IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.3060 of 2010 Judgment reserved on: 28.2.2011. Date of Decision: 3.3.2011. Basanti Devi …Petitioner Versus State of Himachal Pradesh and others …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Sh.Hamender Chandel, Advocate. For the Respondent(s): Sh.Vivek Thakur, Addl.A.G. with Mr.Rajesh Mandhotra, Dy.A.G. for respondents No.1&2. Mr.Ashok K. Thakur, CGSC for R-3. Deepak Gupta, J. 1. By means of this petition, the petitioner whose husband Sh.Balak Ram Sharma was employed as Forest Range Officer in the Forest Department of the State of Himachal Pradesh, has prayed that the respondents be directed to release the withheld amount of death-cum-retirement gratuity (DCRG) of Rs.1,68,185/- along with interest @ 12% p.a. from the date of retirement of the husband of the petitioner and the respondents may also be directed to pay commuted value of pension as per option furnished by her deceased husband. 2 2. The undisputed facts are that late Sh.Balak Ram Sharma retired from service on 31.8.1999. It is also not disputed that an FIR had been registered against him under Section 409 IPC wherein it was alleged that while posted as Ranger Officer, Blasan during the period 12.5.1994 to 29.10.1994 he had embezzled Government funds. This case was pending when Sh.Balak Ram Sharma, retired and continued till 24.12.2003 when he was acquitted by learned Additional Chief Judicial Magistrate, Theog, District Shimla. 3. The case of the petitioner is that Sh.Balak Ram Sharma had applied for commutation of pension and after his acquittal he was entitled to get the amount of DCRG as well as commuted pension. Unfortunately, Sh.Balak Ram Sharma expired on 24.11.2005 and therefore the present petition was filed at a later stage. 4. The stand of the State is that out of the amount of DCRG, a sum of Rs.87,534/- was released to the petitioner vide cheque dated 1.7.2010 after adjustment of the following Government dues: “i) Recovery of cash balance as pointed out by DFO Rohru vide Memo No.713/G dated 16.8.2010 Rs.69,910/- copy of same is annexed as Annexure R-1. 3 ii)Audit recovery for wrong fixation of pay by Sr.Deputy Accountant General vide Cr.Vr. No.5050-51 dated 24.11.2000 Rs.10741/- copy of the same is annexed as Annexure R-II.” 5. As far as the second recovery of Rs.10741/- is concerned, there can be no objection of the same since this was an audit recovery on account of wrong fixation of pay. However, the cash balance recovered on account of memo dated 16.8.2010 is totally illegal since no such recovery proceedings are mentioned in the pension payment order initially issued and in the original order the only recovery mentioned is with regard to the wrong fixation of pay. Therefore, the respondent-State, in addition to the amount already paid by it, has also to pay further amount of Rs.69,910/- to the petitioner. 6. Coming to the question of interest, my attention has been drawn to Rule 68(1) of CCS (Pension) Rules, 1972 relating to interest on delayed payment of gratuity, which reads as under: “68.Interest on delayed payment of gratuity: (1)If the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in 4 accordance with the instructions issued from time to time.” 7. Sh.Hemender Chandel, learned counsel for the petitioner has referred to Government of India’s instructions dated 11th July, 1979 mentioned in Swamy’s Pension Compilation which read as under: “2.Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity, if allowed to be drawn by the competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the competent Authority. 3.In order to mitigate the hardship to the government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases, in accordance with the aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the government servants who die during the pendency of judicial/disciplinary proceedings against them and against whom proceedings are consequently dropped.” 8. A bare reading of these instructions shows that once an employee is exonerated in departmental proceedings or acquitted in judicial proceedings then 5 the gratuity would be deemed to have fallen due on the date of retirement for the purpose of interest. 9. It has been contended by Sh. Vivek Thakur, learned Additional Advocate General that it is only the Rules which have been adopted by the State of Himachal Pradesh but not the Government of India’s decisions thereunder. This argument has no merit. The rules have been framed by the Government of India and decisions of the Government of India only interpret the Rules and do not create any fresh rights. 10. In any event, the interpretation given is very just and reasonable because a man who is forced to face judicial proceedings for almost two decades, like in the present case, cannot be denied interest on the amount which fell due to him. Instructions with regard to payment of interest clearly provide that if DCRG is delayed beyond three months the interest at the rate applicable to the GPF deposits will be paid to the retired deceased Government servant. During the past many years, interest on GPF varied between 8 to 9.5% and therefore I deem it proper to award interest on the total amount of DCRG due and payable to the petitioner @ 9% p.a. w.e.f. 1.12.1999 i.e. three months 6 after the retirement of the husband of the petitioner till the date of payment of the amount(s) due. 11. As far as the prayer for commutation is concerned, I find no force in the same. The commutation Rules provide that when a person is exonerated in departmental inquiry or acquitted in criminal proceedings he should within one year thereafter approach the Department for commutation of his pension. 12. Sh.Hemender Chandel, learned counsel for the petitioner argued that the husband had applied for commutation even before his retirement and therefore the said application would automatically revive. I cannot accept this plea because the Department cannot become aware of the acquittal of the employee in criminal proceedings unless the employee takes the trouble of informing his Department. In this case, there is no material on record to show that the employee ever informed the Department during his life time that he has been acquitted and therefore the commuted value of pension be paid to him. Regular pension has admittedly been paid to the employee and after his 7 death to the petitioner. Therefore, at this belated stage the petitioner cannot claim commutation of pension. 13. In view of the above discussion, the writ petition is partly allowed and the respondents are directed to pay the balance amount of DCRG along with interest @ 9% on the entire amount of DCRG w.e.f. 1.12.1999 till the date of payment. Needful be done latest by 31st May, 2011. No costs. March 3, 2011. ( Deepak Gupta ) PV Judge.