Ccs pension rule - interest on delayed payment of pension -
Vasudevan
(Querist) 06 March 2020
This query is : Resolved
Respected Learned Experts,
This is in continuation of my earlier query on interest on delayed payment of pension. The Competent Authority has rejected my claim for interest on delayed payment of pension stating that there is no rule provisions in the CCS Pension Rules. I had suffered a loss of nearly 2 lakhs as TDS deductions on the arrear pension. Had the pension be paid in time, I am not at all need to pay income tax as my total earning would less than 5 lakhs. Since the pension is being paid in arrears for 3 years, I am subjected for 20% Income Tax slab. Whether I am eligible for interest on delayed payment of pension? If so, please inform me the relevant rule provisions. Whether I am eligible for any compensation towards the TDS deductions and for mental agony? As I am preparing to appear before the CAT as party in person, I request kindly to give necessary input in the above stated facts.
Raj Kumar Makkad
(Expert) 06 March 2020
Punjab & Haryana High Court in the case of J.S. Cheema v. State of Haryana, 2014 (13) RCR (Civil) 355, had held that an employee will be entitled for the interest of an amount which has been retained by the respondents without any valid justification. The relevant paragraph of J.S. Cheema''s case (supra) is as under: -
"The jurisprudential basis for grant of interest is the fact that one person''s money has been used by somebody else. It is in that sense rent for the usage of money. If the user is compounded by any negligence on the part of the person with whom the money is lying it may result in higher rate because then it can also include the component of damages (in the form of interest). In the circumstances, even if there is no negligence on the part of the State it cannot be denied that money which rightly belonged to the petitioner was in the custody of the State and was being used by it."
Raj Kumar Makkad
(Expert) 06 March 2020
Court in the case of J.S. Cheema v. State of Haryana, 2014 (13) RCR (Civil) 355, had held that an employee will be entitled for the interest of an amount which has been retained by the respondents without any valid justification. The relevant paragraph of J.S. Cheema''s case (supra) is as under: -
"The jurisprudential basis for grant of interest is the fact that one person''s money has been used by somebody else. It is in that sense rent for the usage of money. If the user is compounded by any negligence on the part of the person with whom the money is lying it may result in higher rate because then it can also include the component of damages (in the form of interest). In the circumstances, even if there is no negligence on the part of the State it cannot be denied that money which rightly belonged to the petitioner was in the custody of the State and was being used by it."
KISHAN DUTT KALASKAR
(Expert) 06 March 2020
Dear Sir,
Without seeing your entire records it is very difficult to advise you on the issues raised by you. Better contact any local advocate who is expert in service matters.
Raj Kumar Makkad
(Expert) 06 March 2020
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Protik Prakash Banerjee
W.P. No. 9286 (W) of 2018
Rajpati
Vs.
State of West Bengal & Ors.
For the petitioner : Mr. Sandip Ghosh, Adv.
For the Respondents : Mr. Joynal Abedin, Adv.
Heard on : July 27, 2018
Judgement on : September 6, 2018
PROTIK PRAKASH BANERJEE, J.:
1. An apparently commonplace question has been brought before me in this challenge under Article 226 of the Constitution of India against non-payment of interest on delayed payment of gratuity amount and arrear pension.
2. The facts are not in dispute. The writ petitioner reached the age of superannuation on February 28, 2011 and therefore superannuated. Thereafter, he duly complied with all formalities to get all the benefits being in the nature of his fruits of labour. He also prepared and submitted his pension booklet to the proper authorities. Though the pension papers were sent to the concerned District Inspector of Schools, admittedly for no fault of the writ petitioner, the matter was kept pending for a long time. Ultimately, the pension payment order was issued only on July 22, 2011.Despite the said pension payment order being issued, the respondent authorities did not actually disburse the amount of such arrear pension and gratuity until October 25, 2011. They however, did not do their duty in the matter of timely releasing the pensionary benefits or paying interest at any rate, far less at the rate of 10% per annum, whether in terms of the Government Circular No.88-WBSE (B) dated May 26, 1988 or the Circular No. 641-F dated January 19, 2004, respectively. The writ petitioner due to financial stringency had to accept such delayed payment without any interest. The writ petitioner, thereafter, approached this court, when after repeated oral requests no action was taken on the part of respondent no. 2 to ensure disbursal of such interest.
