Balam Singh Aswal vs Managing Director And Others on 14 June, 2022

[Cites 26, Cited by 0]

Uttarakhand High Court

Balam Singh Aswal vs Managing Director And Others on 14 June, 2022

Before proceeding to address these bunch of 27 Writ Petitions on their own merit, this Court feels it apt to initially deal with the interlocutory orders, which were passed in these bunch of Writ Petitions, which engage a consideration of issue to the following effect :-

"As to whether, at all, a statutory Corporation created under an Act, which is a separate legal statutory entity, can at all exercise its powers for withholdment of the post retiral benefits payable to the retired employees, under the different heads, including the payment of gratuity, under the Payment of Gratuity Act, 1972. "

2. Invariably, all these Writ Petitions, are similar based, on same legal issue, but there is a slight variation in determination of the factual aspects, which has constituted as to be a foundation for the respective claims raised by the petitioners.

3. The Petitioner of Writ Petition (S/S) No. 1593 of 2021, was appointed as a Driver with the respondents/Cooperation way back on 22nd April, 1988, and had later attained his age of superannuation on 31st December, 2020, having retired from the said capacity from Bhowali Depot, District Nainital. It is further not in controversy, that the leave encashment, which the petitioner was otherwise entitled, as a consequence of his 6 superannuation, stood sanctioned by the respondents by an order dated 4th January, 2021, but despite of it, when the leave encashment amount, the amount payable towards interest on gratuity amount under Section 7 (3A) of Payment of Gratuity Act, on the amount of the gratuity, as determined to be made payable to the petitioner (Annexure-2), when it was not remitted, the present Writ Petition was preferred.

4. The petitioner of Writ Petition (S/S) No.1595 of 2021, was appointed initially as a Conductor on a daily wages basis on 8th July, 1981, and has retired from the services from the post of Senior Clerk on 31st March 2021, from Bhowali Depot, Nainital. The petitioner contends that he was sanctioned with the leave encashment on 31st March, 2021, and the gratuity too stood sanctioned on 30th October 2021, but still, despite the sanction, the same was not remitted, hence, he filed the Writ Petition for payment of gratuity, leave encashment and the interest payable on it under Section 7 (3A) of the Payment of Gratuity Act.

5. In Writ Petition (S/S) No. 1596 of 2021, the petitioner was appointed as a Driver with the U.P. State Road Transport Corporation on 5th November, 1986, and after having been transferred to Uttarakhand Transport Corporation having being allocated to the Corporation, he stood superannuated from the post of Driver on 31st October, 2021, from Bhowali Depot, Nainital. He contends that on 28th January, 2021, the leave encashment was sanctioned in his favour, but despite of the sanction having being granted, no payment has been made. Hence, he filed a Writ Petition 7 for the payment of the sanctioned leave encashment, gratuity, as well as the interest payable on it under Section 7 (3A) of Payment of Gratuity Act.

6. The petitioner of Writ Petition (S/S) No. 1624 of 2021, had contended that after completing the age of superannuation from the services of the respondent on 30th June, 2020, he retired as a Senior Clerk from the Rudrapur Depot of the respondents. But despite of having attained the age of superannuation, he was not paid with the retiral dues, and when despite of the repeated requests, it was not paid and he was ultimately declined to be paid despite the sanction made on 06.07.2020, on the ground, that the issue required a final re-fixation of the pay of the petitioner, which the respondents have contended that it was wrongly fixed. The petitioner has submitted that this action of the respondents taken later on as an afterthought, on the basis of the impugned Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, would be bad in the eyes of law and would be rather in contravention of the principals laid down in the judgement of State of Punjab Vs. Rafiq Mashih (White Washer) and others as reported in 2015 (4) SCC 334. Hence, he had prayed for a writ of mandamus for the payment of gratuity, leave encashment and the statutory interest payable on it under Section 7 (3A) of Payment of Gratuity Act, on the basis of earlier pay fixation already granted to him.

7. The petitioner of Writ Petition (S/S) No. 1625 of 2021, submitted that after completing his age of 8 superannuation, he had retired from the services from the post of Senior Clerk on 31st July, 2020, from Uttarakhand Transport Corporation, Haldwani Depot, and despite of having satisfactorily rendered his services, the respondents on 5th October, 2021, are said to have informed the petitioner about the wrongful fixation of salary in pursuance to the Audit report dated 11.11.2020, and hence, it was because of that reason, they curtailed the retiral benefits, under the garb that refixation of the pay of the petitioner was required to be made based on the audit objection. Hence, he has prayed for quashing of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, and for the payment of the retiral benefits towards gratuity, leave encashment, travelling allowance, the arrears of sixth and seventh Pay Commission, as well as the interest payable on the gratuity as entitled under Section 7 (3A) of Payment of Gratuity Act.

8. The petitioner of Writ Petition No. (S/S) of 1626 of 2021, had attained the age of superannuation on 31st March, 2018, having retired from the post of Driver, from Rudrapur Depot, of Uttarakhand Transport Corporation. After attaining the age of superannuation, the respondents had paid the amount of gratuity, but have not paid the leave encashment despite of the fact, that the leave encashment amount, though it already stood sanctioned to be paid to him, but despite of the repeated requests, the same was not remitted and it was informed, that the same was not being paid on account of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020. Hence, he has prayed for the remittance of leave encashment and the payment of the 9 arrears of the recommendation made by the 6th and 7th Pay Commission and restraining the respondents from recovering the ACP benefits, which was extended to him on its fixation made by the decision taken by them.

9. The petitioner of Writ Petition (S/S) No. 1627 of 2021, has contended, that he was appointed as a Driver with the respondents Department as back as in the year 1994, and after having satisfactorily completing his services, had attained the age of superannuation on 31st October, 2020, and has retired from the post of Driver from Rudrapur Depot of Uttarakhand Transport Corporation. But owing to the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, where the respondents have contended that it was a wrongful financial benefit, which had been given to him due to the wrongful refixatoin of the salary of the petitioner, the amount of retiral benefits was not paid. Hence, he has prayed for the payment of the gratuity, interest payable on it under Section 7 (3A) of Payment of Gratuity Act, leave encashment and arrears of 6th and 7th Pay Commission and further for restraining the respondents from recovering the amount which was already paid to him as a consequence of the extension of benefit of ACP, which was voluntarily based on an executive decision, was made admissible to the petitioner.

10. The petitioner of Writ Petition (S/S) No. 1628 of 2021, had submitted that after his induction into the services with the respondents U.P. Road Transport Corporation, he retired as a Senior Clerk form Uttarakhand Transport 10 Corporation, Haldwani Depot, on 31st July, 2017. It is contended that though the amount of gratuity was paid to him, but he was not paid with the leave encashment, though it stood already sanctioned by an order dated 14th July, 2017. Apart from it, he submitted that the other retiral benefits had not been paid under the pretext of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, hence he has prayed for the quashing of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, also with a payer for a writ of mandamus for release of the amount of retiral benefits, leave encashment, as well as arrears of the sixth and seventh Pay Commission, along with interest payable on it, and had also sought that no recovery may be made from him on account of alleged wrong fixation of the ACP, benefit voluntarily given by the respondents, and already availed by the petitioner.

11. The petitioner of Writ Petition (S/S) No. 1634 of 2021, had attained the age of superannuation on 30th September, 2018, having retired from the post of Senior Clerk from Uttarakhand Transport Corporation, Rudrapur Depot. The respondents has sanctioned the leave encashment amount vide their order dated 18.10.2018, but have not released the other retiral dues payable to the petitioner, such as, leave encashment, arrears of the sixth and seventh Pay Commission and the interest payable on it, on account of the embargo, which was said to have been created due to the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020. Hence, he submitted that the deduction, which has been attempted to be made by the respondents, would be 11 arbitrary and in contravention to the ratio laid down by the Hon'ble Apex Court, that no deduction could be made from retiral benefits, and had prayed for release of the retiral benefits, such as, leave encashment, arrears of the Pay Commission and the interest payable on it.

