Gujarat High Court
Rami Indulal Chaturdas & 26 vs State Of Gujarat & 3 on 15 January, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/780/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 780 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
==========================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
RAMI INDULAL CHATURDAS & 26....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR HB SINGH, ADVOCATE for the Petitioner(s) No. 1 - 27
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
MR RASHESH RINDANI, AGP for the State.
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 15/01/2016
ORAL JUDGMENT
1. Petitioners herein are seeking the payment of interest at the rate 10% per annum, as given in case of similarly situated employees and petitioners of Special Civil Application No.10142 of 2009 and other allied matters.
2. The facts giving rise to this application may be summarized as Page 1 of 9 HC-NIC Page 1 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT under:
2.1. Petitioners worked as Primary Teachers and were granted benefit of selection grade during their service tenure. They were seeking benefit of Government Resolution dated 5.7.1991 and have completed 27 years of service prior to 1st August, 1994. According to them, they got the benefit of selection grade with effect from 1st January, 1973.
3. It is their say that by Government Resolution dated 15th October, 1993, the petitioners were reverted back in the earlier scheme and their pay was fixed in the pay grade of 12002040 against the pay scale 1400 2600. The petitioners also have averred that in supercession of earlier Resolution dated 5.7.1991, the Government issued a revised scheme of Higher Grade Scales by a Resolution dated 16th August, 1994, by virtue of which, it has been made clear that the said scheme shall not affect fixation already done in case of those employees who had retired prior to 1994, and no recovery shall be effected qua those employees. Hence, this writ petition seeking the following reliefs:
"(A) To admit and allow this petition.
(B) To direct the respondents herein to forthwith make payment of interest @10% per annum as per the similar situated petitioners of SCA/10142/2009 of the petitioners herein from 1.1.1995 to 31.1.2013 in the light of the direction issued at Sr.No.15(v) of the rodder dated 30.1.2013 passed in Special Civil Application No.10142/2009 within a Page 2 of 9 HC-NIC Page 2 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT stipulated period of time; and direct the respondents to submit action taken report;
(C) Pending admission hearing and till final disposal of this petition Your Lordships be pleased to direct the respondents to herein to forthwith make payment of interest @ 10% per annum as per similar situated petitioners of SCA/10142/2009 to the petitioners herein from 1.1.1995 to 31.1.2013 in the light of the direction issued at No.15(v) of the order dated 30.1.2013 passed in Special Civil Application No.10142/2009;
(D) Your Lordships be pleased to grant any other or further relief as this Hon'ble Court may deem fit and proper in the interest of justice."
4. From the record it appears that some of the retired employees preferred writ petition being Special Civil Application No.10142 of 2009 and other allied matters, praying for Higher Grade Scales and vide order dated 30th January, 2013 all these petitions were disposed of by a common judgment and order. It would be profitable to refer to the directions issued therein by this Court, in paragraph 15:
15. For the reasons recorded above, this court arrives at the judgment and passes the order, as under :
i) Inspite of more than one judgments of this Court against the respondent authorities, the denial of benefit of higher grade scale to the petitioners as claimed by them and similarly situated persons, is held to be illegal, arbitrary and lacking bonafide on the part of respondent authorities, more particularly, Director of Primary Education, Gujarat State.
ii) The petitioners shall be paid all the three higher grade scales as per Government Resolution dated 5.7.1991, over and above selection grade availed by them which was prior to 26.12.1985, as held by this Court in Letters Patent Appeal No. 1073/2004 and cognate matters vide judgment dated 14.10.2004.
iii) The retirement dues of the petitioners shall also be recalculated accordingly.
iv) Arrears of difference of pay as well as retirement dues shall be calculated and paid within a period of four months from today.
v) The petitioners shall also be entitled to interest from 1.1.1995 Page 3 of 9 HC-NIC Page 3 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT till 31.1.2013 on the above amount, at the rate of 10% per annum, which shall also be paid along with arrears, as directed above.
vi) While implementing these directions, it shall also be kept in view that the petitioners of Special Civil Applications No.10878 of 2008, 11380 of 2008 and 11160 of 2008, had availed one promotion on the post of Education Inspector and therefore, they will be entitled to only remaining two higher grade scales and qua them, the directions shall be implemented accordingly.
vii) For the reasons recorded in paras8.5, 9.2, 9.3 and 10 to 14, more particularly para 12 of this judgment, each petitioners shall be paid cost of Rs. 5000/ by the Director of Primary Education, Gujarat State, which shall be paid within a period of three months from today. It would be open to the State authorities to recover this amount from erring officer(s), in accordance with law.
viii) The Principal Secretary, Education Department is further directed to carry out the directions contained in para 13 of this judgment within a period of three months from today."
