Smt. Manorama Prasad Vs. the State of Bihar and ors. - Court Judgment

Excerpt:
service — retirement benefits — payment thereof — article 226 of the constitution of india — rule 189 of the bihar pension rules — grievance of the writ petitioner as with regard to non-payment of the amount of g.p.f. for the period 1971-72 is genuine — office of accountant general not filed any counter-affidavit — as such claim of petitioner that he deposited rs. 2200 in g.p.f. in the period 1971-72 upheld — respondents directed to pay the amount to substituted petitioner along with statutory interest from the date of retirement to the date of its actual payment within a period of three months — claim of payment of salary for the period 9th may, 1980 to 16th september, 1980 cannot be allowed — petitioner was placed under..... mihir kumar jha, j.1. initially this writ application was filed by one awadh kishore prasad on 24.10.2003 for payment of certain retirement benefits as also some other claim of his salary and emoluments etc. as a matter of fact this court after hearing the parties had reserved the orders but subsequently when awadh kishore prasad is said to have died on 25.5.2008 an interlocutory application being i.a. no. 3438/2008 was filed for substituting his wife, namely, smt. manorama prasad as his legal representative for the purpose of claiming retirement benefit which is the subject matter of this writ application. such i.a. no. 3438/2008 after hearing the parties was allowed by an order dated 30.6.2008.2. late awadh kishore prasad, hereinafter referred to as the writ petitioner, was an officer.....

Judgment:

Mihir Kumar Jha, J.

1. Initially this writ application was filed by one Awadh Kishore Prasad on 24.10.2003 for payment of certain retirement benefits as also some other claim of his salary and emoluments etc. As a matter of fact this Court after hearing the parties had reserved the orders but subsequently when Awadh Kishore Prasad is said to have died on 25.5.2008 an interlocutory application being I.A. No. 3438/2008 was filed for substituting his wife, namely, Smt. Manorama Prasad as his legal representative for the purpose of claiming retirement benefit which is the subject matter of this writ application. Such I.A. No. 3438/2008 after hearing the parties was allowed by an order dated 30.6.2008.

2. Late Awadh Kishore Prasad, hereinafter referred to as the writ petitioner, was an Officer of the Bihar Government and had retired on 31st May, 1988 while holding the post of Deputy Director of Panchayati Raj. There being some controversy with regard to his not complying an order of transfer during his service period, his last pay certificate (LPC) was not issued and as such his payment of retirement benefit could not be made in absence of the computation of amount of his last salary drawn which is the basis for calculation of retirement benefit.

3. In such circumstances the writ petitioner had moved this Court claiming payment of retirement benefit after issuance of LPC in C.W.J.C. No. 10143/1989 which was disposed of by an order dated 19.3.1990 directing the respondents to not only issue the LPC of the petitioner but also to make payment of provisional pension in terms of the LPC within a period of one month. This Court had further directed that all other admitted dues of the writ petitioner must be paid within a period of four months.

4. Pursuant to the aforementioned order dated 19.3.1990 though the respondents have claimed to have fixed the provisional pension of the writ petitioner at the rate of Rs. 1499/- per month in the pay scale of Rs. 1900-2500 and had also paid the amount of provisional gratuity to the tune of Rs. 49000/- but the grievance of the petitioner remained still unfulfilled, inasmuch as the writ petitioner had been pressing for his fixation of payment of pension and gratuity in the revised pay scale of Rs. 4100-5300.

5. It further appears that there was a stalement created at the instance of the writ petitioner himself who was adamant that he was not required to submit his pension paper in prescribed Form (4) under the Bihar Pension Rules on a plea that this Court in the order dated 19.3.1990 had not directed him to submit his pension papers in the prescribed form. Such stalement infact continued for almost next eight years and ultimately the writ petitioner had moved Ranchi Bench of Patna High Court in C.W.J.C. No. 144/1998(R) for payment of his full and final retirement benefits in the revised pay scale which was held to be not maintainable at Ranchi by an order dated 26.8.1998. The writ petitioner thereafter had also filed a civil review application against the said order of the Ranchi Bench dated 26.8.1998 but it appears that the review application holding the writ application filed by the writ petitioner to be not maintainable at Ranchi was also dismissed by an order dated 18.9.1998. Pursuant thereto C.W.J.C. No. 144/1998(R) was heard at Patna and this Court had by an order dated 7.10.1998 directed the petitioner to file a fresh writ application for the reliefs for which he had filed C.W.J.C. No. 144/1998(R). The writ petitioner in stead of filing a fresh writ application had assailed the order passed in C.W.J.C. No. 144/1998(R) by filing an appeal, L.P.A. No. 98/1999(R) which also was dismissed by an order dated 14.12.1999.

