IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3246 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================== =============== BIPINCHANDRA A UCHAT - Petitioner(s) Versus STATE OF GUJARAT & 5 - Respondent(s) ========================================== =============== Appearance :
MR AJ SHASTRI for Petitioner(s) : 1, MS. V.S. PATHAK, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1 - 3.
RULE SERVED for Respondent(s) : 4 - 6.
========================================== =============== CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT By way of this petition under Article 226 of the Constitution of India the petitioner, a retired teacher has prayed for the following reliefs :-
“(A). Be pleased to direct the respondents- authorities to forthwith complete all necessary formalities and steps and pay immediately the amount as shown in Paragraphs 10 & 11 of this Petition with interest at the rate of 18 percent per annum till realization by deprecating the inaction and delay which has occasioned by the respondents-authorities.
(AA). Be pleased to issue an appropriate writ, order or direction directing the respondent-authority to calculate the amount of interest at the rate of 18 percent per annum till realization and be further pleased to direct the same to be paid forthwith on the aforementioned amounts under various heads;
(B). Pending admission hearing and final disposal of this Petition, be pleased to direct the respondents-authorities to calculate the amount of difference, outstanding amount and the interest at the rate of 18 percent per annum on the said amount and submit the calculation before this Hon'ble Court and be further pleased to direct the respondents-authorities to deposit the said amount along with the interest and permit the petitioner to withdraw the same on suitable conditions;
(BB). Pending admission hearing and final disposal of this petition, be pleased to direct the respondent-authority to put the calculation of interest at the rate of 18 percent per annum on the aforesaid be lated payment under various heads and deposit the said amount before this Hon'ble Court and permit the petitioner to withdraw the same on suitable conditions:”
2. The case made out by the petitioner in his Petition may be summed up thus:
2.1 The petitioner was serving as a confirmed teacher in a school, named Smt. K.S. Mehta Nutan Kanya Vidyalaya, run and administered by respondent no. 4, Shri Nutan Kelvani Mandal.
2.2 On 26.09.1997 petitioner gave an application for voluntarily retirement from the service. On 24.12.1997 petitioner was granted permission to voluntarily retire from the service. The permission was accorded by the office of the Director of Pension and Provident Fund.
2.3 Petitioner retired w.e.f. 06.01.1998. On 25.05.1998 petitioner was paid an amount of Rs. 67,173/- towards G.P.F. Sometime in December 1998 after the implementation of 5th Pay Commission, merely the petitioner wrote a letter to pay pension and other retiral benefits along with arrers pertaining to the implementation of the 5th Pay Commission. However, no heed was paid to the request of the petitioner.
2.4 On 15.04.1999, petitioner once again reiterated his request. On 13.07.1999 petitioner was informed that his pension and gratuity amount has been sanctioned, but the petitioner will have to produce a certificate from Medical Board. Respondent no. 4, Shri Nutan Kelvani Mandal forwarded the papers to the office of the Director of Pension and Provident Fund, sometime in April, 1999, despite the fact that the petitioner had retired in January, 1998.
2.5 On 26th July, 1999, the petitioner informed the school authorities to send a letter informing the petitioner to appear before the Medical Board. On 02.08.1999, the petitioner personally visited the concerned hospital and requested for a certificate from the Medical Board. On 09.08.1999 the petitioner requested the institution to place all relevant papers and his case before the Director of Pension and Provident Fund and also sought an explanation for the delay caused on the part of the institution.
2.6 On 23.09.1999 the respondent-school informed the petitioner that the school has sought guidance from the office of the District Education Officer. On 07.10.1999, the D.E.O. informed once again to place the file of the petitioner before the Director of Pension and Provident Fund.
2.7 On 2nd of November, 1999, the D.E.O. for the purpose of commutation, placed the papers before the Director of Pension and Provident Fund for its necessary approval. On 05.11.1999, the petitioner presented himself before the Medical Board and all necessary papers were submitted to the concerned authorities. On 24.01.2000, the petitioner was informed to apply in triplicate for commutation purpose.