12. The petitioner of Writ Petition (S/S) No. 1635 of 2021, had submitted that on 30th June, 2018, he retired as a Senior Clerk from the Haldwani Depot of Uttarakhand Transport Corporation. He submitted that the respondents by way of letter dated 17th July, 2021, informed the petitioner that his pay is being revised in pursuance to the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, which has ultimately resulted into the reduction of the pay scale, which already stood granted as a consequence of the revision of the ACP benefits, which was granted by the respondent Corporation, and as a consequence thereto, despite of the sanction granted on 31st August, 2021, for the payment of leave encashment along with interest payable on it, the respondents have proceeded to reduce the amount of leave encashment, as well as the other retiral benefits, which was payable to the petitioner. Hence, he has prayed for quashing of the impugned Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, on the basis of the principle of Rafiq Mashih (Supra) and a writ of mandamus was also prayed for payment of the remaining post retiral benefits, for example, leave encashment, arrears of 6th Pay Commission along with interest, payable on the withheld amount.

13. The petitioner of Writ Petition (S/S) No. 1679 of 2021, had contended, that after having initially appointed as a Conductor on 7th November, 1986, and having an unblemished service records, he was accorded promotion and was ultimately posted as a Booking Clerk and later on, was promoted as Senior Clerk/ Traffic Inspector on 31st August, 2015, and after completing the age of superannuation, he had retired from the Office of the Assistant General Manager, Rudrapur Depot, as a Senior Clerk w.e.f. 30th June, 2020. The petitioner submitted, that the respondents were not releasing the retiral dues, including the leave encashment and gratuity, hence, he has raised his claim by approaching the Writ Court by filing a Writ Petition, being Writ Petition (S/S) No. 1199 of 2021, Anwar Vs. Uttarakhand Transport Corporation and another, which was disposed of on 20th September, 2021, directing the respondents to decide the representation, which was later on rejected. Consequently, he filed a Writ Petition for quashing of the Order No.164/H.Q./E.S.T./III- Special Audit/2019 dated 11.11.2020, which constituted to be the reason for passing the order dated 2nd November, 2021, for the rejection of the representation and has prayed for the release of the deducted amount from the retiral benefits and payment of gratuity, as well as interest payable on the same as per the provisions contained under Section 7 (3A) of Payment of Gratuity Act.

14. The petitioner of Writ Petition S/S) No. 23 of 2022, had submitted that after his initial appointment in 1982, as a Conductor, his services were regularised in 1983, with 13 the U.P. State Road Transport Corporation, and later on, when he had attained the age of superannuation on 30th June, 2019, while he was working with the Uttarakhand Transport Corporation, as a Senior Clerk, but he has raised his grievance before respondents due to non payment of the leave encashment, gratuity, as well as other admissible retiral dues. He submitted that he submitted his representation before the Assistant General Manager, Bhowali Depot, from where he had attained the age of superannuation, raising his claim for the payment of gratuity amount, which has been wrongly withheld. When the same was not entertained, he filed the Writ Petition contending thereof, that a writ of mandamus may be issued for release of the gratuity, leave encashment amount along with statutory interest payable on it.

15. The petitioner of Writ Petition (S/S) No. 24 of 2022, had come up with the case in the Writ Petition that after having being appointed as a Conductor in November 1980, with the UP Road State Transport Corporation, he had attained the age of superannuation as a Senior Clerk on 31st July, 2016, from Uttarakhand Transport Corporation, where his services later stood merged. He submitted that he was entitled for payment of gratuity, leave encashment and other retiral benefits, but the respondents have curtailed the same, despite of the fact, that the total sanctioned gratuity amount was already settled to be paid by the order of 19th April, 2017, but still, it was not paid. Hence, he requested for the payment of the arrears of the ACP, gratuity and leave encashment amount, along with statutory interest payable on 14 it, and when it was not heeded to, he filed a Writ Petition for a writ of mandamus for payment of gratuity amount with statutory interest payable on it, leave encashment, arrears of ACP and amount due towards overtime services rendered by him.

16. The petitioner of Writ Petition (S/S) No. 96 of 2022 had submitted that the petitioner after completing the age of superannuation on 31st October, 2018, had retired from the post of Station In-charge from the Uttarakhand Transport Corporation, Kashipur Depot, in and in view of the audit objection raised by Order No.164/H.Q./E.S.T./III- Special Audit/2019 dated 11.11.2020, the respondents had objected with regard to the aspect of re-fixation of pay which was already given to the petitioner and intended to deduct the same from the sanctioned leave encashment of the petitioner. Hence, he has prayed for quashing of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, as well as for issuance of a writ of mandamus for the release of retiral benefits, leave encashment, gratuity amount along with the statutory interest payable on it and the arrears of 6th and 7th Pay Commission. Simultaneously, he has also prayed for, that the respondents may be restrained from making any recovery on account of the alleged wrongful fixation of the ACP benefits from his retiral dues, which had been voluntarily given by the Corporation to its employees, sought to be recovered after their retirement.

17. The petitioner of Writ Petition (S/S) No. 97 of 2022, has agitated his grievances, with the backdrop that after 15 having been appointed as a Conductor on 28th June, 1987, the petitioner was promoted on the post of Booking Clerk, in 2014, and he was granted benefit of ACP schemes, and after completing the age of superannuation, he had retired as a Booking Clerk on 31st December, 2021, from Kashipur Depot of Uttarakhand Transport Corporation. The petitioner contended that the respondents have passed an order on 19th August, 2021, intending to re-fix the ACP benefits which already stood granted in view of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020. The petitioner raised his objection against the order of 11th November, 2020, and without following due procedure, when the respondents were proceeding to make the deduction from the benefits, which were already paid, resulting to the reduction of the pay with retrospective effect, he filed the present Writ Petition, praying for quashing of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020 and quashing the impugned re-fixation order dated 19th August, 2021, as well as with the prayer of writ of mandamus to recalculate the retiral dues of the petitioner, based on the re-fixed salary already paid to the petitioner and to restrain the respondents from making any recovery from the ACP benefits which already stood extended to the petitioner from the retiral dues, which the petitioner was otherwise entitled to be under law.

18. The petitioner of Writ Petition (S/S) No. 147 of 2022, has come up with the case, that he had retired as Station Incharge from Rudrapur Depot of Uttarakhand Transport Corporation on 31st January, 2016, but on his 16 request for release of admissible dues to the petitioner, when the same was not remitted under the garb of an Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, the respondents had passed an order on 17th December, 2020, whereby, the petitioner's salary, which was already earlier fixed has been reduced and the excess amount alleged to have been paid to the petitioner was sought to be recovered after his retirement from his retiral dues. Hence, the petitioner has filed the Writ Petition against the impugned order of 7th October, 2021 and 17th December, 2021, alleging it to be in contravention to the judgement and principle laid down in Rafiq Mashih (Supra) and had prayed for the payment of leave encashment amount and arrears of the 6th Pay Commission, along with interest payable on it. Further has also prayed for writ of prohibition against the respondents from making any recovery from the alleged wrongful fixation of the ACP benefits already extended to the petitioner, prior to attainment of age of superannuation.

