Gujarat High Court
Bhurabha Narubha Jadeja vs State Of Gujarat on 21 September, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/13431/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8890 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13431 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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KISHOREBHAI BABUDAS PURANVERARI
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance in Special Civil Application No.8890 of 2018
MR SAMIR AFZAL KHAN(3733), ADVOCATE for the Petitioner(s) No. 1
MR CHINMAY M GANDHI, ADVOCATE for the Respondent(s) No. 2,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
Appearance in Special Civil Application No.13431 of 2018
MR SAMIR AFZAL KHAN(3733), ADVOCATE for the Petitioner(s) No. 1
MS PRABHA PRASAD, ADVOCATE FOR GUPTA LAW ASSOCIATES(9818)
for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 21/09/2020
COMMON ORAL JUDGMENT
1. The issues involved in both the petitions are similar. They are Page 1 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT heard together and are being disposed of by this common judgment. The facts, as is discernible from the record of both the writ petitions, are as under.
2. The controversy raised in the captioned petitions is of withholding of retiral dues of the petitioners viz. contributory provident fund, group savings link insurance, gratuity, etc. (hereinafter collectively referred to the 'retiral dues') on the ground that the petitioners after retirement are in illegal occupation of the residential quarters allotted to them during their service tenure. The petitioners in both the petitions have prayed for direction to quash and set aside the orders dated 30.4.2018 and 31.7.2018 respectively, passed by the respondent authorities whereby, as aforesaid, retiral dues have been withheld.
2.1 The petitioners were appointed in the year 1983 as pumpmen for operating the pump at Aji Industrial Area, GIDC, Rajkot and since then have been working as pumpmen. The petitioners were allotted quarters in the year 1987 and rent towards the said quarters was deducted from the salary of the petitioners. The petitioners are residing in the said quarters and have spent almost substantial part of their life residing in the said quarters.
2.2 It is the case of the petitioners that the Gujarat Industrial Development Corporation (hereinafter referred to as 'GIDC') had issued a notification dated 27.4.1998 for allocation of residential quarters, apropos which the petitioners have applied for the allocation on hire purchase system. Subsequently, GIDC issued another notification dated 18.10.2002, inter alia, resolving that all class-IV employees who are residing in the quarters shall be allotted such quarters as per the hire purchase system on the basis of the notification dated 27.4.1998.
2.3 Apropos the notification issued by GIDC, the petitioners submitted fresh applications for allotment of the quarters on hire Page 2 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT purchase system. The said applications were for allotting the quarters where the petitioners were residing. It is also the case of the petitioners that the petitioners fulfilled all the terms and conditions prescribed under the new notification dated 18.10.2002. The petitioners as per the requirement, have also paid an amount of Rs.2,000/- by way of demand draft. Since nothing was heard for 4 years, the petitioners made several representations to the concerned respondents; apropos which the section officer of Industries & Mines Department had addressed a letter to the Secretary, GIDC to consider the request of the petitioners for allotment of the quarters.
2.4 Thereafter, on 3.8.2008, the applications of the petitioners were processed on the office file. The Deputy Executive Engineer, GIDC considered the request of the petitioners and approved their applications. Similarly, respondent No.3 had also approved the applications together with the sketch, prepared of the quarters. Such allocation of quarters was approved by various authorities of GIDC vide entry nos.34, 35 and 36. All the formalities were over at the district level and General Manager of GIDC addressed a letter to respondent No.2 Managing Director, inter alia, requesting for necessary approval for allocation of the quarters. In the interregnum, the petitioners were transferred from Rajkot to Sanand which led to filing of the writ petition before this Court.
2.5 It is further stated that the petitioners contemplating eviction, filed writ petition being Special Civil Application No.1753 of 2016 and this Court, vide order dated 27.6.2018 partly allowed the writ petition with a direction to respondent No.2 to allow the petitioners to occupy the quarters which the petitioners were occupying by virtue of their service with GIDC and strictly in accordance with the terms and conditions of the allotment. By the said order, the petitioners were directed to file separate undertakings to GIDC, inter alia, stating that the petitioners Page 3 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT would not use in any way, the quarters for running any commercial activity. It has also been directed that the undertaking shall be given on oath to be submitted to the competent authority of GIDC within one week from the date of the order. Only upon filing of such undertaking, GIDC was directed to permit the petitioners to occupy the quarters on the terms and conditions of the allotment. This Court has also directed the competent authority of GIDC to take an appropriate formal decision of passing necessary orders approving the allotment of quarters to the petitioners at Rajkot.
2.6 So far as the petitioner of Special Civil Application No.8890 of 2018 is concerned, the General Manager (E&A), GIDC passed an order dated 30.4.2018, inter alia, stating that the order of payment of retiral dues of the petitioner would be processed after the quarter is vacated. Similarly, the order dated 31.7.2018 has been passed in the case of the petitioner of Special Civil Application No.13431 of 2018. Being aggrieved, the petitioners have filed the present petitions.
3. Reply filed by the GIDC in Special Civil Application No.8890 of 2018 states that GIDC is a statutory organisation and the quarters are also built for staff as well as the workers of the industrial estate. So far as the employees working with the regional office of GIDC are concerned, the quarters are allotted subject to availability and other terms and conditions in the concerned estate. That monthly rent is deducted from the salary till the employee occupies the quarter and if the employee is transferred to some other region or gets retired during the service, then the quarter is required to be vacated. The Regional Manager being a competent authority has to give a certificate that the quarter has been vacated. It is only thereafter that payment of retiral dues is made.
3.1 While adverting to the aspect of the allotment of the quarters, it Page 4 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT has been stated that GIDC had policy of allotting quarters to the employees on hire purchase system as per the conditions laid down in the respective circulars; however, such policy for allotting the quarter permanently to the employee through hire purchase system has been discontinued. It is averred in the reply that the quarters in question allotted at Aji Estate of GIDC are not the regular staff quarters, but are built in the public purpose area of the estate and the same are to be occupied by the employees posted in that estate. The water supply system is installed in the said estate which is required to be operated smoothly by the concerned employee who is posted for such purpose. These quarters are not in the residential area of the estate and once an employee is no longer working on that post, the quarters are compulsorily required to be vacated.
