Suresh S. Shah vs Gujarat Water Supply and Sewerage Board

A.J. Desai, J.—By way of present petition, under Articles 14, 16 and 226 of the Constitution of India, the petitioner, who has been retired in 1996, has made limited prayer of payment of interest on the retiral benefits paid by the respondent under several heads to the petitioner at a belated stage. The brief facts arise from the record are as under:--

1.1 The petitioner was appointed as a Supervisor in Capital Project Division on 28.08.1961 and thereafter was transferred to Public Health Department in the State of Gujarat in 1962. Pursuant to notification dated 10.02.1988, issued by Health and Family Department, Gandhinagar the permanent and temporary establishment of the Public Health Engineering Wing was transferred to Gujarat Water Supply and Sewerage Board-Respondent No. 1 with effect from 1981. The petitioner continued in service with respondent No. 1 till date of his superannuation on 31.07.1996. Thus, the petitioner served either on the Government or the respondent Board for about 35 years. Just prior to one day of his retirement i.e. 30.07.1996, he was served with two chargesheets. One with regard to sale of jeep belongs to department in auction in the year 1992, and in the second inquiry, allegations were made with regard to purchase of letter books at higher rates and purchase of letter pad in excess quantity than required, from Shahkari Sangh in the year 1988.

1.2 At the end of the inquiries, the petitioner was punished in both the inquiries. With regard to first inquiry, vide order dated 01.06.1999, a cut of Rs. 25/- from pension was ordered for a period of one year and with regard to the second inquiry, vide order dated 01.02.2000, an amount of Rs. 230/- was ordered to be cut from his pension for a period of four years.

It is pertinent to note at this stage that the orders passed imposing penalties pursuant to these two inquiries have not been challenged by the petitioner.

The petitioner served a notice by registered post through his lawyer on 17.07.2002 and called upon the respondent to release the gratuity amount of Rs. 15,000/-, since the last inquiry was concluded on 01.02.2000. He has also called upon respondent to revise the pension according to Government Resolution and pay the interest on delayed payment of gratuity etc. In response to notice, the respondent released the amount. Several demands were made by him on the line which have prayed in this petition.

By raising several contentions and bringing facts on record in the memo of petition, the petitioner had prayed in Para 12, which read as under:--

The petitioner, therefore, prays to issue a writ of mandamus or any other appropriate writ, direction or other order under Article 226 of the Constitution of India and

(A) Your Lordships be pleased to direct the respondent-Board to pay interest at the rate of 12% for the following delayed payment:--

(i) Gratuity amount of Rs. 15,000/- for the period from 01.03.2000 to 04.05.2003.

(ii) Gratuity amount of Rs. 1,95,639/- from 01.09.1998 to 31.04.1999.

(iii) Arrears of pension amount of Rs. 45,223/- due to refixation of pension from 01.03.2000 to 04.05.2003.

(iv) Arrears of pay of Rs. 10,505/- due to fixation of pay according to Fifth Pay Commission from 01.04.1996 to 11.08.1998.

(v) Arrears of pension amount of Rs. 25,811/- due to Revision of pension from 01.10.1996 to 31.03.1999.

(B) Your Lordships be pleased to pass such other and further order or orders as the nature and circumstances of the case may require;

(C) Your Lordships be pleased to allow this petition with costs.

An affidavit-in-reply has been filed by the respondent denying the prayers made by the petitioner and authority has tried to explain the delayed payment of certain amount. Rejoinder has also been filed by the petitioner. Mr. Nalin K. Thakkar, learned advocate appearing for the petitioner has taken me through various dates about the payments made by the respondent at belated stage and submitted that he is entitled for the interest for delayed payment of gratuity, pension, etc. He argued that as per the Rule 189 (B) of Bombay Civil Service Rules, 1959, the petitioner was entitled to get 90% of gratuity of amount at the end of two years from the initiation of departmental inquiry. It is submitted that chargesheet was served to the petitioner on 30.07.1996 and, therefore, the authority ought to have released 90% of the amount of gratuity after 01.09.1998. However, the said amount has been paid on 31.04.1999 i.e. after more than seven months. Therefore, he would be entitled for interest for the delayed payment of gratuity. By relying upon the said Rule i.e. 189 (B), he would submit that authority ought to have released the remaining amount of gratuity i.e. amount of Rs. 15,000/- immediately after the completion of departmental inquiry i.e. immediately after 01.02.2000. However, the said amount was paid on 04.05.2003 i.e. after more than three years and therefore, he is entitled for interest over the said delayed payment of gratuity.

