Gujarat High Court
Dahyabhai Jerambhai Bhagat vs State Of Gujarat & on 9 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18216/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18216 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DAHYABHAI JERAMBHAI BHAGAT....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR BJ TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR JT TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR.DEVENDRA H PANDYA, ADVOCATE for the Petitioner(s) No. 1
MS JIGNASA B TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
MR. GOUTAM, ASST. GOVT. PLEADER for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/09/2016
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ORAL JUDGMENT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant, a retired employee of the Dharampur District Panchayat, has prayed for the following reliefs;
"(A) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order directing the Respondent Authorities to make the payment of interest at the rate of 9% on the pension amount for the delayed period of payment and 20% on the gratuity payment on the delay period of Gratuity payment and to pay 9% on the delayed payment of revised higher pay scale as per the Statement at Annexure-A. (B) Be pleased to pass such other and further orders as may deem just and proper in the facts and circumstances of the case.
(C ) Be pleased to award the costs of this petition.
(D) Pending admission, hearing and final disposal of this petition, be pleased to direct the Respondent Authorities to make the payment of interest amount as per the statement annexed at Annexure "M"."
2. The writ applicant joined the services of the respondent No.2 with effect from 9th May, 1961. Since he was not keeping well and had put in more than 30 years of service, he opted for the voluntary retirement. By an order dated 1st February, 1992, he was relieved from the service with effect from 31st January, 1992. It appears that on 5th August, 1992, the writ applicant addressed a letter that he was entitled to receive the higher pay scale on the basis of the Government Policy. After a period of three years, i.e., on 3rd April, 1995, it was resolved that the writ applicant be placed in the higher pay scale. Ultimately, he Page 2 of 15 HC-NIC Page 2 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT was placed in the higher pay scale on 23rd August, 1999, i.e. almost after a period of eight years. It is his case that the delay caused serious prejudice and he is entitled to interest on the delayed amount.
3. On behalf of the respondent No.2, an affidavit-in-reply has been filed, inter alia, stating as under;
"2. The respondent No.2 most respectfully submits that the petitioner herein joined the service of Valsad District Panchayat on 09.05.1961 as a Gram Sevak and he was later on promoted to the post of Statistical Assistant on 15.02.1991 and submitted an application dated 28.10.1991 for voluntary retirement from service with effect from 31.01.1992. The respondent No.2 submits that the same was accepted and he retired from service of Valsad District Panchayat with effect from 31.01.1992.
3. The respondent No.2 humbly submits that there is no negligence or delay in preparing and submitting the pension papers of the petitioner. It is most respectfully stated that in the case of voluntary retirement, necessary actions are to betaken only after such employee retires from service as it is always open to the employee to withdraw such application for voluntary retirement even on the last day. It is stated that in the instant case, the petitioner who has retired on 31.01.1992 was released all retiral benefits on or before 20.07.1992. it is humbly stated that the pension papers are required to be prepared by the concerned Branch of the District Panchayat and then the same are to be forwarded to the office of Assistant Examiner of Local Fund Audit for verification and only thereafter the retiral benefits like pension & gratuity are released by the Treasury. It is stated that so far as Provident Fund, group insurance and leave encashment are concerned, the needful is to be done at the end of the District Panchayat. In view of this it is humbly stated that there is no deliberate or willful delay or communication at the end of the District Panchayat in release of retiral benefits and therefore, all the averments & allegations made by the petitioner are thoroughly baseless and far from truth and the facts on record. The respondent No.2 humbly submits that the Page 3 of 15 HC-NIC Page 3 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT petitioner herein is not entitled for any interest on the ground of delay in payment of retiral benefits.