2.8 On 25.01.2000 the application was once again forwarded by the respondent authority, despite the fact that the petitioner had retired in January, 1998. On 14.02.2000 the D.E.O. informed that the petitioner's application has been forwarded with all details to the Deputy Education Director, Gandhinagar. On 19.10.2000, the Director of Pension and Provident Fund informed the petitioner to produce the certificate from Medical Board in view of the provisions of Bombay Civil Service Rules. On 30.11.2000, the school sent the form with respect to the B.C.S.R. to Jamnagar Medical Board.
3. It is in these set of circumstances that the petitioner was left with no other option, but to file this petition redressing the grievance that though he retired way back in January, 1998, his retiral benefits were not released in time, as a result of which the petitioner had to suffer a lot of beneficial hardship and difficulties. According to the petitioner this case is a fine and conclusive example of gross dereliction of duty and negligence on the part of the respondent authorities in releasing the retiral benefits of an employee.
4. It appears that this petition was preferred in the month of May, 2001. Notice was issued on the respondents making it returnable for the first time on 06.07.2001. During the pendency of the petition, it appears that the amount of commutation to the tune of Rs. 4,46,833/- was paid to the petitioner on 20th October, 2001. The amount which was otherwise due and payable on 07.01.1998 was paid to the petitioner almost after four years. Under the circumstances, the petitioner moved a draft amendment highlighting the delay caused by the respondent authorities in exactly paying the retiral benefits. By way of the draft amendment the petitioner prayed that writ be issued upon respondent authorities to calculate the amount of interest at the rate of 18 percent per annum till realization, on the delayed payment of the retiral benefits under various heads. The draft amendment was allowed and accordingly, it was carried out.
5. The respondent authorities appeared in response to the notice issued and opposed this petition by filing affidavit in reply. It appears from the record that affidavit in reply was filed by one Ramniklal Gopalbhai Aghera, Principal Government High School, Jethpur, Rajkot. The stand taken in the affidavit in reply may be summed up thus :
5.1 None of the fundamental or legal rights of the petitioner has been violated because of any action or inaction on the part of the respondent and therefore, the petition was not maintainable in law and it deserves to be dismissed. While in service the petitioner was drawing his pay under senior time scale but as he had availed of leave without pay, the Audit Department did not approve the senior time-scale. Meanwhile, as per the Government Resolution dated 16.08.1994 the petitioner opted and accepted Three Tier Pay Scale Scheme and gave up the senior time-scale. As the petitioner had availed of leave without pay exceeding Rs.700/-, it was not within the authority to sanction the same as per Regulation 30 of the Gujarat Secondary Education Regulations of 1974. Accordingly, it was refused by office of respondent no. 3. The papers regarding the sanction of pension were submitted after the voluntary retirement.
5.2 When the pension papers were submitted, the petitioner had not applied for commutation but demanded for pension as per the new scale. The implementation of the revised pay scale as per recommendations of the Pay Commission took sometime due to administrative procedure and exigencies. The delay could not be said to be intentional.
5.3 Petitioner voluntarily retired from service on 06.01.1998 whereas his pension papers were submitted by the respondent school authorities after 17 months, i.e. on 18.05.1999, in the office of respondent no. 3. Therefore the delay was on the part of respondent nos. 4 and 5. An explanation was also sought for by office of respondent no. 3 from respondent nos. 4 and 5.
5.4 If the petitioner had agreed to accept pension in the running pay scale at the time of retirement, then it would not have caused much delay. There is a provision for revision of pension in the new pay scale but the petitioner insisted for revision of pay first and thereafter asked to fix the pension on the same.
6. Respondent nos. 4 and 5 have also filed their reply. The stand taken in the reply may be summed up thus :
6.1 There was no delay or gross delay on their part, as all the relevant papers were forwarded to the sanctioning authority for necessary action. The commutation of pension is also to be sanctioned by the Sanctioning Authority and the delay was caused due to breach of Rule 30 of the Regulation regarding L.W.P., failure on the part of the petitioner to produce the required certificate of Medical Board of Jamnagar in a proper form, though necessary help was extended to the petitioner.
