Abdul Majid Fazili vs State of J & K

The petitioner has served the Judicial Department in different capacities and superannuated on 30/09/1990 An. The respondents 2and3 did not

release his gratuity, therefore the petitioner filed a writ petition bearing No. SWP 939/91 before the court, pie respondents took 3 stand that the

petitioner had drawn a sum of Rs 30,000/ and Rs.9,410/ as car advance, which was outstanding against him. This stand of the respondents was

disputed by the petitioner in the first instance low ever, subsequently, he admitted drawl of Rs. 30,000/, but not of Rs. 9,440/. The petition came to

be finally disposed of by order dated 28/10/1994 and the operative part of the judgment is reproduced hereunder.

.....I have heard the petitioner and also Mr. Bhan, appearing for the respondents 2 to 5. I find it proper to dispose of this petition at this stage with

a direction that the Registrar of the High Court will within a period of two weeks from today after ascertaining the factual position communicate to

the Accountant General, as to whether or not an amount of Rs. 9,440/ was drawn as car advance by the petitioner. In case the Registrar finds that

no such advance was drawn, the respondents shall release the same within two weeks after receiving the communication from the Registrar, This

will not prejudice the claim of the petitioner for interest, if he chooses to make."" So/

Hon'ble Mir J.

In compliance to the order or the court, the Registrar of the High Court examined the matter and addressed % communication to the

respondent No.2, vide No. 15997/IIC dated OB/ 03/1995, which is reproduced hereunder:

,.,..Pursuant to the court order dated 28/10/ 1994, alleged drawl of Rs.9,440/ as car Advance by Mr. A.M Fazili during his tenure as Sub Judge,

Baramulta could not be traced despite enquiries from the available records. It appears primafacie that no such advance has been drawn, by way of

caution, security of refund of the amount alleged to be withdrawn as car advance has been obtained from the officer. On consideration it is

therefore requested to kindly release the amount referred to in the Hon'ble High Court order dated 28/10/1994, out of gratuity and the Treasury

Officer concerned be authorised to make the payment to the retiree. The undertaking has been obtaining from the retiree only to safeguard the

fiscal interests of the State, in case the drawl of the car advance of Rs.9,440/ is detected at any subsequent stage. The copy of the Hon'ble Courts

order dated 28/10/1994 in writ petition 939/91 entitled Abdul Majid Fazili Vs. State of J and K and others is enclosed for early compliance and

follow up at your end. The officer is free to take up the question of recovery of interest before the authorities or/and in appropriate proceedings.

Sd/

REGISTRAR.

In consequence to the aforementioned communication, the respondents 2 and 3 released in amount of Rs. 9,440'' alongwith interest, besides a

sum of Rs. 11,124/ which amount was charged by the respondents on Rs. 9,440/ as interest under a mistaken belief that the amount was drawn by

the petitioner as car advance. It being so, a sum of Rs. 20,5 64/stands disbursed to the petitioner in the month of May, 95 and the parties are not

at issue on this count. The petitioner's case through this writ petition is that he has retired on 01/09/1990 and the amount of Rs. 20,564/ had

become payable to him on 01/10/1990, which was withheld by the respondents 2 and 3 till May, 95, because of their unjustified stand. It is also

contended that while disposing of the writ petition No. 939/91, the court has maintained petitioners right in respect of claim of interest by making

an observation which reads as under:

... This will not prejudice the claim of the petitioner for interest if he chooses to make.

Interalia, on this averment, the petitioner claims interest (a). 18% on the withheld amount of Rs. 20,564/ for the period commencing from

01/10/1990 till May, 95. It is also averred by the petitioner that despite demand made vide communication dated 09/03/1995 forming annexure

(c) to the writ petition, the respondents 2and3 did not release the interest in his favour, therefore, this writ petition.

LC for the respondents 2and3 contests the claim of interest advanced by the petitioner on the ground that the payment was withheld because of

petitioners incorrect stand taken in respect of an amount of Rs. 30,000/ which made petitioners entitlement doubtful in respect of advance of Rs.

