Taleshwar Narayan vs Bihar State Food and Civil Supplies Corporation Ltd.

D.G.R. Patnaik, J.—Heard counsel for the parties.

From the rival submissions of the learned Counsel for the parties, it appears that during the petitioner''s tenure in service as go-down Incharge under the respondent Bihar State Food & Civil Supplies Corporation Ltd, certain go-down shortage was detected.

As per the contention of the learned Counsel for the petitioner, though godown shortage to the extent of 5%, was permissible on account of natural phenomena, as acknowledged by the respondent Corporation in general, but in the case of the petitioner, this acknowledgment was withdrawn and the amount of go-down shortage was assessed and sought to be recovered from the petitioner. The total amount of go-down shortage was thereafter, recovered from the salary of the petitioner during the tenure of his service. Rather, a sum of Rs. 1,731.35 paise was also recovered from the petitioner''s salary. Thereafter, the petitioner had retired on 31.01.2005 and he had demanded payment of his retiral dues, but when it was not forthcoming promptly, the petitioner felt constrained to file a writ application before this Court. While disposing of the writ application, this Court had directed the respondents to pay the retiral dues to the petitioner within the period stipulated in the order.

Instead of complying with the directions, the respondents have not only withheld the petitioner''s Gratuity to the extent of Rs. 2,21,992/-, but have also withheld his unutilized Earned Leave to the extent of Rs. 1,05,120/- and on the contrary, have raised a demand against the petitioner for payment of interest on the amount of go-down shortage at the rate of 18% per annum till 2003-04 and further interest at Bank lending rate till 2005-05.

The petitioner has challenged the impugned order dated 27.6.2005 (Annexure-2) passed by the Respondent No. 2 whereby, the aforesaid demand for payment of interest has been made. The petitioner has also prayed for a direction upon the respondents to forthwith release and pay the amount of his Unutilized Earned Leave and Gratuity and also to refund him the excess amount of Rs. 1,731.35 paise which was recovered from his salary.

Assailing the impugned order, Shri Sumeet Gadodia, learned Counsel for the petitioner would submit that having recovered the entire amount of the purported godown shortage from the petitioner''s salary and having not raised any demand for payment of interest at the time of recovery, the petitioner is neither liable to pay any further amount by way of interest and neither is the respondent entitled to claim and recover any such amount from the petitioner. To buttress his argument, learned Counsel would refer to and rely upon a judgment of this Court passed in the case of Nageshwar Singh v. Bihar State Food and Civil Supplies Corporation Ltd and Ors. vide WPS No. 210 of 2008 and another judgment of the Apex Court passed in the case of Bihar State Food and Civil Supplies Corporation Ltd v. Durga Prasad Sinha vide Civil Appeal No. 3504 of 2007.

Counsel for the respondents, on the other hand, would submit that against the order passed by the Single Judge of this Court in the case of Nageshwar Singh (Supra), a LPA was filed by the respondents which is presently pending before this Court vide LPA No. 93 of 2009.

As regards the judgment of the Supreme Court referred to by the learned Counsel for the petitioner, learned Counsel for the respondents would argue that the ratio decided in that case, would not be applicable in the facts of the present case, in view of the fact that in the aforesaid judgment, the Supreme Court had observed that the demand for payment of interest from the retiral dues of the employee, without initiating any inquiry against the employee, is illegal. In the present case, an inquiry was initiated after retirement of the petitioner after issuing him a show-cause notice and thereafter, a decision was taken on the basis of the findings of the Inquiry Report.

In the case of Nageshwar Singh (Supra), the Single Bench of this Court while considering an identical issue, has held that the demand for payment of interest, which was not raised earlier at the time of recovery of the principal amount, cannot be raised by the employer from the retired employee. The ratio decided by the Single Bench of this Court in the case of Nageshwar Singh (Supra), squarely applies to the facts of the present case also.

Learned Counsel for the respondents concedes that though, a LPA has been filed by the respondents against the judgment of the Single Bench, passed in the case of Nageshwar Singh (Supra), but no order of stay of the operation of the impugned order passed by the Single Bench, has been obtained by the respondents.

Applying the ratio decided in the case of Nageshwar Singh (Supra), I am of the opinion that the impugned order dated 27.06.2005 (Annexure-5) is unsustainable in law and is therefore, quashed. The respondents, who have admittedly retained the amount of Unutilized Earned Leave and Gratuity and also have realized the excess amount of Rs. 1,731.15 paise from the petitioner''s salary, are directed to pay the aforesaid amounts to the petitioner within one month from the date of this order, failing which the payable amounts shall carry interest at the rate of 9% per annum commencing from the date of the petitioner''s retirement, till the date of final payment.

With these observations, this writ application is disposed of.

Let a copy of this order be given to the counsel for the respondents.