Dismissed

The State of Jharkhand v. Sukhram Prasad Mani

Jharkhand HC19 Jun 2024LPA/738/2019

Case brief

AI extract

What is this about?

State appealed against a Single Judge's order awarding retiral benefits with 12% interest and Rs.1.75 lakh in costs to a retired engineer paid after an eight-year delay. Holding the Secretary had admitted laches before the writ court, the Division Court dismissed the appeal, recharacterised the interest as penal and directed a Chief Secretary enquiry into the filing of the appeal.

What did the court decide?

Delay of 35 days condoned; L.P.A. dismissed; impugned order modified only by substituting '12% statutory interest' with '12% penal interest'; Chief Secretary directed to conduct enquiry within three m

The State of Jharkhand Vs Sukhram Prasad… — Pension and Retirement Benefits | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 738 of 2019

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The State of Jharkhand.

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The Principal Secretary, Rural Works Department, Government of Jharkhand, Project Building, P.O. dhurwa & P.S. Jaganathpur, District Ranchi.

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Executive Engineer, Rural Works Department, Works Division Garhwa, P.O. P.S. & District Garhwa.

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… … Appellant/Respondents -Versus-

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Sukhram Prasad Mani, aged 68 years, son of Late Ram Prasad Singh, resident of quarter No.128 Plot No.4, Sector 6, MIG Bahadurpur Housing Colony, P.O. T.V. Tower, Bhoot Nath Road, P.S.-Agamkuan, District-Patna, Bihar.

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… … Respondent/Writ petitioner

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State of Bihar, through its Principal Secretary, Rural Works Department, Old Secretariat, P.O. & P.S. Sachiwalaya, District Patna.

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The Accountant General, Jharkhand, P.O. & P.S. Doranda, District Ranchi.

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… … Proforma Respondents/Respondents

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--------- CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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----For the Appellant : Mr. Manish Kumar, Sr. S.C.-II. For the Resp. No.1 : Mr. Ranjit Kumar, Advocate For the Resp. No.2 : Mr. S.P.Roy, G.A. Bihar : Ms. Diksha Dwivedi, AC to GA, Bihar For the Resp. No.3 : Mr. Sudarshan Shrivastava, Advocate

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--------- Order No.10 : dated 19^th June, 2024

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Per Sujit Narayan Prasad, J :

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I.A. No.10186 of 2019

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1. This interlocutory application has been preferred under

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Section 5 of the Limitation Act for condoning the delay of 35 days in preferring this Letters Patent Appeal.

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2. Heard the parties.

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3. Having regard to the averments made in the application

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and submissions made on behalf of the appellants, we are of

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the view that the appellants were prevented from sufficient cause in filing the appeal within the period of limitation. As such, the delay of 35 days in preferring the appeal is hereby condoned.

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4. I.A. No. 10186 of 2019 stands allowed.

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L.P.A. No.738 of 2019

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5. The instant appeal, under clause 10 of the Letters Patent, is directed against the judgment/order dated 20.08.2019 passed by the learned Single Judge of this Court in W.P. (S) No. 2340 of 2019 whereby and whereunder the learned writ court while allowing the writ petition, has passed the following directions :-

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Since entire amount under the heads of retiral benefits have been sanctioned only a month’s back after eight years of the retirement, I hereby direct the Treasury Officer to immediately make payment of the entire retiral benefits to the petitioner within a period of 10 days from the date of receipt/ production of a copy of this order. Petitioner is entitled for retiral benefits along with 12% statutory interest. Further, the concerned Department is saddled with the cost of Rs.1,50,000/- to be paid to the petitioner, within a period of 10 days from the date of receipt of a copy of this order. Since the petitioner has been compelled and dragged in unnecessary litigation, which was unwarranted and because of the fault on the part of the respondent-Authorities, he has been made to suffer irreparable loss waiting for eight years to get the admitted

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rightful claim, the State is further saddled with the cost of litigation amounting to Rs.25,000/-, to be paid by the respondent-Department. Let it be made clear that the Secretary is free to fix the responsibility on the erring Officials, who were responsible for not disbursing the retiral benefits within time as per the entitlement. The Secretary may enquire the matter and recover the amount from the Officers found guilty for not disbursing the rightful claim of the petitioner within time.”

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6. The brief facts of the case, as per the pleading made in the writ petition is required to be enumerated which reads as under:-

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It is the case of the writ petitioner that he was appointed to the post of Assistant Engineer under Rural Works Department on 28.03.1979 in the erstwhile State of Bihar.

