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Gujarat High Court · body

2016 DIGILAW 2187 (GUJ)

Kanaiyalal Atmaram Patel v. State Of Gujarat

2016-11-24

S.G.SHAH

body2016
JUDGMENT : S.G. SHAH, J. 1. Heard learned advocate Mr.V.M. Vyas appearing with Mr.A.J. Yagnik for the petitioner, Ms.Amita Shah, learned Assistant Government Pleader for the Respondent Nos.1 to 3 and Mr.Nirzar Desai, learned advocate for respondent No.4. Perused the record. 2. It is undisputed fact that petitioner was appointed as an Assistant Engineer w.e.f. 11.1.1978 and promoted and transferred on deputation with respondent no.2 – Corporation as Deputy Executive Engineer w.e.f. 25.7.1989. It is also undisputed fact that till 30.4.2005, petitioner has served on different posts at different places with the respondents and, there was no cause for complaint or any inquiry against him. It is also undisputed fact that on 30.4.2005, petitioner sought voluntary retirement from his services. Pursuant to his request for voluntary retirement w.e.f. 1.8.2005 i.e. with prior notice of 3 months, department has permitted him to retire w.e.f. 1.8.2005 and, therefore, his services are to be counted till 31.7.2005. Such fact can be confirmed from office order dated 28.7.2005 which is produced by the respondent with their affidavit in reply at Annexure R1 which confirms that the Government has accepted the request for voluntary retirement of the petitioner and since he has completed 25 years of qualifying service, he is entitled to requisite retirement benefit as per Rules. It is also undisputed fact that pursuant to his intimation for retirement, the office has calculated his retirement benefit and forwarded it to the treasury office on 13.12.2005 i.e. well in advance. Therefore, practically, petitioner was entitled to all retirement benefit on 1.8.2005 and if for some reason, it is not paid on the same date, then, at least earliest thereafter but without unnecessary or undue delay on any count including administrative delay or financial constrain of the respondents. It is also undisputed fact that if at all such retirement benefit or other payment is not made in time and if at all there is delay in making such payment beyond one month, then, by different Government Resolutions at different time, the government has agreed to pay reasonable amount of interest on such payment. 3. It is also undisputed fact that if at all such retirement benefit or other payment is not made in time and if at all there is delay in making such payment beyond one month, then, by different Government Resolutions at different time, the government has agreed to pay reasonable amount of interest on such payment. 3. Whereas, in the present case, now respondent has come forward with altogether a different story that though the petitioner was allowed to retire as discussed hereinabove since he has kept some register; to be endorsed by him during his tenure as Officer of the respondent; blank and, thereby, department has considered it as lacuna on his part in performing his duty and, therefore, not only retirement benefit was withheld but departmental inquiry was initiated against him because according to the respondents even after repeated intimation to fill up such registers, petitioner has not come forward. 4. As against that, it is the case of the petitioner that there is no lacuna during his duties as alleged by the respondents and that he has offered to complete any such lacuna if at all it is there in the form of non-endorsement of certain details in any particular register. However, both the parties could not make it convenient to see that if at all there is any lacuna in the form of keeping blanks in office registers, then, to get such work completed by the petitioner at the earliest. However, I am surprised to note the attitude of the respondents, inasmuch as, when respondents have allowed the petitioner to retire after three months from his intimation, at-least, before the date of actual retirement, it is the duty of the office of the respondents to verify the work of the petitioner and to see that he completed his work before the date of retirement. Such exercise was not done before the actual date of retirement, then, now taking such plea by the respondents is nothing but an attempt to avoid the payment of retirement benefit as and when they were due. Such exercise was not done before the actual date of retirement, then, now taking such plea by the respondents is nothing but an attempt to avoid the payment of retirement benefit as and when they were due. It is also surprising to note that though the petitioner has been retired, now, instead of getting the work if any remain or unattended by the petitioner is to be carried out by his successor even by entering requisite information in particular register, Respondents want the petitioner to access the office record and register to fill up certain details, though he is not in services. 5. However, it is also undisputed fact that ultimately departmental inquiry was dropped and, therefore, now at present it is to be considered that in-fact there is no inquiry or complaint regarding services of the petitioner with the respondents. 6. Thereafter, respondents have released the retirement benefit in favour of the petitioner only in the month of February, 2008. Pursuant to such delay in payment from 1.8.2005 to 31.1.2008, petitioner has made representation before the respondents but respondents have refused to consider such representation by making payment of interest as prayed for and demanded by the petitioner. Hence, petitioner has preferred this petition seeking direction to the respondent to pay the interest @ 18% on delayed payment of gratuity, commuted pension, arrears because of revision in commuted pension and arrears of pension for the period between 1.8.2005 to 31.1.2008. Petitioner has also prayed for interim relief of Rs.50,000/-. 