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2024 DIGILAW 820 (GUJ)

Rameshbhai Dahyabhai Shah v. Punjab National Bank

2024-04-09

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : 1. By way of present petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 29.1.2013 passed by the Disciplinary Authority as well as order dated 30.5.2014 passed by the Appellate Authority. The petitioner has prayed for the following reliefs :- “8(A) Considering the ratio laid down by the Hon’ble Supreme Court in the case of PNB vs. Kunj Behari Mishra (1998 SCC (L&S) 1783), & considering the disinclination of the Appellate Authority of the Bank to decide the appeal dated 28/03/2013 of the petitioner and further considering the age of the petitioner (Date of Birth: 15/03/1933), & amp; the age of superannuation of the petitioner (March 1991), the Hon’ble Court be pleased to issue a writ of Mandamus and/or any other appropriate writ, order or direction quashing and setting aside the order dated 29.1.2013 and the order dated 30.5.2014 passed by the appellate authority at Annexure “G”. 8(AA) Hon’ble Court be pleased to issue an appropriate writ order or direction quashing and setting aside the order dated 30th May, 2014 produced at “Annexure G” to the petition.” 2. The facts giving rise to present petition are that the petitioner, at the time of the merger of Hindustan Commercial Bank Ltd., with Punjab National Bank (“PNB” for short) was working as an Assistant General Manager (AGM) with the erstwhile Hindustan Commercial Bank, now merged with Punjab National Bank, and in the year 1987, the decision came to merge the erstwhile Hindustan Commercial Bank with Punjab National Bank, issue arose of merging of the employees of both the banks. And there was a fear in the officers of the Punjab National Bank that the officers of the merging bank who are seniors to them may take away advantages that would otherwise have accrued to them. Consequentially, a large number of employees including all but one AGMs were not taken over by PNB alongwith all other employees of Hindustan Commercial Bank Ltd without following the due process of law either by PNB or HCB. The petitioner was one of the AGMs. 2.2. Therefore, the petitioner as well as other officer, employees of HCB had not taken over by PNB at the time of merger without following the process of law either by PNB or HCB, challenged such arbitrary action before the Hon’ble Supreme Court of India, which is cited in K.I.Shepherd Vs. The petitioner was one of the AGMs. 2.2. Therefore, the petitioner as well as other officer, employees of HCB had not taken over by PNB at the time of merger without following the process of law either by PNB or HCB, challenged such arbitrary action before the Hon’ble Supreme Court of India, which is cited in K.I.Shepherd Vs. Union of India. In the said case, the Hon’ble Supreme Court was pleased to direct the respondent bank to allow such petitioners to join the respondent bank. Hence, after allowing the petitioners to join the respondent bank in compliance of the order of the Hon’ble Supreme Court, the respondent bank initiated disciplinary proceedings against all such employees including the present petitioner and removed them from the services of the bank, including the petitioner. 2.3 Since the respondent has removed the petitioner from the service and therefore, the petitioner had challenged the said order by way of preferring the Departmental Appeal. Against the decision of the Departmental Appeal, the petitioner approached this Hon’ble Court by way of preferring Special Civil Application and the same was decided on 22.4.1988 whereby, Hon’ble Court after considering the prayer made in the petition observed that the inquiry proceedings proceeded further in 1989 and the Inquiry Officer has concluded the inquiry and the Disciplinary Authority had passed the order, against which, the petitioner had preferred Appeal before the Appellate Authority under the Banking Regulations Act. 2.4 Feeling aggrieved and dissatisfied with the decision of the Appellate Authority, the petitioner had approached this Hon’ble Court by way of preferring Special Civil Application No.6645 of 1990, which was decided by this Hon’ble Court vide order dated 17.8.2012 wherein, the petitioner prayed for the following prayers :- “(i) Your Lordship, may be pleased to quash and set aside the impugned order of the respondent No.2-Bank without disqualification for future employment and the impugned order of the respondent No.3 dismissing the appeal of the petitioner by issuing the writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order of direction; (ii) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to reinstate the petitioner in the services of the respondent-Bank with continuity of service and with all incidental benefits as if he was not at all