IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 16-09-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION No.14658 OF 2008 S.Narayanasamy ... Petitioner -vs- 1.The Registrar General, High Court of Madras, Chennai-600 104. 2.The Accountant General (A&E), 361, Anna Salai, Teynampet, Chennai-600 018. 3.The Tamil Nadu Housing Board, through its Managing Director, Chennai-35. ... Respondents (R3 impleaded as per Suo motto order dated 29.7.2008 in W.P.14658/08 and M.P.1/2008 by SJMJ & VDPJ Petition under Article 226 of the Constitution of India, praying for issuance of a writ of mandamus. For petitioner : Mr.R.Singaravelan, for Mr.M.Vijayakumar. For respondent 1 : Mr.A.Jenasenan For respondent 2 : Mr.P.Chandrasekar, Senior Central Govt.Standing Counsel. For respondent 3 : Mr.A.Vijayakumar https://hcservices.ecourts.gov.in/hcservices/ O R D E R V.DHANAPALAN,J. Petitioner has filed this Writ Petition, praying for a direction to the respondents to pay Death-cum-Retirement Gratuity of Rs.2,00,000/- with interest at 18% per annum. 2. Petitioner was working in the office of the High Court as a Court Officer and he retired on attaining the age of superannuation on the afternoon of 31.01.2007, pending disposal of the complaint given by one Raja, Advocate, regarding the owning of a house by the petitioner. First respondent has not taken any action to find out whether the so called complaint is genuine. Petitioner has given an application for sanction of pension on 07.12.2006 and after sanctioning the eligible pensionary benefits of pension, family pension, DCRG, communication etc., the first respondent has forwarded pension proposal on 20.07.2007 to the second respondent for issuance of necessary authorisation after the retirement of the petitioner on 31.01.2007. Second respondent has returned the above proposal on 31.08.2007 stating to send the proposals again along with the final order against the complaint made in the retirement order, dated 31.01.2007. First respondent has retransmitted the pension proposals again in ROC No.7533/2006/Estt.2, dated 29.10.2007, and the second respondent authorised the amount of gratuity of Rs.2,51,969/- by withholding an amount of Rs.2,00,000/- and net gratuity payable at Rs.51,969/-. Petitioner received the net gratuity amount of Rs.51,969/- on 12.03.2008 i.e., after a delay of more than a year of retirement of the petitioner, dated 31.01.2007. 3. Regarding the alleged construction of the house, the petitioner has furnished his reply for the particulars sought for by the first respondent and the first respondent also forwarded the pension proposals for issuance of authorisation with the certificate of "No disciplinary/vigilance enquiry is pending" against the petitioner to the second respondent, informing that based on the allegation, the Revenue Officer, Tamil Nadu Housing Board, had addressed to the Government to issue orders for collection of penal rent from the petitioner at Rs.3,750/- per month for the rental quarters occupied by the petitioner from the date of completion of construction of house to 07.11.2001 and Rs.7,500/- per month from 08.11.2001 to 07.05.2002 (date on which vacating the quarters) as per G.O.454, since the petitioner has constructed the house in his wife's name in the year 1999. The house has been constructed by the father-in-law and not by the petitioner. Without knowing the actual date of completion of the house and without knowing who has constructed the house, it is impracticable to withhold the amount of https://hcservices.ecourts.gov.in/hcservices/ Rs.2,00,000/-. Hence, the decision to withhold the amount of Rs.2,00,000/- from the gratuity of the petitioner is arbitrary, unlawful and mischievous. There is no request and there cannot be a request by the Housing Board to withhold a sum of Rs.2,00,000/-, since the actual date of completion of the house is not known. The order of withholding the above amount without any legal basis is, therefore, unlawful and a nullity in law. Hence, this Writ Petition. 4. First respondent has filed a counter, stating as follows : 4.1. Writ Petitioner entered into Government service on 15.04.1975 and while he was working as Section Officer, Tamil Nadu Administrative Tribunal, Chennai, he was appointed by transfer as Section Officer in the Madras High Court service on forenoon of 15.11.2006. In view of the abolition of the said Tribunal by orders of the State Government, it was ordered to transfer certain category of staff members of the defunct tribunal to the High Court with the sanctioned posts in which they were functioning in the said Tribunal. Petitioner has been permitted to retire on superannuation on afternoon of 31.01.2007, by the High Court's Official Memorandum in Roc.No.7533/2006/Estt.II, dated 31.01.2007, pending disposal of the complaint by one Raja, Advocate, Madras, against the petitioner. Petitioner was under the control of the Registry for the period of 2 ½ months at the fag end of his service, before his retirement. 