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2016 DIGILAW 457 (GUJ)

Nathalal Madhavji Kodinaria v. State of Gujarat

2016-02-25

V.M.PANCHOLI

body2016
JUDGMENT: V.M. Pancholi, J. 1. By way of this petition, petitioner has prayed to quash and set aside the order dated 24.04.2000 passed by respondent No. 1 and the order dated 27.06.2000 passed by respondent No. 2 which was modified by order dated 02.09.2000 and thereby it is requested that respondents be directed to fix the pension and other retiral benefits payable to the petitioner after counting his service period of 29 years and accordingly the gratuity and other benefits be granted to the petitioner. 2. The case of the petitioner is that he is a Doctor and after passing GPSC examination he was elevated as Class II officer on 12.09.1974. His probation period was over on 12.09.1976. Criminal prosecution was lodged against the petitioner in connection with the offence punishable under the provisions of the Prevention of Corruption Act and he was suspended from service on 09.09.1993. However, the learned trial Court acquitted the petitioner by judgment and order dated 28.07.1997. No departmental proceedings have been initiated against the petitioner in respect of the said charges. During the pendency of the said prosecution petitioner was placed under suspension. After the order of acquittal he was reinstated in service on 11.09.1998. The respondent No. 3 by letter dated 07.10.1998 recommended respondent No. 2 to treat the suspension period of the petitioner as on duty and regularize his service and make payment of salary and allowances during the period of suspension. However, no action was taken. In the meantime, petitioner had attained the age of superannuation on 31.03.2000. After retirement, petitioner sent a representation requesting that he is not being paid his pension and other benefits and he is also entitled to higher pay-scale as recommended by Fifth Pay Commission and Tiku Pay Commission. However, such representation was rejected on the ground that acquittal appeal was pending. 3. Heard learned advocate Mr. B.P. Munshi for the petitioner and learned AGP Mr. Goutam for the respondents. 4. Learned advocate Mr. Munshi mainly contended that now only two grievances of the petitioner survive and other grievances are already redressed. He contended that petitioner was entitled to the basic pension of Rs. 8,667/- per month as per the calculation produced at page 56 of the compilation and therefore the calculation of the pension at the rate of Rs. 8184/- per month by the respondents is not correct and therefore the same be revised. He contended that petitioner was entitled to the basic pension of Rs. 8,667/- per month as per the calculation produced at page 56 of the compilation and therefore the calculation of the pension at the rate of Rs. 8184/- per month by the respondents is not correct and therefore the same be revised. Thereafter he has referred to the averments made in para 3 and 4 of the additional affidavit-in-rejoinder filed on 16.04.2013 and submitted that petitioner and/or his legal heirs have received gratuity, arrears of revision of pay, arrears of Tiku Pay Commission, revised leave encashment payment, etc. during the pendency of the present proceedings. However, there is gross delay in making such payments. Chart is produced at page 97 of the compilation. He, therefore, requested that the respondents be directed to pay interest for the delay in making the said payments. 5. On the other hand, learned AGP Mr. Goutam submitted that the respondents have calculated the pension as per the Rules and no illegality is committed by the respondents authority while determining the pension at the rate of Rs. 8184/- per month. He further submitted that the respondents have granted provisional pension to the petitioner in the year 2000 and provisional gratuity was also paid in the year 2002 and therefore there is no question of grant of any interest as prayed for by the petitioner. He, therefore, submitted that the present petition be dismissed. 6. I have considered the submissions canvassed on behalf of the learned advocate for the parties. The only grievance which remains in the present petition is with regard to the fixation of pension at lower rate and for payment of interest on delayed payment of gratuity and other retiral benefits to the petitioner. From the affidavit filed by the respondents and from the record it is clear that last pay of the petitioner was fixed at Rs. 18875/- per month. The State Government has accepted the recommendations of Tiku Pay Commission w.e.f. 14.11.1991 and by G.R. dated 15.10.1997, the Government has declared 14.11.1991 as the cut off date for granting higher pay-scale. Accordingly, first and second higher pay-scales (together) were given to the petitioner as per G.R. dated 09.01.2008 w.e.f. 14.11.1991, whereas, the benefit of third higher pay-scale was given w.e.f. 14.11.1997. Thus, considering the cut off date, petitioner was entitled to pay-scale of Rs. 14,300/- + Rs. 3,575/- = Rs. Accordingly, first and second higher pay-scales (together) were given to the petitioner as per G.R. dated 09.01.2008 w.e.f. 14.11.1991, whereas, the benefit of third higher pay-scale was given w.e.f. 14.11.1997. Thus, considering the cut off date, petitioner was entitled to pay-scale of Rs. 14,300/- + Rs. 3,575/- = Rs. 17,875 as on 14.11.1997. Initially, Rs. 5,949/- was sanctioned as pension to the petitioner. However, subsequently the same came to be revised and Rs. 2,235/- came to be added in the original sanctioned amount. Thus, the pension of the petitioner was fixed at the rate of Rs. 8,184/- per month. The said calculation was also approved by the Director of Pension and Provident Fund. Thus, the request of the petitioner to revise the pension at the rate of Rs. 8,667/- per month cannot be accepted. Hence, such request is rejected. 7. However, it is an admitted position that the petitioner has received the amount of gratuity, arrears of suspension period, arrears of revision of pay, arrears of Tiku Pay Commission, etc. in 2006. The petitioner received the gratuity amount of Rs. 2,61,441/- on 07.02.2006, which was due on 30.03.2000. However, the other benefits were given only in the year 2012 as per the table produced in para 4 on page 97 of the compilation. Accordingly, it can be said that there is a gross delay in making the retiral as well as other benefits to the petitioner. 8. The Hon'ble Supreme Court in the case of R. Kapur v. Director of Inspector (Painting and Publication) Income Tax and Anr., reported in: (1994) 6 SCC 589 , has observed and held in para 10 and 11 as under: "10. This Court in M. Padmanabhan Nair case has held as under: "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 visited with the penalty of payment of interest at the current market rats till actual payment." 11. The Tribunal having comes to the conclusion that DCRG cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The DCRG due to the appellant will carry interest at the rate of 18% per annum from 1.6.1986 till the date of payment. Of course this shall he without prejudice to the right of the respondent to recover damages under Fundamental Rule 48-A. Thus, the civil appeal is allowed. However, there shall be no order as to costs." 9. The Hon'ble Supreme Court in the case of D.D. Tewari (dead) through Legal Representatives v. Uttar Haryana Bijli Vitran Nigam Limited and Ors., reported in: (2014) 8 SCC 894 , observed and held in para 6, 7 and 8 as under: "6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single Judge after adverting to the relevant facts and the legal position has given a direction to the employer-respondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent. 7. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. 7. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, we do not propose to do that in the case in hand. 8. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed." 10. The concerned respondent, by filing an affidavit, has tried to explain the delay in not making the payment within stipulated time limit. However, the explanation given is not satisfactory and the fact remains that the legitimate amount of the petitioner was withheld and the payment was made after a gross delay of 12 years. Thus, the respondents are liable to pay interest at the rate of 9% per annum on the delayed payment. Hence, the petition is required to be allowed to that extent. 11. In view of the aforesaid discussion, petition is partly allowed. The respondents are hereby directed to pay the interest at the rate of 9% per annum to the legal heirs of the petitioner for the delay caused in making the legitimate payment by calculating the period from when the payment was actually due to the period when it was actually made. Such calculation shall be made within a period of eight weeks from the date of receipt of copy of this order and thereafter within a further period of four weeks the amount of interest shall be paid to the legal heirs of the petitioner, who are already brought on record. Rule is made absolute to the aforesaid extent.