3.2 Further, it is stated that the petition is not maintainable on the ground that though the petitioner was obligated to vacate the quarter, he did not do it so and violated the policy of GIDC by undertaking a commercial activity in the quarter. Though several notices were issued to the petitioner requiring him to stop the commercial activity, the notices as well as reminders, have not been taken seriously by the petitioner and the petitioner has continued the usage of commercial activity in the said residential quarter.
3.3 This Court, vide order dated 27.6.2018 passed in Special Civil Application No.1753 of 2016, has categorically issued direction to the petitioner to submit an undertaking to GIDC, Rajkot within a period of one week, but the petitioner failed to do so and the undertaking dated 11.8.2018 was submitted only on 6.9.2018. The petitioner is not vacating and is residing illegally and is still occupying the quarter. Under the circumstances, the answering respondent had no option but to withhold the retiral dues of the petitioner at the time of his retirement. It is also stated that even after the retirement, the petitioner is in Page 5 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT possession of the quarter. The petitioner is required to compensate GIDC, for which a further action is in contemplation.
3.4 It is further stated that the attitude of the petitioner is absolutely contrary to the interest of GIDC. The petitioner who claims that he is entitled to purchase the quarter, but the quarter is a service quarter, i.e. for the purpose of rendition of the service to the entire estate. The petitioner who was working as pumpman, was required to operate the pump for supply of water to the industries in the entire estate. This quarter was never sold and therefore cannot be sold to the petitioner and therefore, the claim of the petitioner is absolutely illegal. At the time of retirement of the petitioner, the report was called for and it is only on the basis of such report, that the order dated 30.4.2018 has been passed with a condition that the order of payment of retiral dues of the petitioner viz. contributory provident fund, group savings link insurance, corporation's contribution, gratuity, etc. would be processed only after the quarter is vacated.
3.5 The petitioner was informed way back, i.e. in the year 2007 vide letter dated 22.10.2007 to the effect that the quarter which is demanded by the petitioner, is built for water supply services in the estate and hence cannot be allotted to the petitioner and one another on hire purchase system. Option was also given to the petitioner that if the petitioner wants the residential quarter, then it will be open to him to apply for the estate in Jamnagar, Junagadh or Chitra. The circular quoted by the petitioner cannot be applied for, the quarter in question is meant for public service.
4. An affidavit is also filed in Special Civil Application No.13431 of 2018, wherein the stand of GIDC is to the effect that in view of the terms of the circular dated 7.7.2015 of GIDC, an employee after his retirement is to give the possession of the quarter, within a period of two Page 6 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT months from the date of the retirement. The said circular further provides that in case an employee continues to occupy the quarter beyond the stipulated period, occupation would be considered as illegal. The petitioner, crossing the age of superannuation, retired on 31.7.2018.
4.1 While adverting to the proceedings being Special Civil Application No.1753 of 2016, it is stated that the petitioner in the said writ petition had challenged the communication dated 29.1.2016, contemplating his eviction from the quarter allotted to him. The petition was finally disposed of by this Court vide order dated 27.6.2018, wherein directions were given and are eloquent; which specifically state that the occupation of quarter shall be strictly in accordance with the terms and conditions of the allotment. An undertaking was to be submitted to the corporation indicating that the quarter would not be used for running commercial activity; such undertaking was to be given on oath within a period of one week from the date of the order and it is only thereafter that GIDC was directed to permit the petitioner the occupation of the quarter by imposing certain terms and conditions for allotment. As per the directions contained in the order dated 27.6.2018, the appropriate formal decision to pass necessary orders of approval of allotment of quarter to the petitioner was to be taken only on fulfilling the other directions issued to the petitioner. The office of GIDC received the undertaking only on 14.8.2018, which too was not in terms of the directions of this Court. On further examination of the issue, GIDC is of the opinion that the said quarter cannot be allotted to the petitioner as the same falls in the category of public purpose area.
4.2 Besides, the quarter though was required to be strictly used for residential purpose, it has been put to the use of commercial activity; which is clear from the report dated 18.9.2018 received from the Deputy Executive Engineer, Rajkot. Therefore, the communication dated Page 7 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT 25.9.2018 was issued by the Regional Manager, GIDC, Rajkot to the petitioner informing, firstly that though the petitioner and one another were required to file separate undertakings, the petitioner failed to file the same; secondly the undertaking on oath was supposed to be filed within a period of one week from the order dated 27.6.2018; however, the undertaking was filed almost after a month; thirdly as per the report dated 18.9.2018, it appears that the commercial activity is still going on and lastly, the quarter is reserved for the post of pumpman till his tenure of service and is not available for allocation. Since the petitioner has retired from the service of GIDC with effect from 31.7.2018, the petitioner is required to vacate the same.
5. The petitioners have filed their respective rejoinders to both the replies denying the contents thereof. It states that the respondent authorities have not properly understood the contents of the order dated 27.6.2018 inasmuch as, this Court has directed respondent No.2 to take appropriate formal decision to pass necessary orders of approval of allotment of quarters to the petitioners. However, Rajkot authority, GIDC has decided hurriedly. Till date, respondent No.2, i.e. Secretary, GIDC, Gandhinagar neither has taken any decision, nor communicated to any authority, much less the petitioners.
5.1 While adverting to the aspect of allocation of quarters, it has been stated that the stand taken by GIDC is totally misconceived inasmuch as, the quarters in question have been allotted by respondent No.3 way back in the year 2008 which is clear from the file notings viz. entry nos.34, 35, 36 and 37. It is denied that the quarters in question are in the public purpose area. In fact, GIDC had executed several sale deeds in favour of various individual employees. It is also pointed out that in the year 2008 itself, the officer of GIDC had approved the allocation of quarters and on the basis whereof, this Court has passed the order dated 27.6.2018; which has attained finality for, no appeal has Page 8 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT been filed by GIDC. It is stated that the decision was already taken by the respondent GIDC in the year 2008, which is clear from the notings on file vide entry nos.34, 35 and 36 and that nothing was left pending at the Rajkot office to decide.