7. On perusal of the rival contention and available documentary evidence, it becomes clear that there is nothing but clear arbitrariness and irregularity on the part of the respondents in not releasing the payment of retirement benefit at the earliest after 31.7.2005 when petitioner was allowed to voluntary retired from his services and that too after serving three months clear notice dated 30.4.2005. As already discussed hereinabove, during such period, practically, department has completed the calculation of pension and other retirement benefit and forwarded same to the concerned authority for making the payment and petitioner was allowed to be retired with all benefit by order dated 28.7.2005 and, therefore, when petitioner was considered as retired w.e.f. 1.8.2005 all retirement benefit were required to be paid to him, if not on the date of retirement itself, then, at-least within reasonable time immediately thereafter which can never be after couple of years or months. Therefore, if retirement benefit is not paid in reasonable time, then, as held by Hon’ble Supreme Court of India recently, practically such retirement benefit is to be treated as property of the retired employee and in such cases, delayed payment would be considered as detention of somebody property for no valid reason and, therefore, such employees are entitled to interest for such delayed payment. 8. The petitioner is relying upon the decision in the case of Vijay L.Mehrotra Vs. State of U.P. reported in AIR 2000 SC 3513 (2), wherein, Hon’ble Supreme Court has awarded 18% interest. The petitioner is also relying upon S.K. Dua v. State of Haryana reported in AIR 2008 SC 1077 , wherein, Hon’ble Supreme Court has remanded the matter back to the High Court for considering issue of interest to be paid for such delayed payment because the High Court has dismissed such petition even without issuing notice to the respondent authorities. 9. It would be appropriate to recollect the decision in the following cases: (1) AIR SC 3966 between KSRTC v. K.O. Varghese (2) AIR 2001 SC 2433 between Gorakhpur University v. Shitla Prasad Nagendra (3) AIR 2000 SC 1918 between R.Veerabhadram v. Government of AP (4) State of Kerala v. M.Padmanabhan Nair between 1985 (1) SCC 429 wherein Hon’ble Supreme Court has reiterated its earlier view holding that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but, have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be dealt with the penalty of payment of interest at the current market rate till actual payment to the employees. The said legal principle laid down by Hon’ble Supreme Court still holds good in so far as awarding the interest on the delayed payments to the appellant is concerned. Reference to the decision in Letters Patent Appeal No.1429 of 2015 between State of Gujarat v. Gujarat State Pensioners Federation dated 4.1.2016 is also relevant wherein the Division Bench of this High Court has confirmed the reasoned judgment dated 16.6.2015 of learned Single Judge in Special Civil Application no.8251 of 2015. Since the Division Bench has endorsed the reasoning of the learned Single Judge, I am not reproducing all those reasoning because they are available in public domain but pursuant to such reasoning, now, it is clear that in case of delayed payment of retired benefit, employees are certainly entitled to interest thereon. It cannot be ignored that there is reference of Government Resolution dated 8.10.2014 in such unreported cases but unfortunately government does not come forward to disclose their own circulars on the subject. 10. It is needless to mention that if the respondents have erroneously withheld payment for which the petitioner herein is entitled in law for payment of penal amount on the delayed payment. 11. Petitioner is also relying upon unreported decision dated 25.11.2011 in Special Civil Application No. 10061 of 2004 in case of Chhaganbhai Monabhai Dodia vs. Assistant Treasury Officer & 3, wherein though delay in payment was only for couple of years, the co-ordinate bench has allowed the petition with a direction to the respondents – government authorities to pay 9% interest on each of the item of retirement benefits to be paid to the petitioner belatedly. Therefore, petitioner is claiming interest on delayed payment at the rate of 18% or at least 9% interest. 12. However, it is quite clear and obvious that so far as awarding interest is concerned, it is purely discretionary power of the Court and so far as percentage of interest is concerned, though under Article 226 of the Constitution of India one can award any rate of interest on delay payment, in my opinion in all such cases 6% interest would be sufficient in absence of any specific contract, commitment or statute or rule on this behalf. 13. For the reasons stated above, I award interest at the rate of 6% interest on the delayed payment from the date of entitlement till the date of the actual payment. 13. For the reasons stated above, I award interest at the rate of 6% interest on the delayed payment from the date of entitlement till the date of the actual payment. If this amount is not paid within four months from the date of receipt of a copy of this order, the same shall carry interest at the rate of interest 9% per annum from the date of amount falls due to the deceased employee. 14. Therefore, petition is partly allowed whereby respondents are directed to pay 6% interest on belated payment on each item from 1.8.2005 till actual date of payment. If this amount is not paid within four months from the date of receipt of a copy of this order, the same shall carry interest at the rate of interest 9% per annum from the date of amount falls due to the deceased employee. Respondent shall calculate interest on the delayed payment as per aforesaid directions and shall pay it within Four months. Petition is allowed and disposed of accordingly. Rule is made absolute to that extent only. Direct Service is permitted. (Rule is made absolute)