suspended from the services and removed from the services by the penal order; 2.5 After considering the submissions of both the sides, the Hon’ble Court was pleased to pass the following order :- “5. I have heard learned advocates for both the parties and perused the material on record. It is an admitted position on record that the respondents have not followed the procedure of law while passing the impugned order. The respondents ought to have supplied the Inquiry Report to the petitioner before imposing the punishment, which is mandatory under the provisions of law. However, the same was not done by the respondents. Therefore, only on the ground that the respondents have not supplied the Inquiry Report to the petitioner, the matter is remanded to the Disciplinary Authority with liberty to initiate fresh inquiry after supplying of Inquiry Report to the petitioner. It is made clear that the said exercise be completed within a period of six months from the date of initiation of inquiry proceedings, failing which the respondents will pay all retiral dues to the petitioner. It is clarified that this Court has not expressed any opinion on merits of the matter.” 2.6 Thereafter, again the petitioner approached to the concerned Department and as per the directions given by this Hon’ble Court, the respondent -authority has supplied the copy of the Inquiry Report to the petitioner-delinquent and there is no further order of supplying any other documents. Thereafter, the petitioner again approached the Disciplinary Authority. After considering the submissions made on behalf of the petitioner, the Disciplinary Authority had passed an order and confirmed the decision taken at earlier stage. The said decision further challenged by the petitioner before the Appellate Authority. The Appellate Authority again decided appeal on 30th May, 2014 and passed the following order:- “8. I have examined the points raised by Sh. RD Shah in his appeal along with the entire records of the case and observe that the points raised by Shri Shah in the appeal eave not brought on record any fresh facts to warrant a modification of the penalty a hind that the Disciplinary Authority had taken into account all the evidence addu enquiry and keeping in view the nature and gravity of the lapses has imposed upon him the aforesaid penalty. I, therefore reject the appeal and confirm the penalty imposed by the Disciplinary Authority” 2.7. Feeling aggrieved and dissatisfied with the impugned decision the present petitioner by way of preferring present petition in third round of litigation has challenged the order passed by the Disciplinary Authority on the ground that during the Departmental Inquiry, the Inquiry Officer has referred and relied upon the documents which is not supplied to the petitioner and the order passed by the Inquiry Officer. The Departmental Authority is deferring from the findings recorded by the Inquiry Officer and though, the Disciplinary Authority deferring from views has not given an opportunity to the petitioner by way of issuing any notice, which caused great prejudice to the petitioner and it is against the settled principle of law and therefore, the petitioner by way of preferring the present petition has challenged the impugned order. 3. In view of the aforesaid facts, the petitioner has preferred present petition praying inter alia that the orders dated 29.1.2013 and 30.5.2014 passed by the authorities be quashed and set aside. 4. I have heard Mr. Jinesh H.Kapadia, learned Counsel appearing for Mr. Narendra Jain, learned Counsel for the petitioner and Mr. Chetan Pandya, learned Counsel for the respondent. -: SUBMISSIONS ON BEHALF OF THE PETITIONER : 5. 5 Mr.Jinesh Kapadia, learned Counsel appearing for Mr. 4. I have heard Mr. Jinesh H.Kapadia, learned Counsel appearing for Mr. Narendra Jain, learned Counsel for the petitioner and Mr. Chetan Pandya, learned Counsel for the respondent. -: SUBMISSIONS ON BEHALF OF THE PETITIONER : 5. 5 Mr.Jinesh Kapadia, learned Counsel appearing for Mr. Narendra Jain, learned Counsel for the petitioner has submitted that the petitioner was originally appointed by the Hindustan Commercial Bank Ltd. which is subsequently amalgamated in the year 1986 and it is merged in the Punjab National Bank. On merger of the Punjab National Bank, the petitioner was served with the show cause notice for the alleged misconduct and the charge-sheet came to be issued to the petitioner. 