Kiritkumar John Mahida vs Commissioner Of Higher Education & 2 on 23 February, 2016

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Gujarat High Court

Kiritkumar John Mahida vs Commissioner Of Higher Education & 2 on 23 February, 2016

Bench: J.B.Pardiwala

                     C/SCA/16347/2012                                                     ORDER




                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        SPECIAL CIVIL APPLICATION NO. 16347 of 2012

         ==========================================================
                        KIRITKUMAR JOHN MAHIDA....Petitioner(s)
                                      Versus
                COMMISSIONER OF HIGHER EDUCATION & 2....Respondent(s)
         ==========================================================
         Appearance:
         MR.SHASHIKANT PARMAR, ADVOCATE for the Petitioner(s) No. 1
         MR KM ANTANI, AGP for the Respondent(s) No. 1 - 2
         NOTICE SERVED BY DS for the Respondent(s) No. 3
         ==========================================================

             CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
          
                                            Date : 23/02/2016 
                                              ORAL ORDER

1. By this writapplication under Article226 of the Constitution of India, the petitioner, the father of the deceased employee has prayed for the following reliefs: "19(A)This Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to forthwith pay to the petitioner the gratuity of Rs.1,78,800/ with interest @ 9% from 20/04/2002 to 24/08/2004 and @ 6% effective 25/08/2004 to the last date of month previous to the month in which gratuity is actually paid.

(B) Pending admission, hearing and disposal of this petition this Hon'ble Court may be pleased to direct the respondents to calculate the total amount with interest that would be payable to the petitioner towards gratuity.

2. The facts of this case may be summarized as under: Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER 2.1 The daughter of the petitioner namely Varsha Kiritkumar Mahida had joined the respondent no.3College as a Lecturer in English w.e.f. 29.08.1995. While in service, she had submitted a Nomination Form for DeathcumRetirement Gratuity. She named the petitioner i.e. her father as a nominee to receive the amount of gratuity in the event of her death while in service. The nomination form was duly countersigned by the Principal of the College. On 20.01.2002, the daughter passed away while in service. The father requested the College for the benefits like gratuity, etc. 2.2 It appears that there was a long drawn communication for almost a period of 11 years between the College and the respondent no.1 so far as the grant of the benefits are concerned. Ultimately, in the year 2013, the gratuity to the tune of Rs.1,78,800/ was released in favour of the petitioner.

3. The dispute now remains regarding the interest for the delayed payment of gratuity. An affidavitinreply has been filed by the Administrative Officer serving in the office of the Commissioner, Higher Education Office, interalia stating as under: "7. The deponent further submits that the daughter of the petitioner was working as Lecturer with the M.B. Patel Science College and the daughter of the petitioner died on 20.01.2002.

8. The deponent further submit that the respondent no.3 College produced pension case to the petitioner by way of the communication dated 19.04.2003 for the Director of Pension Provident Fund, Gandhinagar. By communication dated 06.06.2003 the said case was return to the respondent no.3 authorities seeking information on Nomination, Income and Heirs. A copy of the communication dated 06.06.2003 is annexed hereto and marked as Annexure RI to this reply. Even office of the deponent also directed the respondent no.3 to comply with the queries raised by the Director Pension and Provident Fund office by way of communication dated 06.06.2003. The respondent no.3 college again forwarded the pension case papers to the Page 2 of 10 HC-NIC Page 2 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER respondent no.2 office vide letter dated 19.07.2003. The Pension and Provident Fund office again wrote to the respondent no.3 to provide necessary information by communication dated 23.09.2003. The office of the deponent also informed the respondent no.3 college to provide information by way of communication dated 26.09.2003 as well as 29.06.2004. The petitioner earlier asked for the pension as well as gratuity but subsequent to provide necessary information, the petitioner is only asking for the gratuity. The deponent submits that there are number of reminders send to the respondent no.3 college by way of communication dated 28.04.2005, 06.06.2005, 31.08.2005, 10.11.2005, 21.12.2005, 05.01.2006, 29.08.2006, 10.10.2006, 08.06.2007, 24.08.2007, 01.12.2007, 12.12.2007, 04.04.2008, 12.02.2009, 16.05.2011, 07.09.2011, 16.02.2012 and lastly 04.10.2012. Copies of the above mentioned communications are annexed hereto and marked as Annexure RII to this reply.

9. The deponent submits that as per the best knowledge to the deponent office the petitioner did not produced Income Certificate of the beneficiary. Even though the case of the petitioner was again forwarded to the Director of Pension and Provident Fund by way of communication dated 18.12.2012. Looking to the above mentioned facts and circumstances there is no delay on the part of the Government functionary but petitioner himself did not provide necessary information which was required as per the Rules and Regulation for releasing the amount of gratuity.

10. The deponent submits that the petitioner did not produce nomination for gratuity for pension case papers. The said had been produced by the petitioner subsequently does not bear stamp and signature of the respondent no.3 college. Thus only on the part of the lethargic approach of the petitioner the case of the petitioner was frequently refused and rejected by the office of the Pension and Provident Fund office.

11. The deponent submits that it was clarified by the respondent no.3 college wide letter 13.06.2011 that the petitioner himself a central government pensioner hence not eligible for another pension even on the names of his deponent wife and the claim was restricted to gratuity only. By the same letter the required consent from other heirs of Ms V.K. Mahida was received and gratuity was approved in 17.01.2013."

