1. By way of this petition, the petitioner has prayed for the following reliefs:-
(A) this Hon''ble Court may be pleased to allow the present petition, by issuing writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents herein to forthwith make the payment of gratuity benefits which comes to Rs.1,39,352/- with interest @ 12% p.a. from 1.7.2005
(B) this Hon'ble Court may be pleased to allow the present petition, by issuing writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents herein to forthwith make the payment of pension calculated on cumulative benefit of Rs.1,86,795/- with 12% p.a. Interest from 1.7.2005.
(C ) this Hon'ble Court may be pleased to allow the present petition, by issuing writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction holding and declaring that the order Annexure'H' dated 17.9.2007 is erroneous, illegal and therefore, the said letter or communication be declared as illegal and void and contrary to the record of the Khadi Board and, therefore, the same may be quashed and set aside.
(D) this Hon'ble Court may be pleased to allow the present petition, by issuing writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents herein to make the payment of Rs.100/- every month towards the medical charges to the present petitioner.
(E) this Hon'ble Court may be pleased to allow the present petition, by issuing writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents herein to make payment of regular pension of Rs.3609/- p.m. to the present petition and all other retirement benefits be included therein.
(F) Pending hearing and final disposal of this petition, the Hon'ble Court be pleased to direct the respondents to forthwith release the amount of gratuity of Rs.1,39,352/- and cumulative pension of Rs.1,86,795/- and further direction to make the payment of pension regularly @ Rs.3609/- p.m.
(G) Rs.25,000/- as compensatory costs of this petition be awarded in favour of the present petition.
(H) xxx”
2. The brief facts leading to filing of this petition are that the present petitioner was serving with the respondent No.2-Board. The petitioner retired on 30.6.2005 and the order for payment of pension and gratuity was passed by the respondent No.2. It is the case of the petitioner that till the date petitioner has not been paid any amount. Hence, this petition.
3. I have heard learned Mr. Gandhi, appearing for the petitioner, Mr. J.K. Shah, learned AGP for the respondent No.1 and Mr. Joshi, learned advocate for the respondent No.2.
4. Learned counsel for the petitioner contended that the payment regarding retiral dues has been paid by the respondents, however, the interest is not paid by the respondents. He further contended that in view of the decision of this Court in the case of Jivraj Vashrambhai Kanjaria Vs. State of Gujarat and Anr., reported in 2005(1) GLR 681, in the case of Rajikant R. Upadhyay Vs. Gujarat Government Through Secretary, Education Department and Ors, reported in 2001(3) GLR 2628 and the decision of the Apex Court in the case of S.K. Dua Vs. State of Harayana and Anr, reported in (2008) 3 SCC 44, the petitioner is entitled to the interest over the principal amount from the date of his retirement.
5. Learned counsel for the respondent contended that pursuant to the order dated 16th May, 2012, passed by this Court, the retiral dues have been paid to the petitioner. He further contended that because of administrative exigency, delay has been caused in payment of retrial dues, therefore, the petitioner cannot claim for interest over the principal amount.
6. It is required to be noted that earlier the present petitioner had filed S.C.A. No.14116 of 2007 before this Court for payment of retiral dues. This Court vide order dated 14.06.2007, disposed of the said petition with a direction to the respondents to consider the case of the petitioner for pensionary benefit as per Board Resolution and State Government Policy and pass appropriate reasoned order in accordance with rule and Resolution of the Board within a period of three months from the date of receiving the Copy of the order.
7. The said order of the learned Single Judge was challenged by the petitioner in L.P.A. No.1081 of 2007. The Division Bench of this Court vide order dated 01.10.2007 dismissed the said L.P.A. The Division Bench, while dismissing the L.P.A. has observed as under:-
The appeal challenges order dated 14.6.2007 passed in Special Civil Application No. 14116/2007 whereby the learned Single Judge directed the respondents to consider the case of the petitioner-appellant for pensionary benefits as per the Board's Resolution and the State Government Policy, and pass appropriate reasoned order in accordance with rules and regulations of the Board within a period of three months from the date of receiving copy of the order.
