Rajeev Kumar Gupta vs Military Engineer Services IHQ & Ors.

“ A. Pass an order directing the respondents to make the payment of remaining GPF amount of Rs. 88,304/- and also Rs. 11,50,665/- towards the interest on delayed payments on retiral dues (GPF, Gratuity, leave encashment, commutation and pension with compound interest @12%.

B. Pass any order/relief/direction(s) as this Hon‟ble Tribunal may deem fit and proper in the interest of justice in favour of the applicant.”

“GPF

Date	Amount	Delay	Interest not paid
Admissible amount was to be paid on 15.11.2016	Rs. 34,59,377/-
A part payment was paid on 18.02.2017	Rs. 33,71,073/-	Three Months Five Days	Rs. 31,789/-
Remaining amount Not Paid	Rs. 88,304/-	Till date i.e. 16.02.2024	Rs. 74,903/-

Gratuity

Date	Amount	Delay	Interest not paid
Admissible amount was to be paid on 15.11.2016	Rs. 20,00,000/-
A part payment was paid on 15.09.2017	Rs. 18,00,000/-	Ten months	Rs. 1,80,000/-
Remaining amount was paid on 04.05.2018	Rs. 2,00,000/-	18 Months and 20 Days	Rs. 37,340/-

Leave Encashment

Date	Amount	Delay	Interest not Paid
Admissible amount was to be paid on 15.11.2016	Rs. 8,99,579/-
A part payment was paid on 18.06.2019	Rs. 4,63,455/-	31 months and three days	Rs. 1,43,671/-
Remaining amount was paid on 17.02.2023	Rs. 4,36,124/-	75 Months and two days	Rs. 3,27,093/-

Pension (Commutation)

Date	Amount	Delay	Interest Due
Admissible amount was to be paid on 15.11.2016	Rs. 36,05,455/-
The payment was paid on 15.09.2017	Rs. 36,05,455/-	Ten Months	Rs. 3,60,545/-

Pension Regular

“35.

Perusal of the impugned order shows that the reasons to deny the interest on Pension are two-fold. One of the reasons is that the gap period is attributable to procedural contingencies and there is no delay. To say the least, this reasoning cannot be sustained in law. For employees, who retired in 2003/2004, pension is released in the years 2011/2012, and yet it is claimed that this cannot be perceived as „delay‟. What would then be termed as a „delay‟ is anybody‟s guess. „Procedural contingencies‟ portrayed as cause of delay, in release of pensionary benefits and that too without anything on record, to explain or substantiate, except inter-se correspondence, between Respondents, in my considered view, is not a valid justification.

46.

The law on grant of interest on delayed payment of retiral benefits is no longer res integra. Time and again this question has cropped up before various Courts and it has been held that when the employer delays the release of Pensionary benefits, it is bound to pay interest on account of the delay. Without burdening this judgement with several judgements, for the sake prolixity, I may only refer to the judgement of the Calcutta High Court in the case of Padma Nath v. State of West Bengal and Others, [2019 SCC Online Cal 2185], which captures some of the judgements on this issue. Relevant paras are as under:

““6. The decisions relied upon support the settled law on the right of a retired teacher or employee to his/her retirement benefits without any delay. The principle that the disbursement of pension and other retirement benefits should not be treated as a matter of bounty but are valuable rights and property and any delay in settlement or disbursement thereof must be compensated with the penalty of payment of interest at the current market rate till actual payment to the employee, as has been held in several cases, including in State of Kerala v. M. Padmanabhan Nair ((1985) 1 SCC 429) [see also D.D. Tewari v. Uttar Haryana Bijli ((2014) 8 SCC 894 : AIR 2014 SC 2861)]. In D.D. Tewari, the court awarded interest to the legal representatives of the deceased employee upon holding that there has been a miscarriage of justice on denial of payment of interest.

7.

In Niranjan Kumar Mondal v. The State of West Bengal reported in (2012) 1 WBLR (Cal) 903, this court relying on Aloke Shanker Pandey v. Union of India reported in (2007) 3 SCC 545 : AIR 2007 SC 1198 explained the concept of grant of interest in that interest is not a penalty or punishment but is an accretion on capital. Interest is therefore to make good the loss of opportunity to the person who could have earned interest on a certain sum of money if that sum of money had been paid to that person on time. The element of compensation also arises from the possible gain made by the person who withheld the amount of money for a certain period of time on the premise that the person thus deprived may have earned interest on the amount invested. The equitable consideration is therefore not only to pay the principal amount to the person who has been deprived but also the amount which that person could have earned by way of interest on the principal amount for the period when the principal amount had been with the concerned authority. In S.K. Dua v. State of Haryana reported in (2008) 3 SCC 44, the issue before the Supreme Court was whether the appellant was entitled to interest on his retirement benefits which were kept pending due to certain charges pending against the appellant. The retirement benefits in that case were paid to the appellant four years after his superannuation. The emphatic words used by the Supreme Court are set out below;

“14.

In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of “bounty” is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.”

8.

