Pravinkumar Balwantpuri Goswami vs State Of Gujarat
2024 Latest Caselaw 468 Guj

Gujarat High Court

Pravinkumar Balwantpuri Goswami vs State Of Gujarat on 18 January, 2024

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     C/SCA/13/2014                                JUDGMENT DATED: 18/01/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                           Sd/-

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1    Whether Reporters of Local Papers may be allowed                   No
     to see the judgment ?

2    To be referred to the Reporter or not ?                            No

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 ?

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                     PRAVINKUMAR BALWANTPURI GOSWAMI
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PH PATHAK(665) for the Petitioner(s) No. 1
MS ADITYA PATHAK AGP for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 18/01/2024

                              ORAL JUDGMENT

1. By way of present petition, under Articles 14 and 16

of the Constitution of India, the petitioner has challenged

the inaction on the part of the respondents and prayed,

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inter alia, that:-

12 (A) The Honble Court be pleased to issue an order, writ in the nature of mandamus and / or certiorari or other appropriate writ, order or direction, declaring the impugned decision on the part of respondents to withheld the retirement benefits, leave encashment, gratuity etc payable to the petitioner on his superannuation, as unjust, illegal, arbitrary and be pleased to quash and set aside the same and direct respondents to pay all the amount of arrears by fixing the pay of petitioner and by granting him the benefits of 2nd higher scale of pay with 12% interest.

B. Be pleased to declare that the respondents have illegally with-hold the amount of leave encashment payable to the petitioner on his suspension period, therefore, be pleased to direct the respondents to pay the said amount with 12% interest.

C. Be pleased to declare that the respondents have illegally withheld the benefits of commutation of pension, amount of gratuity etc. payable to the petitioner and therefore, be pleased to direct the respondents to pay all the amount of arrears to the petitioner with 12% interest.

D. Be pleased to direct that the amount of interest, special cost and compensation payable to the petitioner are directed to be recovered from the personal pay of the erring officers.

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E. Pending admission and final disposal of this petition be pleased to direct the respondents to fix the pay of petitioner by granting 2nd higher scale of pay and also the retirement benefits to the petitioner forthwith.

F. Pending admission and final disposal of this petition be pleased to direct the respondents to pay the arrears of amount of leave encashment to the petitioner for the period of suspension forthwith.

G. Any other and further relief this Hon'ble Court deem fit and proper, in interest of justice."

2. The facts giving rise to present petition are that the

petitioner, who was serving as Assistant Teacher in the

Government Higher Secondary School, Rapar (Kutch),

retired from service w.e.f. 31.5.2012. After completion of

service of 30 years, the petitioner is entitled to get all the

retirement benefits in accordance with rules and

instructions issued by the Government. However, in case

of present petitioner, for the reasons best known to the

respondents, the pension papers of the petitioner were

not prepared. Therefore, the petitioner was not granted

the benefits of commutation of pension, amount of

gratuity, leave encashment for the period from 3.7.2005

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to 7.1.2008 and also not granted the 2nd higher scale of

pay and non-fixation of pay etc. on the ground of non-

availability of service book, at the time of superannuation.

2.1 Earlier the petitioner was suspended from service

from 3.7.2005 to 7.1.2008 due to criminal complaint filed

by his wife. However, the suspension was revoked on

7.1.2008 after three years and the said period came to be

treated as on duty.

2.2 In view of the aforesaid facts, the petitioner has

preferred present petition and prayed for above

mentioned relief.

2.3 At the outset, it is clarified that now, the petitioner

has restricted his prayer qua the interest on the late

payment made by the authority, which the authority has

supposed to pay at the time of retirement of the

petitioner.

3. I have heard Mr. P.H. Pathak, learned Counsel for

the petitioner and Mr. Aditya Pathak, learned Assistant

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Government Pleader for the respondent.

4. Learned Counsel for the petitioner has submitted

that because of the fault on the part of the respondents,

the amount is paid after almost two years, though the

petitioner is entitled the same from the date of his

retirement and therefore, learned Counsel for the

petitioner has urged before this Court that appropriate

order be passed to award the interest for the period of

late payment.

4.1 Learned Counsel for the petitioner has relied upon

the decision of the Hon'ble Apex Court in case of D.D.

Tewari (D) Thr. Lrs vs. Uttar Haryana Bijli Vitran

Nigam reported in 2014 (8) SCC 849 and submitted

that appropriate rate of interest be fixed for the delayed

period.

5. As against that Mr. Aditya Pathak, learned Assistant

Government Pleader has relied upon and referred to the

affidavit-in-reply filed by the respondents and submitted

that after completion of all the formalities, the office of

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the District Education Office, Rapar has not submitted the

service book and the relevant papers of the petitioner,

well within the time limit and therefore, the delay

occurred in making the payment of retiral dues.

6. I have perused the material placed on record and

the relevant documents. It appears from the record that

the petitioner has after almost 10 years, made a

representation to the authority concerned and the same

was also not considered by the authority. Further, as per

the record, due to internal correspondence on the part of

the respondents, the payment to the petitioner was

delayed. Now, it is well settled principles that the

retirement benefits is not bounty but it is the fundamental

right of the employee and the same is to be paid, at the

time of retirement of the employee without fail.

7. At this stage, profitable reference can be have to the

decision of the Hon'ble Apex Court in case of D.D.

Tewari (supra), relied upon by the learned Counsel for

the petitioner, wherein the Hon'ble Apex Court has held

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as under:-

"5. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the Payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, we do not propose to do that in the case in hand.

6. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed."

8. In present case, the retiral benefits have already

paid to the petitioner but it was paid late due to the fault

on the part of the respondents and therefore, in view of

the aforesaid decision of the Hon'ble Apex Court in case

of D.D. Tewari (supra), and also in view of the fact that

the petitioner is eligible to get retiral benefits, at the time

of his retirement, I am of the opinion that present petition

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deserves to be allowed. Accordingly present petition is

hereby allowed. Rule is made absolute.

9. The petitioner is entitled to get 6% interest on the

delayed payment from the date of his retirement till the

actual payment, which he is entitled to receive, at the

time of retirement.

10. The respondents are hereby directed to calculate the

amount of interest on the payment which was made

delayed because of their internal correspondence and the

same to be paid within period of three months from the

date of receipt of copy of present order. The copy of the

calculation made by the respondents be provided to the

petitioner.

11. With the aforesaid direction, present petition is

hereby allowed. Rule is made absolute to the aforesaid

extent.

Sd/-

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI