1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION WRIT PETITION NO.: 268 OF 2008 1. The State of Maharashtra. Through Secretary, Irrigation Department, Mantralaya, Mumbai-32. 2. The Supreintending Engineer, Beed Irrigiation Project Circle, Parli Vaijnath, Dist. Beed. 3. The Executive Engineer, Minor Irrigation (L.S.), Division Beed. 4. The Accountant General, Maharashtra-II, Nagpur. ... PETITIONERS VERSUS Vasant Raghavendra Bardapurkar, Age: 68 years, Occu.: Retired Sub Divisional Officer, New residing at Raghavendra Colony, Behind Datta Mandir, Ord Ausa Road, Latur. ... RESPONDENT *** Mr. K. J. Ghute Patil, A.G.P. for the Petitioners/ State. Mr. P. V. Mandlik, Senior Counsel i/b Mr. Amol Gandhi, Advocate for Respondent/ sole. *** 2 CORAM: S. B. DESHMUKH & S. P. DAVARE, JJ. DATED:- 19th NOVEMBER, 2009. ORAL ORDER: [Per Deshmukh, J.] 1. We have heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. This petition is filed on behalf of the State challenging the order passed by Maharashtra Administrative Tribunal (the Tribunal, for short) in Original Application No.303 of 2000, dated 16th August, 2007. 4. The Respondent was Applicant in the original application before the learned Tribunal. Present Petitioners were Respondents. We shall refer the parties in this petition, hereinafter, to their status in the original application as Applicant and Respondents respectively. Applicant in the original application made the following prayers: II) That, the Respondents be ordered to pay Rs.2,71,735/- towards the Death-Cum- Retirement Gratuity and pension with interest up to date and further interest at the same rate 3 till the realization of the amount in favour of the Petitioner at the most after deducting the amount of Rs.23330/- which is under dispute." 5. The learned Tribunal, after hearing the parties, allowed the application in part and directed the Respondents to pay interest at the rate of 10% p.a. from the date on which the departmental inquiry was concluded and finalised on 29th November, 2001, till the date of actual payment, pertaining to amount of Death-Cum-Retirement Gratuity. In para 9, the learned Tribunal directed the Respondents to make the payment of interest at the rate of 10% pa. on the amount of commutation value of Rs.2,36,354/- from 1st November, 1996 till the date of payment of the same to the applicant, along with payment of Rs. 900/-. 6. Few facts, which are not in dispute, we may list here in below: (a) The Applicant was working with Irrigation Department of the State of Maharashtra. (b) At the relevant time, the applicant was working as Sub Divisional Officer, Zilla Parishad, Kaij (according to both the learned counsel "a gazetted officer"). (c) The applicant was assigned the duty of supervision of 4 construction of Nagar Type Bandhara at three places in Kaij Taluka, district Beed. The construction of these three Nagar Type Bandhara was completed under the supervision of the applicant. (d) According to the applicant, on 24th July, 1989, there was heavy rain fall in Kaij Taluka, the maximum rain of 240-40 m.m. According to the applicant, at or around 24th July, 1989, part construction of Nagar Type Bandharas flown away. (e) There was Star Question in Maharashtra Legislative Assembly, over the quality of the construction work of Nagar Type Bandhara (percolation tank) under the control and supervision of the present Applicant. (f) Applicant's contention was that it was natural calamity. Report was directed to be submitted by the Executive Engineer (Quality Control), pertaining Kesapur Nagar Type Bandhara and / or percolation tank. (g) The applicant was served with the show cause notice along with the charge sheet. Said show cause notice, along with charge sheet, was also served to other three officers, according to the Applicant. However, we have no concern in the case on hand, pertaining to other three officers. 5 (h) The inquiry was concluded, inflicting punishment upon the applicant, for recovery of Rs.23,330/- and to withhold one grade increment for two years. This conclusion of inquiry and infliction of punishment upon the applicant indisputably is dated 29th November, 2001. (i) So far as charge sheet is concerned, it was furnished to the applicant on 23rd March, 1992. (j) Further inquiry was also directed on 3rd March, 1994. (k) Report was submitted on 1st July, 1998. (l) On 31st October, 1996 A.N. Applicant stands retired on superannuation. (m) The applicant served notice under section 80, with his grievance, on the Respondents. (n) The applicant approached the learned Tribunal by filing original application No.303 of 2000 on 22nd July, 2000. 7. Learned A.G.P., on behalf of the Respondents, at the out set submitted that the Applicant had been proved to be guilty for misconduct and punishment was inflicted upon him. He further submitted that the order impugned, passed by the learned Tribunal, did not take into account payment of provisional pension and deposit of amount. Interest is 6 directed to be paid by the State Government resorting to Rule 129-A and Rule 129-B, which is illegal. Senior counsel Mr. Mandlik for the Applicant submits that the order passed by the learned Tribunal is legal and proper. According to him, in para 7 and 8 of the order, learned Tribunal did consider the deposit of various sums, during the pendency of the proceeding. He also submits that the applicant is entitled for gratuity and pension, the day on which he stands retired on superannuation. He further submits that the delayed payment of death-cum-gratuity is on account of lapses on the part of the Respondent. He also refers Rule 129-A and 129-B. 8. At the out set, we would like to reproduce Rule No.27 of the Maharashtra Civil Service (Pension) Rules, 1982 [the Rules of 1982, for short], herein below: "27. Right of Government to withhold or withdraw pension. - (1) government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period, and also under the recovery from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave 7 misconduct or negligence during the period of his service including service rendered upon re- employment after retirement; Provided that the Maharashtra Public Service Commission shall be consulted before any final orders are passed in respect of officers holding posts within their purview: Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension shall not be reduced below the minimum fixed by Government. (2) (a) The Departmental proceedings referred to in Sub-rule (1), if instituted while the Government servant was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service. (b) The Departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, - (i) shall not be instituted save with the sanction of the Government. (ii) shall not be in respect of any event 8 which took place more than four years before such institution, and (iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) No judicial proceedings, if not instituted while the government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 130 shall be sanctioned. (5) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of sub-rule (1) of this Rule, ordinarily be made at 9 a rate exceeding one-third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule, - (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pension, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) Judicial proceedings shall be deemed to be instituted - (i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer of which the Magistrate takes cognizance is made, and (ii) in the case of civil proceedings, on the date of presenting the plaint in the Court." 9. This rule empowers the State Government, obviously by order in writing, to withhold or withdraw pension or any part of it, whether permanent or for specific period or also under the recovery of such pension, the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period 10 of his service including service rendered upon re- employment after retirement. Sub-rule 6 (a) is relevant for our purpose. It states that the department proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date. In the case on hand, charge sheet was furnished or served to the present Applicant on 23rd March, 1992. Thus, departmental proceeding has been instituted in the case on hand on 23rd March, 1992. It is another matter that the applicant attained superannuation and/ or retirement on 31st October, 1996 afternoon. Thus, in view of Rule 27, despite retirement, the State Government i.e. the Respondents proceeded with the departmental inquiry against the Applicant which resulted into punishment as we have noticed in the foregoing paragraphs. 10. Controversy amongst the parties is pertaining to Rule 129-A and 129-B of the Rules of 1982. Rule 129-A pertains to payment of interest on delayed payment of gratuity and Rule 129-B provides for the delayed interest on pension. Delayed payment of gratuity is concerned, sub-rule (1) of 11 Rule 129-A makes reference of authorisation. We are concerned with this chapter-IX. Chapter-X of the Rules of 1982 titles as "Determination and authorisation of the amounts of pension and gratuity". A look to this chapter shows that preparation of list of Government servant due for retirement to be prepared by every Head of the department. Such list shall be prepared every six months i.e. on 1st January and 1st July of each year. Sub-rule (3) of Rule 118 contemplates prompt information of retirement of a government servant other than by way of superannuation to the Audit Officer concerned as soon as the fact of such retirement becomes known to him. Preparation of pension papers, is contemplated under Rule 120. Under Sub-rule (1) of Rule 120 it is expected that head of office shall undertake the work of preparation of pension papers in specified form two years before the date on which government servants are due to retire on superannuation. Rule 121 lays down stages for completion of the pension papers. Completion of pension papers is provided under Rule 122. This rule is relevant for the reason that this rule obligates the Head of office who shall not later than six months before the date of retirement of the government servant see such completion of 12 pension papers. In other words, completion of pension papers obligates the Head of the office, six months before the actual date of retirement of the government servant on superannuation. Rule 126 contemplates provisional pension and gratuity. Sub-rule (6) of Rule 126 pertaining to pension of gratuity further provides that payment of provisional pension shall not continue beyond a period of six months from the date of retirement of government servant. This rule seems to be with an object that the pension papers to be prepared by the department concerned in view of these rules and amount of pension shall be determined. If for the reasons, which are considered in Rules of 1982, such determination of pension is not possible for the officers shouldered with the