HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 32
Case :- SPECIAL APPEAL No. - 1888 of 2012
Appellant :- Amar Nath Upadhyay, Clerk (Retired) Central Bank Of India, Branch Raniganj Bazar Baria, District
Ballia.
Respondents :- Chairman & Managing Director(Competent
Authority),Central Bank of India, Central
Office Chandrmukhi, Nariman Point, Bombay
& others.
Counsel for Appellant :- Sri Govind Krishna
Counsel for Respondents :-Sri V. Pratap
Hon'ble Rakesh Tiwari,J.
Hon'ble Shashi Kant,J.
1. Heard Sri Govind Krishna, learned counsel for the appellant, Sri Vishnu Pratap, learned counsel for the respondents and perused the record.
2. This Special Appeal challenges the validity and correctness of the impugned judgment and order dated 20.11.2009 passed by the learned Single Judge in Civil Misc. Writ Petition No. 58982 of 2009, Amar Nath Upadhyaya versus Chairman& Managing Director, Central Bank of India and others whereby the aforesaid writ petition was dismissed.
3. Brief facts giving rise to the instant special appeal are that the appellant joined the services as Peon in Central Bank of India in the year 1958 and was promoted on the post of Lower Division Clerk in the year 1970. He applied for grant of loan of Rs. 51615/- from the respondent-bank for the purpose of construction of a house on plot no. 363, which belonged to him. He also executed a mortgage-deed against aforesaid plot in favour of the respondent-bank. Thereafter he sold his aforesaid plot in the year 1990. On coming to know about the sale of mortgaged plot the respondent-bank issued charge sheet to him and a departmental enquiry was set-up. The Enquiry Officer considering the explanation and the material on record as well as evidence found the charges to be proved against the delinquent employee. The employee was awarded punishment vide order dated 3.1.1995 of compulsory retirement/removal from service/discharge with superannuation benefits as would be due otherwise at that stage and without disqualification from future employment. An appeal preferred by the employee was partly allowed on 24.2.1996 and the punishment was modified to compulsory retirement with superannuation benefits and without disqualificatio n for future employment. Being not satisfied, he filed mercy appeal before the Chairman/Managing Director of the Bank whereupon the punishment was further modified to reduction to lower stage in the scale of pay by two stages permanently.
4. Aggrieved, the appellant preferred Civil Misc. Writ Petition No. 12631 of 1998, Amar Nath Upadhyaya versus Chairman & Managing Director, Central Bank of India and others, which was allowed vide judgment and order dated 11.4.2002 setting aside the orders dated 29.12.1997, 24.2.1996 and 3.1.1995 impugned in the writ petition. Special Appeal (D) No. 408 of 2002 was preferred by the Chairman & Managing Director,(Competent Authority) Central Bank of India and others, which was dismissed vide judgment and order dated 6.2.2006.
5. After discussing the case laws and judgment of the learned Single Judge, the Court in its appellate judgment dated 6.2.2006 held thus:-
"In this view of the matter, we do not find any flaw in the judgment of the Hon'ble Single Judge, which requires interference in this appeal. The special appeal, therefore, is devoid of merit and is accordingly, dismissed. No order as to costs."
6. The contention of learned counsel for the petitioner-appellant is that after the litigation was over, he was reinstated in service but back wages were not paid to him. In the circumstances, he preferred Civil Misc. Contempt Petition No. 2859 of 2002, Amar Nath Upadhayaya versus Dr. Dalbeer Singh and others. The Court vide its order dated 25.9.2006 discharged notices in the contempt petition consigning it to record without prejudice to the rights of the applicant, if any. The order is a short one. It is quoted herein for ready reference.
" Heard learned counsel for the applicant and Sri A.C. Tripathi for the opposite party.
An amount of Rs. 1,64,044/- has been paid to the applicant by way of Bank Draft which was handed over to the applicant.
Let an appropriate receipt be given for the same to the opposite party.