2. The learned Judge also clarified that in case pensionary benefit is legally due and payable to the petitioner, according to the respondents, the same may be paid as early as possible being undisputed amount within a period of one month from the date of receiving copy of the order. Lastly, the learned Judge observed that in case ultimate decision is adverse to the petitioner, it is open for the petitioner to challenge the same before appropriate forum in accordance with law.
3. The grievance of the appellant is that he retired from service of respondent No.2- Gujarat State Khadi Gramodyog Board with an unblemished career to his credit, and though the Board passed necessary orders to pay the amount of pension and gratuity to the petitioner-appellant upon his retirement, no amount is paid till date and, therefore, the petitioner was constrained to approach this Court with the petition.
4. We have heard learned advocate Mr.Gandhi for the appellant, Ms.Asmita Patel, learned A.G.P. for respondent No.1, and Mr.Premal Joshi, learned advocate for respondent No.2. We have also considered the documents forming part of the appeal.
5. Learned advocate Mr.Gandhi submitted that the case of the appellant as to the entitlement to retiral benefits is accepted by the Board and, therefore, the learned Judge ought not to have relegated the petitioner- appellant to the same authorities with a representation. It is, therefore, submitted that the appeal may be entertained.
6. Learned A.G.P. Ms.Patel submitted that as per the direction of the Court, order has been passed by the Government on 17.09.2007 and nothing further is required to be done in the matter by the respondents. According to her, the case of the appellant falls in the category of `irregular appointment' which would disentitle him the benefits that he has claimed. She, therefore, submitted that in view of the order passed by the Government on 17.09.2007, this appeal may not be entertained.
7. Learned advocate Mr.Joshi submitted that respondent No.2-Board is not liable to pay the retiral benefits to the appellant and it is the responsibility of the State, as the Board functions on the grant received from the State Government. He also submitted that there is no illegality in the order of the learned Single Judge and, therefore, appeal may not be entertained. He further submitted that the learned Single Judge has kept the right of the petitioner-appellant open to challenge the decision that may be taken by the Government, which has already been taken on 17.09.2007, and therefore, this appeal may not be entertained.
8. We have taken into consideration the rival side contentions. In the first instance, we notice that the prayer made in the petition is in the nature of claiming money dues. To quote the same :
"19. The petitioner, therefore, prays that:
(i) Writ of mandamus or any other suitable writ in the nature of mandamus be issued and the Hon'ble Court be pleased to direct the respondents herein to forthwith make the payment of Rs.1,39,352/- towards the gratuity with interest at the rate of 12% p.a. From 01.07.2005.
(ii) Hon'ble Court be pleased to issue a writ of mandamus or any other suitable writ in the nature of mandamus for payment of pension which is calculated on cumulative basis which comes to Rs. 1,86,795/- plus interest at the rate of 12% p.a. From 01.07.2005.
(iii) By appropriate writ, order or direction, every month Rs.100/- towards the medical charges be also directed to be given to the present petitioner.
(iv) By appropriate writ, order or direction, the respondents be directed to make the payment of regular pension of Rs.3,609/- per month to the present petitioner and all other retirement benefits.
(v) Pending the final hearing and disposal of this petition, the respondents herein be directed to forthwith release the gratuity amount of RS.1,39,352/- plus cumulative pension of Rs.1,86,795/- and be pleased to further direct the payment of regular pension and medical charges, in all, Rs. 3,709/- per month.
(vi) Cost of Rs.10,000/- as compensatory cost be awarded to the present petitioner.
(vii) Any other and further relief which this Hon'ble Court deem fit and just be granted to the present petitioner in the interest of justice."
9. We also notice that various disputed questions of fact would be involved for deciding the entitlement of the appellant to the rights claimed in the petition. The respondents are coming out with the case of irregular appointment. It is also to be noted that the Board has passed orders on 15.06.2005 that the appellant is to be paid gratuity etc. payable as per rules. But, according to the Board itself, it is the State Government who is liable to pay, and according to the State Government, the appointment is irregular. Therefore, for adjudicating upon the question of entitlement of the appellant to the claims made by him, various disputed questions of fact will have to be gone into.