responsibility, Rule 126 provides provisional pension and gratuity to minimize the harassment to the government servant. Such provisional pension, however, is not contemplated for indefinite period of time. Sub-rule (6) (a) of Rule 126 puts an obligation on the officer concerned, not to make payment of provisional pension beyond the period of six months from the date of retirement of the government servant. Rule 126 (6) (a) also contemplates the final payment of pension and gratuity if 13 had been worked out by the officer concerned in consultation with audit officer before the expiry of the said period of six months. Directions are also needs to be given by the audit officer to the Head office to draw and disburse the difference between the final amount of gratuity and the amount of provisional gratuity paid under sub-clause (ii) of Clause (b) of Sub-rule (4), after adjustment, the government dues if any, which may have come to notice after the payment of provisional gratuity. Sub-rule (7) of Rule 126 lays down that if the final amount of pension and gratuity have not been determined by the head of the office in consultation with audit officer within a period of six months, referred to in clause (a) of sub-rule (6), the audit officer shall determine the final amount of pension and gratuity on the basis of available record and issue pension payment order immediately on the expiry of the period of six months. On the background of these provisions of Rule 126, Rule 127 speaks about the authorisation of pension and gratuity by the audit officer. This rule says that audit officer shall apply the requisite checks, record the amount enfacement in part II of form 6 and assess the amount of pension and gratuity and issue pension payment order not 14 later than one month in advance of the date of the retirement of the government servant, if the pension is payable in his audit circle. Thus, if the scheme of Chapter IX i.e. from Rule 118 to 128 is considered together, it can be seen that a meticulous procedure is provided for preparation of the various documents, determination of the amount of pension and gratuity to which the concerned government employee, is entitled. If these rules are considered, Rule 129-A contemplates the payment of such pension and gratuity, three months after the authorisation and/ or after such amounts became due. Learned senior counsel Mr. Mandlik upto some extent is justified in saying that the applicant is entitled for amount of pension and gratuity within reasonable time. However, we may notice that such payment is not contemplated on the date of retirement of any of the government employee. Word employed under Rule 129-A is "authorisation of the payment of gratuity". To understand the meaning of the word "authorisation", we have referred to Rule 118 till 128. Thus, three months period, after the date when the payment of such amount is due to the government servant is the period within which this Chapter-IX contemplates the determination and 15 payment of the amount of pension and gratuity. Later part of this Sub-rule (1) of Rule 129-A is most important in the case on hand. Later part of this Rule (1) of Rule 129 refers establishment of delay in payment due or amount payable to the government employee. This rule contemplate that if it is established that delay occasioned, in a given case, if attributable to the administrative lapses, interest provided under that Rule shall be paid beyond the period of three months. This rule 129-A is also appended with proviso which has been brought on statute book on 5th of May, 1990. This proviso lays down that no interest shall be payable if the delay in payment of gratuity was attributable to the failure on the part of the government servant to com,ply with the procedure laid down in this chapter. Another proviso is also there, to this Rule 129-A. It lays down that no interest shall be payable in the case in which the provisional gratuity is sanctioned. Learned A.G.P., on instructions from the officer concerned, makes a statement that in the case on hand provisional gratuity was not sanctioned. This proviso, brought on statute on 5th May, 1990, makes reference to the delayed payment of gratuity on account of failure on the part of the government servant to 16 comply with the procedure laid down in this chapter. . Thus, reading Rule 129-A as a whole coupled with its proviso, would show that delayed payment of gratuity, if attributable to purely administrative lapse, government servant is entitled for interest provided under Sub-rule (1) of Rule 129-A. This rule also refers failure on the part of the government employee. Needless to mention that for pension and gratuity purposes it is not the government department only to take steps and make appropriate orders. Equally, the participation of the government employee in such process is important. Various papers have to be signed and submitted by the Government employee in view of the Rules of 1982 and has to cope up with the procedure laid down. In the case on hand, the judgment of the learned Tribunal, makes a reference that provisional pension has been sanctioned by the department in favour of the applicant. We are, therefore, only considering alleged delayed payment of gratuity to the applicant. 