Hon'ble Saurabh Lavania,J.
C.M. Application No. 2144 of 2021 The appeal is delayed by only two days.
Learned counsel for the opposite parties submits that he has no objection to the delay being condoned.
Application for delay condonation in filing the appeal is allowed.
Order Date :- 8.1.2021 SK/-
Case :- SPECIAL APPEAL DEFECTIVE No. - 4 of 2021 Appellant :- U.P.State Construction & Infra.Devlpmnt.Corp.Thru M.D.& Anr.
Respondent :- Ajay Kumar Srivastava Counsel for Appellant :- Anuj Kudesia Counsel for Respondent :- Shishir Jain Hon'ble Rajan Roy,J.
Hon'ble Saurabh Lavania,J.
Heard Shri Anuj Kudesia, learned counsel for the appellants and Shri Shishir Jain, leraned counsel for the respondent.
This is a special appeal against judgement dated 02.12.2020 passed in Writ Petition No.20412 (SS) of 2020.
The facts which are not in dispute are that the respondent herein retired from service of the appellant-corporation while working on the post of Chief General Manager on 31.08.2019. Vide G.O. dated 16.03.2020 issued by the Department of Public Enterprises Government of U.P. relating to payment of dearness allowance to the employees of public undertakings/corporations the rate at which dearness allowance was payable was enhanced to 17 per cent w.e.f. 01.07.2019. This G.O. was to be applied subject to the financial capacity of such public undertaking/corporation to bear the burden of payment of such enhanced dearness allowance. Para 3 of the G.O. also goes on to say that in terms of Para 2 of the said G.O. each public undertaking/corporation shall assess its financial capacity to bear the financial burden consequent to the aforesaid policy decision and thereafter the Managing Director shall communicate the decision of the Board of Directors of such corporation/undertaking to its administrative department in the Government and then the Committee headed by the Principal Secretary/Secretary of the Department of Public Enterprises would consider the proposal of the public undertaking/corporation. The Principal Secretary/Secretary of the administrative department of the said corporation and also the Managing Director are members of such committee at the Government level. The Committee while taking a decision as aforesaid regarding applicability of the said policy decision to a particular public undertaking/corporation is required to take into account the balance sheet of the said corporation as audited by a chartered accountant and shall assess the capacity of the corporation/undertaking to bear the financial expenditure based on its profit. The Committee is also required to undertake the aforesaid exercise from the point of view as to from what date the payment of dearness allowance is required to be made in respect of such public undertaking/corporation. Now, it is not the case of the appellant herein that the procedure prescribed in Para 3 of G.O. dated 16.03.2020 was not undertaken.
The record reveals that on 19.06.2020, the Managing Director of the corporation issued an office order based upon a decision taken by the Board of Directors by circulation for implementing the G.O. dated 16.03.2020. Most importantly, pursuant to the aforesaid decisions the respondent herein was given enhanced dearness allowance at the rate of 17 per cent w.e.f. 01.07.2019 till the date of retirement on 31.08.2020 and based thereon the arrears of salary was also paid, a fact which is not disputed by the appellants herein. Now, the dispute has arisen in this case on account of a representation having been made by the respondent and possibly by other retired employees also who may have been given the benefit of enhanced dearness allowance that they may be paid arrears of leave encashment by calculating the same based on the enhanced dearness allowance w.e.f. 01.07.2019 as admittedly as accepted by the learned counsel for the appellants, dearness allowance is a part of the last pay drawn paid to the officers/employees and leave encashment is to be calculated and paid on the basis of the last pay drawn.
The learned counsel for the appellants does not dispute the fact that leave encashment is payable on the basis of last pay drawn. The undisputed facts before us are that the last pay drawn that was drawn on 31.09.2019 by the respondent which was last day of his service got enhanced on account of enhancement of rate of dearness allowance to 17 per cent w.e.f. 01.07.2019. As such, consequently, the respondent claimed arrears of leave encashment.
The representation as contended by the learned counsel for the appellants was placed before the Board of Directors of the Corporation and was considered by it in its 168th meeting as agenda (Item No. 168 of 2020) as pointed out by the leaned counsel for the appellants. The Board of directors of the appellant-corporation took a decision that the retired employees such as the respondent would be entitled to retiral benefits on the basis of dearness allowance applicable as on the date of retirement which in the case of the respondent is 31.08.2019.
