H.L. Warkoo vs Kashmir University And Ors.
2006 Latest Caselaw 71 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 400

1. In these writ proceedings, the petitioner has claimed directions to the respondents, i.e. the Kashmir University and the Resident Commissioner, Jammu & Kashmir, to release all pending amounts towards General Provident Fund arrears from 1.1.1999 to 31.5.2000, with Gratuity, Leave Salary, Special Medical Allowance benefits. A conse uential direction to pay interest at 18% on the amounts withheld has also been claimed.

2. The facts necessary for purposes deciding this petition are brief. The petitioner was appointed as Lecturer in the Respondent University's Math Department. He was promoted as Reader on 1.9.1983. He had opted for GPF-cum-Pension Scheme; the amounts were being credited to the GPF Account in the Jammu & Kashmir Bank. The amounts deducted from petitioner (tm)s salary as also the contributions of the Respondent University were to be deposited in the Bank and the University was maintaining fixed deposits for the purpose.

3. On account of unrest and turmoil in the State, the petitioner apprehending threat to his life and limb, fled from the State of Jammu & Kashmir along with his family members. He and several others came to Delhi. It is claimed that in September, 1990 and on 27.4.1991 the petitioner re uested the Respondent University to renew the FDRs, maintained for the purpose of the General Provident Fund amounts. Acknowledging the plight of the respondents who had to leave Jammu & Kashmir on account of the threat to their lives, the Government of Jammu & Kashmir and the Respondent University devised an arrangement, authorizing the Resident Commissioner of Jammu & Kashmir, in New Delhi to release salary and emoluments to the migrant employees who had settled in Delhi. As a result, the petitioner continued to receive salary, which was disbursed by the Resident Commissioner.

4. It is claimed that the petitioner made several attempts to remind the respondent authorities to renew the Fixed Deposit Receipts in respect of the General Provident Fund accruals so that he was not put to any loss.

5. The petitioner apparently was not given the benefit of pay revision and that benefit was admitted to him only on 28.10.2000. He attained the age of superannuation on 31.5.2000 and retired from the services of the Respondent University. However, the respondents did not take any steps to release the commuted pension, pension amounts payable from time to time, Page 401 gratuity, leave salary, General Provident Fund dues and Medical Allowance. Ultimately after much representation, the petitioner was intimated on 1.1.2002 that an amount of Rs.5,46,546/- was being released. He received those amounts. The order disbursing the amounts disclosed that gratuity amounts were withheld and the sum of Rs.6095/-, which have been drawn by the petitioner as Special Medical Allowance, was also deducted.

6. The petitioner represented and also caused legal notice to be issued to the Respondents claiming release of the amounts as also for disbursement of interest on amounts withheld, at commercial rates which ought to have accrued to his Provident Fund contributions on an aggregate amount of Rs.75,000/-, deposited up to 1.5.1992. It was alleged that the respondents did not take appropriate steps to renew the Fixed Deposit Receipts, leading to loss of interest amounts.

7. The University of Kashmir, by its communication dated 2.9.2002 intimated that the petitioner had not accounted for certain books issued to him, which were valued at Rs.1,28,329.45. It was claimed that an amount of Rs.94,060/- was actually withheld and it was what was re uired to be refunded by him. The University also enclosed a calculation chart which showed that the commuted value of pension to beRs.3,96,246/-, gratuity of Rs.3,50,000/- and the pension fixed after commutation was Rs.5049/-.

8. The petitioner made repeated representations for writing off the amounts of the re uirement stated that he was not in possession of the books. He claims that the deductions made are arbitrary and the respondents ought to have released the full amounts of gratuity and were under a duty to pay the correct rate of interest on the accruals of the General Provident Fund, since the omission of the Respondent University to renew the Fixed Deposit Receipts, had led to considerable monetary loss.

9. The respondents have filed a common counter affidavit. They allege that an amount of Rs.1,50,000/- was withheld on account of the value of the books which the petitioner is alleged to have failed to return. It refutes the petitioner (tm)s claim that while leaving Srinagar he had left the books in an almirah in the office. The University has also disclaimed responsibility for the loss of interest.

10. During pendancy of proceedings, this court had directed that the amount of gratuity, withheld, i.e Rs. 1,50,000/- ought to be deposited in the court; the direction was complied with. The petitioner moved an application, to withdraw the said amount; the application was heard along with the writ petition, finally.

11. Mr. Razdan, learned counsel for the petitioner, reiterated the contentions taken in the writ petition. He stated that the stand of the respondents in withholding the amounts and re uiring the petitioner to produce the books, is not only apathetic but cruel. Learned counsel submitted that when in 1990 the petitioner was forced to leave Srinagar, he was barely able to escape with his family members and the essential belongings. At that stage the position of the books issued to him was far from his mind. The petitioner was not alone in this plight; thousands of others fearing for their safety and personal security, fled the Kashmir Valley and went to other parts of the Page 402 country. Having lost all the major part of his possessions and immovable properties, the insistence of the Respondent University that the petitioner ought to return the books or in the alternative pay the amount towards their value, is arbitrary under the circumstances.

