Daya Nand Sangwan Vs State of Haryana and Anr.

The present writ petition has b een filed under Article 226/2 2 7 of the Co n stitution of India seeking issu a nce of a writ in the nature o f mandamus directing the respondents to release unpaid/withheld retir a l benefits i. e . gratuity, commutation of pe n sion with interest @ 18% p e r annum. Fu r ther prayer has been made for directing the respondents to p a y the petitio n er 2nd ACP grade pay w.e.f. 0 1.02.2007 on completion of 2 0 years of re g ular satisfactory service under the provisions of Haryana Civil Services ( A ssured Career Progression) R u les, 2008 with all consequenti a l

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benefits in c luding arrears with interest @ 18% per annum, in the wake o f order dated 09.01.2017 (Annexure P-18). 2. Learned counsel for the petitioner inter alia contends that t h e petitioner r etired from service on 30.06. 2 012 while holding the post o f Secretary, M unicipal Council, Fatehabad ( A nnexure P-1). At the time of h i s retirement, two charge-sheets dated 14.05. 2 007 and 13.02.2008 (Annexur e s P-2 and P - 3, respectively) were pendin g against him. The disciplina r y proceeding s were not concluded within a reasonable time, compelling t h e petitioner t o approach this Court by filin g CWP-18956-2015 , titled Daya Nand versus State of Haryana and another , which was disposed of vi d e order dated 09.09.2015 (Annexure P-16) w ith a direction to the responden t s to decide t h e claim of the petitioner by pa s sing a speaking order. Since t h e aforesaid d irections were not complied w ith, the petitioner filed COCP1181-2016 , titled Daya Nand Sangwan versus Anil Kumar , decided o n 04.08.2017 (Annexure P-19). During the p e ndency of the contempt petitio n , respondent No.1 passed a speaking order d a ted 09.01.2017 (Annexure P-18), whereby b o th the charge-sheets were drop p ed. While passing the said orde r , respondent No.1 not only dropped the char g es but also directed release of all retiral due s , including grant of second A C P w.e.f. 01.02.2007. Followi n g which the s aid order was not complied w ith, compelling the petitioner t o approach t h is Court again by filing the p resent writ petition. During t h e pendency of the writ petition, all retiral dues were eventually paid. Howeve r , interest on g ratuity and leave encashment w as paid only from January, 2017

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and not fr o m the due date. No interest w a s paid on LTC, ACP pay sca l e arrears, an d commutation of pension. Le a rned counsel for the petition e r refers to t h e affidavit dated 22.10.2019 fi l ed by respondents No. 1 and 2 , wherein de t ails of retiral benefits and dates of payment have been furnishe d . The petitio n er controverted the same by f i ling a rejoinder/counter affidavit dated 05.0 3 .2020, stating that interest was paid only on gratuity and lea v e encashmen t . 3. Learned counsel further sub m its that, as per the reply to t h e rejoinder fi l ed by the respondents, it stands admitted that interest amounti n g to Rs.1,04,802/- was paid on gratuity and leave encashment w.e.f. 01.01.2017 . He further refers to page 12 7 of the paper book and plac e s reliance u p on the sanction order for co m mutation of pension (Annexu r P-22), sub m itting that the amount calcu l ated therein was Rs.4,42,190/-, whereas th e petitioner was paid only Rs. 6 3,670/-. Reliance is also plac e d upon notifi c ation dated 10.05.2011 (Annex u re P-23) and Rule 11.1(1) of t h e Punjab Ci v il Services Rules, Volume-II, to contend that a governme n t employee i s entitled to commute up to 40 % of his pension, which is to b e restored on completion of 15 years from t h e date of retirement or from t h e date of act u al receipt of the commuted valu e , whichever is later. 4. Per contra , learned State c o unsel opposes the prayer a n d submits th a t the petitioner is not entitled to interest. Reliance is placed up o n office me m orandum dated 05.05.2008 (A n nexure R-1), particularly Clau s e 5(iii), to c o ntend that in cases where disc i plinary proceedings are dropp e d