3. Normally the duty to pay gratuity is statutory in India, at least ever since 1972, if a person can show he or she is an employee within the meaning of the Payment of Gratuity Act, 1972, in an establishment covered within the meaning of Section 1 of the Act of 1972. However, the situation is not as simple as that in case of "teachers". The petitioner, needless to mention, is claiming the retirement benefits including gratuity for his service as a teacher.
4. Even though in 1997 a notification was issued by the Central Government within the meaning of Section 3(1)(c) of the said Act of 1972 bringing educational institutions within the purview of the said Act of 1972, the question of the said welfare legislation being applicable even to teachers, traveled to the Hon'ble Supreme Court. This was in the case of Ahmedabad Private Primary Teachers' Association--v-- Administrative Officer and Others, reported in (2004) 1 SCC 755. At paragraphs 24, 25 and 26, the Hon'ble Supreme Court was pleased to hold, as follows: -
"Paragraph 24: ...The teachers are clearly not intended to be covered by the definition of employee."
"25. The legislature was alive to various kinds of definitions of the word "employee" contained in various previous labour enactments when the Act was passed in 1972. If it intended to cover in the definition of "employee" all kinds of employees, it could have as well used such wide language as is contained in Section 2(f) of the Employees' Provident Funds Act, 1952 which defines "employee" to mean "any person who is employed for wages in any kind of work, manual or otherwise, in or in connection with the work of an establishment ...". Non-use of such wide language in the definition of "employee" in Section 2(e) of the Act of 1972 reinforces our conclusion that teachers are clearly not covered in the definition."
"26. Our conclusion should not be misunderstood that teachers although engaged in a very noble profession of educating our young generation should not be given any gratuity benefit. There are already in several States separate statutes, rules and regulations granting gratuity benefits to teachers in educational institutions which are more or less beneficial than the gratuity benefits provided under the Act. It is for the legislature to take cognizance of situation of such teachers in various establishments where gratuity benefits are not available and think of a separate legislation for them in this regard. That is the subject-matter solely of the legislature to consider and decide."
5. Therefore, the Hon'ble Supreme Court has been pleased to lay down the law that despite the notification of 1997, "teachers" are not covered by the provisions of the Payment of Gratuity Act, 1972. However, in several States as in 2004, there were several rules and regulations governing payment of gratuity to the teachers. These would continue to operate in those States, where they are available. In case of such establishments where the benefit of gratuity is not available to teachers, the Hon'ble Supreme Court was pleased to hold that the competent authority to take cognizance of it was the Legislature, which was to make appropriate legislation - till then, in such establishments naturally, no benefit of gratuity for teachers would be available.
6. Thankfully, in West Bengal, we have had schemes or rules for granting such benefit of gratuity to teachers and these were in operation when the Hon'ble Supreme Court was pleased to deliver the judgement in the case of Ahmedabad Pvt Primary Teachers' Association (supra). I will briefly summarize the said extant schemes/rules in West Bengal, hereinbelow.
(i) "Recognised Non-Government Secondary Institution Pension Rules", which were in the nature of a scheme framed by the respondent no.1 by way of Memorandum No. 2156-Edn(s)I- E-14/67 dated September 20, 1967. These Rules applied to permanent employees (both teaching and non-teaching) serving in a recognised Non-Government Secondary Institution participating in the Grant-in-Aid Scheme. These Rules came into force on and from 1st April, 1966. Terminal benefits included Contributory Provident Fund with employers' contribution at the rate of 6 1/2 % of basic pay and pension (including Special Pay, if any) for every completed year of service upto a maximum of 30/120th of the pay. This rate was much below the rate granted to the Government School pensioners being 33/80 of such average pay.
(ii) Contributory Provident Fund-cum-Pension Scheme and "Rules regarding Payment of Pension, Gratuity etc. under West Bengal (Rural) Primary Education Act, 1930. For Primary Teachers. (G.O. No.485-EDN(P) dated March 25, 1968 and G.O. No.2299-EDN(P) dated December 12, 1972).Persons who retired from service prior to April 1, 1981 will get pensionary benefit under these Scheme/Rules. (Also see 11 & 12).