Learned counsel for the applicant contends that the said amount of interest is not in conformity with law. If that be so, it is open to the applicant to approach the appropriate forum in this regard. In view of the compliance made it is no longer to proceed with the matter. The notices are discharged and the contempt petition is consigned to record without prejudice to the rights of the applicant, if any."
7. Further contention of learned counsel for the appellant is that pursuant to the aforesaid order he moved an application before the Regional Manager of the Bank. When nothing was done, the petitioner preferred Civil Misc. Writ Petition No. 58982 of 2009, Amar Nath Upadhayaya versus Chairman & Managing Director, Central Bank of India and others whereby he sought relief for directing the respondents to provide interest on the amount of salary payable to him which was not paid to him at the relevant time. In the writ petition it was contended that he was entitled to interest on the said deferred amount as his salary was wrongly withheld when it was due.
8. Learned counsel for the appellant also submits that the appellant is entitled for interest on the said deferred amount of salary as the payment was withheld from 2000 to 2006 and therefore, he would be entitled to normal accrual of interest on the aforesaid amount.
9. In support of his aforesaid submissions, learned counsel for the appellant has relied upon the decision rendered in the case of Vijay L. Mehrotra versus State of U.P. And others, (2000) 2 UPLBEC 1599 wherein the Court held thus:-
"In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the appellant within 12 weeks from the date of her retirement i.e. 31st August, 1997 till the date of payments."
10. The Writ Court dismissed the writ petition vide judgment and order dated 20.11.2009. Reasons for dismissal of the writ petition have been given in paragraph nos.3 and 4 of the judgment, which reads thus:-
"3. From the judgment of Hon'ble Single Judge, this Court noticed that before his Lordship also the petitioner sought to award exemplary cost for mental harassment but the same was declined by the Hon'ble Single Judge observing as under "There is no question of awarding any exemplary cost, as in the present case the bank was pursuing the matter according to the legal opinion obtained by it."
4. Counsel for petitioner submits that here is a case where special equity lies in his favour entitling him for interest in view of the Apex Court's decision in Union of India Vs. J.K. Goel (1995) Supp. (3) SCC 161. However, from the facts discussed above, I do not find that any special equity lies in the case in hand. The Bank proceeded to make departmental enquiry in accordance with rules. Since the charges as per the enquiry conducted by the Bank were also proved, the order of punishment was passed. It is true that the initial order of punishment was modified subsequently at two stages and when the matter came to this Court, the view taken by this Court was that the allegations levelled against the petitioner itself do not constitute misconduct and, therefore, the petitioner was not liable for punishment and the impugned orders of punishment were set aside but that was pursuant to legal proceedings and right of judicial review available to the petitioner. This Court did not find that the proceedings were initiated on account of mala fide of the Bank. After setting aside the punishment order, the petitioners dues were paid and there is no dispute about that. That being so, I do not find the existence of any "special equity" in case of petitioner warranting payment of interest on the amount of arrears of salary payable to him particularly in absence of any provision providing for interest. It would be appropriate to notice that the proceedings initiated by the authorities under the Rules, if caused delay in certain payment to the employee concerned, that itself cannot be said to be a case of special equity, particularly in absence of any finding of mala fide against the employer in this regard. I, therefore, do not find it a fit case where it can be said that special equity exist justifying grant of interest on the arrears of salary particularly in absence of any provision providing interest.
11. Learned counsel for the respondents submits that since there is no provision of law under which interest can be granted to the appellant on the arrears of salary and the Writ Court has rightly dismissed the writ petition, therefore, no interference is required by this Court.