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on account of lack of evidence or on th e ground that the employee h a s retired, no i nterest is payable on retiral be n efits for a period of three mont h s from the d ate of the final decision in the disciplinary proceedings. It i s further sub m itted that if the delay exceed s three months from the date o f such decis i on and the employee has co m pleted all requisite formalitie s , interest m a y be allowed only from the d ate of decision till the date o f payment. L earned State counsel further r e fers to the speaking order dat e d 09.01.2017 (Annexure P-18) and submi t s that the petitioner was al s o involved in a criminal case bearing FIR N o . 36 dated 18.11.2005, register e d under Secti o ns 420, 409, 467, 468 read wit h Section 120-B IPC and Secti o n 13(1)(d) o f the Prevention of Corruption A ct, 1988, at Police Station SV B , Gurgaon, a n d was acquitted on 11.02.201 4 . In the backdrop of these fact s , the discipl i nary charges against the petit i oner were dropped by taking a sympatheti c view.

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In rebuttal, learned counsel for the petitioner submits th a t disciplinar y proceedings and criminal proc e edings operate in distinct field s . The charge - sheets were issued in the year s 2007 and 2008, yet no effecti v e steps were taken by the competent autho r ity to conclude the disciplina r y proceeding s . It is the legitimate expec t ation of every employee th a t disciplinar y proceedings are concluded wi t hin a reasonable time. No del a y can be att r ibuted to the petitioner, who w as compelled to approach th i s Court first b y filing CWP-18956-2015 and t hereafter COCP-1181-2016. T h e petitioner h as already suffered prolonged li t igation, whereas the responden t s

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are solely r esponsible for delaying the d i sciplinary proceedings for mo r e than a deca d e.

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I have heard the learned c o unsel for the parties and ha v e perused th e record with their able assist a nce. It transpires that petition e r retired on 30.06.2012 and at that point o f time, two charge-sheets we r e pending ag a inst him pertaining to years 2 0 07-08. The respondents did n o t take any a d equate steps to conclude the d isciplinary proceedings within a reasonable dispatch compelling the petit i oner to file CWP-18956-201 5 , followed b y COCP-1181-2016 and it was only during the pendency of t h e said conte m pt petition, respondent No.1 passed a speaking order dat e d 09.01.2017 (Annexure P-18), whereby bot h the charge-sheets were droppe d . Further, th e claim of the petitioner regar d ing interest on LTC, ACP a n d computatio n of pension has not been c o ntroverted by the learned Sta t e counsel. F u rther in response to the query raised by this Court on 20.03.202 3 , the followi n g order was passed:-

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“ Both the parties have f i led their respective affidavits. Learned counsel for t he petitioner submits that t h e commuted value of the pensio n was sanctioned only in Octobe r , 2019 and an amount of Rs.6 3 ,617/- was paid on 09.10.201 9 . Since the petitioner had retir e d on 30.06.2012, therefore, Ru l e 11.1 of Punjab Civil Service R ules, Volume-II was applicabl e , which reads as under:-

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“(1) A G overnment employee, o n superannuation/p r emature retirement, shall b e

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entitled to commute for a lump sum payment a fraction not exce e ding 40% (forty percent) of h i s pension. The fra c tion of pension so commuted o n retirement i. e . superannuation/pre-matu r e retirement shall, however be restored to him o n completion of 15 y ears from the date of retireme n t or 15 years from t he actual receipt of commutati o n value, whichever i s later.”

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The respondent-Depart m ent has relied upon Rule 106 o f Haryana Civil Services (Pen s ion) Rules, 2016, which is n o t applicable to the case in han d as these rules came into for c e only w.e.f 01.01.2016.

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Learned State counsel m ay apprise this Court as to ho w Rules of 2016 are made appli c able to the case of the petitione r , otherwise the petitioner was e n titled for the fraction of pensi o n so commuted on retirement and the same was to be restored o n completion of 15 years from t h e date of retirement or 15 yea r s from the actual receipt of c o mmutation value, whichever i s later. The interest component i s also applicable on the recove r y of commuted portion of the pe n sion.”

