IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 19 -10-2010
Coram:
The Honble Mr. Justice S.TAMILVANAN
W.P.No.20054 of 2005
N.Nagarajan Petitioner
Vs.
1. The Secretary to Government of Tamil Nadu
Environment and Forests Department,
Fort St. George,
Chennai 600 009.
2. The Principal Chief Conservator of Forests
"Panagal Maaligai"
No.1, Zeeneth Salai,
Saidapet,
Chennai 600 015.
3. The Principal Accountant General (A & E)
261, Anna Salai,
Chennai 600 018.
4. The Director of Pension
II Floor, Block III,
D.M.S. Complex,
Chennai 600 006.
5. The District Forest Officer
Hosur Forest Division,
Hosur Cattle Farm 635 110
Krishnagiri District.
6. The District Treasury Officer
Krishnagiri 635 001.
Krishnagiri District. Respondents
Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus, calling for the records of the first respondent relating to Letter No.8430/FR.II/2003-6, Environment and Forests Department, dated 08.07.2004 and quash the same and issue consequential directions to the respondents to disburse interest at the rate of 18% p.a for the delayed disbursements made to the petitioner.
For petitioner :: Mr.M.Ravi
For respondents :: Mr.S.N.Kirubanandan
Spl. Government Pleader (Forests)
for R1, R2 and R5
Mr.A.Edwin Prabhakar, AGP for R4 and R6
Mrs.T.S.Selvarani for R3
O R D E R
This writ petition has been filed under Article 226 of the Constitution of India, seeking an order to issue a writ of certiorarified mandamus or any other appropriate writ calling for the records of the first respondent, relating to letter No.8430/FR.II/2003-6, Environment and Forest Department, dated 08.07.2004, quash the same and issue consequential directions to the respondents to disburse interest at the rate of 18% p.a for the delayed disbursements made to the petitioner.
2. The petitioner got recruited as Forestor in the Tamil Nadu Forest Department on 23.08.1976 as an Ex-I.A.F Personnel, discharged from defence service. According to him, he was sincerely discharging his duties assigned to him, however, due to infliction of acute diabetes, sought for voluntary retirement on health grounds, by his application, dated 12.04.1997. However, the fifth respondent, who had received the application was keeping it pending without passing any order, as envisaged under Rule 56 (3) of Fundamental Rules. In the result, it became a deemed voluntary retirement, as per sub-rule (f) of Rule 56 (3) of Fundamental Rules. The petitioner sent a telegram on 22.07.1997 informing his voluntary retirement on 12.07.1997 and requested for earlier settlement of pensionary benefits, for which there was no response. The petitioner submitted his appeal, dated 30.12.1997 to the appellate authority, Conservator of Forests, Vellore, for which also there was no response, hence, he filed O.A.No.318 of 1998 before the Tamil Nadu Administrative Tribunal and the same was adjudicated and decided on 05.12.2000 in his favour with a direction that the petitioner was eligible and entitled to pensionary benefits with effect from 12.07.1997 without mentioning interest of 18% p.a on the delayed payment of pensionary benefits.
3. The fifth respondent passed orders on the petitioner’s deemed voluntary retirement with retrospective effect allowing and permitting him to retire from service with effect from 01.08.1997 forenoon in Pro.No.4130/97/E1, dated 31.01.2001, nearly after a lapse of three years and six months. Prior to the order, he was called for submitting application in Form 5 prescribed as per Tamil Nadu Pension Rules, 1973. The petitioner has further submitted that the fifth respondent has failed to send immediate proposals to the concerned authorities for the sanction of interest on the delayed payment of retiral benefits. Though the fourth respondent had called for the same, by his letter, dated 18.07.2001, the sixth respondent, Treasury Officer had illegally impounded a sum of Rs.42,817/-, out of the total commutation of pension of Rs.1,21,755/-, which was authorised on 16.05.2001. The petitioner sent a representation, dated 30.09.2001 to the sixth respondent and others to release the impounded amount of commutation of pension of Rs.42,817/-, but his request was not legally considered. According to the petitioner, he is entitled to (i) DCRG amount of Rs.87,300/-; (ii) arrears of monthly pension of Rs.1,80,728/-; (iii) arrears of commuted value of pension of Rs.1,21,755/- and (iv) encashment of leave salary of Rs.56,287/- and he requested to issue directions (a) to the third respondent for modifying the commuted value of pension applicable to the petitioner as on the date of his retirement i.e., 01.08.1997, by applying C.V @ 11.73 based on next birthday as 55 years and to restore the commutation of pension in July 2012; (b) and requested the fourth respondent to accord sanction for payment of Rs.7,713/- towards Tamil Nadu Government Employees Special Provident Fund- cum-Gratuity with interest and (c) to the sixth respondent to release forthwith the impounded commutation of pension of Rs.42,817/- with interest.
