IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No.1475 of 2008 Date: June, 2011 Between: Late D. Damayanthi (died, per LRs) … Appellants / Petitioners And: Secretary, Ministry of Home Affairs, Govt of India & another … Respondents The Court made the following: THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No.1475 of 2008 JUDGMENT: (per the Hon’ble Sri Justice P. Durga Prasad) This Writ Appeal, under Clause 15 of the Letters Patent, is filed assailing the order dated 23.01.2008 passed in W.P.No.17465 of 2005 by the learned single Judge. The appellants are the petitioners in the writ petition. The writ petition was originally filed by the 1st appellant Smt. D. Damayanthi for issuance of a Writ of Mandamus or any other appropriate order or direction directing the respondent Nos.1 and 2 to sanction family pension to her from 02.01.1999, the date of death of her husband, upto 14.10.2003, and freedom fighters pension payable to the petitioner’s husband, late D. Ramulu from the date of his representation dated 08.08.1994 to 02.01.1999, the date of his death, with interest at 12% per annum. Subsequently on the death of the 1st petitioner-Smt. D Damayanthi, petitioners 2 to 7 were added as LRs. In the affidavit filed in support of the said Writ Petition, the 1st petitioner pleaded that her husband served in the Indian Army for about 9 years from 23.03.1937 to 01.03.1946 during the II-World War in the Burma Sector as Naik No.17128 and had undergone imprisonment by the Japanese while serving with the Indian Army. It was also averred that her husband late D. Ramulu was taken as prisoner of war by the Japanese on 15.02.1942 and while he was in the jail, he opted to join in the Indian National Army at the call of Netaji Subhash Chandra Bose and worked in the Indian National Army. It is further averred that during the life time of D. Ramulu, he made a representation to the Collector, Vijayanagaram District on 08.08.1994 and 22.02.1997 for grant of freedom fighters pension under Swathantrata Sainik Samman Pension Scheme, 1980. The petitioner’s husband died on 02.01.1999 at Sundarada Village leaving behind her and her unmarried daughter Bayamma and two widowed daughters Bharathi and Sumathi and two sons D. Satyam and D. Sankar Rao. The two sons were living separately. She had no source of income to maintain herself and her daughters, except the amount of Rs.200/- per month being paid by the District Soldier Board after the death of her husband. They are living in a miserable and poor condition in the said village. It is further averred that on 06.10.2000, she made a representation to the President of India, New Delhi to sanction family pension and also for assignment of land for herself. The President’s Secretariat, by letter dated 11.10.2000, had forwarded her representation to the Secretary, Government of India, Ministry of Defence, for appropriate action. But no follow up action was taken by the Ministry of Defence. She again made a representation on 09.05.2001 to the Deputy Secretary, Ministry of Home Affairs, Freedom Fighters Division, New Delhi, by registered post requesting for sanction of freedom fighters pension to her husband late D. Ramulu and also family pension to her, under Swathantrata Sainik Samman Pension Scheme, 1980 and there is no response from the 2nd respondent to her representation dated 09.05.2001. Thereafter, she filed the Writ Petition No.24117 of 2001 against the respondent Nos.1 and 2 for issuance of Writ of Mandamus or any other appropriate writ, directing the respondent to consider the representations dated 08.08.1994 and 22.12.1997 of late D.Ramulu and her representations dated 06.10.2000 and 09.05.2001 for sanction of freedom fighters pension. The said representations were disposed of by order dated 23.11.2001 directing the respondents to consider and dispose of her representations dated 06.10.2000 and 09.05.2001 in terms of the guidelines enumerated by the Supreme Court in MUKUNDALAL BHANDARI AND OTHERS v. UNION OF INDIA AND OTHERS[1] for grant of freedom fighters pension under the Swathantrata Sainik Samman Pension Scheme, 1980. The respondents 1 and 2 did not consider the representations and did not pass any orders as per the directions given in the W.P.No.24117 of 2001. She filed a Contempt Case No.912 of 2003 for willful disobedience