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2023 DIGILAW 1639 (ALL)

Arun Kumar Srivastava v. Managing Director, Uttar Pradesh Rajkiya Nirman Nigam Ltd.

2023-07-11

J.J.MUNIR

body2023
JUDGMENT : Parties have exchanged affidavits. 2. Admit. 3. Heard forthwith. 4. Heard Mr. Sangam Singh, learned Counsel for the petitioner and Mr. Vivek Saran, learned Counsel appearing on behalf of the sole respondent. 5. The petitioner is an ex employee of the Uttar Pradesh Rajkiya Nirman Nigam Limited[‘Corporation’ for short]. He was initially appointed as a Sub-Engineer (Civil) in the service of the Corporation. He was posted at different stations throughout the State during the tenure of his employment. The petitioner retired from the post of Sub Engineer on 31.08.2009, upon attaining the age of superannuation. Admittedly, there were no disciplinary proceedings against him or any kind of a claim that the employers had to set-off against his post retiral dues. It is also not in dispute that prior of the petitioner's retirement, a No Dues Certificate was issued by the Office of the Corporation at New Delhi on 04.06.2009, that being the petitioner's last place of posting. The petitioner had an early grievance to make. Post retirement, his retiral dues as well as outstanding of arrears of salary due on the date of retirement were not paid. This led the petitioner to institute Writ -A No. 5590 of 2019, which, by a very usual order of this Court, was summarily parted with on 03.02.2010, in terms of the following order : Heard learned counsel for the petitioner and learned Standing Counsel. The petitioner has not been released his post retiral benefits after having retired on 31.8.2009. The respondent No.2 shall proceed to examine the claim of the petitioner and pass an appropriate order within 3 months. In the event the petitioner is found entitled for release of any amount, the same shall be released forthwith without any further delay. With the aforesaid observations, the writ petition is disposed of. 6. After the order dated 03.02.2010 was passed and presumably received by the petitioner in the form of a certified copy, with no communication thereof through any official channel to the Corporation remained uncomplied with, leading the petitioner to prefer representations dated 08.03.2010, 18.05.2010 and 12.06.2010, virtually seeking to draw the Corporation's attention to the order of this Court dated 03.02.2010, earlier mentioned. 7. Since no action in compliance was taken, the petitioner had to move this Court, invoking our contempt jurisdiction vide Contempt Application (Civil) No. 3433 of 2010. 7. Since no action in compliance was taken, the petitioner had to move this Court, invoking our contempt jurisdiction vide Contempt Application (Civil) No. 3433 of 2010. Notice in the contempt matter was issued to the Corporation or the officer, so to speak, answerable on behalf of the Corporation, to carry out the orders of this Court. Pending rule issued in the contempt matter, the Corporation paid post retiral benefits to the petitioner under various heads, that include arrears of salary, gratuity and leave encashment. The arrears of salary were paid for various periods of time that they had remained unpaid and all details of these periods are set out in tabular form by the petitioner in paragraph 14 of the writ petition. A perusal of this table shows that arrears of salary were paid for ten different periods of time that these had remained unpaid, apart from various heads, as already said, under which post retiral benefits were due to the petitioner. 8. The petitioner says that though the various sums of money indicated in para 14 have been paid to him, the payment has been made with an unexplained and culpable delay of ten years. The petitioner has, therefore, now come up claiming interest on this sum of money, which has been withheld. The petitioner attempted to enforce his claim for interest on account of the delayed payment of his post retiral dues as also unpaid arrears of salary, that ought to have been paid while in service, by representing the matter to the Corporation once again. The Corporation again, not heeding to the petitioner's plea for the payment of interest on his dues, paid much beyond the time of entitlement. Aggrieved, the petitioner invoked the contempt jurisdiction of this Court vide-Contempt Application (Civil) No. 2435 of 2022. Pending the said application, the Corporation took a stand before the Court hearing the later contempt application that all dues, the petitioner was entitled to, have been paid to him. This Court, in the contempt matter, on occasion, was of opinion that the order on the writ side did not award any interest and, therefore, no case for contempt was made out. Accordingly, the contempt application was rejected vide order dated 11.11.2022. This Court, in the contempt matter, on occasion, was of opinion that the order on the writ side did not award any interest and, therefore, no case for contempt was made out. Accordingly, the contempt application was rejected vide order dated 11.11.2022. Nevertheless, before that happened, on 31.12.2021, by the order impugned, the Corporation rejected the petitioner's claim, saying that they have paid all dues of the petitioner's unpaid salary that was in arrears in lieu of his service at different stations of the Corporation. 9. Notice in this case was issued to the Corporation vide order dated 17.05.2023, requiring them to file a return. In the counter affidavit filed on behalf of the Corporation by Mr. Vivek Saran, Advocate, it is stated in answer to paragraph 14 of the writ petition that during the period of service, the petitioner was posted at ten different units of the Corporation, and after retirement, his salary/arrears have been paid. It is further on said in paragraph 14 of the counter affidavit that since the service book of the petitioner was incomplete, time was spent to gather records and complete it. The delay, therefore, in settling the petitioner's salary over dues and post retiral benefits is said to have been occasioned on that account. This, in sum and substance, is the defence which the Corporation takes to justify the impugned order declining to grant interest. The Corporation, in the order impugned, hardly says anything in justification for declining to pay interest on the petitioner's dues, that have been paid after much delay. 