Sh. Dhanwant Rai And Ors. vs Delhi Transport Corporation ...
2004 Latest Caselaw 945 Del

JUDGMENT

Manmohan Sarin, J.

1. By this judgment writ petition bearing Civil Writ No.6573/2003 titled Sh. Dhanwant Rai & Ors. v. Delhi Transport Corporation, and Civil Writ No. 10834/2004 titled as Nirmal Singh, Mechanic v. Delhi Transport corporation are being decided, as similar facts and common question of law is involved.

2. In C.W. No. 6573/2003, five petitioners namely S/Shri Dhanwant Rai, Ramji Dass, Kailash Chandra, Vidya Bhushan and Ram Singh seek directions to pay pension and other post retirement benefits such as their own share of Contributory Provident Fund (CPF), Employees share of Provident Fund (EPF), gratuity, leave encahsment, medical bills and unpaid salary to the petitioners with interest.

3. Civil Writ No. 10834/2004 is a petition filed by Shri Nirmal Singh who seeks similar directions. Counter affidavit had been filed on behalf of respondent-DTC in Civil Writ No. 6573/2003. Mr. J.N. Aggarwal, learned counsel for the respondent adopts the counter affidavit filed in Civil Writ No. 6573/2003 for purposes of Civil Writ No.10834/2004.

4. Learned counsel for petitioner Mr. Anil Mittal on instructions from petitioners confines the relief to direction be given for payment of pension and post-retiral benefits such as CPF, EPF, leave encashment, medical bills and unpaid salary within a time bound frame, additionally interest be awarded on the witheld gratuity amount.

5. Petitioners in both the writ petitions are retirees from Delhi Transport Corporation (DTC). Petitioners had been allotted quarters by the DTC in its colony at Hari Nagar. Petitioners continue to occupy the quarters even after retirement. Respondent-DTC did not process some of the post retiral benefits and payment of gratuity on account of non-vacation of the allotted accommodation. In some cases provident fund with interest and pension has been paid in the meanwhile.

6. Petitioners claim that Board of Directors of DTC had passed a resolution thereby deciding to allot the quarters to respective employees of DTC. It is claimed that even though the same was approved by the Ministry of Transport, subsequently the said Resolution was withdrawn. The allotees of flats at Hari Nagar filed a Suit bearing Suit No. 308/83 challenging this act of DTC. The suit was decreed directing allotment of quarters to respective allotees. However, an appeal against the same being RFA (OS) No. 4/92 was allowed by the Division Bench and the decree was set aside.

7. It is the case of the petitioners that in terms of interim directions, license fee for occupation of the flats/ quarters was paid. Respondent-DTC also as per its decision and practice was retaining a sum of Rs. 20,000/- to safeguard its interest as against the claim for damages etc. and releasing the balance amount of gratuity. However, in the case of petitioners even this was not done.

8. Mr. J.N. Aggarwal in opposition to the relief sought in the writ petition submitted that the petitioners continued to unauthorisedly occupy valuable quarters even after their retirement. The quarters had been allotted on license fee basis and the petitioners were bound to handover possession of the same. It was only in cases where the petitioners continued to occupy the quarters that CPF was released, but gratuity and other benefits were not released. He submits that the Corporation had taken a decision not to release gratuity and other allowances till the erring employees vacated the residential quarters. The continued occupation deprived other serving employees from the allotment of quarters. In some cases, the delay had entailed on account of the non furnishing of "No Demand Certificate."

9. In the present set of petitions as the petitioners are now confining their claim for interest on delayed payment only in respect of gratuity, a direction is issued to respondents to clear all the retiral benefits of the petitioners relating to CPF, EPF, Leave Encashment and medical reimbursement as due, within a period of one month from today.

10. Coming to the question of claim of interest on the witheld gratuity amount, this matter is no longer res-integra. For the reasons recorded by this Court in its judgment in Civil Writ No. 5808/02 titled as Gella Ram Vaswani & Anr. v. M.C.D. and Civil Writ No. 1139/03 titled as Inderjit Kaur v. M.C.D. delivered today it is held that non vacation of government or allotted accommodation, would not provide a tenable cause to withhold payment of gratuity.

11. The legal position which emerges upon amendment of Payment of Gratuity Act, by insertion of Section 7(3-A) is that under Section 7 a person eligible for payment of gratuity, is to apply to the employer for payment of gratuity. Sub-section (2) obliges the employer, whether such an application is made or not, to determine the amount of gratuity payable and give the notice in writing to the employee as well as the Controlling Authority, of the amount so determined. Sub-section (3-A) makes the statutory provision for payment of interest. Payment of interest is exempted only if the delay is on account of fault of the employee and the employer obtains permission of the Controller for delayed payment. None of these two conditions are satisfied in the present set of petitions.

12. In view of the foregoing discussion, it is held that respondents could not have withheld the payment of gratuity on account of non-vacation of government allotted accommodation or the non furnishing of No Demand Certificate. The obligation of determining the amount of gratuity being on the employer.

13. Accordingly following the Supreme Court decision in the case of H. Gangahanume Gowda v. Karnataka Agro Industries Corpn. Ltd. , respondents are directed to pay interest at the rate of 10% p.a. w.e.f. 30 days after the date of superannuation, on the principal amount of gratuity till the date of payment. Payment be made within two months from today together with interest as aforesaid.

Writ petitions are allowed in the above terms.