of the judgment of this Court. During the pendency of the Contempt Case, the 1st respondent has passed an order dated 16.10.2003 granting Swathantrata Sainik Samman Pension in compliance with the judgment of this Court in W.P.No.24117 of 2001, and directed her to furnish certain documents and on compliance of the said formalities, the Pay & Accounts Officer, New Delhi has sent PPO MHA 77040 7332 dated 16.03.2004 for sanctioning payment of pension from 14.10.2003. Subsequently, this Court disposed of the Contempt Case observing that the petitioner who was aggrieved by the orders passed by the respondent, must pursue the remedies available to her. It is also averred that her advocate made a representation on 11.06.2004 to the 2nd respondent stating that she has to be paid family pension from the date of death of her husband and also freedom fighters pension payable to her husband late D. Ramulu from 08.08.1994 up to the date of his death. The 1st respondent has sent a reply dated 02.07.2004 stating that the pension can be sanctioned only from the date of approval of competent authority in the case of petitioner by giving her benefit of doubt, and therefore, it is not possible to sanction pension to her from the entire date. Aggrieved by the letters dated 16.10.2003 and 02.07.2004, the 1st petitioner filed the Writ Petition, which is the subject matter of the present appeal. In the writ petition, the 1st respondent has filed counter, stating that the W.P.No.24117 of 2001 filed by the petitioner Smt. D Damayanthi was disposed of at the admission stage directing the respondent to consider and dispose of the representations dated 16.10.2001 and 09.05.2001 made by the petitioner, in terms of the guidelines enumerated by the Supreme Court in MUKUNDLAL BHANDARI (1-supra), and as such there was no opportunity to file any counter in the said writ petition. It is averred that in the light of the above direction, a provisional dependent family pension was sanctioned to Smt. D. Damayanthi vide letter dated 19.02.2004 from 14.10.2003 i.e., the date of approval of competent authority by giving her benefit of doubt. The crucial certificate/information about the detention/ imprisonment of late D. Ramulu as a member of INA is still not available. In the circumstances, based on the facts available with the Ministry, the claim of late Ramulu for pension was admitted by extending benefit of doubt. In such a case, the pension is granted only from the date of approval of the competent authority and it is not possible to sanction pension to her from an earlier date. The writ petition was disposed of by the learned single Judge on 23.01.2008 directing the respondents to reconsider the case of the petitioner and pass appropriate orders within a period of six weeks from the date of receipt of the copy of that order. Aggrieved by the said order, the present appeal is filed by the writ petitioners. Sri T. Rama Krishna Rao, Counsel appearing for the petitioner, has stated during the pendency of the appeal that the arrears of pension payable to late D.Ramulu and arrears of family pension payable to Smt. D. Damayanthi was paid on 16.03.2009 and the family pension payable to the 5th petitioner-D.Pydithalli was also paid upto date on 27.10.2009. He pleaded that the payment of arrears of pension and family pension was paid by the respondents but they have not paid the interest on the amount due to the petitioner for the delayed payment, and restricted his claim in the present appeal only to the grant of interest at 12% per annum from the date of due of pension to D.Ramulu and subsequent family pension due to D.Damayanthi and D.Pydithalli. The Standing Counsel for the Central Government has pleaded that as per the directions given in the writ petition, the pension and family pension was paid and therefore, the question of delay in paying the same does not arise and as such the petitioners are not entitled for any interest on the said amounts already paid. The learned Counsel for the petitioner has pleaded that even though late Ramulu has made a representation on 08.08.1994 for payment of pension to him under Swathantrata Sainik Samman Pension Scheme, 1980, the same was not considered by the respondents and, subsequent to his death, his wife D. Damayanthi has made representations dated 06.10.2000 and 09.05.2001 