Gujarat High Court
Tulsidas P Rajpara Retired Octroi Clerk ... vs Dhoraji Nagarpalika on 1 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/6480/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6480 of 2001
With
SPECIAL CIVIL APPLICATION NO. 2621 of 2001
With
SPECIAL CIVIL APPLICATION NO. 8785 of 2000
With
SPECIAL CIVIL APPLICATION NO. 11626 of 2000
With
SPECIAL CIVIL APPLICATION NO. 11629 of 2000
With
SPECIAL CIVIL APPLICATION NO. 11630 of 2000
With
SPECIAL CIVIL APPLICATION NO. 837 of 2001
With
SPECIAL CIVIL APPLICATION NO. 964 of 2001
With
SPECIAL CIVIL APPLICATION NO. 1561 of 2001
With
SPECIAL CIVIL APPLICATION NO. 4438 of 2001
With
SPECIAL CIVIL APPLICATION NO. 4439 of 2001
With
SPECIAL CIVIL APPLICATION NO. 4999 of 2001
With
SPECIAL CIVIL APPLICATION NO. 5039 of 2001
With
SPECIAL CIVIL APPLICATION NO. 6400 of 2001
With
SPECIAL CIVIL APPLICATION NO. 8822 of 2001
With
SPECIAL CIVIL APPLICATION NO. 2019 of 2002
With
SPECIAL CIVIL APPLICATION NO. 6678 of 2004
FOR APPROVAL AND SIGNATURE:
Page 1 of 21
HC-NIC Page 1 of 21 Created On Wed Jul 06 01:39:58 IST 2016
C/SCA/6480/2001 JUDGMENT
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
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 ?
==========================================================
TULSIDAS P RAJPARA RETIRED OCTROI CLERK & 1....Petitioner(s)
Versus
DHORAJI NAGARPALIKA....Respondent(s)
==========================================================
Appearance:
MR MD RANA, ADVOCATE for the Petitioner(s) No. 1 - 2
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/07/2016
ORAL JUDGMENT
1. Since the issues raised in all the captioned writ applications are more or less the same those were heard analogously and are being disposed of by this common judgment and order.
2. The writ applicants before me are all retired employees of the Dhoraji Nagarpalika. It is the case of the applicants that Page 2 of 21 HC-NIC Page 2 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT they all were working as the Octroi Clerks. They have not been paid their retiral dues like Gratuity, Provident Fund, Difference of the 5th Pay Commission and benefit of the Earned Leave. They all have prayed for appropriate writ, order or direction in this regard to the Nagarpalika.
3. I take notice of the fact that the history of this litigation is quite checkered. In Special Civil Application No.871 of 1988 filed by the Bhartiya Mazdur Sangh for appropriate directions upon the Dhoraji Municipality and its Chief Officer to make payment of the salaries due to its employees, the learned Single Judge of this Court had to pass a very strong order reflecting sorry state of affairs of the Municipality. I may quote the observations made by the Court as under;
"##. In the matter where the salaries are not regularly paid to the employees they may have an efficacious alternative remedy to approach to the payment of the wages authority under the Payment of Wages Act, 1936. It is not the case of the petitioners or the respondents that that remedy is not available to the employees of the municipalities. Under the Payment of Wages Act, 1936 the adequate efficacious remedy is available to the employees where employer is not making payment of salary to employees regularly. The power has been conferred upon the authority also where it is satisfied that without there being any justification or deliberately payment of the salary is withheld of employees the damages to the employees to the extent of 100% of the amount of the wages or salary withheld can be awarded. This petition has been filed by the Union / Association of the employees and being an association of employees it has another alternative remedy to raise industrial dispute in the service matter and this is certainly a service matter. It is difficult to appreciate a petition by employees union or association which can raise an industrial dispute or can approach the Payment of Wages Authority for such dispute. Before the Payment of Wages Page 3 of 21 HC-NIC Page 3 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT authority the employees can file a joint petition also and reference here may have to the provisions of Section 15 of the Act aforesaid. Be that as it may. So far as to the grievance of the petitioner against the respondent municipality not paying salaries to its employees it no more now survives as in pursuance to the interim orders which have been passed by this court from time to time the unpaid salaries has already been paid to the employees. From the affidavit of the petitioner also it no more remains in doubt that outstanding salaries or withheld salaries have been paid to the employees. From pleadings of the parties i.e. in the affidavit of the petitioner copy of which is there on the file of Civil Application No.2361 of 1999 the dispute may be there for nonpayment of salaries up to the month of July, 1999 but no further affidavit has been filed by the petitioner to show that the municipality is not regularly paying the salary to the employees. In fact this petition to the extent grievance made therein for nonpayment of salaries to the employees of the municipality and members of the petitioner does not survive.