4. Mr.M.Ravi, learned counsel appearing for the petitioner submitted that the petitioner is entitled to get interest for the delayed payments.
5. The fifth respondent in the counter filed has stated that the petitioner has worked as Forester from 23.08.1976 and his last posting was at Rayakottah Range from where he submitted a petition seeking voluntary retirement from service on medical grounds with effect from 12.04.1997. Before deciding the petition, it became necessary to the respondents to call for details of charges and liabilities pending against the petitioner. The fifth respondent has stated that the petitioner wanted to stay away from his official duty with effect from 22.07.1997, just by sending a telegram on 21.07.1997. Therefore, by letter, dated 21.07.1997, he was informed that he should rejoin duty in his old station and work till his petition for voluntary retirement was finalised. However, the petitioner did not rejoin duty, but stayed away without handing over his charge. The Tamil Nadu Administrative Tribunal, by order, dated 05.12.2000 permitted the petitioner to go on retirement from 12.07.1997. In compliance of the order, the petitioner was permitted to retire from service voluntarily with effect from 31.07.1997, by order, dated 31.01.2001. Thereafter, necessary proposals were sent to the Accountant General to get him all his terminal and pensionary benefits with some unavoidable delay.
6. Even in the reply affidavit filed before the Tamil Nadu Administrative Tribunal, it was stated that charged under Section 17 (b) were issued against the petitioner on 04.04.1997 and certain details were called for from the Soil Conservation Ltd., Dharmapurai, with regard to certain allegations against the petitioner.
7. It was contended by the learned Additional Government Pleader that Fundamental Rules clearly states that voluntarily retirement shall be accepted, subjected to the fulfilment of certain mandatory conditions. It was further argued by the learned Additional Government Pleader that the Tamil Nadu Administrative Tribunal, by order, dated 05.12.2000 held that the petitioner would be entitled to pensionary benefits from 12.07.1997, but not allowed the petitioner’s request for payment of interest at the rate of 18% p.a from the said date till the date of all the dues were paid to him. Though the department was aggrieved by the said order, no further appeal was preferred and the order of the said Tribunal became final and therefore, the petitioner cannot claim interest at 18% p.a from the aforesaid date of voluntary retirement.
8. In the counter filed by the fourth respondent, it is stated that after the order passed by the Tamil Nadu Administrative Tribunal, necessary proposals were sent to the Accountant General to pay the petitioner all his terminal benefits and finally all the pensionary benefits due to him were settled in full and at present no terminal benefit is pending for settlement. There was some unavoidable delay in settling the matter on administrative reasons. As per G.O.Ms.No.136, Finance (Pension) Department, dated 29.02.1984, paragraph 9 (a) in case of an employee retiring on superannuation, he will be paid the actual amount of subscription recovered from him together with interest thereon. The petitioner, who voluntarily retired on 31.07.1997, requesting claim of the interest up to 31.01.2001 and Government contribution of Rs.10,000/-, for which he is not eligible to claim interest. As per G.O.Ms.No.429, Finance (Pension) Department, dated 15.09.2000, the Government contribution has been enhanced from Rs.5,000/- to Rs.10,000/-. The Government order shall take effect from the date of the order, i.e., 15.09.2000. As the petitioner had retired from service before the date, he is not eligible for Rs.10,000/- as Government contribution.
