Madhya Pradesh High Court
T.P. Naik vs Union Of India (Uoi) And Anr. on 1 May, 1997
Equivalent citations: AIR1998MP83, AIR 1998 MADHYA PRADESH 83
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. By this writ petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of an appropriate writ, order or direction, commanding the respondents to determine and assess the amount due to him on account of death -cum-retirement gratuity and pay the same with interest at the rate of 18% per annum from the date of his retirement.
2. Shorn of unnecessary details, facts giving rise to the present writ petition are that the petitioner was elevated as a Judge of the High Court of Judicature at Nagpur on 21-2-1955. After the reorganisation of the States, the petitioner became a Judge of the M. P. High Court on 1 -11 -56. The petitioner laid down his office as such, on 8-5-1972, after attaining the age of 62 years. As he was not paid the death-cum-retirement gratuity (hereinafter referred to as the DCRG), he preferred the present writ petition. After the "rule nisi" was issued, respondent No. 1 has appeared and filed return and has stated that in pursuance of the circular dated 6-9-96 the petitioner is entitled to the payment of DCRG as per the rates/scales as existed on his date of retirement. It is the stand of the respondents that in view of the aforesaid circular the petitioner is entitled to 12 per cent interest from 13-5-88 also. It is the stand of the respondents that DCRG has been paid to the petitioner according to the provisions existing at the time of his retirement as also interest at the rate of 12% from 13-5-88 i.e. the date on which the Allahabad High Court passed the order in relation to another Judge.
3. In view of the pleadings of the parties, points which fall for determination are as follows ;--
Point No. 1 :-- Which rule existed on the date when the petitioner laid down his office?
Point no. 2 :-- Whether the petitioner is entitled for grant of interest from 13-5-88 or from the date of his retirement, and at what rate?
Point No. 1:-- According to respondent No. I on the date of retirement of the petitioner, provision in existence for calculation of DCRG was as follows:--
Amount of gratuity admissible (i) Retirement Gratuity-- At the rate of l/4th of emoluments of Rs. 1800/- (Maximum) for each completed six monthly period of qualifying service subject to maximum of Rs. 24,000/-.
However, according to the petitioner Rule 19(iii)(a)(i) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 shall be applicable to the petitioner which, at the relevant time, read as follows :--
"Retirement Gratuity equal to l/4th of the emoluments for each completed period of 6 months of service shall be paid to member of the service on his retirement from service who has completed five years qualifying service subject to a maximum of 16 times of the emoluments."
Provided that the amount of retirement gratuity payable under this clause shall not exceed Rs. 1 lakh. However, in the book Choudhary's compilation of Civil Services Regulations Vol. 2 (9th Edition) which the publisher claims, is corrected up to 30th December, 1974, Rule 19(3)(a) has been shown as follows:--
Rule 19(3)(a). The death-cum-retirement gratuity shall be paid on the scale prescribed in column 2 of Schedule 'B' to this appendix subject to the maximum of 15 times the emoluments and also to the maximum amount specified in column 3 of that schedule.
Provided that in the event of death of a member of the service, while in service, the death-cum-retirement gratuity shall be subject to a minimum of 12 times his emoluments at the time of death.
Provided further that if a member of the Service who has not completed 5 years' qualifying service dies while in service, the gratuity payable shall be equal to six times the emoluments except in a case where the death occurs in the first year of the service the gratuity admissible shall be equal to emoluments drawn by the member of the service at the time of his death.
4. As stated earlier in the return respondent No. 1 has stated that the provision of the rules, supposedly in existence on the date of retirement of the petitioner but nothing has been shown during the course of the arguments to substantiate the said stand.
