Calcutta High Court (Appellete Side)
Lakhan Ghorui vs The State Of West Bengal & Ors on 19 June, 2023
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Raja Basu Chowdhury
WPA 2313 of 2023
Lakhan Ghorui
Vs.
The State of West Bengal & Ors.
For the petitioner : Mr. Tauhid Khan
Mr. Marufa Mondal
For the Provident Fund Authorities : Mr. Anil Kumar Gupta
For the respondent nos. 5, 6 & 7 : Ms. Amrita Pandey
Ms. Sneha Singh
Heard on : 19.06.2023
Judgment on : 19.06.2023
Raja Basu Chowdhury, J:
1. The present writ application has been filed, inter alia, praying for
a direction upon the respondent nos. 6 and 7 to release and
disburse the provident fund amount and other dues of the
petitioner along with interest @ 10 per cent per annum towards
the delayed payment of retiral benefits.
2. During the pendency of the aforesaid application, the respondent
nos. 6 and 7 had disclosed provident fund statement of
subscriber's balance wherefrom it would appear that the
respondents had computed a sum of Rs.1,54,061.65p, as an
amount due and payable to the petitioner.
3. On 8th May, 2023, the learned advocate representing the
respondent nos. 5 to 7 had placed before this Court a cheque for
Rs. 1,54,061.65p dated 29th April, 2023, drawn in favour of the
petitioner "Lakhan Ghorui". The said cheque was made over to
the petitioner's advocate, who had accepted the same without
prejudice to the rights and contentions of the petitioner in the
writ application.
4. Mr. Khan, learned advocate representing the petitioner submits
that the aforesaid cheque has since been en-cashed. By drawing
attention of this Court to the provident fund statement of
subscriber's balance, he says that the respondents have
computed interest @ 4.0428 per cent, which is far below than the
statutory rate.
5. Mr. Gupta, learned advocate representing the provident fund
authorities submits that the respondent no.5 is an exempted
establishment under Section 17 of the Employees' Provident
Funds and Miscellaneous Provisions Act, 1952 (hereinafter
referred to as the said Act). He says that in terms of the Provision
of Section 17 of the said Act, an exempted establishment is
required to make payment of provident contributions to its
employees which shall in no way be less favourable to the
employees than the benefits provided under the said Act or any
Scheme in relation to the employees in any other establishment of
similar character. He says that respondent nos. 6 and 7 could not
have declared interest less than the statutory rate. In any event,
the respondents are bound to pay interest @ 12 per cent per
annum in terms of Section 7Q of the said Act for delayed payment
of provident fund contributions.
6. Ms. Pandey, learned advocate representing the respondent nos. 5,
6 and 7 submits that the provisions of Section 7Q of the said Act
cannot be made applicable to the respondent no.5. She further
submitted that the petitioner cannot be permitted to question the
declaration of interest made by the respondent nos. 6 and 7.
7. I have heard the learned advocates appearing for the respective
parties and considered the materials on record. Admittedly, in
this case I find that the petitioner has been superannuated from
service on 1st January, 2020. Ordinarily, before an employee is
superannuated, the process for disbursal of his retiral benefits
starts at least six months prior to his superannuation. The
respondents, therefore, were under obligation to ensure that
immediately upon retirement, retiral benefits be disbursed in
favour of the petitioner. If the respondents have failed to disburse
the retiral dues including provident fund dues, they are obliged to
pay compensatory interest, especially when there is no
explanation for the delay. It has been held by the Hon'ble
Supreme Court in S.K. Dua v. State of Haryana & Anr.
reported in (2006) 3 SCC 44, that an employee has a right under
Article 14, 19 & 21 of the Constitution of India to claim interest
on delayed payment of retiral benefits.
8. Admittedly, in this case, despite the writ petitioner being
superannuated on 1st January, 2020 the retiral benefits,
including the provident fund dues had not been disbursed. It was
only after the filing of the writ petition, that the respondent nos. 6
and 7 had handed over a cheque dated 29th April, 2023 in Court
on 8th May, 2023.
9. In the aforesaid fact the respondents cannot be permitted to avoid
liability of payment of interest. I find that the respondents have
computed interest @ 4.0428 per cent. Ms. Pandey has, however,
not disclosed any document and/or order which would authorize
respondent nos. 6 and 7 to compute interest @ 4.0428 per cent.
In my view, the respondents ought to have paid interest at least @
10 per cent per annum on account of delayed payment of
provident fund dues.
10. Having regard to the aforesaid, I propose to dispose of the writ
petition by directing the respondent nos. 6 and 7 to make
payment of additional interest to the petitioner by computing
interest @ 10 per cent per annum on the provident fund
accumulations from the date when the same had fallen due i.e.
from the date of superannuation of the petitioner till the date of
actual disbursement. While making such payment, the
respondent nos. 6 and 7 shall be entitled to the benefit of the
amount of interest already paid. The balance amount must be
made over to the petitioner along with a statement of
computation, within a period of four weeks from the date of
communication of this order.
11. With the aforesaid directions and or observations, the writ
petition stands disposed of.
12. There shall be no order as to costs.
13. Since no affidavit-in-opposition has been called for, the
allegations contained in the writ petition are deemed not to have
been admitted by the respondents.
14. Urgent photostat certified copy of this order, if applied for, be
given to the parties upon compliance of necessary formalities.
(Raja Basu Chowdhury, J.)
S.B.
Assistant Registrar (Court)
