JUDGMENT
A.S. Aguiar, J.
1. The petitioner herein seeks to invoke the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India to compel the respondents to pay him his pension and other retirement benefits along with interest at the rate of 18% per annum and for quashing and setting aside the communication dated 23rd August, 2000 by which communication a sum of Rs. 37,442/- is ordered to be recovered from the amount of commuted pension allegedly paid in excess.
2. The petitioner herein, being in service on the establishment of this High Court, after completing 37 years of qualifying service, gave notice dated 17-3-1999 under Rule 65 of the Maharashtra Civil Services (Pension) Rules, 1982 for voluntary retirement with effect from 1-7-1999. By letter dated 15-4-1999, the Additional Registrar, High Court, Bombay (Panaji Bench) required the petitioner to comply with certain formalities and the petitioner was informed by Memorandum dated 18-5-1999 that his application for voluntary retirement had been accepted by the Honourable Chief Justice, respondent No. 1 herein.
3. As required by communication dated 15-4-1999, the petitioner complied with all the formalities. By Memorandum dated 7-6-1999 the petitioner was requested to give his option whether he would like to draw increment in the present scale or in the revised scale as his date of increment falls on 1-1-1996 and by communication dated 11-6-1999, the petitioner opted to draw his increment falling due on 1-1-1996 in the revised scale. By order dated 24-6-1999, the petitioner was voluntarily retired from service with effect from 1-7-1999.
4. It is the case of the petitioner that in terms of the Rules, respondents were duty bound to effect payment of his pension along with all other retirement benefits within a maximum period of 2 months from the date of retirement. However, there was an unreasonable delay of about 8 months on the part of the respondents in making the said payment and it was for the first time in March 2000, i.e. after a delay of about 8 and half months from the date of retirement, that the provisional pension for 6 months period from 1-7-1999 to 31-12-1999 at the rate of Rs. 6,864/- amounting to Rs. 41,184/- was paid to the petitioner on 16-3-2000. On the said date, i.e. 16-3-2000, the petitioner was also paid a sum of Rs. 1,65,050/- towards provisional Death-cum-Retirement Gratuity (D.C.R.G.). However, thereafter again, for a period of 7 months i.e. until 9-10-2000, no payment towards pension or other retirement benefits was made. On 9-10-2000, provisional pension for the period from 1-1-2000 to 30-9-2000 at the rate of Rs. 6,864/- per month, totalling Rs. 61,776/- was paid to the petitioner. According to the petitioner, a sum of Rs. 2,09,619/- was due and payable to him towards benefit of commutation of pension. However, as on 9-10-2000, only portion of the said amount was paid to him, namely, Rs. 1,04,261/-. According to the petitioner, a sum of Rs. 1,05,358/- towards retirement benefits is due and payable to him as under :-
a) Death-cum-retirement gratuity: Rs. 37,422/-;
b) Commutation of Pension: Rs. 67,936/-.
5. Petitioner states that instead of the respondents taking effective steps for payment of the sum of Rs. 2,09,619/- towards benefit of commutation of pension, the petitioner was shocked and surprised to receive communication dated 23-8-2000 stating therein that provisional D.C.R.G. and commutation of pension should have been paid as per the unrevised scale and difference between the revised and unrevised scale D.C.R.G. amount is to be paid in three instalments and since the same has been paid to the petitioner in lump sum, the excess amount of D.C.R.G. amounting to Rs. 37,442/- is ordered to be recovered from the commutation of pension.
6. It is the case of the petitioner that the communication dated 23rd August, 2000 is uncalled for, since despite the delay of an unreasonable period from the date of petitioner’s retirement, the issues relating to the payment of pension and other retirement benefits were yet to be finalised. Further, that the communication disclosed no basis whatsoever for the payment of the D.C.R.G. amount in three instalments and consequent recovery from the commutation of pension, and lastly, that the principles of natural justice and fair play have not been followed prior to the order for recovery of so-called excess payment of D.C.R.G. amount i.e. Rs. 37,442/-.
