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Himachal Pradesh High Court · body

2004 DIGILAW 69 (HP)

OM PRAKASH v. STATE OF H. P

2004-04-07

D.S.AMIST

body2004
JUDGMENT : Hon’ble Mr. D.S. Amist, Member (A):- This case involves interpretation of Rules and requires to be heard by Division Bench. But there is no likelihood of constitution of D.B. in the absence of Judicial Member. The Honble Vice Chairman who is from Judicial side had remained associated with this case at he initial stage in his capacity as Additional Advocate General and cannot hear. In view of this and with the consent of the parties; this case was finally heard and order was reserved on March 17, 2004. 2. The facts of the case are that the applicant Sh. Om Prakash had been serving in the Erstwhile Nahan Foundry Ltd. and served there in various capacities. He joined services of the Foundry on 25.3.1952 and then he reached to the Grade of Assistant Manager and then took voluntary retirement w.e.f. 30.6.1990 after over 38 years of service. 3. In September 1988 the Government of H.P. in consultation with Board of the Nahan Foundry decided as a policy matter to transfer the Nahan Foundry to HPPWD/ I&PH department of H.P. Govt. as a workshop and process for the same was to be completed by 15th October 1988. It was decided that the employees of erstwhile Nahan Foundry shall be absorbed and their interest including seniority and salaries shall be safeguarded. The employees will be allowed to exercise option whether to opt for earlier pay scales or those after the merger vide Annexure A-1. Subsequent to this, vide Notification No. PBW (Spl. Coo)1-A(1)1/89 dated 27.12.1989 of P.W.D., Govt. of H.P. (Annexure A-2) the Nahan Foundry was converted into State workshop for HPPWD & I&PH Department Although the services of the employees of the erstwhile Foundry were deemed to have been transferred to PWD Department w.e.f. 1.10.1988 but with the condition that their pay scale shall not be varied to their disadvantage. They were given the option to exercise either to retain their existing pay scales or to opt for corresponding pay scales of HP. Govt. They could exercise this option even at a later date. Further to this vide para 3.1 of the notification which is relevant to this case the employees were given option either to continue with (a) existing contributory provident Fund Scheme in which case they win not be entitled to pension or (b) to opt for G.P.F. -cum-Pension scheme (Annexure A-2). They could exercise this option even at a later date. Further to this vide para 3.1 of the notification which is relevant to this case the employees were given option either to continue with (a) existing contributory provident Fund Scheme in which case they win not be entitled to pension or (b) to opt for G.P.F. -cum-Pension scheme (Annexure A-2). The applicant though in the beginning did not give any option and was thus deemed to have continued in the old central scale of Nahan Foundry and consequential benefits accordingly but subsequently he exercised his option vide letter dated 15.3.19% (Annexure R-3) to retain the old Contributory Fund Scheme of the erstwhile Nahan Foundry. He was, therefore, entitled for payment of DCRG in accordance with the terms and conditions of the erstwhile Nahan Foundry which was calculated to Rs. 80040/- but was actually paid Rs. 50000/- only in accordance with the "Payment of Gratuity Act 1972" providing the ceiling of Rs. 50000/- as per averments made by the respondents. This amount was paid in two installments of Rs. 43065/- and Rs. 6935/-. The first installment was paid in the month of Nov. 1990 and second was paid on March 1992. 4. Aggrieved at the action of the respondents; the applicant filed the present original application claiming payment of gratuity of Rs. 80040/- as was admissible to him under the terms and conditions of erstwhile Nahan Foundry Rules to which he had opted whereas he was paid DCRG to the tune of Rs. 50000/- under the "Payment of Gratuity Act, 1972" applicable to those employees who opted for H.P. Govt. Scales and the same according to the applicant was not applicable to him. He has, therefore, made prayer for release of remainder amount of D.C.R.G. of Rs. 30040/- by the respondents with 18% interest per annum. 5. I have carefully gone through the pleadings of the parties and the facts and circumstances of the case as borne out from the record. 6. It is observed that the applicant had opted for the pay scale of erstwhile Nahan Foundry and another benefits including the then existing contributory Provident Fund Scheme and accordingly, he was governed by the same rules which were in existence prior to the merger of the Nahan Foundry into HPPWD/I&PH Department-Workshop in October 1988. On his retirement the D.C.R.G. amount due to him was calculated at Rs. On his retirement the D.C.R.G. amount due to him was calculated at Rs. 80040/- by the respondents department as is evidently clear from the office order of the Executive Engineer (Mechanical) Nahan Foundry dated 1.11.1990 placed at Annexure A-5. It was also recommended by the respondent-department i.e. the Chief Engineer (Mechanical), HPPWD to the Secretary, P.W.D., HP. Govt. vide Annexure A-12/T to release him the DCRG at the rate of Rs. 80040/- instead of putting a ceiling of Rs. 50000/r under the "Gratuity Act but the respondent No. i.e. Secretary HPPWD and the Finance department rejected the same maintaining that the ceiling of "Gratuity Act shall be applied in payment of DCRG to the applicant The matter thereafter remained under correspondence between the parties but the plea of the applicant was not accepted and finally he was paid DCRG of Rs. 50000/- only in two installments as mentioned above. 