5.2 As per the directions contained in the order dated 27.6.2018, respondent No.2 Executive Director, GIDC was to take a formal decision. The Executive Director, Gandhinagar though has not directed GIDC, Rajkot to decide the matter, GIDC, Rajkot, with an ulterior motive showing undue haste and without any authority of law, has taken a decision. The petitioners have also disclosed the reason as to why and under what circumstances, the petitioners could not file the correct undertaking within stipulated time. Further, it has been stated that the petitioners have discontinued the commercial activities which were carried out by the petitioners prior to 2015-16. Lastly, it is averred that the petitioners have no source of income and are hand to mouth considering the fact that the service rendered with GIDC are non- pensionable and all the savings and retirement dues are withheld by respondent No.3 GIDC, Rajkot for no reasons. Under the circumstances, it is urged that the present petitions be allowed and the replies filed by GIDC may not be considered.
6. Mr. Samir Afzal Khan, learned advocate for the petitioners has submitted that the petitioners were appointed as pumpmen and were working at Aji, Industrial Area, Rajkot. The petitioners were subsequently allotted the quarters in the year 1987 as rented quarters and the rent was being deducted from their salary. Since then, the petitioners are residing in the allotted quarters. It is submitted that apropos the policy formulated by GIDC, for allocation of quarters, the petitioners applied and accordingly, the officers at Rajkot had taken decision in the year 2008 allotting the quarters to the petitioners on certain terms and conditions.
Page 9 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021C/SCA/13431/2018 JUDGMENT 6.1 It is submitted that file notings dated 3.7.2008 and 4.7.2008 viz. entry nos.34, 35, 36 clearly suggest that there was a conscious decision by GIDC for allocating the quarters to the petitioners and thus, there was no reason to back out from the said decision. Since nothing was heard, the petitioners have made various representations, however, of no avail. The petitioners contemplating eviction, preferred a writ petition being Special Civil Application No.1753 of 2016 before this Court, inter alia, praying for setting aside the communication dated 29.1.2016. This Court, while taking note of the file notings, has observed viz. (i) that now the quarters have already been allotted to the petitioners; (ii) that the petitioners have occupied the same at Rajkot and that they are in service of GIDC at Rajkot; (iii) that the petitioners have stated on oath that they will not put their occupation of quarter on commercial use; and
(iv) that the petitioners have shown willingness to abide by all the terms and conditions. On the basis of the aforesaid observations, this Court has disposed of the petition by issuing directions to the respondent GIDC.
6.2 It is submitted that apropos the directions issued by this Court vide order dated 27.6.2018, the petitioners have also filed an undertakings, however, the said undertakings could not be filed within the stipulated period as directed. As extension of the aforesaid submission, it is contended that the petitioners in fact have stopped commercial activities way back in the year 2015-16 and thereafter the petitioners were not using the quarters for commercial purpose. The order was passed on 27.6.2018 immediately after one of the petitioners had retired and the reasons cited by the General Manager (E&A), GIDC is, since the petitioners have not vacated the quarters, the retirement benefits are required to be withheld as per the circular dated 7.7.2015; however, the circular dated 7.7.2015 does not empower the respondent authority to withhold the retirement benefits. Since the inception, i.e. for Page 10 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT the period of more than 28 years, the petitioners are residing in the quarters at Aji Vasahat GIDC.
6.3 It is also submitted that in all there were 75 employees and out of which 73 employees have already been allotted the quarters. So far as the petitioners are concerned, the formalities were already undertaken by the concerned officers of GIDC and the decision was taken in the year 2008 for allocating the quarters. After completing the formalities, the same were sent for approval of respondent No.2, however, respondent No.2 has not given its approval to the decision vide entry nos.34 to 36. This Court, after hearing the learned advocates for the respective parties, has issued the directions, as aforementioned, directing the petitioners to file an undertaking and GIDC to take a formal decision for allocating the quarters.
6.4 It is further submitted that the file notings viz. entry nos.34, 35 and 36 were placed before this Court and on the basis whereof, this Court has observed in para 2.1 to the effect that the decision to allocate the quarter which is approved by respondent Nos.3 and 4 authority, GIDC, Rajkot vide entry nos.34, 35, 36 and 37 and consequently issued directions. It is submitted that the issue of quarters has nothing to do with the retiral dues which the petitioners are even otherwise entitled to receive. The respondents could not have withheld the retiral dues inasmuch as, there are no rules which permit the respondent authority to withhold the retiral dues.
6.5 In support of such submission, reliance has been placed on various judgments. While referring to the judgment in the case of Gorakhpur University vs. Shitla Prasad Nagendra, reported in (2001) 6 SCC 591; it is submitted that the Apex Court has held that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their Page 11 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest.
6.6 Further, reliance has been placed on the judgment in the case of State of Jharkhand vs. Jitendra Kumar Srivastava, reported in 2013 (3) GLH 178. It is submitted that the Apex Court has in para 12 observed to the effect that right to receive pension was recognised as right to property by the Constitution Bench Judgment in the case of Deokinandan Prasad vs. State of Bihar [(1971) 2 SCC 33]. The Apex Court, while referring to the said judgment, has observed and held that right to receive pension was recognised as a right to property and the same cannot be taken away without the due process of law as per the provisions of the Constitution of India.
6.7 Further, reliance has been placed on the judgment in the case of State of Uttar Pradesh vs. Dhirendra Pal Singh, reported in (2017) 1 SCC 49. Reference has been made to para 9 to submit that the Apex Court has reiterated the well settled proposition of law that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on the retirement but are valuable rights in their hands, and any culpable delay in disbursement thereof must be visited with the penalty of payment of interest.
6.8 Reliance has also been placed on the judgment in the case of State of Kerala vs. M. Padmanabhan Nair, reported in (1985) 1 SCC
429. While referring to para 2 of the said judgment, it is submitted that the Apex Court has viewed the action of withholding pension seriously. It has been observed that the date of retirement of every government servant is very much known in advance and then why the process of collecting the requisite information and issuance of the documents should not be completed well in advance inasmuch as, pension and Page 12 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT gratuity are no longer matters of any bounty to be distributed by government. Further reliance has been placed on the judgment in the case of State of Bihar vs. Mohd Idris Ansari, reported in 1995 Supp (3) SCC 56. It is thus urged that the orders under challenge deserve to be quashed and set aside and appropriate directions may be issued to GIDC to make payment of all the retiral dues to the petitioners forthwith.