4.2. In the counter, the following grounds have been stated for withholding the gratuity of the petitioner : A copy of the letter, dated 21.12.2006, from the Deputy Secretary to Government (AR), P & AR Department, Tamil Nadu Administrative Tribunal, Chennai, addressed to the Secretary to Government, Personnel and Administrative Reforms Department, Chennai, has been received by the Registry on 29.12.2006, which revealed that the Tamil Nadu Housing Board had addressed the Government for issuance of necessary Government Orders for recovery of penal rent from the date of completion of the house constructed by the writ petitioner in his wife's name till the date of vacation of the Government quarters occupied by the him while he was in service in the Tribunal as Section Officer. The rate of penal rent was also intimated in the above said letter. Since the date of completion of the house in the name of the wife of the petitioner could not be ascertained by the Tamil Nadu Housing Board, the quantum of penal rent to be recovered from him was not arrived at by the Board. The enquiry conducted by the Assistant Registrar, Tamil Nadu Administrative Tribunal, Chennai, to ascertain the date of completion of construction of the house in question ended in vain. The attempt of the enquiry officer to collect copies of connected documents from State Bank of India, Nanganallur Branch, from where housing loan was availed to construct the house in question in the name of the petitioner's wife was also not successful, as the said bank refused to disclose the particulars without the consent of the customer, in https://hcservices.ecourts.gov.in/hcservices/ the absence of the order of the competent court. The petitioner maintained the stand that the house in question was constructed by his father-in-law in his wife's name; that as he had not extended any contribution from his own source, he had no obligation to get permission from the competent authority and that as he had not constructed the house, his occupation in the Government Quarters was not against any law. However, the petitioner, in his letter, dated 07.05.2007, addressed to the registry, had stated that the construction of the house was completed in May 2002 and for establishing the said fact, he stated that he had no documents with him in support of the same and he was also not in a position to collect the same from his father-in-law. Hence, the High Court, in its letter, dated 20.07.2007, forwarded the pension papers of the petitioner to the Accountant General, Madras, for issuance of necessary authorisations for payment. Accordingly, the Accountant General worked out the penal rent due from the petitioner to the Tamil Nadu Housing Board and issued authorisation for payment of pensionary benefits after withholding a sum of Rs.2,00,000/- from the DCRG amount pending receipt of particulars regarding the penal rent to be remitted by the petitioner to the Board. Despite repeated reminders issued to the Revenue Officer, Tamil Nadu Housing Board, this respondent has not so far received the required particulars from the Board. The petitioner has not furnished the exact date of completion of the house in question along with proof therefor. Moreover, orders of the State Government to recover penal rent from the petitioner as sought for by the Board have not been issued so far. Hence, this respondent is unable to arrive at the exact quantum of penal rent payable by the petitioner to the Board, resulting in continuation of withholding the gratuity amount to the tune of Rs.2,00,000/-. 4.3. It is also stated in the counter that as the Tamil Nadu Housing Board was the authority, which had sent the proposal to the Government for recovery of the penal rent, this respondent is unable to state the provision under which the penal rent could be charged. Since necessary proposal seeking orders of the Government for recovery of the penal rent has been sent by the Board and any dues to the Board from the Government servants could be recovered from the retiring Government servants, as per Rule 70 of the Tamil Nadu Pension Rules, the Registry had informed the Accountant General of the penal rent due from the petitioner, who, in turn, calculated the quantum of the said due and withheld a part of the gratuity to the tune of Rs.2,00,000/- in that regard. Though the petitioner has cleared the rental dues till the date of vacation of quarters, the Board is competent to charge the rent at the penal rate if it finds that the Government servant continued to occupy the quarters after the date of completion of house in his/wife's name instead of at the normal rate which the petitioner claims that he had settled. 4.4. The counter further goes to the effect that as per the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Pension Rules, a part of the gratuity has been withheld, the quantum having been calculated by the second respondent. As and when the exact quantum of penal rent payable by the petitioner is arrived at or as and when the instructions from the Government/Board are received to the effect that there is no need to recover any amount on the above score, the balance, if any from the amount already withheld would also be released forthwith. 