5.6 Mr. Kapadia, learned Counsel for the petitioner has submitted that since the document was not produced and not supplied to the petitioner, the petitioner has approached before this Hon’ble Court by way of preferring Special Civil Application wherein, the Hon’ble Court has directed vide order dated 22.4.1988. However, they have not supplied the documents. Being aggrieved with the findings of the Disciplinary Authority, the petitioner has approached this Hon’ble Court by way of preferring Special Civil Application No. 6645 of 1990 wherein, this Hon’ble Court had directed the respondent -authority to supply the copy of the Inquiry Report and after giving an opportunity the appropriate order be passed. On receipt of the said order, the Disciplinary Authority had passed the order and confirmed the order passed by the earlier authority. 5.7. Feeling aggrieved and dissatisfied with the said findings, the petitioner approached the Appellate Authority under Rule 17 of the Punjab National Bank Regulation. The Appellate Authority while passing the impugned order, wherein, the observations made in para 7.4 which reads as under:- “7.4 DA differing from favourable findings of EQ It is settled legal position that whenever the DA disagrees with the EO on any article of charge, then before it records its own findings on such charge it must record its tentative reasons for such disagreement and give to the delinquent an opportunity to represent its findings. The DA has differed from the EO findings but not given any such legal opportunity to him as stated hereunder In case of Swati Agency: DA has considered Swati Enterprises as sister concern and hence CO has nic power to sanction the CC limit. The DA has differed from the EO findings but not given any such legal opportunity to him as stated hereunder In case of Swati Agency: DA has considered Swati Enterprises as sister concern and hence CO has nic power to sanction the CC limit. While EO has stated that it is proved that S Enterprises is not an associate/allied firm M/s. Mansukhlal & Co. According to DA, he allowed overdraft against export bills without obtaining can documents. EO has not written anything in his report Providing Documents According to DA & quot; I find that all the documents demanded by the CO were handed over to him during the course of inquiry proceedings & quot; EO has stated in his report that many documents were not provided to CO. 5.8 Mr. Kapadia, learned Counsel for the petitioner has submitted that without considering these submissions, the Appellate Authority has passed the impugned order which is under challenged before this Court which is against the settled legal principle and the against the decision by the Hon’ble Apex Court. Therefore, the impugned orders passed by the Disciplinary Authority and confirmed by the Appellate Authority is erroneous, illegal, unjust and causing a great prejudice to the petitioner, the same deserves to be quashed and set aside. 5.9. It is further contended by Mr.Kapadia, learned Counsel for the petitioner that though the directions given by this Hon’ble Court to supply all the relevant documents along with Inquiry Report was not supplied to the petitioner except the Inquiry Report and therefore, the petitioner has raised a contentions before the Appellate Authority with regard to the non supply of the documents which caused the great and serious prejudice to the petitioner. That, the order passed by the Hon’ble Court in Special Civil Application No. 6645 of 1990 directed the respondents to initiate a fresh inquiry after supplying all the relevant documents. Therefore, a fresh inquiry took place and since in that inquiry, the respondent has not supplied the relevant documents and only the Inquiry Report was supplied therefore, the same caused great prejudice to the petitioner 5.10. Mr. Therefore, a fresh inquiry took place and since in that inquiry, the respondent has not supplied the relevant documents and only the Inquiry Report was supplied therefore, the same caused great prejudice to the petitioner 5.10. Mr. Kapadia, learned Counsel for the petitioner has submitted that since the Disciplinary Authority is deferring with the opinion of the Inquiry Officer while recording the findings he has not issued any notice, not put notice to the petitioner and not giving any opportunity to the petitioner to meet with the said findings which is clearly against the settled principle of law. Though, he has observed in paragraph 7.4., however, he has not given the benefits in favour of the petitioner as per the recent pronunciation of the Hon’ble Apex Court, therefore the same deserves to be quashed and set aside. 5.11 In support of his arguments, Mr. Kapadia, learned Counsel for the petitioner has referred and relied upon the decision of the Hon’ble Apex Court in case of Punjab National Bank Vs. Kunj Behari Misra reported in AIR 1998 SC 2713 more particularly in paragraph 19 is deal with the Regulation of Section 7(2) and also paragraph Nos.20 and 21 which reads as under:- “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer. 20. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants (supra). 