4. The respondent No.2 most respectfully states that the Government of Gujarat through its Finance Department issued a Government Resolution dated 05.07.1991 granting monitory benefits of three higher pay scale on the terms & conditions mentioned therein. It is stated that later on the State Government had scrapped the said Government Resolution and issued another Resolution dated 16.08.1994 introducing a new scheme. The respondent No.2 craves leave to state that at the time of retirement of the petitioner and submission of this application for voluntary retirement, Government Resolution dated 05.07.1991 was in force. The petitioner herein submitted an applicat9ion dated 28.10.1991 for the benefits of third higher pay scale on the basis of Government Resolution dated 05.07.1991. The said application was turned down by the respondent No.2 through order dated 30.11.1991 on the ground that the petitioner herein was already released the benefit of Selection Grade with effect from 01.01.1986 and a copy of the order dated 30.11.1991 is annexed herewith and marked as Annexure-A. The petitioner herein subsequent to his retirement, hje forwarded another application dated 20.11.1992 seeking some benefits and the said application was processed again. It is stated that the Committee for the purpose of release of higher pay scales to the employees was constituted in the District Panchayat for consideration for grant of higher pay scale to the employees and therefore, the said Committee was forwarded a proposal on 05.07.1993, but the Establishment Branch of District Panchayat asked for certain details as there were adverse remarks in the confidential report for the year 1986-87. The respondent No.2 submits that the needful was done at his end and the papers were forwarded on 05.11.1993 to the Establishment Branch of the District Panchayat. The respondent No.2 submits that the Committee recommended on 03.07.1995 to release 1 , 2nd & 3rd st higher pay scales in favour of the present petitioner and thereafter the file was forwarded to the then District Panchayat Officer, Valsad District Panchayat, but he put a note on 13.10.1995 that due to several reason the petitioner was not entitled to higher pay scale. The District Development Officer observed that (1) the Page 4 of 15 HC-NIC Page 4 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT petitioner herein was released Senior Time Scale with effect from 01.01.1986, (2) the petitioner is also promoted to the higher post of Statistical Assistant with effect from 15.02.1991 and (3) the confidential reports of the concerned years were not satisfactory and therefore, higher pay scale should not be released.
5. The respondent No.2 submits that the petitioner herein was accordingly informed about non grant of higher pay scale, but he again made a representation for release of the said benefits and hence it was again reconsidered and on 23.08.1999 the then District Development Officer had decided to grant the benefits of 1st, 2nd, & 3rd higher pay scales. The respondent No.2 submits that subsequently the papers were processed for revision of pay and forwarded the same to the Office of Assistant Examiner of Local Fund on 27.09.1999 and it was sanctioned on 15.10.1999 and thereafter the Project Officer-cum-Taluka Development Officer, Taluka Pardi released an amount of Rs.24,124/- on 6.11.1999 and another amount of Rs.5,864/- on 26.11.1999 towards difference in salary and difference in leave encashment respectively.
6. The respondent No.2 submits that due to release of the benefit of higher pay scale it was also necessary to revise the pension and hence the papers were processed and ultimately the Account Officer, Director of Pension & Provident Fund sanctioned the revised pension on 31.12.1999. The respondent No.2 submits that the Sub Treasury at Pardi has released the differential amount thereafter."
6. The stance of the respondent No.2 is that the delay was not deliberate or willful, but was caused on account of the administrative exigencies.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioner is entitled to the reliefs as prayed for.
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8. The issue raised as regards the claim for interest on the delayed payment of the retiral benefits has been well considered and answered in the judgment rendered in the case of Gujarat State Pensioners Federation vs. State of Gujarat & Ors., Special Civil Application No.8251 of 2015, decided on 16th July, 2015. I may quote the observations made by this Court as contained in paras-13 to 31.
"13. Once this decision has already been taken, I fail to understand why this petition is being opposed by the State Government. Whether all the members had preferred petitions or not is of no significance. Once there is a decision of the High Court declaring that all the retired Teachers are entitled to the higher grade pay scale from 1.01.1995 till 31.01.2013, then the arrears has to be followed with 10% interest. Apart from the decision referred to above and the order passed by the learned Single Judge dated 30th January 2013, I am also supported by a judgment rendered by a learned Single Judge (coram: H.K. Rathod,J.)in Special Civil Application No.8871 and 8872 of 1999 and other allied matters.
14. I may quote the relevant observations of the learned Single Judge as under:-
The only grievance voiced by the petitioners in this group of petitions through their learned advocate is that though the petitioners are entitled to the benefit of the Government resolution dated 5th July, 1991, copy of which is annexed at annexure "A" to the petition, the respondent authorities have not revised their pay as per the said resolution and have not refixed their pension on that basis. Under the resolution dated 5th July, 1991, at the end of 9, 18 and 27 years of service, higher pay scales were contemplated. This resolution was later on superseded by the resolution dated 16th August, 1994 by which number of years have been changed from 9, 18 and 27 to 9, 20 and 31 years. According to the petitioners, Page 6 of 15 HC-NIC Page 6 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT According to the petitioners, in the later resolution dated 16th August, 1994 at annexure "B", it was made clear that those who have retired between 1st June, 1987 to 31st July, 1994 would be governed by the earlier resolution dated 5th July, 1991. The petitioners have already retired from service since long and if they were entitled to the benefits of the Government resolution dated 5th July, 1991 for higher pay scale at the end of 9, 18 and 27 years, it was incumbent upon the respondents to take an early decision for the purpose of revising their pensionary benefits and pay the amounts due to them. Under these circumstances, it is directed that the concerned authorities of the respondents will immediately consider the case of the petitioner in light of the resolution dated 5th July, 1991 and take decision for fixation of their higher pay scale at the end of 9, 18 and 27 years as may be admissible to them and give revised pensionary benefits worked out by the concerned authorities on that basis. This should be done expeditiously. Therefore, it is directed that the concerned authorities shall consider the matter and take decision regarding fixation of higher pay scale of the petitioners at the end of 9, 18 and 27 years as may be admissible under the resolution dated 5th July, 1991 within eight weeks. The authorities were, in fact, expected to decide these questions before December, 1993 as per the Government communication dated 8th September, 1993. On fixation of pay as may be admissible under the resolution dated 5th July, 1991, whatsoever amount may be found due and payable to the petitioners should be paid to them within two weeks after taking that decision. The amount that may be found admissible from earlier dates would have been paid to the petitioners, if decisions were taken within a reasonable time. The admissible amounts having remained with the respondents, it would be appropriate to direct the concerned authorities of the respondents to pay the amounts that may be due to the petitioners on application of the resolution Page 7 of 15 HC-NIC Page 7 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT dated 5.7.1991 with interest at the rate of 12 per cent per annum from the date on which they may be held to be due and payable to the petitioners by the concerned authorities. In view of the above directions issued by this Court, recovery orders passed by the respondent authorities against the petitioners are also required to be quashed and set aside.