5. In the absence of any material, I have no option than to proceed on the assumption that Rule 19(3)(a) as printed in the Choudhary's compilation, is correct and 1 proceed on mat assumption. Rule 19(3)(a) provides that the death-cum-retirement gratuity shall be paid on the scale prescribed in column 2 of Schedule B of the appendix and the appendix shows that a person who has completed monthly period of qualifying service of 35 shall be entitled to maximum amount of Rs. 15,300/- as death-cum-retirement gratuity. Petitioner has been paid the aforesaid amount under the head DCRG. Accordingly, I do not find that the calculation of the gratuity amount made by the respondents is in any way incorrect.
6. Point No. 2 It is relevant here to state that after the judgment of the Allahabad High Court in the case of M.C. Desai v. Union of India, AIR 1988 All 283, and the judgment of the Supreme Court dated 10-10-95 passed in Civil Appeal No. 3715 of 1990, the Govt. of India woke up very late and issued circular dated 6-8-96 and recognised the right of pre 1-10-74 retired Judges to receive the gratuity. While doing so it directed for payment of interest @ 12% per annum from 13-5-88 i.e. the date of judgment of the Allahabad High Court.
7. The Allahabad High Court in the case of M. -C. Desai (AIR 1988 All 283) (supra) has held as follows (Para 11) :--
"We have perused the aforesaid decisions and also keeping in view the decisions of the Supreme Court in D.S. Nakara v. Union of India, AIR 1983 SC 130 and that of the Punjab and Haryana High Court in Bhagwant Singh v. State of Haryana, (1988) 1 Serv LR 434, regarding payment of interest it is expedient in the interest of justice that the petitioners should be awarded interest at the rate of 12 per cent per annm on the sum due to them as gratuity from the date of relirement till the date of payment as respondents have knowingly and wilfully withheld the payment to which the petitioners were legally entitled."
While considering the said question the Supreme Court in its order dated 1-10-95 in Civil Appeal No. 3715/90 stated as follows :--
"The High Court has awarded the interest at the rate of 12 per cent on the amount of gratuity which was denied to the respondents. We find no ground to interfere with the said direction given by the High Court."
8. However, Mr. Gohil has drawn my attention to the Division Bench judgment of the Bombay High Court in the case of N.L. Abhayankar v. Union of India, (1995) 1 Mah LJ 503 and my attention has been drawn to the following paragraph which reads as follows :--
"29. In the result, the instant writ petition is allowed. The respondent No. 1 is directed to compute and determine the DCRG payable to the petitioner in accordance with the relevant rules applicable to the members of the Administrative Service i.e. All India Services (Death-cum-Retirement Benefits) Rules, 1958 referred to in the judgment as the 1958 Rules and pay the same to the petitioner with statutory interest of 5% p.a. as provided in Rule 19A of the said 1958 Rules till the date 3 years prior to the date of the filing of the instant writ petition in this Court by the petitioner. However, from the said date onwards it shall pay interest @ 12% p.a. upon the amount of DCRG payable to the petitioner till realisation. The amount of DCRG with interest awarded as above shall be paid to the petitioner within six months from the date of this order. If the judgment of the Allahabad High Court in M. C. Desai v. Union of India (AIR 1988 All 283) (supra), as regards the payment of interest is affirmed by the Supreme Court, the petitioner shall be paid interest @ 12% p.a. from the date of retirement till realisation upon the amount of DCRG payable to him instead of the interest at the said rate from the date three years prior to the date of the filing of the petition in this Court as directed by us above. The payment of the balance of interest thus calculated shall be made within six months from the date of judgment of the Supreme Court in the above Allahabad case. Rule in the above terms. No costs."
The judgment relied on by Shri Gohil, referred to above do not in any way advances the case of respondent No. 1. The aforesaid judgment was rendered by the Bombay High Court while the appeal against the judgment of the Allahabad High Court in M.C. Desai (AIR 1988 All 283) (supra) was pending and the Division Bench has in categorical terms stated as follows :--
"If the judgment of the Allahabad High Court in M. C. Desai v. Union of India (supra), as regards the payment of interest is affirmed by the Supreme Court, the petitioner shall be paid interest at the rate of 12% per annum from the date of retirement till realisation upon the amount of DCRG payable to him instead of the interest, at the said rale from the date three years prior to the date of filing of the petition in this Court as directed by us above."
