Gujarat High Court
Saroj Jitubhai Shah vs State Of Gujarast & 2 on 28 September, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/1849/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1849 of 2004
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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SAROJ JITUBHAI SHAH....Petitioner(s)
Versus
STATE OF GUJARAST & 2....Respondent(s)
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Appearance:
MR AJ YAGNIK, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/09/2016
ORAL JUDGMENT
By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a retired Director of the Department of Opthalmology, Civil Hospital, Ahmedabad, has prayed for the following reliefs :
Page 1 of 11HC-NIC Page 1 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT "...the Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction :
(A) Admitting and allowing the present petition.
(B) Declaring that non-payment of interest to the petitioner by the respondents at the rate of 12% p.a. on the delayed payment of gratuity for a period between 31.10.1998 to 23.1.2001 for the 90% amount of gratuity and between 31.10.1998 to 18.12.2002 for the 10% amount of gratuity and further interest thereupon as has accrued on account of non-payment of interest till date is in violation of the resolutions dated 18.7.1983 and 8.11.1994 of the respondent Government of Gujarat and the same is therefore arbitrary, discriminatory, unfair, unjust and therefore violative of Articles 14, 16 and 21 of the Constitution of India and therefore illegal and unconstitutional;
(C) Directing the respondents to pay to the petitioner interest at the rate of 12% p.a. on the delayed payment of gratuity for a period between 31.10.1998 to 23.1.2001 for the 90% amount of gratuity and between 31.10.1998 to 18.12.2002 for the 10% amount of gratuity with further interest thereupon till the date of payment as deemed fit by the Honourable Court;
(D) During the pendency and/or final disposal of the present petition, the Honourable Court be pleased to direct the respondents to pay to the petitioner interest at the rate of 12% p.a. on the delayed payment of gratuity for a period between 31.10.1998 to 23.1.2001 for the 90% amount of gratuity and between 31.10.1998 to 18.12.2002 for the 10% amount of gratuity with further interest thereupon till the date of payment as deemed fit by the Honourable Court;
(D) To grant costs of this petition;
(E) To grant such other and further orders as the nature and circumstances of case may require."
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The writ-applicant retired as the Director of the
respondent no.2 Institute on 31st July 1998. At the time of her retirement, she was holding the original post of the Professor in the respondent no.2 Institute. She was a Class-I Gazetted Officer.
It appears that on 16th November 1999, she was served with a show-cause notice, calling upon her to show-cause as to why departmental action should not be taken for the act of misconduct. The act of misconduct alleged was that although she was not entitled to claim Rs.70,000=00 towards the medical reimbursement of her husband's medical bills, yet she claimed, which according to the department was a misconduct on her part.
It appears that the writ-applicant gave a detailed reply to the said show-cause notice on 11th January 2001. It also appears that the departmental inquiry which, at one point of time, was contemplated was dropped. Thereafter, in the year 2001, the amount of gratuity was paid to her. The only grievance voiced in this writ-application is that her retiral benefits in the form of the gratuity amount was not paid immediately to her on attaining the superannuation. It is her case that there was no justifiable reason to withhold the amount of gratuity. Hence, this writ-application.
On behalf of the State, i.e. the respondent no.3, an affidavit-in-reply has been filed, inter alia, stating as under :
"(5) So far as para 1 of memo of petition is concerned, I say and submit that Dr.Saroj J.Shah herself is responsible for delayed payment of gratuity as stated hereinbelow Page 3 of 11 HC-NIC Page 3 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT and therefore, cause of petition is not tenable in the eye of law.
(6) So far as para 4 of memo of petition is concerned, I say and submit that petitioner was holding an additional charge of Director, M & J Institute of Opthalmology, Ahmedabad, and by virtue of holding charge, she was delegated the financial powers of Controlling Officer. In that course, she had withdrawn the amount of Rs.70,000/- by claiming medical reimbursement of her husband's treatment of Apollo Hospital, Madras. The said medical reimbursement was not admissible to her. The fact was brought to her notice by concerned Administrative Officer, M & J Institute of Opthalmology, even though by using exercise of powers she had managed the same, not only that but she had mounted under pressure upon Administrative Officer for signing those bills. Hence show cause notice was issued to her and Administrative Officer also in reply to the same given a written statement wherein all these facts have been clearly mentioned. Moreover, the petitioner had deposited the said amount vide challan dtd. 11.9.98 and hence correspondence in this regard was dropped accordingly.
(7) So far as para 6 of memo of petition is concerned, I say and submit that petitioner's pension case was submitted to Director, Pension and Provident Fund Office had raised some queries which were send to the Director, M & J Institute of Opthalmology, Ahmedabad, for compliance vide this office letter dtd. 8.5.2001. I say and submit that queries of D.P.P. Office could not be complied, ultimately the petitioner gave a bond and consent letter dtd. 11.7.2002, which she argued to deduct some amount from her gratuity dues. Therefore, upto 17.7.2002, the petitioner herself did not made any action towards finalisation of her pension papers and shown gross negligence of her. Thus, it is very clear that the cause of delay in payment of gratuity is "the inaction on the part of petitioner herself" only.
(8) So far as para 7 of memo of petition is concerned, I say and submit that as stated hereinabove, the petitioner herself is responsible for inaction shown by her in finalisation of pension papers and therefore, question does not arise for payment of interest on delay payment Page 4 of 11 HC-NIC Page 4 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT of gratuity."
The reply is quite disturbing. The reason why I am saying so is that the amount of Rs.70,000=00 which, according to the respondent, was wrongfully claimed was deposited by the writ- applicant vide Challan dated 11th September 1998.
If that be so, then probably there was no reason for the department to issue the show-cause notice dated 16th November 1999, call for the reply and thereafter drop the inquiry.
In my view, the claim of interest as put forward by the writ-applicant is justified. This issue is squarely covered by the judgment and order of this Court dated 16th June 2015 passed in the Special Civil Application No.8251 of 2015. I may quote the relevant observations made by this Court as contained in paragraphs 15 to 31 as under :
"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, Page 5 of 11 HC-NIC Page 5 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT 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.
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 Page 6 of 11 HC-NIC Page 6 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT 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. 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.
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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 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 Page 8 of 11 HC-NIC Page 8 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT 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 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 Page 9 of 11 HC-NIC Page 9 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT 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 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 Page 10 of 11 HC-NIC Page 10 of 11 Created On Thu Sep 29 00:42:10 IST 2016 C/SCA/1849/2004 JUDGMENT 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 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."
The upshot of the aforesaid discussion is that the writ- applicant is entitled to interest at the rate of 10% for the delayed payment of the gratuity amount. The amount shall be calculated accordingly and be paid to the writ-applicant within a period of two months from the date of receipt of the order.
With the above, this writ-application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 11 of 11 HC-NIC Page 11 of 11 Created On Thu Sep 29 00:42:10 IST 2016