12. Learned counsel also submitted that the respondents were under a duty to ensure that the Fixed Deposit Receipts in respect of the petitioner (tm)s Provident Fund dues, were renewed from time to time. If such timely action had been taken, the amount of Rs.75,000/- would have yielded interest of Rs.22,18,259/-.

13. Mr. M.M. Sudan, learned counsel for the respondents raised objections as to the maintainability of these proceedings. He submitted that the petitioner was employed by the University and the arrangement by which salaries and other amounts were disbursed at New Delhi was purely out of convenience. The primary cause of action, is against the University which is located outside the territorial jurisdiction of this Court.

14. Learned counsel submitted on the merits that the petitioner cannot legitimately claim the amount of Rs.1,50,000/- withheld from his gratuity as admittedly the books issued to him were not returned to the University Library. Some of the books were valuable and included foreign Journals. The loss caused to the University had to be borne by the petitioner and the University had to be suitably compensated.

15. As regards the interest towards the Provident Fund accruals, it was submitted that when the matter came to the notice of the University, action was taken and the FDRs were renewed. Having regard to the disturbed conditions, which prevailed in the State, the lapse on this score, cannot be faulted.

16. Since the respondents have raised a preliminary objection as to the maintainability of the proceedings, it is necessary to first deal with that aspect. Under normal circumstances the cause of action in this case would perhaps have been beyond the territorial jurisdiction of this Court. in disputedly the petitioner was an employee of the University of Kashmir; the University is located outside the territorial jurisdiction of the Court. Nevertheless two circumstances are of importance in this case. The first is that the petitioner and the other employees fled the State, apprehending danger to their life. The Government of Kashmir as well as University took cognizance of this reality and rightly so. They provided a mechanism whereby the salary and emoluments of such employees continued to be disbursed by the University, through the Resident Commissioner. Therefore, I am of the opinion that all these years the University consciously recognized the need for having an arrangement in New Delhi. The terminal dues ultimately disbursed to the petitioner were also paid at New Delhi. Hence, I have no manner of doubt that at least part of the cause of action arose within the jurisdiction of this Court. These proceedings are, therefore, maintainable.

17. The second issue is whether the amounts were rightly withheld. The petitioner has not disputed that some of the books, which he had got issued to him when he was teaching in the University, could not be returned. It is, Page 403 however, contended that when he had to leave the State, rather abruptly, he never imagined that the security and law and order situation would be so grave that it would be impossible for him to return.

18. It is too well-known that the disturbed state of affairs has been prevailing in the State for the last 15 years or more. Thousands of people have lost their lives and several times more that number have become migrants, refugees within their own country; the petitioner is one such person. Providentially, he and his family members managed to escape from the State of Kashmir before any harm befell them. In these circumstances, the insistence of the University, in my considered opinion, that the petitioner should somehow return the books or face a substantial cut from the gratuity amounts payable to him, is not only unreasonable but completely insensitive. After having recognized the fact that there was no normalcy within the State, which led to an arrangement whereby the petitioner and the other employees were continuously paid their salary and allowances in New Delhi and treated as having been in service, it cannot be legitimately contended that the petitioner has to suffer a deduction from his just dues. I am, therefore, of the considered opinion that the amount of Rs.1,50,000/- withheld from the petitioner, should be paid to him.

19. The facts of this case disclose that although the petitioner retired in May 2000, he was not paid his pensionery/ terminal benefits and even pension for more than one and half years. Eventually, an amount of Rs.5.46 Lakhs was released in January, 2002. Even after giving some latitude the period of at least one year (tm)s delay in making payments towards terminal dues, remains unexplained. The petitioner, therefore, has to be suitably compensated by payment of interest.

20. The next issue is with regard to the lapse of the University in renewing the Provident Fund dues in a timely manner. Although the allegations were refuted in the counter affidavit, in the course of hearing the counsel submitted that the FDRs could not be renewed periodically due to the disturbed conditions. I am of the opinion that the petitioner (tm)s claim for payment of commercial rates of interest on the basis of which he has alleged that an amount of more than Rs.2.1 Lakhs would be payable, cannot be acceded to. However, the petitioner would have to be re-compensated suitably on this score also.

21. In view of the above conclusions, the following directions are issued to the respondents :-

(i)The Petitioner is entitled to the sum of Rs. 1,50,000/- i.e the amount deducted from the gratuity amount payable to him. It is open to the petitioner to withdraw the said amount, from the registry of this court. A further direction is issued to the Respondent University to pay interest @ 7% on the amount of Rs.1,50,000/- from 1.6.2002 to 31.12.2005;

(ii)The respondent University shall pay to the petitioner, interest @ 7% p.a on the amount of Rs. 5,46,546/- from 1-1-2001 to 1-1-2002;

Page 404

(iii)The Respondent University is directed to pay compensation assessed at Rs.50,000/- to the petitioner, towards the loss of interest on account of not renewing the provident fund, kept in a fixed deposit receipt with the Jammu & Kashmir Bank in a timely manner;

(iv)The amounts payable as per the above directions shall be disbursed to the petitioner, within a period of 8 weeks from today. In case of non-compliance, the petitioner shall be entitled to interst @ 10% on these amounts on the expiry of the period till the payment is made.

22. The petition is allowed to the extent indicated above. The petitioner shall also be paid costs amounting to Rs.7500/-, within the period of 8 weeks from today.