Kailashben Widow Of Ghelabhai ... vs District Assistant Examiner

                                                                                    NEUTRAL CITATION




    C/SCA/8743/2016                               CAV JUDGMENT DATED: 11/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 8743 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN                          Sd/-
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1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== KAILASHBEN WIDOW OF GHELABHAI RANCHODJI DESAI Versus DISTRICT ASSISTANT EXAMINER & 2 other(s) ========================================================== Appearance:

MS TEJAL VASHI for MR VH DESAI(298) for the Petitioner(s) No. 1 MR MANOHAR RAHEVAR AGP for the Respondent(s) No. 1,3 MR RAJESH CHAUHAN for MR HS MUNSHAW(495) for the Respondent(s) No. 2,4 ========================================================== CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 11/08/2023 CAV JUDGMENT

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following main relief :

NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined "18(a). This Honourable Court may be pleased to issue writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction and be pleased to declare that the petitioner is entitled to receive 18% interest from 30th October 2004 till the actual payment is made to the petitioner and accordingly direct the respondents, their servants and agent to pay the 18% interest over the retirement dues for a period of 11 years (From dtd.

31/10/2004 to dtd. 18/12/2015)."

2. FACTS :

2.1. The husband of the petitioner Ghelabhai Ranchhodbhai Desai was working as Talati cum Mantri under the District Panchayat at Tapi. Her husband was appointed and joined his duty on 1/6/1952 and he has retired at the age of superannuation on 31/7/1986 and therefore, her husband completed more than 33 years of service and hence he is entitled to 100% retirement dues.

2.2. That when the husband of the petitioner was in service and working as Talati cum Mantri of village Bhimrad, a criminal case was filed against him being Criminal Case No.1282 of 1985 but in the said criminal case, he was Page 2 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined acquitted by judgement and order dated 11/3/1988.

2.3. After acquittal, the husband of the petitioner approached the competent authorities and requested to pay his retirement dues and at least his provisional pension. As nothing was done, on 23/3/1992 a detailed representation was made requesting that at least provisional pension may be sanctioned and leave encashment and other consequential benefits like benefits of pay fixation from time to time as per the rules may be fixed with arrears of salary.

2.4. Thereafter, husband of the petitioner died on 11/1/2004 and therefore, on 30/10/2004, the District Development Panchayat, Surat taken a decision to drop the departmental inquiry against the husband of the petitioner.

2.5. Even after dropping of the inquiry in the year 2004, pension and other retirement dues have not been paid to the petitioner and therefore on 5/2/2013, the petitioner made a representation requesting to fix pension and pay other retirement dues which her husband was entitled to receive.

2.6. Even thereafter on 10/11/2015, the respondent No.2 sanctioned pension and other retirement benefits and actual payment of Rs.10,65,380/- was paid wide State Bank of India's Cheque No.113060.

NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined 2.7. It is the case of the petitioner that criminal case pending against her husband was disposed off on 11/3/1988 and even departmental inquiry was dropped on 30/10/2004 and therefore at least from October, the respondents should have paid the retirement dues to the petitioner within a reasonable time, however, the respondents have paid the retirement benefits to the petitioner after 11 years that too without interest. It is the case of the petitioner that the respondents are solely liable for the delay in payment of the retirement dues and therefore, the petitioners are entitled to interest at the rate of 18% for the delay of 11 years on delayed payment of retirement dues.

3. Submissions of the petitioner.

3.1. Ms.Tejal Vashi, learned advocate appearing on behalf of Mr.V.H. Desai, learned advocate for the petitioner has submitted that the husband of the petitioner was working as Talati cum Mantri under the District Panchayat at Tapi and he was appointed and joined his duty on 1/6/1952 and he has retired at the age of superannuation on 31/7/1986 and he has completed more than 33 years of service and hence he is entitled to 100% retirement dues.

3.2. Ms.Tejal Vashi, learned advocate for the petitioner has further submitted that while in service, Criminal Case Page 4 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined No.1282 of 1985 was against her husband however, in the said case, her husband was acquitted by the competent court vide judgement and order dated 11/3/1988.

3.3. Ms.Tejal Vashi, learned advocate for the petitioner has further submitted that after acquittal, the husband of the petitioner on 23/3/1992 made a detailed representation to the competent authority requesting that at least provisional pension may be sanctioned and other benefits may be granted to him.

3.4. Ms.Tejal Vashi, learned advocate for the petitioner has further submitted that the husband of the petitioner died on 11/1/2004 and therefore, on 30/10/2004, the District Development Panchayat, Surat taken a decision to drop the departmental inquiry against the husband of the petitioner.

3.5. Ms.Tejal Vashi, learned advocate for the petitioner has further submitted that though the inquiry against the husband of the petitioner was dropped in the year 2004, pension and other retirement dues were not been paid therefore on 5/2/2013, the petitioner made a representation requesting to fix pension and pay other retirement dues, however, no benefits were granted.