11. It is apposite at this stage to refer to Maharashtra Civil Service (Pension) Rules of 1984 (hereinafter referred to as the Rules of 1984, for short). Rule3 (1) (c) defines "Death-cum-Retirement Gratuity" [DCRG], for short. It is 17 defined as the gratuity payable under sub-rule (1) of Rule 111 of the M.C.S. (Pension), Rules, 1982. Rule 5 for our purpose pointed out to us by the learned A.G.P. We quote herein below: 5. Limit on commutation of pension. (1) A Government servant shall be entitled to commute for a lump sum payment a fraction not exceeding one-third of his pension. (2) In an application for commutation in Form-A or Form-B or Form-C, as the case may be, an applicant shall indicate the fraction of pension which he desires to commute and may either indicate the maximum limit of one-third of pension or such lower limits as he may desire to commute. (3) If fraction of pension to be commuted results in fraction of rupee, such fraction of a rupee shall be ignored for the purpose of commutation. 12. Commutation for a lump sum payment, a fraction not exceeding 1/3rd of the pension is obligated by sub-rule (1) 18 of Rule 5. Subrule (2) of Rule 5 contemplates application for commutation in form-A or Form B or Form C as the case may be, by the government employee concerned. Such application shall be submitted by the government employee concerned, is the gist of subrule (2) of Rule 5. Thus, it is mandatory for the government employee concerned to submit such an application for commutation of pension. Form of the application is also appended to these rules. In the case on hand, on instructions, learned A.P.P. submits that such an application was prepared by the applicant on 4th of March, 2002 and has been submitted to the department/ respondents on 5th March, 2002. This ground is also taken by the learned A.G.P. in the petition, ground No.IV which has been read before us. Delayed payment of interest, if any, has to be considered not only within the parameters of Rule 129-A of Rules of 1982. In our view, Rules of 1982 in their entirety if applicable to a given case have to be conjointly read with Rules of 1984. None of the rules independently can be read or taken out of context by the party concerned. 13. Turning to the issue of alleged delayed payment of interest, in our opinion, alleged misconduct of the applicant 19 indisputably had resulted in infliction of punishment by the order which is quoted in the judgment of the learned Tribunal dated 29th November, 2001. This date is most important for the reasons that Rule 27 gives absolute powers / right to the State Government to withheld or withdraw pension. The date of retirement is also not in dispute. At this stage, it is apposite to refer to reply which is filed on behalf of the Respondent before the learned Tribunal. Copy of the said reply is on record, Exhibit-B, page 85, which has been sworn in by one Mr. Vilas Bansilal Kotecha, Assistant Engineer. In this reply, para 2, details have been furnished on behalf of the State, regarding the various amounts/ pensionary benefits paid to the applicant. In these details, item No.4 reveals that provisional pension was paid with effect from 1st of November, 1996 and onwards as per the order of Accountant General (A&B)-II, M.S., Nagpur. We may usefully record that date of retirement of the petition is 31st October, 1996. On 1st November, 1996 provisional pension was sanctioned. It is humanly impossible to expect more speed with the government machinery which we have noticed in this case. It is further made clear that though the provisional pension is sanctioned amount of D.C.R.G. was 20 not paid to him for the reason that departmental inquiry was on that day being conducted by the Superintending Engineer, Beed Irrigation Circular, Parali and was pending till 29th of November, 2001. 14. Order passed by the learned Tribunal makes reference of its own interim order. It is not in dispute that pending original application before the learned Tribunal, interim order was passed and some amount was directed to be paid. Said order was followed, executed on behalf of the Respondents. In the order passed by the learned Tribunal, para 6, details have been recorded by learned Tribunal. In those details, it has been stated that D.C.R.G. actually paid to the petitioner to the tune of Rs.1,86,450/-, the amounts which were deposited with the learned Tribunal they were deposited on various dates. Those dates have been quoted by the learned Tribunal in this para 6 itself. In substance, D.C.R.G. amount was deposited in learned Tribunal particularly on 19th April, 2001, 5th February, 2002 and 4th of March, 2002. So far as commutation of pension amount is concerned, details which have been recorded by the learned Tribunal, in para 6, shows that the amount worked out as on 19th April, 2001 was Rs.2,36354. Payment was 21 made to the tune of Rs.1,86,450k. On 5th February, 2002 an amount of Rs.51,594/- was also deposited with the Tribunal. Thus, total amount of Rs.2,28,195/- was the amount towards commutation of pension which was deposited in the learned Tribunal on behalf of the Respondents. Some adjustment of Rs.8,159/- is also mentioned, in this para 6. In these details, it has been further mentioned that Rs.900/- was to be returned to the applicant. These details are extracted by the learned Tribunal from the reply furnished by the Executive Engineer, Minor Irrigation (L.S.) Division, Beed. 15. Mr. Mandlik, learned senior counsel for the applicant, took us through para 7 and 8 of the judgment of the learned Tribunal. In these two paragraphs, learned Tribunal arrived at conclusion that there is administrative lapse on the part of the Respondents So far