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2010 DIGILAW 1918 (RAJ)

R. K. Chaudhary v. State of Rajasthan

2010-11-15

PRAKASH TATIA

body2010
JUDGMENT Hon'ble TATIA, J.—Heard learned counsel for the parties. 2. Initially, the petitioner filed this writ petition for the reliefs that the respondents be directed to release and pay regular pension, commutation as well as the amount of gratuity to the petitioner, along with interest @ 18% per annum, from the date of his superannuation. 3. It appears that during pendency of this petition, the petitioner has already been paid pensionary benefits as also the amount of gratuity. However, the petitioner's claim now survives in this petition is only with respect to payment of interest of gratuity amount, as according to the petitioner, he is entitled to get interest @ 18% p.a. However, as per Rule 89 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter to be referred to as 'the Rules of 1996') there is a provision for award of interest @ 9% p.a. over the delayed payment. 4. According to the learned counsel for the petitioner, the petitioner retired from the post of Deputy Director, Directorate of Employment w.e.f. 30.11.1997, after completion of 37 years of services. The petitioner, during his service period, filed a civil suit, wherein he also prayed for grant of temporary injunction to the effect that the State Government be restrained from recovering the amount of Rs. 22,837.50. Injunction application filed along with the suit was allowed by the trial Court and ultimately the matter came up before this Court in S.B. Civil Misc. Appeal No. 157/1992, which has been decided by this Court vide order dated 20.9.1993. This Court modified the injunction order and passed the following order : "Consequently, the impugned order is modified to the extent that the appellant is restrained by way of a temporary injunction from recove-ring the amount in question from the salary of the plaintiff-respondent No.1 during the pendency of the suit subject to his furnishing an undertaking to the appellant to the effect that if he retired before the decision of the suit the appellant would be entitled to retain the amount in question till the bank guarantee for the same is furnished by the plaintiff respondent No.1. The appeal is thus allowed to that extent and stands disposed of accordingly with no order as to costs." 5. It is not in dispute that the petitioner retired from service w.e.f. 30.11.1997. The appeal is thus allowed to that extent and stands disposed of accordingly with no order as to costs." 5. It is not in dispute that the petitioner retired from service w.e.f. 30.11.1997. It is also not in dispute that the petitioner was served with a charge-sheet dated 19.7.1993 for holding inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. It is not in dispute that charges No.1, 2 and 4 have already been dropped and according to the learned counsel for the respondents, inquiry for charge No.3 has not been concluded till date. Charge No.3 is to the effect that the petitioner took excess payment of Rs. 22837.50, thereby causing loss to the State exchequer. 6. The respondents' contention is that because of pendency of this inquiry as well as because of pendency of civil suit filed by the petitioner, the respondents could not pay the gratuity amount to the petitioner in view of the provisions of sub-clause (c) of Rule 90 of the Rules of 1996, which specifically provides that no gratuity shall be paid to a Government servant until the conclusion of departmental inquiry or judicial proceedings and issue of final orders thereon. 7. I have considered the submissions of the learned counsel for the parties and perused the record. The only question which survives in this petition is that whether the respondents were legally entitled to withhold the gratuity amount payable to the petitioner? 8. For this purpose, relevant is sub-clause (c) of Rule 90 of the Rules of 1996, which is reproduced as under : "(c) No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon." 9. A bare perusal of sub-clause (c) of Rule 90 of the Rules of 1996 clearly reveals that with the help of this Clause, the Government can withhold gratuity amount on the ground that departmental inquiry or judicial proceedings are pending against the employee. The question now arises is, whether the nature of litigation, nature of claim and nature of relief claimed have some relevance while taking a decision under sub-clause (c) of Rule 90 of the Rules of 1996? The facts of this case reveal that for the claim of the respondents for a sum of Rs. The question now arises is, whether the nature of litigation, nature of claim and nature of relief claimed have some relevance while taking a decision under sub-clause (c) of Rule 90 of the Rules of 1996? The facts of this case reveal that for the claim of the respondents for a sum of Rs. 22837.50, the petitioner approached the Civil Court and the Civil Court granted injunction in favour of the petitioner restraining the respondents from recovering the said amount. The matter came up before in Court in Misc. Appeal and this Court vide order dated 20.9.1993 modified the injunction order to the effect that the respondents shall not recover the disputed amount from the petitioner during pendency