19. The petitioner of Writ Petition (S/S) No. 301 of 2022, had submitted that the petitioner has been a regular employee of Uttarakhand Transport Corporation and has attained the age of superannuation, having retired so from the post of Assistant Cashier from the Bhowali Depot, on 29th February, 2016. He filed the Writ Petition due to the wrongful action of the respondents, Assistant General Manager, Bhowali Depot, of passing an Office Order of 18th February, 2016, where despite of sanction having being granted to the leave encashment, the same has been withheld by the respondents. He has contended that the action taken by 17 the respondents happens to be in violation of the Division Bench judgement rendered in Writ Petition (S/B) No. 413 of 2021, Satish Chandra Joshi Vs. State of Uttarakhand and others, as decided on 22nd September, 2021, and hence, he has prayed for a writ of mandamus for the respondents to pay the sanctioned leave encashment, along with adequate admissible interest payable on it, based on the decision of the Division Bench judgement referred to above.

20. The petitioner of Writ Petition (S/S) No. 302 of 2022, has submitted that he was appointed with the Transport Corporation in the year 1989, and his entire service period has been unblemished and hence, he would be entitled for the payment of admissible gratuity, leave encashment and other retiral service benefits, as a consequence of the revision of pay scale on the recommendation of the 6th and 7th Pay Commission, as well as the benefit of the ACP. He submitted that after having being retired from the post of Driver on 30th June, 2021, from Almora Depot of Uttarakhand Transport Corporation, since he was not remitted his entitled retired dues of gratuity, leave encashment as well as statutory interest payable on it. The petitioner has agitated his grievance on the basis of the ratio laid down by the Division Bench in the judgement rendered in Writ Petition (S/B) No. 413 of 2021 and Writ Petition (S/S) No. 703 of 2021. In the Writ Petition, he has sought for a relief by way of writ of mandamus for payment of gratuity, leave encashment and other retiral benefits based on the decision of the High Court, as referred to hereinabove, and had also claimed the remittance of the gratuity along with statutory interest 18 payable on it under Section 7 (3A) of Payment of Gratuity Act.

21. The petitioner of Writ Petition (S/S) No. 303 of 2022, had submitted that after having being appointed, as a Casual Employee with the UP State Road Transport Corporation, as back as in February, 1990, his entire service record has been clan and unblemished and he had continuously worked with the respondents, till he attained the age of superannuation as Driver on 31st August, 2020, having retired in the said capacity from Almora Depot of Uttarakhand Transport Corporation. The petitioner submitted that when he was not paid with the sanctioned retiral benefits, including the gratuity and leave encashment, despite of the judgement rendered by the Division Bench in Writ Petition (S/B) No. 413 of 2021 and Writ Petition (S/S) No.703 of 2021, he had filed a writ of mandamus praying for the payment of gratuity amount along with statutory interest payable on it under Section 7 (3A) of Payment of Gratuity Act, as well as the amount of leave encashment, which was wrongfully withheld by the respondents.

22. The petitioner of Writ Petition (S/S) No. 304 of 2022, had come up with the case that the petitioner is the legally wedded wife of late Mr. Girja Shankar, who was initially engaged as a Driver with U.P. State Road Transport Corporation, and had attained the age of superannuation after having retired from the post of Driver, from Tanakpur Depot of Uttarakhand Transport Corporation. She has submitted, that her late husband was already sanctioned with leave 19 encashment amount by an order 23rd February, 2019, as well as he was also sanctioned with the gratuity by an order 23rd February, 2019, itself, but however, later on, he met with the sad demise on 18th December, 2020, and the retiral benefits of her late husband was not paid to her. Hence, she filed a writ of mandamus directing the respondents for the payment of leave encashment, arrears of the salary from September, 2016 onwards, till his death on 18.12.2020, and payment of gratuity and the interest accruing on it, along with entire arrears of the recommendation of 2nd ACP benefit, as well as the arrears of 6th Pay Commission.

23. The petitioner of Writ Petition (S/S) No. 305 of 2022, had submitted that he was appointed with the U.P. State Road Transport Corporation, on 15th November, 1989, and had retired from the post of Driver from Almora Depot of Uttarakhand Transport Corporation on 31st March, 2021, but his retiral benefits was not paid, which was otherwise legally payable towards the gratuity, leave encashment amount, despite of the fact that it was already sanctioned on 18th June, 2021. Hence, he has submitted a representation for raising his claim based upon the judgement of the Division Bench rendered in Writ Petition (S/B) No. 413 of 2021 and Writ Petition (S/S) No. 703 of 2021. He had prayed for issuance of a writ of mandamus for the payment of gratuity amount along with statutory interest payable on it under Section 7 (3A) of Payment of Gratuity Act, and the leave encashment amount, which was wrongfully withheld by the respondents.

24. The petitioner of Writ Petition (S/S) No.306 of 2022, had submitted before this Court that he was initially engaged as a Driver with U.P. State Road Transport Corporation on 8th September, 1992, on a daily wage basis and later on, his services were regularised by the respondents, and he worked in the capacity, till he had attained the age of superannuation after completing 16 years of services on 30th April, 2021. But, his retiral benefits, including gratuity, leave encashment and benefit of ACP, were wrongfully withheld, despite of the fact that the Assistant General Manager by an order of order of 6th January, 2022, had already sanctioned the leave encashment amount, as well as the gratuity amount payable to him. When the same was not remitted, he filed a Writ Petition praying for a writ of mandamus for the payment of gratuity and the interest payable on it, along with arrears of 2nd ACP, from 1st January, 2016 to 30th April, 2021, as well as the arrears of salary adjusted in lieu of medical leave and the leave encashment, which was said to be wrongfully withheld by the respondents.

25. The petitioner of Writ Petition (S/S) No. 309 of 2022, has submitted that the petitioner was appointed as a regular employee with the Uttarakhand Transport Corporation and her entire service record was clean and unblemished, till she had attained the age of superannuation on 31st January, 2021, having being retired as a Booking Clerk from Almora Depot of Uttarakhand Transport Corporation. She submitted that despite of having satisfactorily worked with the respondents, the gratuity, leave 21 encashment, the benefit of the revised pay scale and ACP benefits, have been wrongfully withheld, which she was otherwise entitled to be paid in the light of the judgement rendered in Writ Petition (S/B) No. 413 of 2021 and Writ Petition (S/S) No. 703 of 2021. Hence, she filed the Writ Petition praying for a writ of mandamus for the payment of gratuity with statutory interest payable on it under Section 7 (3A) of Payment of Gratuity Act, and leave encashment amount along with interest.

26. The petitioner of Writ Petition (S/S) No. 514 of 2022, had submitted that he was appointed with the respondents as Conductor on 27th April, 1989, and since owing to having an unblemished service record, he was already granted the benefit of 1st ACP w.e.f. 27th April, 1999 and the benefit of the 2nd ACP was extended to him w.e.f. 27th April, 2005, on satisfactory completion of the requisite period of service. He submitted that after attaining the age of superannuation on 31st December, 2020, he retired from the services of the respondents from the post of Junior Clerk / Booking Clerk, from the Ramnagar Depot of Uttarakhand Transport Corporation. He submitted that when he requested for the payment of retiral benefit, the same was wrongfully curtailed in view of the communication, as informed to the petitioner on 15th February, 2022, due to the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020. Hence, he raised an objection as against the intended reduction in the pay scale and consequential recovery, which was sought to be made due to the reduction and hence, filed a Writ Petition giving a challenge to the 22 Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, and all also prayed for a writ of mandamus to recalculate the retiral benefits after granting him the benefit of refixation of pay scale and pay the retiral benefits along with statutory interest payable on it.

