Allahabad High Court
Om Prakash vs State Of U.P. And 3 Others on 8 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:82972
Court No. - 34 Reserved
A.F.R.
Case :- WRIT - A No. - 13460 of 2023
Petitioner :- Om Prakash
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Rakesh Kumar Mathur
Counsel for Respondent :- C.S.C.,Ganesh Datt Mishra
Hon'ble J.J. Munir,J.
1. Heard Mr. Rakesh Kumar Mathur, learned Counsel for the petitioner, Mr. G.D. Mishra, learned Counsel appearing on behalf of respondent No. 4 and Mr. Roopesh Tiwari, learned Standing Counsel appearing on behalf of the State.
2. The petitioner in this writ petition prays that a writ in the nature of mandamus be issued, directing the Chairman, Committee of Management/ Managing Director, Pradeshik Cooperative Dairy Federation Limited to pay the balance of gratuity due to the petitioner, together with interest on the entire gratuity paid with delay, leave encashment dues, dues on account of medical leave, special pay under the family planning scheme and other dues in consonance with the 6th Pay Commission.
3. The petitioner says that it is not in issue that the Project Director, the Project Engineer, Assistant Project Engineer and Junior Engineers appointed with the NOIDA Dairy Project, would be placed on deputation with the National Dairy Development Board (for short, 'the NDDB') till completion of project, and further for the employees and officers of the NOIDA Dairy Project, the U.P. Cooperative Employees Service Regulations, 1975 would govern their conditions of service until the framing of separate service rules. The petitioner was appointed on 11/15.08.1992 as an Assistant Project Engineer (Civil) with the NDDB, acting on behalf of the Pradeshik Cooperative Federation Limited (for short, 'the PCDF') on 23.11.1992. He joined as an Assistant Engineer on 23.11.1992 with the NOIDA Dairy Project, an autonomous unit of the PCDF. The petitioner's appointment letter shows that he would remain on deputation with the NDDB, wherefrom he was posted with the NOIDA Dairy Project. He was repatriated to his parent employer, to wit, the PCDF. He joined at the PCDF, NOIDA Dairy Project, NOIDA on 01.09.1999.
4. After serving the PCDF for 16 years, the petitioner resigned on 27.09.2008, giving a month's notice. His resignation was duly accepted by the Chairman, Committee of Management, Parag Dairy NOIDA, previously known as NOIDA Dairy. He was relieved on the same day. He asserts that on the day he resigned, the 6th Pay Commission had already come into force and that entitled him to all benefits of emoluments in terms of the 6th Pay Commission. The petitioner claimed his due gratuity, leave encashment of 259 days, medical leave and what the petitioner calls, other legitimate dues, including special pay under the family planning scheme. All these terminal dues, the petitioner claimed with interest, on account of the said claims being illegally withheld. He represented in the matter time over again. The writ petition is replete with details of these representations that the petitioner preferred. His grievance is that no heed was paid to any of his demands. He sought information under the Right to Information Act, 2005 and in response to one of his applications, he was furnished with an information dated 15.04.2014 that gratuity to the tune of Rs.29,000/- had been paid to the petitioner vide cheque dated 15.05.2012, and Rs.1,15,242/- by a cheque dated 15.04.2014, after deduction of 10% out of the total gratuity payable. Thus, a sum of Rs.1,60,269/- was paid to the petitioner.
5. So far as the leave encashment is concerned, the petitioner was informed that since he had resigned from service, all other claims that the petitioner made, stand refused. This letter was issued to the petitioner on 15.04.2014 under the Right to Information Act. The petitioner being dissatisfied with the aforesaid disposition of his claim, addressed repeat representations to the Milk Commissioner, U.P., Lucknow and other Authorities of the PCDF. The petitioner was in the course of this correspondence informed that leave encashment is not payable to an employee, who resigns service, and so also medical leave. So far as gratuity is concerned, it had been paid to the petitioner in three installments.