of the suit, however, subject to his furnishing an undertaking to the appellant to the effect that if he retired before the decision of he suit the appellant would be entitled to retain the amount in question till the bank guarantee for the same is furnished by the plaintiff respondent No.1, who is petitioner before this Court. The petitioner initially complied with the order dated 20.9.1993 and furnished bank guarantee, but according to the respondents on subsequent occasions he did not renew the bank guarantee, which he should have. Be that as it may, the fact remains is that the petitioner filed the suit so that he may get even the dispute amount of Rs. 22837.50 or may get the decree restraining the respondents from recovering the said amount, so that may get all retrial benefits preventing the respondents from adjusting the above disputed amount. The petitioner, if would not have filed the suit or the respondents would have succeeded in persuading the Court that they are entitled to recover the amount, the respondents could have got relief of deduction of Rs. 22837.50, but certainly the respondents could not have got the relief which they themselves took by retaining huge amount of Rs. 401815. Virtually, in this case if respondents' contention is accepted then that will mean if any employee fight in Court for his rights by filing suit then respondents can deny the employee the benefit of his admitted legal and legitimate dues. Clause (c) of Rule 90 of the Rules of 1996 cannot be read to mean that for any litigation of any kind the respondents can deny the legal benefits of the employee. Clause (c) of Rule 90 of the Rules of 1996 cannot be read to mean that for any litigation of any kind the respondents can deny the legal benefits of the employee. In the facts of the case, the respondents' only right to the maximum extent was to retain, deduct or recover the amount of Rs. 22837.50 and not beyond that. 10. There is force in the submission of the learned counsel for the petitioner that the respondents, at the most, could have retained the amount of Rs. 22837.50, but that too they had no right to retain the same in view of the order dated 20.9.1993 passed by this Court, till the injunction order was in force, on furnishing an undertaking by the petitioner in pursuance of the injunction order dated 20.9.1993. There is also force in the submission of the learned counsel for the petitioner that if because of non renewal of the bank guarantee the interim order stands vacated, then also the respondents could have only retain the above amount and should have paid the gratuity amount to the petitioner forthwith. 11. Not only this, the respondents themselves have now no right to take a plea that they had legal right to retain gratuity amount of the petitioner, running in more than Rs. 4 lacs on the ground of pendency of litigation, when the respondents themselves have paid that disputed amount to the petitioner in the month of January, 2006, after dismissal of the petitioner's civil suit on the ground that the Civil Court has no jurisdiction in the matter and the petitioner already approached the Tribunal for getting relief. Therefore, the respondents firstly are under the impression that during pendency of litiation filed by the employee they can retain he amount of an employee which is not in dispute also and if the employee loses the litigation, then the respondent State is liable to pay the amount. The stand of the State is self contradictory as well as unreasonable. Therefore, the respondents firstly are under the impression that during pendency of litiation filed by the employee they can retain he amount of an employee which is not in dispute also and if the employee loses the litigation, then the respondent State is liable to pay the amount. The stand of the State is self contradictory as well as unreasonable. it is virtually saying that the person who wins or who is agitating his claim in the Court of law is not entitled to the amount which is not disputed and if the employee looses his litigation, then on account of non-pendency of any litigation such employee is entitled to the payment of un-disputed amount from the State exchequer in spite of sub-Clause (c) of Rule 90 of the Rules of 1996. Secondly, the respondents themselves have paid due amount of the petitioner during pendency of the litigation before the Tribunal. 12. In addition to above, I do not find any just reason for non-payment of admitted amount due of the petitioner in the respondent State, merely on the ground that the petitioner did not renew the Bank guarantee on subsequent occasions. Thus, non-renewal of bank guarantee by the petitioner, at the most, would have entitled the respondents to deduct the amount of Rs. 22837.50. 13. In view of the above reasons, this writ petition deserves to be allowed and it is hereby allowed. The petitioner though claimed interest @ 18% per annum, but in view of Rule 89(1) of the Rules of 1996 he is entitled to get interest @ 9% per annum from the date of his retrial benefits became due i.e. the day on which he stood superannuated. Respondents are directed to calculate and pay the above amount to the petitioner within a period of two months from the date of receipt of certified copy of this order. No order as to costs.