KJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1408 OF 2008 Nirmala Upadhyay, widow of Late ) Ramakant J.Upadhyay, age about 50 ) years, R/o B-7, Triveni Nagar, ) Kurar Village Malad (East), Mumbai)..Petitioner V/s. 1. Union of India, through ) Secretary Telecommunication ) Department, New Delhi ) 2. The General Manager (Central) ) MTNL, Mumbai, previously White ) Hall, First Floor, August Kranti) Marg, Mumbai, Now Cumballa Hill) Telephone Exchange, Mumbai ) 3. The Account Officer (Works) ) MTNL, Mumbai, Cumballa Hill ) Peddar Road, Mumbai. )..Respondents ---- Mr.Suraj Almedia with K.C.Pandey for the petitioner. Mr.D.A.Athawale with Mrs.Rutuja Ambekar for respondent no.1. Mrs.S.I.Shah for respondent no.2. ---- Coram : F.I.Rebello & R.S.Mohite,JJ Date : 19.11.2008. Judgment :- ( Per : R.S.Mohite,J) 1. Rule. By consent, rule made returnable forthwith and parties are finally heard. By this Writ Petition the petitioner Nirmala, the widow of late R.J.Upadhyay seeks a writ commanding the respondents to grant and release all monetary : 2 : benefits to which she is entitled with retrospective effect alongwith 18% compound interest from 2.1.2003 which is a date on which the petitioner’s husband the late R.J.Upadhyay expired. 2. The brief facts of the case are as follows:- (a) The husband of the petitioner the late R.J.Upadhyay who was serving with the MTNL expired on duty on 2.1.2003. (b) That by an order dated 7.4.2003 MTNL immediately released an amount of Rs.1,75,570/- in lieu of death-cum-retirement gratuity and it is not in dispute that this amount was received by the petitioner. (c) On 11.9.2003 the Accounts Officer of MTNL addressed a letter to the General Manager for sanction of payment of provisional pension from 3.1.2003 to 31.7.2003 and admittedly the said provisionsl family pension was sanctioned and was being paid to the petitioner. (d) The grievance of the petitioner in the petition was that, inspite of gross delay, thereafter the respondent had not finally fixed the pension and had not paid other benefits as per the pension rules. : 3 : It was also contended on behalf of the respondents that there was violation of the petitioner’s fundamental rights as well as the pension rules and it was contended by relying upon certain judgment that the pension was not a bounty to be distributed and in the circumstances, as observed by the Supreme Court the petitioner was entitled to payment of interest atleast @ 12% if not the 18% compound interest as claimed by the petitioner. (e) On behalf of the respondents an affidavit dated 22.7.2008 came to be filed by one Jayanti Samaddar who was a Joint Controller of Communication Accounts in the department of Telecommunication. It was contended in the reply that the petitioner’s husband had opted for service in the MTNL and this option has not been accepted till he expired on 2.1.2003. It was contended that the same option was required to be accepted by respondent no.1 and the same was considered and done only on 19.1.2004. Since the petitioner’s husband had died before the order dated 19.1.2004 was passed, his family was entitled to family pension as per the rules. Accordingly, respondent no.1 had informed the Kandivali branch of State Bank of India which was the disbursing authority and accordingly the payment of family pension was immediately commenced. Affidavit stated that on the date of affidavit the petitioner was : 4 : getting a family pension of Rs.5372/- per month in accordance with the pension rules of the Central Government. (f) It was contended that in or about July-2003 the other benefits amounting to Rs.3,49,913/- were released to the petitioner. That on the acceptance of the absorption, respondent no.1 had issued a letter to the State Bank of India to return the original pension payment order so that the same could be cancelled and a new pension payment order could be issued by the relevant authority i.e. respondent no.1 to respondent no.3 in the present case. It was contended that there was no response from the State Bank of India and therefore, further steps in this matter could not be taken. That by a further letter dated 16.7.2008, respondent no.1 directed SBI to stop the family pension so that the Joint Controller of Communication Accountant to take further necessary action in relation to re-fixation of pension. Some additional documents such as the application made by the petitioner’s husband exercising his option and the order dated 19.1.2004 accepting the said option were produced on record. (g) By a rejoinder dated 22.9.2008 it was contended by the petitioner that the pension was finally revised by an order dated 14.8.2008 and the : 5 : difference of pension amounting to Rs.2,52,764/- was received by the petitioner. 3. In view of the above factual position, learned Counsel for the petitioner restricted his claim to grant of interest. He relied upon a judgment in the case of State of Kerala v. M.Padmanabhan Nair reported in 1985 (1) SCC 429, in which the Apex Court has held that "pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment". 4. Reliance was further placed upon a judgment of the Apex Court in the case of O.P.Gupta v. Union of India reported in AIR 1987 SC 2257, wherein the Apex Court observed that if there was a delay in payment of pension, it was a settled practice of law for payment of interest @ 12%. In the present case however, we find that there cannot be said to be any culpable delay. The record indicates that after the death of the petitioner’s husband, gratuity was immediately released to her and provisional pension : 6 : was also released and paid regularly. About the fixation and payment and provisional pension there was no dispute. It appears that final pension could not be paid because the option to join the MTNL was not formally approved till the time of the death. It also appears that certain documents were not provided by the State Bank of India. The requirement of payment of interest is only applicable where the Court can conclude that there was a culpable delay. In fact, in the judgment of the Apex Court in the case of O.P.Gupta (supra), it is seen that the facts of the said case before the Apex Court were gross and departmental enquiry was kept pending for 20 years and was made an excuse for not making the payment due to the petitioner. Such is not the case in the present petition. (k) In our opinion, this is not a fit case to interfere in our extra ordinary jurisdiction. Hence, petition is rejected and rule stands discharged. (R.S.Mohite,J) (F.I.Rebello,J)