27. The petitioner of Writ Petition (S/S) No. 517 of 2022, had come up with the case, that he was appointed with the respondents and later on his services were regularised in the year 1982, with due process of law against the substantive vacancy, and he was granted the benefits of 1st, 2nd and 3rd ACP benefits. He submitted that he retired from the post of Senior Clerk from Rudrapur Depot of Uttarakhand Transport Corporation, from the post of Senior Clerk on 31st May 2021. He submitted that despite of having already extended with the benefit of ACP, the same was sought to be refixed, which would be resulting to the consequential reduction due to the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, which was informed to him by virtue of an order dated 4th September, 2021, which was replied by the petitioner on 30th September, 2021. He has submitted that the reduction of the pay scale and the consequential recovery, which was attempted to be made was bad and hence, he prayed for a writ of certiorari quashing the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, as well the impugned revised pay fixation order dated 28th August, 2021, as well as the order dated 7th September, 2021, whereby the recovery was sought to be made and has sought a writ of mandamus to recalculate the retiral benefits of the petitioner and to re-fix the pay, which 23 was already extended to him as a consequence of the benefit of extension of ACP benefits.

28. The petitioner of Writ Petition No. 525 of 2022 had contended that he was appointed on the post of Clerk on 28th June, 1989, and after having satisfactorily worked in the said capacity, the petitioner attained the age of superannuation on 30th July, 2020. He submitted that he would be entitled for the admissible gratuity amount, leave encashment and arrears of the recommendation of the 6th and 7th Pay Commission, but since, the same was not remitted and rather a refixation of the salary was made as a consequence of the implication of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020 and a re-calculation was attempted to be made from the period 1st January, 2006 to 30th September, 2009, resulting into reduction of the pay scale. He has filed a Writ Petition for quashing of the Order No.164/H.Q./E.S.T./III-Special Audit/2019 dated 11.11.2020, as well as the impugned order of the fixation of the permissible ACP, by an order dated 8th October, 2021 and 29th October, 2021 and the writ of mandamus was also sought for the release of the gratuity amount with the interest payable on it, leave encashment which was to be calculated on the basis of the revised ACP benefit, already extended to the petitioner as a consequence of the extension of benefit of the recommendation of the 6th and 7th Pay Commission.

29. The petitioner of Writ Petition (S/S) No. 943 of 2022, had submitted that he was appointed with the 24 respondents Corporation till he attained the age of superannuation on 30th November, 2019, after having retired from the Rishikesh Depot of Uttarakhand Transport Corporation. He submitted that he would be entitled for the payment of gratuity, leave encashment and insurance dues. He submitted that when the same was not remitted to him by the respondents despite of the repeated request, he had sought an information under Right to Information Act, and thereafter, he was informed that the same was curtailed on account of the wrongful fixation of the service benefits and ACP. The petitioner preferred a Writ Petition, being Writ Petition (S/S) No. 815 of 2021 Shyam Sunder Vs. State of Uttarakhand and others, and during its pendency, the petitioner was served with the notice of 3rd February, 2022, in relation to an Office Order No. 2137 dated 27th November, 2021, by virtue of which, the refixation of the ACP benefit was proposed to be imposed upon the petitioner. The effect of the impugned order of 27th November, 2021, would be that it would have resulted into reduction of the pay scale of the petitioner. Hence, he has filed the present Writ Petition for quashing of the impugned orders, as passed by respondent No.5, intending for the re-fixation of the salary by way of reduction from Rs.36,400/- per month to Rs. 35,300/- per month.

30. The respondents filed their counter affidavit and took a stand that withholdment of the retiral benefits has been resorted to as a consequence of the wrong fixation of the service benefits, which was extended to the respective petitioners at the time, when they were in service, and since 25 they have contended, that it was a wrongful fixation of wages made by the respondents/ Corporation themselves, and by the competent authority by granting them a revision of pay, as per the recommendations of the report of the Pay Commission, which was admittedly made enforceable with the respondents/Corporation.

31. They had contended that since the petitioners were paid higher wages, than what they would have been otherwise entitled to, that has been taken as to be a ground for non remittance of the retiral benefits, which has been sought to be enforced by filing a writ of mandamus, praying for the disbursement of the retiral benefits and the gratuity, which they would be entitled to receive based upon its determination to be made on the basis of the last pay certificate issued in favour of the petitioners, in their respective date of retirement.

32. This Court found, that there was an apparent anomaly and the inaction in payment of retiral dues of the petitioners, pervaded at the behest of the respondents, on account of wrongful administrative decision, which was taken by their own official, and even if at all, it is presumed, that there was a wrongful fixation of the wages, then at least, the retired employees cannot be attributed in any manner of deriving a wrongful benefit of the pay fixed by the respondents themselves, and that too, when it is not the case of the respondents, that the petitioners were at all responsible or instrumental in playing fraud in the process of determination of the wages, which was held to be payable to 26 them, as a consequence of the revision of pay scale enforced on the basis of the recommendations of the Pay Commission report, made applicable to the Corporation.

33. Hence, in order to satisfy their stand which had been taken by the respondents with regard to their contentions, that the petitioners would be disentitled to receive the retiral benefits, which in certain cases as apparently shown already stood sanctioned by the respondents, on the pretext, that there was a wrongful fixation of the salary to the petitioners by their own officials, based on their determination, this Court thought it to be apt, that an action was required to be taken against the official of the Uttrakhand Transport Corporation itself, and hence, the direction was issued to the Secretary, Transport to the State of Uttarakhand, to conduct an enquiry and submit its report about the conduct of the internal affairs of the Corporation, and as to the manner, in which, the officials of the respondents Corporation were instrumental in the alleged act of wrongful fixing of the salary, in which, admittedly, the petitioners of each of these Writ Petitions have no role to play at all in fixing of their own wages, which the respondents contend, that it was fixed on a higher side, and hence, the retiral benefits as determined by the respondents was wrongfully determined, which would result into an automatic curtailment of their benefits, which was otherwise due to be paid to them on their attainment of their respective age of superannuation.

34. In compliance of the order passed by this Court on 27 21st February, 2022, and coupled with the reasonings, which has been assigned by this Court in its order of 28th December, 2021, the Secretary, Transport Department of the State of Uttarakhand, has submitted his report of 1st April, 2022, and as per the observations, which had been made therein, apparently, it has been observed, that it was rather the Corporation, and its officials, who were instrumental in wrongful fixation of salary of the petitioners, and hence, the voluntary act of the respondents unilaterally taken of curtailment of the retiral benefits on the pretext of a wrongful fixation of the salary was ultimately held to be bad in the eyes of law in view of the findings which had been recorded in the report of 1st April, 2022.

35. This Court has quite elaborately dealt with the controversy while passing the order of 20th December, 2021, and subsequently, on 6th April, 2022, which are extracted hereunder :-

"20.12.2021 Mr. B.M. Pingal, Advocate, with Mr. N.K. Papnoi, Advocate, for the petitioners.

Mr. Ashish Joshi, Advocate, for the respondent/Uttarakhand Transport Corporation.

Invariably in all these matters, and apart from these writ petitions, in which this order is being passed, while sitting in this jurisdiction, this Court has been witnessing, that on account of inaction or untoward action taken by the respondents, the retired employees of the "Uttarakhand Transport Corporation" are being harassed and deprived of the leave encashment, gratuity amount, and other retiral benefits, which is otherwise legally admissible and due to be paid to them.

Not even that in most of the writ petitions, the petitioners have come up with a case that the amount, which was payable to them as a consequence of the 28 attainment of their age of superannuation though it already stood sanctioned by the respondents' own decision, which in most of the case happens to be in enclosed proximity of the respective date of retirement. But despite of the due sanction granted, the amount has not yet been disbursed and the retired employees has been forced upon to approach the writ court, for the redressal of their grievances for the payment of the retiral dues, which they are otherwise statutorily entitled to receive.