7. On the other hand, Mr. Chinmay Gandhi, learned advocate for respondent Nos.2 and 3 has submitted that GIDC is a statutory organisation and the quarters are built for staff as well as employees of industrial estate. So far as the employees working in the regional office are concerned, quarters are allotted subject to availability and other terms and conditions in the concerned estate. Monthly rent is also deducted from the salary till the employee occupies the quarter and if the employee is transferred to some other region or gets retired, then the quarter is required to be vacated and the Regional Manager being a competent authority has to give a certificate that the quarter has been vacated. It is only thereafter that the gratuity, leave encashment, etc. is paid.
7.1 GIDC had a policy of allotting quarters to the employees as per the conditions laid down in the respective circulars, however, the said policy for allotting the quarter permanently, has been discontinued. In the present case, the quarter in question allotted at Aji Estate of GIDC is not the regular staff quarter, but it is built in public purpose area of the estate, meant for the employees posted in that estate. It is next submitted that the water supply system is installed in the said estate which is required to be operated smoothly by the concerned employee who is posted for such purpose. Once an employee is no longer working on that post, the quarter is compulsorily required to be vacated. It is further submitted that the petitioner is entitled to purchase the quarter, however, the quarters are residential quarters; distinct and Page 13 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT different from the quarters in question considering the fact that the quarters are service quarters for operating the services for water supply system to the entire estate. The quarter in question was never sold and therefore, the same cannot be sold to the petitioner and therefore, the claim of the petitioner is absolutely illegal.
7.2 It is vehemently submitted that the petitioner was informed way back in the year 2007 vide letter dated 22.10.2007 to the effect that the quarter demanded by the petitioner is built for the water supply service in the estate and hence cannot be allotted to him under the hire purchase system. Option was also given to the petitioner that if the petitioner is desirous of having any residential quarter, then the petitioner may apply for the estate in Jamnagar, Junagadh or Chitra. The said letter dated 22.10.2007 has so far not been challenged by the petitioner. It is next submitted that even otherwise, considering the conduct of the petitioner, the petition is not maintainable for, the petitioner has not vacated the quarter in spite of the several communications.
7.3 It is further contended that no commercial activity was permissible in the quarters allotted to the employees. Despite, the petitioner continued with the commercial activity for which notices and reminders were issued, but unfortunately, the petitioner has not taken the same seriously and continued with the commercial activity in the quarter. Apparently, the petitioner has openly violated the instructions and policy of GIDC which aspect has also been recorded in the order dated 27.6.2018 passed by this Court in Special Civil Application No.1753 of 2016.
7.4 While adverting to the aspect of the directions contained in the order dated 27.6.2018, it is submitted that the petitioner was required to file an undertaking within a period of one week, however, the same was Page 14 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT submitted on 6.9.2018. The petitioner is not vacating the quarters and therefore, GIDC left with no option had to withhold the retiral dues of the petitioner at the time of his retirement. While referring to the documents viz. rojkam, panchnama, report of the Regional Manager, GIDC, so also the photographs annexed along with the additional affidavit, it is submitted that the petitioner had continued with commercial activity. In view of continuation of the commercial activity de hors the policy, it disentitles the petitioner for any relief/s.
7.5 Mr. Gandhi, learned advocate submitted that so far as the reliance placed by the petitioner on entry nos.34 to 37 is concerned, the same was an internal decision of GIDC which unless communicated, will not create any right in favour of the petitioner to lodge any claim for the purpose of allotment of quarter. In support of such contention, reliance has been placed on the judgment in the case of Pipri Chinchwad New Township Development Authority vs. Vishnudev Cooperative Housing Society, reported in (2018) 8 SCC 215. While referring to Head Note B, it is submitted that the Apex Court has categorically held that notings in official files of government is essentially an internal matter of government and carries with it no legal sanctity. It has been further observed that once the decision is taken and approved by the competent authority, the same is required to be communicated. So long as the decision is based on such internal deliberation; not approved and communicated by the competent authority as per the prescribed procedure to the person concerned, such notings do not create any right nor it partake the nature of any legal order so as to enable the person concerned to claim any benefit of any such internal deliberation. Therefore, entry nos.34 to 36, merely being a file notings and having not been communicated to the petitioner, do not confer any right in favour of the petitioner so as to claim the allotment of the quarter in his favour. It is, thus, urged that the petition is devoid of any merits and the order dated 30.4.2018 Page 15 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT withholding the retiral dues of the petitioner does not deserve to be interfered with.
8. Ms. Prabha Prasad, learned advocate for respondent Nos.2 and 3 in Special Civil Application No.13431 of 2018, has vehemently opposed entertainment of the present petition on the ground that the order dated 31.7.2018 passed by respondent No.3 is in the right earnest inasmuch as, even after the retirement, the petitioner has occupied the quarter which otherwise is meant for water supply in the said estate. While referring to the affidavit, it is submitted that as per the circular dated 7.7.2015 of GIDC, an employee, after his retirement, is obligated to hand over the possession of the quarter which he occupies, within a period of two months from the date of the retirement. It also provides that in case, an employee continues to occupy the quarter beyond his retirement, such occupation would be considered as illegal and would be subject to penal rent to be paid by the employee concerned.
8.1 It is further submitted that at one point of time, owing to the administrative exigency, the petitioner was transferred to Sanand as per the policy, pursuant to which the petitioner was required to vacate the quarter within six months, however, the same was not vacated which led to issuance of the notice in that regard. The said notice came to be challenged by the petitioner by filing writ petition being Special Civil Application No.13716 of 2015 which came to be disposed of by this Court vide order dated 25.8.2015. This Court, while not entertaining the petition, was kind enough to direct the petitioner to approach the concerned respondent for the purpose of allotment of quarter with a further direction to the respondent authority to decide the same in accordance with law. Accordingly, the petitioner made a representation and GIDC, vide letter dated 5.12.2015, rejected the representation of the petitioner, inter alia, informing that the quarter cannot be allotted to Page 16 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT the petitioner in view of the fact that the quarters are meant for water supply and are situated in the public purpose area of GIDC.
