GUPTA, J. - (1.) THE petitioner was the employee of the respondent United Insurance Company. On the completion of qualifying service he gave notice of 90 days seeking voluntary retirement from service w. e. f. 19/11/1997. His request of voluntary retirement was accepted and he retired on 19/11/1997.
(2.) THE petitioner's case is that he had submitted his papers from terminal benefits immediately after he gave notice seeking voluntary retirement, but he has not been given benefits as yet. It has been averred that the respondents are not correctly counting his length of service for calculating the pension and he has been deprived of his right of commutation of pension as well. It has been further averred that on the petitioner's making repeated requests to the respondents to give retiral benefits to him a cheque for Rs. 1,12,304/- as against gratuity amount was given to the petitioner but at the same time he was asked to make endorsement on the cheque in favour of the respondent-company as some amount was outstanding against him. It has been stated that income tax has been wrongly deducted from the amount payable to him on account of the gratuity and that the amount payable for the leave encashment has also not been correctly calculated as 22 days leave earned by him in 1997 have not been added to his account. It was further been stated that the amount of pension and gratuity could not be retained on account of dues against the petitioner. It has been prayed that the respondents be directed (i) to reckon his 25 1/2 years service for the purposes of pension instead of 25 years; (ii) to refund Rs. 2200/- recovered from the petitioner under the head Incometax and (iii) to release his pension and gratuity without adjusting the amount of loan due against him. In the reply filed by the respondents it has been averred that the petitioner has supressed material facts and has made deliberate misstatements and therefore the writ petition should be dismissed on this ground alone. It has been further stated that even according to the petitioner some amount is outstanding against him on account of the scheme loan and supplementary loan and the respondents are, therefore, entitled to deduct that amount on account specific provision in para 48 of the General Insurance (Employees') Pension Scheme, 1995 and the document Anx. R/1 executed by the petitioner while taking loan. It has also been stated that the petitioner did not complete his pension papers and the matter could not be finalised because of the defects intimated to him time to time. Mr. Lodha contended that even if any amount was outstanding against the petitioner the terminal benefits could not be denied to the petitioner. He pointed out that there was dispute with regard to the outstanding amount and therefore the disputed amount could not be recovered from the pension and gratuity amount. He submitted that the petitioner had served for twenty years and three months and therefore as per the Pension Scheme his qualifying service should be reckoned at 25 1/2 years as he has sought voluntary retirement. He pointed out that the petitioner's leave account has not been correctly maintained as the leave earned by him in the year of his retirement has not been credited to his account. He placed reliance on the cases of State of Kerala vs. M. Padmanabhan Nair (1), Union of India vs. Jyoti Chit Fund & Finance (2), Calcutta Dock Labour Board & Anr. vs. Smt. Sandhya Mitra & Ors. (3), Union of India vs. Wing Commander, R. R. Hingorani (4), R. Kapur vs. Director of Inspection (Painting and Publication) (5), Govind Ch. Mathur vs. State & Ors. (6), Nihal Singh Gehlot vs. UCO Bank & Anr. (7) Mohan Lal vs. State of Raj. (8), and Motilal Sharma vs. University of Rajasthan On the other hand, Mr. Gupta contended that it is because of the inaction and non-cooperation of the petitioner himself that the retiral benefits could not be given to him. He submitted that the mistake, if any, will be corrected by the respondents in the calculation of the leave encashment and the qualifying service but refund of the income tax deducted from the gratuity amount of the petitioner cannot be made as the amount has been deposited in the Income Tax Department. He pointed out that under the Pension Scheme and document Anx. R-1 executed by the petitioner while taking two housing loans amount due against the petitioner can be recovered from the retiral benefits. Distinguishing the rulings relied on by learned counsel for the petitioner Mr. Gupta submitted that in those cases the em- loyee had not given in writing that the outstanding amount could be deducted from the retiral benefits. I have carefully considered the above arguments. It is no denying the legal position that the retiral benefits must be given to the employee immediately after his retirement. The Hon'ble Apex Court has held in the case of State of Kerala vs. M. Padmanabhan (supra) that pensionary and gratuity are no longer bounty to be distributed by the Government to its employees on their retirement but are 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. In the other cases also it has been observed that the Government is trustee in respect of the sums of the pension and gratuity and therefore if payment is delayed the interest should be awarded in favour of the petitioner.
(3.) THE important question that needs determination is whether the respon- dents are entitled to adjust the amount of the house building loans from the amount of pension and gratuity payable to the petitioner. Both the learned counsel have relied on the provisions of General Insurance (Employees) Pension Scheme, 1995 formulated by the Central Government in exercise of the power conferred under Sec. 17a of the General Insurance Business (Nationalisation) Act, 1972. Para 48 of the Scheme reads as follows : ``48 Recovery of dues of the Corporation or a Company:- THE Corporation or a Company shall be entitled to recover the dues to the Corporation or a Company on account of housing loans, advances, license fee, other recoveries and recoveries due to employees' co-op- erative credit Societies from the commutation value of the pension or the pension or the family pension. '' It is obvious that the Pension Scheme itself provides that the amount outstanding against an employee on account of housing loans can be recovered from the pensionary benefits. It is relevant to point out that the petitioner has not challenged the provisions of Para 48 of the Pension Scheme. That being so, there is no legal impediments in the recovery of the outstanding amount on account of housing loans from the pensionary benefits. Further it has not been denied that the petitioner had executed the document Anx. R-1 dated 17. 3. 92 while taking housing loan wherein he had under- taken that in the event of his retirement from the services of the company, the company was authorised to adjust the outstanding dues from Provident Fund, Term Assurance, Insurance benefit payable on retirement, or any amounts that may be payable from the Company on termination of service from the Company and adjust the same towards loan and other dues payable to the company. Such undertakings were given by the petitioner whenever he obtained loan from the Company. The undertakings have been placed at page 80 and 81 of the paper book. It is evident that the petitioner had agreed while taking the loan that if any amount remained due at the time of retirement the same could be adjusted towards his retiral benefits. It is not the case for the petitioner that the undertakings given by him were executed under duress and he did not give undertakings voluntarily. Thus, both as per clause of the Pension Scheme as also the undertakings given by the petitioner, the respondents are entitled to adjust the housing loan amount from the retiral benefits of the petitioner. ;