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Madhya Pradesh High Court · body

2013 DIGILAW 794 (MP)

Bhaskar Ramchandra Joshi v. State of M. P.

2013-07-11

Sujoy Paul

body2013
ORDER 1. By invoking the jurisdiction of this Court under Article 226 of Constitution, the petitioner has prayed for the direction to the respondents to pay amount of computation and gratuity with interest from the year 2000. It is also prayed that the respondents be directed to pay the costs of the litigation. 2. The petitioner was working as Sub-Engineer in Public Works Department (PWD). In 1989-90 some relief work was done on different roads. It is the case of the petitioner that no fund was alloted for payment of work, therefore, the Executive Engineer had granted the fund for payment of work from the head “A/R to roads” in August, 1990. The work was inspected and Collector Datia and Revenue Authority showed their satisfaction. 3. The Auditor has taken objection for the payment of Rs.1,16,113/- done by other head, i.e. “A/R to Roads”. Accordingly, the amount paid by the Executive Engineer is marked as miscellaneous advance to the petitioner. The amount was paid by the Executive Engineer through Revenue authority. Petitioner was nowhere in the picture in the matter of drawing or paying the said amount. The petitioner further contends that he came to know about the action taken by respondents regarding the said advance of Rs.1,16,113/- and then submitted series of representations to the respondents. In turn, the respondent No. 5/ Executive Engineer recommended the matter to the Superintendent Engineer on 14.7.2008, Annexure P/2. The Superintendent Engineer authorised the Executive Engineer for adjustment of the amount by letter dated 16.10.2008 Annexure P/3. The Executive Engineer wrote another letter dated 29.12.2008 to the Collector, District Datia for allotment of fund so that the advance amount marked in the name of petitioner can be adjusted. This letter is filed by the petitioner as Annexure P/4. 4. The petitioner contends that verbal assurances were given to him for refund of the amount after allotment from Collector, but the said assurance could not be translated in reality. The petitioner preferred another representation dated 27.10.2010. The petitioner has stated that because of aforesaid improper action on the part of the respondents, the petitioner has suffered a loss of Rs. 3.00 lacs from the year 2000. The petitioner has also suffered loss of interest on the said amount. The petitioner ultimately sent legal notice on 18.10.2011 Annexure P/6 to the respondent but it could not fetch any result. 3.00 lacs from the year 2000. The petitioner has also suffered loss of interest on the said amount. The petitioner ultimately sent legal notice on 18.10.2011 Annexure P/6 to the respondent but it could not fetch any result. Although by Annexure P/8 the Executive Engineer recommended that the miscellaneous advance against the petitioner’s name be cancelled and allotment be made so that amount can be adjusted, but this letter also could not see the day of implementation. On the basis of aforesaid, it is stated that the action of respondents in not releasing the computation amount and gratuity is bad in law. Lastly, the petitioner contends that delay in payment is solely attributable to the respondents and because of delay the petitioner is entitled for the interest on delayed payment. 5. The said contention is opposed by the respondents by filing return. It is the stand of the respondents that petitioner stood retired from the post of Assistant Engineer on 31.7.2000. It is stated that there was a failure on the part of the petitioner as he did not prepare muster roll of the labourer engaged in the project and did not submit before the competent authority up to March 1990. The petitioner did not complete the formalities within time and because of this delay the allotment of amount was lapsed and the payment was made by the department in favour of the labourer and this amount was adjusted as a miscellaneous advance in the account of petitioner and for this reason the clearance in respect of payment of gratuity and computation amount could not be made in favour of the petitioner. The petitioner belatedly approached the authority and therefore, he is not entitled for any relief. 6. In view of the aforesaid stand, the question is whether respondents are justified in withholding the said amount and whether said amount of gratuity and retiral dues can be forfeited in the manner respondents have done. Another question is whether relief can be denied on the alleged ground of delay in filing the writ petition. 7. A Perusal of letter Annexure P/2 dated 14.7.2008 shows that it was recommended that the work was measured by Sub Divisional Officer on 100% basis and therefore all the proceedings were complete. Thus, it was recommended that amount be released. Another question is whether relief can be denied on the alleged ground of delay in filing the writ petition. 7. A Perusal of letter Annexure P/2 dated 14.7.2008 shows that it was recommended that the work was measured by Sub Divisional Officer on 100% basis and therefore all the proceedings were complete. Thus, it was recommended that amount be released. The Superintendent Engineer by letter dated 16.10.2008 directed the Executive Engineer to do the needful because he is competent to do so. Thereafter, the Executive Engineer wrote a letter to Collector seeking allotment of fund for the purpose of payment. It is gathered that in none of these letters any allegation is made against the petitioner for any irregularity or negligence etc. On the contrary, recommendation was made to release the amount on the ground that the entire process was supervised by the Revenue authorities. 