In J. Kasthuri v. The Commissioner, Chennai Municipal Corporation, the petitioner was a widow of a Group-D employee and had challenged the recovery of the family pension granted to her. The Madras High Court found the recovery of excess pension released in favour of the petitioner to be unsustainable in view of the law laid down by the Supreme Court in the case of State of Punjab v. Rafiq Masih (White Washer). Dipali Sikder was the petitioner before the court whose husband had completed all formalities for his retirement benefits. In that case, the pension and gratuity were released two years after the petitioner's husband retired and the petitioner approached the court after her husband's death for interest on the delayed payment when the petitioner's prayer was allowed. From the aforesaid decision, it is evident that the courts have held in favour of a claim of interest on delayed payment of pension and other retirement benefits. There is also no ambiguity in the decisions of the courts that a widow or a dependant of a teacher, who has retired from service and has subsequently died, is entitled to the family pension and other retirement benefits.

9.

The question which arises in these writ petitions is, therefore, whether acceptance of the delayed payment by the widows of teachers without claiming interest for such delay at the relevant point of time can be granted after a lapse of time. Simply put, which delay would weigh with the court for the grant or refusal of the interest claimed by the petitioners? Would it be the delay on the part of the concerned authorities in releasing the retirement benefits to the petitioner/his wife or would the court give greater weightage to the delay on the part of the petitioner (widow) in approaching the court with a prayer for interest? In answering this question, the pronouncement of the law as laid down by the Supreme Court in Union of India v. Tarsem Singh reported in (2008) 8 SCC 648 may be referred to. In this decision, it was held that in cases of a continuing wrong being perpetuated by the authorities on a litigant, the court can grant relief despite a long delay in seeking a remedy on the ground that the continuing wrong results in a continuing injury which prevents the claim from becoming one where a court may refuse to exercise discretion in its extraordinary jurisdiction under Article 226 of the Constitution. Union of India v. Tarsem Singh reported in (2008) 8 SCC 648 also referred to instances where the court may refuse to exercise discretion in favour of the writ petitioner where third-party interests have been created in the intervening period of time.

10.

On the aspect of delay, the decision of a Division Bench of this Court in Padma Rani Thakur v. The Secretary, Department of Home reported in (2007) 1 CLJ (Cal) 21 may be referred to where the court held that the rule that belated and stale claims may not be entertained is not a rule of law but a rule of practice and the principle on which the relief to a party is denied on the ground of delay is that the rights which had accrued to others by reason of such delay should not be disturbed unless there is reasonable explanation for the delay. The principle is that parallel rights should not be created or accrued in the interregnum when the party who ought to have come to a court stayed away. The said decision is also important for the proposition that a writ court should not dismiss a claim on the ground of delay when a citizen alleges infringement of a fundamental right; the principle being that there can be no loss of fundamental right for the non-exercise of such right.

11.

That the right of writ petitioner to get his retiral dues on the date of attaining superannuation is a valuable right and a legal duty is hence cast upon the concerned authorities to ensure that such a right is not defeated; Satya Ranjan Das v. The State of West Bengal reported in (2007) 3 CLT 531.

12.

In the facts of these writ petitions, if the right to payment of interest on delayed payment and the right of a widow to approach the court as well as the question of delay on the part of the writ petitioner is answered in favour of the petitioners, there does not seem to be any justification for refusing the claim of interest solely on the ground that there is no document to substantiate the pleading in the writ petition that the writ petitioner as well as her husband had made such a prayer during the lifetime of the husband (the retired teacher). Taking recourse to such a technicality would amount to depriving the petitioner of a right guaranteed under the Constitution of India as well as creating an unnatural distinction between the deceased pensioner and his dependants. If a similar prayer made by the pensioner (the retired school teacher) could have been entertained by a writ court, as is being done in a large number of cases, there is no reason why a widow should be shut out from such entitlement. The Supreme Court in S.K. Dua v. State of Haryana reported in (2008) 3 SCC 44 elevated the claim of interest in the absence of statutory rules, administrative instructions or guidelines to a constitutional right under Part III of the Constitution. Even though there has been a delay in the present case and as well as in the other writ petitions in the actual disbursement of the pension by the authorities, this court is of the view that the right of the petitioners to claim interest on the delay in disbursing the retirement benefits to their respective husbands cannot be refused.”

“5.1

Be that as it may, the applicants sought VRS in the year 2019 in terms of the scheme introduced and adopted by the respondents-MTNL. This VRS request was confirmed by the respondents in the year 2020. From the counter reply it is clear that there is delay in release of retiral dues. The submission of the learned counsel for respondents No. 3 to 5 that the applicants have sought VRS and have not retired on attaining the age of superannuation, and, therefore, are not entitled to any interest on delayed payment of retiral dues, cannot be accepted.

5.2

In light of the fact there was a delay in release of retrial due to shortage of funds with the MTNL. The OA is allowed. The respondents are directed to pay interest on the delayed payment, on applicable GPF rates within a period of eight weeks from the date of receipt of a certified copy of this Order. No order as to costs.”