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Judgment
M. Venugopal, J.—The Petitioner has filed the present writ petition seeking for the relief of Writ of Certiorarified Mandamus in calling for
the records relating to the impugned letter in Na.Ka. No. A3/3268/2003 dated 23/2/2007 issued by the second Respondent and quash the same.
Further, the Petitioner has prayed for issuance of a direction to the Respondent to pay the withheld amount of Rs. 10,473/- and also the Provident
Fund interest arrears for the period from 1/4/2002 to 31/1/2003 and interest on belated payment of Provident Fund interest from 1/2/2003 to
22/2/2007 payable to the Petitioner.
The Petitioner worked as Revenue Assistant in the second Respondent/Municipality. He retired under Voluntary Retirement Scheme with effect
from 31/1/2003. He contributed to the Provident Fund and which was deducted from his salary. After retirement, he was paid the Provident Fund
subscribed sum. The interest accrued thereto was not paid.
The Petitioner calculated the interest for the Provident Fund amount as Rs. 63,438/- also the arrears of salary based on VI Pay Commission
report to an extent of Rs. 10,112/- and his Earned Leave Salary, after payment of a portion to an extent of Rs. 10,533/- was not paid to him.
When the subscribed Provident Fund of Rs. 75,488/- was paid to him, a sum of Rs. 1,000/- was withheld as Caution Deposit till the audit was
completed. Even after the completion of audit for the respective financial year, the Caution Deposit of Rs. 1,000/- was not paid to him.
The Petitioner filed a Writ of Mandamus before this Court in W.P. No. 4854 of 2006 praying for the issuance of a direction to the Respondents
to pay the aforesaid arrears amount. The Respondents appeared through counsel and the learned Counsel for the second Respondent/Municipality
submitted that the Municipality was under financial crisis and the Petitioner''s claim would be settled within a period of six months. Based on the
assurance of the second Respondent/Municipality, the writ was disposed of on 31/8/2006 with a direction to the Respondents to settle all the
arrears payable to the Petitioner within a period of six months from the date of receipt of a copy of the order.
The Petitioner communicated the order passed in W.P. No. 4854 of 2006 dated 31/8/2006 with a copy of the letter dated 18/9/2006 to the
Respondents. The second Respondent issued a cheque of Rs. 65,438/- dated 23/2/2007 towards Provident Fund interest and an another cheque
for Rs. 10,112/- towards salary arrears arising out of VI Pay Commission. He was also paid the Provident Fund interest only upto the period
31/3/2002. Interest for the period from 1/4/2002 to 31/1/2003 on his Provident Fund contribution and interest for the belated payment of the
Provident Fund interest from 1/2/2003 to 22/2/2007 are to be paid to the Petitioner.
The Petitioner has also not been paid with the balance of Earned Leave salary of Rs. 10,503/- and that the second Respondent refused the
same as per letter dated 23/2/2007 mentioning that the Director of Local Fund Audit had directed him to withhold the amount in respect of the
share for the belated collection of property tax. Further, it is stated as if he has given his consent for withholding the same as per letter dated
11/9/2003. In fact, no proceedings were passed against the Petitioner during his service, etc.
The case of the Petitioner is that the second Respondent/Municipality is wilfully refusing to make payment of the accrued amount due to him.
Since the Petitioner''s representations dated 5/3/2007, 14/3/2007 and 26/4/2007 have not yielded the desired results, the Petitioner has filed the
present writ petition.
The second Respondent/Municipality takes a plea that the Petitioner''s claim for Provident Fund interest of Rs. 63,438/- and VI Pay
Commission arrears of Rs. 10,112/- were paid on 23/2/2007 as per order dated 31/8/2006 in W.P. No. 4854 of 2006 and that the Petitioner
made a false statement that a portion of amount of Earned Leave Salary was paid to him and the balance of Rs. 10,533/- was not paid to him. The
Pension Sanction Authority dated 18/6/2003 asked the Municipality to withhold the time barred amount from his DCRG. This letter was
addressed to the Petitioner by the Pension Sanctioning Authority and a copy was marked to the second Respondent/Municipality. The Petitioner
accepted the recovery and gave his consent of letter dated 11/9/2003 and requested the Commissioner of the second Respondent/Municipality to
pay the DCRG fully without deducting the time barred amount because the Petitioner gave his consent to recover the same amount at his Earned
Leave Salary payment. The Audit Recovery amount was received by the Petitioner on 1/9/2006.