Faced with this situation, which this Court has been facing, the Managing Director was called upon to appear in person by an order dated 16.12.2021.

Mr. Abhishek Ruhela, and the Financial Controller Dr. Tanjeem Ali, are present in person before this Court. In their defence, which has been taken by them to justify, their inability to remit the retiral benefits is, that because of the wrongful upgradation in the pay fixation of the respective petitioners which has been done by the respondents Organization, and there had been an audit objection raised in the year 2019, which is creating an impediment in remittance of the retiral benefits claimed by the petitioners, and sanctioned by the respondent.

In fact, the defence which has been taken by the respondents cannot be accepted by this Court to be a valid reasons at all for the following reason being that:-

(1) The petitioners were not at all instrumental in getting their pay fixed, when up gradation was being granted to them by the respondent authorities due to the determination made by the Officers of the Uttarakhand Transport Corporation.

(2) Even, if it is presumed, that there was a wrongful upgradation granted to the petitioners or such other employees, it was expected that the respondents should have realized their mistake, and should have take an action within an appropriate and reasonable time, but there was an inaction on part of the respondents.

(3) What is reflected is, that its not in the defence of the respondents, through there officers, who are present in person, that the petitioners were at all instrumental in getting the wrongful upgradation of their pay fixation. The respondents could only realized, 29 the errors when there was an Audit Team objection raised in the year 2019. May be the audit objection was a foundation for conducting an inquiry into the action of wrongful upgradation of the pay fixation as alleged to have been made by the order of 11.11.2020.

But, I am of the view, that if that was an embargo created no rationale could be attached to the respondents' own decision in each of the cases invariably, where they themselves have proceeded to sanction leave encashment and the gratuity amount payable to the retired employees.

(4) We are surviving in a democratic set up of the country, where under the welfare concept of the preamble of the Constitution of India, the interest of the citizens is to be safeguarded, particularly which is statutorily protected under the law particularly when it relates to senior citizen.

Action or inaction on the part of the respondent/employer towards the retired employees cannot be permitted to be persisted by the respondents, and forcing them to file the writ petitions at this dusk of their age, and it is pathetic to observe, that the litigation has been forced upon the retired employees because of the wrongful decision taken by the respondents.

In these circumstances and having considered the fact, that it is not an isolated case, where such contingency or situation have occurred before this Court, but rather it is a consistent feature which this Court has been observing for couple of weeks.

In that eventuality, I am of the view that the actions taken by the respondent authority is required to be inquired into, by the superior authority other than the authorities, which are directly involved in managing the internal affairs of the Uttarakhand Transport Corporation.

In that eventuality, the Secretary Transport, to the State Government, is directed to conduct the inquiry into the affairs of the Uttarakhand Transport Corporation, and in what manner the wrongful fixation has been made, which was objected by the Audit Team in the year 2019, and submit his report within a period of two months before this Court takes a judicial action against the authorities of the respondent corporation.

The report is expected to be submitted before this Court within the aforesaid period.

Mark it as part heard.

Put up these writ petitions on 21.02.2022. The personal appearance of the Managing Director for the time being is exempted by this Court, until and unless it is required in future after the submission of the report by the Secretary Transport."

"06.04.2022 Mr. B.M. Pingal, Mr. N.K. Papnoi, Mr. Kishore Kumar, Advocates, for the petitioner.

Mr. T.S. Fartiyal, Deputy Advocate General, for the State of Uttarakhand.

Mr. Lalit Samant, Mr. Ashish Joshi, Advocate, for the respondents.

Mr. Adarsh Tiwari, Advocate, holding brief of Mr. N.S. Pundir, Advocate, for the respondent Nos.1, 2 and 3.

In these bunch of writ petitions, the petitioners, who have attained their respective age of superannuation, from their respective posts, which was occupied by them with the respondent Uttarakhand Transport Corporation, in the writ petition they had prayed for the payment of the arrears of the 6th Pay Commission, gratuity, and leave encashment as payable to them under the Payment of Gratuity Act.

When the matter was heard, the respondents were directed to seek necessary instructions, and file their counter affidavit by virtue of the various orders passed in the writ petitions.

Today when the matter was taken up, learned counsel for the Uttarakhand Transport Corporation Mr. Ashish Joshi, has placed before this Court the communication being 806KR/8/Gratuity-leave encashment-court case/payment dated 05.04.2022, while referring to the respective writ petitions in the chart appended thereto, it had been observed, that since the amount payable to the petitioners have already been admitted and budget has been sanctioned, in all probability, they would be remitting the amount within a period of one week from today.

Put up this writ petition after one week, in order to enable the Uttarakhand Transport Corporation to do the needful.

However, the payment thus to be remitted by the Uttarakhand Transport Corporation, would always abide by the final decision to be taken in the writ petitions.

Let a copy of this order be placed in each of the writ petitions."

36. On submission of the report on 1st April, 2022, wherein, finding has been recorded with regard to the apparent anomaly which had been committed by the respondents Corporation in fixation of the salary of the petitioners / retired employees, the learned counsel for the respondents had sought time to file objection to the report. The said objection has been submitted on 18th May, 2022, which has been taken on record.

37. But, today when the matter was taken up, the learned counsel for the respondents instead of inviting judicial findings on the report submitted by the Secretary, Transport Department, had acceded to, that this Court itself may decide the Writ Petitions on its own merit, pertaining to their entitlement of the relief, which the petitioners have sought for in the respective Writ Petitions.

38. In fact, if the entire controversy could be summarised at this juncture itself, invariably, in all the cases, the pivot of the controversy remains the same, i.e. an act of curtailment of retiral benefits, without passing any rational and reasoned order, after providing an opportunity of hearing to the petitioners, and secondly, as to whether the 32 retiral benefits could at all be curtailed whimsically by the respondents/ Cooperation, without even providing any opportunity of hearing to the petitioners because any curtailment of retiral benefits, which otherwise under the concept of payment of gratuity or under the concept of payment of retiral benefits, which is based upon the principles, that it is only reckoning of the services rendered by the employees with the Corporation, in order to provide them a financial assistance for their survival in their old age by extension of retiral benefits and pension so that they may be able to sustain themselves at the fag end of their life after their retirement, in their old age, when they physically become crippled to do any other work, for themselves and for the survival of their families.

39. The State and the Corporations which has been created by the State, under the Act, they owe an onerous responsibility to ensure a timely remittance of retiral benefits, so that the retired aged employees and their dependents may not have to knock the doors of the Court for the payment of their statutory benefits, which they are otherwise entitled to under the law.

40. It needs no reference that the deductions or curtailment of the retiral benefits, which they are otherwise entitled to be paid, to the retired employees has been consistently held by the Constitutional Court as to be not a bounty rather a right of an employee, who has retired from the services. No curtailment as such could be made of it subject to the condition, that if at all curtailment of retiral 33 benefits was to be justified, it could have been only after providing an opportunity of hearing to the respective employees, against whom, any action, if at all, is said to have been contemplated to be taken or pending consideration. But, this could not be the case at hand, because invariably, in all the Writ Petitions, the petitioners, who have retired from the respective posts are shown to have been sanctioned with some of the retiral benefits under different heads, for example, leave encashment, payment of gratuity and consortium, etc. Hence, their entitlement is not an issue of debate.

