Gujarat High Court
Jivraj Vashrambhai Kanjaria vs State Of Gujarat on 3 August, 2004
Equivalent citations: (2005)1GLR681, 2005 LAB. I. C. 1030, (2005) 26 ALLINDCAS 254 (GUJ), (2005) 2 CURLR 35, (2005) 104 FACLR 679, (2005) 1 GUJ LR 681, (2005) 4 SERVLR 190, (2005) 26 ALLINDCAS 254
Author: Ravi R. Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R. Tripathi, J.
1. The petitioner has approached this Court for the relief that the respondents be directed to pay arrears of pension from 01.01.1992 onwards with interest at the rate of 18%; that the respondents be further directed to pay regular pension to the petitioner in future. The petitioner also prayed for awarding the cost of the petition. The petition was filed on 08.10.2001 and notice was issued on 17.10.2001 for final disposal returnable on 07.11.2001. Thereafter, the Court was pleased to issue 'Rule' on 18.01.2002 returnable on 06.03.2002. The matter was on Board for final hearing and was adjourned from time to time. On 06.02.2004, when matter was on Board for final hearing, the learned Assistant Government Pleader referred to and relied upon an affidavit filed by one Mr.Y.P. Pathak, Deputy Executive Engineer, City R & B Sub-Division, Jamnagar of respondent no.2 affirmed on 10.03.2003, wherein it is stated that, "... ... As per letter dated 13.12.1983 the petitioner was nominated on work charged establishment as per government norms applicable at that time and in that appointment letter it was mentioned in condition no.12 that the labour would not be entitled of any pre requisite (sic., perquisite)/ benefits of past which was obligatory to all. ... ...
It is submitted that as per circular of State Govt. dated 17.10.1988 only those petitioner is entitled for pension whose length of service is more than 10 years in work charged establishment only and the pensionable services shall be treated for permanent, i.e., work charged duration only. ... ...
It is further submitted that as per Government of Gujarat Circular dated 26.8.1996, for treating gratuity permissionable (sic.) service, both rojamdar and work charged services has to be counted separately. ... ... It is submitted that the petitioner's service of rojamdar are governed by PWD rules. In the said petitioner's case the services tendered (sic., rendered) by him comes to 7 years 9 months only. Thus, the petitioner is not entitled to get pension as per Rules.
... ... It is submitted that the petitioner is not eligible to get pension as per circular mentioned above.The controlling authority has confined the length of service of 32 years of the petitioner is arbitrary without any documentary evidence which are neither has with respondent not with petitioner. The Hon'ble High Court has not confirmed the same yet. The Hon'ble High Court has mentioned in the order that the case of Shri Tribhovan Jambhai (sic., Tribhuvan Jeram) v. State of Gujarat reported judgement is on the ground of fundamentally different reasons.The case of present petitioner and the matter of Shri Tribhovan Jaambhai (sic., Tribhovan Jeram) is in no case identical because of no proof of length of service with rojamdar as were (sic.) as other different reasons. The respondent has cared enough of petitioner, cleaning (sic.) all his dues, if any upto the date time based answer has been provided to him. The petitioner has wasted his time only under unnecessary correspondence, the department has provided to him all time satisfactory answer. The respondent have deep sense of sympathy towards petitioner on moral ground. In no case respondent is entitled to allot (sic) pension as per Govt. norms and regulation applicable from time to time due to insufficient length of service of the petitioner in respective cadre."
2. On reading the affidavit filed by the officer of the rank of the Deputy Executive Engineer, the Court directed the said officer to remain present before this Court on 07.02.2004. On that day, the Court passed the following order:
"Pursuant to the order dated 6th February 2004, Mr.Y.P. Pathak, Deputy Executive Engineer, City R & B Sub-Division, Jamnagar, is present before the Court. Initially, he submitted that he adhere to the affidavit in reply prepared on the basis of parawise remarks, which are annexed as Annexure R-1. Later on, when he is confronted with the contents of the letter dated 17th November 2000 written by the Executive Engineer and the judgement of this Court in Special Civil Application No.5623 of 1997 in the matter of Tribhovanbhai Jerambhai v.Dy. Executive Engineer, Sub-Division, R&B Deptt., & anr., reported in 1998 (2) GLH 1, more particularly, Head Note-C, which reads as under:
"Once a daily rated workman is treated to be permanent under the Resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularisation is taken into consideration for the purpose of computing pension or making pension available to such retired employee."
