Hon'ble Rakesh Srivastava,J.
Delivered by Hon'ble Rakesh Srivastava,J.
1. Shri Sewak Saran Gupta, a retired District Judge, has preferred this writ petition praying inter alia for a direction to the respondents to pay interest @ 18% per annum on the delayed payment of his retiral dues.
2. After putting in 33 years of unblemished service, the petitioner, on attaining the age of superannuation, retired from service from the post of District Judge, Deoria on 31.03.1999. Nine months before the petitioner retired, in July, 1998, the petitioner was served with a letter dated 07.07.1998 sent by the Registry of High Court, requiring him to submit his pension papers. It is alleged that in response to the said letter, the petitioner sent his pension papers, duly completed in all respect, along with his letter dated 03.08.1998 to the Registry of High Court. Just before his retirement, the petitioner sent a letter dated 19.03.1999 to the Registry with a request that his pension and gratuity papers be forwarded to the Directorate of Pension at the earliest so that he may get his retiral dues immediately after his retirement and he may not have to face any financial hardship. The petitioner further requested that in case it was not possible to process his pension papers at an early date, for any reason, whatsoever, then provisional pension and gratuity be paid to him as per the rules. The petitioner is said to have sent reminders on 19.06.1999 & 04.08.1999 for expediting the payment of his retiral dues. On 03.08.1999 the respondent no.5 forwarded the pension papers of the petitioner to the Director, Directorate of Pension, Lucknow-the respondent no. 2. The respondent no. 2, after about four months, on 29.01.2000, sent the 'Pension Payment Order' to the Accountant General (A&E) II, UP, Allahabad-the respondent no.3. Eight months thereafter, the respondent no.3 on 20.09.2000, after getting the alleged error in the 'Pension Payment Order' rectified by the respondent no.2, sent the requisite order to the Accountant General (A&E), Madhya Pradesh, Gwalior - the respondent no.6 for disbursement of petitioner's pension and other retiral benefits. The respondent no.6, in turn, on 20.12.2000 forwarded the pension papers of the petitioner to the Treasury Officer, District Datia, Madhya Pradesh - the respondent no.7. Ultimately, on 12.02.2001, the petitioner was paid a sum of Rs. 3,49,470/- towards gratuity and on 19.02.2001, the petitioner was paid a sum of Rs 4,76,531/- towards commutation of pension and Rs. 1,85,938/- towards arrears of pension. A sum of Rs 36,092/- towards Group Insurance had already been paid to the petitioner on 25.07.2000. Shortly thereafter the petitioner was paid a sum of Rs 530/- towards gratuity which was earlier withheld for want of some ''No Dues Certificate'. The petitioner made a representation to the respondent no.5 claiming interest @ 18% per annum on delayed payment of his retiral dues. But, as no action was taken by the authority concerned, the petitioner approached this Court by means of the present writ petition claiming penal interest on delayed payment of his retiral dues.
3. The respondents (except respondent no.4) have filed their separate counter affidavits. In their respective counter affidavits, the contesting respondents have stated the manner in which the matter was dealt with at their end and have tried to account for the time taken by them in processing the pension papers of the petitioner and have submitted that there was no deliberate or willful delay on their part.
4. In the counter affidavit filed on behalf of the opposite party no.5, it has been stated that as the petitioner was due to retire on 31.03.1999 and a such, in view of the G.O. dated 28.07.89, a letter dated 07.07.1998 was sent to the petitioner requiring him to submit his pension and gratuity papers. A copy of the said letter was also endorsed to the District Judge, Siddharthnagar and Ballia and to the Senior Accounts Officer, Accountant General, U.P., Allahabad for submission of ''No Dues Certificate'. A copy of the said letter was also endorsed to the Joint Director (Treasury), Camp Office, Allahabad, requiring the latter to submit the History/Statement of Service of the petitioner to the former. In response to the said letter, the petitioner sent his pension papers, along with his letter dated 03.08.1998 to the Registry of High Court. The District Judge, Siddharthnagar and Ballia and the office of the Accountant General sent the desired ''No Dues Certificate' on 04.08.1998, 17.09.1998 and 03.08.1998 respectively. The petitioner also submitted his revised pension papers according to the revised enhanced pay along with his letter dated 18.12.1998. It has been then alleged that after obtaining reports from various sections, the then Additional Registrar of High Court along with his office note dated 25.05.1999 forwarded the pension papers of the petitioner to the Registrar General for laying the file before Hon'ble the Chief Justice for his perusal and orders; and vide Court's order dated 29.05.1999, Hon'ble the Chief Justice granted his approval for sending the pension papers of the petitioner to the respondent no. 2 for necessary action.