He further submits that the authority ought to have paid the pension or refixation immediately after the completion of inquiry. However, he has received the said amount only on 04.05.2003 i.e. more than after three years. Similarly the prayer for interest on delayed payment of arrears on fixation of pay according to Fifth Commission and the arrears of pension amount due to revision of pension from 01.10.1996 to 31.03.1999. It is submitted that the authority has deliberately paid the aforesaid amount at belated stage and only after of serving legal notice in the year 2002. He has supported his contention by relying upon Government Resolution dated 25.08.1994 (Annexure-D). In support of his case, he has relied upon a decision of the Apex Court in the case of S.K. Dua Vs. State of Haryana and Another, . By relying upon the said case of S.K. Dua (supra), he submitted that similar are the facts in the present case wherein petitioner was served with a chargesheet which is one day prior to his retirement. Finally he submits that the respondents have not satisfactorily explained the delay in payment of the aforesaid amount and, therefore, the petitioner would be entitled for the interest on those amounts, as prayed for in the petition.

On the other hand, learned advocate Mr. H.S. Munshaw, appearing for the respondent has taken me through the affidavit-in-reply filed on behalf of the respondent and submitted that the petitioner was facing two departmental inquiries and, therefore the amount was not released. He submits that the petitioner was working in divisional office at the time of retirement and, therefore, the papers were sent for approval of Divisional Office, Circle Office, Zonal Office and ultimately Head Office level which took sometime for payment of the amount. With regard to delay in making of payment under various heads, the respondent took sometime pursuant to various queries raised at different time by the officer of Director of Pension and Provident Fund and, therefore, there was no intention on the part of the respondent for not paying the amount immediately to the petitioner. He submits that since no malafides are alleged in the petition for delayed payment, the interest as claimed, is not liable to be accepted and the petition is required to be dismissed.

Heard the learned advocates appearing for both the parties.

It is an admitted position that the petitioner had served the department for about 35 years and was likely to be retired on 31.07.1996 and was served with two different chargesheets just prior to one day of his retirement i.e. 30.07.1996.

It is of a common knowledge that Government Department/or Corporation like respondent, papers of pension of delinquent are sent appropriate time, much prior to the date of retirement. In the present case the department was fully aware that the petitioner was going to retire on 31.07.1996, however reasons best know to them, instead of sending such papers to concerned authority, served two chargesheets. There is no explanation on behalf of respondent. It is not the case of the respondent that the papers were sent to the Divisional Office, Circle Office, Zonal Office, Director of Pension and Provident Fund for approval prior to his retirement. Even otherwise, as per under Rule 189 (B) of Bombay Civil Services Rules, if the inquiry does not conclude within a period of two years from the commencement of the inquiry, the delinquent would be entitled to 90% of the gratuity. It is not in dispute that the inquiry had commenced in July 1996, however, the payment of said amount has been made on 31st April 1999 i.e. after about 9 months. It is accepted that the department may take proper decision about the payment of such gratuity amount within a reasonable time, which would be in my opinion 2 to 3 months but not more than that. The explanation rendered by the respondent in his affidavit is not satisfactory and therefore, in my opinion the petitioner would be entitled for the interest as prayed for in Para 12 (ii). As far as gratuity amount of Rs. 15,000/-, was also required to be paid to the petitioner forthwith on the completion of the inquiry. The last inquiry was concluded on 01.02.2000 and, therefore, the authority ought to have paid the amount as expeditiously as possible. However, in the present case the said amount has been paid only on 04.05.2003. The explanation rendered by the authorities are vague in nature and, therefore, not acceptable. Similar is the facts in the case of payment of delayed payment of pension, pursuant to refixation of pension, as prayed in (i),(ii), (iii), (iv), (v) of para 12 of this petition. Therefore, the petition requires consideration.

As far as prayers made with regard to the rate of interest is concerned, the petitioner has prayed for the rate of 12% for certain period mentioned in the prayer. I have gone through the contentions raised in the memo of petition and reply to that by department, it appears that there is no malafide intention on the part of the respondents for non-payment of the amount, however, they have taken long time for payment to the petitioner, who has served about 35 years. Considering the facts and circumstances of the case, I am of the opinion that the petitioner would be entitled for interest at the rate of 8% per annum instead of 12% as far as prayer made in Para 12 (A) (iii), (iv) and (v). However, petitioner would be entitled for interest at the rate of 12% for prayer 12(A)(i) & (ii) as per resolution dated 25.08.1994. Hence, the petition is partly allowed. Prayers made in Para 12 (A) (i) and (ii) is allowed, however, the rate of interest would be 12% per annum & 12(A) (iii), (iv) and (v) at the rate of 8% per annum. The respondent shall pay the said amount within a period of three months from the date of receipt of the order. Rule is made absolute to the aforesaid extent. Direct service is permitted.