Bombay High Court
Shri. Limbaji M. Tapase vs The Commissioner, State Excise ... on 21 October, 2022
Bench: Madhav J. Jamdar
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Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8489 OF 2021
Shri Limbaji M. Tapase .. Petitioner
Vs.
The Commissioner, State Excise
(M.S.), Mumbai & Ors. .. Respondents
Mr. Sanjiv Sawant a/w Mr. Abhishek Matkar a/w Mr. Malhar
Bageshwar i/by Mr. Abhishek Deshmukh for petitioner.
Mr. M. M. Pabale, AGP for respondents.
CORAM: DIPANKAR DATTA, CJ. &
MADHAV J. JAMDAR, J.
DATE : OCTOBER 21, 2022
P.C.:
1. There is a typographical error in the earlier order
dated 19th October 2022. The date "30th October 2020" in
paragraph 2 of the said order shall read "30th October
2000".
2. Dismissal of Original Application No. 464 of 2017, on
the file of the Maharashtra Administrative Tribunal, Mumbai
(hereinafter "the Tribunal", for short), is questioned in this
writ petition dated 18th February, 2020 by the unsuccessful
original applicant as the petitioner.
3. The Tribunal was approached by the petitioner seeking
an order for grant of compound interest at the rate of 18%
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per annum in respect of delayed release of pay and
allowances for the promotional post of Sub-Inspector, State
Excise, during the period 21st April, 1988 to 31st October,
2000. The Tribunal noted the chequered history of litigation
and the uncontroverted facts giving rise to the original
application in paragraph 2 of its judgment.
4. What appears therefrom is that while serving the State
Excise department as a Clerk, the petitioner was denied
promotion to the post of Sub-Inspector. Upon an original
application being instituted by the petitioner, the Tribunal
disposed of the same on 28th July, 2000 directing the
respondents to consider the petitioner for promotion on and
from such date when his juniors were promoted or deemed
to have been promoted prior to 1st January, 1993, without
taking into account physical requirements prescribed by the
Commissioner, State Excise. The Commissioner responded
partly in favour of the petitioner. By an order dated 31st
January, 2003, he granted deemed promotion to the
petitioner with effect from 21st April, 1988. However,
difference of pay and allowances from 21st April, 1988 to
the actual date of promotion, i.e., 30th October, 2000 was
refused. The reasons for such refusal are not relevant since,
at the relevant time, there was no challenge by the
petitioner to that part of the order of the Commissioner
refusing him difference of pay and allowances. On 31st July,
2005, the petitioner retired on attaining the age of
superannuation. After retirement, the petitioner invoked the
machinery under the Right to Information Act, 2005
(hereafter "RTI Act", for short) and obtained information
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that two of his similarly placed colleagues were paid back-
wages. Without approaching the Tribunal, the petitioner
instituted a writ petition before this Court directly. A
coordinate Bench of this Court disposed of the writ petition
on 8th August, 2007 granting liberty to the petitioner to
approach the respondents. A representation dated 23rd
August, 2007 having been made before the Commissioner
claiming back-wages as granted to the said two colleagues
of the petitioner, the Commissioner passed an order on 16th
December, 2010 granting difference of pay and allowances
in respect of the promotional post for the period from 21st
April, 1988 to 30th October, 2000. Accordingly, a sum of Rs.
85,460/- towards pay and allowances were paid to the
petitioner on 11th February, 2011. The petitioner once again
invoked the writ jurisdiction of this Court seeking direction
for grant of compound interest at the rate of 18% per
annum on delayed payment of Rs.85,460/-. This time,
another coordinate Bench disposed of the writ petition on
1st December, 2011 with liberty to the petitioner to
approach the Tribunal. The Tribunal having been
approached with an original application, the same was
disposed of by it on 3rd October, 2013 granting liberty to the
petitioner to make a representation to the competent
authority claiming interest. Representation dated 18th
September, 2014 was submitted by the petitioner before the
Commissioner which stood rejected by an order dated 26th
March, 2015 and 22nd July, 2015. Aggrieved by the rejection
of such representation, the Tribunal was finally approached
by the petitioner which dismissed the original application
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giving rise to this writ petition.
5. We have heard Mr. Sawant, learned counsel appearing
for the petitioner. He has placed reliance on the
Government Resolution dated 22nd November, 1994. It
stipulates that if payment of any sum or allowance is
released beyond six months from the date the sanction
order is issued, the Government servant would be entitled
to payment of interest at the rate declared by the Reserve
Bank for term deposits for certain periods in the Banks.
According to him, the entitlement of the petitioner to the
amount of Rs.85,460/- should relate back to 31st January,
2003 when the Commissioner granted deemed promotion to
him with effect from 21st April, 1988 but erroneously
refused the differential pay and allowances; and, as a
sequitur, for delayed release of payment of such sum on
11th February, 2011, the petitioner is entitled to interest for
the period between 31st January, 2003 and 11th February,
2011.
6. In support of his contention that the petitioner is
entitled to interest, reliance has been placed by Mr. Sawant
on the decision of the Supreme Court in S. K. Dua vs.
State of Haryana & Anr., reported in (2008) 3 SCC 44,
and a coordinate Bench decision of this Court in Yuvraj
Nathuji Rodye vs. Chairman, Maharashtra State
Electricity Board, Bombay & Ors., reported in 2008 (6)
Mh. L.J. 384.
7. Having heard Mr. Sawant, we have not considered it
necessary to call upon Mr. Pabale, learned AGP for the
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respondents to answer.
8. The Government Resolution dated 22nd November,
1994 is in Marathi. The English version thereof is available
at pages 68A to 68E of the paper book. To the extent
relevant, the English version reads as follows: -
"2. Fixation of pay on Promotion, Deemed Date
or Revision of pay after restructure of pay.