The further stand of the second Respondent/Municipality is that the Municipality is still under financial crisis. Due to the deficit funds, the claims
are not settled. The Pension Sanctioned order clearly says that the amount was withheld. The applicant gave his consent letter to recover the same
at his Leave Salary instead of DCRG. It would be refunded to him if the amount was collected in future. The other beneficiaries have not been
settled fully.
Added further, the very same portion of Provident Fund interest amount is to be settled. The settlement made by the second Respondent is as
follows:
D.C.R.G ... Rs.1,34,576/-
P.F.Subscription and V Pay ... Rs. 74,488/-
Commission arrear
Earned Leave Salary ... Rs. 58,435/-
Leave on Private Affairs Salary... Rs. 26,043/-
PF interest ... Rs. 63,438/-
SPF ... Rs. 15,036/-
VI Pay Commission Arrear ... Rs. 10,112/-
Audit Recovery ... Rs. 1,000/-
-------------
Rs.3,83,128/-
Further, in the counter presented by the second Respondent/Municipality before this Court on 31/1/2011, it is stated that as per orders of this
Court in W.P. No. 4854 of 2006 dated 31/8/2006, the entire amount was sanctioned in favour of the Petitioner. A sum of Rs. 10,473/- was to be
withheld on account that the arrears of collection of tax is pending on the Petitioner''s name. Therefore, the amount of Rs. 10,473/- was withheld
by the second Respondent/Municipality.
The learned Counsel for the second Respondent/Municipality submits that the Municipality recovered the amount from its employees and the
same shall be remitted with the Treasury in the head of Local Fund Audit and as such, the Director of Local Fund Audit is the competent authority
to disburse the Municipal Employees'' Provident Fund. The second Respondent/Municipality has not received the Provident Fund amount from the
Director of Local Fund Audit. The second Respondent, in order to comply with the order passed by this Court in W.P. No. 4854 of 2006 dated
31/8/2006 sanctioned the claimed amount from the Municipal General Fund. Action of the second Respondent was objected to by the Auditing
Authority on the ground that Senior most persons are awaiting to receive the retirement benefits and in the case of Petitioner, the norms and rules
were overlooked and as such, the second Respondent/Municipality is facing the Audit objection. The Competent Authority viz., the Director of
Local Fund has not been arrayed as Respondent in the writ petition.
The Calculation Memo submitted by the writ Petitioner is denied by the second Respondent on the ground that no such arrears are pending
with the second Respondent. Therefore, the writ petition is liable to be dismissed.
On behalf of the Petitioner, a Calculation Memo dated 12/1/2011 is filed before this Court and the same runs as follows:
RATE OF INTERESTPERIOD AMOUNT (in Rs.)
P.F.INTEREST UPTO65438
2001 � 2002
9.00% 2002 -2003 (1/4/20024908
TO 31/1/2003) (10
months only)
Total 70346
9.00% INTEREST ON 1055
BELATED
PAYMENT 1/2/2003
TO 31/3/2003 (2
months only)
71401
8.00% 2003 � 2004 5712
(1/4/2003 to
31/3/2004)
77113
8.00% 2004-2005 (1/4/2004 6169
to 31/3/2005)
83282
8.00% 2005 � 2006 6662
(1/4/2005 to
31/3/2006)
89944
8.00% 2006 -2007 (1/4/20066428
to 22/2/2007) 10
months & 22 days
Cheque dated 96372 65,438
23/2/2007, Cheque
No.0121367 (-)
Balance payable 30934
8.00% 23/2/2007 to 260
31/3/2007 (1 month 7
days)
31194
8.00% 2007 � 2008 2495
(1/4/2007 to
31/3/2008)
33689
8.00% 2008 � 2009 2695
(1/4/2008 to
31/3/2009)
36384
8.00% 2009 � 2010 2910
(1/4/2009 to
31/3/2020)
39294
2010 � 2011 2434
(1/4/2010 to 9/1/2011)
9 months & 9 days
TOTAL 41728
The second Respondent/Municipality has been directed to file a Calculation Memo on behalf of the Municipality, but the same has not been
filed before this Court.