5. In paragraph 13 of the said counter affidavit, it has been alleged that the orders of Hon'ble the Chief Justice along with the papers pertaining to the petitioner were received by the Deputy Registrar (M) on 31.05.1999 and on the same day it was sent to Administration 'A' Section and was given to the then dealing assistant. It has been stated that after 31.05.1999 there were summer vacations from 01.06.1999 to 30.06.1999 and the dealing assistant proceeded to avail summer holidays from 02.06.1999 to 15.06.1999 and then from 16.06.1999 to 30.06.1999, the concerned dealing assistant was deputed on the work of codification of cases and thereafter he proceeded on medical leave w.e.f. 04.07.1999 to 20.07.1999. He resumed duty on 21.07.1999 after availing medical leave and thereafter prepared the draft letter on 22.07.1999 for sending the pension papers of the petitioner to the Director, Directorate of Pension, U.P., Lucknow for necessary action and thereafter on 03.08.1999, the respondent no. 5 forwarded the pension papers of the petitioner to the respondent no. 2 for settlement of his pension and gratuity etc.
6. According to the respondent no.5, there was no deliberate delay in processing the pension papers of the petitioner. On the contrary, it has been alleged, that prompt action was taken in forwarding the pension papers of the petitioner to the respondent no. 2. It has been further alleged that the request for payment of provisional pension made by the petitioner in his letter dated 19.03.1999 could not be acceded to as the file was already under submission to Hon'ble the Chief Justice for approval. The only duty cast upon the respondent no. 5, in so far as the District Judiciary was concerned, it is alleged, was to forward the pension papers of the petitioner to the Directorate of Pension. It has been submitted that the respondent no. 5 was not responsible for the disbursement of retiral dues of the petitioner and, as such, the respondent no. 5 was not obliged to pay any penal interest for the delay, if any, in disbursement of the retiral dues of the petitioner.
7. As per the counter affidavit filed on behalf of the respondent nos. 1 & 2, the pension papers of the petitioner sent by respondent no. 5 along with his letter dated 03.08.1999 were received in the office of respondent no. 2 on 13.09.1999 and on 29.01.2000 the ''Pension Payment Order' for making necessary payments was sent to the respondent no. 3. It has been stated that the details of service history and average pay, which were necessary for processing the pension papers of the petitioner, were supplied to the respondent no. 2 by respondent no. 4 on 13.12.1999 and immediately thereafter the pension papers of the petitioner were processed and payment order was issued. It has been categorically stated that the retiral dues of the petitioner had been paid and as per rule the petitioner was entitled for interest on delayed payment of gratuity only @ 12% per annum which was to be sanctioned by the opposite party no. 5.
8. A counter affidavit has also been filed on behalf of respondent no.3 in which it has been stated that the 'Pension Payment Order' received by the respondent no.3 from the office of respondent no.2 contained certain omissions/errors and, as such, the same could not be processed at his end. It has been stated that respondent no.3 in this regard sent a letter to respondent no.2 on 19.04.2000 for rectifying 'Pension Payment Order' of the petitioner. It has been stated that after rectification of the pension payment order it was received in the concerned section of the office of respondent no.3 in the month of August, 2000 and on 20.09.2000 Special Seal Authority was issued by the respondent no.3 to the Accountant General (A&E), MP, Gwalior -the respondent no.6 for necessary action in the matter. In his counter affidavit the respondent no.3 has alleged that there was no delay on his part in processing the pension papers of the petitioner and as such the petitioner was not entitled to any relief against respondent no.3
9. The respondent no.6, in his counter affidavit has alleged that the pension papers of the petitioner, forwarded by respondent no.3 under his Special Seal Authority, were received in his office on 12.10.2000 and on 20.12.2000, with great promptitude, the papers were forwarded by him to the respondent no.7 for necessary action at his end. It has been alleged that the respondent no.6 was in no way responsible for the delay, in any, in payment of the retiral dues of the petitioner.
