IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.11.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.45855 of 2006 OA.NO.7146 OF 2000 L.L.Kuppusamy .. Petitioner Vs. 1. The Commissioner for Municipal Administration Chepauk, Chennai – 5. 2. The Director of Local Fund Audit Fourth Floor, Kuralagam Esplanade, Chennai – 600 108. 3. The Commissioner Tiruvarur Municipality Tiruvarur. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus. This Writ petition presented to this Court under Article 226 of the Constitution of India to issue a Writ of Mandamus to direct the respondents herein to forthwith release 75% of the DCRG amount due to the application as an interim measure within a period of two weeks from the date of receipt of a copy of the order to be passed by the tribunal as stated therein. For Petitioner : Mr.K.Rajkumar For Respondents : Mr.P.Gurunathan Additional Government Pleader for respondents 1 and 2 Mr.P.I.Thirumoorthi for 3rd respondent ORDER The writ petitioner, who has originally filed Original Application before the Tamil Nadu Administrative Tribunal which stood transferred before this Court in the above writ petition, has prayed for a direction against the respondents to compute his retiral benefits on the basis of the pay fixed as on 1.7.1993 and disburse https://hcservices.ecourts.gov.in/hcservices/ all the benefits, including DCRG, Computed Value of Pension, and also to re-fix the regular pension and disburse the arrears with interest at the rate of 24% for the belated payment. 2.1. The petitioner has retired as a Municipal Engineer Grade-II from Tiruvarur Municipality on 31.3.1994 and he was also allowed to retire and there was no recovery proceeding or disciplinary proceeding pending. He was originally appointed as an Electrical Superintendent Grade-I in the year 1962 in Tirunelveli Municipality. He was promoted as Water Works Superintendent in the year 1977 and was subsequently promoted as Municipal Engineer Grade-II in the year 1993. 2.2. It is stated that while the petitioner was to retire on 31.3.1994, the Municipal Commissioner has forwarded the pension proposals earlier and the Director of Municipal Administration, Thanjavur has informed the Regional Director of Municipal Administration, Thanjavur to allow the petitioner to retire on 31.3.1994 as no disciplinary proceedings were pending. The Director of Vigilance and Anti Corruption has also informed that there is no enquiry or investigation pending or contemplated and ultimately, the third respondent has allowed the petitioner to retire on 31.3.1994 on attaining the age of superannuation. In the order of retirement, it was however informed that if any audit objection is raised later with regard to any recovery, any loss will be recovered from the DCRG. 2.3. Even after the retirement the pension proposals were not finalized and he was only paid provisional pension of ` 1,664/- by order dated 20.12.1994 and for computing the provisional pension the pay drawn by the petitioner as on 13.8.1992 was taken into consideration. Even in respect of the payment of provisional pension there has been a delay of 20 months. It was on 11.12.1998 the third respondent has addressed a letter to the Director of Local Fund Audit, Chennai informing that there is no audit objection and requested the release of 75% of the DCRG amount, which is baseless. 2.4. As per the Government Order, when no disciplinary proceedings are pending, the Government servant, who retired, is entitled to the entire retiral benefits . The petitioner has in fact made a representation on 20.9.1999 requesting to pay the entire retiral benefits. As on date the petitioner has not been paid the Death-cum-retirement gratuity, Commuted Value of Pension and incremental arrears from 1.7.1993 up to the date of retirement and the consequential re-fixation in respect of provisional pension and also regular pension and the arrears of retiral benefits based on such re-fixation. 2.5. The petitioner has, therefore, filed the original application, which stood transferred to this Court as writ petition, for payment of the above said amount with interest at the rate of 24% on the grounds that the inaction on the part of the respondents is https://hcservices.ecourts.gov.in/hcservices/ arbitrary and illegal; that in the absence of any proceedings by the Directorate of Vigilance and Anti Corruption and in the absence of disciplinary proceeding, when the petitioner was allowed to retire, the respondents should have paid the entire amount in time and non payment has resulted in gross injustice and is a violation the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India; that when once the authorities concerned have given no objection stating that there are no proceedings pending, it is the duty on the part of the respondents to pay the amount; and that the petitioner, who is aged about 75 years, is affected by the illegal conduct of the respondents. 3. In the counter affidavit filed by the respondents, it is stated that the Director of Local Fund Audit has released all the pensionary benefits due to the petitioner on 27.11.2000 and it is stated that interest can be calculated at 8% per annum for belated payment from 19.8.1998 to 27.11.2000 and the said amount of interest can be paid to the petitioner. It is stated that there is no delay on the part of the third respondent. Inasmuch as the entire amount has been paid on 27.11.2000, according to the respondents, nothing survives in the writ petition. 4. On a reference to the records, it shows that the petitioner has served in the respondent/Department for a period of 32 years 6 months and 16 days and it is not in dispute that there was no disciplinary proceeding pending on the date of his superannuation, viz., on 31.3.1994, and in fact, on record it is clear that the petitioner was allowed to retire on 31.3.1994. 