6. It appears that in the meantime whatever payments were made to the writ petitioner by way of provisional pension and/or on other heads of retirement benefits were not to his satisfaction and when his representations did not yield any fruitful result, he had filed the present writ application on 24.10.2003 for the following reliefs:

(i) Directing the Accountant General (A & E) Bihar (respondent No. 6) to issue final pension payment order (PPO) after updating and fixing the pension of the petitioner on the basis of respective revised pay scales taking in account his due promotions in Senior Selection Grade (of 121/2% of the post), Super time scale I of (Rs. 1900-2500 at the time) of 21/2% of post (hereinafter referred to as the scale I) and Super time scale-II of Rs. 2400-3000/- at the time (hereinafter referred to as the Scale-II).

(ii) Directing the respondents to make the final payment of gratuity on the basis of refixation of the salary of the petitioner as per item No. (i) above.

(iii) Directing the respondents to pay the entire leave encashment amount with interest thereon in respect of unutilized leave prior to retirement without deducting any amount in any manner whatsoever.

(iv) Directing the respondents to pay all the arrears of provisional pension on the basis of up to date and current pay revision scales with penal interest thereon @ 25% per annum.

(v) Directing the respondents to pay the salaries and allowances for the vacated suspension period from 9.5.1980 to 16.9.1980 with penal interest thereon @ 25% per annum.

(vi) Directing the respondents to pay some excess deposit of group insurance with interest thereon pending with the office of the respondent No. 4.

(vii) Directing the respondents to pay the petitioner even now the commutation amount of 10 years' pension on the basis of relevant revised pay scales of Rs. 4100-5300/- and Rs. 14300-18300/- (payment with effect from 1.4.1997) as per Annx. 19 series hereto).

(viii) Directing the respondents to pay compensation and also pay the penal interest @ 25% per annum on all the unpaid dues and salaries on the basis of current revised pay scales.

7. It appears that when the present writ application was taken up for hearing this Court on very first day noticing the stalement as with regard to non-payment of retirement benefit of the petitioner primarily on account of his not filing his pension papers in the requisite and prescribed 'Form-4' had passed an order on 9.1.2004, whereby and whereunder the writ petitioner was given a liberty to submit a duly filled up application for grant of pension in the prescribed form with proper scale of pay as revised from time to time within a period of one week and the respondents were also directed to fix the final pension of the writ petitioner in proper pay scale as also tender payment of his lawful retiral and other dues including the arrears within three weeks from the date of submission of the application by the petitioner. The order sheet of this case would bear it out that even when the respondents took a plea of complying the order of this Court dated 9.1.2004 and had also produced the evidence showing sanction and payment of final pension and final gratuity as authorized by the Accountant General, the writ petitioner was not satisfied and wanted this Court to adjudicate all the issues as raised and prayed by him in the writ application. Consequently by an order dated 20.4.2004 this writ application had been admitted for final hearing.

8. When this writ application, however, was taken up for final hearing, Mr. Indu Shekhar Prasad Sinha learned senior counsel had submitted that on account of subsequent events as also certain payments made during the pendency of this writ application the grievance of the writ petitioner remained only in respect of the following four aspects as reproduced hereinafter:

(i) The amount of provident fund which was deducted from his salary from 1971-72 which was to the tune of Rs. 2200/- and stautory interest thereon @9%.

(ii) He would be also entitled for payment of 5% interest on all his retirement benefit in terms of the Government Circular No. 3155 dated 7.11.1981. Though the Apex Court in the case if O.P. Gupta v. Union of India and Ors. reported in : (1988)ILLJ453SC , had granted interest @ 12% per annum and this Court in Godabri Devi's case reported in 1997 (1) PLJR 538 had granted 18@ interest on the delayed payment of all the retirement benefits.