10. The respondent no.7 has also filed his counter affidavit alleging therein that there was no delay, whatsoever, on his part in making payment of the retiral dues of the petitioner. It has been alleged that the certain information was required to be furnished by the petitioner and as soon the said information was furnished by the petitioner, the retiral dues were paid to him.
11. The petitioner, by filing rejoinder affidavits to the counter affidavits filed on behalf of the contesting respondents, has refuted the stand taken by the respondents and has reiterated the contents of the writ petition. Though the petitioner has made a prayer in the writ petition for a direction to the respondents to pay the remaining gratuity and G.P.F. alongwith interest but since all the outstanding amount has been paid to the petitioner, the learned counsel for the petitioner has confined his prayer for payment of interest to the petitioner on delayed payment of his retiral dues.
12. Sri Vijay Dixit, the learned counsel for the petitioner, has submitted that the petitioner had completed all the formalities and had submitted all the papers required for grant of his retiral benefits much before his retirement, but unnecessarily and without any justification, the petitioner was paid his retiral dues after a considerable delay on each count, causing uncalled for financial hardship and as such the petitioner is entitled to interest on delayed payment of his retiral dues.
13. Per contra, the learned Standing Counsel appearing on behalf of the respondent nos.1 to 4 and Sri Gaurav Mehrotra, the learned counsel appearing on behalf of the respondent no.5 have submitted, in unison, that the delay, if any, in payment of the retiral dues of the petitioner was neither deliberate nor it was caused on account of any inaction on the part of the contesting respondents and as such the contesting respondents could not be blamed for the delay, if any, in payment of the retiral dues of the petitioner.
14. Heard the learned counsel for the parties and perused the record.
15. Pension is not a bounty payable on the sweet will and the pleasure of the Government is a well-settled legal proposition. It is also well settled that the retiral dues of an employee have to be paid with promptitude or else the Government is liable to pay interest unless the delay can be attributed to the employee concerned or the Government is able to show that there was some cogent and valid justification for the delay.
16. In the case at hand, the petitioner retired from service on 31.3.1999 and his retiral dues were paid to him in February, 2001. Thus, there cannot be any dispute that there has been an inordinate delay in payment of the retiral dues of the petitioner. In the counter affidavits filed on behalf of the contesting respondents, the delay has not been attributed to any fault or omission on the part of the petitioner. What is to be seen now is as to whether the respondents have any justification on their part for the inordinate delay in making payment of the retiral dues to the petitioner.
17. The petitioner retired from service on 31.3.1999 and, admittedly, for the first time a letter dated 07.07.1998 was sent by the Registry of High Court to the petitioner for submission of his papers for payment of his retiral dues. It is not in dispute that in response to the said letter, the petitioner submitted his pension papers along with his letter dated 03.08.1998 to the Registry of High Court but eventually it was on 25.05.1999, after more than nine and a half months, that the pension papers of the petitioner were forwarded by the Registry for laying the file before Hon'ble the Chief Justice for perusal and orders. Nine months is too long a time for the Registry of High Court to process the pension papers of the petitioner, a Judicial Officer belonging to the District Judiciary, when apparently there was nothing adverse against the petitioner. Admittedly, the ''No Dues Certificate' from the District Judge, Siddharthnagar and Ballia and the office of the Accountant General were received on 04.08.1998, 17.09.1998 and 03.08.1998 respectively. It is hard to comprehend that it took eight months for the Registry to process the pension papers of the petitioner and place it before Hon'ble the Chief Justice for approval. The explanation given by respondent no.5 for the delay in processing the pension papers of the petitioner is, thus, far from satisfactory and is unacceptable.
18. Apart from the above, after the Hon'ble Chief Justice granted his approval, the pension papers of the petitioner should have been forwarded to the respondent no.2 for necessary action forthwith. But, the Registry of High Court took almost two months to do so. We are of the firm opinion that the explanation offered by the respondent no.5, in paragraph 13 of the counter affidavit, for the time taken by the Registry in forwarding the pension papers of the petitioner after the Hon'ble the Chief Justice granted his approval is flimsy and is an attempt to cover up the failure in taking prompt action in the matter.
