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2020 DIGILAW 92 (HP)

State Of H. p. v. Jagdev Katoch

2020-01-07

SANDEEP SHARMA, SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - Since, common questions of facts, and, of, law are involved in all the aforestated LPAs, and, in all, the, writ petitions, hence, all, the, afore are amenable, for becoming decided, hence, through, a common judgment becoming made thereons. 2. The State of Himachal Pradesh becomes aggrieved, from, the verdict pronounced by the learned Single Judge, of, this Court, upon, CWP no. 60 of 2006, (a) wherethrough, the respondent No.1 herein, apart from, becoming declared, to be, deemed, to, superannuate, on , 31.03.2005, (b) also thereafter he was accorded all the consequential benefits, inasmuch, as, of, arrears, of, salary, on, the pattern, of, Mr .O. P Kaushal's case, as, mentioned, in, the impugned judgment, (c) besides he also was declared to become entitled for gratuity, (d) and, for leave encashment, and, all the financial liabilities, hence, qua both the afore latter entitlements, became encumbered, upon, the respondents concerned, inasmuch as, 95 per centum thereof became declared, to, become borne, by, the, State, and, 5% thereof, became declared, to, be borne, by, the, society concerned. The grievance, of, the, aggrieved State of H.P. appertains, to, the, afore latter portion, of, the, impugned verdict, and, hence, it strives, to, assail, the, afore apposite latter portion, of, the, verdict, through, its instituting thereagainst, the extant, LPA No. 23, of, 2009, hence, before, this Court. 3. Depending, upon, a decision becoming made, by this Court, upon, the extant LPA, rather the connected therewith, and, similar controversies, as, appertaining, to, the, afore entitlement(s), towards gratuity, and, also towards leave encashment(s), hence, of, all the apposite superannuated employees, as, become claimed, by, them, from, the, litigants concerned, in, LPA No. 244 of 2010, LPA No. 196, of, 2011, LPA No. 347,of, 2011, LPA No. 494 of 2011, LPA No. 655 of 2011, LPA No. 71 of 2013, LPA No. 39 of 2013, CWP Nos. 2066 of 2014, CWP No. 3202 of 2016, CWP No. 7877 of 2014, CWP No. 3306 of 2016, CWP No. 3296, of, 2016, CWP No. 3201 of 2016, CWP No. 1142 of 2018, CWP No. 2920, of, 2019, CWP No.3323, of, 2019, CWP No. 3325 of 2019, CWP No. 3326, of, 2019, CWP No. 3327 of 2019, and, CWP No. 2219 of 2019, hence, thereupon, rather would entail, qua, in, consonance therewith hence an adjudication, becoming made thereon(s), (i) whereupon, also this Court proceeds, to, connect, the, extant LPA, along with other connected LPA(s) and, CWPs, for, a, common verdict, becoming pronounced thereons. 4. The respondents' educational institution, in, LPA No.23of 2009, as, becomes unfolded by Annexure D6, became taken over, by, the State of H.P., and, thereafter all the apposite financial liabilities, inclusive of salaries, of, leave encashment, and, of, gratuity, vis-a-vis, the taken over staff, of, the respondent college, and, also further liabilities, as, appertaining, to, the, disbursement(s) towards them, vis-a-vis, apposite leave encashment(s), and, gratuity etc., are all espoused, to, become enjoined, to, rather become encumbered, upon, the State of H.P. The respondent No.1 herein, one Jagdev Katoch, became superannuated from service, from the hitherto, privately run educational institution, and, through the impugned judgment, hence, the afore contested financial liabilities, as, aforestated rather became directed, to, become saddled, in, proportion of 95%, by, the, State, of, H.P., and, in, 5 per centum, by, the, management, of, the, apposite hitherto privately run educational institution. 5. Be that as it may, the superannuation, of, respondent No.1 herein, one Jagdev Katoch, occurred prior to the acquisition, of, the assets, and, liabilities, of, the hitherto privately run educational institution, hence, would bestow, upon, him, a, right, to claim the afore entitlements, in, the afore proportion, even from the government of Himachal Pradesh, (a) and, would also constrain this court to validate, the, impugned judgment, (b) unless, a perusal, of, the then prevailing scheme, and, appertaining to the releases, of, grant-in-aid, to, the, privately run educational institutions, rather contains covenanted recitals, hence, barring,the, encumbering, of, the