7. It is the case of the petitioner that the direction for payment of D.C.R.G. benefits in three annual instalments is a concept introduced by Resolution dated 15-11-1999 issued by the Government of Maharashtra, Finance Department. The said Resolution dated 15-11-1999 states that the same shall be applied to State Government servants who retire/die in harness between 1-1-1996 and 30-6-1999. As the petitioner had retired with effect from 1-7-1999, there was no question of applicability of the Resolution dated 15-11-1999 to the case of the petitioner. It is contended that, as such, withholding of D.C.R.G. benefits and the recovery of the alleged excess amount from the petitioner is clearly unreasonable and unconstitutional. It is the case of the petitioner that the pension orders dated 18-9-2000 and orders towards commutation of pension also dated 18-9-2000 were issued after unreasonable delay of almost 18 and half months. It is pointed out that both the said orders dated 18-9-2000 contain a noting with regard to the recovery of alleged excess amount of Rs. 37,442/- from the commutation amount payable to the petitioner and that the said recovered amount of D.C.R.G. is to be paid back with instalments of commutation as and when the second and the third instalment is released by the Government of Maharashtra. It is the contention of the petitioner that such approach on the part of the respondents is highly arbitrary, unreasonable and unconstitutional.
8. In response to the petitioner’s representation, the office of respondent No. 2 informed the Additional Registrar of High Court of Bombay, Panaji Bench, Goa that though the petitioner retired with effect from 1-7-1999, payment of arrears should be made to the petitioner in three instalments as per G.R. dated 15-11-1999. As stated earlier, it is the case of the respondents that the said G.R. dated 15-11-1999 does not apply to his case since the G.R. clearly refers to only those who retired between 1-1-1996 and 30-6-1999 and that since the petitioner had retired on 1-7-1999, the said G.R. would not become applicable to him and hence the direction of respondent No. 2 is clearly arbitrary and unreasonable and in view of that the petitioner has moved this Court for reliefs claimed in the said petition.
9. Before this Court, the learned Advocate Mr. Sonak on behalf of the petitioner has vehemently argued that there is no justification for the delay of 16 months in the payment of monthly pension, D.C.R.G. and first instalment of commuted pension amounting to Rs. 52,994-69 and further delay of 683 days i.e. from 1-7-1999 to 15-5-2001 in respect of second instalment of commuted pension of Rs. 52,679/- and again a delay of 716 days in respect of third instalment of pension of Rs. 52,679/- which was paid on 16-7-2001 i.e. during the pendency of this petition and that though as of today all the pensionary dues of the petitioner have been paid, the petitioner is entitled to recover interest at the rate of 18% per annum is respect of the amounts which were due and payable to him on account of arrears of monthly pension, D.C.R.G. and commuted pension. In support of his contention, he has relied upon decisions of the Bombay High Court and of the Supreme Court as under:-
(1) 1997 Lab.I.C. 313 (Bombay High Court) in the case of Eurico Santana Da Silva, Retired Judge, High Court, Goa v. State of Maharashtra and others;
(2) in the case of Dr. Uma Agrawal v. State of U.P. and another; and
(3) 1985 Supreme Court Cases (L & S) 280 in the case of K. Nagaraj and others v. State of Andhra Pradesh and another.
10. Justice Shrikrishna, in the case of Eurico Santana Da Silva v. State of Maharashtra (supra), after considering the facts and circumstances of the case therein and in view of the delay in payment of the pensionary amounts and retirement dues to the petitioner beyond the period of two months, considered the same delay as unreasonable and directed payment of interest at the rate of 15% per annum. The Hon’ble Supreme Court in the case of Dr. Uma Agrawal v. State of U.P. (supra) observed that the Court had in several cases decided payment of interest at 12% per annum in respect of delayed payment. Hon’ble Supreme Court in the case of K. Nagaraj and others v. State of A.P. (supra) observed that they were inclined to grant interest at the rate of 12% per annum.
