Subhash Chandra De vs The State Of West Bengal & Ors
2021 Latest Caselaw 5850 Cal

    35
26.11.2021
 Ct. No.23
    (PP)
                        IN THE HIGH COURT AT CALCUTTA
                       CONSTITUTIONAL WRIT JURISDICTION
                                APPELLATE SIDE

                                 WPA 13200 of 2021

                                 Subhash Chandra De
                                          Vs.
                            The State of West Bengal & Ors.

                       Mr. Ardhendu Nag
                                         ... for the petitioner.
                       Mr. Srinath Singha Roy,
                       Ms. Sudipa Roy
                                             ....for the State.
                       Mr. Amal Kumar Sen, AGP,
                       Mr. Sabyasachi Mondal
                                             ... for the CSTC.

                       Affidavit of service filed in Court today is taken on

             record.

                       The petitioner retired from service of Calcutta State

             Transport Corporation (in short "CSTC") on 31st January,

             2008.     At the time of his retirement a criminal case was

             pending as against the petitioner.          In view of such

             pendency of the criminal case, the petitioner was paid the

             provident fund dues amounting to Rs.4,28,727, but was

             not paid the gratuity and amounts on account of leave

             salary and difference of pay and allowance bill during the

             period of his suspension in view of the pendency of the

             criminal case. The petitioner was acquitted from the

             criminal case by a judgment and order dated 31st October,

             2018 delivered by the learned Judge, 24-Parganas (South),

             1st Special Court, Alipore in Special Case No.06 of 2004.

             Despite such acquittal, the gratuity, the amounts on
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account of leave salary and difference of pay and allowance

bill for the period of his suspension were not released

though the petitioner had made a representation on 5th

February, 2019.   The petitioner approached this Court for

release of the said amounts with interest by filing a writ

petition being, W. P. No.15142 (W) of 2019. The said writ

petition was disposed of by an order dated 14th August,

2019 by directing the Managing Director of CSTC to

consider the petitioner's representations within a period of

eight weeks from the communication of a copy of the said

order by passing a reasoned order and to communicate the

same to the petitioner. A direction was also given to the

extent that in the event the Managing Director of CSTC

found that any amount was due and payable to the

petitioner on account of retiral dues, the disbursement of

such amount should be made within four weeks from

passing of the reasoned order. The Managing Director of

CSTC, being the respondent no.3 in the instant writ

petition, has considered the petitioner's representation for

release of his retiral benefits in terms of the order dated

14th August, 2019 passed in W. P. No.15142 (W) of 2019.

The respondent no.3 has come to a finding that a

principal sum of Rs.1,85,040/- was due and payable to the

petitioner on account of gratuity. A sum of Rs.7,163/- was

deducted from the said sum of Rs.1,85,040/- on account

of excess payment of gratuity and a sum of Rs.1,77,877/-

was made over to the petitioner on or about 11th March,

2020 as gratuity. Apart from the gratuity amount, leave

salary amount of Rs.49,944/- and a sum of Rs.2,00,906/-

on account of difference of pay and allowance bill during

the suspension period from 21st June, 2001 till January,

2006 were also paid.

        The    petitioner      says   that    a    total   sum     of

Rs.4,28,727.00        (Rs.1,77,877.00        +    Rs.49,944.00     +

Rs.2,00,906.00)     was     receivable       by    the     petitioner

immediately upon retirement, but the same was kept

withheld till disbursement on or about 11th March, 2020.

The petitioner claims interest on the said total sum of

Rs.4,28,727/- @ 10% per annum from the date of his

retirement till the date of actual disbursement.

On behalf of CSTC, it is submitted that the amount

on account of gratuity was withheld due to pendency of the

criminal case, in which the petitioner was acquitted only

on 31st October, 2018. CSTC as a employer was not at

fault in withholding the amount on the aforesaid three

heads because all other retiral benefits apart from the

same had been paid to the petitioner on his

superannuation. These amounts were kept withheld

specifically for the pendency of the criminal case. The

petitioner, therefor, if at all is entitled to any interest, shall

be from the date of his acquittal, that is, 31st October,

2018 till its actual disbursement and not from the date of

his retirement. It is also submitted on behalf of CSTC that

the petitioner has not disclosed about the previous writ

petition, being W. P. 15142 (W) of 2019 and the order

passed therein and as such, the petitioner has approached

this Court with unclean hands. The petitioner is, therefor,

not entitled to the reliefs claimed in the writ petition.

The petitioner should have disclosed about the

previous writ petition and the order passed therein in the

instant writ petition. However, non-disclosure of such

particulars does not amount to suppression of fact as such

fact on being disclosed will not disentitle the petitioner

from the reliefs claimed in the instant writ petition in view

of the admitted facts. It is not in dispute that the three

sums aggregating to Rs.4,28,727/- was disbursed only on

or after 11th March, 2020, when the petitioner retired from

service on 31st January, 2008. It is also not in dispute

that the petitioner could have received the said sum had

he retired from service without the criminal case being

pending as against him. Once the petitioner has been

acquitted from the criminal case, he became entitled to

receive the said sum. Any delay in paying the same will

attract interest from the date of retirement, that is, 31st

January, 2008. Looking into the matter from a different

angle, CSTC has derived benefit out of the money which

was to be paid to the petitioner on his retirement, but was

ultimately paid on or after 11th March, 2020. The

petitioner was deprived of the benefit of money for all these

period. CSTC is, therefor, required to compensate the

petitioner by paying interest for the interregnum period

between 1st February, 2008 and 11th March, 2020.

The Payment of Gratuity Act, 1972 provides for

payment of interest for delayed payment of the gratuity

amount. The interest as prevailing in terms of the circular

is 10% at present. So far as the amount on account of

other two heads, one of which falls under the category of

retiral benefits and other being the difference of pay and

allowance bill during the suspension period from 21st

June, 2001 to January, 2006 also attracts interest. The

petitioner is also entitled to interest on such sums. In fact,

the difference of pay and allowance bill during the

suspension period from 21st June, 2001 to January, 2006

was required to be paid to the petitioner immediately after

January, 2006, but the same was not paid even on his

retirement.

I also find no justification in withholding the money

of the petitioner by CSTC on account of leave salary and

difference of pay and allowance bill during the suspension

period from 21st June, 2001 to January, 2006 on his

retirement.

Considering the matter as a whole and by

balancing the scale in the light of the judgments of this

Court as also the Hon'ble Supreme Court, I think justice

will be sub-served if CSTC is directed to pay interest @ 6%

per annum on the aggregate sum of Rs.4,28,727/- from 1st

February, 2008 till 11th March, 2020 by 10th January,

2022, failing which the interest rate for the entire period

and on the unpaid sum, if any, will become 10% simple

interest per annum.

Nothing further remains to be adjudicated in this writ

petition. The same is disposed of without any order as to

costs.

Since I have not called for any affidavits, allegations

made in the writ petition are deemed to have not been

admitted by the respondents.

Urgent photostat certified copy of this order, if applied

for, be given to the parties upon compliance of necessary

formalities.

(Arindam Mukherjee, J.)