20. The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants (supra). While agreeing with the decision in Ram Kisha’s case (supra), we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxena’s cases (supra) do not lay down the correct law. 21. Both the respondents superannuated on 31st December, 1983. During the pendency of these appeals Misra died on 6th January,1995 and his legal representatives were brought on record. More than 14 years have elapsed since the delinquent officers had superannuated. It will, therefore, not be in the interest of justice that at this stage the cases should be remanded to the disciplinary authority for the start of another innings. We, therefore, do not issue any such directions and while dismissing these appeals we affirm the decisions of the High Court which had set aside the orders imposing penalty and had directed the appellants to release the retirement benefits to the respondents. There will, however, be no order as to costs.” Subsequently the said judgement is reaffirmed by the Hon’ble Apex Court in the case of Yoginath D. Bagde Vs State Of Maharashtra & Anr reported in 1999(7) SCC 739 and in the case of Jayant H.Diwan Vs. Gujarat State Civil Supply Corporation Ltd. reported in LAWS (GJH) 2020-1-137. This Hon’ble Court made an occasion to make statement with regard to the ratio laid down by the Hon’ble Apex Court in case of Punjab National Bank (Supra) and Yoginath D.Bagde (Supra). 5.12 In decision of the Hon’ble Apex Court in case of State Bank of India and others Vs. K.P.Narayanan Kutty reported in (2003) 2 SCC 449 wherein, in paragraph 6 it is observed as under:- “6. It was also contended on behalf of the appellants that the High Court committed an error in setting aside the order of dismissal when it was not shown that any prejudice was caused to the respondent by not giving an opportunity to him by the disciplinary authority. In this regard the learned counsel cited a decision of this Court in Union Bank of India v. Vishwa Mohan, [1998] 4 SCC 310. In this regard the learned counsel cited a decision of this Court in Union Bank of India v. Vishwa Mohan, [1998] 4 SCC 310. As already noticed above, before the High Court both the parties concentrated only on one point, namely, the effect of not providing an opportunity by the disciplinary authority when the disciplinary authority disagreed with some findings of the enquiry officer. It was also not shown by the appellants before the High Court that no prejudice was caused to the respondent in the absence of providing any opportunity by the disciplinary authority. The aforementioned case of Vishwa Mohan is of no help to the appellants. The learned counsel invited our attention to para 9 of the said judgment. As is evident from the said paragraph this Court having regard to the facts of that case, taking note of the various acts of serious misconduct, found that no prejudice was caused to the delinquent officer. In para 19 of the judgment in Punjab National Bank case, extracted above, when it in clearly stated that the principles of natural justice have to be read into Regulation 7(2) (Rule 50(3)(ii) of State Bank of India (Supervising Staff) Service Rules, is identical in terms applicable to the present case) and the delinquent officer will have to be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the Enquiry Officer, we find it difficult to accept the contention advanced on behalf of the appellants that unless it is shown that some prejudice was caused to the respondent, the order of dismissal could not be set aside by the High Court.” 5.13 In decision of the Hon’ble Apex Court in case of Ranjit Singh Vs. Union of India and others reported in (2006) 4 SCC 153 wherein, the observation made in paragraph 22 which reads as under:- “22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the Disciplinary Authority. He was also required to apply his mind to the materials on record. The Enquiry Officer arrived at findings which were in favour of the Appellant. Such findings were required to be over turned by the Disciplinary Authority. He was also required to apply his mind to the materials on record. The Enquiry Officer arrived at findings which were in favour of the Appellant. Such findings were required to be over turned by the Disciplinary Authority. It is in that view of the matter, the power sought to be exercised by the Disciplinary Authority, although not as that of an appellate authority, but akin thereto. The inquiry report was in favour of the Appellant but the Disciplinary Authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in absence of any show cause filed by the Appellant, to analyse the materials on records afresh. It was all the more necessary because even the CBI, after a thorough investigation in the matter, did not find any case against the Appellant and thus, filed a closure report. It is, therefore, not a case where the Appellant was exonerated by a criminal court after a full fledged