Therefore, in our view, the learned Single Judge was justified in refusing to entertain the petition at the stage where it was filed.
10. Apart from the above aspect, the right of the appellant has been kept open by the learned Single Judge while relegating him to the respondents-authorities with a representation to challenge the order thereon if it goes adverse to him.
11. Looking to the nature of the reliefs sought in the petition, the prayer is only for mandamus to make payment rather than claiming entitlement. The petition, therefore, which in our view, is in the nature of money- suit, could not have been entertained by the learned Single Judge. There is no illegality in the order impugned.
12. For the foregoing reasons, we are of the view that no interference is called for with the order of the learned Single Judge impugned in the appeal. The appeal, therefore, must fail. Stands dismissed with no order as to costs.
Order in C.A.No. 8277/2007.
In view of the order passed in main appeal, this civil application does not survive and accordingly, stands disposed of.
8. Thereafter, the present petition has been filed by the petitioner. In this petition, on 15th May, 2008, this Court has passed following order:-
Mr.Gandhi, learned counsel for the petitioner, submits that prayers made in para 10(A) and (B) are related to adjudication of the claim of the petitioner finally by decision dated 17.10.2003 decisions of the learned Single Judge of this Court (Coram : Hon'ble Mr. Justice H.K.Rathod) in Special Civil Application No.8674 of 1999 confirmed in appeal by the Division Bench of this Court in Letters Patent Appeal No.699 of 2004 and allied matters, where the directions issued by the learned Single Judge to both the respondents viz. Gujarat State Khadi Gramodyog Board and Industry and Mines Department, State of Gujarat that they are jointly and severally liable to make payment to the petitioners with regard to the pension and gratuity @9% p.a. from the date of retirement and as held by the Division Bench that not only the revision of pay scale as per the 5th Pay Commission, but the petitioners are entitled for pensionary and other retiral benefits and appeals preferred by the Board came to be rejected. This Court is apprised about the rejection of SLP by the Apex Court preferred by the Authority against the above judgment and order passed by the Division Bench of this Court.
According to Mr.Gandhi, learned counsel for the petitioner, prayer (C) of this petition to declare Annexure-H dated 17.9.2007 as erroneous and illegal is made in the above context and particularly when the claim of the petitioner is confirmed up to the Hon'ble Supreme Court of India.
Mr.Gandhi further submits that the denial of pensionary and other retiral dues to the petitioner after above orders passed by this Court and Apex Court is not only contemptuous but in utter disregard to the rule of law. He further submits that as per the latest decision of the Apex Court in the case of S.K.Dua v. State of Haryana reported in 2008(3) SCC 44 the writ court has to exercise power under article 226 of the Constitution of India and the pensioner cannot be relegated to alternative remedy.
In view of the above and particularly the case of the petitioner the liability of respondents to pay retiral dues is already finalized up to the Apex Court, the stand taken by the Deputy Secretary, Industry and Mines in the impugned communication dated 17.9.2007 is prima facie contemptuous and apparently contrary to the directions issued by this Court. Therefore, Deputy Secretary, Industry and Mines, State of Gujarat is directed to remain personally present before this Court on 16.5.2008 at 2.15 p.m. sharp.
Direct service is permitted.
Copy of this order be given to learned AGP for its quick implementation.
9. Thereafter, on 16th May, 2008, Joint Secretary, Department of Industries and Mines, was present personally before this Court and this Court directed the respondents to finalize retiral dues of the petitioner and apprise this Court about the outcome on 24th June, 2008.
10. It is required to be noted that after passing the order dated 16th May, 2008, the petitioner was paid the retiral dues on 23rd June, 2008 and subsequently, on 10.07.2008, the matter was admitted. It is true that some delay has been caused in making payment of retiral dues. However, it appears that the said delay had been caused on account of administrative exigency. In view of the same, I do not deem it fit to award interest to the petitioner.
11. The decisions which have been relied upon by the learned advocate for the petitioner will not apply to the facts of the present case.
12. In that view of the matter, no further order is required to be passed in this petition, therefore, the present petition stands disposed of accordingly. Notice is discharged.
[K.S.JHAVERI,J.]
pawan