STATE OF UTTAR PRADESH AND 2 ORS. Vs DHIRENDRA PAL SINGH
Bench: J. CHELAMESWAR,PRAFULLA C. PANT
Case number: C.A. No.-010866-010866 / 2016
Diary number: 31352 / 2016
Advocates: ARDHENDUMAULI KUMAR PRASAD Vs
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10866 OF 2016 (Arising out of S.L.P. (C) No. 33582 of 2016
(CC 18447/2016)
State of Uttar Pradesh and others … Appellants
Versus
Dhirendra Pal Singh …Respondent
O R D E R
Leave granted.
2. This appeal is directed against order dated 31.05.2016,
passed by the High Court of Judicature at Allahabad, in
Special Appeal Defective No. 408 of 2016, whereby the
intra-court appeal was dismissed affirming the order dated
10.12.2015 passed by the learned single Judge in Writ-A No.
49921 of 2015.
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3. Brief facts of the case are that respondent Dhirendra Pal
Singh was Assistant Store Superintendent with the Irrigation
Department of the State of Uttar Pradesh. He stood retired on
30.06.2009 on attaining the age of superannuation. At the
time of his retirement GPF, leave encashment and 70% of
gratuity and pension were cleared, but rest of the 30% of
gratuity and computation of pension were held up. The stand
of the appellants is that there were some discrepancies in the
stock in the store of the department and some enquiries were
going on as to loss caused to the public exchequer. After
making representations when the remaining amount of
gratuity and pension was not cleared, the respondent filed
Civil Suit No. 338 of 2012. However, the same was dismissed
as withdrawn as the appellants/State authorities, vide order
dated 23.07.2015 finally, on the basis of alleged discrepancies
withheld the remaining part of gratuity and pension of the
respondent and, vide order dated 06.08.2015, directed
recovery of Rs.7,26,589/-, from the retiral dues payable to the
respondent, which was challenged in the writ petition.
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4. There was no departmental enquiry initiated against the
respondent and after about more than six years order as to
finally withholding of remaining pension on the ground of
alleged misconduct and the recovery was directed to be made
from the respondent after serving a notice on him. Learned
single Judge of the High Court found that the orders
challenged in the writ petition cannot be sustained in law as
neither recourse of Article 351-A of UP Civil Service
Regulations was resorted to, nor any departmental enquiry
was held. Learned single Judge further directed that the
remaining amount of gratuity and pension of the respondent
shall be released with interest at the rate of 10% p.a. on the
sum withheld by the State authorities. The Division Bench, in
special appeal filed by the State, found no illegality in the
order passed by the learned single Judge.
5. We have heard learned counsel for the appellants and the
respondent.
6. Article 351-A of UP Civil Service Regulations reads as
under: -
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“351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement.
Provided that:
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment –
(i) Shall not be instituted with the sanction of the Governor,
(ii) shall be in respect of event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Explanation – For the purposes of this article –
(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and
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(b) judicial proceedings shall be deemed to have been instituted:
(i) in the case of criminal proceedings, on the date on which complaint is made, or a charge-sheet is submitted, to a criminal court; and
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to a civil court.”
7. Admittedly, no departmental enquiry was initiated in the
present case against the respondent for the misconduct, if
any, nor any proceedings drawn as provided in Article 351-A
of UP Civil Service Regulations. Learned single Judge of the
High Court has observed that the document which is the basis
of enquiry and relied upon by the State authorities, copy of
which was Annexure C.A.1 to counter affidavit filed in the writ
petition, itself reflected that the document showing
discrepancy in the stock was dated 26.12.2009, i.e. after
about more than five months of retirement of the respondent.
In the circumstances, keeping in view Article 351-A of UP Civil
Service Regulations, we agree with the High Court that the
orders dated 23.07.2015 and 06.08.2015 were liable to be
quashed and, to that extent, we decline to interfere with the
impugned order.
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8. Learned counsel for the appellants argued that the High
Court has erred in awarding interest at the rate of 10% per
annum on the sum due to the respondent. In this connection,
it is submitted that the suit was filed by the respondent only
in 2012 and that too was withdrawn.
9. We have considered the submissions of learned counsel
for the appellants and reply given by learned counsel for the
respondent.
10. In State of Kerala and others v. M. Padmanabhan
Nair1, this Court has held that pension and gratuity are no
longer any bounty to be distributed by the Government to its
employees on the retirement but are valuable rights in their
hands, and any culpable delay in disbursement thereof must
be visited with the penalty of payment of interest. In said case
the Court approved 6% per annum interest on the amount of
pension decreed by the trial court and affirmed by the High
Court. As to the rate of interest on amount of gratuity Section
7(3-A) of Payment of Gratuity Act, 1972, it is provided that if
the amount of gratuity payable is not paid by the employer 1 (1985) 1 SCC 429
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within the period specified in sub-section (3), the employer
shall pay, from the date on which gratuity becomes payable to
the date on which it is paid, simple interest at such rate, not
exceeding the rate notified by the Central Government from
time to time for repayment of long term deposits, as that
Government may by notification specify. It further provides
that no such interest shall be payable if the delay in payment
is due to the fault of the employee, and the employer has
obtained permission in writing from the controlling authority
for the delayed payment on this ground. In the present case,
there is no plea before us that the appellants had sought any
permission in writing from the controlling authority. As to the
delay on the part of employee, it has come on the record that
he made representations, whereafter he filed a suit in respect
of withheld amount of gratuity and pension. In Y.K. Singla v.
Punjab National Bank and others2, this Court, after
discussing the issue relating to interest payable on the
amount of gratuity not paid within time, directed that interest
2 (2013) 3 SCC 472
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at the rate of 8% per annum shall be paid on the amount of
gratuity.
11. In the light of law laid down by this Court, as above, and
further considering the facts and circumstances of the case,
we modify the impugned order passed by the High Court in
respect of interest directed to be paid on the amount of
withheld gratuity and pension. We direct that the appellants
shall pay interest at the rate of 6% per annum on the unpaid
amount of pension from the date it had fallen due and interest
at the rate of 8% per annum on the unpaid amount of gratuity
from the date of retirement of the employee.
12. With the modification, as above, in the impugned order
passed by the High Court, this appeal stands disposed of. No
order as to costs.
……………………………....J. [J. Chelameswar]
………………………..……..J. [Prafulla C. Pant]
New Delhi; November 15, 2016.