HON’BLE SRI JUSTICE R. KANTHA RAO
WRIT PETITION NO. 18306 OF 2002
Between:
Z. Prabhaker Rao …Petitioner And A.P.State Financial Corporation, Hyderabad and another …Respondents HON’BLE SRI JUSTICE R. KANTHA RAO
WRIT PETITION NO. 18306 OF 2002
ORDER:
This writ petition is filed seeking a writ of mandamus in the nature of direction to the respondents to pay the incentive amount of Rs.32,000/- for the financial year 1995-96, details of which are available with the respondents.
2. The brief facts stated in the affidavit filed in support of the writ petition are as follows:
The petitioner worked in the first respondent-Corporation for 33 years and retired as Deputy General Manager, HRD on 31.07.1996. The first respondent Corporation in its oard meeting dated 05.06.1997 resolved to sanction an advance which is non-interest bearing equivalent to 20% basic pay personal/special pay and dearness allowance as on 31.03.1996 on an annual basis to each of the employees who were on the rolls of the Corporation as on 31.03.1996 and continue to be in service of the Corporation as on the date of the payment of advance excepting the following categories of employees who ceased to be in service of the Corporation on or after 01.04.1995 either due to death/resignation or retirement due to (a) superannuation (b) VRS and deputations with the Corporation and that the said advance shall be paid subject to furnishing an undertaking by the eligible employees of the Corporation to the effect that the said advance amount shall be recovered from the employees as decided by the management of the Corporation.
3. After retirement, the petitioner made an application to the Corporation for grant of the aforesaid incentive which according to him was called as exgratia initially on the ground that he was not aware of the payment of the exgratia only after obtaining discreet information he came to know about it only in the month of November, 2001 and immediately he sent a letter dated 21.11.2001 to the first respondent corporation stating therein that in spite of the fact that two employees by name Sri K.Ranga Swamy Reddy and Sri Sudhakar Rao who were similarly placed like the petitioner were paid the incentives though they were not employees of the Corporation at the time of the payment. Subsequently, it is submitted by him that he sent so many letters and ultimately he received a reply from the first respondent Corporation informing him that he is not eligible for the payment. It is further submitted by him that after prolonged deliberations with the management of the first respondent Corporation, the Government issued G.O.Rt.No.356, dated 24.04.2001 ratifying the action of the first respondent in paying the incentives as advance to the employees but directing a token deduction/recovery of 15% from the amounts paid as advance at the time of payment. According to the petitioner, in case of the aforementioned two officials though the incentives paid to them were withheld from their terminal benefits, later refunded to them after complying with the G.O.Rt.No.356 Industries and Commerce (IP) Department, dated 24.04.2001. He stated that he could know all these facts shortly before he addressed his letter dated 21.11.2001 to the first respondent Corporation. Under the aforesaid circumstances, the petitioner filed the present writ petition seeking a direction to the respondents to pay him the incentive amount of Rs.32,000/-.
4. In the counter-affidavit filed on behalf of the respondents, it is contended as under:
As per the board resolution of the respondent-Corporation, the incentive was decided to be paid as on 31.03.1996 on annual basis to each of the employees on the rolls of the Corporation as on 31.03.1996 to those who continued to be in the service of the corporation as on the date of payment of the advance. Nextly, it is contended that the advance was required to be paid subject to the eligible employees furnishing an undertaking to the corporation to the effect that the said advance shall be recovered from the employee as would be decided by the management of the corporation. It is further contended that the petitioner is disentitled to claim the advance payment as per the resolution of the board of directors dated 05.06.1997 since the petitioner was not on the rolls of the first respondent corporation as on the date of effecting the advance payment. The advance amounts were paid only to the existing employees who were on the rolls of the Corporation as on the date of payment. Thus, the specific contention of the first respondent is that as per the board resolution, the employees who retired on the date of effecting payment were specifically excluded the retired employees from making advance payment. As regards the employees Sri K.Ranga Swamy Reddy and Sri B.Sudhakar Rao who retired on 31.10.1997 and 31.12.1998 respectively, it is said that they were eligible for advance payment in terms of the board resolution dated 05.07.1997 as they were on the rolls of the corporation at relevant time. It is further contended that after prolonged correspondence, the government ultimately rejected the request of the corporation and directed to regularize all the advance payments made to the employees by recovering from the salaries of the employees in suitable instalments. The version of the respondent is that the government only ratified the action of payment of advance by the corporation keeping in view of the difficulty faced at ground level for recovery but not accorded approval for payment of incentives. It is submitted that the petitioner who was not on the rolls of the Corporation as on the date of advance payment is not entitled to claim as per the resolution of the board of directors dated 05.07.1997. As the employees who ceased to be in the service of the corporation on or after 01.04.1995 either due to death/resignation or retirement due to superannuation were specifically excluded. Contending as above, the respondents sought to dismiss the writ petition.
5. In the reply affidavit filed thereafter, the petitioner reiterated the same submissions made in the writ petition and contended that merely because he was not in service as on the date of payment of advance, it cannot be said that he is not entitled to the same. According to him, as he was very much in service during the financial year 1995-96, he is entitled for the advance payment/incentive. His version is that since the Corporation has been paying exgratia/incentive from 1967 without any break, the amounts so paid part took the character of wages and these amounts earned by the petitioner during financial year 1995-96,therefroe became deferred wages.