8.2 It is further submitted that thereafter, the petitioner and one another filed a writ petition being Special Civil Application No.1753 of 2016 before this Court contemplating their eviction from the quarters allotted to them. The said writ petition was finally disposed of by this Court vide order dated 27.6.2018, wherein specific directions were issued to the effect that the occupation of quarters shall be strictly in accordance with the terms and conditions of the allotment coupled with the direction of furnishing undertaking to GIDC, inter alia, declaring that the quarters would not be used for running commercial activity. In spite of the directions issued by this Court to file an undertaking within one week from the date of the order dated 27.6.2018, the same was received by the office of GIDC on 14.8.2018, which too was not in terms of the directions of this Court. The matter was deliberated and examined and it was found that the said quarter cannot be allotted to the petitioners as the same falls in the category of public purpose area. Besides, the quarter though was not supposed to be used for the commercial activity, the petitioner continued to carry on the activity. On the basis of the report dated 18.9.2018 received from the Deputy Executive Engineer, Rajkot, it was found that the quarter was being used for commercial activity by the petitioner and accordingly, GIDC addressed a letter dated 25.9.2018, inter alia, observing that the quarters are reserved for post of pumpmen till their tenure of service and were not available for allocation inasmuch as, the petitioner has retired from the service of GIDC on 31.7.2018.
8.3 It is next submitted that recently on 19.8.2020, GIDC has issued a notice to the petitioner under provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972, requiring the petitioner to hand over the possession of the quarter, however, till date, the Page 17 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT petitioner has not vacated the same. Considering the conduct of the petitioner, the present petition may not be entertained and the order dated 31.7.2018 passed by respondent No.2 General Manager requires no interference.
8.4 In support of her submissions, reliance has been placed on the order of the Apex Court in the case of Wazir Chand vs. Union of India and others, reported in (2001) 6 SCC 596. It is submitted that the Apex Court, while not entertaining the appeal filed by the employee concerned, has observed that the appellant therein even after superannuation continued to occupy the government quarter though being placed under hard circumstances and held that the appellant having unauthorisedly occupied the government quarter was liable to pay the penal rent in accordance with rules and that there is no illegality in those dues being adjusted against the death-cum-retirement dues of the appellant.
8.5 Further reliance has been placed on the order of the Apex Court in the case of Union of India and others vs. Shiv Charan, reported in 1991 Supp (2) SCC 386 to contend that the Apex Court has allowed the rent for the period overstayed to be deducted on handing over the possession. Hence, it is submitted that in the present case, the petitioner being in illegal occupation of the quarter, it would be very much permissible to GIDC to adjust the dues towards market rent from the retirement benefits being paid to the petitioner.
9. Heard the learned advocates for the respective parties at length and have considered the material available on record.
10. Though plethora of submissions are made by learned advocates for the respective parties, covering the aspect of allocation of quarters, the controversy in the present case lies in a very narrow compass, i.e. Page 18 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT as to whether GIDC could have withheld the benefits viz. contributory provident fund, group savings link insurance, corporation's contribution, gratuity, etc. only on the ground that the petitioners have not vacated the quarters, immediately upon retirement.
11. Pertinently, the petitioners have occupied the quarters during their service tenure. In the year 2002, the petitioners requested for allotment of the said quarters in tune with the notification of GIDC as per the hire purchase system. In the year 2008, GIDC took a decision on file vide entry nos.34 to 36, wherein it has been opined that the decision may be taken at the highest level, allotting the quarters to the petitioners. Apropos the said decision, a letter, i.e. entry no.37 was addressed by the General Manager to respondent No.2 seeking necessary approval for allocation of quarters. In the intervening period, owing to administrative exigency, the petitioners were transferred at some other place, which led to the filing of the writ petition before this Court, unsuccessfully. Thereafter in the year 2016, the petitioners contemplating eviction from the quarters allocated to them, preferred a writ petition being Special Civil Application No.1753 of 2016 before this Court. This Court, vide order dated 27.6.2018, partly allowed the writ petition. Paragraphs relevant for the present purpose read thus:
"2.1 What is prayed is to set aside decision reflected in communication dated 29th January, 2016 and it is secondly prayed to direct respondent No.2 to allocate the quarter which is approved by respondent Nos.3 and 4 authorities - GIDC, Rajkot by Entry Nos.34, 35, 36 and 37 in their register, of which the petitioners have been already given possession and have been occupying.
3.1 Pleadings are filed in form of reply and rejoinder affidavits. What is discernible from the stand of respondent - Gujarat Industrial Development Corporation is that the petitioners are not given approval for allotment of quarter on the ground that at one point of time in the past, quarters were put to commercial use though the petitioners required to use and occupy the same strictly for residential purpose only during their service tenure with GIDC.
5. It thus appears that the bone of contention between the parties is the aforesaid aspect namely that the petitioners were found to be using the quarter for commercial use at a particular point of time in Page 19 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT past. Now that the quarters have already been alloted to the petitioners and petitioners have occupied the same at Rajkot and that they are in service of GIDC at Rajkot and that they have stated on oath that they will not put their occupation of quarters for commercial use, and that the petitioners have shown willingness to abide by the terms and conditions of the allotment. It will be in the interest of justice to dispose of the petition by issuing following directions.
(i) The petitioners may occupy the quarters which they are occupying by virtue of their service under the Gujarat Industrial Development Corporation which shall be strictly in accordance with the terms and conditions of the allotment;
(ii) Both the petitioners shall individually furnish a separate undertaking to be furnished to the Gujarat Industrial Development Corporation that they would not use in any way the quarters for running any commercial activity;
(iii) Such undertaking shall be given on oath to be submitted to the competent authority of Gujarat Industrial Development Corporation within one week from today;
(iv) If such undertaking is given, then only the Corporation may permit the petitioners to occupy the allotted quarters on the terms and conditions of allotment;
(v) If the undertaking, as above, is given to the Corporation, the competent authority of the Corporation - respondent No.2 herein shall take an appropriate formal decision to pass necessary order of approval of allotment of quarters to the petitioners at Rajkot."