19. In so far as the respondent nos.2 & 3 are concerned, the pension papers forwarded by the respondent no.5 were received in the office of respondent no.2 on 13.09.1999 and on 29.01.2000 the ''Pension Payment Order' for making necessary payments was sent by him to the respondent no.3. The respondent no.2 took three and a half months to process the pension papers of the petitioner. The respondent no.3 has justified the time taken by him by stating that the information relevant for processing the papers was furnished by the respondent no.4 only on 13.12.1999 and immediately thereafter the pension papers of the petitioner were processed and payment order was issued. But, noticeably, the date on which information was sought from the respondent no.4 has no where been mentioned.
20. In the counter affidavit, filed on behalf of respondent no.3 it has been stated that there was no delay on his part in processing the pension papers of the petitioner and as such the petitioner was not entitled to any relief against respondent no.3. Explaining the time taken by him, the respondent no.3 has stated that in the 'Pension Payment Order' received by him from the office of respondent no.2 there were certain omissions/ errors and, as such, a letter dated 19.04.2000 was sent to respondent no.2 for its rectification. After rectification, it is alleged that the 'Pension Payment Order' was received in the office in the month of August, 2000 and on 20.09.2000 Special Seal Authority was issued by the respondent no.3 to the Accountant General (A&E), MP, Gwalior -the respondent no.6 for necessary action in the matter. There is nothing on record to indicate as to why it took almost two and a half months to write to respondent no. 2 for rectification of the alleged omission / error and why it took almost four months for the respondent no.2 to make the necessary rectification and send the ''Pension Paper Order' back to the respondent no.3. It can be safely inferred that the respondent no.2 did not act with the kind of promptness expected of him in such matters. In any case, it was a matter between respondent nos.2 and 3 and the delay on their part is not attributable to the petitioner.
21. As per the counter affidavit filed by respondent no.6, the Special Seal Authority sent by respondent no.3 was received in his office on 12.10.2000 and on 20.12.2000, with great promptitude, the papers were forwarded by him to the respondent no.7 for necessary action at his end. The respondent no.6 took more than two months, just to forward the pension papers of the petitioner to the respondent no.7. By no stretch of imagination it can be said that the respondent no.6 acted with promptitude as alleged by him.
22. There is no quarrel between the parties that as per the Rules and instructions laying down the time-schedule for the various steps to be taken in regard to the payment of pension of a government servant in the State of Uttar Pradesh, the Head of Office, or other authority responsible for preparing the pension papers is obliged to initiate the pension case, two years before retirement of the government servant and after collecting the essential information necessary for working out the qualifying service, the deficiencies and imperfections, if any, in the service-book/records is to be removed at least eight months in advance of the date of retirement of the government servant. Then the process of determining the admissible pension and gratuity is to be positively completed within a period of 2 months and the pension papers are to be sent to the Accountant General not later than 6 months before the date of retirement. The office of the Accountant General is obliged to issue the pension payment order one month in advance of the date of retirement. The authorities are obliged to ensure that the payment of superannuation pension commences on the first of the month following the month in which the government servant retires.
23. In the case at hand, the time-schedule for processing the pension papers of the petitioner has not been adhered to. Admittedly, the process for preparing the pension papers of the petitioner was initiated only on 07.07.1998, nine months before the date of retirement of the petitioner. Whereas, the said process ought to have been initiated two years before the date of retirement of the petitioner. In the counter affidavit filed on behalf of the respondent no.5, there is no explanation, whatsoever, for the delay in initiating the process for preparing the pension papers of the petitioner in time. The Registry of High Court was well aware of the date of retirement of the petitioner and as such, there was no justification on the part of the Registry in not initiating the process for preparing the pension papers of the petitioner in time. Moreover, after receiving the pension papers, the Registry took almost a year to process the same for which, there is no valid justification. Similarly, the other contesting respondents have not been able to justify the time taken by them at their end in processing the pension papers of the petitioner.
24. After giving thoughtful consideration to the rival submissions and after examining the material placed on record, we are satisfied that the petitioner is entitled to receive interest for the inordinate delay in payment of his retiral dues.
