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2017 DIGILAW 230 (HP)

Yashpal Kanwar v. Union of India

2017-03-22

TARLOK SINGH CHAUHAN

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JUDGMENT : Justice Tarlok Singh Chauhan, J. (oral) : 1. This is an unusual case where the petitioner, who retired as a Principal, Navodaya Vidyalaya Samiti, has been driven to this unnecessary and otherwise avoidable litigation to claim the following substantive reliefs: “That this Hon’ble court may very kindly be pleased to issue a writ in the nature of mandamus, directing the respondents No.2 and 3 to pay the following amounts, due towards the petitioner, with immediate effect:- a) Rs. 3600/-, admittedly paid less to the petitioner alongwith interest at the rate of 18% per annum with effect from June, 1994. b) Rs. 12,933/-, deducted from the CPF account of the petitioner, towards surrender of 3 months salary in lieu of notice with effect from June 1994 alongwith interest at the rate of 19% per annum. c) Rs. 2148, as 50% of the leave encashment wrongly withheld with interest at the rate of 18% per annum with effect from June 1994. d) Interest at the rate of 18% per annum on Rs. 2148/-+Rs. 3766/-, i.e. Rs. 5914/- for a period of 2 years, i.e. June 1994 to 1996.” 2. The minimal facts, as necessary for the determination of this petition, are that the petitioner having initially joined as Master (Physics) in the Sainik School, Sujanpur Tira, District Hamipur on 27.7.1984 was sent on deputation and joined as Principal, Navodaya Vidyalaya Samiti, Manipur for a period of two years. In the month of December, 1993, the Navodaya Vidyalaya Samiti issued an advertisement inviting applications for direct recruitment to the post of Principal. The petitioner applied and was selected. As the lien of the petitioner was still with the erstwhile employee, i.e. Sainik School, Sujanpur Tira, he tendered his technical resignation on 18.5.1994, which was accepted to by the Principal Sainik School, Sujanpur Tira without any reservation. 3. The petitioner retired from service on 30.4.2012 and would complain that his service benefits as enumerated hereinabove have been withheld. Hence, the present petition. 4. The respondents have filed their reply wherein they have candidly admitted that Rs. 3600/- was initially not paid to the petitioner. 3. The petitioner retired from service on 30.4.2012 and would complain that his service benefits as enumerated hereinabove have been withheld. Hence, the present petition. 4. The respondents have filed their reply wherein they have candidly admitted that Rs. 3600/- was initially not paid to the petitioner. The only explanation for not paying this amount within time is that in lieu of the legal notice served by the petitioner, respondent No.1 asked the counsel for the petitioner to submit his (petitioner) correct address and further that there was a totaling error in CPF Account of the petitioner and, therefore, this amount has not been paid to him. 5. As regards the other amount of Rs. 12,933/- it is averred that the same has been deducted towards three months’ salary towards notice period on the resignation of the petitioner from the post as per the directions of the “audit authority”, i.e. LAO (Army), Shimla, whereas, the amount of leave encashment of Rs. 2,148/- wrongly withheld was immediately paid on verification from the competent authority. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. At the outset it may be observed that the stand of the respondents is not fair and is rather cantankerous. The respondents admitted the receipt of notice, but it is their specific case that they had replied to the same. The only reason for not paying the amount of Rs. 3600/- was that the same could not be sent to the petitioner earlier as they did not have his address and had requested his counsel to supply the same. 8. To say the least, this stand of the respondents is false to their very knowledge because a bare perusal of the legal notice Annexure P-6 dated 13.10.2012 would show that the same gives the complete address of the petitioner. The opening words therein read as under: “Under the instructions from and on behalf of my client, Sh. Yashpal Kanwar son of Sh. Dalip Singh resident of VPO Basoli, District Una, Himachal Pradesh, I, the undersigned do hereby serve you with the following legal notice for the following of action.” 9. As regards the amount of Rs. 2,148/-, the same already stands paid to the petitioner, therefore, the subsisting claim of the petitioner pertains to Rs. 3,600/- and Rs. Dalip Singh resident of VPO Basoli, District Una, Himachal Pradesh, I, the undersigned do hereby serve you with the following legal notice for the following of action.” 9. As regards the amount of Rs. 2,148/-, the same already stands paid to the petitioner, therefore, the subsisting claim of the petitioner pertains to Rs. 3,600/- and Rs. 12,933/- deducted from his CPF Account towards surrender of three months salary in lieu of notice. 10. However, the moot question is: whether the deduction of Rs. 12,933/- was permissible, more particularly, when neither the petitioner was put to notice qua this amount nor had the respondents of their own ever applied their mind for finding out as to whether the petitioner was required to surrender three months’ salary in lieu of technical resignation and it is only on account of the audit objection that the aforesaid amount has been deducted. 11. It is more than settled that the employer cannot merely on the basis of the audit report effect recovery and it is required to apply its own independent mind for the purpose of finding out whether the employee, inter alia, has committed breach or violation of any statutory provisions. (Refer : State of Bihar and others vs Industrial Corporation (P) Ltd. and others, (2003) 11 SCC 465 ). Therefore, unless, the respondents had applied their own independent mind to the audit objection, aforesaid deduction could not have been made. 12. It is evidently clear from the above discussion that the petitioner, who is a retired Principal and is senior citizen, has been unnecessarily made to enter into a compulsive litigation with the respondents, which could have conveniently been avoided. 13. In view of aforesaid, I find merit in this petition and the same is allowed. The respondents are directed to pay a sum of Rs. 3600/- and Rs. 12,933/- (Total Rs. 16,533/-) to the petitioner alongwith interest @ 9% per annum from June, 1994 till its realization. 14. However, before parting, it needs to be observed that since the petitioner has been unnecessarily dragged into a compulsive litigation, therefore, he deserves to be compensated for the same. Accordingly, the respondents are burdened with costs, which are quantified at Rs. 16,533/-) to the petitioner alongwith interest @ 9% per annum from June, 1994 till its realization. 14. However, before parting, it needs to be observed that since the petitioner has been unnecessarily dragged into a compulsive litigation, therefore, he deserves to be compensated for the same. Accordingly, the respondents are burdened with costs, which are quantified at Rs. 5,000/- and shall be paid to the petitioner within a period of one month from the date of receipt of certified copy of this judgment, failing which all the aforesaid amounts including costs would carry interest @ 18% per annum.