trial by giving benefit of doubt. It was also not a case where the Appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial, i.e., proof beyond all reasonable doubt. When a final form was filed in favour of the Appellant, the CBI even did not find a prima facie case against him. The Disciplinary Authority in the aforementioned peculiar situation was obligated to apply his mind on the materials brought on record by the parties in the light of the findings arrived at by the Inquiry Officer. He should not have relied only on the reasons disclosed by him in his show cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at his finding, laid emphasis on the fact that the Appellant has not filed any objection to the show cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hands appears to be an exceptional one as the Appellant was exonerated by the Inquiry Officer. He filed a show cause but, albeit after some time the said cause was available with the Disciplinary Authority before he issued the order of dismissal. He filed a show cause but, albeit after some time the said cause was available with the Disciplinary Authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show cause as it did not leave his office by then. The expression "communication" in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer”. 5.14 Mr. Kapadia, learned Counsel for the petitioner urged before this Hon’ble Court that considering settled legal principle and considering the facts of the present case, the impugned order passed by the Disciplinary Authority and confirmed by the Appellate Authority be quashed and thereby, pass an appropriate order and the petition may kindly be allowed. -: SUBMISSIONS ON BEHALF OF THE RESPONDENT : 6. Mr.Chetan Pandya, learned Counsel for the respondent has objected the present petition. He has referred and relied upon the affidavit-in-reply. He has contended that since at the first instance the petitioner has approached this Hon’ble Court and the Hon’ble Court has disposed of this petition in 1998 and thereafter, the Disciplinary Authority has passed the impugned order which is subsequently affirmed by the Appellate Authority against which the petitioner approached this Hon’ble Court though he is contending before this Hon’ble Court in the present petition with regard to the non supply of the documents but, the said averment is not approved by this Hon’ble Court in the subsequent petition filed by the petitioner. While deciding the subsequent second petition by the Hon’ble Court the observation made at page 14 that only Inquiry Report is to be ordered to supply to the petitioner and not other documents and that order was not challenged by the petitioner. Therefore, so far as the non supplying the other documents by the respondent, the petitioner is not permitted to contend in the present petition. In the present petition, his contention is not to the effect. Therefore, the respondent has not an occasion to deal with said contention. After passing the said order, the fresh inquiry was conducted by the Disciplinary Authority after following the due process and the directions given by this Hon’ble Court and considering the submission made on behalf of the petitioner before the Disciplinary Authority passed the impugned order which is under challenged more particularly in para 8 of the order. After passing the said order, the fresh inquiry was conducted by the Disciplinary Authority after following the due process and the directions given by this Hon’ble Court and considering the submission made on behalf of the petitioner before the Disciplinary Authority passed the impugned order which is under challenged more particularly in para 8 of the order. The said order was affirmed by the Appellate Authority after considering all these relevant arguments advanced by the petitioner and since in the present petition there was no averments with regard to any prejudice caused to the petitioner with regard to the non supply of the documents and therefore, this is merely a third round of litigation. The first order is passed in the year 1988 almost 34 years have been passed and the petitioner who reached the age of superannuation and therefore, no interference is to be called for in the present petition. 6.1 Mr. Chetan Pandya, learned Counsel for the respondent has further contended that there is no quarrel with regard to settle principle enunciated by the Hon’ble Apex Court with regard to the observations made by the Hon’ble Apex Court in the subsequent two judgements. But, since all these facts is not applicable in the case of present petition. Since, these is third round of litigation and almost 34 years of the order of removal, the petitioner has challenged on the ground of non supply of documents. Therefore, present petition may not be entertained. 