8. It is also not the case of the respondents that petitioner was subjected to any disciplinary proceedings or criminal case because of alleged inaction in making the payment. The most important question is whether the amount of gratuity and terminal dues can be withheld in this manner. It is apt to remember that under Article 300A of the Constitution of India, protection has been granted to the citizen that he shall not be deprived of his property save by authority of law. The word ‘property’ used in this Article has wide meaning. 9. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to process it, to use it and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called “property”. The exclusive right of possessing, enjoying and disposing of thing is property in legal parameters. Therefore, the word “property” connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. The exclusive right of possessing, enjoying and disposing of thing is property in legal parameters. Therefore, the word “property” connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within constitutional protection denotes group of rights inhering citizen’s relation to physical thing, a right to possess, use and dispose of it in accordance with law. The property is the most comprehensive of all terms which can be used, in as much as it is indicative and descriptive of every possible interest which the party can have. The term “property” has a most extensive signification and according to legal definition, consists of free use, enjoyment and disposition by a person of all his acquisitions without any control of diminution, save only by the laws of the land. 10. The apex Court on different occasions had considered the scope and ambit of property. In Madhav Rao Scindia v. Union of India AIR 1971 SC 530 opined that Prievy Purse payable to ex-rulers is property. In Nagraj, K v. State of A.P. AIR 1985 SC 553, apex Court opined that right of person to his livelihood is property which is subject to rules of retirement. In State of Kerala v. Padmanabhan AIR 1985 SC 356 the apex Court opined that right of pension is property under the Government service Rules, In Madhav Rao Scindia v. State of M.P., AIR 1961 SC 298 and State of M.P. v. Ranojirao, AIR 1968 SC 1053 , the apex Court opined that property in the context of Article 300A includes ‘money’, salary which has accrued pension, and cash grants annually payable by the Government ; pension due under Government Service Rules; a right to bonus and other sums due to employees under statute. This view was also taken in AIR 1971 SC 1409 (Deokinandan v. State of Bihar). Bombay High Court in the case reported in (2012) 3 Mah.L.J 126 (Shapoor M. Mehra v. Allahabad Bank ) opined that retiral benefits including pension and gratuity constitute a valuable right in property. In Deokinandan (supra) apex Court opined as under: “(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. In Deokinandan (supra) apex Court opined as under: “(i) The right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no powers to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order denying the petitioner right to receive pension affects the fundamental right of the petitioner under Article 19(1)(f) and 31(1) of the Constitution and as such the writ petition under Article 32 is maintainable.” 11. In the light of aforesaid legal position, it is crystal clear that right to get the aforesaid benefits is constitutional right. Gratuity or retiral dues can be withheld or reduced only as per provision made under M.P. Civil Services (Pension) Rules, 1976. In the present case, there is no material on record to show that respondents have taken any action in invoking the said rules to stop or withhold gratuity or other dues. This is also settled in law that delay cannot be a ground for non-payment of retiral dues. Even otherwise, the record shows that respondents continuously recommended the case of the petitioner for release of the amount in question which gave bonafide impression to the petitioner that his grievances will be readdressed departmentally. When it could not be materialized, at the end, he sent legal notice and then filed this petition. The petitioner cannot be termed as sleeping litigant or a fence sitter. He was vigilant for his rights and, therefore, cannot be thrown on the ground of delay and laches. In fact there is no delay in filing the petition. 12. On the basis of aforesaid analysis, I have no doubt that respondents have erred in withholding the amount of the petitioner regarding gratuity and computation. The delay is solely attributable to the respondents and petitioner cannot be blamed for the same. Accordingly, petition is allowed. The action of the respondents in not paying the amount in question is declared as arbitrary and illegal. The respondents are directed to release the amount within 90 days from the date of production of this order. The delay is solely attributable to the respondents and petitioner cannot be blamed for the same. Accordingly, petition is allowed. The action of the respondents in not paying the amount in question is declared as arbitrary and illegal. The respondents are directed to release the amount within 90 days from the date of production of this order. The amount shall carry interest @ 6% p.a. on delayed payment from the date of entitlement till the date of realization as per judgment of Supreme Court reported in (1994) 2 SCC 240 ( Union of India v. Justice S.S. Sandhawalia (Retd.) and others). In addition, the petitioner shall get costs because respondents have unnecessarily compelled him to file this avoidable litigation. It is calculated as Rs.5000/-, which shall be paid by the respondents to the petitioner within the same time. 13. Petition is allowed.