(iii) Thereafter, the State Government in terms of Finance Department's Resolution No. 9716-E dated 16th November 1977 set up a 2nd Pay Commission to consider and recommend the pay-structure and pensionary benefits of the teaching and non-teaching employees who are then in active service in the different Non-Government Educational Institutions and the said Pay Commission by its report dated 15th October 1980 recommended certain pay-scales, and pensionary benefits for teaching and non-teaching of all recognised Government and Non-Government Institutions in West Bengal. The State Government on the basis of the recommendation of the said Pay Commission by its Memorandum No. 139-Edn. (B) dated 15th May 1985, inter alia, provided that retirement benefits at the rates prescribed in the West Bengal Recognised Non-Government Educational Institution Employees (Death-Cum-Retirement Benefit) Scheme, 1981 will be admissible to all whose services are approved as teaching and non-teaching employees of the Non Government Institutions who were in active service on or after 1st April 1981. Pensioners who retired from service prior to 1st April 1981 will not get these benefits.
(iv) This was challenged on the ground of being discriminatory so far as those who had retired prior to April 1, 1981 were concerned. In the case of Non-Govt. School Pensioner's Association and Another--v--State of West Bengal and Others, reported in (1989) 2 CHN 225, relying upon the decision of the Hon'ble Supreme Court in D.S. Nakara--v-- Union of India reported in AIR 1983 SC 130, a coordinate bench of this Court held that "that the pensioners formed one class and there is no basis for making classification between the pensioners who had retired before or after a particular date and that the persons who have retired earlier were entitled to get the benefit of the Notification under which the pensions have been revised at the enhanced"
and further that in respect of the said writ petition, "The revised pensionary benefits must be extended to all persons who have retired before 1.4.81 and in the matter of computation of pensionary benefits, all other benefits which have been given to the persons who have retired after 1.4.81 should also be given to the persons who have retired before 1.4.81 and their pensionary benefit should be computed and paid accordingly".
(v) In terms of the said Scheme of 1981, the Scheme is applicable to the employees of State Government Sponsored or aided educational Institutions (excluding D.A. Getting schools) as indicated in Statement-I of G.O. No.136-EDN(B) dated May 15, 1985. The writ petitioner's husband belonged to a school which was covered under the said scheme.
(vi) The said scheme, moreover, made it clear that the Pension Sanctioning Authority in case of all but primary schools and junior basic schools, covered by it was the District Inspector of Schools (Secondary Education) and the Audit Officer and authority for issuing the Pension Payment Order was the Director of Pension, Provident Fund and Group Insurance or any officer authorized by him. However, for revision of retirement benefits, the appropriate authority is the Director of School Education, who is to be approached through the concerned District Inspector of Schools.
(vii) Effect was given to the order of the coordinate bench referred to in sub paragraph (iv) above, by way of G.O. No.163- EDN(B) dated June 15, 1990 the retirement benefits as provided for in the W.B. Recognised Non-Govt. Educational Institution Employees (Death-cum-Retirement Benefits Scheme, 1981 has been extended to the Teaching and non- teaching employees of the non-Government Educational Institution and Organisation covered by the said Scheme who retired prior to April 1, 1981 subject to refund or adjustment of employer's share of Contributory Provident Fund with interest, and also subject to due adjustment of Pension and ex-gratia increases as were or are being drawn by such pensioners.
(viii) The Memorandum dated May 26, 1998 which is a scheme for payment of pension and gratuity on the date of superannuation to the employees of West Bengal Recognized Non-Government Educational Institutions.
(ix) The effect of this Memo has been succinctly stated in paragraphs 9, 10, 11 and 12 of the judgment of a coordinate Bench in the case of Satya Ranjan Das--v--State of West Bengal and Others reported in (2007) 3 Cal LT 531 (HC), which I respectfully follow. Paragraph 8 of the said Memorandum has been quoted in paragraph 10 of the said judgment. The coordinate bench has been pleased to emphasize that for settling pensionary claims, with a view to handing over the copy of the Pension Payment Order, including Gratuity and Commuted Value of pension where applicable, on the date of superannuation of an employee as defined in paragraph 5(k) of the scheme, the scheme inter alia provides for the specified authorities being liable for disciplinary action, quite apart from the requirement of the Government to pay amounts additionally by way of interest for delayed payment of retiring benefit for employees.
