Gujarat High Court
Prafullaben Jayantilal Gopani vs State Of Gujarat & 2 on 22 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/19850/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19850 of 2015
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PRAFULLABEN JAYANTILAL GOPANI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VAIBHAV A VYAS, ADVOCATE for the Petitioner(s) No. 1
MR. GAUTAM, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/03/2016
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the petitioner, a retired lecturer, has prayed for the following reliefs;
"(A) Direct the respondent authorities to make payment of the amount of leave encashment to the petitioner along with interest, from the date of retirement of the petitioner i.e. 30.9.2013 till date of actual payment, at the rate which the Honourable Court may be consider just and proper in the facts and circumstances of the case and in the interest of justice, and (B) Direct the respondent authorities to make payment of difference of pay to the petitioner on account of implementation of Gujarat Civil Services (Revision of Pay) Rules, 2009 from 1.1.2009 to June, 2013 as per her entitlement along with interest, from its due date till the date of actual payment, at the rate which the Honourable Court may consider as just and proper in the facts and circumstances of the case and in the interest of justice, Page 1 of 10 HC-NIC Page 1 of 10 Created On Thu Mar 24 02:21:06 IST 2016 C/SCA/19850/2015 ORDER and (C) Pending hearing and final disposal of this petition, the Honourable Court may be pleased to direct the respondent authorities to make payment of leave encashment and difference of pay to the petitioner, and (D) Award the cost of the present petition;
(E) Grant any other relief or pass other order, which the Honourable Court may consider as just and proper in the facts and circumstances of the case."
2. On 1st December, 2015, the following order was passed;
"The petitioner is aggrieved by non-payment of leave encashment. He is also asking for difference in the pay in the wake of the benefits given under Sixth Pay Commission. Issue notice for final disposal on 21.12.2015. Learned AGP Mr. Rindani waives service of notice for and on behalf of the State. Affidavit in reply be filed within three weeks. Direct service is permitted."
3. Today, when the matter is taken up for hearing, Mr. Deepak Aloriya, the learned AGP appearing for the State- respondents, has placed on record an affidavit-in-reply filed on behalf of the respondent No.3, which reads as under;
"1. I state that I have been served with a copy of the petition and as I am conversant with the facts and circumstances, I am competent to file this reply and therefore, I am filing the present affidavit in reply.
2. At the outset I deny all the allegations, averments made in the memo of the petition and non denial of any allegation, averments and contentions may not be construed as admission on my behalf unless and until specifically admitted by me hereunder.
3. I respectfully say and submit that I am filing the present affidavit in reply only with a view to oppose to admission of the present petition and grant of any interim relief in favour of the Petitioner and I reserve my right to file the detailed affidavit as and when necessary.Page 2 of 10
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4. I respectfully say and submit that none of the fundamental or legal rights of the Petitioner has been violated because of any action or inaction on the part of any of the present Respondents and therefore, the present petition is not maintainable in law and the same deserves to be dismissed in limine.
5. It is the case of the petitioner that inspite of her retirement and number of representations, she is not paid the amount of leave encashment nor the difference of pay. At the outset, I state that the petitioner's grievance is already addressed to and therefore, on this ground itself the petition should be rejected.
6. I state that the petitioner was paid the amount of Rs. 11,37,180/- by cheque no. 226360 towards leave encashment (300 days) which were handed over to the petitioner personally on 11/12/2015. A copy of the office order dated 09/10/2015 and the receipt of the petitioner dated 11/12/2015 is annexed hereby and marked as Annexure R-I.
7. I state that the petitioner is paid the amount of Rs. 24,657/- by cheque drawn on State Bank of India cheque no. 287656 towards pay fixation which was received by the petitioner on 02/01/2016. A copy of the order dated 04/01/2016 and the receipt dated 21/01/2016 evidencing the same is annexed hereby and marked as Annexure R-II.
8. I state that the arrears of Sixth Pay Commission of Rs. 1,14,606/- drawn on State Bank of India cheque no. 195513 which have been deposited in the account of the petitioner on 10/02/2015 is annexed hereby and marked as Annexure R-III.
9. In light of the above it is clear that the petitioner is already paid the amount of leave encashment, pay fixation difference and arrears of Sixth Pay Commission. Therefore, no case is made out in the petition as the grievance is already resolved.
10. Therefore, the petition should be disposed in above terms."
4. The affidavit-in-reply filed on behalf of the respondent Page 3 of 10 HC-NIC Page 3 of 10 Created On Thu Mar 24 02:21:06 IST 2016 C/SCA/19850/2015 ORDER No.3 makes it clear that the retiral benefits have been paid to the petitioner. The grievance to that extent stands redressed.
5. However, in the entire reply, no explanation is forthcoming why it took more than two years to sanction the retiral benefits.
6. So far as the claim for interest is concerned, I may refer to and rely on the decision rendered by me in the case of Jaswantkumar vs. State of Gujarat dated 6th August, 2015 in Special Civil Application No.4861 of 2014. I may quote the observations made in paragraphs-
11,12,13,14,15,16,17,18,19,20,21,22,23,24 and 25 as under;
"11. 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, we 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 Page 4 of 10 HC-NIC Page 4 of 10 Created On Thu Mar 24 02:21:06 IST 2016 C/SCA/19850/2015 ORDER 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.
12. 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.
13. 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. Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu Mar 24 02:21:06 IST 2016 C/SCA/19850/2015 ORDER
14. 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.
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.
15. 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.
16. 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.
17. 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 Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu Mar 24 02:21:06 IST 2016 C/SCA/19850/2015 ORDER obnoxious. It is also against the concept of the social and economic justice which is one of the founding pillars of our Constitution.
18. In our system, the Constitution is supreme, but the 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.
19. 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)
20. The above observations as such have been reiterated in Ghaziabad Development Authorities v. Balbir Singh, (2004) 5 JT 17(SC).
21. 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 Page 7 of 10 HC-NIC Page 7 of 10 Created On Thu Mar 24 02:21:06 IST 2016 C/SCA/19850/2015 ORDER 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 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 account of, 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).
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22. 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 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.
23. 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.
24. 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 not soon find that he had no end but his own profit.
25. 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."Page 9 of 10
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7. In view of the fact that there is no valid or legitimate reason for delaying the payment of leave encashment legally due to the petitioner, the interest of justice would demand that the State Government be directed to calculate the requisite amount of interest at the rate of 8% per annum from the date of retirement till the date the payment was made to the petitioner. It is hereby so directed. Let such payment be made within a period of two months from the date of receipt of the writ of the order.
8. With the above, this writ application is disposed of.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Mar 24 02:21:06 IST 2016