9,440/. It is contended that after having been informed by the Registrar High Court that the amount was not drawn by the petitioner, the amount

was immediately released. 5. From the pleadings of the parties, it transpires that the dispute in respect of Rs. 20,564stands resolved by respective

stand of the parties through the medium of writ petition No. 9391 91 and the only controversy involved in this writ petition is 'the interest' claimed

by the petitioner on the withheld amount, which claim is contested by respondents 2and3 mainly because the petitioner had disputed the

disbursement of an advance of Rs. 30,00/. To appreciate this controversy in its right perspective, it is relevant to notice that the respondents 2and3

are not only custodians of the record pertaining to members of the gazetted service (Judicial) of the state, but the entitlement of a member of this

service in respect of retrial benefits is determined by these respondents on the basis of the record. True it is, that the petitioner had disputed the

payment of an amount of Rs, 30,000/and while explaining this omission, the petitioner stated that has was not seized of the upto date record at the

relevant point of time, but after coming to know about the actual position, he did not press the claim for Rs. 30,00/ and ;n this view of the matter, it

appears that such statement is neither intentional nor deliberate, but is the result of some confusion, moreso, this issue stands settled in the writ

petition No. 939/91 and it is not available to the respondents 2and3 to justify the delay for payment of gratuity on the ground that the petitioner had

disputed the disbursement of advance of Rs, 30,00/. That apart, court can not lose sight of the fact an obligation is case on the respondents 2and3

to release the gratuity of a member of service, whose entitlement to the sum claimed is to be examined by the respondents on the basis of the

record maintained by them. It can not be ruled out that a member may claim more than his due be it because of miscalculation or due to other

reason, but it is absolutely improper for respondents 2and3 to plead such a stand as an excuse, so as to justify withholding of the gratuity and the

only conclusion available is that the respondents 2and3 have defaulted in making the payment of gratuity which fell due to the petitioner in the

month of October, 1990 and had the respondents made the payment to the petitioner in the year 1990, he could have utilised the dame for some

purpose, thereby he could have earned profit by such investment or interest, but the amount was wrongfully withheld despite demand, therefore,

the petitioners entitlement to the interest on the withheld amount can't be successfully questioned by respondents 2and3.

Mr. Anil Bhan has also contended that the writ petition is not maintainable for relief of interest, despite the fact that the objections have not at all

been pleaded in the counter, yet I would like to deal with it and in this behalf a few relevant facts need to be noticed:

a) The writ petition was filed on 21/07/95 and it was admitted to hearing on 10/04/1996 and the petitioner after having served the department for

decades together has been forced to opt for litigation, thereby, made to suffer all these years unjustifiably;

b) Being a retired government servant, the petitioner was entitled to early payment so that he could make its use to his advantage, but the payment

was withheld for an unjustified stand, so much so, the respondents 2and3 slid not bother to examine the petitioners claim on the strength of their

own record, which hints at escapism on their part,

c) The court granted liberty to the petitioner in terms of judgment dated 28/10/1994 in respect of claim of interest, but the respondents 2and3 did

not question this part of the order and felt satisfied and the order' was not challenged in any forum;

d) The respondents 2and3 withheld the gratuity for about Haifa decade, thus failed to make the payment to the petitioner in the month of October,

1990.

Therefore, objection of Mr. Bhan taken at the lime when the petition is being finally heard cannot work as an impediment to the maintainability of

the writ petition and the petitioners claim for interest is held maintainable in view of peculiar circumstances of this case.

The concept of retrial benefit is no more resintegra and the Apex Court has time and again clarified that retrial benefits can neither be deemed to

be a bounty nor a gratuitous payment, that apart, gratuity is an earning of an employee in lieu of his past services, which has been withheld by

respondents 2and3 for no just reason.

To what relief the petitioner is entitled to, in view of the facts and circumstances of the case, guidance is readily available to me from a judgment

of the apex court passed in case S.R.Bhanrale versus Union of India reported in AIR 1997 SC page 27 and their Lordships have not only been

pleased to award interest, but compensation as also litigation expenses for die amounts wrongfully withheld from appellant therein, but considering

the peculiar circumstances of this case, it is appropriate to allow interest only to the petitioner.

For the aforementioned reasons, this writ petition is allowed with the direction lo the respondents 2 and 3 to pay interest on the amount of

Rs.20,564/ @ 12% per annum with effect from 1101990 till the date of said amount was disbursed to the petitioner which shall be calculated by

the respondents 2 and 3 and paid to the petitioner.

It ids further provided that the amount of interest so calculated shall be disbursed to the petitioner within a period of two months and in case

respondents 2 and 3 fail to make the payment within the stipulated period of two months, in such eventuality the amount which accrues due to the

petitioner by virtue of aforementioned direction shall bear further interest from the date of this order till payment is made to the petitioner at the rate

of 6% per annum.

No order as to costs.

Writ petition is disposed of accordingly alongwith the CMPs,