SCA/8945/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8945 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE ANANT S. DAVE ========================================= === 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= === MD TEKRIWALA - Petitioner(s) Versus DY SECRETARY & 4 - Respondent(s) ========================================= === Appearance : MR AD OZA for Petitioner(s) : 1, MR VIPUL MISTRY ASST. GOVERNMENT PLEADER for Respondent(s) : 1 - 5. MR DM AHUJA for Respondent(s) : 3, ========================================= === CORAM : HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 01/05/2008 ORAL JUDGMENT 1. This petition is filed under Article 226 of the Constitution SCA/8945/1999 2/6 JUDGMENT of India with the following main prayers:- “(B) Be pleased to hold that the impugned action of the respondents for not making payment of pensionary benefits is illegal and unjust and further be pleased to direct the respondents to pay interest at the rate of 18% from 1.5.1998 to 16.9.1999 and upto 3rd week of October'99 in case of leave encashment by way of issuing suitable writ, order or direction. (C) Be pleased to direct the respondents to pay immediately the lumpsum amount of Rs.50,000/- to the petitioner by way of interim direction during the pendency of this petition.” 2. Mr. Hemang Raval, learned advocate for the petitioner, submits that certain undisputed facts remained uncontroverted, which are as under:- 2.1. That the petitioner was initially appointed as Supervisor on 19.6.1967 with respondent No.3-Kheda District Panchayat and worked there till 1993. Thereafter, he came to be promoted as Deputy Executive Engineer with effect from 23.4.1993 and served respondent No.2 till retirement. 3. According to learned advocate for the petitioner, an application was submitted by the petitioner on 9.12.1997 for voluntary retirement which came to be accepted and vide order dated 23.4.1998 the petitioner was permitted to retire voluntarily from 30.4.1998. 4. That later on by an order dated 11.8.1999 pension payable to the petitioner was sanctioned after a period of about 1 year 4 months and subsequently other dues were also paid on 16.9.1999. Thus, there is a delay of about 1 year and 5 SCA/8945/1999 3/6 JUDGMENT months in payment of pension and other retiral dues for which interest is to be awarded in accordance with law. 5. Learned advocate Shri D.M.Ahuja, learned advocate appearing for respondent Nos. 2 and 3 submit that there are justifiable reasons for delay that may have caused in releasing the retiral dues to the petitioner. According to learned advocate appearing for the respondent Nos. 2 and 3, the respondents have made all efforts to see that pension papers of the petitioner are processed as early as possible and, therefore, after the order of voluntary retirement dated 23.4.1998 was passed on 10.6.1998 Director of Pension and Provident Fund i.e. respondent No.4 was requested to process the pension papers of the petitioner. However, on 3.9.1998 respondent NO.4 addressed a letter to respondent NO.2 that certificate of qualifying service of the petitioner was not attached. On 5.12.1998 the letter was addressed by respondent No.2 to respondent NO.1 i.e. Dy. Secretary, Narmada Water Resources & Water Supply Department, State of Gujarat for requisite original service book of the petitioner to be sent to respondent No.4. On 25.2.1999 certificate of qualifying service of the petitioner was sent by respondent No.2 to respondent NO.4. However, a reminder was submitted by respondent No.2 again on 30.3.1999 to process the pension papers of the petitioner as early as possible and ultimately on 11.8.1999 the order of pension of the petitioner was sanctioned and communicated to the petitioner by respondent No.2. The question about leave encashment of the petitioner was also decided after entering into correspondence with respondent No.1 and on 31.8.1999 leave encashment of 138 days to the petitioner was sanctioned and cheque was issued SCA/8945/1999 4/6 JUDGMENT in favour on 14.10.1999. 6. Shri Ahuja, learned advocate for the respondents submit that even in a case of retirement on superannuation by the employee of the Government as per Government Resolution dated 2.7.1986 ordinarily two years time is required for preparing pension papers and finalising the same, since case of the petitioner is of voluntary retirement and, therefore, process of finalising the pension was undertaken after the application of voluntary retirement was accepted by the authority and some time taken by the authority cannot be said to be a delay which deserves awarding of interest as claimed by the petitioner. 7. Mr. Hemang Raval, learned advocate appearing for the petitioner in a rejoinder submitted that the correspondence undertaken by the two departments of the State Government and time taken by them for processing and finalising the pension of the petitioner for which the petitioner cannot be blamed and even if reasonable time of three months is considered in the State authority in finalising the pension papers the petitioner is entitled for receiving interest on belated payment of retiral dues and, therefore, the claim of the petitioner is justified. 7.1. It transpires from the record of this case that by order dated 12.12.2000, this matter was admitted and respondent No.2 was directed to decide the case of the petitioner within eight weeks from the date of receipt of the order of the Court and further directed to place the decision on record with reasons if the same is adverse to the petitioner. Thereafter SCA/8945/1999 5/6 JUDGMENT affidavit-in-reply is filed justifying the delay in payment of retiral dues to the petitioner, which according to this Court cannot be said to be reasonable and well explained. 7.2. Having heard the learned advocates appearing for the parties, what transpires from the explanation of respondent No.2 and 3 is about furnishing relevant papers pertaining to rendering of qualifying pensionable service by the petitioner in the form of a certificate and original service book in furnishing the above two documents, the respondent authorities namely Nos. 1, 2 and 4 have taken about one year and the order of pension was passed on 11.8.1999 and, therefore, there is delay in sanctioning the pension for which the petitioner is not responsible at all and the delay is solely due to non-availability of the documents pertaining to service record of the petitioner. Even decision of the sanctioned leave encashment of 152 days was also delayed by one year and four months . In view of this, the above delay cannot be said to be reasonable and justifiable and non-furnishing of a certificate of qualifying service of pension and service book immediately i.e. atleast within one month from the date of accepting the application of voluntary retirement can be a reasonable period and beyond that, any time taken by the authority cannot be considered as a reasonable. The reliance placed on the Government Resolution of time given to the authority of two years for preparing pension papers is prior to the date of superannuation and not after the date of superannuation in the normal course and application made by the petitioner for voluntary retirement on 9.12.1997 and ultimately it was accepted and the petitioner was permitted to superannuate on 30th April, 1998 after four months and, therefore, sufficient time was given to the SCA/8945/1999 6/6 JUDGMENT authority to process the service record of the petitioner and having accepted the application for voluntary retirement respondents were duty bound to fix the pension and other retiral dues of the petitioner immediately and considering the law laid down by the Apex Court in this regard that pension is legal right akin to the right of the property and denial of such right or delay in disbursing the amount of retiral dues will attract reasonable rate of interest to be paid on such retiral dues and, therefore, considering the facts and circumstances of this case, I deem it just and proper to award interest @ 6% simple interest p.a. on the retiral dues namely pension and leave encashment till it is actually paid. The respondents to carry out the above said exercise within six weeks from the date receipt of the order of this Court and interest @ of 6% to be calculated from 10.6.1998 till it is actually paid. 8. The petition is allowed accordingly. Rule is made absolute with no order as to costs. 9. Direct service is permitted. [ANANT S. DAVE, J.] ///smita//