##. So far as the prayer made to deposit the entire amount of arrears of Provident Fund contribution deducted from the employees' salary and also to deposit the bank loan deducted from salaries of the employees to their respective accounts is concerned this grievance survives. The respondent municipality admitted that a sum of Rs.3,57,65,317/= is to be deposited by it under the head of Employees' Provident Fund. It is stated to be the accumulated arrears to be deposited by the Municipality during the years 1981-1989. The amount of the Employees' Provident Fund is not the amount of the municipality or the State Government. It is the amount of the employees and the State Government to which it is to be deposited in its treasury, it is only a trustee thereof. Similar is the case with the municipality. In case any amount of the provident fund of the employees is diverted for other use it may amount to a case falls under Section 406 of IPC. This amount cannot be diverted either by State Government or by the Municipality towards any other head or cannot be used for any other purpose. In this case, it is really shocking that from 1981 to 1989 the municipality has not deposited provident amount of the employees in the treasury though deducted from their salaries. The State of Gujarat and its officers more Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT particularly the District Collector and Director of Municipalities had also not taken any action in the matter. The deduction from the salaries of the employees has been made towards their contribution to the provident fund and that has not been deposited which is very very serious. In fact, this act of the then members of the municipality as well as Chief Officer renders them liable for criminal prosecution as well to take stern action against the municipality by the Collector of the District and the Director of Municipalities. In the year 1989 though the facts have not been disclosed by either of the parties in the pleadings and the copy of the order of the State Government is also not produced, this municipality was superseded. However, it is a fact that the administrator has made his good efforts after supersession of the municipality and he had augmented the income of the municipality as well as managed its affairs in the manner so that he has wiped off a heavy liability of the municipality towards payment of the salaries to its employees. Not only this a sum of Rs.30 to 35 lakhs has also been there as surplus amount. After reconstitution of the municipality on election the condition thereof again deteriorated. Towards this huge arrears of the employees provident fund not a single pie is deposited. The petitioner has prayed for direction to the respondent municipality to deposit Rs.10 lakhs p.m. towards the arrears of the provident fund. But looking to the income of the municipality it seems to be difficult for it to make deposit thereof regularly. The municipality has to discharge its current liability of payment of salaries as well as to bear out the expenses of providing facilities, amenities as well as to carry out welfare activities for the citizens and it may be very difficult for it to bear this burden. The municipality has to pay the provident fund and other retiral benefits to the employees, who retire from services. There are many other petitions filed in this court and some of them have been disposed off by me earlier filed by the employees of the municipality. Rs.3,57,65,317/= is not small amount. This amount carries the interest and the beneficiaries of the same i.e. employees are entitled for this amount as well as accrued interest thereon. The figure of Rs.3,57,65,317/= is inclusive of the interest or not it is not made clear. But if we go by this figure then every month the interest accrues thereon may be more than Rs.3,00,000/=. This is an additional amount, which is Page 5 of 21 HC-NIC Page 5 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT adding to the arrears every month and in case the immediate solution of this problem is not found by the respondent State Government and municipality then it may be very difficult to wipe off this liability of the arrears in near future. It is true that the present members of the municipality may not be strictly responsible for it but at the same time they are under obligation to find out the ways to wipe off this liability of the municipality.