41. In that eventuality, when the respondents by their own decision making process have already sanctioned the aforesaid amount which was made to be payable to the retired employees, this Court does not find any justification in the stand taken by the respondents, and which stands fortified too by the report submitted by the Secretary on 1st April, 2022, to curtail the retiral benefits payable to them because any curtailment since it entails a civil consequences, the curtailment would be barred by the ratio laid down by the Hon'ble Apex Court in the judgement reported in AIR 1990 SC 1402, Km. Neelima Misra Vs. Dr. Harinder Kaur Paintal and others, where there has been consistent view, which had been taken by the Courts, that the employer cannot take the advantage of curtailing the retiral benefits of the employees by carving out an exception according to their own whims and fancies, and that too, when it is not foundation on any rational basis and the reasons, which ought to have been assigned by the respondents and in the absence 34 of the same, their action would be bad and arbitrary in the eyes of law. Para 23 of the said judgment is extracted hereunder :-

"23. The shift now is to a broader notion of "fairness" of "fair procedure" in the administrative action. As far as the administrative officers are concerned, the duty is not so much to act judicially as to act fairly (See: Keshva Mills Co. Ltd. v: Union of India, [1973] 3 SCR 22 at 30; Mohinder Singh Gill v. Chief Election Commissioner, [1978] 1 SCC 405 at 434; Swadeshi Cotton Mills v. Union of India, [1981] 1 SCC 664 and Management of M/s M.S. Nally Bharat Engineering Co. Ltd. v. The State of Bihar & Ors., Civil Appeal No. 1102 of 1990 decided on February 9, 1990). For this concept of fairness, adjudicative settings are not necessary, not it is necessary to have lis inter parties. There need not be any struggle between two opposing parties giving rise to a 'lis'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely differing circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But then even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would juridically be called atleast a privilege does not involve the duty to act fairly consistently with the rules of natural justice. We cannot discover any principle contrary to this concept."

42. The aforesaid principles as laid down by the Hon'ble Courts referred to in the authorities as considered above in this judgment, has been rather reiterated by the Hon'ble Apex Court in the latest judgement reported in (2022) 4 SCC 363, Punjab State Cooperative Agricultural Development Bank Ltd. Vs. Registrar, Cooperative 35 Societies and others, wherein, the Hon'ble Apex Court has laid down that entitlement of pension to a retired employee is a vested accrued right of a retired employee, which has had to be remitted irrespective of any impediment, if at all, it is prevailing, including the pendency of any disciplinary proceedings against an employee, and that too particularly when, its effect of curtailment has not been taken into consideration, while taking an action isolatedly according to their own whims and fancies without passing any order, after opportunity of hearing for curtailing the retiral benefits, and that has what has been laid down by the Hon'ble Apex Court in the aforesaid judgement, which finds reference from para 44 to 59 which is extracted hereunder:-

" 44. The question that emerges for consideration is as to what is the concept of vested or accrued rights of an employee and at the given time whether such vested or accrued rights can be divested with retrospective effect by the Rule making authority.

45. The concept of vested/accrued right in the service jurisprudence and particularly in respect of pension has been examined by the Constitution Bench of this Court in Chairman, Railway Board and Ors. as follows:

11. On the basis of the said decision of the Full Bench of the Tribunal, other Benches of the Tribunal at Bangalore, Hyderabad, Allahabad, Jabalpur, Jaipur, Madras and Ernakulam have passed orders giving relief on the same grounds. These appeals and special leave petitions have been filed against the decision of the Full Bench and those other Benches of the Tribunal. Some of these matters were placed before a Bench of three learned Judges of this Court on 28-3-1995 on which date the following order was passed:

Two questions arise in the present case, viz., (i) what is the concept of vested or accrued rights so far as the government servant is concerned, and (ii) whether vested or accrued rights can be taken away with retrospective effect by Rules made under the proviso to 36 Article 309 or by an Act made under that article, and which of them and to what extent.

We find that the Constitution Bench decisions in Roshan Lal Tandon v. Union of India (1968) 1 SCR 185; B.S. Vadera v. Union of India (1968) 3 SCR 575 and State of Gujarat v. Raman Lal Keshav Lal Soni (1983) 2 SCC 33 have been sought to be explained by two three-Judge Bench decisions in K.C. Arora v. State of Haryana (1984) 3 SCC 281 and K. Nagaraj v. State of A.P. (1985) 1 SCC 523 in addition to the two-Judge Bench decisions in P.D. Aggarwal v. State of U.P. (1987) 3 SCC 622 and K. Narayanan v. State of Karnataka 1994 Supp (1) SCC 44. Prima facie, these explanations go counter to the ratio of the said Constitution Bench decisions. It is not possible for us sitting as a three-Judge Bench to resolve the said conflict.

It has, therefore, become necessary to refer the matter to a larger Bench. We accordingly refer these appeals to a Bench of five learned Judges.

46. This Court, after taking note of the earlier view on the subject further held in Chairman, Railway Board and Ors. as under:

20. It can, therefore, be said that a Rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a Rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.

24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant Rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the Rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing Rule is arbitrary, discriminatory and violative of the rights guaranteed Under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in 37 Roshan Lal Tandon (1968) 1 SCR 185, B.S. Vedera (1968) 3 SCR 575 and Raman Lal Keshav Lal Soni (1983) 2 SCC 33.

25. In these cases we are concerned with the pension payable to the employees after their retirement. The Respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the Rules are not restricted in their application in futuro. The amendments apply to employees who had already retired and were no longer in service on the date the impugned notifications were issued.

33. Apart from being violative of the rights then available Under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed Under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement.

(emphasis supplied)

47. Later, in U.P. Raghavendra Acharya and Ors., the question which arose for consideration was that whether the Appellants who were given the benefit of revised pay scale with effect from 1st January, 1996 could have been deprived of their retiral benefits calculated with effect therefrom for the purpose of calculation of pension. In that context, while examining the scheme of the Rules and relying on the Constitution Bench Judgment in Chairman, Railway Board and Ors. (supra), this Court observed as follows:

22. The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules.

The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the Appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grant Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their 38 favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1-1-1996, thus, could not have been denied to the Appellants.

30. In Chairman, Rly. Board v. C.R. Rangadhamaiah (1997) 6 SCC 623, a Constitution Bench of this Court opined:

33. Apart from being violative of the rights then available Under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed Under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement.

31. The Appellants had retired from service. The State therefore could not have amended the statutory Rules adversely affecting their pension with retrospective effect.

48. Later, in Bank of Baroda and Anr. (supra), the question arose with respect to the employees who retired or died while in service on or after 1st April 1998 and before 31st October, 2002 to whom benefits were vested and accrued could be deprived of their retiral benefits. In this context, while taking note of the view relying on the Constitution bench Judgment in Chairman, Railway Board and Ors. (supra), this Court observed as under:

29. Thus, in our opinion, the Regulations which were in force till 2003, would apply with full force and as a matter of fact, the amendments made in it by addition of Explanation (c) in Regulation 2(s) did not have the effect of amending the Regulations relating to pension, as contained in Regulation 38 read with Regulations 2(d) and 35 of the Regulations of 1995. Even otherwise, if it had the effect of amending the pay and perks 'average emoluments', as specified in Regulation 2(d), it could not have operated retrospectively and taken away accrued 39 rights. Otherwise also, it would have been arbitrary exercise of power. Besides, there was no binding statutory force of the so called Joint Note of the Officers' Association, as admittedly, to Officers' Association even the provisions of Industrial Disputes Act were not applicable and joint note had no statutory support, and it was not open to forgo the benefits available under the Regulations to those officers who have retired from 1.4.1998 till December 1999 and thereafter, and to deprive them of the benefits of the Regulations. Thus, by the Joint Note that has been relied upon, no estoppel said to have been created. There is no estoppel as against the enforcement of statutory provisions. The Joint Note had no force of law and could not have been against the spirit of the statutory Regulations and the basic service conditions, as envisaged under the Regulations framed under the Act of 1970. They could not have been tinkered with in an arbitrary manner, as has been laid down by this Court in Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr. , (1986) 3 SCC 156 & Delhi Transport Corporation v.