7. It appears from the record that the petitioner filed an affidavit-in-rejoinder to the reply of the respondents taking the following stand. Petitioner has applied for pension immediately to the respondent authority and there was no delay on the part of the petitioner. The resolution of the Government dated 16.08.1994 relied upon by the petitioner was not served on the petitioner or was not even provided. The respondents have not clarified as to when the petitioner ought to have submitted pension papers and have also not clarified as to when the same was refused by the respondent authority. The petitioner retired voluntarily on 06.01.1998 and received all retiral benefits almost after about two years, and all the formalities were completed on 26.02.1998 and a discharge certificate was also issued. Despite repeated reminders, the retiral dues were not paid under one pretext or the other.
8. I have heard Mr. A.J. Shastri, learned Advocate appearing for the petitioner, Ms. V.S. Pathak, learned A.G.P. for respondent nos. 1 to 3. None appeared on behalf of respondent nos. 4 to 6 though served.
9. Before I deal with the merit of this petition, I am constrained to observe that it is not clear as to whether the affidavit-in-reply filed by respondent nos. 4 and 5 is exactly on record or not. Though the affidavit in reply in the form of objections against application appears to be on the file of this Court but whether the same was exactly placed on record or not is not clear. Nobody has entered appearance on behalf of respondent nos. 4 and 5 and it appears that respondent nos. 4 and 5 may have directly sent their objections to this Court opposing grant of any relief to the petitioner.
10. Having heard learned counsel for the respective parties and having gone through the materials on record the only question that falls for my consideration in this petition is as to whether the petitioner is entitled to claim interest at the rate of 18% as prayed for the delayed payment of his retiral benefits or not.
11. It is undisputed that the petitioner retired on 6th January, 1998 as a teacher and it is also undisputed that the retiral benefits under the different heads were paid to the petitioner after a long and inordinate delay. The chart would make the picture clear as to on which date the requisite amount under a particular head was paid to the petitioner.
12. I am of the view that the explanation which has been tendered by the respondents is nothing but an eye-wash. Assuming for the moment that few problems or difficulties may have cropped up while processing the papers, but in any event it could not have taken four years for the respondent authorities to clear the retiral dues. Under the circumstances, prima facie, I am of the view that the grievance raised by the petitioner appears to be well-founded and 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 petitioner that retiral benefits are not in the nature of 'bounty' is, in my opinion, well-founded and needs no authority in support thereof.
13. The next question that falls for my consideration is as to whether the Government Authorities should be solely held responsible for the delay, or respondent nos. 4 and 5 are also equally responsible. From the material on record, it transpires that respondent nos. 4 and 5 adopted a very callous approach in this matter. It was their duty to expedite the matter more particularly for a person who served the institution for number of years. I am of the view that respondent nos. 4 and 5 are also liable to pay interest on the delayed payment.
14. In the aforesaid view of the matter, the claim of the petitioner deserves to be partly allowed. The petition succeeds and the same is allowed to the extent of awarding interest on the delayed payment of retiral benefits. Respondent nos. 1, 2 and 3 in consultation with respondent nos. 4 and 5 are directed to calculate the interest amount at the rate of 12 percent per annum, payable to the petitioner on the exact amount of all retiral benefits paid to him after 01.03.1998. Upon calculating the requisite amount towards interest, 50 percent of the amount shall be paid by the Government Authorities and the balance 50 percent shall be paid by respondent no. 4, i.e. Shri Nutan Kelavani Mandal. The respondents are directed to calculate the interest amount within a period of four weeks from today and make the requisite payment to the petitioner within four weeks thereafter. Rule is made absolute to the aforesaid extent. No order as to costs.
Hasan./*m [J.B. PARDIWALA, J.]