Delhi High Court
T.R. Gupta vs Mcd & Anr on 1 December, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 1st December, 2011.
+ W.P.(C) 8443/2011
% T.R. GUPTA .......Petitioner
Through: Mr. Ajit Singh, Adv.
Versus
MCD & ANR. ..... Respondents
Through: Mr. Devesh Pratap Singh, Adv. for
Ms. Maninder Acharya, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The petition impugns the orders dated 28.05.2010 and 30.09.2011 of
the Central Administrative Tribunal, Principal Bench in OA No.1580/2009
and OA No.3588/2011 respectively preferred by the petitioner, under
Section 19 of the Administrative Tribunals Act, 1985.
2. OA No.1580/2009 was preferred seeking directions for payment of (i)
interest at the rate of 18% per annum on gratuity, leave encashment and all
other pensionary benefits together with arrears of pension from the date they
were due upto the date of payment; and (ii) interest at the rate of 12% per
annum on the arrears of salary which had been disbursed in pursuance to
Resolution No.449 dated 06.11.2006.
3. The Tribunal vide order dated 28.05.2010 "allowed the OA
No.1580/2009" by directing payment of interest to the petitioner for the
delay of three months from his retirement, upto December, 2008 when the
amount due had actually been paid.
4. The petitioner had to file CP No.764/2010 before the Tribunal for the
enforcement of the said order. The respondents then complied with the
order and the CP No.764/2010 was accordingly disposed of on 03.06.2011.
5. It is the case of the petitioner that the respondents in compliance of
the order however paid interest only on the arrears mentioned in relief No.(i)
supra and not on the arrears of salary claimed in relief No.(ii) supra.
6. The petitioner accordingly filed OA No.3588/2011 seeking interest
@12% per annum on the arrears of salary which had been disbursed in the
month of December, 2008 in pursuance to Resolution No.449 dated
06.11.2006. The said OA No.3588/2011 was dismissed in limine vide order
dated 30.09.2011 (supra) holding that since the relief claimed therein was
claimed in the earlier OA No.1580/2009, the second OA for the same relief
was not maintainable.
7. With the consent of the counsels for the parties and considering the
nature of the controversy, we have heard the matter finally.
8. A perusal of the order dated 28.05.2010 in the first OA No.1580/2009
shows that the Tribunal discussed the matter under two heads i.e. "interest
on gratuity" and "interest on other retiral dues" and held that though
statutory provisions existed for payment of interest for delay in payment of
gratuity, no provision existed for payment of interest on other reitral dues;
however it was further held that even in the absence of any statutory
provisions, the petitioner was entitled to interest on "other reitral dues", by
way of compensation. The Tribunal though "allowed the OA" but did not
expressly discuss the relief claiming interest @ 12% per annum on arrears of
salary.
9. The Tribunal while dismissing the second OA No.3588/2011 vide
order dated 30.09.2011 has also observed that the relief which was prayed
for in the first OA and has not been granted, is deemed to have been
rejected. The counsel for the respondents has also contended so before us.
10. Per contra, the counsel for the petitioner has contended that the relief
cannot be said to have been declined inasmuch as the first OA No.1580/2009
was "allowed" in entirety and there is nothing in the order dated 28.05.2010
suggesting that the relief of interest on arrears of salary was denied. He
contends that merely because the Tribunal bifurcated the claim in the first
OA No.1580/2009 into two heads, i.e. "gratuity" and "other retiral dues" and
"other retiral dues" would include the claim for interest on arrears of salary
which also were admittedly due at the time of retirement and were paid
belatedly in 2008.
11. We cannot find any fault with the order dated 30.09.2011 on the
second OA No.3588/2011 insofar as holding the same to be not maintainable
for the reason of claiming a relief which was the subject matter of the earlier
OA. However, we do not agree with the observation therein that the relief
not granted is "deemed" to have been rejected. In the facts of the case, no
such presumption can be drawn. The counsel for the petitioner is correct in
contending that such "deeming" could not be done in view of the Tribunal
having "allowed" the OA and which would indicate that all the reliefs
claimed in the OA had been allowed / granted. Rather it appears that the
respondents took advantage of there being no express reference in the order
to the interest of arrears of salary.
12. Though we are of the opinion that it would have been proper for the
petitioner to have applied for review of the order dated 28.05.2010 before
the Tribunal but we are not inclined to now relegate the petitioner to the
Tribunal for yet another round of proceedings for the following reasons:
(i) The petitioner is already found to have been compelled to take
four proceedings for the relief claimed. The blame therefor
cannot be placed on the petitioner. The error if any was in not
making a specific reference to the arrears of salary and not
expressly directing payment of interest thereon also;
(ii) We have even otherwise noticed that the Tribunal has been
rejecting applications for review with the stock reasoning of the
scope of the review being limited. We thus feel that no useful
purpose would be served.
(iii) We otherwise also do not see any reason for depriving the
petitioner from the interest on arrears of salary. The logic and
reasoning given by the Tribunal in the order dated 28.05.2010
for granting interest on "other retiral dues" applies equally to
the arrears of salary also. The Tribunal has in the order dated
28.05.2010 awarded interest at the rates applicable to GPF
deposits.
13. We accordingly allow the writ petition and make the Rule absolute
and direct the respondents to, within six weeks hereof, pay interest to the
petitioner on arrears of salary disbursed to the petitioner in the month of
December, 2008 in pursuance to Resolution No.449 dated 06.11.2006, with
effect from 01.12.2006 (giving reasonable time for enforcement of the
Resolution No.449 dated 06.11.2006) and till December, 2008, at the rates
applicable to GPF deposits.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
DECEMBER 01, 2011/„gsr‟