12. Clearly, this Court has recorded the fact that 'the petitioners are not given approval for allotment of quarters on the ground that at one point of time in past, quarters were put to the commercial use though the petitioners required to use and occupy the same strictly for residential purpose only during their service tenure with GIDC'. This Court has further observed that 'the bone of contention between the parties is the aforesaid aspect namely that the petitioners were found to be using the quarters for commercial use at a particular point of time in past. Now that the quarters have already been allotted to the petitioners and the petitioners have occupied the same at Rajkot and that they are in service of GIDC at Rajkot and that they have stated on oath that they will not put their occupation of quarters for commercial use, and that the petitioners have shown willingness to abide by the terms and conditions Page 20 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT of the allotment'. With these observations and directions, the petition came to be allowed by this Court. Further, it is undisputed that GIDC has accepted the said order dated 27.6.2018 and no appeal has been filed before higher forum and therefore, the said order has attained finality.
13. One more aspect is required to be noted, pertinently, the petitioner of Special Civil Application No.8890 of 2018 retired from service on 30.4.2018, however, the said fact, for the reasons best known to the parties, was not brought to the notice of this Court. Similarly, the petitioner of Special Civil Application No.13431 of 2018 was about to retire on 31.7.2018, i.e. hardly within a period of 1 month and 4 days. It is difficult to fathom as to why did GIDC accept the directions contained in the order dated 27.6.2018, inter alia, of taking formal decision when one of the petitioners had already retired and the other soon to retire. It ought not to have accepted the direction on the ground that the quarters are situated in PP area and cannot be allotted as the petitioner has retired and soon to retire from service, which stand has been taken in the order dated 25.8.2018 passed; barely after two months of the order dated 27.6.2018. One more aspect is required to be considered that as per one of the directions contained in the order dated 27.6.2018, the petitioners were supposed to file an undertaking within one week from the date of the order. However, owing to certain difficulties faced by the petitioners, the undertaking could be filed only on 11.8.2018 which was received by the office of GIDC on 6.9.2018. However, GIDC on one hand accepted the order dated 27.6.2018 and on other hand, upon receipt of the undertaking of the petitioner, it unilaterally undertook an exercise, investigating into the aspect as to whether the petitioners have discontinued the commercial activity or not, in the quarters in question. A report dated 18.9.2018 was prepared, copy whereof, undisputedly, has not been served upon the petitioners and as a result whereof, two orders, both dated 25.9.2018 came to be Page 21 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT passed by GIDC, observing thus:
"With respect of above mentioned subject, it is to draw to your kind attention, that after due consideration and carefully examining the undertaking under reference, it is to be noted that as per the direction no (ii) of the order dated 27/06/2018 of the Hon'ble High Court, you were required to file a separate undertaking, but you failed to comply with the same. Also as per direction no. (iii) of the said order you were required to file such undertaking on oath within one week from the order dated 27/06/2018, which also had not been complied by you. You submitted the said undertaking almost after a month.
Also, in point no.(1) of the undertaking filed by you, the Special Civil Application number mentioned is incorrect and in point no.(2) you had mentioned that the Hon'ble Court put up the condition to file an undertaking stating not to use the said premises for commercial use. But as per the Deputy Executive Engineer, Rajkot's report dated 18/09/2018, it seems that the commercial activity is still going on. It is to be noted that the disputed quarters are reserved for the post of pump man till their tenure of service and is not available for allocation, and as you have retired from the service of the Corporation on 30/04/2018 you are required to vacate the same. Therefore, on the points mentioned above your request cannot be entertained."
14. GIDC has stated that the undertakings have not been filed by the petitioners in tune with the directions issued by the High Court in its order dated 27.6.2018 and further that the commercial activities are still going on. It has also been stated that the quarters are reserved for the post of pumpman till their service tenure and is not available for allocation as the petitioners have retired from service of the corporation on 30.4.2018 and 31.7.2018, respectively. It is only by virtue of two communications, both dated 25.9.2018, GIDC required the petitioners to vacate the quarters. Be that as it may.
15. Pertinently, the petitioner of Special Civil Application No.8890 of 2018 retired on 30.4.2018 and the petitioner of Special Civil Application No.13431 of 2018 retired on 31.7.2018 crossing the age of superannuation. Apropos the retirement of the petitioners, reports were called for. Consequent thereupon, the orders were passed on a condition that the payment of retiral dues of the petitioners would be processed only after the quarters are vacated. The sole reason Page 22 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT assigned by GIDC while passing orders, withholding the retiral dues, is, occupation of the quarters by the petitioners after the retirement against the policy dated 7.7.2015. Clearly, the orders dated 30.4.2018 as well as 31.7.2018 passed by GIDC are on the date on which the petitioners retired, i.e. on 30.4.2018 and 31.7.2018. Therefore, as on the date of the retirement, there could not have been any outstanding dues which GIDC could have recovered from the petitioners towards penal rent.
16. The question which arises for the consideration of this Court, is as to whether there is any policy making it permissible to GIDC to withhold the retiral dues of the petitioners, even whilst assuming that there were outstanding dues payable by the petitioners to GIDC. It is required to be noted that in the affidavits filed by the respondent GIDC, there is not a whisper about any Rules or policy empowering GIDC to withhold the retiral dues. Therefore, learned advocates representing GIDC were confronted with a query as to whether there is any policy of GIDC making it permissible to it to withhold the retiral dues, to which learned advocates Mr.Gandhi as well as Ms.Prasad, fairly conceded that there are no such Rules or policy permitting GIDC to withhold the retiral dues. Therefore, to deal with this issue, the judgments cited by learned advocate for the petitioners are worth referring to.