5. As can be noticed from the directions reproduced hereinabove, one of condition was to pay interest at the rate of 10% per annum from 1.1.1995 till 31.1.2013. It appears that the State Government, after long litigation has already implemented this order and paid the amount of arrears with 10% interest per annum. In such situation, the petitioners, who are senior citizens are seeking the aforementioned prayers on the ground that identically situated employees have already been paid interest at the rate of 10%, and therefore, they should be entitled for the same.
6. Mr.H.B. Singh, learned advocate appearing for the petitioners has urged that in case of Gujarat State Pensioners Federation Vs. State of Page 4 of 9 HC-NIC Page 4 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT Gujarat (Special Civil Application No. 8251 of 2015) some of the petitioners were not before this Court and they when approached this Court seeking the benefit of Higher scale as well as amount of interest at the rate of 10% per annum, it had been resisted by the State and the Court after due adjudication favoured the petitioners. Mr.H.B. Singh, learned advocate appearing for the petitioners has further added that same has been confirmed by the LPA Bench.
7. Learned AGP Mr.Rashesh Rindani has fairly submitted that the present petition will be covered by the order passed in Special Civil Application No. 8251 of 2015.
8. After hearing both the sides, as the limited prayer as far as awarding of interest, the findings and observations of this Court's case Gujarat State Pensioners Federation Vs. State of Gujarat would be relevant and require profitable reproduction here:
"18. When interest is awarded by the Court, our normal feeling is that it is so awarded by way of penalty or punishment. But interest in all cases is not granted by way of penalty or punishment. In this regard, reference may be made to the decision of the Supreme Court in the case of Alok Shanker Pandey Vs. Union of India, 2007 AIR (SC) 1198, wherein the concept of grant of interest has been explained in the following manner: It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say ten years ago, but Page 5 of 9 HC-NIC Page 5 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B ten years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal but also interest thereon to B.
19. The abovenoted decision of the Supreme Court makes it clear that the claim of interest on the delayed payment of retiral dues or any other dues, to which an employee is otherwise entitled to, flows from the fundamental rights guaranteed under the Constitution. The claim for interest cannot be held to be a stale claim as a right to claim interest. All delayed payments of the legitimate dues accrue due to the continuing wrong committed by the Staterespondent for withholding the payment of the employees of the retiral dues, causing continuous injury to the petitioners until such payment is made.
20. Apparently, therefore, the delay in payment of Higher Pay Scale earned by the retired teachers by the State is without any authority of law. It has been caused only due to their own conjectures and surmises and for non statutory alleged practice and bottleneck created thereby. This kind of practice perhaps is observed to harass poor retired employees. In the absence of any other valid reason shown by the learned counsel for the State, this Court is justified to infer as above. Such approach cannot be approved or condoned but deserves to be condemned in the strongest words.
21. A system controlled by the bureaucrats can create wrangles to device something which is formulated by the policy makers for the benefit of the citizen is writ large from this case. A beneficial scheme made for social welfare of the employees, can be twisted by the system creating a nightmare for the retired employees, as is quite evident. Something due today may not be available to a person right in time. It is like a person starving today is assured food to be provided after a month or two, by which time, he may die of hunger or the foodstuff itself may rot. If this is not unconstitutional then what else can be.
22. Withholding of pension and other retiral benefits including the legitimate dues under a particular scheme of the retired employees for years together is not only illegal and arbitrary but a sin, if not an offence, since no law has declared so. The officials, who are still in service and are instrumental in such delay, causing harassment to the retired employees, must however feel afraid of committing such a sin. It is morally and socially obnoxious. It is also against the concept of the social and economic justice which is one of the founding pillars of our Constitution.
Page 6 of 9
HC-NIC Page 6 of 9 Created On Tue Jan 19 01:35:02 IST 2016
C/SCA/780/2016 JUDGMENT
23. In our system, the Constitution is supreme, but the real power vest in the people of India. The Constitution has been enacted for the people, by the people and of the people. A public functionary cannot be permitted to act like a dictator causing harassment to a common man and in particular when the person subject to harassment is his own employee.
