Dineshkumar Mohanlal Bhavsar vs State Of Gujarat
2021 Latest Caselaw 14304 Guj

     C/SCA/6675/2021                                   JUDGMENT DATED: 17/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6675 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
================================================================
1     Whether Reporters of Local Papers may be allowed                      Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                               Yes

3     Whether their Lordships wish to see the fair copy                     No
      of the judgment ?

4     Whether this case involves a substantial question                     No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

================================================================
                       DINESHKUMAR MOHANLAL BHAVSAR
                                    Versus
                              STATE OF GUJARAT
================================================================
Appearance:
MR RASHESH A RINDANI(5380) for the Petitioner(s) No. 1
MR.ROHAN N SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4,7
MR PRAKASH JANI, SENIOR ADVOCATE, with SHIVANG P JANI(8285) for
the Respondent(s) No. 5,6
================================================================
    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                     Date : 17/09/2021
                     ORAL JUDGMENT

[1] Learned advocate Mr.Rashesh Rindani has submitted that the only issue which remains to be examined by this Court is with regard to the payment of 50% of interest amount for the period of 31.10.2007 to 17.07.2021. He has submitted that the petitioner retired on 31.10.2007 and was constrained to file proceedings for claiming his gratuity amount, and vide order dated 28.04.2016, the Controlling Authority directed the respondents to pay an amount of Rs.3,50,000/- with 10% interest

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

within 30 days. He has submitted that since the certificate issued to the aforesaid order was not implemented, the petitioner was constrained to file the present writ petition, and during the pendency of the writ petition, the petitioner has been paid the amount. However, the respondent- College has only paid 50% of the interest amount, whereas rest of 50% of the amount of interest remains to be paid.

[2] In response to the aforesaid submissions, learned Senior Advocate Mr.Prakash Jani appearing for the respondent nos.4 and 5 has submitted that the Controlling Authority has fixed the liability of payment of 10% on all the respondents, including the State also. He has submitted that in fact the entire burden cannot be shifted on the respondent- College as it is 100% grant-in-aid, and since the State has not paid the grant, they may not be fastened with the payment of 10% interest. Learned Senior Advocate Mr.Jani has further submitted that the entire amount, as ordered by the Controlling Authority in fact is paid to the petitioner by the respondent-College along with 50% amount towards interest, and the rest amount is to be paid by the State.

[3] Learned AGP Mr.Rohan Shah has submitted that in fact it would be the liability of the

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

respondent-College to pay 10% interest. He has submitted that the respondent-State had also time and again issued communications to the respondent- College to pay the amount of gratuity, however the same was not paid.

[4] Thus, the aforesaid submissions canvassed by the learned advocates appearing for the respective parties would suggest that both the respondents are shifting the burden on each other for the payment of interest of 10% on the gratuity amount.

[5] Heard the learned advocates for the respective parties.

[6] The Controlling Authority by an order dated 28.04.2016, has determined the gratuity of Rs.3,50,000/- which was to be paid to the petitioner with 10% interest. The Controlling Authority has fixed the liability on all the respondents, including the State Government and the college authority.

[7] Thereafter, the recovery certificate was also issued on 19.01.2017, which was not implemented and hence, the petitioner was constrained to file the captioned writ petition before this Court. During the pendency of this petition, the petitioner was paid an amount of Rs.3,50,000/- with 50% of interest amount (i.e. Rs.2,38,915/-) on 17.07.2021

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

by the respondent-College, however the 50% of the interest amount is yet to be paid.

(8) The petitioner was working as a Tutor in the respondent no.4 i.e. Homeopathy College and Research Institute and was appointed on 01.08.1983 and on attaining the age of superannuation on 31.10.2007, he retired from service with the hope that his gratuity amount will be paid immediately. Since the respondent-college as well as the State authority remained quiescent on the payment of gratuity, the petitioner was constrained to approach the Controlling Authority claiming the same. The Controlling Authority directed all the respondents jointly to pay the gratuity amount along with 10% interest within a period of 30 days. A recovery certificate dated 19.01.2017 was also issued, however neither the State nor the respondent-College implemented the same, and hence, the petitioner filed the captioned writ petition in the year 2021. The petitioner as on today is 71 years of age and only after he has filed the writ petition in the year 2021, the gratuity amount has been released. The order of the Controlling Authority is not implemented only for the reason that there is inter se dispute between the Trust and the State.