10. Upon hearing learned Counsel for parties, this Court is of opinion that the delay in paying the petitioner's arrears of salary and post retiral benefits is absolutely without justification. The fact that the petitioner had served at different stations, and therefore, his service records had to be verified on those stations is an obligation of the Corporation; not the petitioner's. The petitioner cannot be made to suffer the blame for this delay, the culpability whereof squarely lies on the shoulders of the Corporation. If an employee serves at different stations and his service book goes to all those stations, the way every ACR and other remarks are written, the same way, his monthly salary and other dues ought also be posted in at and made available to him on time. If an employee serves at different stations and his service book goes to all those stations, the way every ACR and other remarks are written, the same way, his monthly salary and other dues ought also be posted in at and made available to him on time. It is unimaginable that salary for a period of time while the employee was in service would be paid after his retirement. Presumably, the delay suffered by the petitioner in the matter of receipt of his salary at different stations is the hallmark of public employment, where the employer is more than an employer. In public employment like the Corporation's in this case, it is not just that the employer stands in the relationship of a master or an ordinary employer to a servant. Public employers behave like authorities, whom employees do not wish to annoy in any manner, while in service. Matters can go that far that even if salary is not paid to an employee for long spells of time, the employee believes that discretion is the better part of valour and he ought not to ask for his salary, lest he invite the wrath of authority, which the public employers are. Invariably, these Corporations are headed by administrative officers of the State, who find it difficult to distinguish their role from civil administrators into employers functioning in Corporations undertaking commercial business, where employees' welfare has to be looked after in a different way. In any event, even if it is pure State employment, it is not open to any employer to behave in this fashion and withhold an employee's salary, only to be paid after his retirement. This is precisely the case here. The petitioner has received his salary for different periods of time while he was posted at ten different stations, much after he has retired from service. This Court will not say that it is unfortunate. This Court will say that it is culpable and ought to invite penalty. Likewise, payment of post retiral benefits have been unduly delayed and have been paid after ten years. 11. Gratuity, it is settled in State of Kerala and others v. M. Padmanabhan Nair, (1985) 1 SCC 429 is to be paid on the day following the retirement. This Court will say that it is culpable and ought to invite penalty. Likewise, payment of post retiral benefits have been unduly delayed and have been paid after ten years. 11. Gratuity, it is settled in State of Kerala and others v. M. Padmanabhan Nair, (1985) 1 SCC 429 is to be paid on the day following the retirement. It has been settled by the Supreme Court in a catena of decisions and also, by various High Courts across the country that delay in payment of post retiral benefits must carry adequate interest. So far as delay in payment of salary is concerned, a heavier obligation lies on the employer to compensate the employee. In both matters, penal interest ought to be awarded. In connection with the award of interest and penal interest, in the matter of late payment of post retiral benefits, it was held in M. Padmanabhan Nair (supra)thus : 1. 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 rate till actual payment. 2. Usually the delay occurs by reason of non production of the L.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on he date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would to be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement. 12. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would to be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement. 12. In the circumstances, this writ petition succeeds and stands allowed. A mandamus is issued to the Managing Director, Uttar Pradesh Rajkiya Nirman Nigam Limited, ordering him to pay interest on the total sum of money detailed in paragraph 14, with simple interest at the rate of 10% per annumwith effect from the date that each item of unpaid emoluments mentioned in the table in paragraph 14 fell due, worked out until time when the relative payment was actually made. 13. Since working out the interest on 25 different items of payments that have been delayed over varying periods of time is involved, let this matter be placed before the Registrar General of this Court, before whom both parties shall appear and workout the accounts. The Registrar General, in accordance with the orders of this Court, shall certify the total amount payable, and the said amount, subject to any objection which parties may wish to make before the Court, shall be the final amount payable by the Corporation to the petitioners within a period of two months. 14. Let a copy of this order be communicated to the Managing Director, Uttar Pradesh Rajkiya Nirman Nigam Limited and the Registrar General for strict compliance.