12. In support of aforesaid contention, he has relied upon paragraph 9 of the judgment rendered in the case of Union of India and others versus Dr.J.K. Goel, 1995 Supp (3)Supreme Court Cases-161. Paragraph 9 of the judgment reads thus:-
"9. In these circumstances we have to examine whether the order of the Tribunal granting interest @ 12% per annum to the respondent for the period January 1986 to March 1992 can be upheld. In the first place, there is no provision of law under which such interest can be granted. Learned Advocate for the respondent, however, has contended before us that on equitable considerations, the Tribunal has granted interest @ 12% per annum to the respondent and we need not interfere with the discretion exercised by the Tribunal in this regard. But looking to the facts and circumstances of the present case, we cannot accept the submission made by learned Advocate for the respondent. Before any interest can be granted on equitable considerations, it is necessary that the facts of the case should be examined to ascertain whether there are any special equities which would justify the grant of such interest although there is no provision in law for such grant. We have failed to find any such equities in favour of the respondent in the present case. The respondent along with others was considered by the Departmental Promotion, Committee for the grant of selection grade only in 1990. All those who were selected by the Departmental Promotion Committee and granted selection grade w.e.f. 1.1.86 were given the difference in salary and other emoluments soon after the issuance of the order granting them selection grade. None of them received interest from January 1986 on the amounts so paid, although they were granted selection grade w.e.f. 1.1.86 In the case of the Departmental Promotion committee immediately and the sealed cover procedure had to be resorted to because his integrity was not certified by the Department in view of the two memoranda having already been issued to the respondent. We will assume in favour of the respondent that these memoranda as well as the chargesheet which has been subsequently issued, are unwanted. nevertheless, the Departmental Promotion Committee was required to adopt the sealed cover procedure for valid reasons. it was only on account of the order dated 3rd of January, 1991 issued by the Central Administrative Tribunal, Delhi, that the sealed cover was opened, although investigations were pending and a charge-sheet had also been issued. In these circumstances selection grade was granted to the respondent by the order dated 11th of March 1992. It is difficult to see any equities in favour of the respondent which would require granting on any interest to him from 1st January, 1986 as has been done in the present case. At any rate, when the Departmental Enquiry is not complete and the respondent has not so far been exonerated of the charges made against him, the grant of interest appears to be wholly unjustified."
13. After hearing learned counsel for the parties and on perusal of the record it appears that the appellant was having two plots i.e. 63 and 363. The charge on the appellant was that he had taken loan mortgaging plot no. 363 whereas the case of the appellant appears to be that he had under some confusion had mortgaged plot no. 363 and had not mortgaged plot no. 63 although he was owner of both the plots. May be for this reason the order of punishment was modified but from the judgment and order dated 11.4.2002 in earlier writ petition no. 12631 of 1998 it appears that there is no award of interest to the petitioner by the Court. In the writ petition it was prayed by the petitioner-appellant that the Management be directed to award monetary compensation of Rs. 3,00,000/- for the unmerited mental torture and harassment caused to him during years 1995, 1996 and 1997 and for loss of interest on emoluments illegally withheld by the Management. Even after the appeal and contempt petition filed by the petitioner amount of interest was not awarded to him.
14. It appears that the petitioner wanted some compensation in respect of mental agony and therefore, filed writ petition for payment of interest which has not been claimed even in the writ petition. This payment of interest has been denied by the Court in the earlier writ petition as well as in writ petition no. 58982 of 2009, Amar Nath Upadhayaya versus Chairman & Managing Director, Central Bank of India and others.
15. From the reading of aforesaid paragraph 9 of the judgment rendered in the case of Union of India (supra) cited by the learned counsel for the respondents, it appears that on equitable consideration payment of interest can also be ordered by the Court where the interest of amount due is normal accrual on the arrears of salary.
16. A perusal of Annexure-7 to the special appeal shows that the difference of salary for the years 1995, 1996 and 1997 has been paid to the appellant in 2006. The case of the appellant was decided vide judgment and order dated 11.4.2002, he would be entitled for payment of normal interest accrues on the amount of arrears of salary from the date of judgment i.e. 11.4.2002 to 2006. The judgment and order dated 20.11.2009 of the learned Single Judge is modified to the extent that the appellant shall be paid simple interest at the rate 6% per annum from the date of judgment i.e.11.4.2002 to 2006 accrues on the amount of arrears of salary.
17. For the reasons stated above, the appeal is allowed. No order as to costs.
Dated 8.12.2015 CPP/-