5. Second respondent also filed a counter, which reads thus : 5.1. Writ petitioner retired on 31.01.2007 as Section Officer, Madras High Court. The pension proposals were forwarded by the Assistant Registrar (Admn-I) in his letter dated 20.07.2007 to this respondent. On scrutiny of the Service Register, it was noticed that in Official Memorandum No.ROC.7533/2006/E II, dated 31.01.2007, of the High Court, the petitioner was permitted to retire on 31.01.2007, pending disposal of the complaint given by Raja, Advocate. Therefore, the proposals were returned in letter dated 31.08.2007, seeking final orders on the complaint. In November,2007, the first respondent had again forwarded the pension proposals. As the competent authority categorically stated that deductions are to be made from DCRG and the approximate amounts and periods i.e., from 1999 to 2002 have also been mentioned by the first respondent, it has been decided to withhold Rs.2,00,000/- from DCRG till the final orders issued by the Government regarding recovery of penal rent. 5.2. It is further stated in the counter that the penal rent was ascertained in letter dated 21.12.2006 by the Government and the amount was covered under the note below Rule 70 of Tamil Nadu Pension Rules. Therefore, the following amounts, namely, pension of Rs.5,925/- per month; commuted value of pension of Rs.2,47,902/- and DCRG of Rs.51,969/- withholding Rs.2,00,000/- were authorised on 04.01.2008, duly intimating the first respondent that the amount was withheld for want of particulars regarding penal rent to be remitted by the retired official to the Board. The first respondent could have stated that no penal rent was to be recovered from the individual, in which case the withheld amount would have been released forthwith. Otherwise, the amount to be recovered should have been communicated for deduction and for authorising the balance amount due to the petitioner, which has not happened in the instant case. Thereafter, there was no communication from the first respondent regarding the subject matter of penal rent or regarding the release of withheld DCRG. Therefore, pending reply from the first respondent, the amount has not been released and if the first respondent seeks the release of the DCRG stating that no penal rent is to be recovered from the individual, this respondent is prepared to authorise the amount within a week's time. The action taken by this respondent is based on the remarks of the first respondent, who is the employer of the petitioner, and is in tune with Rule 70 of the Tamil Nadu Pension Rules. https://hcservices.ecourts.gov.in/hcservices/ 5.3. The counter also states that the Government have provided interest for the delayed payment of DCRG vide G.O.Ms.No.818 Finance (Pension) dated 01.12.1988 as per which the interest on the delayed payment for the delay in any office including the Government is to be paid. It is also stated therein that as per the Government letter No.103354/Pension/87-2, dated 07.09.1987, of the Finance (Pension) Department, no specific authorisation from this respondent is necessary and on the sanction accorded by the Department at Secretariat, interest has to be worked out by the Department presenting a bill to the Pay & Accounts Officer concerned for drawal and payment to the petitioner. 6. Third respondent has also filed a counter, stating that the parent department of the petitioner was addressed to give details regarding the exact date of completion of the building, but the parent department has simply stated that the petitioner has neither availed any housing loan nor obtained any permission for purchasing of plot and construction of the house. Further, the department has also sated that the petitioner has not furnished any details to the Department when he was called for by the Department for an enquiry. In view of the same, the exact date of completion of the building could not be ascertained. It is also stated therein that the Tamil Nadu Housing Board has requested the Government to issue orders for collecting penal rent from the petitioner at Rs.3750/- per month (concessional rent or economic rent whichever is higher + 50% of such higher rent as penal rent) from the date of completion of house to 07.11.2001 as per the Government letter M.S.No.66/HB.3 91) 98-1 and Rs.7,500/- per month (3 times of economic rent) from 08.11.2001 till the date of handing over of the apartment as per G.O.No.454, dated 08.11.2001. The orders of the Government are still awaited and the petitioner has not made any payment to the Board towards penal rent. Also, the petitioner has not handed over the apartment as per the procedure laid down by the Board; he has been avoiding coming in person to hand over the apartment, but simply he sent the key to the Board office by post and he has been instructed to pay penal rent for the unauthorised period i.e., from the date of completion or construction of the house till the date of taking over of the apartment by the TNHB. 7. We have heard the learned counsel for the parties and also gone through the records. 8. The fact that the petitioner was an employee of the first respondent and after his superannuation, withholding of the amount of Rs.2,00,000/- due to him towards DCRG from the first respondent is not in dispute. The only question is, whether the petitioner has constructed the house in question in the name of his wife with his own funds, for which the stand of the petitioner is that the said house has been constructed by his father-in-law from and out of his https://hcservices.ecourts.gov.in/hcservices/ retirement benefits in the name of his wife and he has nothing to do with the said house and also no disciplinary enquiry is initiated against him, as it is not contemplated under any rules, but he states that the said house has been completed in May,2002. 