The Resolution of the Board of Directors is quoted herein below:
"168¼20½ fuxe ds lsokfuo`Rr dkfeZdkssa }kjk lsokfuo`fRr ds i'pkr lEcfU/kr le; gsrq 'kklu }kjk egaxkbZ HkRrs ds vuq#i vodk'k udnhdj.k ,oa xzsP;qVh ds vfrfjDRk Hkqxrku ,oa fu;kstd v'kanku dh ekax ds lEcU/k esa fopkjA izLrqr izLrko ds laca/k esa funs'kd e.My dks voxr djk;k x;k fd jkT; ljdkj }kjk le;≤ ij jktdh; deZpkfj;ksa dks egaxkbZ HkRrs dh njsa Lohd`r dh tkrh gS] tks fuxe dkfeZdksa dks 'kklu }kjk fu/kkZfjr izfdz;k ds iw.kZ fd;s tkus ds mijkUr vuqeU; dh tkrh jgh gSaA fuxe esa iwoZ ls LFkkfir O;oLFkk ds vUrxZr fuxe dkfeZdksa ds lsokfuo`Rr ds le; ftl nj ij egxkabZ HkRrksa dk Hkqxrku fd;k tk jgk Fkk mlh nj ij muds lsokfuo`Rr ns;ksa dk Hkqxrku fd;k tkrk jgk gS rFkk Hkfo"; esa iwoZxkeh izHkko ls egaxkbZ HkRrs dh njksa esa o`f) gksus dh n'kk esa Hkh lsokfuo`Rr dkfeZdksa dks mijksDr izfdz;k ds vuqlkj gh egaxkbZ HkRrs ds vuqlkj lsokfuo`Rr ykHkksa dk Hkqxrku fd;k x;k gSA funs'kd e.My }kjk izLrqr izLrko ij xgurk ls fopkj&foe'kZ ,oa izdj.k fo'ks"k ij dh x;h foLr`r ppkZ esa ifjyf{kr gqvk fd iz'uxr izdj.k esa orZeku esa py jgh O;oLFkk ls fHkUu O;oLFkk viuk;s tkus ij vuko';d fookn dh fLFkfr mriUUk gksxh rFkk Hkfo"; esa fuxe dks fof/kd ladV dk Hkh lkeuk djuk iM+ ldrk gSA laiw.kZ izdj.k ij lE;d fopkjksijkUr funs'kd e.My }kjk funsZf'kr fd;k x;k fd fuxe }kjk iz'uxr izdj.kksa ds fuLrkj.k gsrq lsokfuo`Rr dkfeZdksa dks lsokfuo`fRr ds le; ij ykxw egaxkbZ HkRrs dh nj ds vk/kkj ij lsokfuo`fRrd ns;ksa ds Hkqxrku ds laca/k esa iwoZ ls [email protected] x;h izfdz;k esa dksbZ ifjorZu fd;k tkuk mfpr ugha gSA vr% bl laca/k esa lsokfuo`Rr dkfeZdksa dks lsokfuo`fRr ds le; ij ykxw egaxkbZ HkRrs dh nj ds vk/kkj ij gh lsokfuo`fRr lEcfU/kr ns;ksa ds Hkqxrku fd;s tk;saA"
The contention of the learned counsel for the appellants herein is that by this Resolution what the Board has decided is that the retiral benefits shall be paid to the retired officers/employees on the basis of rate of dearness allowance as applicable on the date of their actual retirement which in this case is 31.08.2019, meaning thereby, as understood by the corporation, the subsequent revision in the dearness allowance vide G.O. dated 16.03.2020 even though it has been given retrospective w.e.f. 01.07.2019 shall not be taken into consideration for the payment of retiral benefits including leave encashment as is being claimed by the respondent. It is stated that this resolution was not challenged by the respondent before the writ court. On being asked as to whether this objection was raised by the appellant before the writ court, the learned counsel could not point out any such pleadings by the appellants before the writ court. Furthermore, we find it quite surprising that such a plea should be raised before in an intra court appeal, when the original decision to enhance dearness allowance rate to 17 per cent w.e.f. 01.07.2019 in terms of the G.O. dated 16.03.2020 remains intact and it is the admitted position of the appellants through their counsel, Shri Kudesia that dearness allowance is part of salary/pay, as what is being sought by the respondent herein is only a consequential relief of recalculation of the leave encashment based on the last pay drawn as on 31.08.2019 which would include the enhanced dearness allowance of 17 per cent, therefore, apparently if what is being argued by the learned counsel for the appellants is taken on its face value, the Resolution dated 30.09.2020 is in conflict with and contrary to earlier decision of the Board which has not been cancelled and also the decision of the Government in this regard including the policy decision dated 16.03.2020 regarding the application of which to the corporation at hand there is no dispute and none has been raised by the Corporation before this Court.
The rights of the respondent cannot be defeated on technicalities even assuming that the Resolution was not specifically under challenge before the writ court, for the aforesaid reasons. The undisputed fact as is apparent is that the respondent has been given the benefit of the enhanced dearness allowance from 01.07.2019, consequent to which his last pay drawn has been calculated on the basis of such enhanced dearness allowance and he has even been paid the arrears of salary/pay based thereon. Now, all that is to be done is to recalculate the leave encashment already paid on the basis of last pay drawn. For the reason that the last pay drawn has itself been revised by the appellant-corporation in pursuance to its own decision and resultantly, the arrears of leave encashment are now to be paid to the respondent.
We do not find any fault in the judgement of the learned Single Judge in allowing the writ petition of the respondent and his claim for grant of arrears of leave encashment as aforesaid based on the reasoning given therein especially as, at no stage the corporation raised any objection nor did it submit any proposal to the government and there is nothing on record to show that it did, that the Corporation did not have financial capacity to bear the burden of the policy decision contained in the G.O. dated 16.03.2020 which would obviously include the consequential financial burden that is the consequence of such revision of rate of dearness allowance. If any objection or proposal was to be made, it was to be made at the time of considering the G.O. dated 16.03.2020 but before issuing the decision dated 19.06.2020 by the Managing Director in pursuance to the decision of the Board of Directors as is mentioned therein. The arrears of salary have already been paid to the respondent in installments during the period July, 2020 to October, 2020.
In view of what has been stated, the respondent is entitled to the arrears of leave encashment by virtue of his condition of service as leave encashment is payable on the last pay drawn and last pay drawn has been enhanced consequent to revision of dearness allowance at the rate of 17 per cent w.e.f. 01.07.2019 by the appellant itself, therefore, it is not open for the appellants to take a decision contrary to this principle. The judgement of the writ court does not suffer from any error.
In view of the above, the appeal lacks merit and is dismissed.
Order Date :- 8.1.2021 SK/-