##. I find from the pleadings of the parties that about 190 employees may be daily wagers / temporary or adhoc have been appointed in the municipality during the period when the elected body was there in excess of the sanction strength of the municipality under the staffing pattern. I fail to see any justification in the action of the municipality to make the appointment of the employees to the extent of 190 when the financial condition of the municipality is deteriorating. In excess of the sanctioned strength as per the staffing pattern, no appoint could have been made more so when the municipality is not in a position to pay salaries to the regular employees as well as to clear the huge arrears of the provident fund amount of the employees. Those who made these appointments may not be in office and as such no action can be taken against them nor it may be advisable to take action against them at this stage. However, if this is the position then the present body, who is managing affairs of the municipality should have taken all the care and caution to reduce the financial burden of the municipality by taking appropriate legal action in the matter. The District Collector and the Director of Municipalities are also equally concerned for these appointments made in excess of sanction strength of the municipality under the staffing pattern. It heavily burdens the municipality and ultimately it may shake its financial condition. What for these officers are there if they are unable to control the affairs of the municipalities and to see that the municipalities are working within the frame work of the Act as well as to have the regular check over their action so that the money of the municipality may not be squandered, misused and lavishly spent. Similarly they have to keep all the check over this action of the municipalities so that it systematically work. In case the respondents, District Collector concerned and Director of Municipalities would Page 6 of 21 HC-NIC Page 6 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT have taken care and mindful of their duties and obligation then this worst position would not have been there of this municipality.
##. From the pleadings of the parties one thing is clear that when the Administrator was in charge of the management of the affairs of the municipality its financial condition was improved. In clause (C) of para 14 the petitioner prayed to direct the first respondent to take appropriate action against respondent Nos. 4 and 5 under the provisions of Gujarat Municipalities Act, 1963 either by appointing inquiry officer or by holding full- fledged inquiry and/or by superseding Dhoraji Municipality. Before considering this prayer this court has considered it to be necessary and proper to implead the members of the municipality as party to this petition and though they have been served with the notice but none of them file reply to the Special Civil Application and this fact goes to show that none of them has any objection in case this prayer is granted by the court. So far as to the prayer made by the petitioner that the municipality may be directed to pay the employees salaries every month regularly it is suffice to say, for this no direction is necessary as it is employer's obligation and duty. At the cost of repetition it is to be stated that in case the salaries are not paid the employees are protected and provided with adequate remedy under the Payment of Wages Act, 1936. Now remains the last prayer made by the petitioner to be considered. It is prayed that the respondent Nos. 4 and 5 be restrained from making any new appointment and/or promotion or to employ any person in any manner, pending hearing and final disposal of this petition.
##. This interim relief as prayed for has not been granted by the court. However, in the fact of this case where huge amount of 3,57,65,317/= this liability is to be discharged by the municipality of dues of provident fund and the fact that more than 190 employees have been appointed in excess of the sanctioned strength under the staffing pattern, I consider it to be a fit case where the municipality has to be restrained from making any appointment or promotion in excess of the sanctioned strength under the staffing pattern of the municipality. To consider whether those appointments made in excess of the sanctioned strength under the staffing pattern by Page 7 of 21 HC-NIC Page 7 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT the municipality are to be continued or their services are to be terminated in accordance with law is another matter for which direction needs to be given.
##. In the result, this Special Civil Application succeeds and the same is allowed and the State of Gujarat is directed to examine this matter on the basis of the pleadings of the parties and after hearing municipality and members to consider whether it is fit case where the municipality is to be ordered to be superseded and the Administrator to be appointed. Where it is satisfied that municipality is to be superseded then forthwith the Administrator be appointed. The State of Gujarat is further to consider how this heavy liability of Rs.3,57,65,317/= of the municipality towards arrears of the employees provident fund is to be wiped off. It may consider to make the grant to the municipality for this amount so that the employees may not suffer of their retiral benefits. The municipality is restrained from making any appointment and / or promotion or employ any person in any manner whatsoever whether temporary, adhoc or casual daily wager, part time or contingent paid till further orders of the court. The State of Gujarat is further directed to call upon the district Collector and Director of the municipalities to show cause as to why they have not taken the timely action against the municipality as a result of which this heavy arrears of the sum of Rs.3,57,65,317/= has been accumulated of the employees' provident fund amount. The municipality is directed to take appropriate action for discharge / termination of services of those employees who have been appointed in excess of sanctioned strength under the staffing pattern. The State of Gujarat and Municipality are directed to complete this exercise and pass final order within a period of two months of the receipt of the writ of this order and compliance of this order be reported to the court by both of them. Rule is made absolute accordingly. In the facts of the case no order as to costs."