7. The above memoranda/schemes having the force of law, as interpreted by the coordinate benches, bind me. Particularly, the succinct statement of law and the ratio in the case of Satya Ranjan Das (supra) makes it clear that the respondent no. 1 is required to hand over the Pension Payment Order including gratuity and commuted value of pension where applicable, on the date of superannuation itself such that the pensioner concerned appears before the Treasury Officer and produces his copy of the pension payment order and "No Liability/Liability Certificate" issued by his appointing authority/head of the institution, and thereafter in terms of clauses 6, 6.1, 6.2, 7 and 8 the amount is to be disbursed immediately after making the recoveries, if any, and if there is any delay in making over the copy of the Pension Payment Order or in the process not attributable to the petitioner/pensioner, then the Government would be liable to pay interest from the date of superannuation till the date of actual disbursement.
8. In fact, I am fortified in my view about the principles which operate behind the desirability of awarding interest on such delayed disbursement of retirement benefits such as gratuity, though in a case where the statutory liability was being considered, by the judgment of the Hon'ble Supreme Court in the cases of State of Kerala and Others--v-- M. Padmanabhan Nayyar reported in (1985) 1 SCC 429 and also H. Gangahanume Gowda--v--Karnataka Agro Industries Corporation Limited reported in (2003) 3 SCC 40 (paragraph 7) where it was held: - "Payment of gratuity with or without interest as the case may be does not lie in the domain of discretion but it is a statutory compulsion. Specific benefits expressly given in a social beneficial legislation cannot be ordinarily denied. Employees on retirement have valuable rights to get gratuity and any culpable delay in payment of gratuity must be visited with the penalty of payment of interest"
9. That leaves only the question of the rate at which such interest on the delayed payment of gratuity ought to have been paid. If the Act of 1972 had been applicable, it would not have been difficult to ascertain the rate. This is because Section 7(3A) of the Act of 1972 also specifies that this shall be simple interest, not exceeding the rate notified by the Central Government from time to time for repayment of long term deposits as "that" Government, which is to say the Central Government may, by notification, specify. This too, is capable of being made certain.
10. It appears that the Central Government has issued a notification under Section 7(3A) of the Act of 1972. This is the Notification under Section 7(3A) S.O-874, which reads as follows: - "In exercise of the powers conferred by sub-section (3A) of Section 7 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specifies ten percent per annum as the rate of simple interest payable for the time being by the employer to his employee in cases where the gratuity is not paid within the specified period. This notification shall come into force from the date of its publication in the Official Gazette."
11. However, as already noticed above, the Act of 1972 does not apply to the present case. Still, the rate which the Central Government has fixed, being 10% per annum, seems to be reasonable in the circumstances, if for nothing else then because in the case of the Memo dated May 26, 1998 where only 8% simple interest per annum was awarded, there was also a direction for recovery from the delinquent officials, but in the equally binding judgments referred to below such directions were not given. In order to give effect to the scheme and to ensure that distributive justice is actually done and not merely pretended to be done, it is open to the court to enforce the scheme strictly, and both award interest at a slightly lower rate, ensure that disciplinary proceedings are taken against the erring officials and ensure recovery from the delinquent employees for whose fault the delayed disbursement of the retirement benefits occurred, or, in the alternative, to ensure that the benefit under the welfare scheme is delivered to the pensioner or his family, with interest for the delayed payment off-setting the privations caused by the delay without being unduly harsh to the employees for whose benefit the delay occurred.
12. My judgment will not be complete unless I refer to a few other judgments, which the Learned Advocates habitually use. These are resorted to by rote, taking help of formats and copying and pasting writ petitions in similar matters which have succeeded, sometimes without even changing the gender or the dates which necessarily differ from case to case. These writ petitions - including the present one - do not even refer to all the above schemes/administrative orders or guidelines or rules (as they are called) as I have referred to in paragraph 6 above. a. The Judgment and Order dated March 28, 2005 passed in FMA No.720 of 725 of 2004, which was seminal in nature in the sense that the respondent no. 1 had carried the order of a Learned coordinate bench in appeal not because in law the order for payment of interest on delayed payment of gratuity could not be passed, but because of two reasons: - the coordinate bench had mooted the question of fixation of pecuniary responsibility on the officer for whom such delay had occurred and because the rate of interest of 10% was held to be excessive. It does not appear that there was any discussion on why the rate of interest was found to be payable or reasonable. There, the parties signed minutes agreeing to a rate of simple interest of 10% rather than 18% as awarded by the coordinate bench and on the basis of such compromise and concession which bound the parties, the order for payment of interest on delayed payment was passed. This compromise was accepted by the Hon'ble Division Bench as being fair. This, with respect, is not a binding precedent so far as other cases are concerned, even if they raise similar questions of facts and law, simply because the order passed by the Hon'ble Division Bench was passed on compromise, and unless the respondent no. 1 compromises in each case such an order cannot be passed in every case.