9. Mr.M.Ravi, learned counsel appearing for the petitioner submitted that the petitioner, being a Government servant is entitled to interest for delayed payment. In support of his contention, the learned counsel relied on the following decisions :
1. Dr.Uma Agrawal vs. State of U.P, 1999 (3) SCC 438
2. D.P.Selvaraj vs. Government of T.N, 2009 (5) MLJ 1361
3. S.Ramasubramanian vs. Ambai Arts College, 2009 (6) MLJ 816
10. In Dr.Uma Agrawal vs. State of U.P. reported in 1999(3) SCC 438, it has been held that pension is not a bounty but right of a retired employee. Government is obliged to initiate process for payment according to time-schedule prescribed in the departmental rules, Non-observance of the time-schedule is one of the factors and court may take into account on delayed payment and further, instead of requesting the Government to work out interest payable to the petitioner on delayed payment and the Court itself could quantify the lump sum amount.
11. In S.Ramasubramanian vs. Ambai Arts College reported in 2009 (6) MLJ 816, it has been held that Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become valuable rights and like 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.
12. In D.P.Selvaraj vs. Government of Tamil Nadu reported in 2009 (5) MLJ 1361, it has been held that when there has been a delay in the disbursement of the arrears of the retiral benefits, the Government servant is entitled to interest on the belated payment of retiral benefits,particularly when the delay is not due to the employee.
13. In the instant case, it is not in dispute that the petitioner had submitted his written request, seeking voluntary retirement on health grounds on 12.04.1997, that was received by the fifth respondent on 16.04.1997, however, within a period of three months, as envisaged under Rule 56 (3) of the Fundamental Rules, his request was not considered.
14. Learned counsel appearing for the petitioner also drew the attention of this Court to Rule 56 (3) (f) of the Fundamental Rules and submitted that it could have been treated after the period of three months as a deemed voluntary retirement. The Tamil Nadu Administrative Tribunal, has admittedly passed an order, permitting the petitioner to retire with effect from 12.07.1997, by its order, dated 05.12.2000. Even according to the petitioner, the application submitted by the petitioner was received by the fifth respondent, on 16.04.1997, therefore, the Tamil Nadu Administrative Tribunal, could have decided the date as 17.07.1997 for deemed retirement. There is no valid defence on the side of the respondents for not permitting the petitioner to go on voluntary retirement, considering the health ground. The order passed by the Tamil Nadu Administrative Tribunal is not under challenge, however, I am of the view that from the date of receipt of application, three months period has to be calculated for deemed voluntary retirement, accordingly, it should be from the date 17.07.1997 and that the petitioner is entitled to claim interest for the delayed retiral benefits from that date.
15. In the light of the various decisions and also considering the bank rate of interest, this Court find it just and reasonable to award interest at 9% p.a. From 17.07.1997, three months from the date of receipt of the application given by the petitioner to the fifth respondent till the date of disbursement. As stated by the fourth respondent, the petitioner is not entitled to get a sum of Rs.10,000/- towards Government contribution fund, since the Government Order in G.O.Ms.No.429, Finance (Pension) Department has come into effect only subsequent to the retirement of the petitioner, any how, the petitioner is entitled to get a sum of Rs.5,000/-, as per the earlier Government Order referred to above.
16. On the aforesaid facts and circumstances, this writ petition is allowed and the respondents are directed to pay interest on the delayed retiral benefits paid to the petitioner with interest at 9% p.a from 17.07.1997 till the date of actual payment being made within two months from the date of receipt of a copy of this order. So far as the Government contribution is concerned, which is restricted to the actual payment made by the petitioner plus Rs.5,000/-, for which, the petitioner is entitled to get interest at 9% p.a from the aforesaid date 17.07.1997 till the amount being made. There is no order as to costs.
tsvn
To
1. The Secretary to Government of Tamil Nadu
Environment and Forests Department,
Fort St. George, Chennai 600 009.
2. The Principal Chief Conservator of Forests
“Panagal Maaligai”
No.1, Zeeneth Salai, Saidapet, Chennai 600 015.
3. The Principal Accountant General (A & E)
261, Anna Salai, Chennai 600 018.
4. The Director of Pension
II Floor, Block III, D.M.S. Complex,
Chennai 600 006.
5. The District Forest Officer
Hosur Forest Division, Hosur Cattle Farm 635 110
Krishnagiri District.
6. The District Treasury Officer
Krishnagiri 635 001,
Krishnagiri District