Accordingly, orders of recovery passed against the petitioners are hereby quashed and set aside.
15. I may also quote with profit a decision of the Supreme Court in the case of S.K. Dua V. State of Haryana and another, AIR 2008 SC 1007. The observations of the Supreme Court in para no. 11 are as under:-
The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, wer are of the view that the grievance voiced by the appellant appears to be well-founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature ofbounty is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
16. In the instant case, the petitioner has claimed interest on the delayed payment to its members of the first higher grade pay scale.
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17. Here, there is no statutory rule occupying the field for payment of any interest relying on which, the members of the Federation can claim the benefit of interest on the delayed payment of their retiral dues. The Supreme Court in the case of S.K. Dua (supra) held that in the absence of statutory rule, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution, relying on Articles 14, 19 and 21 of the Constitution. Following the said decision of the Supreme Court, this Court has no hesitation to hold that the claim of interest on the delayed payment of retiral dues is the fundamental right of the petitioners which they can enforce in the writ jurisdiction of this Court.
18. When interest is awarded by the Court, our normal feeling is that it is so awarded by way of penalty or punishment. But interest in all cases is not granted by way of penalty or punishment. In this regard, reference may be made to the decision of the Supreme Court in the case of Alok Shanker Pandey Vs. Union of India, 2007 AIR (SC) 1198, wherein the concept of grant of interest has been explained in the following manner:-
It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say ten years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B ten years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal but also interest thereon to B.
19. The above-noted decision of the Supreme Court makes it clear that the claim of interest on the delayed payment of retiral dues or any other dues, to which an employee is otherwise entitled to, flows from the fundamental rights guaranteed under the Constitution.
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The claim for interest cannot be held to be a stale claim as a right to claim interest. All delayed payments of the legitimate dues accrue due to the continuing wrong committed by the State-respondent for withholding the payment of the employees of the retiral dues, causing continuous injury to the petitioners until such payment is made.
20. Apparently, therefore, the delay in payment of Higher Pay Scale earned by the retired teachers by the State is without any authority of law. It has been caused only due to their own conjectures and surmises and for non statutory alleged practice and bottleneck created thereby. This kind of practice perhaps is observed to harass poor retired employees. In the absence of any other valid reason shown by the learned counsel for the State, this Court is justified to infer as above. Such approach cannot be approved or condoned but deserves to be condemned in the strongest words.
21. A system controlled by the bureaucrats can create wrangles to device something which is formulated by the policy makers for the benefit of the citizen is writ large from this case. A beneficial scheme made for social welfare of the employees, can be twisted by the system creating a nightmare for the retired employees, as is quite evident. Something due today may not be available to a person right in time. It is like a person starving today is assured food to be provided after a month or two, by which time, he may die of hunger or the foodstuff itself may rot. If this is not unconstitutional then what else can be.
22. Withholding of pension and other retiral benefits including the legitimate dues under a particular scheme of the retired employees for years together is not only illegal and arbitrary but a sin, if not an offence, since no law has declared so. The officials, who are still in service and are instrumental in such delay, causing harassment to the retired employees, must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of the social and economic justice which is one of the founding pillars of our Constitution.
23. In our system, the Constitution is supreme, but the Page 10 of 15 HC-NIC Page 10 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT real power vest in the people of India. The Constitution has been enacted for the people, by the people and of the people. A public functionary cannot be permitted to act like a dictator causing harassment to a common man and in particular when the person subject to harassment is his own employee.