He tendered unconditional apology.
He states that he has no personal interest in the matter and the affidavit in reply is prepared on the basis of the instructions given to him in the form of parawise remarks. He prays for some time to see that the matter is reconsidered and decision is taken in the matter. Time is granted upto 13th February 2004. S.O. to 13th February 2004. On that day, Mr.Y.P. Pathak shall remain personally present before this Court at 11.00 am."
3. On that day (13.02.2004) at the request of the learned Assistant Govt. Pleader on her producing the copies of letters exchanged between the Deputy Executive Engineer-Executive Engineer; Executive Engineer-Superintending Engineer;Superintending Engineer-Sachivalaya, Gandhinagar, the matter was adjourned to 20.02.2004. The matter was then taken up on 26.03.2004. On that day, Mr.V.N.Patel, Under Secretary, Roads & Buildings Department remained present before the Court and on his instructions the learned Assistant Govt. Pleader prayed for time to enable him to consider the case of the petitioner. The matter was adjourned to 16.04.2004. On that day it was stated by the learned Assistant Govt. Pleader, on instructions from Mr.V.N. Patel, Under Secretary, Roads & Buildings Department that the matter is actively followed and it is pending at the stage of, 'proposal' with Finance Department hence hearing was adjourned to 26.04.2004. The matter could then be taken up on 13.05.2004, on that day the learned Assistant Government Pleader, on instructions from Mr.V.N. Patel, Under Secretary stated that the decision in the matter is left to the discretion of the Roads & Buildings Department by the Finance Department. The Roads & Buildings Department has taken a decision on 12.05.2004. Said decision was made available to this Court for perusal. The learned Assistant Government Pleader submitted that the said decision is pending for final signature of the concerned Secretary. It was also stated that the same will be obtained during the course of the day or latest by 14.05.2004. Thereafter, it will be communicated to the Superintending Engineer, who in turn will pursue the matter and will see to it that the pension, including the arrears, is paid at the earliest. In view of the aforesaid statement, the matter was adjourned to 15.06.2004.
4. To the utter surprise on 15.06.2004 it was reported by the learned advocate for the petitioner that despite the statement made on 13.05.2004 incorporated in the order of even date, the petitioner had yet not received the amount of pension. However, due to persuading request of Mr.Pujari, the learned Assistant Govt. Pleader the matter was adjourned to 18.06.2004. On 18.06.2004. Finally on 18.06.2004 it was reported that the amount is paid, hence the matter was adjourned to 30.06.2004 as the learned advocate for the petitioner wanted to take instructions in this regard.On 30.06.2004 the learned advocate for the petitioner reported that a sum of Rs.1,90,000/-, and odd is paid to the petitioner, but without interest, payable due to belated payment and without considering the 'revision of pay' under 5th Pay Commission. However, the Court taking a lenient view of the matter, directed the petitioner to make a representation for the interest and the benefits of revision of pay under 5th Pay Commission. The matter was adjourned to 27.07.2004. On 27.07.2004 the learned Assistant Govt. Pleader placed on record a copy of letter dated 26.07.2004 addressed to him, intimating that, 'the differential amount arising on account of revision of pay under the 5th Pay Commission is being paid by a cheque dated 27.07.2004 So far as interest is concerned as there is no provision in the rules for payment of interest on delayed payment of pension, the claim of the petitioner for interest cannot be accepted. It is further stated in that letter that the Government has made payment of pension, taking into consideration the special circumstances of the case, as per the directions of the Court, hence there is no delay in payment in this case.
5. Today, when the matter is taken up for final hearing, Mr.Kishor M. Paul, the learned advocate relied upon two decisions of the Honourable the Apex Court in support of his contention that the petitioner is entitled to interest on the delayed payment. The learned advocate relied upon the decision of the Honourable the Apex Court in the matter of Vijay L. Mehrotra v. State of U.P. and Ors., reported in (2001) 9 SCC 687, wherein the Honourable the Supreme Court was pleased to order payment of simple interest at the rate of 18% with effect from the date of retirement till the date of payment. The learned advocate next relied on the decision of the Apex Court in the matter of Dr.Uma Agrawal v. State of U.P., reported in A.I.R. 1999 SC 1212. In this case the Honourable the Apex Court was pleased to quantify the amount of interest holding that the petitioner was entitled to penal interest as there was a delay of nearly five years in disbursement of the amount.