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In compliance thereto, an affidavit of Sh. Y.S. Gupt a , Additional Director, Urban Local Bodies, H aryana, Panchkula was filed o n behalf of r e spondents No.1 and 2, where i n reliance was placed upon t h e explanatio n attached to Rule 15 of the P e nsion Rules, 2009 to justify t h e recovery o f Rs.3,78,517/-. It was clarifie d that Rule 106 of the Harya n a Civil Servi c e (Pension) Rules, 2016 is pro s pective in nature, however, pri o r to the pro m ulgation of the 2016 Rules, the Pension Rules of 2009 contain e d

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n a similar p rovision for recovery of exc e ss payment in the explanati o attached to Rule 15. 8. Further, Learned counsel f o r the petitioner produced t h e notificatio n dated 17.04.2019 vide whi c h the Haryana Civil Servic e s (Revised P e nsion) Part-II, Rules 2009 wer e notified and submitted that the r e is no expla n ation attached to Rule 15. Cop y of the same was taken on reco r d as mark 'X ' . He further provided copy of t he notification dated 04.10.2013 which was taken on record as mark 'Y' a n d submitted that the explanati o n attached wi t h the said notification was mad e applicable w.e.f. 01.01.2006. 9. The Hon'ble Supreme Court i n Prem Nath Bali v. Registrar, High Court of Delhi and another, (2015) 16 SCC 415 , while emphasizi n g the duty of the employer to conclude disci p linary proceedings expeditiousl y , held as und e r:

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"31) Time and again, this Court has emphasized that it is the duty o f the e m ployer to ensure that the depa r tmental inquiry initiated again s t the d e linquent employee is conclude d within the shortest possible ti m e by ta k ing priority measures...

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33) ...every employer (whether Stat e or private) must make since r e ende a vor to conclude the depart m ental inquiry proceedings on c e initi a ted against the delinquent emp l oyee within a reasonable time b y givin g priority to such proceedings a nd as far as possible it should b e conc l uded within six months as an o u ter limit. Where it is not possib l e for the employer to conclude due to certain unavoidable caus e s arisi n g in the proceedings within the time frame then efforts should b e mad e to conclude within reasonably extended period depending up o n the c a use and the nature of inquiry b u t not more than a year."

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In the present case, the petitioner retired on 30.06.2012. T h e charge-she e ts were issued in 2007 and 2008. The respondents did n o t conclude t h e disciplinary proceedings for nearly a decade. The petition e r was compe l led to approach this Court twi c e, first in 2015 and thereafter i n contempt p roceedings in 2016. It was o n ly during the pendency of t h e contempt petition that the respondents dro p ped the charges on 09.01.201 7 . The respon d ents have offered no explanati o n whatsoever for this inordina t e and unexpl a ined delay of 9-10 years. The p e titioner cannot be made to suff e r for the ad m inistrative lapses of the respo n dents. The sword of disciplina r y action was kept dangling over the petiti o ner indefinitely, contrary to t h e mandate of Prem Nath Bali (supra) . 11. The entitlement of a retired e m ployee to timely disbursement o f retiral bene f its and the consequential right t o interest upon delay is no long e r res integra. A Full Bench of this Court in A .S. Randhawa v. State of Punja b , 1998 (1) S C T 343, laid down the seminal p r inciple:

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"Since a government emplo y ee on his retirement becom e s immediately entitled to pensi o n and other benefits in terms o f the Pension Rules, a duty is si m ultaneously cast on the State t o ensure the disbursement of p e nsion and other benefits to t h e retirer in proper time. As to w h at is proper time will depend o n the facts and circumstances o f each case but normally it wou l d not exceed two months from t h e date of retirement... If the Sta t e commits any default in the p erformance of its duty there b y denying to the retiree the be n efit of the immediate use of h i s money, there is no gainsaying the fact that he gets a right to b e

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compensated and, in our opi n ion, the only way to compensa t e him is to pay him interest for t he period of delay on the amou n t as was due to him on the date o f his retirement."