If the arrears are paid within six months of issuance of
order in respect of restructure of pay on promotion or
after six months of giving approval to the deemed
date by the Government, in such case the interest
shall be paid for the period after six months from the
issuance of the relevant order, till the preceding
month of payment.
*****
2. In case of delay in making the payment of
arrears on fixation of pay on restructure, promotion,
deemed date and also advance increment and arrears
of additional allowances, not because of the fault of
the Government servant but for administration
reason/ mistake, the aforesaid procedure shall be
applicable for payment of interest and the
Administrative Department shall verify each individual
matter and necessary directions be issued with
approval of the Secretary of the Administrative
Department.
3. The Government further directs that, the rate of
interest on the delayed payment shall be as per the
rate declared by the Reserve Bank for the term
deposits for certain period in the Banks.
*****
6. This order shall come into force from the date of
issuance of this order. The matters which are finally
closed shall not be reopened after issuance of this
order."
(emphasis ours)
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9. The decisions in S. K. Dua (supra) and Yuvraj
Nathuji Rodye (supra) lay down principles of law which,
though undisputed, are not applicable in the facts and
circumstances of the present case. On the contrary, we are
inclined to the view that suitable guidance could be drawn
from the decision of the Supreme Court in Alok Shanker
Pandey vs. Union of India & Ors., reported in (2007) 3
SCC 454, as well as the Government Resolution dated 22nd
November, 1994 itself for deciding this writ petition.
Paragraph 9 of Alok Shanker Pandey (supra) reads as
follows: -
"9. It may be mentioned that there is misconception
about interest. Interest is not a penalty or punishment
at all, but it is the normal accretion on capital. For
example if A had to pay B a certain amount, say 10
years ago, but he offers that amount to him today,
then he has pocketed the interest on the principal
amount. Had A paid that amount to B 10 years ago,
would have invested that amount somewhere and
earned interest thereon, but instead of that A has kept
that amount with himself and earned interest on it for
this period. Hence, equity demands that A should not
only pay back the principal amount but also the
interest thereon to B.
10. It is clear on a reading of the aforesaid excerpt that
right to interest accrues on and from the date the right to
receive money (on whatever count) stands crystalized but
such money is not paid to whom it is legally payable. In the
present case, the order dated 31st January, 2003 on the one
hand appears to have granted the petitioner the benefit of
deemed promotion but on the other hand, refused him
difference of pay and allowances from 21st April, 1988 till
30th October, 2000. Prior to his retirement and even for a
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period of two years thereafter, the petitioner did not
question the order of the Commissioner denying him
difference of pay and allowances by approaching the
appropriate forum. Any approach to the Tribunal years after
retirement would have been barred by time. Instead of
approaching the Tribunal, the petitioner approached the writ
court as late as in 2007. It was claimed that he obtained
information through the machinery provided by the RTI Act
that two other colleagues of his had been paid back-wages;
therefore, he prayed that similar benefit ought to be
extended to him. The order dated 31st January, 2003
passed by the Commissioner not having been challenged,
the same attained finality in its entirety. However, fortune
smiled on the petitioner. Even though he had not questioned
the order dated 31st January, 2003 insofar as it refused him
difference of pay and allowances, far less having such order
reversed by the Tribunal/this Court, the Commissioner then
took a charitable view of the matter and passed the order
dated 16th December, 2010 granting him difference of pay
and allowances in respect of the promotional post with
effect from 21st April, 1988 to 30th October, 2000.
11. Without expressing any view on whether the
Commissioner had the authority in law and/or followed the
appropriate procedure to revisit the issue and grant
difference of pay and allowances to the petitioner, which
was earlier refused by the Commissioner by his order dated
31st January, 2003, it is the undisputed position on facts
that the petitioner's entitlement to the differential pay and
allowances in a sum of Rs.85,460/- can be said to have
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accrued not prior to 16th December, 2010 when the relevant
order was made. In terms of the Government Resolution
dated 22nd November, 1994, the sum had to be released in
favour of the petitioner within a period of six months from
16th October, 2010. The same was paid on 11th February,
2011, i.e., within six months. The Tribunal was, therefore,
entirely justified in holding that the petitioner was not
entitled to claim interest since payment of Rs.85,460/- was
released within six months of 16th October, 2010. The
Government Resolution dated 22nd November, 1994 having
made it clear that interest has to be paid if the amount in
question is not released within six months from the date of
the relevant order made in that behalf, the same would
clinch the issue for the respondents and against the
petitioner. We need not rely upon the law laid down in S. K.
Dua (supra) and Yuvraj Nathuji Rodye (supra) for the
purpose of a decision on this writ petition, in view of the
special facts and circumstances noted above. The
entitlement to receive Rs.85,460/- accrued only by reason
of the order dated 16th December, 2010 and not before, and
payment having been released within six months, i.e., on
11th February, 2011, we find the claim of the by now
septuagenarian petitioner to be one lacking merit. It is
understandable that there could apparently be no worthy
reason for refusing the difference of pay and allowances
while deemed promotion was granted by the order dated
31st January, 2003, but the petitioner has himself to blame
for not voicing his grievance at the appropriate time. The
subject Government Resolution instead of assisting the
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petitioner contains terms which seals his fate insofar as the
claim for interest is concerned.
12. The judgment and order of dismissal of the original
application of the petitioner by the Tribunal is
unexceptionable and is, therefore, upheld.
13. In the result, the writ petition stands dismissed. No
costs.
(MADHAV J. JAMDAR, J.) (CHIEF JUSTICE)
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2022.10.22
15:28:40
+0530