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7. It is the further case of the petitioner that though he worked to the full satisfaction of the respondent-authorities, he was denied the salary for several months and on several occasions without any rhyme and reason.

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8. The petitioner after his cadre allocation to the State of Jharkhand, superannuated from the services on 31.07.2011 from Rural Works Department, Work Division, Garhwa.

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9. The petitioner after superannuation in 2011, filed several representations for payment of retiral benefits but the

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respondents have not paid any heed to the same and not a single penny was paid to him.

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10. When nothing was paid to the petitioner, he approached this Court by filing writ petition being W.P.(S). No. 5533 of 2013, which was disposed of vide order dated 27.08.2014,with a direction to the Secretary of Rural Works Department, Government of Jharkhand to ensure that the admissible post retiral dues of the petitioner is paid after due compliance of all necessary formalities. Specific direction was made to make such payment along with statutory interest.

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11. After the order passed by the learned writ court also when the retiral dues were not paid to the writ petitioner, the petitioner preferred a contempt case being Cont. Case (C). No. 626 of 2015.

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12. When contempt application was filed and notices were issued, the respondent-State came with a plea that the order of the Court has been fully complied with inasmuch as all the retiral benefits of the petitioner have been paid and relevant documents have been sent to the office of the Accountant General for issuance of Authority Slip for payment of final pension and accordingly, the contempt was dropped vide order dated 24.03.2017 on the assurance and submission of the respondent-State.

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13. Even after undertaking and assurance given in the Court that entire retiral benefits have been paid, the

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petitioner did not receive a single farthing and as such, he was compelled to move this Court again by filing the present writ application being W.P.(S) No.2340 of 2019.

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14. The respondent-State appeared and filed counter affidavit.

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15. The learned Single Judge, after hearing the parties, has allowed the writ petition with a direction to the respondents to release all the retiral benefits along with 12% statutory interest and further the concerned department has been saddled with cost of Rs.1,50,000/- to be paid to the petitioner within a period of 10 days from the date of receipt of copy of the order as also Rs.25,000/- as litigation cost to be paid by the respondent department, against which the instant appeal has been preferred.

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16. It is evident from the factual aspect that the petitioner, on attaining the age of normal superannuation, has retired from service on 31.07.2011. The retiral benefit has not been paid fairly for a long period, hence, the writ petitioner preferred writ petition in the year 2019 being W.P.(S) No.2340 of 2019 seeking direction upon the respondents to for granting the benefits of ACP/ MACP. It has also been prayed for payment of arrears of salary for the period from 28.03.1979 to 04.05.1987, June, 1987 to December, 1990; January, 1991 to May, 1992, December, 1993, August, 1996 to September, 1996, December, 1996, January, 1997 to

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August, 1998, which has remained unpaid as also to pay the retiral dues along with statutory and penal interest.

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17. The learned writ court has called upon the State and in pursuance thereto, the counter affidavit has been filed. The learned writ court has taken into consideration the ground taken by the State in the counter affidavit wherein the stand inter-alia has been taken that all the retiral benefit has been sanctioned in favour of the petitioner. But, the learned Single Judge has found on perusal of the factual aspect that the retiral benefit has been paid after lapse of about 8 years from the date of superannuation, as such, the learned Single Judge has allowed the writ petition with a direction to make payment of the entire retiral benefits to the petitioner within a period of 10 days from the date of receipt/ production of a copy of the order holding the writ petitioner entitled for retiral benefits along with 12% statutory interest and the concerned Department has been saddled with the cost of Rs.1,50,000/- to be paid to the petitioner as also the cost of litigation amounting to Rs.25,000/-, to be paid by the respondent-Department.

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18. The State, being aggrieved with the said order, has filed the instant appeal.

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19. The learned State counsel, while arguing on 29.04.2024 has challenged the order as contained in paragraph-9 wherein direction to release all the retiral benefits along with

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12% statutory interest and further the concerned department has been saddled with cost of Rs.1,50,000/- to be paid to the petitioner within a period of 10 days from the date of receipt of copy of the order as also Rs.25,000/- as litigation cost to be paid by the respondent department.

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20. This Court has proceeded on that premise that the entire order on merit has not been challenged, rather, part of the said order has been challenged as would be evident from the order dated 29.04.2024.

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21. Learned State counsel has assailed the said part of the order by taking the ground that there is no laches lies on the part of the authority of the State in not taking decision with respect to the disbursement of the post retiral benefit or the arrears pertaining to the dues while the respondent writ petitioner was in service.