9. Though 07.11.2001 and 08.11.2001 have been mentioned for collecting rent, there is no explanation from the Revenue Officer, TNHB, to the High Court, how the said dates have been taken into account. The Accountant General also stated that the Registry could have given benefits to the individual and since the Registry asked for details, he has furnished the same. The Deputy Secretary to Government (AR), Tamil Nadu Administrative Tribunal, Chennai, in his letter, dated 23.01.2007, has stated that no disciplinary proceedings or vigilance enquiry is pending or contemplated against the petitioner, which is also admitted by the first respondent. Therefore, the failure to release the gratuity amount of Rs.2,00,000/- even after the retirement of the petitioner on 31.01.2007 is not only ultra vires and unconstitutional being violative of Rule 9 of the Tamil Nadu Pension Rules, but also is against the principles of natural justice, fair play, equity and good conscience. There cannot be any permission to retire without prejudice to the disciplinary proceedings unless and otherwise the Service Rules so authorise. There is not even a charge memo before or after retirement, which is why all the benefits have been paid to the petitioner except the withheld amount of Rs.2,00,000/-. It is not known as to how the respondents could withhold a sum of Rs.2,00,000/- on mere assumptions and presumptions even in the absence of any orders from the Government, that too when a request was made therefor. Failure to give Death-cum-Retirement Gratuity is arbitrary and unreasonable, being violative of Articles 14 and 21 of the Constitution of India. When the first respondent is unable to state the provision under which the penal rent could be charged and the Tamil Nadu Housing Board, which is the authority to send the proposal to the Government for recovery of the penal rent, has not come out with a clear picture as to the penal rent to be recovered from the petitioner, the petitioner cannot be subjected to hardship, by withholding the amount due to him. It is also stated by the second respondent in the counter that no penal rent could be recovered from the individual and the same should have been released forthwith. Otherwise, the amount to be recovered should have been communicated for deduction and for authorising the balance amount due to the petitioner, which has not happened in the instant case. According to the second respondent, if the first respondent seeks the release of DCRG stating that no penal rent is to be recovered from the individual, the second respondent is prepared to authorise the amount within a week's time. The counter of the second respondent also states that the Government have provided interest for the delayed payment of DCRG vide G.O.Ms.No.818, Finance (Pension) Department, dated 01.12.1988, as per which the interest on the delayed payment for the delay in any office including the Government is to be paid. https://hcservices.ecourts.gov.in/hcservices/ It is also stated therein that as per the Government letter No.103354/Pension/87-2, dated 07.09.1987, of the Finance (Pension) Department, no specific authorisation from this respondent is necessary and on the sanction accorded by the Department at Secretariat, interest has to be worked out by the Department presenting a bill to the Pay & Accounts Officer concerned for drawal and payment to the petitioner. 10. Though the Revenue Officer, Tamil Nadu Housing Board, has addressed the Government to issue orders for collection of penal rent from the petitioner at the rate of Rs.3,750/- per month up to 07.11.2001 and at Rs.7,500/- per month from 08.11.2001 to 07.05.2002, the orders of the Government are still awaited. It is also seen from records that allotment of quarters was cancelled on 11.02.2002 by the Board's proceedings No.GRIII (3)/74873/2001. The petitioner also, by his letter, dated 22.01.2002, had informed the Tamil Nadu Housing Board that he vacated the apartment with effect from 28.02.2002. 11. Therefore, we direct the respondents to release the amount of Rs.2,00,000/- which has been withheld from the DCRG of the petitioner, after deducting the rent up to 28.02.2002, if not already paid by the petitioner, with interest as per G.O.Ms.No.818, Finance (Pension) Department, dated 01.12.1988, within a period of eight weeks. 12. Writ Petition is allowed to the extent indicated above. No costs. Consequently, the connected M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar dixit To 1.The Registrar General, High Court of Madras, Chennai-600 104. 2.The Accountant General (A&E), 361, Anna Salai, Teynampet, Chennai-600 018. https://hcservices.ecourts.gov.in/hcservices/ 3.The Managing Director, Tamil Nadu Housing Board, Chennai-35. 1 CC To Mr.A.Vijayakumar, Advocate, SR NO.52c687 1 CC To Mr.A.Jenasenan, Advocate, SR NO.52285 1 CC To Mr.R.Singaravelan, Advocate, SR NO.52214 1 CC to the Government Pleader, SR NO.52480 1 CC To Mr.P.Chandrasekar, Advocate, SR NO.52455 W.P.No.14658 OF 2008 nsm(co) pmk/22.9.2008. https://hcservices.ecourts.gov.in/hcservices/