Legal Heirs Of Baluben Bodhabhai ... vs The Collector
2021 Latest Caselaw 13844 Guj

     C/SCA/6549/2021                                 ORDER DATED: 13/09/2021



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 6549 of 2021
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           LEGAL HEIRS OF BALUBEN BODHABHAI MUNTHAVA,
                    OGHADBHAI RAMABHAI SHIYAL
                              Versus
                     THE COLLECTOR & 2 other(s)
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Appearance:
NABIL O BLOCH(7953) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 13/09/2021
                   ORAL ORDER

1. NOTICE for final disposal made returnable forthwith. Learned Assistant Government Pleader waives service of notice for and on behalf of the respondent-State authorities.

2. The present writ petition has been filed seeking an order against the respondent No.1 to initiate action and recover the amount as awarded by the Controlling Authority under the payment of Gratuity Act, Morbi.

3. The petitioner is aggrieved by the fact that though directed by the Controlling authority, no recovery has been affected in the matter.

4. Gratuity Application No.25 of 2018 filed by the petitioner is allowed vide order dated 29.03.2019 and the respondent Nos.2 and 3 are directed to pay the amount of Rs.1,34,335/- along with 10% simple interest from the actual date of payment.

5. The attention of this Court is drawn to the order dated 22.01.2020 passed in Special Civil

C/SCA/6549/2021 ORDER DATED: 13/09/2021

Application No.5044 of 2019 and allied matters, where this Court had directed grant to be released and amount to be paid within 08 (eight) weeks and if not done within the stipulated time period, the petitioners therein were given liberty to take recourse of law, including invoking jurisdiction of this Court for contempt.

6. Following relevant findings and observations are reproduced hereunder:

"4. Both the sides have been heard at length. The communication addressed to the Mamlatdar, Jamnagar City for and on behalf of respondent No.1 by the Executive Engineer is dated 14.02.2019. Almost one year has been completed. Nothing has been heard from the Road and Building Department. There is no challenge of the said order of controlling authority and hence, the same has attained finality.

4.1 Considering the fact that the recovery certificate has been issued after due adjudication and on giving fullest opportunity to the parties and amount due is of the gratuity in case of the petitioners who have served for long years. Let the grant be released and amount be paid within 8 weeks from the date of receipt of copy of this order. If not paid within the stipulated time period, petitioners shall be at liberty to take recourse of law including invoking jurisdiction of this Court for contempt and for other consequential reliefs. Petitioners shall be also entitled to revive these petitions for further action, against the department. The rate of interest would be enhanced to 18% if the amount is not paid within the stipulated time period and cost of Rs.20,000/-in the event of non payment."

7. This Court in Special Civil Application No.21281 of 2019 had passed a detailed order dated 11.02.2020 reminding the authorities of statutory obligations in respect of the recovery certificate issued in connection with the reference, which came in favour of the workman. It would be apposite to reproduce some of the relevant portions:

C/SCA/6549/2021 ORDER DATED: 13/09/2021

"5. The stand has been made very clear by the Residential Collector in his affidavit-in-reply, it is quite apparent therefore that jurisdictional aspect falls within the realm of the District Development Officer. The Collector has already discharged his functions and sent reminder to the District Development Officer, nothing appears to have been heard thereafter from the end of the District Development Officer. There is no material emerging on the record that he has conducted the meeting. Monthly meeting on regular basis has been directed to be held in the resolutions dated 25 th February, 2005 and 2 nd June,2005. Once the recovery certificate is issued by the Court in the matter, after the long drawn litigations, the party is compelled to once again take recourse of law and approach this Court. This lackadaisical attitude on the part of the concerned authority is neither desirable nor acceptable at all. The recovery under the certificate has to be effected as per the recovery of revenue under the Land Revenue Code and there is a detailed guideline prescribed in the form of resolution issued by the State Government. Petitioner had to go from the post to pillar to get the amount prescribed in the certificate. His having done all that he could have done at his command, somewhere, it is an absence of period of limitation prescribed in completing task of executing recovery certificate is hampering the process. At the cost of reiteration, it is to be noted that under the law, for recovery certificate to be executed,there exists vaccume so far as the time limit is delay is caused in executing the recovery certificate on account of such lacuna and the required attention to this essential cause is missing more often than not. This is a class of people who have scant means at their disposal, not to refer to their very humble social background which does not permit them any access to these authorities except by means of legal documents in the form of recovery certificate that too, after a protracted litigation. Execution of recovery certificate within a reasonable time period therefore assumes an importance and in absence of any statutory period, a reasonable time period shall need to be regarded which cannot go beyond six months and in the event of auction etc. beyond one year period. P.I.L. S.C.A. No.3954 of 2001 filed before this Court was also against the uproar of non execution of recovery certificate, pursuant to which revenue department issued resolution dtd.25.02.2005, which contain following details.