afore contested financial liabilities, hence, in the afore proportion, upon, the government, of, Himachal Pradesh. Necessarily,hence, a closest perusal, of, the Annexure A-2, hence, embodying therewithins, the, apposite scheme, as, appertaining, to, the, releases, of, the, apposite grant(s)-in-aid, to, the, privately run educational institution, is, naturally imperative. Necessarily,hence, a closest perusal, of, the Annexure A-2, hence, embodying therewithins, the, apposite scheme, as, appertaining, to, the, releases, of, the, apposite grant(s)-in-aid, to, the, privately run educational institution, is, naturally imperative. Though, the learned counsel appearing, for, respondent No.1, one Jagdev Singh Katoch, makes, a, vehement contention before this court, that, given in consonance, with, the, apposite scheme, and, when, for, facilitating, the apposite privately run educational institution(s), rather receiving, the, apposite grants-in-aid, from, the government, of, Himachal Pradesh, the apposite institution(s), became enjoined, to, disclose even, its liabilities towards gratuity, (c) thereupon, per se, on, anvil thereof, the government, of, Himachal Pradesh becoming obliged, to, in 95 per centum, of, the, afore contested financial liabilities, hence, appertaining, to, the afore head, rather, to, bear the financial liability(ies) thereof. However, the afore contention, as, becomes, reared, before, this Court, by, the, learned counsel appearing, for, respondent No.1, one Jagdev Singh Katoch, becomes underwhelmed, and, also becomes completely eroded of its vigour, inasmuch, as, from his becoming unmindful, of, clause 14, of, the, apposite scheme, clause whereof stand extracted hereinafter:- "14. Letter of credit;- The Treasury Officer/Sub Treasury Officer would be authorised to release the salary for each month frompersonal ledger account through crossed cheques "Letter of credit" to be issued in favour of the College by the Director." (d) and, a reading thereof rather candidly encapsulates, a, peremptory injunction becoming cast, upon, the treasury concerned, to, make, an, order, for, release, of, salary, of, each month, from, the, personal ledger account, through, cross cheques, "letter of credit", hence becoming issued, vis-a-vis, the privately run educational institution concerned. A deep, and, circumspect reading, of, the, afore, does, bringforth, a, conclusion, qua, hence when it does not echo therein, any authorization becoming bestowed, upon, the treasury concerned, to prepare the "letters of credit", hence, appertaining, to, bills containing amounts, claimable towards gratuity or towards leave encashment, (e) thereupon, the afore existing clause, in, the apposite scheme,and, appertaining, to, 95%, of, releases, of, grant-in-aid, by, the, government, of, Himachal Pradesh, to, the, privately run institutions, rather disables, the, formation, of, any inference, qua, the, government, of, Himachal Pradesh becoming explicitly obliged, to, order, for, disbursement, of, claims appertaining, to, gratuity, and, towards, leave encashments, dehors, any expenditure statement qua therewith, becoming enjoined, to hence, submitted, vis-a-vis, the government, hence, by, the educational institutions concerned. Conspicuously, the, import of the afore elicitation, as, made, from, the educational institutions concerned, by the government, is, confined only, for facilitating financial audits, being conducted, by, the agency concerned. 6. The afore view of this Court, finds support, from, a verdict rendered by the Hon'ble Apex Court, in, a case titled as Rajasthan Welfare Society vs. State of Rajasthan, (2005) 5 SCC 275 , the relevant paragraph No.15 whereof, stands, extracted hereinafter:- "15. The gratuity cannot be termed to be an emolument for the time being payable to the employees so as to come within the definition of salary defined in Section 2 (r) of the Act. Further, Rule 14 uses the word 'actual salary'. Be that as it may, it seems clear the non-recurring payment of this nature cannot be included in the definition of salary. Gratuity is payable at the time of retirement/termination of the employment. Reliance on the decision in the case of Metal Box Company of India Limited v. Their Workmen,1969 1 SCR 790 can render little assistance to the appellant. It is a case under Payment of Bonus Act. It