and the same were not considered by the respondents, and as such she was compelled to approach this Court in W.P.No.24117 of 2001 for directions and in spite of the directions given by this Court, they have not complied with the order of the Court and only when Damayanthi filed a Contempt Case No.912 of 2003, an order was passed by the 1st respondent on 16.03.2004 sanctioning her family pension from 14.10.2003, even though her husband D.Ramulu died on 02.01.1999; and thereby she was compelled to file the present petition. After death of the Writ Petitioner Damayanthi, the LRs were brought on record who are the unmarried daughters, widowed daughters and sons. The freedom fighter late Ramulu died on 02.01.1999 and his wife late D. Damayanthi died on 28.08.2007 and the family pension was granted to the late D. Damayanthi on 16.10.2003 with effect from 14.10.2003. During the pendency of this appeal, the respondents on consideration of the directions in W.P.No.17465 of 2005 agreed to pay the arrears of pension due to late D.Ramulu and arrears of family pension due to late Smt.Damayanthi to the legal representatives by their letter dated 16.03.2009, but the same was not paid by the respondent Nos.4 and 5 and the petitioner No.5 has filed W.A.M.P.NO.148 of 2009 for direction to respondent Nos.4 and 5 to pay arrears of pension due to late D.Ramulu and arrears of family pension due to late D.Damayanthi with interest at 12% p.a. to the petitioner No.5. She filed W.A.M.P.No.2868 of 2008 for direction to respondent Nos.4 and 5 for payment of family pension to her being unmarried daughter of petitioner No.1, who died on 28.08.2007. This Court gave interim direction on 27.04.2009 in the said Writ Appeal Miscellaneous Petitions. Respondent No.4 has paid the arrears of pension due to late D.Ramulu during 08.08.1994 to 02.01.1999 i.e. till the date of his death and arrears of family pension due to Smt D.Damayanthi 03.01.1999 till 28.08.2007 i.e. till the date of her death. Arrears of family pension due to the petitioner No.5 from 29.08.2007 was paid by the respondent No.4 on 27.09.2009 and has been paying monthly pension to her. The learned Standing Counsel for the Central Government has not disputed the same. Thus, apparently, there is delay in payment of the pension due to the late Ramulu and on his death, the family pension payable to Damayanthi and on her death, the family pension payable to her unmarried and widowed daughters. Whether the respondents are liable for payment of interest for delayed payment of the pension and family pension as claimed by the petitioners, is the only issue remaining. In DR. UMA AGRAWAL v. STATE OF U.P & ANR[2], the Apex Court considered the liability to pay interest for the delay in releasing pension. The petitioner was working as Medical Officer with the Government of Uttar Pradesh and retired on 30.04.1993 on completion of 58 years but was not paid retirement benefits, viz., gratuity, provident fund, pension etc., and thereby she filed writ petition on 18.11.1995 and on issuance of the directions, the respondents paid the provisional pension in December 1996 and February 1997 and arrears were paid upto 17.03.1997 and paid the GPF and Gratuity. The respondents pleaded that they are not liable to pay any interest to the petitioner. The Apex Court observed: “The case before us is a clear example of departmental delay which is not excusable. The petitioner retired on 30.04.1993 and it is only after 12.02.1996, when an interim order was passed in the writ petition, the respondents woke up and started work by sending a special messenger to various places where the petitioner has worked. Such action should have been started atleast in 1991, two years before her retirement. The amounts due to the petitioner were computed and the payments were made only during 1997-98. The petitioner was a cancer patient and she was indeed put to great hardship. Even assuming that some letters were sent to the petitioner after her retirement on 30.03.1993, seeking information from her, an allegation which is denied by the petitioner, that cannot be an excuse for the lethargy of the department inasmuch as the rules and instructions require these actions to be taken long before retirement. The exercise which was to be completed long before retirement was in fact started long