b. This was followed, however, in the case of Sri Satya Narayan Singh--v--The State of West Bengal and Others [WP No.23226 (W) of 2010], and a connected batch of cases, by a coordinate bench of this court by its order dated December 3, 2012. There, His Lordship was pleased to hold that the said order dated March 28, 2005 had achieved finality since none had appealed against it - which could not have been preferred, since it was passed on consent - and because His Lordship had no reason to take a different view. With the greatest possible respect, I cannot subscribe to a view which was taken by the Hon'ble Division Bench on the basis of a compromise only because it appears to me to be fair and I do not want to differ from it - when in the case before me, no compromise was recorded.
c. The other case I would like to refer to is the case of Abha Acharya--v--State of West Bengal and Others, [W.P. No.10750 (W) of 2007) and a batch of other cases, decided on July 1, 2008, which does not appear to have been reported anywhere, but which the Learned advocates for the petitioners habitually cite before me. It is of a coordinate bench. There, after considering all the judgements cited before the coordinate bench, His Lordship was pleased, after holding that though the judgment dated May 28, 2005 may not strictosensu apply in that case, nonetheless taking into consideration the overall scenario and also taking into consideration the facts and circumstances involved in those cases, the coordinate bench was pleased to take the view that 10% interest would sub-serve the ends of justice.
d. I would like to specially mention the case of Mohan Chandra Halder--v--State of West Bengal and Others [W.P. No.30624 (W) of 2008], and a batch of related cases,apparently unreported as yet, but which was decided on May 14, 2009 and which sought to consider most of the coordinate bench decisions so far, and also judgments of the Hon'ble Supreme Court. I will try to classify the questions decided therein according to broad heads, answers whereto I shall also summarize below: -
(i) Whether in a case where the demand for payment of interest on gratuity was made by way of a writ petition more than three years from the date of receipt of gratuity, the writ court should at all interfere on the ground of delay and laches?
The answer to this was that the decisions relied upon by the respondents in those cases were on the basis of unexplained delay and where the delay was explained, those decisions did not automatically disentitle the writ petitioner from approaching the writ court even beyond three years; further the coordinate bench held that none of the decisions of the Hon'ble Supreme Court relied upon disentitled a petitioner from obtaining a relief even after long delay where the wrong complained of was a continuing wrong, that is to say, a wrong which was not completed on the day it occurred, but continued from day to day; this was subject to the important caveat, that if third party rights were created during the delay, then the writ petition would not be entitled.
(ii) Whether in a case where demand for justice had not been made any writ petition in such a case for interest on delayed payment of gratuity ought to be entertained?
Here too, after reviewing the authorities the coordinate bench held this was a mere procedural formality and this could be dispensed with even where Mandamus had been sought, provided such notice is unlikely to serve any purpose and would be an idle formality, and failure to have served such a notice demanding justice would not be fatal for maintaining the writ petition.
(iii) On merits it was held by the coordinate bench that unless the authorities could show that the receiving of gratuity amount or disbursement of gratuity amount was held up for some specific negligent acts on the part of the claimants and the said sum could not be paid on the date of superannuation or at any later date, then it would be permissible for the said authority (to) decline payment of interest. In the case of Mohan Chandra Halder (supra) the coordinate bench also directed the respondent authorities to pay interest at the rate of 10% (simple) per annum from the date of superannuation of the petitioner/concerned employee where the legal representative had petitioned the court, in each individual case, till the date of disbursement.