24. Regarding the harassment to a common man referring to the observations of Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 and Lord Devlin in Rooks v. Barnard and Ors., the Apex Court in Lucknow Development Authority v. M.K. Gupta, 1993 6 JT 307, held as under: An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law... A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it... Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but the injury to society is far more grievous. (para 10)
25. The above observatins as such have been reiterated in Ghaziabad Development Authorities v. Balbir Singh, (2004) 5 JT 17(SC).
26. The Respondents being State under Article 12 of the Constitution of India, its officers are public functionaries. As observed above, under our Constitution, sovereignty vest in the people. Every limb of the constitutional machinery therefore is obliged to be people oriented. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour. It is high time that this Court should remind the respondents that they are expected to perform in a more responsible and reasonable manner so as not to cause undue and avoidable harassment to the public at large and in particular their ex employees like the PetitionerS. The respondents have the support of entire machinery and various powers of the statute. An ordinary citizen or a common man is hardly equipped to match such might of State or its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing Page 7 of 9 HC-NIC Page 7 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT against it. It is on accountof, sometimes, lack of resources or unmatched status which give the feeling of helplessness. Nothing is more damaging than the feeling of helplessness. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match inaction in public oriented departments gets frustrated and it erodes the credibility in the system. This is unfortunate that matters which require immediate attention are being allowed to linger on and remain unattended. No authority can allow itself to act in a manner which is arbitrary. Public administration no doubt involves a vast amount of administrative discretion which shields action of administrative authority but where it is found that the exercise of power is capricious or other than bona fide, it is the duty of the Court to take effective steps and rise to the occasion otherwise the confidence of the common man would shake. It is the responsibility of the Court in such matters to immediately rescue such common man so that he may have the confidence that he is not helpless but a bigger authority is there to take care of him and to restrain arbitrary and arrogant, unlawful inaction or illegal exercise of power on the part of the public functionaries.(vide Abdul Kuddus Khan V. State of UP and Others, Civil Misc. Writ petition No.22315 of 2008, decided on 22nd February, 2011).
27. In a democratic system governed by rule of law, the Government does not mean a lax Government. The public servants hold their offices in trust and are expected to perform with due diligence particularly so that their action or inaction may not cause any undue hardship and harassment to a common man. Whenever it comes to the notice of this Court that the Government or its officials have acted with gross negligence and unmindful action causing harassment of a common and helpless man, this Court has never been a silent spectator but always reacted to bring the authorities to law.
28. In Registered Society v. Union of India and Ors., (1996) 6 SCC 530, the Apex Court said:
No public servant can say you may set aside an order on the ground of mala fide but you cannot hold me personally liable No public servant can arrogate in himself the power to act in a manner which is arbitrary.
29. In Shivsagar Tiwari v. Union of India, 1996 6 SCC 558, the Apex Court has held:
An arbitrary system indeed must always be corrupt one. There never was a man who thought he had no law but his own will who did dnot soon find that he had no end but his own profit.
30. IN Delhi Development Authority v. Skipper Construction and Anr., Page 8 of 9 HC-NIC Page 8 of 9 Created On Tue Jan 19 01:35:02 IST 2016 C/SCA/780/2016 JUDGMENT 1996 AIR (SC) 715, the Court held as follows:
A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless.
31. It could be argued that all the decisions referred to above are in connection with wrongful withholding of the retiral benefits like pension gratuity etc. and the grant of the higher pay scale may not strictly fall within the ambit of retiral benefits. Higher Pay Grads Scale is something which the employees earn during their service in accordance with the rules and policy framed by the State Government. There is an object behind such policy of grant of higher pay scale, after particular period of service.
Once an employee earns such benefit then it is expected they should be paid in terms of money. The benefit which accrued in the year 1995 came to be sanctioned only in the year 2014 and that to only with the intervention of the Court.
32. In my view nothing further is necessary to be adjudicated. The State Government is directed to make good the amount of interest at the rate of 10% per annum and shall give effect to its own Resolution dated 8th October 2014, (Annexure C to this petition) within a period of eight weeks from today."
9. Resultantly, present writ petition is allowed. The State Government is directed to make payment with interest at the rate of 10% per annum within a period of eight weeks from the date of receipt of a copy of this order.
(MS SONIA GOKANI, J.) ali Page 9 of 9 HC-NIC Page 9 of 9 Created On Tue Jan 19 01:35:02 IST 2016