Orissa High Court
Shri Shyam Sundar Parija vs Orissa State Road Transport ... on 16 July, 2004
Equivalent citations: 98(2004)CLT208, [2004(102)FLR1125]
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The petitioner, a retired employee of the Orissa State Road Transport Corporation-opposite party No. 1 has filed this writ application for a direction to the opposite parties to pay the following retirement dues :
(i) Arrear differential amount on D.As. revised pay and house rent Rs. 38,609.00.
(ii) Arrear. differential amount on unutilized leave calculated or revised pay with effect from 1.1.1996 - Rs. 23,852.00
(iii) Gratuity Rs. 1,00,000.00 along with interest at the rate of 18% from the date of retirement.
2. The case of the petitioner is that he was appointed as A.T.M. in the Orissa Road Transport Corporation on 27.1.1961 and while working under the Company, he was promoted to the post of Traffic Manager/District Transport Manager. By notification dated 14.8.1990 issued by the Department of Commerce and Transport (Transport), Orissa Road Transport Company was taken over by the Orissa State Road Transport Corporation, opposite party No. 1 with effect from 16.8.1990. For acquisition of Orissa Road Transport Company, an agreement was executed. Apart from taking over Orissa Road Transport Company, the petitioner joined the opposite party No. 1, Corporation and was given further promotion to the post of Deputy General Manager (Operation) and finally retired from service on superannuation on 30th June, 1996. The grievance of the petitioner is that even though he retired on superannuation in June, 1996, his retirement benefits as indicated above had not been paid to him as a result of which he had no other option except approaching this Court.
3. Shri A.K. Mishra, learned counsel appearing for the petitioner submitted that only after filing of the writ application by virtue of the orders passed by this Court, the gratuity amount of Rs. 1,00,000/-has been paid to the petitioner in instalments. Since there was long delay in payment of gratuity and only after intervention of this Court the said amount was paid, according to Shri Mishra, the petitioner is entitled to interest thereon and in support of his contention he has also relied on some decisions. Bo far as arrear dues in the revised scale of pay is concerned, reliance is placed by Shri Mishra on the agreement executed at the time of taking over O.R.T. Company. Annexure-8 is the memorandum of understanding executed between the Orissa State Road Transport Corporation and Orissa Road Transport Company Limited. Much reliance is placed by the learned counsel on Clause 15 of the said agreement and according to Shri Mishra, learned counsel appearing for the petitioner, the terms and conditions of service of the personnel working under the Orissa Road Transport Company have to continue as the employees working under the Orissa State Road Transport Corporation, opposite party No. 1. On the basis of the aforesaid Clause, the learned counsel for the petitioner submitted that the revised scale of pay should be made available in case of the petitioner and differential arrear salary with effect from 1.1.1996 should be calculated and paid to the petitioner.
4. A counter affidavit has been filed by the opposite party No. 1. Shri Choudhury, learned counsel appearing for the opposite party No. 1 referring to the counter affidavit submitted that though the petitioner retired on superannuation from 30th June, 1996, his retirement dues such as gratuity could not be paid to him because of Audit objection pending against the petitioner. After retirement, a sum of Rs. 89,682/- was paid to the petitioner towards other retirement dues, but so far as gratuity is concerned, it was found that a sum of Rs. 2,87,824/- was outstanding against the petitioner. After receipt of such report, the Audit Superintendent of the Corporation was instructed to verify the connected records at respective places and submit a report. Thereafter, the gratuity was sanctioned on 15.12.1998 subject to finalisation of the amount outstanding against the petitioner and it was found that the petitioner was entitled to gratuity of Rs. 1,00,000/- and out of the said amount, Rs. 9988/-had been paid to the petitioner before he approached this Court. According to Shri Choudhury, considering the financial condition of the Corporation as well as payment due to several retired employees, the Corporation was of the view that it would not be possible to pay the entire retirement benefits to its employees and accordingly, all the retired employees were paid their retirement dues in instalments and in the meantime the entire gratuity amount so far as the petitioner is concerned, has been paid. So far as differential arrear salary as claimed by the petitioner is concerned, it is submitted by the learned counsel for the Corporation that no employee of the Corporation has been allowed revised scale of pay and, therefore, the petitioner is also not entitled to get revised scale of pay. According to Shri Choudhury, learned counsel for the opposite party No. 1, the Corporation has to adopt, by way of resolution, the revised scale of pay as has been made available to the Government-employees and in absence of such resolution, no employee can claim pay in the revised scale of pay.
5. So far as first two claims of the petitioner are concerned, it relates to fixation of pay in the revised scale of pay. In order to find out the differential arrear that the petitioner may be entitled to, the question that arises for consideration is as to whether the petitioner is entitled to revised scale of pay as claimed. Shri Mishra, learned counsel appearing for the petitioner referred to Clause 15 of the agreement executed at the time of taking over of O.R.T. Company. It was submitted that while working in the O.R.T. Company, revision in the scale of pay has been adopted and the employees of the Company had been paid their salary in the revised scale of pay as and when there was revision in the scale of pay. Clause 15 of the agreement is produced below :
"15. That the OSRTC to employ all the workmen, staff and other personnel who are on the rolls of the ORT as on the 30th June, 1990, and who have been in continuous service in the undertaking for not less than one year, on the terms that :
(a) the services of the personnel shall not be deemed to be interrupted on the acquisition of the undertaking;
(b) the terms and conditions of service of the personnel shall be the same as existing on the 30th June, 1990 and they will continue to enjoy all the benefits enjoyed by them in their respective undertakings, before the acquisition of the undertaking;
(c) the OSRTC shall honour all the commitments made by the management of the ORT respectively, in the Memorandum of Settlement or other agreements reached with the workers and staff under the Industrial Disputes Act, 1947 or any other Labour Law;
(d) for the purpose of all statutes, the period of service in the ORT by the personnel shall be deemed to be continuous service with the OSRTC."