4. A rejoinder to the aforesaid rely is also on record interalia stating as under:

4. The respondent no.1 has stated in para 11 that when the Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER petitioner gave up his right for pension, the gratuity became payable. In this regard, I state that the petitioner had waived his right for family pension as far back as in 2005. By letter dated 21092005 [Annexure E to the petition] the respondent No.3 College had forwarded to the respondent No.1 Commissioner of Higher Education letter of the petitioner stating that he does not claim pension. By the said letter the College had also forwarded to the Commissioner two copies of the Nomination Form. This should have been the end of the matter. In view of this the petitioner would be entitled to the interest on gratuity at lease with effect from the date of 01102005 if not earlier. However, the authorities have acted in a typical bureaucratic manner to delay the matter and then to find fault with the petitioner for the delay.

5. The respondent No.1 Commissioner has tried to create confusion by mixing the gratuity and family pension. I state that family pension and gratuity are two different things. Even if the petitioner had not given up his right for family pension the authorities could have declined the pension and pay the gratuity. As a person who did not know as to what he was entitled to the petitioner may have asked five different things. Bu that could not have tied up the hands of the respondent authorities to at least pay the amount of gratuity to which the petitioner was entitled to. Giving up other claims could never have been a condition precedent to grant of gratuity.

6. I have stated and made averments in the petition more particularly in para6 that the petitioner moved the college and government authorities to ascertain and claim the legal dues that became payable to him on account of death of his daughter Varsha. Initially he approached the College authorities where Varsha was employed for processing the necessary papers for the payment of admissible dues on account her death. The petitioner provided all necessary information and certificates etc. Since the matter was being delayed the petitioner had addressed a letter dated 14/05/2002 [Annexure C to the petition] to the Director of higher Education, Gandhinagar.

7. In view of the facts mentioned in this affidavitinrejoinder, nothing was left to be done by the petitioner in the manner. The delay on part of the deponent is sought to be thrust on the petitioner. Being 'State' the authorities were expected to act fairly in the matter and hence, if anything was to be done by the petitioner the authorities could have called upon the petitioner to comply with any formality. If necessary, the authorities could have asked the petitioner to remain present in the office of the concerned authority to comply with the requirements. This was the least expected of the authorities since, as mentioned in paragraph 16[A], gratuity is not a bounty to be Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER distributed by the Government but a valuable right acquired by a citizen."

5. On one count or the other, the amount towards the gratuity was not paid for a period of almost 11 years. There is no satisfactory explanation coming forward at the end of the respondent no.1. Although to a larger extent, the respondent no.3 i.e. College is responsible for the delay, yet, it has not even thought fit to appear before the Court and make its stance clear. Whatever communications have been referred to in the reply filed by the respondent no.1, the same are between the College and the respondent no.1.

6. I am of the view that the petitioner is entitled to the relief of the interest prayed for by him i.e. interest at the rate of 9% from 20.04.2002 to 24.08.2004 and at the rate of 6% from 25.08.2004 till the date of release of the requisite amount.

7. The issue raised in this writapplication is squarely covered by the judgment and order of this Court dated 6th August, 2015 in the case of 'Jashvantkumar Jayantilal Sanghavi Vs. State of Gujarat & Ors.' in Special Civil Application No.4861 of 2014, wherein this Court observed as under:

11. I may also quote with profit a decision of the Supreme Court in the case of S.K. Dua V. State of Haryana and another, AIR 2008 SC 1007. The observations of the Supreme Court in para no. 11 are as under: The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be wellfounded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14 , 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature ofbounty is, in our opinion, wellfounded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.

12. Here, there is no statutory rule occupying the field for payment of any interest relying on which, the members of the Federation can claim the benefit of interest on the delayed payment of their retiral dues. The Supreme Court in the case of S.K. Dua (supra) held that in the absence of statutory rule, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution, relying on Articles 14 , 19 and 21 of the Constitution. Following the said decision of the Supreme Court, this Court has no hesitation to hold that the claim of interest on the delayed payment of retiral dues is the fundamental right of the petitioners which they can enforce in the writ jurisdiction of this Court.

13. When interest is awarded by the Court, our normal feeling is that it is so awarded by way of penalty or punishment. But interest in all cases is not granted by way of penalty or punishment. In this regard, reference may be made to the decision of the Supreme Court in the case of Alok Shanker Pandey Vs. Union of India, 2007 AIR (SC) 1198, wherein the concept of grant of interest has been explained in the following manner: It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say ten years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B ten years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence equity demands that A should not only pay back the principal but also interest thereon to B.

14. 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 Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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: Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER 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)

20. The above observations as such have been reiterated in Ghaziabad Development Authorities v. Balbir Singh, (2004) 5 JT 17(SC).

21. 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 exemployees like the petitioners. The respondents have the support of entire machinery and various powers of the statute. An ordinary citizen or a common man is hardly equipped to match such might of State or its instrumentalities. Harassment of a common man by public authorities is socially abhorring and legally impressible. This may harm the common man personally but the injury to society is far more grievous. Crime and corruption, thrive and prosper in society due to lack of public resistance. An ordinary citizen instead of complaining and fighting mostly succumbs to the pressure of undesirable functioning in offices instead of standing against it. It is on account of, 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 Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER 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).

22. 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.

23. 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.

24. 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 not soon find that he had no end but his own profit.

25. In Delhi Development Authority v. Skipper Construction and Anr., 1996 AIR (SC) 715, the Court held as follows:

A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not mean to enable the guilty to delay and defeat the just retribution. The wheel of justice may appear to grind slowly but it is duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless."

8. The authorities concerned are directed to calculate the amount towards the interest and disburse the same within a period of eight Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Feb 28 05:47:58 IST 2016 C/SCA/16347/2012 ORDER weeks from the date of the receipt of the writ of the order. As observed by me, it is the College which is responsible for the inordinate delay. It shall be open for the Government to take up this issue with the College.

It will be open for the Government to recover the requisite amount from the grant of the College.

9. With the above, this petition is disposed of. Direct service is permitted.

(J.B.PARDIWALA, J.) aruna Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Feb 28 05:47:58 IST 2016

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