17. The celebrated exposition of law propounded by the Apex Court is very much apt and applies on all fours to the facts of the present case. The Apex Court in the case of Gorakhpur University vs. Shitla Prasad Nagendra (supra), has held that where no notice or opportunity was given before determining and fixing liability for the penal rent, the employer concerned cannot be held to be entitled to recover by way of adjustment such disputed sum or claim against the pension, gratuity and provident fund amounts indisputably due and unquestionably payable to the employee concerned. In the case before the Apex Court, the respondent was working as a Vice-Chancellor and was Page 23 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT allotted an accommodation and after retirement, continued to hold, without vacating the same. The respondent retained the university accommodation beyond the stipulated period and the university did not settle the claim of the terminal benefits of the respondent including the fixation and disbursement of the pension on the ground that the respondent having not vacated the quarter was liable for payment of penal rent. The appeal filed by the university came to be rejected by the Apex Court, observing in para 5 thus:
"5. We have carefully considered the submissions on behalf of the respective parties before us. The earlier decision pertaining to this very university reported in 1996 (2) ESC 211 (All.) (supra) is that of a Division Bench rendered after considering the principles laid down and also placing reliance upon the decisions of this Court reported in 1994 (6) SCC 589 (supra) which, in turn, relied upon earlier decisions in Sate of Kerala vs. M. Padmanabhan Nair [1985 (1) SCC 429] and AIR 1981 SC page 212 (Supra). This court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. Withholding of quarters allotted, while in service, even after retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. Such is the position with reference to amounts due towards Provident Fund, which is rendered immune from attachment and deduction or adjustment as against any other dues from the employee. In the context of this, mere reliance on behalf of the appellant upon yet another decision of a different Division Bench of the very High Court rendered without taking note of any of the earlier decisions of this court but merely proceeding to decide the issue upon equitable considerations of balancing conflicting claims of respective parties before it does not improve the case of the appellant any further. Reliance placed for the appellant university on the decision reported in JT 2000 Suppl. (1) SC 515 (Supra) does not also sound well on the facts and circumstances of this case. It is not clear from the facts relating to the said decision as to whether the person concerned was allowed to remain in occupation on receipt of the normal rent as in the present case. As noticed earlier, the case of the contesting respondent in this case is that the university authorities regularly accepted the rent at normal rates every month from the petitioner till the quarters was vacated and that in spite of request made for the allotment of the said quarters in favour of the son of the respondent, who is in the service of the university, no decision seems to have been taken and communicated though it is now claimed in the Court proceedings that he is not entitled to this type of accommodation. Further, the facts disclosed such as the resolutions of the university resolving to waive penal rent from all Teachers as well as that of the Page 24 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT Executive Council dated 18.7.1994 and the actual such waiver made in the case of several others cannot be easily ignored. The lethargy shown by the authorities in not taking any action according to law to enforce their right to recover possession of the quarters from the respondent or fix liability or determine the so-called penal rent after giving prior show-cause notice or any opportunity to him before ever even proceeding to recover the same from the respondent renders the claim for penal rent not only a seriously disputed or contested claim but the university cannot be allowed to recover summarily the alleged dues according to its whims in a vindictive manner by adopting different and discriminatory standards. The facts disclosed also show that it is almost one year after the vacation of the quarter and that too on the basis of certain subsequent orders increasing the rates of penal rent, the applicability of which to the respondent itself was again seriously disputed and to some extent justifiably too, the appellant cannot be held to be entitled to recover by way of adjustment such disputed sums or claims against the pension, gratuity and provident fund amounts indisputably due and unquestionably payable to the respondent before us. The claims of the university cannot be said to be in respect of an admitted or conceded claim or sum due. Therefore, we are of the view that no infirmity or illegality could be said to be vitiated the order, under challenge in this appeal, to call for our interference, apart from the further reason that the disbursements have already been said to have been made in this case as per the decision of the High Court."
18. The Apex Court has held that pension and gratuity are no longer matters of any bounty to be distributed by Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest. The Apex Court has also held that withholding of quarters allotted, while in service, even after retirement without vacating the same has been viewed to be not a valid ground to withhold the disbursement of the terminal benefits. The Apex Court has further observed that the lethargy shown by the authorities in not taking any action according to law to enforce their right to recover possession of the quarters from the respondent or fix liability or determine the so-called penal rent after giving prior show-cause notice or any opportunity to him before ever even proceeding to recover the same from the respondent renders the claim for penal rent not only a seriously disputed or contested claim but the employer cannot be allowed to recover summarily, the alleged dues Page 25 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT according to its whims in a vindictive manner by adopting different and discriminatory standards.
19. In the present case, as is discernible from the record, that it is only on 25.9.2018, two orders came to be passed requiring the petitioners to vacate the quarters, inter alia, on the ground that the quarters are reserved for the post of pumpmen till their tenure of service and is not available for allocation, as the petitioners have retired from the service of GIDC. Undeniably, after 25.9.2018, no action has been taken by GIDC till recently, i.e. on 19.8.2020, when notices came to be issued by GIDC to the petitioners under the provisions of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Evidently, GIDC has not taken any action according to law to enforce its right to recover the possession of the quarters or determined the so- called penal rent, in absence whereof, it was and is not permissible to GIDC to recover summarily the alleged dues as per its whims and fancies, more particularly in view of well settled proposition of law that pension is hard earned benefits which accrues to an employee and is in the nature of property as per the provisions of Article 300A and the person concerned cannot be deprived of pension without the authority of law.
20. The judgment in the case of State of Jharkhand vs. Jitendra Kumar Srivastava (supra) is worth referring to. Before the Apex Court, the issue was as to whether in absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of the departmental / criminal proceedings. The Apex Court, while dealing with the concerned Rule 43(b) of the Bihar Pension Rules, has held that there is no provision for withholding the pension or gratuity in the given situation and that had there been any such provision in the Rules, the position would have been different.
Page 26 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021C/SCA/13431/2018 JUDGMENT The Apex Court referred to the judgment in the case of D.S. Nakara and others vs. Union of India, reported in (1983) 1 SCC 305, wherein it has been held that grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. The Apex Court has further observed that it is the hard earned benefit which accrues to an employee and is in the nature of 'property' as per the provisions of Article 300A of the Constitution of India and that a person cannot be deprived of pension without the authority of law. The relevant paras 7, 8, 14 and 15 read thus:
"7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:
"The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?
What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors. [1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend Page 27 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377SC".
8. It is thus hard earned benefit which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India.
14. Article 300A of the Constitution of India reads as under:
"300A Persons not to be deprived of property save by authority of law.
- No person shall be deprived of his property save by authority of law."
Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."