This Court, at this stage, aptly points out the order passed by this Court in W.P. No. 4854 of 2006 dated 31/8/2006, wherein it is among
other things observed thus:
...It is needless to state that the Petitioner is entitled to get interest for the belated amount of the Provident Fund which is permissible under law.
Significantly, the second Respondent/Commissioner (Incharge), in his letter No. 3268/2003/A3 dated 20/1/2011 addressed to Mr.
Periyakaruppan, Advocate, Madurai Bench of Madras High Court, has stated that till 31/1/2003, the second Respondent/Municipality has been
paid with the interest of Provident Fund and since the General Interest for the Provident Fund has not been received, the Provident Fund interest
has not been paid in time, etc.
The Voluntary Retirement Scheme in akin to resignation of an employee. As a matter of fact, the aim of Voluntary Retirement Scheme is an
irritation to make an offer by the employees to avail the benefits. In a contract between the employer and employee pertaining to the option for
Voluntary Retirement Scheme, it is not for a Court of law to rewrite the terms of a contract. Indeed, the Voluntary Retirement Scheme is not a
retrenchment. The Voluntary Retirement Scheme is contractual in nature.
It is to be borne in mind that when an employee retires voluntarily from an organisation or an establishment and when his Voluntary Retirement
has been accepted by the employer, then there is a cessation of relationship between the parties as an employee and employer. As such, it is the
duty of the employer to settle all the monetary and other attendant benefits due to the employee at the time of his Voluntary Retirement. Assigning
reason like, the financial position of an establishment is not sound or there is a financial crunch etc., cannot be accepted and that will not save the
establishment from the Predicament that it is in.
It will be a travesty of justice if the Petitioner''s dues are not settled, even after his Voluntary Retirement has been accepted by the second
Respondent on 31/1/2003.
On a careful consideration of the respective contentions, even though a plea is raised on behalf of the Petitioner that the second Respondent
has no right to withhold any amount much less a sum of Rs. 10,473/- on any score, it is clear from the notice dated 23/2/2007 issued by the
second Respondent/Commissioner that the Petitioner has given a consent letter to deduct a sum of Rs. 10,473/- from his Earned Leave Salary and
therefore, the same has not been deducted from the retirement benefits and also the Petitioner has been informed that the said sum of Rs. 10,473/-
will be paid to him after the recovery of time barred amount as referred to in the notice. Therefore, it is not open to the Petitioner after giving
consent letter, to take a different plea in the present writ petition that no valid orders or proceedings have been passed by the Competent Authority
and that the second Respondent has no right to withhold any amount.
In that view of the matter, the Petitioner''s prayer as regards the quashing of the letter dated 23/2/2007 of the second Respondent in Na.Ka.
No. A3/3268/2003, is not acceded to by this Court. However, since the second Respondent/Commissioner (in-charge) himself has stated in his
letter dated 20/1/2011 addressed to Mr. Periyakaruppan, Advocate, Madurai Bench of Madras High Court, inter alia to the effect that since the
General interest has not been received for the General Provident Fund amount, the interest for the Provident Fund Fund amount has not been paid
etc., this Court directs the second Respondent to take into account the Calculation Memo filed by the Petitioner as extracted by this Court earlier
in paragraph No. 14 of the order and to pass a dispassionate order, after perusing and scrutinising the same untrammelled and uninfluenced with
any of the observations made by this Court in paying the exact Provident Fund interest arrears for the period from 1/4/2002 to 31/1/2003 and also
pay the interest on the belated payment of Provident Fund Interest from 1/2/2003 to 22/2/2007 payable to the Petitioner in the manner known to
law and in accordance with Rules within a period of four weeks from the date of receipt of a copy of this order.
With the above direction, this writ petition is disposed of. No costs.