Heard learned counsel for petitioner, learned Standing Counsel for State and Shri Devak Wardhan, Advocate, holding brief of Shri Shreeprakash Singh, learned counsel for respondents no. 2 to 4.
The petitioner having retired from service on 31.01.2019 is before this Court claiming the payment of gratuity amount of Rs 10,00,000/- and leave encashment of Rs 9,47,103/- along with interest.
This Court vide order dated 12.08.2021 had required learned counsel appearing for the respondent corporation to seek instructions as to within how much time the the retiral dues of the petitioner would be paid.
Today, Shri Devak Wardhan learned counsel for respondent corporation submits on the basis of instructions received that the corporation is having financial difficulty and dues of approximately 160 employees are to be paid and thus no time frame can be given by the Corporation within which the retiral dues as are to be paid to the petitioner can be paid.
Heard learned counsel for parties and perused the record.
It is admitted on behalf of respondents that the date of retirement of the petitioner is on 31.01.2019 and admittedly the dues of gratuity and leave encashment have still not been paid to the petitioner till date. The ground of financial difficulty being indicated by the corporation cannot be considered to be a valid ground to deny the lawful dues to which the petitioner, retired employee of the Corporation, is entitled as a matter of right. This aspect of the matter has been considered by this Court in the case of Samal Chand Tiwari vs State of U.P. & others reported in 2005 SCC OnLine All 1276 : (2006) 62 ALR 698 (All) : (2006) 109 FLR (Sum 12) 6 : (2006) 2 All LJ 45 : (2006) 4 LLJ (Supp) (NOC 114) 870 wherein this Court has held as under:
"4. After considering the rival submissions of the learned Counsel for the parties, I find that the defence of financial crisis on the part of the respondents is neither just nor a valid reason to deny the lawful dues to which a employee is entitled a matter of right.
5. In the case of D.S. Nakara v. Union of India, it has been held as follows:
?pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. (Para 20).
In the course of transformation of society from feudal to welfare and as socialistic thinking acquired respectability, State obligation to provide security in old age, as escape from undeserved want was recognized and as a first steps pension was treated not only as a reward for past service but with a view to helping the employee to avoid destitution in old age. The guid pro quo was that when the employee was physically and mentally alert, he rendered not master the best, expecting him to look after him in the fall of life. A retirement system therefore exists solely for the purpose of providing benefits. In most of the plans of retirement benefits, everyone who qualifies for normal retirement receives the same amount. (Para 22).
Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. (Para 28).
Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. (Para 29)?
6. Thus, retiral benefits are not bounty but a right earned by the employee and thus it is deferred wages payable to a Government servant in lieu of considerable length of service rendered by an employee to the employer.
10. Similarly financial crunch or shortage of funds would not be a valid defence for the State where it is bound to discharge its duties which are statutory or constitutional is also the view taken by the Apex Court in the case of Secretary, Ministry of Chemicals and Fertilizers, Government of India v. Cipla Ltd. and the State of Gujarat v. Shri Ambica Mills Ltd., Ahmedabad In the present case, the petitioner has a fundamental right to earn livelihood under Article 21 of the Constitution of India which includes that after the retirement he is also entitled to receive his deferred wages in accordance with rules. Non-payment of retiral benefits, therefore, of the petitioner is violation of the petitioner's fundamental right under Article 21 of the Constitution of India."
Considering the aforesaid judgement in the case of Samal Chand Tiwari (Supra) it is apparent that the ground being taken by the respondents for withholding of the retiral dues of the petitioner i.e. financial difficulties cannot be considered to be a valid ground on which the respondents can withhold the retiral dues of the petitioner.
Accordingly, the writ petition is disposed of with a direction to the respondent no. 2 i.e. Managing Director, U.P. State Agro Industrial Corporation Ltd to pay the retiral dues of the petitioner within a period of three months from the date of receipt of certified copy of this order along with along with admissible interest strictly in accordance with law. It is clarified that if the gratuity and leave encashment are not paid within aforesaid stipulated time as directed above, the petitioner may also be entitled for penal interest.
Order Date :- 18.8.2021 J.K. Dinkar