W.P.(C) No. 10845 of 2009. Case: Achyutananda Parida Vs State of Orissa and Ors.. High Court of Orissa (India)
| Case Number | W.P.(C) No. 10845 of 2009 |
| Counsel | For Appellant: P.K. Rath, P.K. Satpathy, R.N. Parija, A.K. Rout and S.K. Pattnaik, Advs. and For Respondents: Prakash Kumar Mohanty, Additional Standing Counsel |
| Judges | Dr. Durga Prasanna Choudhury, J. |
| Issue | Payment of Gratuity Act, 1972 - Section 7(3) |
| Judgement Date | January 31, 2017 |
| Court | High Court of Orissa (India) |
Judgment:
Dr. Durga Prasanna Choudhury, J.
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Challenge has been made to the inaction of the opposite parties for not sanctioning the interest on the delayed payment of the pension and gratuity.
FACTS
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The factual matrix leading to the case of the petitioner is that the petitioner initially joined as Supervisor, telecommunication under erstwhile Orissa State Electricity Board (hereinafter called "the Board") and after rendering more than 28 years of service promoted to the rank of Assistant Engineer on 17.5.1996. At that time Board was re-designated as Grid Corporation of Orissa (GRIDCO) in accordance with the Orissa Electricity Reform (Transfer of undertaking, Assets, Liability and Personnel) Rules, 1996. Be it stated that the aforesaid Rule was framed under the Orissa Electricity Reform Act 1995 under which the services of all the Telecommunication Engineers including the petitioner appointed under the Board were transferred to GRIDCO for permanent absorption with effect from 1.4.1997.
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It is the case of the petitioner that from 1.4.1997 the employees whose services seized with Board got absorbed with the GRIDCO would get pension after absorption under GRIDCO, petitioner submitted application for voluntary retirement and vide order No. 72794 dated 22.12.1998 the authority under GRIDCO accepted the voluntary retirement of the petitioner and accordingly the petitioner got retired from GRIDCO voluntarily on 31.1.1999.
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In the meantime Government of Orissa in the Department of Energy sought option from the petitioner whether he would draw the pension from the Government or not and the petitioner along with similarly situated Engineers opted to draw their pension from the Government till the date of their permanent absorption in GRIDCO. Pending consideration of such option, the petitioner was sanctioned payment of provisional pension with effect from 1.4.1997 but he was not paid with such provisional pension till 8.4.2009. After the Additional Secretary to Government in the Department of Energy issued a letter on 30.1.2009 to the District Treasury Officer, Khurda stating that the petitioner has not been paid with provisional pension, commuted value of pension and gratuity vide Annexure-6. Petitioner was paid with all his pensionary benefits, i.e., the pension from 1.4.1997 to 31.3.2009 amounting to Rs. 10,44,116/- and gratuity of Rs. 1,49,350/- on 8.4.2009. Such pension was only paid without any interest to the petitioner.
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Be it stated that the petitioner is no way responsible for the delay occurred during the process of sanctioning and disbursing the pensionary benefits although the petitioner supplied all information in time when the authority sought for same in respect of pension. Due to the inaction of the opposite parties petitioner had also filed a writ application vide O.J.C. No. 9922 of 2001 with a prayer to fix up his pay in accordance with Rule 74(b) of the Orissa Service Code which was disposed of on 6.8.2004 with a direction to the present opposite parties to inform the petitioner about the requirements for sanction of regular pension and after necessary compliance of the present petitioner, the opposite parties would take a decision within a period of two months. In spite of the order of this Court no communication was made by the opposite parties to the present petitioner about the requirements and formalities. However, later the Government sought for original service proofs of the petitioner from the GRIDCO. Since the order could not be complied, the petitioner had filed CONTC No. 65 of 2005 before this Court and in that contempt petition the Principal Secretary to Government, Department of Energy informed the Court that vide letter No. 3081 dated 9.3.2005 the pension, gratuity and commuted value of pension of the petitioner has been sanctioned and his pay has been fixed under Rule 74(b) of the Orissa Service Code. After this fact being informed to the Court, the Court passed order in the contempt petition to supply photo copy of the sanction letter dated 9.3.2005 to the petitioner. But despite such order to supply a copy in course of the day, i.e., on 17.8.2007, the opposite parties supplied the copy of the sanction order on 13.11.2007.
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After receipt of the sanction order, the petitioner found that the opposite parties have failed to sanction appropriate scale of pay under Rule 74(b) of the Orissa Service Code in favour of the petitioner for which he filed Misc. Case No. 884 of 2007 in the disposed of writ application bearing O.J.C. No. 9922 of 2001 which was dismissed by this Court on 14.2.2008. Since the opposite parties failed to pay the pensionary benefits right from 1.4.1997 to 31.3.2009 and the gratuity was also not paid for such period, the petitioner preferred this writ application for allowing payment of interest on the delayed payment of pension and gratuity @ 18% per annum.
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Per contra, the opposite party No. 1 filed counter affidavit stating that the writ petition is not maintainable and there is delay in sanctioning and disbursement of pension is attributable to the absolute non-cooperation of the petitioner in not furnishing the required certificates to enable the Department to draw and disburse his provisional pension sanctioned since 4.1.2002. On the other hand, due to non-cooperation of the petitioner, the delay was only caused in drawal and disbursal of the pensionary benefit. Be it stated that due to permanent absorption of the petitioner along with similarly placed persons under the provisions of the Orissa Electricity Reforms Act, 1995, a huge exercise has to be purportedly undertaken by the opposite parties for payment of same and thereby causing delay in issuing letter of sanction in 2000. Only after receiving all the documents from GRIDCO, the Department of Energy sanctioned provisional pension and commuted value of pension on 4.1.2002. After sanction of the provisional pension, the petitioner was required to submit his non-employment certificate for which the same was called for vide letter dated 16.8.2002.
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As the petitioner did not reconcile his minus G.P.F. balance out-lay before the Accountant General, the disbursal of his final pensionary benefit was again complicated. It is the further case of the opposite parties that the Accountant General, Orissa had intimated the Department of Energy to recover Rs. 3,05,216/- from the petitioner towards minus balance of G.P.F. which was later finalized and reduced to Rs. 1,57,647/- by the opposite party No. 4 (Accountant General (A & E), Orissa) and this was intimated to the Department of Energy on 3.12.2004. In spite of the letter of the Accountant General (A & E), Orissa and the same being communicated to the petitioner by the opposite party No. 1 to deposit the amount of negative balance of G.P.F. but the present petitioner failed to comply the same and submitted to adjust the recoverable amount from his gratuity/interest amount of his dues already accrued by law for delayed payment along with the rest of the provident fund accumulation. But the State Government being not empowered to adjust the minus G.P.F. balance, did not finalize the dispute. After receipt of the order from this Court in O.J.C. No. 9122 of 2000 final pension of the petitioner was sanctioned vide letter No. 3081 dated 9.3.2005 and the same was sent to the Accountant General, Orissa with a suggestion to recover Rs. 1,57,647/- as minus balance of G.P.F. and Rs. 37,563/- as excess payment made to the petitioner earlier due to wrong fixation of pay by way of...
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