D.T.C. Mazdoor Congress, (1991) Supp. 1 SCC 600.

49. The exposition of the legal principles culled out is that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing Rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed Under Articles 14 and 16 of the Constitution.

50. In the instant case, the Bank pension scheme was introduced from 1st April 1989 and options were called from the employees and those who had given their option became member of the pension scheme and accordingly pension was continuously paid to them without fail and only in the year 2010, when the Bank failed in discharging its obligations, Respondent employees approached the High Court by filing the writ petitions. The Bank later on withdrawn the scheme of pension by deleting Clause 15(ii) by an amendment dated 11th March, 2014 which was introduced with effect from 1st April, 1989 and the employees who availed the benefit of pension under the scheme, indeed their rights stood vested and accrued to them and any amendment to the contrary, which has been made with retrospective operation to take away the right accrued to the retired employee under the existing Rule certainly is not only violative of Article 14 but also of Article 21 of the Constitution.

51. It may also be noticed that there is a distinction between the legitimate expectation and a vested/accrued right in favour of the employees. The Rule which classifies such employee for promotional, seniority, age of retirement purposes undoubtedly operates on those who entered service before framing of the Rules but it operates in futuro. In a sense, it governs the future right of seniority, promotion or age of retirement of those who are already in service.

52. For the sake of illustration, if a person while entering into service, has a legitimate expectation that as per the then existing scheme of rules, he may be considered for promotion after certain years of qualifying service or with the age of retirement which is being prescribed under the scheme of Rules but at a later stage, if there is any amendment made either in the scheme of promotion or the age of superannuation, it may alter other conditions of service such scheme of Rules operates in futuro. But at the same time, if the employee who had already been promoted or fixed in a particular pay scale, if that is being taken away by the impugned scheme of Rules retrospectively, that certainly will take away the vested/accrued right of the incumbent which may not be permissible and may be violative of Article 14 and 16 of the Constitution.

53. The judgment on which learned Counsel for the Appellant Bank has placed reliance in the case of Marathwada Gramin Bank Karamchari Sanghatana and Anr. (supra), the issue under consideration was with respect to provident fund. The Marathawada Gramin Bank had floated a provident fund scheme built on better rates of contributions than the rates mandated under the employees provident fund scheme. Hence, the better scheme of provident fund was statutorily recognized by grant of exemption Under Section 17(1). Later, Marathawada Gramin Bank discontinued its provident fund scheme for financial unviability, and reverted to rates mandated under paragraph 26 of the EPFS. The Bank later declined to exercise its voluntary contribution under Para 26 of the scheme after the exemption was declined and that came to be upheld by this Court which may not be of any assistance to learned Counsel for the Appellant in the instant case.

54. So far as the judgment in State of Himachal Pradesh and Ors. (supra) is concerned, it was a case where apart from the scheme under the provisions of Act 1952, the State of Himachal Pradesh framed another scheme for the Himachal Pradesh Corporate Sector Employees Pension (Family Pension, Commutation of Pension and Gratuity) Scheme, 1999. It was made operational with effect from 1st April 1999 but before the rights to the employees could be vested/accrued, it was repealed on 2nd December, 2004. The question arose whether such 41 contingent right vested with the employee on their having once opted under 1999 scheme was at all be binding or irrevocable despite being repealed by a later notification dated 2nd December, 2004. In that context, this Court observed that it was not the case of the right which accrued to the employee and in that context, the repealing notification was upheld by this Court.

55. In State of Rajasthan (supra), it was a case where the University which was an autonomous body created under the provisions of the Act by its Resolution introduced the pension scheme, without taking recourse of the fact that the Resolution of the Board of the Management of the University can be enforced only with prior approval from the Chancellor, i.e., the Governor of the State in terms of Section 39 of the Act and it was never approved by the Chancellor, in absence whereof, such resolution of the Board of Management was unauthorized and was not open to be implemented. In the given circumstances, this Court was of the view that in absence of the mandate of Section 39 being complied with, the Board of Management of the University was not justified in introducing the scheme of pension.

56. So far as the submission made by learned Counsel for the Appellant about the financial distress of the Appellant Bank to justify the impugned amendment to say that it may not be possible to continue the grant of pension any more is concerned, suffice to say, that the Rule making authority was presumed to know repercussions of the particular piece of subordinate legislation and once the Bank took a conscious decision after taking permission from the Government of Punjab and Registrar, Co-operative, introduced the pension scheme with effect from 1st April 1989, it can be presumed that the competent authority was aware of the resources from where the funds are to be created for making payments to its retirees and merely because at a later point of time, it was unable to hold financial resources at its command to its retirees, would not be justified to withdraw the scheme retrospectively detrimental to the interests of the employees who not only became member of the scheme but received their pension regularly at least upto the year 2010 until the dispute arose between the parties and entered into litigation.

57. In our view, non-availability of financial resources would not be a defence available to the Appellant Bank in taking away the vested rights accrued to the employees that too when it is for their socio-economic security. It is an assurance that in their old age, their periodical payment towards pension shall remain assured. The pension which is being paid to them is not a bounty and it is for the Appellant to divert the resources 42 from where the funds can be made available to fulfil the rights of the employees in protecting the vested rights accrued in their favour.

58. So far as the submission made by the serving employees is concerned, they have no locus to question. At the same time, their apprehension as being projected to this Court is completely misplaced for the reason that employer/employees contribution is being provided under the employees pension scheme (EPS) of the Act 1952 which is made applicable to the serving employees and they are entitled to get pension in terms of the provisions of the Act 1952. So far as their complaint regarding payment of contribution is concerned, it is in no manner going to be adjusted for payment of pension to retirees/Respondents, who are entitled to get their pension in terms of the pension scheme of which they are members and it is for the Appellant Bank to reserve the resources and make payment to the retired employees seeking pension to the scheme in vogue when they became members and took benefits pursuant thereto.

59. Before we part with the judgment, we cannot be oblivious of the situation that the complaint of the employees that they are not being paid their pension since 2013, at the given time few employees have been given benefit of one time settlement as introduced by the Bank as an interim measure which was subject to their rights being preserved, in the pending litigation, taking grievance of the either party into consideration, the financial constraints of the Bank and the rights of the employees who are entitled to get pension under the bank pension scheme, we consider appropriate to observe that so far as the arrears towards element of pension to which the retired employees are entitled for, the Appellant Bank is at liberty to pay arrears towards pension upto 31st December, 2021 in 12 monthly instalments in the next one year by the end of December, 2022 and those employees who have accepted payment under one time settlement at a given point of time, what is being paid to them is always open for adjustment against arrears of their due pension. Still if arrears remain outstanding, the same shall be paid in 12 monthly instalments. At the same time, each of the employee who is member of the Bank Pension scheme must get pension to which he/she is entitled from the month of January 2022 as admissible under the law."

43. In fact, the Hon'ble Apex Court has observed, that entitlement of a pension and locus standi of the employee, who has served with the statutory Corporation of 43 the State, under the scheme of pension as applicable to the respective Department, they would be entitled to be paid with the retiral benefits in view of the principle of legitimate expectation because of the accruing of the vested rights in favour of an employee, hence, the Rules governing the service condition has had to be rationally applied, and it cannot be applied in a manner detrimental to the service benefit, which was extendable to the petitioner for the purposes of determining the retiral benefits, as it has been observed in para 37 and 38 of the said judgement, which is extracted hereunder :-

"37. Mr. Gurminder Singh, learned Senior Counsel for the serving employees submits that that as per the pension scheme introduced by the Appellant Bank, the employees have to make their own contribution and looking to the depleting strength of the serving employees, their contribution is being utilized for payment of pension to the retired employees and bank is throughout harping upon the plea that because of financial distress, it is not possible for the Bank to continue with the pension scheme anymore and that is the reason for which the pension scheme was withdrawn by the Bank at a later stage and that affects the interest of the serving employees whose entire employees' contribution is being utilized against the payment of pension to the retirees and consistently, there is a shortfall of employer's share of in-service employees and this practice if being continued any more, by the time the serving employee will retire, they will not be able to get pension despite they have undertaken their contribution while in service.