(iv) I respectfully record my concurrence with the said judgement.
e. The decision of a coordinate bench in the case of Niranjan Kumar Mondal--v--The State of West Bengal and Others, reported in (2012) 1 WBLR (Cal) 903which relied upon a Bench decision in the case of Padma Rani Thakur--v--Secretary Department of Home, reported in (2007) 1 Cal LJ (Cal) 21: (2007) 1 WBLR (Cal) 584when a similar question of delay was raised in the matter of the defaulting respondents who had not paid the death-cum- retiring gratuity within due period, to hold (at paragraph 7 of the West Bengal Law Reporter) as follows: -
"One cannot be unmindful about the fine distinction between violation of one's ordinary legal right and infringement of one's fundamental right guaranteed under Part III of the Constitution. When a person comes to a Court under Article 226 of the Constitution of India alleging violation of his ordinary legal right, the Court may refuse to grant relief to a party if he does not approach the Court with all promptitudeness. However, if fundamental right of a citizen is infringed, can the High Court refuse to enforce fundamental right guaranteed to a citizen only on the ground of delay? The Division Bench of this Hon'ble Court, in the case of Padma Rani Thakur vs. Secretary, Department of Home; reported in 2007 (1) CLJ (Cal) 21, held that when in a writ application, a citizen alleges infringement of his fundamental right guaranteed by our Constitution at the instance of a State, and if such infringement is actually proved, a writ Court should not dismiss such an application on the ground of delay. The said conclusion was arrived at by following a settled principle of law which declares that there can be no loss of fundamental right on the ground of non-exercise of such right"
While I respectfully agree with the conclusion of the coordinate bench, I must add that this judgment does not dispense with the requirement to explain the delay in filing the writ petition since an equitable relief under Article 226 of the Constitution of India is being sought.
f. I also repeat that I have relied largely on the decision in the case of Satya Ranjan Das--v--State of West Bengal and Others reported in (2007) 3 Cal LT 531 (HC)referred to in paragraph 6(ix) of this judgment,for the interpretation of the Memo dated May 26, 1998 and the date from which gratuity and other pensionary benefits become payable to a teaching staff in an educational institution. g. I now turn to the judgments of the Hon'ble Supreme Court which the parties have relied upon.
h. Coming first to the case of S.K. Dua v. State of Haryana, reported in (2008) 3 SCC 44, I notice that this was an appeal to the Hon'ble Supreme Court against an order of dismissal of a writ petition claiming interest on delayed payment on retirement benefits other than provisional pension, in limini on the ground of an effective alternative remedy before the learned civil court. At paragraph 14, their Lordships were pleased to hold as follows: -
"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."
The ratio of the decision, as I understand it, is that if there are no statutory rules or administrative instructions, guidelines or norms, then the writ petitioner may claim benefit of interest on that basis. However, in the absence of the aforesaid, an employee may claim interest under Part III of the Constitution of India under Articles 14, 19 and 21 of the Constitution of India. In a case covered under administrative instructions or "rules" or "schemes" having a statutory flavour as in West Bengal and as I have discussed in paragraph 6 of this judgement, as interpreted by successive coordinate benches, I do not see how this case can help the writ petitioners, because they are asking for what has become their right on interpretation of that which has the force of law. Of course, I respectfully follow the ratio that retirement benefits are not in the nature of a bounty.
i. I come to the case of Union of India v. Tarsem Singh, reported in (2008) 8 SCC 648. This was a case where the employee concerned had sought only in 1999 that disability pension be paid to him with effect from the date he was invalidated out of the army on the ground of disability, on November 13, 1983. While allowing the appeals of the Union of India, holding categorically at paragraph 8 that the delay of 16 years would affect the consequential claim for arrears and that the High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest, and that it ought to have restricted the relief relating to arrears to only three years before the date of the writ petition, or from the date of demand to the writ petition whichever was lesser, and that it ought not to have granted interest on arrears in such circumstances, the Hon'ble Supreme Court was also pleased to lay down the following as law in paragraph 7: -
"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
j. I have understood the above judgements as the coordinate bench did in the case of Mohan Chandra Halder (supra), to the effect, that in case no third-party rights have accrued in a service matter, such as pay fixation/refixation or as recovery of arrears for a past period, it is a continuing wrong and relief may be granted even if there is long delay in seeking the remedy. However, even in this judgment which the petitioners brandish like a sword cutting through the question of aiding the dormant instead of the vigilant, the Hon'ble Supreme Court has not been pleased to lay down that the delay is not required to be explained in a petition under Article 226 of the Constitution of India, if it is beyond the period of delay held ordinarily to be reasonable had this been a money claim under statute.
k. In fact, I find sustenance in the decision of the Hon'ble Supreme Court rendered by a strong Bench, of Bench Strength 5, in the case of State of M.P.--v--Bhailal Bhai, reported in AIR 1964 SC 1006 where their Lordships were pleased to hold, inter alia: -
"17. At the same time, we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution."
