Suresh Kumar Srivastava vs State Of U.P.Thru.Prin.Secy. ...
2021 Latest Caselaw 8087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 

 
Case :- SERVICE SINGLE No. - 8001 of 2021
 

 
Petitioner :- Suresh Kumar Srivastava
 
Respondent :- State Of U.P.Thru.Prin.Secy. Agriculture & Ors.
 
Counsel for Petitioner :- Rajendra Singh Kushwaha
 
Counsel for Respondent :- C.S.C.,Shreeprakash Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

By means of this petition the petitioner has prayed following relief :

"(i) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to make the payment of petitioner's gratuity amount of Rs. 8,78,566/- (Eight Lakh, Seventy Eight Thousand, Five Hundred Sixty six) which was sanctioned for payment and which falls due since 31.12.2018 (date of retirement), with interest as applicable under the law as per annexure no. 1 to this writ petition, since his date of retirement up to the actual date of payment to the petitioner, as earliest possible, in the interest of justice.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to make the payment of petitioner's leave encashment amount (300 days x 47,589/) = (Total Rs. 4,75,890/-) ( Four Lakh, Seventy Five Thousand, Eight Hundred Ninty) as per last pay slip of December, 2018), as per order / later dated 03-02-2020 which is annexed as annexure no. 2 to this writ petition, with 18% interest, as earliest possible, in the interest of justice."

This Court has passed order dated 22.3.2021 which reads as under :

"The petitioner has retired from service of the opposite party/Corporation on 31.12.2018. Even after lapse of more than two years, the post retirement dues including gratuity amounting to Rs.8,78,566/- which was sanctioned for payment and leave encashment amounting to Rs.4,75,890/- as per last pay slip which has also been sanctioned has not been paid. Hence this petition for payment of the said amount along with interest @ 18%.

Let a short counter affidavit be filed in the matter by the opposite party no.2 himself as to what are the reasons for non payment of the aforesaid amount and why the same should not be ordered to be released along with interest as prayed.

List this case on 20.04.2021 as fresh.

In the meantime, it is expected that if there is no legal impediment in this regard, the payment of due amount shall be considered and appropriate decision shall be taken accordingly before the next date."

Today the learned counsel for the opposite party has prayed some more time to file short counter affidavit in terms of order dated 22.3.2021. On being asked as to why the petitioner has not been paid his dues despite the expectation shown by this Court vide order dated 22.3.2021, learned counsel for the opposite party has submitted that due to financial crunch the payment of dues could not be made to the petitioner. Learned counsel for the petitioner has, however, explained the financial status of the opposite party concerned in para 5 of the writ petition which reads as under :

"5. That it is very important to mention here that the petitioner was retired on 31-12-2018 and after three month in the month of March-2019, the financial year 2018-19 was ended, as per best knowledge of the petitioner the Corporation have heavy amount on the closing day of financial year 2018-19, the Corporation have F.D.R.-Rs.-3285.54 Lakh, Current Account Flexi-Rs. 7346.40 Lakh and interest as on 31.03-2019 Rs. 211.48 Lakh, the fund was very much with the Corporation, but the payment of the petitioner has not been made till date and petitioner is suffering very economic crisis."

Learned counsel for the petitioner has also drawn attention of this Court towards the judgment and order dated 29.1.2021 passed by this Court in Service Single No. 1764 of 2021 (Praveen Kumar Mahavani vs. State of U.P. and others) which is Annexure no. 12 to the writ petition by submitting that the present petition is identical with the petition of Praveen Kumar Mahavani (supra) and both the writ petitions being identical, therefore, this writ petition may be decided in terms of order dated 29.1.2021 passed in Praveen Kumar Mahavani (supra). For convenience the judgment and order dated 29.1.2021 reads as under :

"Heard.

This Court has passed the order dated 22.01.2021 as under:-

"Heard Sri R.S. Kushwaha, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Sri Devak Vardhan, holding brief of Sri Shree Prakash Singh, learned counsel for opposite parties no.2 & 3.

By means of this petition, learned counsel for the petitioner has submitted that the petitioner has retired from service on 28.2.2019 and till date, he has not been paid the amount of gratuity as well as leave encashment, however, as per information, there is no legal impediment to that effect.

List on 29.1.2021 as fresh to enable the learned counsel for opposite parties no.2 & 3 to seek complete instructions in the matter. It is also kept open for opposite parties no.2 & 3 to make payment of gratuity and leave encashment to the petitioner in the meantime, if there is no legal impediment."

Learned counsel holding brief of Sri Shree Prakash Singh has submitted that there is no legal impediment in making payment of the dues which have been prayed in the present writ petition but the financial condition of the Corporation is not very sound. Therefore, there is delay in making payment of the aforesaid dues to the employees of the Corporation, however, such payments are being made.

Learned counsel for the petitioner has drawn attention of this Court towards para-5 of the writ petition wherein he has indicated that the financial condition of the Corporation is sound.

On that, the holding brief of Sri Shree Prakash Singh has submitted that he has no instructions on that point, however, as per his instructions, the financial condition of the Corporation is very poor. Learned counsel for the petitioner has further drawn attention of this Court towards Annexure Nos.1 and 2 to the writ petition, whereby the Chief Accounts Officer/ Finance Controller has passed the orders for making payment of dues to the petitioner on 28.02.2019 (Annexure No.1) and 03.02.2020 (Annexure No.2) respectively, but till date, the amount of gratuity and leave encashment has not been paid to the petitioner.

Be that as it may, if there is no legal impediment of making payment of gratuity and leave encashment to the petitioner and appropriate orders have been passed by the Competent Authority dated 28.02.2019 (Annexure No.1) and 03.02.2020 (Annexure No.2) then such payment should be made by now as about one year period has passed with effect from 03.02.2020. If the payment of dues has not been made for substantially long period i.e. about the period of two years in the present case, then the excuse of financial constraint of the Corporation may not be taken. The service of the petitioner was not pensionable, therefore, his livelihood is depend upon the retiral dues, for which, this writ petition has been filed. Therefore, in making payment of gratuity and leave encashment, for which appropriate orders have already been passed by the Competent Authority way back in the month of February, 2019 and February, 2020, the laid-back attitude of the Corporation is not appreciable.

Accordingly, the writ petition is decided at the admission stage directing the respondent-Corporation to make payment of gratuity and leave encashment to the petitioner in terms of orders dated 28.02.2019 (Annexure No.1) and 03.02.2020 (Annexure No.2) with expedition, preferably, within a period of two months from today. The petitioner shall also be entitled for interest on delayed payment if it is so prescribed under law. However, it is made clear that if the payment, as directed by this Court, is not made to the petitioner within the aforesaid stipulated time, the petitioner shall be entitled for interest at the rate of 6% from the date it becomes due till the date of actual payment.

In view of the aforesaid terms, the writ petition is allowed."

Having heard learned counsel for the parties and having perused the material available on record as well as the order dated 29.1.2021 passed in Praveen Kumar Mahavani (supra), I am of the considered opinion that the present writ petition can be decided in terms of order dated 29.1.2021 passed in Praveen Kumar Mahavani (supra).

Accordingly the present writ petition is allowed in terms of order dated 29.1.2021 passed in Praveen Kumar Mahavani (supra), therefore, the petitioners shall be extended all the benefits in terms of aforesaid judgment in re: Praveen Kumar Mahavani (supra).

No order as to costs.

The opposite parties shall make compliance of the order within three months, failing which the petitioner may claim interest on the dues strictly in accordance with law.

Order Date :- 16.7.2021

Om

(Rajesh Singh Chauhan, J.)