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Argument advanced on behalf of appellant-State

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22. Mr. Manish Kumar, learned Sr. S.C.-II, appearing for the appellant-State, has submitted that there is no laches on the part of the State and such submission was made on the premise that there was break in service as was found by the respondent authorities having been referred in the service book as also the service book was not updated.

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23. The contention has been raised on behalf of the State appellant that the learned Single Judge without taking into consideration the aforesaid aspect of the matter, has passed

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order with a direction for release of the retiral benefits but while doing so, the concerned department has been saddled with the cost of Rs.1,50,000/- along with the direction of disbursement of retiral benefit with 12% statutory interest and Rs.25,000/- as litigation cost which is highly improper and without taking into consideration the factual aspect which has been brought on record on behalf of the State appellant in the counter affidavit filed before the writ court.

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24. The ground has been taken that saddling the respondent with cost of Rs.1,50,000/- or the litigation cost amounting to Rs.25,000/- is highly improper and unjustified since there is no laches lies on the part of the authority of the State.

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25. Further, the retiral benefit has been directed to be paid along with 12% statutory interest which is totally unjustified reason being that the interest if has been referred as “statutory” then the quantum cannot be 12%. Hence, the order impugned requires interference so far as that part of the order is concerned.

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26. Learned State counsel has submitted that the learned Single Judge while passing the order saddling the respondent concerned with the cost along with the statutory interest @ 12% and the litigation cost amounting to Rs.25,000/- suffers from error and hence, not sustainable in the eyes of law.

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Argument advanced on behalf of Respondent-writ petitioner

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27. Per contra , Mr. Ranjit Kumar, learned counsel appearing for the respondent-writ petitioner, has defended the impugned order by referring to the impugned order itself wherein the learned writ court being convinced with the argument advanced on behalf of the writ petitioner and also the documents available on record, has called upon the Secretary of the Department which was being held by Mr. K.K.Sone along with his entire team.

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28. The Secretary has accepted the fault on the part of the officers by admitting the fact that there has been inordinate delay in disbursing the retiral benefit and mistake has been committed by the Department. The Secretary, thereafter, has undertaken before the Court that in future the Department will be very careful and every fortnight, the matters related to retiral benefits will be enquired upon and every possible legal steps shall be taken for timely disbursement of the same. The apology was also sought for.

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29. Learned counsel has further submitted that based upon the said admission on the part of the Secretary, who is the departmental head of the concerned department, has passed order to the effect that the respondent is saddled with the cost of Rs.1,50,000/-, retiral benefit has been directed to be paid with statutory interest @ 12% and Rs.25,000/- as litigation cost.

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30. It has further been submitted that the Secretary has also been given liberty to fix the responsibility on the erring officers who were responsible for not disbursing the retiral benefits within time as per the entitlement. The further observation has been made that the Secretary may enquire the matter and recover the amount from the Officers found guilty for not disbursing the rightful claim of the petitioner within time.

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31. Learned counsel for the respondent-writ petitioner has submitted that since the writ petitioner has retired on 31.07.2011 and the retiral benefit has been paid fairly after a lapse of about 8 years and when the Secretary himself has admitted that there is inordinate delay in disbursing the benefit, which led the learned Single Judge to pass the order saddling the respondents with the cost of Rs.1,50,000/-, retiral benefit to be paid with statutory interest @ 12% and Rs.25,000/- as litigation cost. Hence, the said part of the order cannot be said to suffer from an error.

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Argument advanced on behalf of Respondent-Accountant General, Jharkhand

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32. Mr. Sudarshan Shrivastava, learned counsel appearing for the respondent-Accountant General, has submitted that the view which has been taken by the learned Single Judge cannot be said to suffer from an error in view of the fact that when the Secretary was called upon by the learned writ court on 20.08.2019, a week before the aforesaid date, the

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Secretary had forwarded all the documents and thereafter, the Secretary has appeared before the Court by giving assurance of disbursement of all retiral benefits and the authority slip has also been issued and along with the said authority slip, the Secretary had appeared before the writ court.

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33. It has been submitted that the said fact was also brought to the notice of the learned writ court as would appear from the reference made at paragraph 6 of the impugned judgment.

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Analysis

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34. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order as also the documents appended with the paper book.

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35. The issue which has been raised in this appeal is questioning the propriety of the order passed by the learned Single Judge wherein while allowing the writ petition direction has been given for disbursement of retiral dues in favour of the petitioner with statutory interest @ 12%, saddling the respondents with cost of Rs.1,50,000/- and further payment of Rs.25,000/- by way of litigation cost.