(iii) Salary and allowances for the fact of the suspension period from 9.5.1980 to 16.9.1980 which according to the petitioner was Rs. 12,500/- and interest thereon being Rs. 53,000/-

(iv) Interest on the total payment of the final pension for the period from 31.5.1988 to 16.2.2004. The calculation of such amount of interest has been arrived at Rs. 8,23,848/-

In this case three counter affidavits have been filed and while in the first counter affidavit filed by the Deputy Director cum Deputy Secretary of Panchayati Raj (respondent No. 4) it has been sought to be conveyed that the respondents had paid the amount of provisional pension and provisional gratuity because the writ petitioner did not chose to submit the pension papers and after the writ petitioner had submitted the pension paper, necessary steps leading to payment of final pension and gratuity were also made. The District Provident Fund Officer, Muzaffarpur in his separate counter affidavit has also mentioned that though the writ petitioner had retired from service on 31.5.1988 but he had submitted his final withdrawal application for payment of G.P.F. only on 2.9.1990. Thereafter certain payments were made pertaining to entire accumulation of the writ petitioner in his G.P.F. account except for the period 1971-72, 1979-1980 and 1981-82 for which details of contribution of the writ petitioner were missing. The District Provident Fund Officer, however, has stated that in course of time his other missing papers were also traced out and barring the P.F. accumulation for the petitioner for the period 1971-72 which is still missing payment in all respect of P.F. dues of the writ petitioner had already been made. In the 3 rd counter affidavit filed on behalf of the Commissioner cum Secretary to the Government of Bihar, in the Department of Personnel and Administrative Reforms it has been stated that the claim of payment of interest as raised by the writ petitioner in the delay of fixation and payment of pension and gratuity was not admissible because the writ petitioner had not submitted his pension papers and in this context reference has been made to Rule 189 of the Bihar Pension Rules to show that it is duty of every pensioner to submit his pension paper 18 months in advance and that submission of pension paper in the prescribed form, Form 4, in terms of Rule 193 was mandatory in nature and when the writ petitioner despite repeated orders and request for submitting the pension papers in the prescribed proforma did not choose to do so, the delay in sanction and payment of final pension and final gratuity of the writ petitioner was totally attributable to the writ petitioner himself and as such, the writ petitioner could not have claimed payment of any interest.

It has to be noted that the writ petitioner had filed reply to the first of the two counter affidavits, one filed by the Deputy Director and the other filed by the District Provident Fund Officer but he did not choose to file any reply to the counter affidavit filed by the Secretary of the Department and therefore, the facts with regard to non-submission of his pension papers in the prescribed proforma 4 as required under Rule 193 of the Bihar Pension Rules is an admitted fact.

9. In the light of the aforementioned pleadings on record and only four grievances of the writ petitioner as recorded above, this Court would proceed to decide them on the basis of materials on record.

I - Amount of provident fund for the period 1971-72.

This Court is of the view that the grievance of the writ petitioner as with regard to non-payment of the amount of G.P.F. for the period 1971-72 is genuine. Respondents have not denied such entitlement of the petitioner and only a plea has been taken by the officials of the Government of Bihar and the District Provident Fund Officer that details of such payment of year 1971-72 is not available to the Directorate of the provident fund as in the relevant period such amount of G.P.F. was maintained to the office of the Accountant General. The office of the Accountant General, however, has not filed a counter affidavit and as such the claim of the petitioner that he had deposited a sum of Rs. 2200/- in the G.P.F. in the period 1971-72 has to be upheld. In that view of the matter, respondents are directed to pay the amount of G.P.F. accumulations for the period 1971-72 to the tune of Rs. 2200/- to the substituted petitioner alongwith statutory interest from the date of retirement of the writ petitioner i.e. 31.5.1988 to the date of its actual payment within a period of three months from the date of receipt/production of a copy of this order.

II - Salary for the period 9.5.1980 to 16.9.1988.

