John Aloysius Macwana vs Municipal Corporation Of Greater ...
2004 Latest Caselaw 103 Bom

JUDGMENT

S.C. Dharmadhikari, J.

1. Rule. Respondent waives service. Rule made returnable forthwith.

2. By this petition under Article 226 of the Constitution of India, petitioner seeks a writ of mandamus, directing the respondents to calculate and pay pension and other terminal benefits with further direction to respondents to release the same with interest at such rates as this Court deems fit and proper. It is unfortunate that after rendering 29 years of service with the respondent, the petitioner has been deprived of his terminal dues, although, he ceased to be in service from February 4, 1988. As to what delayed the release of terminal benefits has been explained on affidavit by the respondents but for the reasons indicated hereinafter, we are unable to accept the same.

3. On March 16, 1959, petitioner joined services as a Driver. He was a permanent employee. It appears that after having worked till 1983, petitioner fell ill and was unable to resume duties from April 2, 1983 to March 23, 1987. It appears that after submitting the medical fitness certificate, he was allowed to join duties on March 24, 1987. He worked for a period of 11 months till the date of his termination from service with effect from February 5, 1988. It appears that a charge sheet was drawn and served upon the petitioner for his gross misconduct, according to the authorities, of not reporting to duty and/or availing of unauthorised leave. The departmental proceedings culminated in order of termination.

4. In terms of a policy of allowing persons against whom no serious charges of misconduct are proved to resume duties, the petitioner applied for reinstatement. The said application was rejected by an order dated October 10, 1990. On December 19, 1992, petitioner was informed that he will not be entitled to gratuity in view of removal from service but would be entitled to provident fund. After this communication also nothing was released in favour of the petitioner. From February 1993 onwards, attempts were made by the petitioner for grant of permission to resume service or to get the legal dues released. This application has not met with favourable response. An approach to Regional Commissioner of Labour was unsuccessful. After serving legal notice, ultimately this petition has been filed by the petitioner.

5. In response to the petition, an affidavit of Office Superintendent with the respondents has been filed which is affirmed on January 27, 2004. In the said affidavit it is stated that till October, 1990, request of the petitioner for reinstatement in service was being considered and, therefore, his terminal dues could not be worked out. It is stated that the petitioner applied on March 4, 1996 for pensionary benefits and thereafter pension claim and gratuity were processed. It is urged that petitioner applied for invalid pension and the papers, therefore, were forwarded to several authorities and ultimately on June 27, 1997, the Executive Engineer directed the petitioner to file an affidavit on stamp paper of Rs. 20/-. Intimation to this effect was given to the petitioner on July 20, 1997 and a phone call was made prior thereto. It is stated that petitioner submitted his affidavit on January 8, 1999. Thereafter again papers were processed but it was discovered that salary details were not scrutinised on account of certain errors in the service record of the petitioner. It is stated that the matter was discussed with the Accounts Department on May 29, 2000 and on January 14, 2001, petitioner's papers were forwarded for sanction of invalid pension.

6. Mr. Mistry, learned counsel for petitioner contended before us that the action of the respondents in not releasing the terminal dues of the petitioner is grossly unfair and unreasonable and violates mandate of Articles 14 and 16 of the Constitution of India. Inviting our attention to the law laid down by the Apex Court in such matters, it is contended by Mr. Mistry that the authorities have no right to retain the dues of the employees who have rendered service. He contends that it is the right of every employee to get terminal dues and pensionary benefits on time. He contends that the explanation for the delay is not only unsatisfactory but is also not bona fide. He, therefore, submits that this Court should direct the authorities to forthwith release terminal benefits of the petitioner with interest.

7. Ms. Savla, learned counsel appearing for respondents submits that as stated in the affidavit, there is no deliberate inaction or delay on the part of the authorities and that on account of administrative exigencies, the delay, if any, has occurred.

8. We have considered the rival contentions. In our view, there is much substance in the submissions of Mr. Mistry. A perusal of the affidavit in reply filed on behalf of the Corporation would indicate that the time taken to settle the terminal benefits is wholly unjustified. The authorities may not consider the pleas of the petitioner for reinstatement after his removal from service with effect from February 5, 1988. However, this is no reason to withhold payment of dues for the service already rendered. There is no explanation as to why even after the communication of December 19, 1992, assuring the petitioner of releasing the amount standing to the credit of his provident fund account, it being not released to him. Assuming for the sake of arguments that gratuity was not payable to the petitioner, there is no reason why the other dues of the petitioner could not have been settled and released after this communication. The explanation in the affidavit that the petitioner did not come forward to sign some papers and furnish the affidavit on stamp paper is also not satisfactory. Even after the petitioner forwarded all these papers, the respondents were unable to search the records and upon the records being traced they did not undertake the scrutiny thereof within a reasonable time. The affidavit sets out as to why the delay took place and the explanation pertaining to the same is that there were errors in the service record of the petitioner and his medical report was not therein. On the own showing of the respondents, petitioner has been pursuing the matter atleast from March 1996. He has not been informed that the dues such as his provident fund and pension is not admissible for some reason or the other. Hence, we find that there is no substance in the contention of Ms. Savla that the inaction or delay on the part of the respondents is not deliberate. Equally untenable is the explanation that the delay occurred on account of non-compliance of certain formalities by petitioner as also because of administrative exigencies.

9. In our view, the action of not releasing the terminal dues within a reasonable time to the petitioner is unfair, unjust and unreasonable to say the least. It has been emphasised, time and again, by the Supreme Court that terminal benefits ought not be delayed and have to be released within a reasonable time. In fact, in State services as also elsewhere there are circulars and instructions issued by the authorities concerned to keep all documents and papers ready prior to the employee attaining the age of superannuation so that upon his retirement the dues can be released almost immediately. As to why such an endeavour is not made by the respondent Corporation is not clear to us. We hope that in future, the respondent Corporation would take prompt steps to settle the terminal dues of its employees and would not drive them to institute proceedings in a Court of law.

10. In the result, petition succeeds. Rule is made absolute in terms of prayer Clause (a). Respondents are directed to release the dues mentioned in prayer Clause (a) within a period of two months from today. Since the delay is not justified, in our view, in the facts and circumstances of the present case, respondents should be directed to pay interest at the rate of 8% p. a. from January 1, 1993 on the amount, which would be released in favour of the petitioner in terms of prayer Clause (a). We direct accordingly. AH concerned to act on an authenticated copy.