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(emphasis supplie d ) 12. This principle has been consi s tently followed. In Jagjit Singh - v. The Punjab State Power Corporation Limited and others, CWP-16745 2022 , deci d ed on 11.11.2025, this Court d i rected payment of interest at 6 % per annum f rom two months after retireme n t till actual realization. 13. This Court in Tara Chand Tusamer v. State of Haryana and another, CWP-12146-2016 , decided on 22 . 05.2019 (Annexure P-24) , whi l e dealing wi t h a case where charge-sheets were issued on the last date o f service an d were subsequently dropped, h e ld that the pendency of charg e - sheets can n ot cause prejudice to the petitio n er so as to withhold amounts h e was entitle d to immediately upon retireme n t. The respondents were direct e d to pay inter e st for the period of delay. 14. In the present case, the petit i oner retired on 30.06.2012. H i s retiral bene f its ought to have been disburse d by 31.08.2012 at the latest. T h e disciplinar y proceedings were dropped on l y on 09.01.2017, and paymen t s were made thereafter. Some payments, s u ch as commutation of pensio n , were mad e as late as 09.10.2019, over 7 years after retirement. T h e respondent s have admitted to paying i nterest on gratuity and lea v e encashmen t from January 2017, thereby a cknowledging the entitlement t o interest. H o wever, interest ought to have b een paid from the due date i. e . two month s after retirement, and on all reti r al benefits, not selectively.

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The respondents' reliance o n Clause 5(iii) of the offi c e memorand u m dated 05.05.2008 to deny in t erest for the period prior to thr e e months fro m the date of final decision is c o mpletely misplaced. This clau s e cannot be invoked by the respondents t o take advantage of their o w n inaction in delaying the disciplinary proc e edings for nearly a decade. T h e maxim null u s commodum capere potest d e injuria sua propria (no one c a n take adva n tage of his own wrong) squ a rely applies. An administrati v e instruction cannot override the fundament a l principle of compensation f o r wrongful w ithholding of legitimate dues.

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The petitioner retired on 3 0.06.2012. His entitlement t o commutati o n of pension is governed by R ule 11.1(1) of the Punjab Civil Services R u les, Volume-II (as applicable to the State of Haryana), whi c h reads:

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"(1) A Government employee, on superannuation/prematu r e retir e ment, shall be entitled to com m ute for a lump sum payment a fract i on not exceeding 40% of his p e nsion. The fraction of pension s o com m uted on retirement i.e. super a nnuation/pre-mature retireme n t shall , however be restored to him o n completion of 15 years from t h e date of retirement or 15 years from t he actual receipt of commutati o n valu e , whichever is later."

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The respondents, instead of di s bursing the full commuted val u e of Rs.4,42,190/- as sanctioned, paid only Rs.63,617/- on 09.10.2019. T h e balance a m ount of Rs.3,78,573/- was reco v ered on account of installmen t s of 87 mont h s, also including interest at abo u t 8.5%. This recovery is patent l y

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illegal and w ithout authority of law.

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The respondents sought to j u stify this recovery by placi n g reliance o n the explanation attached to Rule 15 of the Haryana Civil Services ( R evised Pension) Rules, 20 0 9 (as per notification dat e d 04.10.2013 ) . This justification is unsustain a ble for multiple reasons:

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(a.) Firstly, the respondents hav e themselves admitted in the i r affid a vit dated 22.10.2019 that Rule 106 of the Haryana Civil Servi c e (Pen s ion) Rules, 2016 is prospectiv e in nature and cannot be appli e d retro s pectively to the petitioner. The same logic applies with equ a l forc e to the 2013 notification amendi n g the 2009 Rules. The petition e r retir e d on 30.06.2012, more than a y ear prior to the said notificatio n . His r ights crystallized on the dat e of retirement and cannot b e gove r ned by rules or notifications iss u ed post-retirement. (b.) Secondly, the explanation a ttached to Rule 15, even i f applicable, only permits recovery o f additional amount. The prese n t case is not one of recovery of exc e ss payment; it is a case of no n - disb u rsement of the base commut e d value itself. The responden t s cann o t be permitted to dress up a case of non-payment as one o f reco v ery.

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(c.) Thirdly, the respondents ha v e not disbursed the commut e d valu e and then effected recovery; they have simply withheld t h e amo u nt upfront. This is a colourable e xercise of power.

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The Hon'ble Supreme Court i n Dev Prakash Tewari v. U.P.

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Cooperative Institutional Service Board, Lucknow, (2014) 7 SCC 260 , while cons i dering whether disciplinary pr o ceedings after retirement of a n employee could be continued in absence of any rule to that effect, held:

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"6. O nce the appellant had retired f rom service on 31.3.2009, the r e was no authority vested with the respondents for continuing t h e disci p linary proceeding even for the purpose of imposing a n y redu c tion in the retrial benefits p a yable to the appellant. In t h e abse n ce of such an authority it m u st be held that the enquiry h a d laps e d and the appellant was entitle d to get full retrial benefits."