11. Learned Advocate General Mr. A.N.S. Nadkarni, for respondents No. 1, 4 and 5, submits to the orders of this Court. However, learned Government Advocate Mr. Bharne for respondents No. 2 and 3 vehemently opposes any payment of interest to the petitioner on account of any alleged delay. It is his contention that, in fact, there is no delay on the part of the respondents Nos. 2 and 3 and that the payment has been made in the normal course as per the procedure. Smt. Kanta Vilas Pandit, under Secretary, Law and Judiciary Department, Mantralaya, Mumbai, has, in her Affidavit in reply, referred to the Resolution dated 15th November, 1999 of the Government of Maharashtra setting out the special procedure for determination of pension/family pension/gratuity/commutation of pension and provisional payment thereof to Government servants who retired/died in harness between 1st January, 1996 and 30th June, 1999. She has stated that the recovery of excess amount of D.C.R.G. paid to the petitioner was made pursuant to the directions from the Accountant General, Maharashtra, Mumbai, vide letter dated 23rd August, 2000, but has also referred to the letter dated 19th June, 2001 issued by the Finance Department, Government of Maharashtra, clarifying that G.R. dated 15th November, 1999 regarding payment of pension and other pensionary benefits as laid down under Maharashtra Civil Services (Pension) Rules, 1982 and the Maharashtra Civil Services (Commutation of Pension) Rules, 1984 may be paid in lump sum instead of 3 instalments and has conceded that in view of the said letter dated 19th June, 2001 of the Finance Department, the case of the petitioner will have to be processed by the competent authority.
12. As stated earlier the petitioner retired from services with effect from 1-7-1999. The notification dated 15th November, 1999 pertained only to the persons who retired between 1-1-1996 and 30-6-1999 and hence the said notification did not apply to the petitioner. The case of the petitioner is further strengthened by the affidavit of Smt. Kanta Vilas Pandit, Under Secretary. Thus, there is no justification for the respondents having delayed the payment of arrears of pension and retiral benefits and commuted pension beyond the period of 2 months from the date of retirement of the petitioner. The contention of the learned Government Advocate Shri Bharne for respondents No. 2 and 3 that the amount of pension was paid in instalments due to the wrong interpretation of the Circular is therefore without any substance. Learned Government Advocate Shri Bharne for the respondents No. 2 and 3 has further contended that had the petitioner retired on superannuation and not voluntarily retired, the processing of his papers would have commenced 6 months in advance. The argument to say the least is specious and cannot be of any assistance to the respondents in justifying the delay in payment of pension dues beyond the period of 2 months after the date of retirement. Learned Government Advocate Shri Bharne for respondents No. 2 and 3 has also contended that no interest is payable as there has been no negligence on the part of the department. That the payment has been delayed because the normal procedure takes that much time and he has also sought to distinguish the cases cited by the learned Advocate for the petitioner for payment of interest on the ground that in the cases cited, no payment at all was made, while in the present case, the amount was paid in instalments and that even the final payment has now been made.
13. Be that as it may, what is clear from the recital of facts as set out in the petition, which have not been denied and, in fact, admitted by the learned Advocates for the respondents is that the delay is the normal phenomenon in the sanctioning and payment of pension and retiral dues. It has been held in terms of Rules as well as executive instructions that pension and retiral benefits are required to be paid within 2 months of retirement. In the present case, there has been unreasonable and unjustifiable delay in the payment of pension and retiral benefits. No doubt, the delay in processing papers in the Government Departments is endemic. But that is no justification for the unconscionable delay in this case and the concerned department must, therefore, be held responsible for payment of interest, if not penal action.
14. The only question that remains is the rate at which the interest may be paid to the petitioner. The petitioner has submitted a chart claiming a sum of Rs. 89,338-79 on account of delay in payment of monthly pension, D.C.R.G. and instalments of commuted pension as set out in the chart. The interest is calculated at 18%. The Bombay High Court had, in the case of Dr. Eurico Da Silva (supra) awarded interest at the rate of 15% per annum. The Supreme Court has, in the two decisions cited above, indicated that the rate of interest to be paid in such circumstances is 12% per annum.
15. Following precedent, we are inclined to grant interest at 12% per annum. However, in view of the fact that the amounts were paid in instalments, albeit after some delay, on account of wrong interpretation of the Circular and since there was no deliberate delay in processing the pension papers on the part of the department, we are of the opinion that the interest of justice would be served by granting payment of Rs. 50,000/- as interest on account of delayed payment of monthly pension, D.C.R.G. and commuted pension.
16. Since the entire retirement dues of the petitioner have been paid and the sum of Rs. 37,442/-, which was wrongly recovered also being paid to the petitioner, the question of quashing the said communication dated 23-8-2000 as prayed for does not arise.
17. In the circumstances, Rule made absolute and disposed of with a direction to respondents No. 2 and 3 to pay to the petitioner a sum of Rs. 50,000/- as interest towards the delayed payment. The amount of Rs. 50,000/- to be paid directly to the petitioner within 8 weeks from today.