Ashok Kumar Verma vs The New India Assurance Co. Ltd.
2013 Latest Caselaw 4722 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 6444/2011 & CM 13885/2013

%                                                    10th October, 2013

ASHOK KUMAR VERMA                                   ......Petitioner
                Through:                 Mr. R.K.Sahni and Mr. Arun Mittal,
                                         Advocates.

                          VERSUS

THE NEW INDIA ASSURANCE CO. LTD.      ...... Respondent

Through: Mr. Saurabh Prakash, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner seeks direction against his erstwhile

employer/respondent/New India Assurance Company Limited for release of

the ex-gratia and terminal dues amounting to Rs.4,95,297/- alongwith

interest. Petitioner took voluntary retirement under the Special Voluntary

Retirement Scheme, 2004 (in short „SVRS Scheme‟), and dues claimed by

the petitioner are part of the dues payable on the application for voluntary

retirement being accepted by the respondent.

2. The fact that this amount was due and payable to the petitioner

under the SVRS Scheme is not disputed by the respondent in the sense that

such dues were calculated/payable as ex-gratia and terminal dues, however,

what the respondent contends is that these dues were recovered on account

of certain claims of the respondent, and further that since then categorical

position of refusal to make payment was known to the petitioner by

communication dated 9.10.2007, the present petition is barred by delay and

laches.

3. Let me at the outset reproduce the letter dated 9.10.2007 and

which contains the necessary item-(j) with respect to which the disputes

exist between the parties i.e the disputed amount of Rs.4,95,297/-.

"CORP:HRM: CL I CELL: 2007 9th October 2007 Mr. A.K.Verma A-127, Jhilmil Colony, Near Vivek Vihar Phase II Delhi 1100 95.

Dear Sir, Re: Compliance of order of CIC dated 05.09.2007. In compliance to the order of CIC referred above, in F No. CIC/AT/A/2007/00701, the replies to the queries are as under:- Item No.(f) No common uniform Perform had been formulated and circulated to Regional Offices to intimate the recovery due under non-personal

audit query. The Regional Offices were to reflect this amount under this head when advising Head Office with regard to the total recoveries to be effected against any SVRP Optee. Item No.(j) A recovery of Rs.37,23,192/- was communicated to Head Office by Delhi R.O. II vide their letter ref. DRO II/HRM/CL I CELL/2004 dated 7th July, 2004 which was inclusive of recovery of Rs. 34,86,354/- under non-personal audit query. In the same stretch we would like to refer to letter dated 17.06.2004 of Mr. S.K.Mutneja, the then Assistant General Manager Delhi Regional Office-I whereby you were informed of the said Audit queries and which inter-alia also contain reference of your representation dated 11.05.2004 and your subsequent correspondence in the matter. On the basis of representation submitted by you, Delhi RO I constituted a Committee to examine the same and after perusal of all requisite documents/records the submitted their Report on 20.03.2007 recommending recovery of Rs. 4,95,297/- only. Please note that the settlement of dues was legitimately held up due to the representations submitted by your goodself and its examination by the Committee specifically formed to examine your grievance. Item No. (k) We are advising our Delhi RO I provide you the details of the settlement of terminal dues (with payment details) along with deductions effected under various heads. Item No. (m) The information sought by you is not readily available in material form and hence we are unable to provide the same. In terms of CIC‟s order dated 05.09.2007 we are advising our Delhi RO I to communicate an appointment to you to enable you to visit our Delhi RO I at the appointed date and time to inspect the relevant records in case you are desirous for the same. We trust you shall find our reply in order. Yours truly

(S P SINHA) Chief Manager."

4. Learned counsel for the respondent has laid great emphasis on

the doctrine of delay and laches and has placed reliance upon the judgments

of the Supreme Court in the cases of Union of India (UOI) & Ors. Vs.

Tarsem Singh (2008) 8 SCC 648 and State of Orissa & Anr. Vs. Mamta

Mohanty (2011) 3 SCC 436. I need not refer to the paras of these judgments

in detail inasmuch as surely it is an accepted legal proposition that a petition

which is barred by delay and laches should ordinarily be dismissed because

three year period of limitation provided under the Limitation Act, 1963 is a

good guide to determine the issue of delay and laches.