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36. The ground has been taken that there is no laches said to be committed on the part of the State which is the main ground taken by the State in preferring the instant appeal.

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37. The another ground has been taken that the retiral benefit has been directed to be paid along with 12% statutory interest but when the word “statutory” has been used, then the quantum of interest which is 12%, cannot be said to be in consonance with the direction in view of the fact that the statutory interest cannot be @ 12%.

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38. Law is well settled so far as the issue of payment of interest is concerned i.e. State has failed in disbursing the amount then attributability will be upon the State and in that view of the matter, the State will have to compensate the litigant concerned by making payment of interest. However, the matter would have been different if the State would be in a position to establish the fact that delay is not attributable to the State, rather, it is attributable to the concerned litigant.

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39. The Hon’ble Apex Court in the case of Vijay L. Mehrotra v. State of U.P . reported in (2001) 9 SCC 687, has observed that the retiral benefits, should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement itself. Further, it has been ordered in the aforesaid judgment that if there is any delay showing no reason of justification for years together a direction has been passed directing the respondent to pay the retiral benefits along with the simple interest with effect from the date of

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retirement till the date of payment. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under:-

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“3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.

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4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement, i.e., 31-8-1997 till the date of payments.”

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40. Further the Hon’ble Apex Court in the case of D.D. Tewari (Dead) through legal representatives v. Uttar Haryana Bijli Vitran Nigam Limited, (2014) 8 SCC 894 while taking note of the Judgment passed in the case of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429 has been pleased to direct for making payment of interest on the delayed payment of pension and gratuity on the ground of delay of making payment of the retiral dues. The relevant paragraphs of the aforesaid judgment are being quoted as under:-

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“6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31-10-2006 and the order of

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the learned Single Judge after adverting to the relevant facts and the legal position has given a direction to the respondent employer to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred [(1985) 1 SCC 429 : 1985 SCC (L&S) 278] to supra.---”

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41. It is pertinent to mention here that the Hon'ble Apex Court in the Kerala v. M. Padmanabhan Nair (supra) has categorically 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, under the decisions of this Court, valuable rights and 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” .

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42. It is evident from the aforesaid pronouncements of the Hon’ble Supreme Court that if the pension has not been disbursed along with other retiral dues without any reasonable explanation by the State who is the sanctioning authority, then the court of law, if imposed the interest to be

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paid along with the admitted pensionery benefit and the due, the same cannot be said to suffer from an error.

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43. The quantum which is to be fixed by the court of law is to be assessed upon the facts and circumstances of the case.

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44. Adverting to the facts of the present case herein, there is no dispute that the laches lies on the part of the State in view of the fact that when the petitioner has retired and when the pensionery benefit has been paid in favour of the writ petitioner which led the petitioner to approach this Court for the first time in the year 2013 by filing writ petition being W.P.(S) No.5533 of 2013 and thereafter, by filing the contempt case being Cont. Case (Civil) No. 626 of 2015 on the ground of non-compliance of order dated 27.08.2014 passed in W.P.(S) No.5533 of 2013.

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45. Furthermore, which is most important that the Secretary had been summoned by the learned writ court wherein the Secretary has admitted the delay caused in disbursement of post-retiral benefit including the pension which has been taken note of by the learned writ court, as would be evident from paragraph-6 of the impugned order.

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46. The question which is being considered by this Court that when the laches/inordinate delay in disbursement of the post-retiral dues including the pension has been admitted by the Secretary of the concerned department and not only that he has also given undertaking that in future the Department

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will be very careful and every fortnight, the matters related to retiral benefits will be enquired upon and every possible legal steps shall be taken for timely disbursement of the same. Apology has also been sought for by the Secretary for inordinate delay in the present case, for ready reference, part of paragraph 6 is being referred hereunder as :-

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On the earlier occasions, not convinced with the counter-affidavit filed by the respondent-State, this Court passed an order for personal appearance of the Secretary of the respondent-Department. In compliance of the said orders, the Secretary of the Department, Mr. K.K. Sone along with his entire team is present in the Court. Mr. Sone, accepting the fault on the part of the Officers, very fairly submits that admittedly there has been inordinate delay in disbursing the retiral benefits and mistake has been committed by the Department but he undertakes and assures the Court that in future, the Department will be very careful and every fortnight, the matter related to retiral benefits will be enquired upon and every possible legal steps shall be taken for timely disbursement of the same. Apology has been sought for by the Secretary for inordinate delay in the present case.”