6. It is the petitioner's case that gratuity in the three detailed installments, that were paid to the petitioner, is as follows: Rs.29,000/- paid on 14.05.2012; Rs.1,15,242/- on 15.04.2014; and, Rs.16,027/- on 27.12.2016. This, according to the petitioner, does make for a figure of Rs.1,60,269/-, but in the payment of this sum of gratuity, there is a delay of eight years after his resignation. The petitioner says that it entitles him to interest on the belated payment of gratuity. It is next pleaded that the Chairman, PCDF, Lucknow, vide his office order dated 13.09.2002, has raised the ceiling limit of gratuity from Rs.2,50,000/- to Rs.3,50,000/-. Therefore, according to the petitioner, he is entitled to a sum of Rs.2,16,360/-, going by the number of years that he put in, instead of Rs.1,60,269/-, that were worked out on a gratuity ceiling of Rs.2,50,000/-.
7. So far as the claim to the payment of dues on account of leave encashment is concerned, though it is disputed that the petitioner is entitled to it, because he resigned, but that leave encashment is payable in case of an employee upon superannuation is not in issue. Nothing has been shown to this Court, where two affidavits have been filed on behalf of respondent No.4 that an employee of the PCDF, working with a particular Cooperative Society, like the fourth respondent, if resigns, would not be entitled to leave encashment. This Court also notices that during the course of hearing of this petition, an additional sum of Rs.86,546/- was paid to the petitioner through an instrument dated 04.11.2023, on account of revision of gratuity. This was done because in reckoning the petitioner's salary for the purpose of post retiral benefits, additional dearness allowance payable to him, was not earlier taken into consideration. It is no longer in dispute for the said reason that the petitioner has been paid a total sum of Rs.2,16,360/- in gratuity albeit without interest, and now as it transpires, the total sum of gratuity has been paid in four installments from 14.05.2012 to 04.11.2023, a period spread across 11 years approximately.
8. So far as the entitlement to leave encashment is concerned, it possibly cannot be denied by the respondents for reason that in the last pay certificate dated 27.09.2008 drawn for the petitioner, there is a credit of earned leave, shown due to the petitioner, for 259 days. Now, if this earned leave, which was not availed, is encashable for an employee of the PCDF, is clinched in terms of an office memo dated 13/21.01.2006 issued by the Managing Director/ Chairman, Administrative Committee, PCDF, that reads:
"कार्यालय ज्ञाप
प्रादेशिक कोआपरेटिव डेरी फेडरेशन के कर्मचारियों एवं केन्द्रियित सेवा के अधिकारियों को उपार्जित अवकाश नकदीकरण के मद में 300 दिवस की अधिमास सीमा तक उपार्जित अवकाश संचय करने, सेता निवृत्ति से पूर्व उपार्जित अवकाश उपभोग करने या सेवा निवृत्ति के पश्चात या मृत्यु की दशा में उनके आश्रितों को नकद भुगतान किए जाने के सम्बन्ध में शासन द्वारा जारी शासनादेश के अनुरूप धनराशि का भुगतान किए जाने विषयक प्रादेशिक कोआपरेटिव डेरी फेडरेशन लि0 की प्रबन्ध समिति की बैठक दिनांक 30-03-2005 के प्रस्ताव संख्या-10 एवं केन्द्रियित सेवा के अन्तर्गत गठित प्रशासनिक समिति की बैठक दिनांक 16-12-2005 के प्रस्ताव संख्या-1 का अनुमोदन दुग्ध आयुक्त/ निबन्धक द्वारा क्रमशः पत्रांक 869/ दुग्ध-2/ जनशक्ति दिनाँक 08-12-2005 एवं पत्रांक 985/दुग्ध- 2/ जनशक्ति दिनाँक 05-01-2005 द्वारा प्रदान कर दिया गया है।
अतः प्रादेशिक कोआपरेटिव डेरी फेडरेशन लिमिटेड की केन्द्रियित सेवा के अन्तर्गत गठित प्रशासनिक समिति एवं प्रादेशिक कोआपरेटिव डेरी फेडरेशन लिमिटेड की प्रबन्ध समिति द्वारा पारित प्रस्ताव के क्रम में दुग्ध आयुक्त/निबन्धक द्वारा प्रदत्त अनुमोदन क्रमश: दिनांक 08-12-2005 एवं दिनाँक 06-01-2006 में प्रादेशिक कोआपरेटिव डेरी फेडरेशन लिमिटेड के कर्मचारियों एवं केन्द्रियित सेवा के अधिकारियों को 300 दिवस की अधिकतम सीमा तक उपार्जित अवकाश संचय करने, सेवा निवृत्ति से पूर्व उपार्जित अवकाश उपभोग करने या सेवा निवृत्ति के पश्चात या मृत्यु की दशा में उनके आश्रितों को नकद भुगतान किए जाने की स्वीकृति प्रदान की जाती है।
ह0 अपठित
21.1.06
(सुषमा तिवारी)
प्रबन्ध निवेशक/अध्यक्ष (प्रशा0 समिति)