9. Writ petition was heard on 18-3-1997 and was closed for judgment. However, before the judgment could be pronounced, Shri Abhay Gohil appearing on behalf of respondent No. 1 filed for cosideration the judgment of the Supreme Court dated 31-10-1995 passed in Civil Appeal No. 6135/1995, Union of India v. M.L. Abhayankar. Accordingly I again placed the case for hearing on 7-4-1997 and after hearing the learned Counsel representing the parties, closed the case for judgment. Strong reliance has been placed by Shri Abhay Gohil on the judgment of the Supreme Court dated 31-10-1995 passed in Civil Appeal No. 6135 of 1995. The High Court's direction in the said case has been incorporated in paragraph 8 of this judgment. Taking into consideration the fact that the writ petition itself was filed by the Judge in July, 1993 although he retired in November 30, 1969, the direction of the High Court was set aside and it was directed that interest shall be payable w.e.f. July 1, 1993, i.e. from the first day of the month in which the writ petition was filed. It is pointed out by Shri Sanghi that although the judgment of the Supreme Court in the case of M.L. Abhayankar (supra) directs for payment of interest from the first day of the month in which the writ petition was filed, but the Government of India itself while issuing the circular dated 6-8-1996 directed for payment of interest w.e.f. 30-5-1988. It is further pointed out that the judgment in Abhayankar's case was rendered by the same Bench which has rendered the judgment in M.C. Desai's case (supra), but the attention of the Court was not drawn to M. C. Desai's case.
10. There seems apparent conflict in the direction given by the Supreme Court in the aforesaid two authorities. This leads for decision an intricate question; namely when there is conflict between two decisions of the Supreme Court rendered by co-equal benches, which binds this Court under Article 141 of the Constitution of India. This reminds me of an observation of eminent Jurist, Shri H.M. Seervai in his book, "Constitutional Law of India", which reads as follows :--
"But judgments of the Supreme Court, which cannot stand together, present a serious problem to the High Courts and to the subordinate Courts. It is submitted that in such situations, the correct thing is to follow that judgment which appears to the Court to state the law accurately, or more accurately than the other conflicting judgment."
11. In the case of Hampton v. Holman, (1877) 5 Chancery Div 183, Jessal M. R., had to face this difficult task of choosing between the two decisions which were directly in conflict and in the said background it was observed as under :
"Now I take it that both the cases to which I have referred are not to be reconciled with Hayes v. Hayes, (1828) 38 ER 822 at all events, they differ from it so far as to leave me at liberty now to say that Hayes v. Hayes (supra) is not sound law; indeed it appears that Sir John Leach himself was dissatisfied with his decision."
In Miles v. Jaryis, (1883) 24 Ch D 633, similar question came up for consideration and it was held as follows:
"......The question is which of these two decisions I should follow, and, it seems to me that I ought to follow that of the Master of the Rolls as being the better in point of law."
In the case of Young v. Bristol Aeroplane, 1944 KB 718, in similar context the Court of Appeal held that it was not only entitled but indeed duty bound to decide which of the two conflicting decisions of its own will follow in the case of clear divergence in the earlier precedents.