6. Mr.Mukesh Patel, the learned Assistant Govt. Pleader submitted that the petitioner is not entitled to any interest, because there is no provision in the rules for the same, even if there is delay in payment of pension. The learned Assistant Govt. Pleader further submitted that in the present case the Government after taking into consideration the special circumstances decided to pay pension in a time frame, as per the directions of the Court and therefore, there is no delay. He further submitted that besides the claim of the petitioner for simple interest at the rate of 18%, is also untenable in law in view of section 34 of the Code of Civil Procedure, 1908, wherein it is provided that:
" .. .. the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, .. .."
Whereas for any period prior to institution of the suit the Court may order payment of interest at such rate not exceeding 6% per annum as the Court deems reasonable on such principal amount, from the date of decree to the date of payment or to such earlier date as the Court thinks fit.
The learned Assistant Govt. Pleader submitted that without prejudice to his aforesaid contentions, it at all any interest is to be paid to the petitioner, the same cannot be more than 6% per annum.
7. Few dates in this case, which are material to decide the issue of 'interest' are as follows:
7.1 The petitioner retired from service on 31.12.1991. He made several reminders for pension including those made on 02.12.1994, 03.04.2000, 09.06.2000 and 06.11.2000. But that was all in vain. He made an application for gratuity on 01.10.1996, which was decided by the controlling authority of the gratuity on 05.08.1997. This order was challenged by the Department before this Court by filing Special Civil Application No.10468 of 1999 which was dismissed at admission stage on 21.01.2000. It is thereafter that the petitioner approached this Court by filing this petition in the month of August 2001. The petitioner is thus waiting for his pension and gratuity since 1991 and also for the Government to consider his case after filing the petition. It is painful that the same is considered, only after the Court issued various directions from time to time which is clear from the narration of the orders made hereinabove. The Government has paid amount but then rejected the claim of the petitioner for interest.
8. The difficulty arose in this case because like all other cases, the concerned Government employee including the officer did not take care to implement the decision of this Court in the matter of Tribhovanbhai Jerambhai v. Dy. Executive Engineer, Sub-Division, R and B Deptt., and Anr., reported in 1998 (2) GLH 1 (supra), wherein this Court pronounced that, "Once daily rated workman is treated to be permanent under the Resolution dated 17.10.1988 his entire continuous service from the date of entry until he retires including his services rendered prior to the date of his regularisation is taken into consideration for the purpose of computing pension or making pension available to such retired employee.
9. Were the concerned Government employees and officers, vigilant enough to implement the above judgement of this Court, the agony which the petitioner had undergone could have been avoided.
10. From the aforesaid facts it is clear that it was only after this Court passed various orders that the Government considered the case of the petitioner for payment of pension, gratuity and difference of gratuity. In such circumstances, this Court is of the considered opinion that there is nothing on record which should deter this Court from passing similar order as is passed by the Honourable the Apex Court in the aforesaid two cases. The Court, therefore, directs the respondents to pay simple interest at the rate of 18% per annum from the date when the amount of pension became payable to the petitioner till the date the amount is actually paid. The petition is allowed. Rule is made absolute.
11. Taking into consideration the record of the case and the approach of the Government employees and the officers cost of Rs.15,000/-, (Rupees fifteen thousand only) is awarded, which shall be paid to the petitioner along with the amount of interest. These amounts shall be paid as expeditiously as possible, but not beyond three months from the date of receipt of this order. This amount of cost shall be recovered from the concerned Government employee/ officer, if deemed fit by the Government.
12. Mr.Kishor M. Paul, the learned advocate for the petitioner submitted that there are several other similar cases pending with the Government, therefore, if a copy of this judgement is sent to the Secretary, Roads & Buildings Department for its circulation to all concerned officers of all the Divisions, it may expedite the disposal of those cases. The office is, therefore, directed to send a copy of this judgement and order to the Secretary, Roads & Buildings Department and the Secretary, Finance Department for necessary action in the matter, which shall be placed on the record of this case.