4. In Special Civil Application No.6480 of 2001, the following order was passed dated 16th August, 2001;
"#. It is a matter of great regret that even the amount Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT of Provident Fund which is contributed by the employees is taken away by those who were in charge of the administration of the Nagarpalika in the past. The Nagarpalika is the Trustee so far as the amount of Provident Fund is concerned. It is the grievance of the petitioners and in my view, it is the legitimate grievance that, in spite of the fact that, many employees have retired since long, they have not been paid their amount which was contributed towards the Provident Fund.
#. Last time, Mr.Premal Joshi, in dual capacity, as an advocate for the Nagarpalika as well as learned AGP, was asked to take appropriate action against those erring officers/office bearers of the Nagarpalika and even to submit the names of those who were in charge of the Nagarpalika at the relevant time so that the Court can take appropriate action against the said officers/office bearers. Mr.Joshi, today states that the Administrative Officer has already submitted necessary report to the State Government and that it is for the State to take action. Till today, the aforesaid particulars are not made available to the Court. In that view of the matter, State Government is directed to give necessary details and the names of those officers/office bearers who were in charge of the administration of Dhoraji Nagarpalika at the relevant time by the next date, as because of their misdeeds and fraudulent action of taking away the amount of Provident Fund, the Nagarpalika has been placed under this miserable situation.
#. Mr.Mishra has brought to the notice of this Court the office order of the Nagarpalika dated 6.8.2001 in which it is mentioned that this Court has directed the Administrator to strictly comply with the scheme which is submitted to this Court. The aforesaid office order is taken on record. It is clarified that this Court has not yet approved the scheme submitted by the Administrator and no final order is passed in the matter of approving the scheme and the said question is still pending for consideration before this court.
#. However, in order to see that, till the matter is decided the employees may not be without any payment, the Administrator may pay every month the amount at Page 9 of 21 HC-NIC Page 9 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT the rate of Rs.5000/- (Rupees Five Thousand Only) to all the employees of the Nagarpalika which may be adjusted towards the final payment. This order is passed without prejudice to the rights and contentions of the employees for claiming the whole or larger amount towards their dues. On behalf of the petitioners, a letter dated 15.8.2001 is produced and copy of the same is given to Mr.Joshi wherein particulars of immovable properties of the Nagarpalika is given. It is the say of the petitioners that, if some properties are disposed of, substantial amount can be paid to the employees. Mr.Joshi may take appropriate instructions in this behalf by the next date.
#. The matter is adjourned to 30.8.2001. The particulars of erring officers/office bearers are to be given by the next date. Since Mr.Joshi is also appearing as the Assistant Government Pleader in this matter, he should see that these particulars may be made available to the Court by the next date."
5. Again, on 11th September, 2001, the following order was passed;
"1. Heard learned counsel Mr.Premal Joshi for the respondent-municipality. As per the oral directions given by the Court on 4.9.2001 the administrator of the Municipality has filed further affidavit. The affidavit is supported by a statement showing the details of remission, withdrawals and balances of P.F. Account of the Municipality from January 1991 to August, 2001. According to Municipality at present around Rs.16 lacs are lying in the P.F. Account, Government Treasury, Dhoraji. The Administrator who is present in the Court states that he has verified the balances, and he will be able to bring certificates from the Treasury Office to this effect. But the fact remains that crores of Rupees are collected by way of P.F. contribution from the employees of the Municipality. The entire amount was not regularly credited to the P.F. Account. It is apparent that the Municipality-Authorities between October, 1972 to December, 1990 has misapplied the fund and/or misused the fund. Whether this is a case of negligence or non- application of mind or deliberate misappropriation of Page 10 of 21 HC-NIC Page 10 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT fund is a matter of inquiry.