12. The matter directly came up for consideration before the Full Bench of the Patna High Court in the case of Amar Singh Yadav v. Shanti Devi, AIR 1987 Pat 191, and the Full Bench after referring to various authorities on the question held as follows ;
"16. Now the contention strongly urged on behalf of the respondents that the earlierjudgment of a coordinate Bench is to be mechanically followed and must have pre-eminence, irrespective of any other consideration, because the latter one has missed notice thereof, does not commend, itself to me. When judgments of the superior Courts are of co-equal Benches, and, therefore, a matching authority, then their weight inevitably must be considered by the rational and the logic thereof and not by the mere fortuitous circumstance of the time and date on which they were rendered. Equally, the fact that the subsequent judgment failed to take notice of the earlier one or any presumption that a deviation therefrom could not be intended, cannot possibly be conclusive. Vital issues, pertaining to the vital questions of the certainty and uniformity of the law, cannot be scuttled by such legal sophistry. It is manifest that when two directly conflicting judgments of the superior Courts and of equal authority exist, then both of them cannot be binding on the Courts below. A choice however difficult it may be, has to be made in such a situation and the date cannot be the guide. However, on principle, it appears to me, that the High Court must in this context follow the judgment, which would appear to lay down the law, more elaborately and accurately. The mere incidence of time, whether the judgments of co-equal Benches of the superior Court are earlier or later, and whether the later one missed consideration of the earlier, are matters which appear to me as hardly relevant, and, in any case, not conclusive."
13. The authorities referred to above leads me to conclude that in a case where there is a direct conflict Between two decisions of the Supreme Court rendered by co-equal Benches, the High Court is bound to follow the judgments which appears to it to state the law more elaborately and accurately. Applying the aforesaid principle, I proceed to examine the present case.
14. The Allahabad High Court while directing for payment of interest @ 12% per annum assigned reasons and they are as follows :
"Central Government was aware that 1958 Rules; were applicable to the High Court Judge and since a categorical stand has been taken that no retirement gratuity was paid to the Judges who retired prior to 1st October, 1974, the Central Government has illegally withheld the gratuity and as such the petitioners are entitled to penal interest."
Here in the present case, the petitioner retired on 8-5-1972. Respondent Central Government has taken the posture of an ordinary litigant, not expected from it and replied to the demand of the petitioner by saying that 'Supreme Court's order in Civil Appeal No. 3715/90 specifically deals with regard to grant of DCRG to the respondents of said Civil Appeal. The judgment of the Allahabad High Court on the point of interest from the date of retirement has been affirmed by the Supreme Court. The judgment of the Allahabad High Court as also the Supreme Court did not give any new benefit to the pre 1-10-1974 retired Judges, but recognised their right to receive DCRG, It is relevant here to state that when the Allahabad High Court granted the relief, it did not create any new right or benefit for the retired Judges or a fresh liability for the Government of India, but in fact, recognised the right of the retired Judges, which was denied to them at the time of retirement. I would prefer to adopt the view propounded by the Supreme Court in the case of M.C. Desai (supra).
15. Now I advert to the question of rate of interest to be allowed to the petitioner i.e. @ 12% per annum or 18% per annum. For grant of 12% interest, the Allahabad High Court has assigned reasons and I respectfully agree with those reasons. However, situation in the present case is much more disturbing. Even after the Supreme Court judgment, the Govt. of India did not give DCRG to the petitioner gracefully but adopted an ordinary litigants posture and took a stand that the Supreme Court judgment only dealt with the case of the respondents before the Supreme Corut. The judgment was rendered by the Supreme Court on 10-10-95. It was only on 6-8-96 that the Govt. of India issued the circular i.e. after a lapse of 10 months from the date of judgment of the Supreme Court. This leads me to believe that Govt. of India, did not act with reasonable speed as was expected from it, in a situation like this. It ought to have been alive of the fact that it was dealing with pre 1-10-1974 retired Judges, who are at dawn of their life. Interest @ 18% per annum is the normal interest payable. Taking into consideration the cumulative effect of all these factors, I do not have the slightest hesitation in holding that the petitioner is entitled for payment of interest @ 18% per annum from the date of retirement.
16. In the result, the writ petition is partly allowed. Respondents are directed to pay interest, at the rate of 18 per cent per annum from the date of retirement of the petitioner, till the date of its payment. Payment be made within 6 weeks from today. In the facts and circumstances of the case, I am inclined to award the cost of litigation to the petitioner also. Counsel's fee assessed at Rs. 2500/-.