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2009 DIGILAW 566 (JK)

State Of J. &K. v. Mohinder Nath Jalali

2009-11-17

BARIN GHOSH, GH.HASNAIN MASSODI

body2009
1. We have heard learned counsel for the parties. 2. Writ petitioner, respondent no. 1 herein, approached the Writ Court stating that, although he has retired, his pensionary dues and other terminal dues have not been settled and paid to him. In answer to the writ petition, the State, respondent to the writ petition, justified the delay for settlement of such legitimate and lawful claims of the writ petitioner-respondent, only on the ground that the Service Book and other service records of the writ petitioner-respondent are not traceable. The Writ Court felt that this is no excuse and, accordingly, allowed the writ petition, directed payment of Rs. 3.00 lacs on account for the time being, to be adjusted when the final dues and claims would be ascertained and also directed for re-construction of the service records of the writ petitioner-respondent within two weeks. Aggrieved thereby, the present appeal was filed. 3. In the appeal, a stay petition was also filed. The stay was granted on condition of the appellants depositing the sum of Rs. 3.00 lacs. That sum of Rs. 3.00 lacs has been deposited. The writ petitioner-respondent has filed an application seeking permission to withdraw the said amount of Rs. 3.00 lacs. 4. While considering that application, we thought it fit that we should consider not only the appeal but also the writ petition finally. 5. Learned counsel appearing in support of the appeal, submitted that after the impugned order was passed, an inquiry team was constituted for the purpose of inquiring and investigating how the Service Book of the writ petitioner-respondent got lost. In addition to that, all efforts had been made for locating the Service Book. It was submitted that, despite all such efforts, while the inquiry team could not locate the Service Book and service records of the writ petitioner-respondent, they also could not pin-point the reasons for misplacement of the same. He submitted that investigation as to who may have been responsible for misplacement of those records, is now in process. He added that letters were written to the writ petitioner-respondent, seeking his co-operation, but the writ petitioner-respondent maintained a stoic silence. He submitted that in such circumstances, the appellants have not yet been able to re-construct the service records of the writ petitioner-respondent. 6. We wanted to know from learned counsel for the appellants, what co-operation they wanted from the writ petitioner-respondent. He submitted that in such circumstances, the appellants have not yet been able to re-construct the service records of the writ petitioner-respondent. 6. We wanted to know from learned counsel for the appellants, what co-operation they wanted from the writ petitioner-respondent. To that, the answer was that his clients wanted the writ petitioner-respondent to supply a copy of the Service Book, if the same is with him, and to provide any other information as may be available with him. To our query, the learned counsel appearing on behalf of the writ petitioner-respondent, submitted that his client does not possess copy of his service record and because the service record, which is, by law, required to be kept and maintained by the appellants, has been lost, his entitlement cannot be delayed. 7. An employee of the State, who by serving the State while in employment, has earned service benefits, which include pension and other retiral benefits, could not be denied the same, for, the keeper of the record has misplaced or lost the records. Some thing must be done. What should be done, should be left to the Government, but because it has lost the service record or misplaced the same, it cannot, for a single day, deny the benefits, which have accrued to a retiring member of the work force engaged by the State. 8. Learned counsel for the appellants submitted that the learned Judge should have had given a reasonable time to the appellants to discharge their statutory obligation of settling and paying retiral and other terminal dues of the writ petitioner-respondent. To that, we wanted to know what should be the reasonable time. The answer was six month from today. To us, in no circumstances, the same can be said to be reasonable, the same should, in the circumstances, be deemed to be utterly unreasonable. A Government employee, on his retirement, is entitled to his retirement benefits the day he retires. In the instant case, the retirement took place in 1998. If a Government employee is not entitled to retiral benefits, he must be informed about the same on the day of his retirement. If he is entitled to retiral benefits, all efforts must be made to reach the same to him on the day of his retirement or soon thereafter which, in no circumstances, can stretch to six months. If a Government employee is not entitled to retiral benefits, he must be informed about the same on the day of his retirement. If he is entitled to retiral benefits, all efforts must be made to reach the same to him on the day of his retirement or soon thereafter which, in no circumstances, can stretch to six months. In the instant case, it has stretched to eleven years. 9. Taking note of the fact, that provisional pension has been paid to the writ petitioner-respondent, we are not taking a serious view of the matter in the instant case. We concede to the prayer for six months more time and, accordingly, direct that, whether Service Book is re-constructed or not, lawful and legitimate retiral and terminal dues of the writ petitioner-respondent shall be made available to him within a period of six months from today. The retiral dues, to which the writ petitioner-respondent is entitled, shall carry interest at the rate of 5% from the date of his retirement until today. The interest shall stop accruing from today until three months. In the event, the retiral and other dues are settled beyond three months, the writ petitioner-respondent shall be entitled to 10% interest. The writ petitioner-respondent shall be at liberty to withdraw the sum of Rs. 3.00 lacs deposited in this Court which shall be adjusted with the dues of the writ petitioner-respondent after the same are finally calculated. Insofar as the G.P. Fund is concerned, interest in respect thereof, shall be at the rate prescribed by the Government and for the purpose of payment of the arrears in relation thereto, it must be deemed that the amount due to the writ petitioner-respondent on that account, remained in the G.P. Fund account entitling the writ petitioner-respondent to interest at such rate until payment. 10. The order under appeal is modified to the extent as above. 11. The appeal, CMPs and the writ petition are disposed of.