5. Even as per the counter affidavit of the respondents, DCRG and pension were directed to be paid, as it is seen, by order of the Director of Local Fund Audit only on 27.11.2000, viz., after 6½ years from the date of his retirement. The Regional Director of Municipal Administration, in the communication dated 29.3.1994 addressed to the third respondent, has clearly stated that there are no proceedings either pending or contemplated against the petitioner. While so, there is absolutely no satisfactory explanation given by any of the respondents regarding the inordinate delay of 6½ years in payment of retiral benefits, including DCRG. 6. It is seen that the said order dated 27.11.2000 itself came to be passed only after the petitioner has filed original application before the Tamil Nadu Administrative Tribunal, which was in September, 2000 and by G.O.Ms.No.16, Municipal Administration and Water Supply (Na.Pa.1) Department, dated 18.1.1999, the Government has directed that the releasing of 75% of retiral benefits and retaining 25% for the purpose of audit objection is not proper and ordered that in cases where there are no disciplinary proceedings pending, the entire retiral benefits, including DCRG, are to be paid. https://hcservices.ecourts.gov.in/hcservices/ 7. The contention raised on behalf of the respondents that 8% interest has been paid and the respondents are liable to pay only up to 8% interest is not borne out by records. Even the order dated 27.11.2000, which is relied upon by the respondents, nowhere denotes about any interest having been paid for the delayed payment. Even if as per the said order dated 27.11.2000 the entire retiral benefits have been paid to the petitioner, the respondents are liable to pay interest, which is a well established principle in service jurisprudence, when the delay was not imputable to the conduct of the petitioner. 8. By G.O.Ms.No.510, Finance (Pension) Department, dated 27.6.1995, the Government has amended Rule 45-A of the Tamil Nadu Pension Rules, 1978 and the amended Rule 45-A reads as follows: "Rule 45-A. Interest on delayed payment of gratuity:- (1) Interest at the rate of eight per cent per annum shall be payable on the death-cum-retirement gratuity paid beyond (a) period of two months from the date of retirement of a Government Servant. Provided that on and from the 12th June 1987, the rate of such interest shall be as follows: (a) seven per cent per annum beyond a period of three months and up to one year; and (b) ten per cent per annum beyond a period of one year; Provided further that no such interest shall be payable,- (a) where the institution of departmental or judicial proceeding against the retiring Government servant concerned is pending; and (b) for the fraction of a month. (1-A). The period beyond which such interest is payable, shall be as follows:- (i) in the case of a Government Servant retired otherwise on superannuation and where the Death-cum- Retirement Gratuity is withheld on account of disciplinary proceeding pending against him.- (a) three months from the date of retirement where the Government Servant is exonerated of all charges and where the Death-cum-Retirement Gratuity is paid on the conclusion of disciplinary proceedings. (b) three months from the date of death where the disciplinary proceedings are dropped on account of death of a Government servant. (c) three months from the date of issue of orders by https://hcservices.ecourts.gov.in/hcservices/ competent authority allowing payment of Death-cum- Retirement Gratuity where the Government Servant is not fully exonerated on the conclusion of disciplinary proceedings and where the competent authority desire to allow payment of Death-cum-Retirement Gratuity. (ii) six months from the date of retirement of a Government Servant otherwise than on superannuation under Fundamental Rule 56(2) or 56(3) or Rules 33, 36, 38, 39 and 42 of the Tamil Nadu Pension Rules, 1978; (iii) six months from the date of death of a Government Servant while in service and where the delay is not caused on account of more than one claimant; (iv) three months from the date of issue of orders revising the emoluments where the amount of Death-cum- Retirement Gratuity already paid is enhanced on account of revision of emoluments; and (v) six months from the date of absorption in the case of permanent absorption in the Public Sector Undertaking or autonomous bodies otherwise than on mass transfer on or conversion of Government department or a part thereof into Public Sector Undertakings or Autonomous bodies. (2) The Government shall be the authority competent to sanction such interest." 9. The pension or gratuity being no longer a bounty, has to be disbursed on the date of retirement of a Government servant. The Hon'ble Apex Court in O.P.Gupta vs. Union of India, [1987] 4 SCC 328 crystallized the payment of interest for the delayed payment as a normal practice in the following words: " 24. Normally, this Court, as a settled practice, has been making direction for payment of interest at 12 per cent on delayed payment of pension. There is no reason for us to depart from that practice in the facts of the present case." 10. In Vijay L.Mehrotra v. State of U.P., 2000-II-LLJ-253, the Hon'ble Apex Court has granted 18% interest from the date of retirement till the date of payment of all the retirement dues. https://hcservices.ecourts.gov.in/hcservices/ 11. It is not brought to the notice of this Court as to whether the Government by virtue of its powers under Rule 45-A(2) of the Tamil Nadu Pension Rules, 1978 has increased the rate of interest. However, taking note of the fact that the Hon'ble Apex Court has consistently granted interest at the rate of 12% and above, I am of the view that the petitioner shall be entitled to 12% interest. For the foregoing reasons, the writ petition stands disposed with a direction against the respondents to pay interest at the rate of 12% per annum on the amount of terminal benefits due from the date of retirement of the petitioner, namely 31.3.1994, till the amount is paid. It is also made clear that if the amount has already been paid, the interest as stated has to be paid within eight weeks. Further, if any arrears are due, the arrears along with interest shall be paid within the above stipulated time. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar sasi To: 1. The Commissioner for Municipal Administration Chepauk, Chennai – 5. 2. The Director of Local Fund Audit Fourth Floor, Kuralagam Esplanade, Chennai – 600 108. 3 The Commissioner Tiruvarur Municipality Tiruvarur + one C.C. To Mr. P.I. Thirumoorthy Sr.No.81100 + one C.C. To Mr. K. Rajkumar Sr.No.80655 W.P.No.45855 of 2006 MBS[CO] https://hcservices.ecourts.gov.in/hcservices/