after the petitioner’s retirement. Therefore, this is a fit case for awarding interest to the petitioner. We do not think that for the purpose of the computation of interest, the matter should go back. Instead, on the facts of this case, we quantify the interest payable at Rs.1 lakh and direct that the same shall be paid to the petitioner within two months from today.” In view of the lethargy of the Government of India in finalizing and payment of the pension, the Apex Court has awarded interest to the petitioner. I n RAM SUMIRAN PANDEY v. STATE OF U.P. AND OTHERS[3], a Division Bench of Lucknow of the Allahabad High Court awarded interest on the amount of arrears of pension for non payment of freedom fighters pension for 20 years, and directed to make the payment within 2 months. In ALOK SHANKER PANDEY v. UNION OF INDIA AND ORS[4], the Apex Court has held that interest is not penalty or punishment, but it is accretion on capital. In ROSHAN LAL AND OTHERS v. D.T.C[5], the Learned single Judge of the Delhi High Court, while considering the delay in making payment of pension for two to three years awarded interest at 12% per annum from the date of payment due. In GURDIAL SINGH v. UNION OF INDIA AND OTHERS[6], the Apex Court has considered the liability to payment of interest on delayed payment of pension and while directing to make payment of arrears of pension within six weeks from the date of order, directed to pay interest at 12% per annum from March, 1996 till the date the arrears are actually paid, in default of payment within the time stipulated. In view of the above decisions, the petitioners are entitled for the interest for the delay caused by the respondent in payment of pension to late D. Ramulu, family pension to late D. Damayanthi and the present petitioners. The pension payable to late D. Ramulu is due from the date of his application i.e. 08.08.1994, and as D. Ramulu died on 02.01.1999, his wife Damayanthi is entitled for family pension from the date of her husband’s death. Since Smt. Damayanthi died on 28.08.2007, the LRs of Damayanthi who are the unmarried and widowed daughters are entitled for family pension. But the said arrears of pension and family pension were paid on 13.03.2009, i.e., much long after the amounts became due. Therefore, the petitioners are entitled for payment of interest at 12% per annum on the said amounts from the respective dates they became due. The petitioners have filed W.A.M.P.No.463 of 2001 seeking direction to the respondents for payment of Rs.4,97,971/- towards the accrued interest on the arrears of family pension of late D. Ramulu and late D. Damayanthi and the 5th petitioner. The quantum of interest payable by respondents has to be calculated by them by verifying the amount claimed by the petitioners and the said exercise cannot be done by this Court while exercising jurisdiction under Article 226 of the Constitution of India. Petitioners have filed W.A.M.P.No.936 of 2011 for a direction to the respondents to pay Rs.23,262/- towards arrears of pension due to their parents and also accrued interest of Rs.4,00,730/- or Rs.6,21,223/- due and payable to them, within a period of 4 weeks. Since the respondents have already paid the arrears of pension and family pension due to late D.Ramulu and D.Damayanthi, if there is any difference in the said arrears, the same must be ascertained by the respondents and payment made to the petitioners. In the result, the Writ Appeal is allowed and the respondents are directed to pay the difference in the arrears of pension payable to late D.Ramulu and family pension payable to late D.Damayanthi if any and further directed to pay interest at 12% p.a. on the amounts paid and payable towards the arrears of pension due to late D.Ramulu; the family pension payable to late D.Damayanthi and the family pension paid to petitioner No.5 from the date, on which each of such amounts became due and payable to them, till the date of actual payment, within three months from the date of receipt of a copy of this Order. There shall be no order as to costs. _____________________________ JUSTICE GODA RAGHURAM _____________________________ JUSTICE P. DURGA PRASAD June, 2011 KSM [1] AIR 1993 SC 2127 [2] 1999 (2) SLR 22 [3] AIR 1996 ALLAHABAD 291 [4] AIR 2007 SUPREME COURT 1198 [5] 2008(3) SLR 297 [6] (2001) 8 SCC 8