10. As with regard to the claim of the payment of salary for the period from 9.5.1980 to 16.9.1980 this Court cannot allow such a. prayer of the writ petitioner in presence of an order of the State Government dated 28.08.1996 holding that the writ petitioner after being inflicted a punishment to the effect that would not be entitled for such payment of salary beyond subsistence allowance as has been stated in the counter affidavit of the Commissioner cum Secretary of the Government of Bihar. The writ petitioner has also not assailed such an order which was passed way back on 28th of August, 1996. In this respect, it is found from Annexure-A to the said counter affidavit of the Commissioner cum Secretary of the Government of Bihar in the Department of Personnel and Administrative Reforms that the writ petitioner was placed under suspension by an order dated 9.5.1980. Subsequently, the writ petitioner was inflicted a punishment by the department by Resolution No. 10708 dated 23.10.1984 and it was decided that the petitioner would not be entitled for any further amount and salary beyond the period of subsistence allowance for the period of his suspension of four months and seven days (9.5.1980 to 16.9.1980). The writ petitioner had never assailed the order of his punishment dated 23.8.1994 and therefore, if that order stands the authorities are justified in not paying the payment of salary for the period of suspension as it is well settled that payment of salary for the period of suspension becomes payable only if the delinquent is exonerated from all the chargers in the departmental proceeding and/or it is held that the order of suspension was wholly unjustified. In the case of the writ petitioner as indicated above he was inflicted an order of punishment and thereby was never acquitted from the charges, nor the department had held at any point of time that the order of suspension of the writ petitioner was unjustified.

11. The reliance placed by the counsel for the writ petitioner on a judgment of this Court in the case of Chandradip Sharma v. The State of Bihar and Ors. reported in 1988 PLJR 1138, is also wholly misplaced, inasmuch as the case of writ petitioner was covered by the provisions of Rule 49 read with Rule 55 of the Civil Services (Classification Control and Appeal Rules) as well as Rule 97 of the Bihar Service Code. A bare perusal of the rules would go to show that entitlement of payment of salary for the period of suspension is directly dependent upon exoneration of the delinquent from the charges. In course of departmental proceeding, the order of suspension having been passed for drawing a departmental proceeding can only entail consequence of payment of full salary if, it is held that the order of suspension against the petitioner was unjustified. However, the writ petitioner having been punished by an order dated 23.1.0.1984 and the decision to deny him payment of salary for a period of suspension vide an order dated 28.8.1996 having been not assailed by the writ petitioner though he had knowledge of both of them cannot claim salary after seven years and that too indirectly. Thus, this part of prayer of the petitioner for payment of his salary must be and is hereby rejected.

III - Leave encashment.

As with regard to the claim of the writ petitioner pertaining to leave encashment, this Court finds that the issue has been answered with great detail in the letter of the respondent Accountant General in its letter dated 23.2.1999. From the content of the said letter, it is clear that initially the petitioner was sanctioned leave encashment for a period of 180 days which had accumulated upto period on 30.11.1986. The date of 30.11.1986 has relevance because earlier the maximum limit for encashment of leave upto 30.11.1986 is 180 days. Subsequently the limit of 180 days was enhanced to 240 days and the Accountant General after counting the service of the writ petitioner upto 31.05.1988, had found him entitled for Earned leave for 50 days more and it was intimated to the petitioner that the total amount of cash equivalent of unutilized leave @ 4288 per month amounted to Rs. 29,735.28 but from the said amount a deduction of Rs. 24062.60 on account of outstanding Motor Car advance in the name of the petitioner had been deducted leaving him with balance payment of Rs. 5673.08 paise only. The writ petitioner was informed that if the said amount of Rs. 5673.08 was not drawn by him, he could approach the office of the Accountant General after obtaining a non payment certificate from the Muzaffarpur Treasury. In this regard, it is also stated in the same letter that the petitioner was paid a further sum of Rs. 3145.12 and the same was sent to his Ranchi address. Thus, from the foregoing detailed stand of the respondent Accountant General, it becomes clear that the authorities have given full explanation of the payment made to the writ petitioner on the head of leave encashment and when the writ petitioner had admitted that he had received payment of leave encashment for 180 days and the respondents thereafter also have made further payment as is also clearly mentioned in the letter of the Accountant General dated 23.2.1999 as contained in Annexure 13 to the writ application, this Court finds it difficult to decide such a disputed question of fact. Therefore, the claim for payment of further leave encashment is disposed of with a direction that in the event the substituted petitioner could adduce evidence that balance payment of Rs. 5673.08 had not been received by the writ petitioner, the same would be paid to her within a period of three months from the date of receipt of her representation.