5. Let us therefore examine the facts of the present case whether

the doctrine of delay and laches will come into application so far as the

petitioner is concerned. In this regard, when we refer to the communication

dated 9.10.2007, it is clear that the communication is delightfully vague

inasmuch as no details whatsoever are stated by the employer/respondent for

the amount of recovery made of Rs.4,95,297/-. It was incumbent upon the

employer to give details as to which are the specific heads of the different

recoveries alongwith the relevant facts which totalled to an amount of

Rs.4,95,297/-. Unless these details are given, how can an employee in any

manner rebut the same or claim that the said recoveries are in any manner

unlawful or factually incorrect. Without the supporting facts and documents

recovery is thus illegal. It is because that details were not given of the

recoveries under different heads totalling to Rs.4,95,297/-, that discussions

between the parties continued well after 9.10.2007 and which becomes clear

from the letter dated 25.8.2010 of the petitioner to the respondent. This

letter is a detailed letter, and instead of reproducing the same, it is sufficient

to state that this letter only and only deals with the amount of Rs.4,95,297/-

and as to how the petitioner was continuing to make efforts with the

respondent to find out the details or otherwise get the payment of this

disputed amount of Rs.4,95,297/-. Ultimately, it may be noted that the

respondent sent its letter dated 8.9.2010 which stated that no documents are

available with respect to the recoveries made since the papers could not be

traced and that the status is being accordingly informed to the petitioner.

This letter dated 8.9.2010 reads as under:-

"311300/2010 733. 08.09.2010 Mr. A.K.Verma, Ex-Manager, A-127, Jhilmil Colony, Main Road, Near Vivek Vihar Phase-II, Delhi-11 0 0 95.

Dear Sir,

Re: Pending Audit Queries against your name Kindly refer to the discussion which was held in the Regional Office in presence of Audit Compliance Cell Official, where you had reaised the matter of your outstanding queries and their resolution. Our respected Dy. Gen. Manager had accordingly advised that the decision can be taken only on the basis of papers available and instructed the undersigned to launch a thorough search in the Divisional Office for tracing out the papers connected to claim of M/s Super Newsprint and other audit queries.

We have accordingly searched in the D.O.records thoroughly but could not lay our hands on any file where papers connected to said claims as the part of audit queries were available. We are accordingly informing R.O.also that no papers could be traced in the D.O. As discussed we are informing you of the status for your further necessary action.

Thanking your,

(Amit Misra) Sr. Divisional Manager"

6. In my opinion, the principle of limitation or the sister principle

of delay and laches will apply if there is clarity of facts for the cause of

action to arise in favour of a person to file a case. Unless there is a clarity of

facts by stating that which are the heads of recovery and which are

substantiated by which detailed facts and documents surely how can the law

expect the petitioner to file a case to claim by saying that recoveries are

being illegally made. Admittedly, the letter dated 8.9.2010 of the respondent

shows that it is the respondent which itself states that no papers could be

traced and no details can be given. If that be so, how petitioner can in any

manner be prejudiced by invoking doctrine of delay and laches. I may state

that the Supreme Court in the case of State of Jharkhand & Ors. Vs.

Jitendra Kumar Srivastava & Anr. in Civil Appeal No. 6770/2013 decided

on 14.8.2013 has held that the terminal benefits which are payable to an

employee are not a bounty, but are natural consequential rights on account of

services being rendered by the employee. The Supreme Court has held that

unless there is a specific rule, terminal benefits cannot be withheld because

such withholding would be violative of Article 300A of the Constitution of

India. It is required to put on record that in the counter-affidavit filed by the

respondent, no rule of the respondent-organization is referred which entitles

the respondent-organization to withhold the terminal benefits to the

petitioner.

7. In view of the above, clearly the amount claimed by the

petitioner of the sum of ` 4,95,297/- has been wrongly withheld by the

respondent. The said amount is quite clearly payable to the petitioner. The

writ petition is therefore allowed by directing the respondent to pay the

amount of ` 4,95,297/- to the petitioner alongwith the interest at 7 ½ % per

annum from 20.4.2004 when the petitioner stood voluntarily retired from the

respondent and till payment is made. Parties are left to bear their own costs.

OCTOBER 10, 2013                              VALMIKI J. MEHTA, J.
ib