2. In response to the order passed by this Court the Administrator of the Municipality has filed affidavit with an annexure on 4.9.2001 which discloses the names of the President of Dhoraji-Municipality and the Chief Officer who was incharge of the Administration till 25.1.1990. Chief Officer Shri Hiralal Sukhlal Trivedi has died. From 23.11.88 to 13.12.90, one Mr.M.M. Patira was incharge of the Municipality in capacity of the Administrator appointed by the Government of Gujarat. So prima-facie, it can be said that this Administrator alongwith his predecessors in the administration were parties to the misapplication or misuse of the fund. This seems to the direct result of wrong committed by public servants or ignorance of statutory obligations.
3. The affidavit of the administrator Mr.Lang filed in Special Civil Application No.6480/2001 is annexed with one letter written by him to the Collector, Rajkot dated 13/14th August, 2001. It transpires from the letter that in compliance of the order dated 16.6.2001 passed by this Court in Special Civil Application No.871/88, the Collector, Rajkot had directed the Administrator to give certain information of the office bearers who were concerend with the administration between December 1972 to December 1990. This letter indicates the following details :-
________________________________________________________ Sr. No. Name of the President Period head in general board ________________________________________________________
1. Shri Jethalal Ravjibhai Hirpara 10.12.72 to 09.11.74
2. Shri Shantilal Kapurchand Mehat 17.11.74 to 22.11.74
3. Shri Mohalal Padambhai Patel 23.11.74 to 20.11.77
4. Shri Jivrajbhai Valjibhai Rakholia 21.11.79 to 20.11.79
5. Shri Surakant Shivchand Dhinoja 21.11.79 to 20.12.81
6. Shri Anandji Bhurabhai Patel 21.11.81 to 22.11.83
7. Shri Surakant Shivchand Dhinoja 23.11.83 to 18.06.84
8. Shri Vrajlal D. Patel 27.06.84 to 26.06.86
9. Shri Anandji Bhurabhai Patel 27.06.83 to 22.11.88
10. Shri M.M. Patira 23.11.88 to (Administrator) 13.12.90 ________________________________________________________ 3.1 The letter also shows that one Shri Harilal Sukhlal Page 11 of 21 HC-NIC Page 11 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT Trivedi was Chief Officer of respondent-municipality from January 1, 1969 to January 25, 1990.
4. I am told by the learned counsel appearing for the parties and the officer who is present in the Court on behalf of the Dhoraji Municipality that the office bearers namely; Shri Shantilal Kapurchand Mehta and (2) Shri Anandji Bhurabhai Patel have expired. The Chief Officer Shri Harilal Sukhlal Trivedi has also died. Shri Anandji Bhurabhai Patel had presided as President for two different periods. So at this stage, I am inclined to issue notices to the office bearers who are at present available and can be asked to appear in person or through their representative. So I direct (1) Shri Jethalal Ranjibhai Hirpara; (2) Mohanlal Padmabhai Patel; (3) Jivrajbhai Valjibahi Rakholia; (4) Shri Sanyukut Shivchand Dhinoja;
(5) Shri Vrajlal D. Patel; (6) Administrator Shri M.M. Patira (7) Shri Suryakant Shivchand Dhinoja to appear before this Court personally or through their counsel on the next date of hearing. The appearance of these persons may help this Court in verifying various contingencies under which the amount collected by way of P.F. contribution were not credited to the relevant account.