IV - Interest on delayed payment of retirement benefit.

12. The claim of payment of interest for the period 31.5.1988 to 16.2.2004 for the delay caused in making full and final payment of pension, gratuity and other retirement benefit of the petitioner cannot be allowed by this Court, especially when it is found that such delay is totally attributable to the writ petitioner himself. It is not in doubt that the writ petitioner having retired on 31.5.1988 ought to have submitted his pension paper in prescribed proforma, Form 4, but he did not choose to do so initially on the ground that his LPC was not issued and later on by taking a plea that he was not required to so in terms of the order of this Court dated 19.03.1990 in C.W.J.C. No. 10143 of 1989. Such a plea of the writ petitioner in fact has to be rejected on a plain reading of Rule 189 read with Rule 193 of the Bihar Pension Rules.

Rule 189 of the Bihar Pension Rules reads as follows:

189. Every Government servant shall submit a formal application for pension. A Government servant should, in his own interest, submit his formal application for pension to the authority specified in Rule 193 or 196, as the case may be (18 months) in advance of the date of his actual or anticipated retirement:

Provided that -

(i) in cases in which the date of retirement cannot be foreseen (18 months) in advance the application shall be submitted immediately after the date of retirement is settled; and

(ii) a Government servant proceeding on leave preparatory to retirement in excess of (18 months) shall submit the application at the time of proceeding on such leave.

Note.- This rule is intended to obviate delay in the settlement of claims for pension and to ensure that a Government servant may not retire under the misapprehension that he has earned a pension which is subsequently found to be inadmissible. There is indeed no limitation on the period after retirement within which an application for pension or gratuity must be submitted, but in the absence of special orders, a pension applied for after the Government servant has retired begins from the date of application.

13. From a bare perusal of Rule 189 it would be clear that filing of an application for pension is a condition precedent for grant of pension as under Chapter X of Bihar Pension Rules under the heading application for and grant of pensions a complete procedure has been laid down. Such intention of the framer of Bihar Pension Rules with regard to submitting formal application being condition precedent for grant of pension is also clear from the note portion given below Rule 189 wherein it has been clearly mentioned that entitlement of pension of a Government servant begins from the date of submission of application in the prescribed proforma.

14. That apart Rule 192 further clarifies that the Accountant General may not advice on the claim of any pension of the Government servant until a formal application for pension has been filed by the concerned Government servant and it is in this context that one has to look into the requirement of Rule 193 of Bihar Pension Rules which reads as follows:

193. A gazetted Government servant shall submit a formal application for pension to the head of the department. If the Government servant is himself the head of the department, he shall submit the application in Pension Form 4 direct to the Provincial Government, no formal application being necessary.

Note.- The following certificate shall be recorded by the applicant on the applications:

I hereby declare that I have neither applied for nor received any pension or gratuity in respect of any portion of the service included in this application and in respect of which pension or gratuity is claimed herein, nor shall I submit an application hereinafter without quoting a reference to the application and to the orders which may be passed thereon.

15. From Rule 193 it would thus be clear that the submission of a formal application for pension by a Gazetted Government servant to the head of the Department is a mandatory requirement wherein he has to also give certificate that he had neither applied nor received pension or gratuity nor would he claim pension in future for the services rendered by him to the Government without reference of the application and the orders passed thereon. It is in this context that the importance of prescribed pension 'Form-4' assumes significance. From the bare reading of the prescribed pension 'Form-4' which is given in the Bihar Pension Rules in Part II at page 156 to 159 it would be clear that the Government servant has to not only submit his application with his signature but has to give personal details which is within only his personal knowledge. It is he who has to give also not only his personal details as also details of his service but has to also give the name of the person to whom the family pension would be payable. From a perusal of 'Form-4' it would be also clear that the Government servant has to disclose the name of the Government Treasury or Sub Treasury from where such payment of pension is to be drawn by him. The Government servant in the prescribed proforma in fact has also to give his thumb and finger impression and has to disclose the date on which such application for payment of pension, gratuity and death cum retirement gratuity and family pension has been submitted by him. Yet again it is a requirement of 'Form-4' that the retiring Government servant has to submit a declaration in terms of Rule 204(A) of Bihar Pension Rules and has to also give details of description of his family members with their main relationship, date of birth and status whether married or unmarried. An undertaking in form of a certificate with signature of the retiring Government servant has to be also submitted in 'Form-4' that in the event of excess or overdrawal of pay allowances, advance T.A., T.A. on transfer, motor car or cycle or house building advance on dues on account of his rent or otherwise outstanding any amount for recovery when called upon to pay he would do so. The retired Government servant has to also give a certificate in terms of note portion of Rule 193 that he had neither replied nor received any pension or gratuity in past nor he would submit such application in future without giving reference to the application being filed by him and the same has to be accompanied by a joint photograph of the retiring Government servant and his wife or vice versa and has to be submitted along with three specimen signature of the Government servant.