[9] This reveals the sorry state of affairs between the Institute, in which the petitioner was

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

serving and the State authority. The petitioner, who has honestly rendered his service for 24 years, is waiting to enjoy the fruits of his service. After rendering his services honestly, without there being any accusation on the part of the respondent-College, he was constrained to approach the Controlling Authority claiming his gratuity amount. It was expected from the respondents to immediately pay the gratuity to the petitioner soon after his retirement so that he can utilize the same for his retirement.

[10] In the order dated 11.02.2020 passed in Special Civil Application No.21281 of 2019, the Coordinate Bench has referred to the Government Resolution dated 25.02.2005, which has been issued pursuant to the directions issued in P.I.L Special Civil Application No.3954 of 2001. The Court has referred to the procedure prescribed in the Government Resolution dated 25.02.2005 for quick implementation of the recovery certificates. It appears that there is absolute breach of conditions stipulated in the said Resolution. One of the conditions is that the "any lackadaisical approach on the part of any officer/employee or deliberate attempt not to act shall be reported in their confidential report". It is also stated that the "Officers of the District Collector, D.D.O & T.D.O shall have quarterly accounts of proceeding of

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

recovery certificate". The Coordinate Bench, after referring to the provisions of the Government Resolution dated 25.02.2005 has observed thus:

"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.

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, resultantly into piling of the matters as well as miseries of the creditor workmen..........."

[11] It appears that the State authorities are ignorant of their own Resolution. As the facts narrated hereinabove suggest that the petitioner retired on 31.10.2007. The writ petition is filed in the year 2021 for seeking a direction against the respondent no.1 to recover the amount as per the recovery certificate dated 19.01.2017. The order of the Controlling Authority was supposed to be implemented in 30 days. These facts are very gross and shocking. The approach of all the respondents is required to be highly condemned. A retired employee cannot be forced to knock the doors of the Courts of law for claiming his legal retiral benefits, which he is entitled to receive soon after his retirement. The entitlement of the gratuity amount was never disputed. The State and the Institution should have ironed out all their differences before the retirement of the

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

petitioner. Since no such exercise was undertaken, the petitioner was compelled to get himself embroiled in legal skirmish. Such litigation incurs expenses and consumes time, and are an ordeal on senior citizens. Moreover, the authorities are saddled with interest and costs which is a burden on public exchequer. It is the constitutional obligation on the State Government to see that the employees of such institutions are paid their retirement benefits at the time of their retirement and they are not constrained to knock the doors of the Courts of law for claiming their legal dues. All the predicament and difference of opinion should be resolved before the retirement of an employee. Thus, the State authority is directed to issue appropriate instructions to all such institutions clarifying its stand so that a retired employee is not made to undergo the ordeal for claiming his gratuity or other benefits after his retirement.

[12] Looking to the aforesaid gross facts, the respondent- State is directed to pay 50% of the interest on the amount of Rs.3,50,000/- to the petitioner for the period from 31.10.2007 to 17.07.2021. It will be open for the respondent- State authority to recover the same from the respondent-College, if it is permissible in law. The respondent-College can also resist their claim before the respondent-State with regard to payment

C/SCA/6675/2021 JUDGMENT DATED: 17/09/2021

of 50% of the interest amount, as awarded by this court.

[13] In light of the aforesaid insensitive approach of the respondents, an exemplary cost of Rs.10,000/- is imposed jointly on the State authority and the respondent-College. Each shall pay Rs.5,000/- to the petitioner. It is directed that the remaining 50% of interest amount along with Rs.10,000/- cost shall be paid to the petitioner within a period of 8 weeks from the date of receipt of writ of this order. It is further directed that if such order is not complied with, it will be open for the petitioner to revive this petition by filing a simple note before the Registry.

[14] With the aforesaid directions, the writ petition is disposed of. Rule is made absolute to the aforesaid extent.

(A. S. SUPEHIA, J) NABILA