7. This court observes that the amount of gratuity admissible to the applicant in accordance with the rules of erstwhile Nahan Foundry was calculated to Rs. 80040/- by the respondents-department vide order dated 1.11.1990 at Annexure A-5 and further as mentioned by them in the reply affidavit vide calculation sheet of Chief Engineer, HPPWD as Annexure R-1. This gains further strength from the perusal of the resolution passed by the Board of Directors of Nahan Foundry Limited in their meeting held on 18.12.1991 as per Annexure A-11 dealing with the subject of gratuity. The resolution provides as under- "Resolved that in the case of employees of Nahan Foundry Limited getting salary/wages above Rs. 2500/- per month, the gratuity shall be paid to them under the Payment of Gratuity Act 1972, subject to the condition that the amount of gratuity payable to such employees under the Act shall not exceed 20 months salary/wages or Rs. 1.00 Lac, which ever is less." 8. While putting ceiling of gratuity to Rs. 1.00 Lac., this order was made applicable to the employees retrospectively w.e.f. 1.1.1986. The basic pay of the applicant in the erstwhile Nahan Foundry was Rs. 2900/- per month at the time of retirement with dearness allowance at the rate of Rs. 1102/- per month i.e. total Rs. 4002/- per month and as such in pursuance of the above resolution of the Board his D.C.R.G. clearly comes to Rs. The basic pay of the applicant in the erstwhile Nahan Foundry was Rs. 2900/- per month at the time of retirement with dearness allowance at the rate of Rs. 1102/- per month i.e. total Rs. 4002/- per month and as such in pursuance of the above resolution of the Board his D.C.R.G. clearly comes to Rs. 80040/- which is also reflected in the calculation sheet chart of the respondents placed at Annexure R-1 and Annexure A-5. As such the applicant is entitled for payment of DCRG at the rate of Rs. 80040/- and old provision of "payment of Gratuity Act" may not be applicable in his case as the ceiling under the Act was also enhanced to Rs. 1.00 Lakh subsequently and made applicable retrospectively as per the decision of the "Board of Nahan Foundry". The plea of the respondents in their reply affidavit is that the Boards resolution was passed on 28.12.1991 (Annexure A-11) cannot be applied to the applicant retrospectively who retired on a prior date of 30.6.1990. There is no force in the pleadings of the respondents because any order of the respondents made retrospectively needs to be applied to all the employees who retire from service prior to that failing which such an order has no meaning. Any financial benefit being announced by the government from retrospective date is always made applicable to the pensioners. As per the pleadings of the applicant three retired employees of the Nahan Foundry have already been paid D.C.R.G. at higher rates and beyond the ceiling of Rs. 50,000/-(Annexure A-9) and the plea of aberration by the respondents does not hold good. The action being discriminatory. As such the plea taken by the respondents cannot be accepted. 9. The applicant has opted for the pay scale and benefits of erstwhile Nahan Foundry rules thereby losing the benefit of pension. Thus, denial of enhanced D.C.R.G. as is claimed by him would tantamount to double jeopardy i.e. loss of enhanced D.C.R.G. and the pension as well. 10. In view of the discussion above, the applicant is entitled for higher rate of DCRG of Rs. 80040/- as per the calculation of the respondent P.W.D. Department and as per his claim whereas he has been paid actually Rs. 50000/-. The left out amount of Rs. 10. In view of the discussion above, the applicant is entitled for higher rate of DCRG of Rs. 80040/- as per the calculation of the respondent P.W.D. Department and as per his claim whereas he has been paid actually Rs. 50000/-. The left out amount of Rs. 30040/- becomes due and must be paid to the applicant So far as the claim of the applicant for interest is concerned and in the absence of any specific pleading as to the rule, it may be observed that the matter remained under correspondence with the Govt. and he was paid lesser amount of DCRG due to genuine belief of the respondents to apply the ceiling in terms of the provisions of the "Gratuity Act, 1972" while ignoring the other related facts of the case. The case of the applicant seems to have suffered due to lack of proper application of mind, mis-interpretation of rules and instructions on the subject and no malafide can be attributed on the part of the respondents. As such and in an fairness the applicant is entitled for existing interest at par with the G.P.G. i.e. 9% per annum from the date of filing of this original application. 11. In view of the above discussion, the respondents are directed to release and pay the remaining amount of DCRG amounting to Rs. 300040/-(i.e. Rs. Thirty thousands and forty only) to the applicant alongwith simple interest at the rate of 9 % per annum from the date of filing of this original application i.e. July 12, 1994. This order shall be implemented by the respondents within a period of three months from the date of this order. With these observations and directions the original application stands disposed of with no order as to cost.