to the Government on 22.12.2000 for taking further action.

After consultation with the Administrative and Advisory departments, enquiry report was communicated to the Petitioner on 26.12.2002 and the Petitioner submitted his further representation on 10.01.2003 and received by the Government on 21.01.2003. After examination of the Charges, explanation of the Petitioner and after communicating with the Petitioner about the proposed punishment, final order was issued on 12.09.2005.

By careful analysis of the sequence of events, there seems to be no unexplained or inordinate delay. Proceedings went on without any unexplained delay. Government cannot be faulted for conclusion of the disciplinary proceedings in 2005.

Learned Counsel for the Petitioner contended that even if there was any pecuniary loss to Government, as per Rule 60(1)(c) of Pension Rules, Government should have deducted the loss to the Government and paid the Gratuity and that was not done. Learned Counsel for the Petitioner further submitted that by the reason of late payment of Gratuity in February 2006, nine years after retirement from the service, there is huge loss to the Petitioner.

Tamil Nadu Pension Rule 60(1)(c) reads as follows:

Provisional pension where departmental or judicial proceedings may be pending -

(1) (a) ....

(b) ....

(c) No gratuity shall be authorised to the Government servant until the conclusion of such proceedings and issue of final orders thereon:

[Provided that no such gratuity, shall be withheld in respect of a Government servant, who has been permitted to retire without prejudice to the departmental or judicial proceedings pending against him, where such departmental or judicial proceedings are only for administrative lapses not involving any pecuniary loss to the Government]

[Provided further that where a Government servant against whom a departmental or judicial proceedings involving pecuniary loss to Government is pending, is permitted to retire without prejudice to such departmental or judicial proceedings, a portion of gratuity may be authorised, after deducting the maximum computed financial loss to the Government for which the Government servant is held liable along with un-recovered Government dues if any, of such Government servant with interest.]

Petitioner was alleged to have caused loss to the tune of Rs. 90,000/-. Petitioner facing major Charges under Rule 17(b) of TNCS (D & A) Rules. When Rule 17(b) Charges was pending, Government could not have foreseen the conclusion of the disciplinary proceedings so as to authorise a portion of Gratuity after deducting the maxiumum computed financial loss to the Government.

Submitting that for the delayed payment of Pension, Courts have awarded payment of interest at 12% p.a. the learned Counsel for the Petitioner placed reliance upon 1987 (5) SLR 288 [O.P. Gupta v. Union of India and Ors.]. In the said case, departmental enquiry was protracted for more than a period of 20 years and the Appellant was under suspension for a period of nearly 11 years. Observing that there was no reason for keeping the departmental proceedings alive for a period of 20 years, Supreme Court has awarded interest at 12% on the delayed payment of Pension.

Learned Counsel for the Petitioner contended that as a settled practice, the Supreme Court has been making a direction for payment of interest at 12% on the delayed payment of Pension. In support of his contention the learned Counsel for the Petitioner placed reliance upon 1999 (2) SLR 22 [ Dr. Uma Agarwal v. State of U.P. and Anr.] and 2000 (2) SLR 686 [Vijay L. Mehrotra v. State of U.P. and Ors.].

The above decisions are of no assistance to the Petitioner. As pointed out earlier, in the present case there was no unexplained delay attributable to the Government in conclusion of the disciplinary proceedings. As the disciplinary proceedings was pending under Rule 17(b), it is not open to the Petitioner to contend that part payment of Gratuity ought to have been authorised as cotemplated under Rule 60(1)(c) of TN Pension Rules.

After consultation with the Advisory department, provisional conclusion of imposing the punishment was communicated to the Petitioner on 28.02.2005 for his consent as per Rule 9 of TN Pension Rules. In his consent letter, Petitioner has raised the question of interest and had given his consent with some condition. Again show cause notice was issued to the Petitioner on 03.06.2005 calling upon him to give his consent for the provisional punishment without any condition. Accepting the punishment, Petitioner has submitted his consent letter on 16.06.2005. Having given his consent for the proposed punishment, it is not open to the Petitioner to contend that there was delayed payment of DCRG and commuted Pension. Petitioner is not entitled to the interest as claimed in the Writ Petition.

In the result, the Writ Petition is dismissed. No costs.