5. Considering the nature of relief prayed by the petitioner and to do the substantive justice to the satisfaction of this Court, I am inclined to issue some directions to the above named office bearers (Ex- President and Ex-Administrator). Therefore, (1) Shri Jethalal Ranjibhai Hirpara; (2) Mohanlal Padmabhai Patel; (3) Jivrajbhai Valjibahi Rakholia; (4) Shri Sanyukut Shivchand Dhinoja; (5) Shri Vrajlal D. Patel; (6) Administrator Shri M.M. Patira (7) Shri Suryakant Shivchand Dhinoja, are directed to give the details of the properties running in their name within the territory of the entire State of Gujarat. They are further directed to give the details of number of all bank accounts including co-operative banks (Savings A/c., Current A/c. or F.D. A/c.) on returnable date. It will be open for these office bearers to give only number of account and not the details as to the balance.
6. These persons are further directed to show-cause as to why their present assets inlcuding immovables and movables and the bank accounts, if any, should not be freezed and/or attached by this Court till the unpaid Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT arrears of P.F. of the employee is cleared and/or paid to the satisfaction of this Court.
7. The Registry may inform the General Administration Department of State of Gujarat, Sachivalaya, Gandhinagar, that it may supply the address of the retired officer Mr.M.M. Patira, Ex-Administrator, Dhoraji Municipality to the present Administrator. All these office bearers including Ex-Administrator Mr.M.M. Patira be served with the notices through the respondent- Municipality. The present Administrator is also permitted to contact Mr.M.M. Patira directly and can inform him as to this order passed against him so that he can comply with the orders, on verification of facts from the record of Dhoraji Municipality at the earliest.
S.O. to 25.9.2001. Directions accordingly."
6. Today when the matter is taken up for hearing, the learned counsel appearing for the respective writ applicants states that by and large, their clients have been paid their retiral dues under the different heads, but as there has been a long and inordinate delay in making the payment, they are entitled to interest on the requisite amount.
7. Mr. Joshi, the learned counsel appearing for the Municipality states that the payment towards the retiral dues has been made, but there is no escape from the fact that such payment was made after long and inordinate delay.
8. Thus, the only question now remains is whether the writ applicants are entitled to receive interest on the delayed payment from the Municipality. This issue of payment of interest on the delayed payment of the retiral benefits has been explained by me in detail in the case of Gujarat State Pensioners Federation vs. State of Gujarat, Special Civil Page 13 of 21 HC-NIC Page 13 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT Application No.8251 of 2015 decided on16.6.2015. I may quote the relevant observations made by me in the said judgment.
"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 wellfounded 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, wellfounded 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 Page 14 of 21 HC-NIC Page 14 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT 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 abovenoted 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 Page 15 of 21 HC-NIC Page 15 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT 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 Staterespondent 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.
Page 16 of 21
HC-NIC Page 16 of 21 Created On Wed Jul 06 01:39:58 IST 2016
C/SCA/6480/2001 JUDGMENT
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
Page 17 of 21
HC-NIC Page 17 of 21 Created On Wed Jul 06 01:39:58 IST 2016
C/SCA/6480/2001 JUDGMENT
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 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 Page 18 of 21 HC-NIC Page 18 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT 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 hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials Page 19 of 21 HC-NIC Page 19 of 21 Created On Wed Jul 06 01:39:58 IST 2016 C/SCA/6480/2001 JUDGMENT 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."
9. The orders passed by this Court time to time referred to above is a sufficient indication as to how the Nagarpalika dealt with its own retired employees. The irregularities and the illegalities in the administration of the Nagarpalika at the relevant point of time is well reflected from the orders referred to above.
Page 20 of 21
HC-NIC Page 20 of 21 Created On Wed Jul 06 01:39:58 IST 2016
C/SCA/6480/2001 JUDGMENT
10 There is no explanation worth the name at the end of the
Municipality.
11. As a result, all the writ applications are disposed of with a direction to the Dhoraji Nagarpalika to calculate the amount of interest at the rate of 10% per annum in the case of each of the writ applicants and make payment to each of the writ applicants within a period of six months from the date of the receipt of the writ of the order. It shall be open for the writ applicants to submit their statements as regards the payments of the dues towards the different heads including the dates. This will facilitate the Municipality to calculate the interest from the date the writ applicants were otherwise entitled to receive the retiral benefits. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J.) Vahid Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed Jul 06 01:39:58 IST 2016