कार्यालय प्रादेशिक कोआपरेटिव डेरी फेडरेशन लिमिटेड, 29- पार्क रोड, लखनऊ
पत्रांक6276 / डी-1/पीईआर/एच/सी0ए0 98 (वालू-11) दिनांक 13/21-01-06
प्रतिलिपि सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेषित:
1- पी0सी0डी0एफ0 की समस्त इकाइयों/औ0एफ0, नान ओ0एफ0 दुग्ध संघ/ परियोजनाएँ/ समस्त क्षेत्रीय विप0 कार्यालय तथा समस्त प्रशिक्षण केन्द्र।
2- महाप्रबन्धक (वित्त), पीसीडीएफ मुख्यालय, लखनऊ।
ह0 अपठित
21.1.06
(सुषमा तिवारी)
प्रबन्ध निवेशक/अध्यक्ष (प्रशा0 समिति)"
9. A perusal of the said office memo shows that an employee of the PCDF accumulates a maximum of 300 days of earned leave that he can encash, if not utilized, upon his retirement, or by his dependents in the event of his demise. It is on the foot of this office memo, that decidedly gives the right to a retiring employee, or one who dies before retiring, to encash his accumulated unutilized earned leave up to 300 days, that the respondents say that it would not apply to a case where an employee resigns. There is no intelligible differentia shown to this Court by the respondents between the case of an employee retiring on superannuation or dying in harness, and one resigning in accordance with rules, vis-a-vis his right to claim leave encashment, that is one of his terminal dues. In the view that I take, I am fortified by the opinion of Hon'ble Mr. Justice Rajesh Singh Chauhan in Praveen Kumar v. Managing Director, PCDF and others, Service Single No.18548 of 2016, decided on 27.09.2021, where it has been held by His Lordship:
"Attention has been drawn towards Annexure No.CA-1 to the counter affidavit, which is an office memo dated 13/21.01.2006 issued by opposite party no.1 wherein it has been indicated that after completion of entire period of service, the employee shall be paid the amount of earned leave for maximum 300 days. However, in the aforesaid office memo, it has not been indicated that in case of resignation, such payment shall not be made.
Therefore, learned counsel for the petitioner has submitted that without there being any basis, the claim of 234 days of earned leave has been denied. Sri Sanjay Kumar Srivastava has submitted that whatever amount has been earned by the employee during his period of service, the same would be paid to such employee. In the present case, it is an admission on the part of the opposite parties that the petitioner has earned the amount of leave encashment for 234 days. At this stage, Sri Srivastava has placed reliance upon the dictum of the Apex Court in re; State of Jharkhand and Others v. Jitendra Kumar Srivastava and Another, (2013) 12 SCC 210, whereby the Apex Court has held that leave encashment cannot be taken away without any statutory provision. 'Earned leave', which is created by the statute, partakes the character of an emolument protected as a right to property of the concerned Government Servant under Article 300-A of the Constitution of India.
Considering the facts and circumstances of the issue in question and perusing the material available on record, the opposite parties could not demonstrate any statutory provision taking away the amount of leave encashment. The Apex Court in re; Jitendra Kumar Srivastava (supra) has clearly held that the amount of leave encashment cannot be taken away without any statutory provision."
10. To the same effect is the holding of this Court in Arun Kumar Das v. State of U.P. through Principal Secretary, Department of Dairy Development and another, Service Bench No.994 of 2011, decided on 13.02.2020. There is, therefore, no reason for the respondents to have denied the payment of dues on account of leave encashment for reason alone that the petitioner had resigned from service, though in accordance with rules and not retired or passed away in harness. This kind of a narrow interpretation cannot be placed upon the terms of the circular dated 13/21.01.2006 issued by the Managing Director/ Chairman, Administrative Committee, PCDF. If that were done, it would certainly militate against the principles enshrined in Article 300-A of the Constitution.