3.6. Ms.Tejal Vashi, learned advocate for the petitioner has further submitted that thereafter on 10/11/2015, the Page 5 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined respondent No.2 sanctioned pension and granted other retirement benefits and actual payment of Rs.10,65,380/-.

3.7. Ms.Tejal Vashi, learned advocate for the petitioner has further submitted that criminal case against her husband was disposed off on 11/3/1988 and even departmental inquiry was dropped on 30/10/2004 and therefore the respondents should have paid the retirement dues to the petitioner within a reasonable time. It is submitted that the the respondents have paid the retirement benefits to the petitioner after 11 years. It is submitted that the petitioner is not liable for the delay in making payment but the respondents are solely liable for the delay in making payment of retirement dues. It is submitted that therefore, the petitioner is entitled to interest at the rate of 18% for the delay of 11 years on delayed payment of retirement dues.

4. Submission of the AGP for respondent Nos.1 and 3 :

Mr.Manohar Rahevar, learned advocate for the respondent Nos.1 and 3 has submitted that Criminal Case No.1282 of 1985 was registered against the husband of the petitioner wherein he was acquitted on 11/3/1988 and thereafter he was died on 11/1/2004 and therefore, on 30/10/2004, the District Development Panchayat, Surat dropped dropped the departmental inquiry. It is submitted that thereafter the petitioner made a representation on 5/2/2013 requesting to fix pension and pay other Page 6 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined retirement dues and thereafter immediately 10/11/2015, the respondent No.2 sanctioned pension and granted other retirement benefits and actual payment to the petitioner. It is submitted that thus, there is no delay on the part of the respondents in making payment of retirement dues. It is submitted that after dropping inquiry, the petitioner had not made any representation and she made representation way back on 5/2/2013 and thereafter immediately benefits were made. It is submitted that when the petitioner did not make representation for retirement dues and there is delay in making representation on the part of the petitioner and after receipt of the representation, when the benefits of retirements has been paid by the respondent authority within a reasonable time and when the delay is not attributable to the respondents and the petitioner is on the part of the petitioner, the petitioner is not entitled to interest.

5. Submission on behalf of respondent Nos.2 and 4: 5.1. Mr.Rajesh Chauhan, learned advocate on behalf of Mr.H.S. Munshaw, learned advocate for the respondent Nos.2 to 4 has submitted that the husband of the petitioner was involved in a serious misconduct while performing his duties as Talati cum Mantri at Village Bhimrad, Taluka Choryasi, District Surat. It is submitted that husband of the petitioner was also involved in cases of irregularities in grant of Non Agrcultural Usage Permission and chargesheet Page 7 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined was issued and departmental proceedings were initiated against him and the department inquiry was pending at the time when the husband of the petitioner retired on reaching at the age of superannuation. It is submitted that thereafter the husband of the petitioner died on 11/1/2004 and hence, departmental inquiry was dropped by the District Development Officer, Surat, District Panchayat Surat vide order dated 30/10/2004. It is submitted that new District of Tapi was constituted on reorganization of talukas and Districts w.e.f. 2/10/2007 and as prior thereto Taluka Vyara was part of the District of Surat and not it has become a head quarter of District Tapi and the matter is being handled by Tapi District Panchayat. It is submitted that the husband of the petitioner was conditionally superannuated on 31/7/1986 but he did not submit required papers in prescribed format for the benefit of leave encashment and provisional pension. It is submitted that the husband of the petitioner for the first time made application on 23/3/1992 for the benefit of leave encashment and provisional pension but as departmental inquiry was pending, he was required to submit and fill up necessary forms for the benefit of pension, but he failed to do so and he did not take any action till his death on 11/1/2004. It is submitted that the husband of the petitioner never approached the authority for the benefit of pension till his death by way of submitting required papers.

NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined 5.2. Mr.Rajesh Chauhan, learned advocate for the respondent Nos.2 and 4 has submitted that even the petitioner being widow did not approach the respondents authority for family pension for nine years after death of her husband and she approached for the first time on 5/2/2013.

5.3. Mr.Rajesh Chauhan, learned advocate for the respondent Nos.2 and 4 has further submitted that the husband of the petitioner retired on 31/7/1986 and period of 27 years was passed and necessary service record was not on hand. It is submitted that the petitioner submitted duplicate pass book and immediately thereafter actions were taken and after getting required permission from the State of Gujarat, the entire procedure was completed and pension order was passed on 10/11/2015 by the District Examiner of Local Fund Audit and payment of Rs.10,65,380/- was paid towards pension from the date of retirement till date of payment. It is submitted that the petitioner is solely responsible for the non payment of pension. It is submitted that the petitioner has failed to explain the delay in approaching the authority for retirement benefits and completion of required procedure. It is submitted that the petitioner has not produced any documentary evidence to show that the authority was approached for such benefits immediately after retirement on 31/7/1986 as well as death of Mr.Desai on 11/1/2004.

NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined It is submitted that the departmental inquiry was dropped on 30/10/2004 and copy of the said order was also served to the petitioner. However, the petitioner did not approach the authority earlier and thereafter the petitioner approached the authority on 5/2/2013 and thereafter the necessary action was taken promptly and in absence of original service record due to passage of 27 years of time, necessary action were taken on the basis of duplicate service book provideed by the petitioner and after completing due procedure, the pension was passed on 10/11/2015 by the competent authority and amount is paid to the petitioner. It is submitted that when the delay is not attributed to the respondents and the payment of retirement dues has been made within reasonable time after the petitioner approached the authority, the petitioner is not entitled to interest on the delayed payment of retirement dues.

6. Heard Ms. Tejal Vashi, learned advocate appearing on behalf of Mr.V.H. Desai, learned advocate for the petitioner, Mr.Manohar Rahevar, learned AGP for the respondent Nos.1 and 3 and Mr.Rajesh Chauhan, learned advocate on behalf of Mr.H.S. Munshaw, learned advocate for the respondent Nos.2 to 4. Perused and considered the material on record.

7. FINDING :

7.1. Having heard the learned advocates for the respective Page 10 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined parties and considering the material on record, the following facts are undisputed :

7.1.1 The husband of the petitioner was working as Talati cum Mantri under the District Panchayat at Tapi on and from 1/6/1952 and he has retired at the age of superannuation on 31/7/1986 and hence he is entitled to 100% retirement benefits.

7.1.2. When the husband of the petitioner was serving as Talati cum Mantri of village Bhimrad, Criminal Case No.1282 of 1985 was filed against him wherein he was acquitted by the competent court vide judgement and order dated 11/3/1988.

7.1.3. The husband of the petitioner died on 11/1/2004 and therefore, on 30/10/2004, the District Development Panchayat, Surat taken a decision to drop the departmental inquiry against the husband of the petitioner.

7.1.4. Thereafter on 5/2/2013, the petitioner made a representation requesting to fix pension and pay other retirement dues.

7.1.5. Even thereafter on 10/11/2015, the respondent No.2 sanctioned pension and other retirement benefits and actual payment of Rs.10,65,380/- was made to the petitioner by Page 11 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined cheque.

7.2. In view of the aforesaid facts the question arise for consideration of this Court is with respect to delay in making payment and the delay is attributable to whom.

It is undisputed fact that the criminal case pending against her husband was disposed off on 11/3/1988 and even departmental inquiry was dropped on 30/10/2004. Therefore, when the departmental inquiry was dropped on 30/10/2004 at least from 1/11/2004 the petitioner was entitled to receive retirement benefits and such retirements ought to have been paid by the respondents authority within a reasonable period. It is true that the petitioner had made representation on 5/2/2013 to pay retirement benefits and thereafter the respondents paid the retirement benefits on 10/11/2015. Thus, though the departmental inquiry was dropped on 30/10/2004, retirement benefits have been paid by the respondents on 10/11/2015. The retirement benefits have been paid to the petitioner after a delay of 11 years. It is the case of the respondents that though the inquiry was dropped on 30/10/2004, the petitioner made representation belatedly on 5/2/2013 and thereafter the retirement benefits have been paid on 10/11/2015 and thus, there is no delay on the part of the respondents in making the payment of retirement dues. However, when after acquittal of the husband of the Page 12 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined petitioner by the competent court, the inquiry was dropped on 30/10/2004, the respondents ought to have paid the retirement benefits to the petitioner and for the delay in making payment of retiral dues, the respondents cannot take a stand that the petitioner made representation belatedly and hence the respondents are not liable for the delay. Once, the inquiry against the husband of petitioner was dropped on 30/10/2004, it was the duty of the respondents to make payment of retirement benefits to the petitioner within reasonable period, however, in the present case, the retirement benefits have been paid by the respondents after a period of 11 years on 10/11/2015. The delay of 11 years cannot be attributable to the petitioner. Once the departmental inquiry was dropped, it was the duty of the respondents to pay the retirement benefits to the petitioner, however, such benefits have been paid after 11 years. There is inordinate delay of 11 years in making the payment of retirement benefits. The delay of 11 years is solely attributable to the respondents and hence the petitioner is entitled to receive interest on the delayed payment of retirement dues.

8. In the result, present petition is partly allowed. The respondents are directed to pay interest at the rate of 9% per annum from the date on which the inquiry against the husband of the petitioner was dropped on 30/10/2004 till the actual payment of retirement benefits have been made Page 13 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023 NEUTRAL CITATION C/SCA/8743/2016 CAV JUDGMENT DATED: 11/08/2023 undefined on 10/11/2015. Such payment shall be made to the petitioner within a period of eight weeks from the date of receipt of receipt of this order, failing which the petitioner shall be entitled to interest at the rate of 12% per annum. Rule is made absolute to the aforesaid extent. No costs.

Sd/-

(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 14 of 14 Downloaded on : Sun Sep 17 01:09:28 IST 2023