Gujarat High Court
Chhibubhai Naginbhai Patel vs State Of Gujarat & on 15 January, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/656/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 656 of 2015
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CHHIBUBHAI NAGINBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MS BHAVIKA H KOTECHA, ADVOCATE for the Petitioner(s) No. 1
MR SWAPNESHWAR GOUTAM, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 15/01/2015
ORAL ORDER
1. In present petition, the petitioner has prayed, inter alia, that:
"8B. Your Lordships may be pleased to issue writ of Mandamus, writ in nature of Mandamus or any other appropriate writ/s, order/s, and/or, direction/s directing the respondents to pay the petitioner his legitimate retirement dues i.e. G.P.F., Group Insurance and Leave Encashment as per the computation made by him in the interest of justice."
2. At the time hearing, learned advocate for the petitioner submitted that the petitioner is not paid his retiral dues and therefore, he has taken out present petition.
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3. It is claimed that the petitioner raised demand for entitlement of retiral dues and subsequently, the respondents paid certain amounts to the petitioner. Learned advocate for the petitioner submitted that the payment made to the petitioner is not according to his entitlement and there is short payment and therefore, he has taken out this petition. She submitted that the petitioner only seeks correction in the calculation and that the shortfall may be made good.
4. Mr. Goutam, learned AGP, who has appeared on advance copy of the petition, submitted that in 2001 the complaint was filed against the petitioner and he was arrested in September 2001 and he remained in police custody till 6.11.2001. He also submitted that the petitioner was convicted vide judgment and order dated 16.9.2004.
5. Learned AGP submitted that in view of the conviction, the petitioner was dismissed from Page 2 of 11 C/SCA/656/2015 ORDER service vide order dated 2.4.2005.
6. Learned advocate for the petitioner submitted that in appeal, this Court altered the sentence.
7. It is not in dispute that order of dismissal survived even though sentence was altered / modified as claimed by learned counsel.
8. It is also not in dispute that the petitioner never challenged his dismissal which was effected by order dated 2.4.2005.
9. Under the circumstances, the petitioner stood terminated with effect from April 2005 and the said termination has attained finality.
10. Learned advocate for the petitioner claimed that the petitioner reached age of superannuation in June 2009 and at that stage, he became entitled for retiral dues.
11. Learned AGP also submitted that since the petitioner was convicted and dismissed from Page 3 of 11 C/SCA/656/2015 ORDER service, the petitioner would not be entitled for pension.
12. Learned advocate for the petitioner submitted that the petitioner does not claim any amount towards pension, however, according to the petitioner, the amount payable to him towards provident fund is not paid in entirety and according to the petitioner, the amount payable to the group insurance and leave encashment is not paid.
13. Learned AGP submitted that it does not appear from the record that the petitioner has ever made any claim and dispute with regard to leave encashment or provident fund or insurance but he has directly approached the Court without even raising claim or dispute with the department.
14. I have heard learned advocate for the petitioner and learned AGP for the respondents.
15. From the material available on record in present petition, it appears that the respondents Page 4 of 11 C/SCA/656/2015 ORDER have made certain payments to the petitioner as his retiral dues. It appears that the respondents have paid the amount which, according to them, was payable to the petitioner in the facts and circumstances of the case.
16. However, by way of present petition, the petitioner has raised dispute and against that amount paid to him is not according to his entitlement and the respondents have made short payment.
17. From the record, it appears that before filing the petition, the petitioner did not raise any dispute or claim with regard to the alleged nonpayment and/or short payment.
18. Learned advocate for the petitioner submitted that the petitioner had made application and raised claim, however, the said application or claim is not placed on record. To substantiate her submission, she relied on the preamble of the communication dated 31.8.2010 (AnnexureC, page Page 5 of 11 C/SCA/656/2015 ORDER
15) and claimed that the petitioner had submitted an application dated 26.7.2010.
19. While making the said submission, the learned counsel for the petitioner overlooks the fact that in pursuance of the said application, the payment mentioned in the said communication dated 31.8.2010 (AnnexureC, page 15) appears to have been made and after the payment the petitoner never raised any other claim and/or never disputed that the details mentioned in 2010 are not correct and now almost 4 and half years after said letter and the payment this petition is taken out.
20. Learned advocate for the petitioner has failed to bring to notice of the Court any communication or demand or notice or any material subsequent to 31.8.2010 wherefrom it can be ascertained that the petitioner specifically demanded any particular amount or raised any particular claim fro the respondents. Page 6 of 11 C/SCA/656/2015 ORDER
21. Learned advocate for the petitioner has also failed to point out from the record that any material fromwhich it can be ascertain as to whether any claim was made and whether any claim is rejected by the authority and if any claim is rejected, then the reasons on which the petitioner's claim is denied by the respondents can be ascertained.
22. Learned advocate for the petitioner alleged that except the said communication dated 31.8.2010, any other material either informing the details of the amount to which the petitioner is eligible and/or denying any claim is not given by the department.
23. The fact remains that any material is not on record to establish that after the petitioner received the communication dated 31.8.2010 (AnnexureC, page 15) and received the payment of the amount mentioned in the said communication, the petitioner had ever raised any specific claim with the department and it came to be rejected. Page 7 of 11 C/SCA/656/2015 ORDER
24. It is at the time of hearing of the petition that learned advocate for the petitioner clarified that the petitioner does not claim any amount towards pension and the claim is restricted on, to the (alleged) nonpayment / short payment of amount towards GPF, Group Insurance and Leave Encashment.
25. In this view of the matter, it appears that present petition can be disposed of with following order.
26. It will be open to the petitioner to make a detailed and specific application to the respondents wherein, the petitioner may specifically mention his items / heads towards which he is claiming the amount and also specify the amount which he has received until now and shall also mention the extent to which his claim according to him, is short paid and the claim/s and/or the amounts which, according to him, he is entitled.
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27. Such may be submitted by the petitioner within 10 days from today.
28. Learned advocate for the petitioner claims that in December 2014, the petitioner has already submitted an application.
29. Since copy of the said petition is not on record, it is not possible to ascertain as to whether specific details which the department would require to examine petitioner's case are mentioned in the application or not.
30. Therefore, the aforesaid option is kept open for the petitioner.
31. It will be necessary for the petitioner to submit an application giving specific details about his claim, instead of some vague application.
32. Such application shall be submitted to the competent authority who is incharge of taking decision.
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33. After the application is received by the competent authority, the same will be taken into consideration and the claim raised by the petitioner will be examined by the competent authority and if any amount becomes payable according to the petitioner's claim and his claim is found justified, then appropriate amount may be paid to the petitioner within 8 weeks thereafter.
34. If it is found that the petitioner is not entitled for the claims raised by him, then appropriate reasoned order giving details as to why the petitioner is not entitled for the amounts claimed by him towards any particular head shall be passed and conveyed to the petitioner within 4 weeks after receipt of such application.
35. It is clarified that if after the receipt of the order conveying the reasons as to why the petitioner's claims are not accepted, the Page 10 of 11 C/SCA/656/2015 ORDER petitioner has any grievance, it will be open to the petitioner to take out appropriate proceedings against such reasoned order.
With the aforesaid clarification, the petition is disposed of.
Direct Service is permitted.
(K.M.THAKER, J.) Bharat Page 11 of 11