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(emphasis supplied)

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Applying the above principle, the respondents had no authori t y - to impose any recovery from the retiral benefits of the petitioner pos t retirement, especially when the disciplina ry proceedings had been dropp e d and no or d er of recovery was ever pa s sed against the petitioner. T h e recovery o f Rs.3,78,573/- is without jurisdi c tion and void ab initio. 21. The Hon'ble Supreme Cour t in Calcutta State Transport Corporation v. Ashit Chakraborty, 2023 SCC Online SC 594 , held:

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"11. ...For any fault on th e part of the Corporation, t h e employees cannot be made to s uffer."

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In the present case, the dela y in disciplinary proceedings, t h e consequent delay in release of retiral benefits, and the recovery fro m commuted value of pension are all attrib u table solely to the respondent s . The petitioner has been pursuing his le g itimate claims since 2015, fir s t through w r it petition, then contempt pet i tion, and now the present w r it petition. H e has already suffered prolonge d litigation and financial hardshi p .

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He cannot be made to suffer further o n account of the respondents' administrat i ve lapses. 23. In view of the foregoing discu s sion, this court observes that:-

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(i) The respondents have f a iled to conclude the disciplina r y proc e edings against the petitioner within a reasonable time, i n viola t ion of the mandate laid down i n Prem Nath Bali (supra) . T h e inor d inate and unexplained delay of nearly a decade is sole l y attri b utable to the respondents.

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(ii) The petitioner is entitle d to interest on all delayed retir a l bene f its, gratuity, leave encash m ent, LTC, ACP arrears, a n d com m utation of pension, from two m onths after the date of retireme n t i.e. 3 1.08.2012 till the date of ac t ual payment, in terms of A.S. Randhawa (supra) .

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(iii) The respondents' relian c e on Clause 5(iii) of the offi c e mem o randum dated 05.05.2008 to d eny interest is misconceived a n d cann o t be permitted to defeat the pe t itioner's legitimate entitlement t o com p ensation for wrongful withhold i ng of his dues. (iv) The recovery of Rs.3,7 8 ,573/- from the commuted val u e of p e nsion is patently illegal and without authority of law. T h e resp o ndents are liable to refund the s aid amount to the petitioner wi t h inter e st.

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(v) The petitioner's entitle m ent to commutation of pension i s gove r ned by Rule 11.1(1) of th e Punjab Civil Services Rule s ,

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Volu m e-II as applicable on the date of his retirement i.e. 30.06.201 2 . Rule s /notifications issued post-reti r ement (2013/2016) cannot b e applied retrospectively to his detrim e nt.

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Accordingly, the present wr i t petition is allowed with t h e

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following d irections:

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(i) The respondents a re directed to pay interest on t h e delayed payment of gratuity, l e ave encashment, LTC, and ACP arrears at the rate of 6% p e r annum from 31.08.2012 (t w o months after retirement) till th e date of actual payment, within a period of three months from t h e date of receipt of certified co p y of this order. The amount of interest already paid i. e . Rs.1,04,802/- shall be adjusted against the total intere s t computed.

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(ii) The respondent s are directed to refund t h e recovered amount of Rs.3,78, 5 73/- to the petitioner along wi t h interest at the rate of 6% per annum from 09.10.2019 (date o f payment of Rs.63,617/-) till t h e date of actual refund, within a period of three months from t h e date of receipt of certified co p y of this order.

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(iii) The respondents are directed to recalculate t h e commuted value of pension s trictly in accordance with Ru l e 11.1(1) of the Punjab Civil Services Rules, Volume-II ( a s

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applicable to the State of Har y ana) as on the date of retireme n t of the petitioner i.e. 30.06. 2 012, and pay the differenti a l amount, if any, to the petition e r along with interest at the rate o f 6% per annum from 31.08.20 1 2 till the date of actual payme n t, within a period of three mo n ths from the date of receipt o f certified copy of this order.

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(iv) In case of def a ult in compliance within t h e stipulated period, the interest payable shall stand enhanced t o 9% per annum for the period of further delay.

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