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47. The question of rebuttal of said undertaking furnished

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by the Secretary cannot be allowed to be agitated by the State appellant by taking the ground in filing the appeal. When the Secretary himself has appeared and accepted the laches committed on the part of the department, where is the question of rebut the said oral statement furnished before the court of law that too by the Secretary of the department who

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has also tendered apology with the assurance that in future the same will not be repeated, rather, every efforts will be taken for disbursement of the retiral benefits as also to enquire into the matter so that such incidence may not occur in future.

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48. The concern of the Secretary has been taken note of by the learned writ court in that pretext the present appeal has been filed for setting aside the part of the order by which the appellant has been directed to release all the retiral benefits along with 12% statutory interest and further the concerned department has been saddled with cost of Rs.1,50,000/- to be paid to the petitioner within a period of 10 days from the date of receipt of copy of the order as also Rs.25,000/- as litigation cost to be paid by the respondent department.

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49. This Court is of the view that if such prayer will be allowed by showing interference with the part of the order, then what will happen to the admission as was made by the Secretary of the concerned department that is the issue which is having bearing in deciding the instant appeal.

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50. The further consideration before this court is that if that part of the order will be quashed and set aside, it will amount to giving premium to the subordinate authorities in taking the same action in discharge of their duty with respect to fixation of pension and disbursement of post-retiral dues

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with respect to other persons who are going to retire in future.

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51. The further issue would be that the concern of the learned Single Judge wherein the Secretary has also been given liberty to fix accountability upon the erring officials and perhaps for that reason the instant appeal has been filed so that the wrong doers be protected.

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52. Further, the question would be that the instant appeal which has been filed at whose instance whether the Secretary who has furnished the undertaking before the learned writ court or after his relinquishment of the said post from the concerned department.

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53. If during the period of the same incumbent who was holding the post of Secretary during the relevant time the appeal has been filed, the same cannot be allowed but there is no averment to that effect and further, if the appeal has been filed after his transfer elsewhere on any capacity whatsoever, then the question is that where is the jurisdiction lies to the incumbent Secretary of the concerned department to prefer an appeal.

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54. The concern of the Court is that when the learned writ court has taken note of the undertaking and the fault having been admitted by the Secretary, why and on whose pretext the instant appeal has been filed which is subject matter of further enquiry.

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55. Hence, this Court is of the view that these things are to be taken into consideration at the level of the Chief Secretary of the State that on whose instance the present appeal has been filed. The illegal doer cannot be allowed to be protected which is the sheer example by way of filing the present appeal.

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56. The question has been raised regarding the cost of Rs.1,50,000/- and litigation cost of Rs.25,000/- which has been inflicted by the learned writ court is based upon the undertaking furnished by the Secretary of the concerned department.

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57. So far as the issue of interest as has been directed by this Court to be paid along with the 12% statutory interest is concerned, learned counsel for the appellant has submitted that 12% interest cannot be said to be statutory interest.

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58. So far as this part of the order is concerned, even that part of the order is not to be considered because that order was also passed in presence of the Secretary of the concerned department, as would be evident from last paragraph of the impugned order wherein the personal appearance of the Secretary was exempted.

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59. Therefore, this Court is of the view that the word “statutory” is having no bearing in the instant appeal taking into consideration the admission made by the Secretary and further, the prayer made in the writ petition by the writ

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petitioner seeking a direction to pay the retiral dues along with the statutory and penal interest.

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60. Learned Single Judge has referred the word “12% statutory interest” which this Court is modifying to that of “12% penal interest”.

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61. The impugned order is modified to the extent indicated above.

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62. So far as the direction passed by this Court directing the Chief Secretary of the State to conduct an enquiry against the Secretary who has given consent or approval to file this appeal, the same is required to be enquired into so that the system which is being adopted herein in filing the appeal even though there is specific admission by the Secretary of the concerned department at the time when the learned writ court passed the order and further for the reason that the Rules of Executive Business may not be allowed to deviate in any way on the principle that if any incumbent officer is relinquishing the post by way of transfer or any eventuality, the successor in office is having no jurisdiction to sit upon the decision taken by the concerned predecessor in office.

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63. Let such enquiry be conducted within a period of three months by the Chief Secretary, Government of Jharkhand.

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64. Accordingly, the instant appeal fails and is dismissed.

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65. Pending Interlocutory Application, if any, also stands disposed of.

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(Sujit Narayan Prasad, J.)