6. According to the said clause, the terms and conditions of service of the personnel shall be the same as existing on 30th June, 1990 and they are to be given the same benefits as enjoyed by them in their respective undertakings, before the acquisition of the undertaking. True it is that the petitioner as well as other employees of the ORT were being allowed the benefit of revised scale of pay as and when there used to be revision in pay scale, but that is claimed due to resolution passed by the ORT Company. But so far as opposite party No. 1 is concerned, nothing has been brought to the notice of the Court that at any point of time the Corporation adopted revised scale of pay as has been made admissible to the Government employees. There is no dispute that unless resolution is passed by the Corporation adopting the revised scale of pay, the employee cannot claim salary in the revised scale of pay. As a matter of fact, the terms and conditions of service of personnel working in ORT, so far as claim of revised scale of pay is concerned, is also depended on a resolution being passed by the Company adopting the revised scale of pay. Therefore, in absence of any resolution by the Corporation adopting revised scale of pay an employee cannot have a right to claim salary in the revised scale of pay. I am, therefore, of the view that the petitioner's first two claims, which are depended on fixation of revised scale of pay, cannot be allowed. Shri Mishra, the learned counsel appearing for the petitioner cited an example of few number of employees who were brought from the State Government to the Corporation and submitted that those particular employees were given benefits in the revised scale of pay whereas the petitioner has not been paid. In reply to the said submission, the learned counsel appearing for the Corporation submitted that inadvertently those few employees who were paid in the revised scale of pay, later on, when it was brought to the notice of the Corporation that a mistake has been committed/the entire amount paid to them towards arrear differential salary had been recovered. Apart from this, the Corporation can only allow revised scale of pay provided it can take the financial burden. Since the Corporation is almost in a state of closure as stated by the learned counsel, it cannot bear the additional burden. I, therefore, do not find any merit so far as the first two claims are concerned.
7. So far as non-payment of gratuity is concerned, there is no dispute that out of the total outstanding dues about, Rs. 10,000/-had been paid to the petitioner before he approached this Court. After filing of the writ application by order dated 17.7.2000 it was directed for payment of Rs. 40,000/- by 31st July, 2000 towards part of the gratuity payable to the petitioner and pursuant to such order, not only Rs. 40,000/- had been paid but also by virtue of order dated 20.11.2000 the balance amount had been paid. Now the claim for payment of interest is required to be considered. Shri Mishra, the learned counsel appearing for the petitioner places reliance on a decision of the Apex Court in the case of Dr. Uma Agrawal v. State of U.P. and Anr. reported in AIR 1999 SC 1212. In the said case retirement benefits were paid to the petitioner therein five years after the retirement and in the circumstances of that case the Apex Court directed for payment of penal interest and quantified the same at Rs. 1,00,000/- (one lakh). In the case of State of Kerala and Ors. v. M. Padmanabhan Nair reported in AIR 1985 SC 356 the Apex Court took a similar view and directed payment of interest on gratuity payable to the petitioner therein. This Court in the case of Dhruba Charan Panda and Ors. v. State of Orissa and Ors. reported in 1999 (II) OLR 433 also in similar circumstances directed payment of interest at the rate of 18% per annum. So far as the present case is concerned there is no dispute that the petitioner retired on 30th June, 1996. From the counter affidavit, it appears that a considerable length of time was taken for obtaining the reports from different departments with regard to the amount outstanding against the petitioner. Even after obtaining such report and calculating the gratuity at Rs. 1,00,000/-(one lakh). Rs. 10,000/- was paid to the petitioner and only after intervention of this Court, the balance amount was paid in instalments. The order dated 17.7.2000 was passed by this Court in Misc. Case No. 11278 of 2000 directing the opposite parties to pay Rs. 40,000/-in which a specific stand was taken by the petitioner that he was suffering from Cardiac trouble and had been advised to take medicine for CDA, PTCA. The Court while considering the grant of interest cannot also overlook the financial liability of the employer for fixation of rate of interest. There is no dispute that the opposite party No. 1, Corporation is running on huge loss and several writ applications have been filed before this Court by the retired employees of the Corporation for payment of their retirement dues. The Corporation has not been able to pay the retirement benefits because of the financial condition.
8. Considering the right of the petitioner as well as the difficulties of the Corporation, I am of the view that instead of giving interest on delayed payment of gratuity, a fixed amount be paid to the petitioner. The petitioner having retired from service on 30th June, 1996 the gratuity should have been paid to him within two months after such retirement. About Rs. 90,000/- had not been paid to the petitioner till July, 2000 and pursuant to order dated 17.7.2000 only Rs. 40,000/-had been paid and again pursuant to order dated 20th November, 2000 the balance amount was paid in instalments. Keeping the above in mind, I direct that the Corporation shall pay a fix sum of Rs. 25,000/- (Rupees twenty five thousand) towards interest on delayed payment of gratuity.
The writ application is disposed of accordingly.