13. As a result of the aforesaid I hold that arrear pension and gratuity must be paid within the time mentioned in paragraph 7 of this judgment, which is to say on the date of superannuation or at best within 24 hours thereafter, subject to the procedure mentioned in the Memo dated May 26, 1998 as referred to and interpreted in the case of Satya Ranjan Das (supra)cited in paragraph 6(ix) of this judgment and if not paid, it will carry simple interest at the rate of 10% for the reasons mentioned by me in paragraph 11 of this judgement from the date when it became payable till the date it is actually disbursed, and a claim for such benefit may be made by way of a writ petition even without a demand for justice, even after a long period, but if it is beyond three years, it must be explained adequately in the petition for it to be considered reasonable in the circumstances of the case. I also hold that in a case where the writ petitioner has pleaded and established that he had no source of income or livelihood apart from his salary and after superannuation, his pensionary and other retirement benefits, the amounts payable to him on such counts were not merely property but also formed a part of his life and thus non-payment was a violation of a right under Part III of the Constitution of India, being Article 21 of the Constitution of India, which cannot be lost and can be enforced on explaining the delay to the satisfaction of the court. This explanation is not on the ground of limitation as in case of an ordinary legal right, but only so as to satisfy the conscience of the court that it is not aiding one who is not acting equitably.I also hold that the claim for interest on delayed payment of gratuity is a right under that which has the force of law, even in case of employees of non-government schools which the State has recognized.
14. The respondent no. 2 and the concerned treasury officer being the respondent no. 4 and the state government, being the respondent no. 1 through the respondent no.2 are bound to pay the writ petitioner simple interest at the rate of 10% per annum on the delayed payment of the retirement benefits, in this case, arrear pension and gratuity, till the date of its disbursement. In default of the respondent no.1 in making payment of such interest within four weeks from communication of this order, in addition to whatever other relief the writ petitioner may have whether by way of moving the court under Article 215 of the Constitution of India, or otherwise, the respondents shall be liable to make payment of additional penal simple interest at the rate of 2% per annum on the sum due as on today on count of such interest for delayed disbursement.
15. The writ petition is allowed as above. There shall be no order as to costs. Urgent photostat certified copy of the present order shall be made available on the usual undertakings.
(PROTIK PRAKASH BANERJEE, J.)
Raj Kumar Makkad
(Expert) 06 March 2020
You have every right to get the interest on delayed payment of the arrears of the pension as held in both the aforesaid judgments which have relied upon the settled proposition of Hon'ble Supreme Court of India.
Vasudevan
(Querist) 07 March 2020
Much obliged with the guidance and quotations of the Learned Expert Rakkumar Makkad. I once again thanks one and all the Learned Experts who had guided me for all my queries.
Dr J C Vashista
(Expert) 08 March 2020
I agree with the advise of expert Mr. Raj Kumar Makkad,
Vasudevan
(Querist) 08 March 2020
My sincere thanks to learned Rajkumar Makkad and Dr. J.C. Vashista.
Rajendra K Goyal
(Expert) 11 March 2020
Well guided by the Expert Sh. Raj Kumar makkad ji. Agree to it.
If you have received the arrears of pension, you can file form 10E of Income Tax and get relief of Tax u/s 89(1) of Income Tax. Tax has to be recalculated for years for which pension belongs.
Vasudevan
(Querist) 11 March 2020
Much obliged for the advice of Learned Expert Shri Rajenda K Gpyal
T. Kalaiselvan, Advocate
(Expert) 21 March 2020
I agree with the views expressed by expert Shri Rajendra Goyal Sir in connection with the claim for relief of income tax and can claim refund of the TDS paid in bulk for the arrears of pension.
However if minutely noted, the pension itself was sanctioned as late as the time when the arrears of pension amount paid, hence in my opinion until a proper clarification is made on this it the referred citation/judgment may not be applicable to this situation.
The citation referred to herein above may be applicable for the interest to be paid after the pension amount was approved and the PPO was made available to the pensioner, hence the court has passed the orders to pay interest on the arrears of pension fro the date of issue of PPO and not from the date of the pension that became due, I am not sure if my opinion is right or incorrect, but this is what I observed in this case in the given situation, may be my opinion may be incorrect.