1. Competent authority / office is required to make note of recovery certificate in the register.

2. They are required to be duly examined and if they

C/SCA/6549/2021 ORDER DATED: 13/09/2021

lack any details or other requirement, they be returned on an issuance of notice to the judgment debtors entire procedure be completed on urgent basis under the Land Revenue Code.

3. It would also be necessary to ascertain whether bank or any other agency has utilized other resources of recovery.

4. Recovery certificates if are concerning jurisdiction of Panchayat, they be sent to the concerned Panchayat and the competent officer be initiated to effect the speedy recovery.

5. Any lackadaisical approach on the part of any officer/employee or deliberate attempt not to act shall be reported in their confidential report.

6. Capacity building efforts by means of training etc. shall be enhanced.

7. Judgment debtors when are not traceable in consultation with the senior officer of police department, their hunt be expedited."

8. Delay in recovery defeats the very purpose and object and essence of decision of the Court and therefore, the departmental proceedings be initiated against those who delayed the recovery.

9. Wherever the debtors take recourse of Court proceedings, it shall be ensured that the Court matters proceed expeditiously.

10. For overcoming slow pace in effecting recovery, 'Prant' office in every district is to act as nodal officer.

11. Officers of the District Collector, D.D.O. & T.D.O. shall have quarterly accounts of proceeding of recovery certificate.

12. Competent authority is also required to evaluate the register - 'A' and send the same every month to the Revenue Department before the 10th day of every English calendar month. Subsequently, issued resolution dated 02.06.2005 also reiterates this guidelines and adds further that the nodal officer must organize monthly meeting with the Mamalatdar, T.D.O. for reviewing.

6. These are thus, very eloquent and specific guidelines, directions in the form of mandates, pursuant to the PIL. preferred before this Court. However, they are observed often in their breach and that is essentially due to absence of any supervision or administrative guidance on the part of senior officer.

C/SCA/6549/2021 ORDER DATED: 13/09/2021

7. The State has also directed to the officers who are to at the helm of affair to supervise and it seems that what is lacking is the execution and lack of proper administration and desired guidance.

8. It is more often than not experienced that Mamlatdar is assigned the task of recovery without anyone, then following the same up, reluctantly into piling of the matters as well as miseries of the creditor workmen. It is thus clear from the chronology that the petitioner who served the Gujarat State Electricity Corporation and Design Limited at Thermal Power Station, Thasra, District - Kheda raised an industrial dispute in 2013, where he succeeded in the year 2017 and thrice he approached the labour Court and yet, till date, he has neither received the amount nor has he been replied to D.D.O. Is intimated by the Collector in September, 2019 once again and yet no effective measurements are taken."

8. Resultantly, this petition needs to be allowed, directing the respondent authority to recover the amount of gratuity, as specified in the Recovery Application in the case. Considering the fact that the respondent No.2 is the Executive Engineer, Road and Building Division, the Finance Department shall ensure the speedy sanction of the amount specified by the Controlling Authority in the certificate of recovery with interest bearing in mind the object of the Act and also the findings and observations made hereinabove in other matters of recovery.

9. The same shall have to be released within a period of 10 weeks from the date of receipt of a copy of this order. If not paid within the stipulated time period, the petitioner shall be entitled to invoke the jurisdiction of this Court, including for contempt and for other consequential reliefs. The petitioner will be permitted to also take other remedial measures, as permissible under

C/SCA/6549/2021 ORDER DATED: 13/09/2021

the law. The rate of interest shall be enhanced @18% and if the amount is not paid within the stipulated time period, cost of Rs.20,000/- will also be paid to the petitioner in the event of non- payment as directed.

10. The petition is allowed and disposed of in the above terms. Direct service is permitted.

                                                                     Sd/-        .
                                                         (A. S. SUPEHIA, J)
NVMEWADA