25. The learned counsel for the petitioner has referred to a G.O. dated 15.07.1997 which provides that a Government employee is entitled to interest on delayed payment of gratuity over and above three months from the date it became due till the time of its actual payment. In fact, in the counter affidavit filed on behalf of respondent nos.1 & 2, it has been admitted that the petitioner was entitled to interest on delayed payment of gratuity amount as per G.O. dated 06.12.1994 & 15.07.1997. When confronted, the other contesting respondents have also admitted the said entitlement of the petitioner to interest. Paragraph 4 (relevant portion) and 13 of the counter affidavit filed on behalf of respondent nos.1 & 2 being relevant are being quoted below:
"4. ..... As per rule, the petitioner is entitled for interest on delayed payment of gratuity amount of @ 12%, which ought to have been sanctioned by the Head of the Department of the petitioner i.e. Registrar, High Court, Allahabad.
13. That in reply to the contents of, Paras 18 & 19 of the writ petition, it is submitted that payment of interest on delayed payment of gratuity amount only is admissible to the petitioner as per G.O. dated 6.12.1994 and 15.7.1997 (copy plays at Annexure No. 10 to the writ petition). Necessary orders in this regard is required to be issued by the Head of the Department of the petitioner and responsibility for delay is also to be ascertained, for further necessary action."
26. Though the respondents have admitted their liability and have stated that in the facts and circumstances of the case, the petitioner was entitled to be paid interest on gratuity from the date of expiry of three months from the date, it became due, as regards interest on delayed payment of pension on other retirel dues, the respondents have stated that there was no provision in the rules for payment of interest.
27. The question of payment of interest on delayed payment of retiral dues is no more res integra and is settled by a catena of decisions of the Apex Court. In State of Kerala & Ors.Vs. M. Padmanabhan Nair, (1985) 1 SCC 429, the Apex Court in paragraph no. 2 of the said report held as follows:-
"2. Usually the delay occurs by reason of non-production of the L.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement."
28. In Dr. Uma Agarwal Vs. State of UP & Anr., (1999) 3 SCC 438, the while considering the Rules and instructions which prescribe the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits of government servants in the State of Uttar Pradesh, the Apex Court has held that the Government was obliged to follow the rules and the delay in settlement of retiral dues should be avoided at all costs. Paragraph no. 5 of the said report is reproduced below:-
"5. We have referred in sufficient detail to the Rules and instructions which prescribe the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement. If the Rules/instructions are followed strictly, much of the litigation can be avoided and retired government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the government servant. The Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pension for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment, the court can certainly keep in mind the time-schedule prescribed in the Rules/instructions apart from other relevant factors applicable to each case."
29. In the case of S.K. Dua v. State of Haryana, (2008) 3 SCC 44, the Apex Court has held that in the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest relying on Articles 14, 19 and 21 of the Constitution. :
14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
30. Retiral benefits are the accumulated savings of a lifetime of service of a Government servants. In a large number of cases, the retiral benefits are the only source of livelihood and means of survival not only for the retired Government servant but for his entire family. If the retirel benefits are not paid in time, the very survival of the retired employee and his family members comes under question. The respondents should realise that the delay in payment of the retiral dues of a retired Government servant may have a devastating effect on the lives of the retired Government servant and his family causing untold hardship. In the matter of grant of retiral benefits to the retired government servants, the respondents are expected to be alive to the problem of the retired employee and are expected to strictly adhere to the time-schedule prescribed.
31. In the facts and circumstances mentioned above, we are of the firm opinion that there is no justification on the part of the contesting respondents for the inordinate delay in processing the pension papers of the petitioner. The claim of the petitioner for interest on delayed payment of his retiral benefits is, thus, upheld.
32. In view of the above, this writ petition is allowed. The respondents are directed to calculate and make payment of interest on the delayed payment of gratuity to the petitioner, as per the G.O.'s 06.12.1994 & 15.07.1997. The respondents are further directed to calculate and pay to the petitioner interest on the delayed payment of other retiral dues @ 12% per annum from the date the same became due, till the time of its actual payment. The respondents shall ensure that the actual payment is made to the petitioner within 30 days from the date of this order, failing which, the entire payable amount shall carry interest at the rate of 6% per annum from the date of this order. The respondents shall be expected to hold necessary inquiry/inquiries to fix the responsibility for delay and defaults in this matter and to take further necessary action against the erring officers/employees in accordance with law.
Order Date :-08.02.2016.
Rajneesh-Pradeep/-
(Rakesh Srivastava, J.) (Dinesh Maheshwari, J.)