16. Thus from the aforesaid detailed analysis of Rule 189 read with Rule 173 and its prescribed Form-4 it would become clear that submission of an application for grant of pension in the manner prescribed is the basic mandatory requirement for sanction and payment of pension and no gazetted Government servant can claim sanction and payment of his pension without submission of an application in Form-4 duly filled up and signed by the retiring Government servant in all respect which is popularly known as pension papers of the retiring Government servant.

17. In the present case there is no doubt that the writ petitioner had submitted the pension papers only in the month of January, 2004 whereafter his full and final pension were paid to him in the month of February, 2004 and therefore, the writ petitioner cannot claim any payment of interest on account of delay in sanction and payment of his pension.

18. The submission of the learned Senior counsel on behalf of the writ petitioner that the subsequent circular of the State Government dated 31.7.1980, a Government resolution that where the provisional pension was sanctioned the same was to be confirmed by way of grant of full pension after two years without submission of an application in the prescribed Form-4 in the opinion of this Court is an argument of desperation. First of all the Resolution dated 31.7.1980 has not the effect of overruling the provisions of Rule 189 and Rule 193 of the Bihar Pension Rules and secondly, even that Government resolution by way of circular dated 31.7.1980 does not envisage that full and final payment of pension can be made without submission of pension papers. From the materials on record, it becomes clear that the writ petitioner had adopted an obstinate attitude by reading into the order of this Court dated 19.3.1990 in C.W.J.C. No. 10143/1989 an authority of exemption in filing of pension papers which of course was not there. This Court had merely observed that the petitioner should be paid his provisional pension without any further delay and within a period of four months but when the petitioner did not submit his pension papers in Form-4 either in the period of aforementioned four months or even thereafter despite repeated communications sent to him alongwith a copy of Form-4, it is the writ petitioner who is to be blamed for delay in sanction and payment of his final pension. The writ petitioner seems to have not only a misconceived notion of the order of this Court dated 19.3.1990 in C.W.J.C. No. 10143/1989 but his continued defiance to repeated correspondences made by the Respondents for submitting his pension papers would only go to show that in between 1990 to 2003 it was the writ petitioner who himself was solely responsible for non-payment of his full and final retirement benefit including his final pension and gratuity.

19. The liability of payment of interest under the Government circular dated 7.11.1987 at the rate of 5% per annum on the amount of delayed payment of retirement benefit would not apply to the cases like one of the writ petitioner, inasmuch as that circular provides that in case there is no justifiable reason for the Government to delay in sanction and payment of pension, it will have to incur liability of payment of interest. Here in this case when the writ petitioner had himself not complied the requirement of Bihar Pension Rules and had not submitted his pension papers he cannot be heard to say that the Government was still liable to pay interest. In that view of the matter, this Court finds no merit in the claim of the petitioner for payment of interest for the delay caused in sanction and payment of final pension and gratuity to the writ petitioner.

20. In view of the fact that only aforementioned four claims of the writ petitioner were pressed by the learned Senior counsel, this Court would conclude and hold that the petitioner, the wife of the writ petitioner, as indicated above will be entitled to receive payment of balance amount of the provident fund of the writ petitioner to the tune of Rs. 2200 along with statutory interest as also balance amount of leave encashment to the tune of Rs. 5678.03 paise, if not already paid to the writ petitioner and would be also entitled for payment of family pension from 25.5.2008.

21. Thus, this writ application is disposed of in the light of the observations and directions made above.

22. Having regard to peculiar facts of this case, this Court would refrain from passing any order as to costs.