11. Now, the next question that arises for consideration is if on the delayed payment of gratuity, which the respondents have admittedly paid in four installments, spread across 11 years approximately from 14.05.2012 to 04.11.2023, interest is payable to the petitioner.
12. I had occasion to consider this issue while sitting at Lucknow in Service Single No. - 22370 of 2021, Ram Khelawan Shukla v. M.D. Pradeshik Cooperative Dairy Federation Lko. & Another, decided on 25.10.2021, where I held:
"Now, the petitioner presses for payment of interest due on the much belated payment of the substantial sum of his gratuity. The impugned order dated 21.06.2021 has been passed holding that there is no delay in payment of the petitioner's gratuity, as it was dependent upon availability of funds. About the order of the Managing Director dated 21.06.2021, this Court must remark that it is not only manifestly illegal but contumacious. This Court had clearly held inter partes in Service Single No.22272 of 2020 that financial stringency or precarious financial condition is not a ground to delay payment of post retiral benefits of an employee, holding so, on the strength decisions of their Lordships of the Supreme Court in D.S. Nakara (supra) and Kapila Hingorani (supra). The Managing Director, in writing the same reasoning to deny interest, has not only transgressed his office and passed an illegal order, but also virtually said something in contempt of the judgment dated 25.11.2020 passed by this Court inter partes. This Court does not wish to enter into that issue as in these writ proceedings, that is not the office or the frame of the cause. Apart from the fact that non-availability of funds is not a ground to delay payment of post retiral benefits of an employee like the petitioner here, what has been belatedly paid to the petitioner is his gratuity and it is a common ground between parties that the Payment of Gratuity Act, 1972 applies.
Sub-sections (3) and (3-A) of Section 7 of the Payment of Gratuity Act, 1972 read:
"(3) The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable to the person to whom the gratuity is payable.
(3-A) If the amount of gratuity payable under sub-section (3), the employer shall pay, from the date on which the gratuity become payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify:
Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground."
Clearly, any delay in payment of gratuity after thirty days carries interest payable at the rate that is payable on long-term deposits that the Government may, by notification, specify. Taking note of the prevalent rates of interest provided on long-term deposits, the delay in payment of the sum of gratuity to the petitioner, which is beyond thirty days, from his retirement, ought to carry simple interest at the rate of 6% per annum. In the opinion of this Court, the impugned order by the reasoning indicated, cannot be sustained."
13. The decision of mine in Ram Khelawan Shukla (supra) was affirmed by the Division Bench in M.D. Pradeshik Cooperative Dairy Federation Ltd. and Another v. Ram Khelawan Shukla, Special Appeal Defective No.541 of 2021, decided on 23.12.2021, to which the attention of the Court was drawn by the learned Counsel for the petitioner towards the close of arguments in this case.
14. There are certain other dues, which the petitioner presses his claim about and these are on account of medical leave, special pay under family planning and then that elusive description: other dues in consonance with the 6th Pay Commission. This Court, upon hearing the learned Counsel and perusing the record, does not find that any foundation has been laid for the said entitlement by the petitioner in accordance law and we cannot accede to that part of the petitioner's prayer.
15. In the result, this petition succeeds and is allowed in part. A writ in the nature of mandamus is issued, ordering respondent Nos.2, 3 and 4 to ensure amongst themselves payment of leave encashment dues to the petitioner and interest on the delayed payment of gratuity @ 6% simple annual calculated in the manner that interest would run from a month after the date of the petitioner's resignation till payment of the relative part of the due gratuity. The leave encashment dues shall also carry simple interest @ 6% per annum, reckoned from a month after the petitioner's resignation till the said dues are paid. The entire sum of money on account of interest on the belated payment of gratuity, dues on account of leave encashment and interest thereon, shall be paid within a period of six weeks from the date of receipt of a copy of this judgment by the respondents.
16. Let a copy of this judgment be forwarded to the Managing Director, PCDF, the Chairman, PCDF and the General Manager, Gangol Sahkari Dugdh Utpadak Sangh Limited, Partapur, Meerut by the Registrar (Compliance).
Order Date :- 08.05.2024
Anoop
(J.J. Munir, J.)