6. Now the point for determination in the present writ petition is whether the petitioner is entitled for a direction to the respondents to pay him the incentive for the financial year 1995-96.
7. From the counter-affidavit filed by the respondents it is evident and also not in dispute that the petitioner was not in service as on the date of payment of advance. The contention of the Corporation is that as he was not in service on the said date he is not entitled for incentive as it is recoverable. Even in the affidavit filed in support of the writ petition, the petitioner stated that it is non interest but recoverable. Further, he contends differently in para 6 of the writ petition, but in the subsequent paras he stated that in respect of two employees K.Ranga Swamy Reddy and B.Sudhakar Rao the amount was withheld from their retiral benefits but subsequently the same was released for which no proof has been placed on record. There is no denial to the fact that both the aforesaid employees were in service on the date of payment of incentive as per the board resolution, whereas, the petitioner was not in service on the said date. What all he contends is that as the incentive relates to the financial year 1995-96 and during the said financial year, he was in service and therefore he is entitled for incentive. He made the claim for incentive long after his retirement and with inordinate delay. He furnished the reasons for such inordinate delay saying that he had no knowledge about the developments and soon-after he came to know about sanction of the said incentive, he made the application to the respondents.
8. Learned counsel appearing for the petitioner relied on the following judgments of the Hon’ble Supreme Court in support of his contention that non-payment of incentive to the petitioner is arbitrary and illegal and this Court will have to exercise its jurisdiction under Article 226 of the Constitution of India to grant the relief to the petitioner:
i) In COMPTROLLER AND AUDITOR GENERAL OF INDIA, GIANPRAKASH, NEW DELHI AND ANOTHER v. K.S.
[1]
JAGANNATHANAND ANTOHER wherein it is held as follows:
“The High Courts exercising jurisdiction under Article 226 of the Constitution have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring discretion or the policy for implementing which such discretion has been conferred. In all such cases and any other fit and proper case the High Court can compel the performance in a proper and lawful manner of the discretion so conferred and in a proper case in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions, which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion. “
9. The aforesaid decision is not applicable to the facts of the present case as there is no arbitrary exercise of discretion by the respondents in the instant case. As the petitioner was not in service, on the crucial date of payment of the incentive, the respondents rightly refused him to grant the incentive on a claim made by him long after his retirement.
ii) In MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF
[2] ELECTION COMMISSIONER,NEW DELHI AND OTHERS the
Hon’ble Supreme Court held as follows:
“When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out.”
10. The aforesaid judgment is also not applicable to the facts of the present case since in the instant case the respondents have not taken any new grounds in the counter affidavit. In reply to the petitioner, the respondents need not furnish elaborate reasons. In the instant case, this court is of the view that the respondents have not pleaded any new facts in the counter. Moreover, the petitioner himself mentioned in the affidavit filed in support of the writ petition that the incentive is recoverable and the same would be recovered in instalments from the salary of the employee concerned.
11. Learned counsel appearing for the respondents contended that the petitioner had chosen to approach this Court by invoking the jurisdiction under Article 226 of the Constitution of India with inordinate delay and in the facts of the present case, on account of the laches on the part of the petitioner, this Court is not supposed to exercise jurisdiction under Article 226 of the Constitution of India. In support of his contention, he relied on P.V.
[3] NARAYANA v. APSRTC, HYDERABAD AND OTHERS wherein this
Court after referring to various judgments of the division bench of this Court as well as Supreme Court held as follows:
“Therefore, in our considered opinion, the employee has no automatic right to challenge the order of the authority at any time or whenever he wishes. The principles laid down by the Apex Court governing the condonation of delay will certainly and equally have application even in cases where challenge is made to an order imposing the punishment contrary to the Regulations, where the employee had slept over the matter and had not chosen to challenge it within a reasonable period of time. It may also be noticed that in service matters, the Courts have applied the rule of delay with greater rigor.”
12. The judgment relied on by the learned counsel appearing for the respondents squarely applies to the facts of the present case. In the instant case, the petitioner pleads ignorance of his knowledge for incentive of the year 1995-96. His version is that he came to know upon making discreet enquiries only in the year 2001 is highly unconvincing. He retired from service in the year 1996. He claimed the incentive by addressing a letter to the respondents in the year 2001. The incentive/advance which was to be paid to the employees of the first respondent corporation is recoverable and therefore, as rightly contended by the learned counsel appearing for the respondents the petitioner who retired from service and received the retiral benefits is not entitled to claim incentive after long and inordinate delay. Since the petitioner retired in the year 1996 itself, it is not possible for the corporation to recover the same from the petitioner even from his retiral benefits. The petitioner is therefore not entitled to claim the incentive. Moreover, on account of laches on his part and his explanation for the delay in approaching this Court being totally unconvincing, in the considered opinion of this Court, the petitioner is not entitled to invoke jurisdiction under Article 226 of the Constitution of India.
13. For the foregoing reasons, the writ petition fails and the same is dismissed without any order as to costs.
R.KANTHA RAO, J Date:15.07.2014 Ccm THE HON’BLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION NO. 18306 OF 2002
Date:15-07-2014
[1] (1986) 2 SCC 679
[2] AIR 1978 SC 851(1)
[3] 2013(4) ALD 386 (FB)