38. The indisputed fact according to the learned Counsel is that the retirees are being paid their pension under the Bank 44 pension scheme at the cost of the serving employees and it affects the interest of the serving employees which is being jeopardized."

44. In yet another judgement rendered by the Hon'ble Apex Court in Civil Appeal 7115 of 2010, Thomas Daniel Vs. State of Kerala and others, the Hon'ble Apex Court in its judgement of 2nd May, 2022, while making reference to the judgement of the Hon'ble Apex Court as rendered earlier in a judgement reported in 2009 (3) SCC 475, Syed Abdul Qadir and others Vs. State of Bihar and others, where as per the service conditions, which were applicable therein under the circumstances of those cases, the benefit of retired employees was directed to be curtailed on account of excess payment having been made to an employee. Almost akin principle was raised before the Hon'ble Apex Court in a judgement reported in 2015 (4) SCC 334, State of Punjab and others Vs. Rafiq Masih (White Washer) and others, wherein, in wider principles, it has been laid down, that even if a faulty monetary benefit has been extended to an employee on account of a wrongful determination made by the employer according to their own wisdom and the benefit has already been derived by an employee, the same cannot be culled out to be taken a reason to deprive the benefit of retiral dues of the employee, which accrues to him as a consequence of his attainment of age of superannuation nor the same could be deducted from the salary, if an employee is in the service and the logic behind it is, that once it has been held and established by documents that the employee was not at all instrumental in the wrongful fixation of the service benefits, 45 he cannot be placed in a situation detriment to his interest and to the interest of the dependent of his, because in the absence of their being any fraud being played by the employee, the deduction, the curtailment of the retiral benefits could not at all be left at the liberty of the employer to be applied against the employee, who has already attained the age of superannuation.

45. Rather in the matter of Rafiq Masih (Supra), which was considered by the Division Bench of this Court also in a bunch of Writ Petition, of which, I was also one of the Member, and later on, it was referred to a larger Bench by the Hon'ble Apex Court in a matter of State of U.P. Vs. Prem Singh, in which the principles laid down in the judgement of Rafiq Masih (Supra) was affirmed, and thereafter, it has been laid down that :-

i. If a financial benefit has accrued to an employee on account of the voluntary decision taken by the respondents, in which, it has not been established that at all the employees was at all responsible in wrongful fixation of the service benefits and no fraud is said to have been attributed to him, no deduction as such could be made from the service benefits and consequential the retiral benefit too.

ii. The second logic is that once a monetary benefit has been extended on account of the enforceability of the recommendations of the Pay 46 Commission and the financial benefit, which has already been enjoyed by an employee, that cannot be made subjected to recovery at a later stage, when he attains the age of superannuation, and that too, when the benefit, which has been derived by him was on the dictates or the directions issued by the employee, has already been availed and enjoyed by him, and his family, on retirement and he cannot be burdened with financial liability on attaining the age of retirement, where source of earning closes.

46. Furthermore, when the entire action of curtailment of the retiral benefit in the present case, were under the pretext raised by the respondents in the Writ Petitions, that it was on account of wrongful fixation of the salary, it was a unilateral decision, which was resorted to and taken by the respondents themselves without due process of law and without providing any opportunity of hearing to the petitioners, the action of the respondents would be barred by provisions contained under Article 14 to be read with Article 311 (2) of the Constitution of India, and since the country being a welfare State, the arbitrary action having an effect or the civil consequences, cannot be imposed upon a retired employee on the basis of enjoyment of dominant position by the employer, by withholding of retiral benefits, which otherwise is not disputed by the employer owing to the facts, which has been brought on record in some of the Writ Petitions, where the respondents despite of being conscious of any artificial impediment, which has been observed in the 47 argument extended by the respondents Counsel, and still, they have proceeded to sanction the retiral benefits, I see no justification for them to curtail the retiral benefit and that too, particularly when, an inaction has been held to be against them in view of the finding recorded by the enquiry report submitted by the Secretary of the Department on 1st April, 2022.

47. In these eventualities, before this could have proceeded to take any action against the respondents /Cooperation, based on the observations made in the report of the Secretary to the Transport Department of the State of Uttarakhand, this Court feels it to be fit that apart for the reasons already discussed above, that when invariably in all the cases following facts are admitted:-

i. That the petitioners had been the employee of the Corporation.

ii. That they have attained the respective age of superannuation.

iii. When there is no controversy pertaining to their entitlement to be paid with the retiral benefits and the pensionary benefits based upon the last salary drawn by them.

iv. When there is no material on record as such relied by the respondents, to substantiate the stand taken by the respondents, that there had been any valid reason to curtail the retiral benefits.

v. Particularly, even if, for a moment, if there was any impediment in remittance of the retiral benefits of an employee for any valid and justified reason, which has been artificially created by the respondents in their stand taken in their counter affidavits filed in the Writ Petitions, under the normal service jurisprudence, it was expected that the respondents ought to have provided an opportunity of hearing and should have conducted an enquiry before curtailing the retiral benefits, which was payable to the retired employees, and hence, in the absence of there being any such enquiry ever conducted before taking the impugned action of curtailment of the retiral benefits, the entire action of the respondents would be bad, and that too, lastly particularly, when the extension of service benefit was as a consequence of the decision-making process taken by their own competent authorities, who had fixed the wages, out of which, the benefits has been consistently extended by the respondents and derived by the petitioners and fraud is not an aspect, which has been attributed, argued and established by document on record, against the petitioners, of wrongful extension of ACP benefits to them.

48. In these eventualities, this Court is of the view that the petitioners, who are the retired employees had been rather, owing to the inaction and arbitrary aptitude adopted by the State Corporation have been rather forced upon with the litigation to file a Writ Petition for the enforcement of the genuine rights of payment of retiral benefits, which according to respondents, in some of the cases, they are already entitled to owing to the partial sanctions already accorded by the respondents.

49. In that eventuality, and for the reasons assigned above, at this stage, this Court is deliberately not addressing itself on the report submitted by the Secretary, Transport Department dated 1st April, 2022, and is refraining to make any observation owing to the stand taken by the respondents counsel, that they would be remitting the retiral benefits, which the petitioners are otherwise entitled to in accordance with the law, based upon the last salary drawn by them.

50. A writ of mandamus is issued to the respondents and the respondents are directed to pay the entire retiral benefits with its arrears, as sought for by the petitioners in each of the respective Writ Petition, as expeditiously, as possible but not later than three months from the date of production of certified copy of this order.

51. Subject to aforesaid, the Writ Petitions are allowed with the respective cost of Rs.5,000/- each to be paid to the petitioners of each of the Writ Petition, in order to 50 enable them to meet the litigation expenses of forced litigation upon them.

52. This order has been rendered on merit, and not on the basis of the consensus given by the respondents Counsel.

53. In case, if any deduction has been made from retiral benefits or the gratuity of the petitioners, the same would too be remitted back to them within the aforesaid period as directed above.

(Sharad Kumar Sharma, J.) 14.06.2022 Shiv

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Uttarakhand High Court