was only dealing with accountancy principles. Observations were made that an estimated liability under the gratuity schemes even if it amounts to a contingent liability and is not a debt under the Wealth Tax Act, if properly ascertainable and its present value is fairly discounted, is deductible from the gross receipts while preparing the profits and loss account. In trading circles or in rule or direction in the Bonus Act, there was no prohibition from such a practice. The question in that case was whether while working out the net profits the trader can provide from his gross receipts his liability to pay a certain sum for every additional year of service which he receives from his employees. It was answered in affirmative. If such liability was properly ascertainable, it was possible to arrive at a proper discounted value. This decision, in our view, is not relevant to determine the point in issue in the present case." 7. For the aforesaid reason, there, is, merit, in, the, extant LPA No.23 of 20009, and, connected therewith LPAs, and hence all are allowed, and, the apposite challenged portion(s), of, the afore verdict(s), is/are, quashed, and, set aside. 8. This decision, in our view, is not relevant to determine the point in issue in the present case." 7. For the aforesaid reason, there, is, merit, in, the, extant LPA No.23 of 20009, and, connected therewith LPAs, and hence all are allowed, and, the apposite challenged portion(s), of, the afore verdict(s), is/are, quashed, and, set aside. 8. Since, as, aforestated, the afore controversy, does, bear analogity, vis-a-vis, the therewith connected LPAs, and, writ petitions, (a) thereupon, vis-a-vis, all the superannuated employees, of, all the privately run educational institutions, and, who, all receive the apposite grant-in-aid, from, the Government of Himachal Pradesh, and,pointedly, also vis-a-vis, those employees, who are likely, to, become superannuated therefrom, are, all likewise declared to not become entitled, to, apposite financial liability(ies) hence towards gratuity, and, leave encashment, becoming saddled, upon, the, Government, of, Himachal Pradesh, (i) and, rather all the financial liabilities, qua therewith, are, enjoined to become saddled, upon, all the privately run educational institutions concerned, or, if, the, latter institutions, are, taken over, by, the, Government, of, Himachal Pradesh, yet, the superannuated employees therefrom, and, who become hence superannuated, prior to the institution concerned, becoming taken over, by the State Government, are yet not, entitled, to, claim, the, release, of, the, gratuity, and, leave encahsment, from, the Government, of, Himachal Pradesh, rather financial liability(ies) qua therewith, are, to be borne, by, the apposite privately run institutions. 9. However, since, vis-a-vis, the St. Bede's College, Shimla, a notification of 6th April, 2017, exists, on record, and, as becomes issued, by, the, Principal Secretary (Hr. Education) to the Government of Himachal Pradesh, and, wherein, in clause 11-A, and, 11-B, thereof, it becomes mandated qua, vis-a-vis, St. Bede's College, Shimla, (a) the Government of Himachal Pradesh, becoming encumbered with the liability, to, release grant-in-aid, to, every staff member of the afore institution, (b) given its becoming run exclusively, for, girls, (c) and, with the afore release(s), of, grant-in-aid, also, covering, the, entitlements, of, the, superannuated therefrom, hence staff, towards gratuity, thereupon(s), the, financial liability qua therewith becomes encumbered, upon, the State of H.P., hence, in, the, proportion, as, mentioned therein, (d) whereupon, the afore notification hence enjoins its becoming meted deference. Inconsonance therewith rather only, vis-a-vis, the staff of the St. Inconsonance therewith rather only, vis-a-vis, the staff of the St. Bede's College, Shimla, the Government of Himachal Pradesh, is, directed, to, vis-a-vis, the, superannuated staff therefrom, hence, at, the, relevant stage(s), release, grants-in-aid, also encompassing, the, apposite claim(s) towards gratuity, and, also towards leave encashment. 10. For the foregoing reasons, and, also hence, with the afore observations, all the afore LPAs and, as also the afore writ petitions, stand disposed of. No order as to costs. All pending applications also stand disposed of.