7. I have heard the learned Counsels appearing for the respective parties and after perusal of the annexures appended to the petition and earlier order passed by this Hon’ble Court. The order passed by the Disciplinary Authority after going through the documentary and oral evidence lead during the course of departmental proceedings, the Disciplinary Authority came to conclusion and passed the impugned order and the same was affirmed by the Appellate Authority. Therefore, this is against the concurrent findings recorded by the Disciplinary Authority and the Appellate Authority. The order passed by the Disciplinary Authority after going through the documentary and oral evidence lead during the course of departmental proceedings, the Disciplinary Authority came to conclusion and passed the impugned order and the same was affirmed by the Appellate Authority. Therefore, this is against the concurrent findings recorded by the Disciplinary Authority and the Appellate Authority. Now, this is well settled principle that while interfering in the findings recorded by the Inquiry Officer, the Disciplinary Authority and subsequently confirmed by the Appellate Authority while exercising the power under Article 227 of the Constitution of India, this Court has very limited scope to interfere in the findings recorded by the Disciplinary Authority with regard to the quantum of punishment and with regard to prejudice caused to the delinquent employee for non supply of the documents, in view of the decision of the Hon’ble Apex Court in the case of Chennai Metropolitan Water Vs. T.T.Murali Babu reported in 2014 (4) SCC 108 and in case of Deept Sarup Agarwal Vs. S.Randhir Singh Chandhok & others reported in 2023 SCC online SC 1064. The scope to interfere in the Departmental Proceeding is narrated by the Hon’ble Apex Court in the series of judgements. Therefore, this Court is of the opinion that the order of removal from the service passed by the respondent in the year 1988 and almost 36 years has been passed and the same is challenged before this Hon’ble Court and now the petition is taken up for final hearing after almost 10 years of admission of the petition. However, considering the fact that the petitioner has alleged in the present petition with regard to the fact that since the Disciplinary Authority is deferring from the opinion of the Inquiry Officer. He ought to have recorded the reasons and before passing the order, he ought to have given an opportunity to the petitioner. But herein in the present case this was not done and the decision of the Hon’ble Apex Court in case of PNB (Supra) and the subsequent judgement. 7.1 I am of the opinion that impugned order of removal of service is required to be quashed and set aside and instead of that the order of compulsory retirement is required to be passed and the same is considered as compulsory retirement from the service. 7.1 I am of the opinion that impugned order of removal of service is required to be quashed and set aside and instead of that the order of compulsory retirement is required to be passed and the same is considered as compulsory retirement from the service. The respondent be directed to pass the order of compulsory retirement against the present petitioner instead of removal from service and pay all the consequential retiral benefits to the petitioner. The impugned order passed by the Disciplinary Authority against the settled principle of law and more particularly though the Disciplinary Authority has considered this fact and the Appellate Authority has also recorded such fact in para 7.4 of the order. However, they have not considered this in light of the submissions made on behalf of the petitioner. Therefore, considering all these facts and considering the fact that the petitioner is facing a serious charge for more than 36 years. Since the petitioner is reaching the age of superannuation the order of removal be quashed and set aside instead of that the petitioner be treated as compulsory retire from service and in view of that the petitioner is entitled for his retiral dues. 7.2 In the result, the petition is allowed. The impugned orders dated 29.1.2013 and 30.5.2014 passed by the authorities are quashed and set aside. It is also required to be observed that from 1988 to the age of reaching superannuation, the petitioner is not entitled for any backwages or any monetory benefits since he was removed from the service in 1988. From the date of reaching the superannuation, the petitioner is entitled for his retiral benefits. The same is to be paid within four months from the date of receipt of this order. Rule is made absolute to the aforesaid extent. Direct service is permitted. After dictating the order, learned advocate for the petitioner requests to pay interest for 36 years. Considering the facts of the case, request made by learned advocate for the petitioner is hereby rejected.