21. Adverting to the orders dated 30.4.2018 and 31.7.2018 under challenge, pertinently, both the orders have been passed on the premise that the dues are outstanding. It is further stated that only after recovery of the dues, followed by issuance of no due certificate, further followed by recovery of the outstanding dues, that the petitioners should be disbursed the amount of retiral dues. It has also been observed that the amount of retiral dues (the contribution of the corporation) should be paid only after the possession of the quarters is handed over and the possession receipt is produced. As is evident from the record, the petitioners have preferred Special Civil Application No.1753 of 2016 and this Court, vide order dated 3.2.2016, granted ad-interim relief in Page 28 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT terms of para 7(C) permitting the petitioners to continue to reside in the quarters. The said writ petition came to be disposed of by this Court vide order dated 27.6.2018 directing GIDC to consider the aspect of allocation of the quarters to the petitioners followed by passing of the orders both dated 25.9.2018. Therefore, till 25.9.2018, the issue as regards the possession of the quarters by the petitioners could not have been treated as unauthorised. Therefore, when the orders dated 30.4.2018 and 31.7.2018 were passed by GIDC, GIDC could not have treated any amount as outstanding on the part of the petitioners to be paid to GIDC. Quite apart, in absence of any policy of GIDC for withholding the retiral dues, the orders dated 30.4.2018 and 31.7.2018 could not have been passed by it insofar as the orders seek to recover undetermined dues.
22. In view of the principles enunciated by the Apex Court, the action of the respondent GIDC suffers from the vice of arbitrariness, without authority of law and therefore illegal. Resultantly, the orders dated 30.4.2018 and 31.7.2018 deserve to be quashed and set aside.
23. At this stage, the judgments cited by learned advocates for the respondents, deserve brief mention. So far as the orders passed by the Apex Court in the cases of Union of India vs. Shiv Charan (supra) and Wazir Chand vs. Union of India (supra) are concerned, both the orders are passed in the facts of the case prevalent therein and cannot be made applicable to the facts of the present case, more particularly when GIDC is unable to point out any policy permitting withholding of the reitral dues. So far as the judgment in the case of Pimpri Chinchwad New Township Development Authority vs. Vishnudev Cooperative Housing Society and others (supra) is concerned, this Court has not determined the effect of the decision taken on files inasmuch as, the controversy in the present case is limited to non-release of the retiral dues and thus, the said judgment would not be relevant to the issue Page 29 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT involved in the present case.
24. Adverting to the another limb of the controversy, viz. interest on the delayed payment of retiral dues, pertinently, in the present case, GIDC has not taken any action, according to law to enforce its right to recover possession of the quarters from the petitioner or determine the so-called penal rent. In absence of such an exercise undertaken by GIDC, it would be strictly impermissible to GIDC to recover the dues in such a summary manner by the aforesaid two orders dated 30.4.2018 and 31.7.2018 respectively. Except the notice dated 19.8.2020, that too issued recently during the pendency of the writ petitions, there is nothing on record to suggest that GIDC has taken any action for determining the dues or any proceeding in accordance with law to enforce its right to recover possession of the quarters. Under the circumstances and owing to delay on the part of GIDC to withhold the retiral dues, the same would definitely attract the liability of penal interest.
25. In this behalf, the judgments in the cases of State of Bihar vs. Mohd Idris Ansari (supra); State of Uttar Pradesh vs. Dhirendra Pal Singh (supra) as well as State of Kerala vs. M. Padmanabhan Nair (supra) are worth referring to. The Apex Court in the case of State of Kerala vs. M. Padmanabhan Nair, reported in (1985) 1 SCC 429, in para 2, has observed thus:
"2. Usually the delay occurs by reason of non-production of the L.P.C. (Last Pay Certificate) and the N.L.C. (No Liability Certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed atleast a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised Page 30 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement."
26. The Apex Court affirmed the grant of interest @ 6%. It is held that the State Government has rightly been saddled with a liability for the culpable neglect in the discharge of its duty by the District Treasury Officer who delayed the issuance of the LPC.
27. From the judgments cited hereinabove, the principles which emerge are firstly, pension and gratuity are no longer any bounty to be distributed by the Government to its employees on the retirement but are valuable rights in its hands, and any culpable delay in disbursement thereof must be visited with the penalty of payment of interest; secondly, it is the hard earned benefit which accrues to an employee and is in the nature of 'property' as per the provisions of Article 300A of the Constitution of India and which cannot be taken away without the due process of law; thirdly, withholding of quarters allotted to the government employee while in service, is not a valid ground to withhold the disbursement; and fourthly, the government cannot be allowed to recover summarily the alleged dues according to its whims in a vindictive manner by adopting different and discriminatory standards.
28. As is clear, there is nothing on record to suggest that GIDC undertook the said exercise of preparing the papers of retiral dues of the petitioners, however, on the contrary, on the date when the petitioners were relieved, GIDC had an audacity to pass the orders withholding the retiral dues without any authority of law. On top of this, GIDC passed two orders, both dated 25.9.2018, requiring the petitioners to vacate the quarters. However, since the orders both dated 25.9.2018 are not the subject matter of challenge in the captioned writ petition, this Court deems it fit not to comment upon the legality of the said two orders. Evidently, there is a delay and/or lethargy on the part of GIDC in not releasing the retiral dues to the petitioners in time, Page 31 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021 C/SCA/13431/2018 JUDGMENT which would definitely attract the penal interest to be paid to the petitioners.
29. In view of the aforesaid discussion, the orders dated 30.4.2018 and 31.7.2018 are hereby quashed and set aside and GIDC is directed to forthwith release the retiral dues to the petitioners within a period of six weeks from the date of the judgment together with interest @ 6% on the unpaid amount of retiral dues from the date it had fallen due.
30. Clearly, the petitioners have not been paid the retiral dues for no fault of theirs. Besides GIDC withheld the same without any authority of law compelling the petitioners to approach this Court seeking their legitimate claim. Accordingly, the petitions are allowed with costs of Rs.5,000/- each to be paid to the petitioners by GIDC within a period of six weeks from the date of the judgment. Rule is made absolute to the aforesaid extent.
Sd/-
(SANGEETA K. VISHEN, J) BHARAT/RAVI P. PATEL Page 32 of 32 Downloaded on : Sun Feb 14 10:39:17 IST 2021