24. Regarding the harassment to a common man referring to the observations of Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 and Lord Devlin in Rooks v. Barnard and Ors., the Apex Court in Lucknow Development Authority v. M.K. Gupta, 1993 6 JT 307, held as under:-
An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it...
Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. (para 10)
25. The above observatins as such have been reiterated in Ghaziabad Development Authorities v. Balbir Singh, (2004) 5 JT 17(SC).
26. The Respondents being State under Article 12 of the Constitution of India, its officers are public functionaries. As observed above, under our Constitution, sovereignty vest in the people. Every limb of the constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind the respondents that they are expected to perform in a more responsible and reasonable manner so as not to cause undue and avoidable harassment to the Page 11 of 15 HC-NIC Page 11 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT public at large and in particular their ex-employees like the PetitionerS. The respondents have the support of entire machinery and various powers of the statute. An ordinary citizen or a common man is hardly equipped to match such might of State or its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on accountof, sometimes, lack of resources or unmatched status which give the feeling of helplessness. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match inaction in public oriented departments gets frustrated and it erodes the credibility in the system. This is unfortunate that matters which require immediate attention are being allowed to linger on and remain unattended. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action of administrative authority but where it is found that the exercise of power is capricious or other than bona fide, it is the duty of the Court to take effective steps and rise to the occasion otherwise the confidence of the common man would shake. It is the responsibility of the Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain arbitrary and arrogant, unlawful inaction or illegal exercise of power on the part of the public functionaries.(vide Abdul Kuddus Khan V. State of UP and Others, Civil Misc. Writ petition No.22315 of 2008, decided on 22nd February, 2011).
27. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue Page 12 of 15 HC-NIC Page 12 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has never been a silent spectator but always reacted to bring the authorities to law.
28. In Registered Society v. Union of India and Ors., (1996) 6 SCC 530, the Apex Court said:
No public servant can say you may set aside an order on the ground of mala fide but you cannot hold me personally liable No public servant can arrogate in himself the power to act in a manner which is arbitrary.
29. In Shivsagar Tiwari v. Union of India, 1996 6 SCC 558, the Apex Court has held:
An arbitrary system indeed must always be corrupt one. There never was a man who thought he had no law but his own will who did dnot soon find that he had no end but his own profit.
30. IN Delhi Development Authority v. Skipper Construction and Anr., 1996 AIR (SC) 715, the Court held as follows:
A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless.
31. It could be argued that all the decisions referred to above are in connection with wrongful withholding of the retiral benefits like pension gratuity etc. and the grant of the higher pay scale may not strictly fall within the ambit of retiral benefits. Higher Pay Grads Scale is something which the employees earn during their service in accordance with the rules and policy framed by the State Page 13 of 15 HC-NIC Page 13 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT Government. There is an object behind such policy of grant of higher pay scale, after particular period of service. Once an employee earns such benefit then it is expected they should be paid in terms of money. The benefit which accrued in the year 1995 came to be sanctioned only in the year 2014 and that to only with the intervention of the Court.
32. In my view nothing further is necessary to be adjudicated. The State Government is directed to make good the amount of interest at the rate of 10% per annum and shall give effect to its own Resolution dated 8th October 2014, (Annexure C to this petition) within a period of eight weeks from today."
9. The judgment referred to above of this Court was challenged by the State by filing the Letters Patent Appeal No.1429 of 2015. A Division Bench of this Court, vide judgment and order dated 4th January, 2016, was pleased to dismiss the appeal, thereby affirming the order passed by this Court referred to above. The operative part of the order passed by the Division Bench reads as under;
"9. If the aforesaid aspect is considered with the reasons recorded by the learned Single Judge, it cannot be said that the learned Single Judge has exercised the jurisdiction, which may call for interference by this Court in the present appeal.
10. In view of the above, no case is made out for interference. Hence, the appeal is merit-less and the same is dismissed."
10. Although, an attempt has been made to explain the delay, yet the explanation is not convincing. In such circumstances, the explanation, whatever its worth, is rejected.
11. In the result, this writ application succeeds and is allowed. The relief, as prayed for, in terms of para-6(A) is Page 14 of 15 HC-NIC Page 14 of 15 Created On Wed Sep 21 02:06:18 IST 2016 C/SCA/18216/2003 JUDGMENT granted. The authorities concerned are directed to make the requisite payment within a period of three months from the date of the receipt of the writ of the order.
12. With the above, this writ application is disposed of . Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 15 of 15 HC-NIC Page 15 of 15 Created On Wed Sep 21 02:06:18 IST 2016