*2") 3? HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Appeal No.368 of 2009 APPELLANT: Municipal Corporation, Rajnandgaon. Respondent No.1 in writ petition Versus EESPONDENTS: Laxmikant Taywade and others. Petitioner L/ JUDGMENT FOR CONSIDERATION Sd/— J Dhirendra Mishra Judge HON’BLE SHRI R.N. CHANDRAKAR, J g; Sd/- 1R.N. Chandrakay ‘ Judge 3W Sd/- ”it a 01.2010 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Appgal No.368 of 2009 APPELLANT: : Municipal Corporation, Rajnandgaon, Respondent No.1 through Commissioner, Municipai in writ petition Corporation, Rajnandgaon Versus 1. Laxmikant Taywade, S/o Late Shri Ram Bhau, aged about 64 years, Retd. L.D.C. Municipai Corporation, Rajnandgaon, R/o Basantpur, Ward No.40, Near Hanuman Mandir, Rajnandgaon, Chhattisgarh. Respondent No.2 2. The Director, Local Seif Government, Raipur, CG. Respondent No.3 3. State of Chhattisgarh through the Secretary, Department of Local 'Self Government, D.K.S. Bhawan, Mantralaya, Raipur, (CG) RESPONDENTS: Petitioner Present: Shri Sanjay K. Agrawai with Shri Saurabh Sharma, counsei for the appeliant. Shri Ajay Shrivastava, counsei for respondents No.1. Shri S.K. Mishra, Panel Lawyer for the State/respondent No.3. Division Bench: Hon’bie Shri Dhirendra Mishra & Hon’bie Shri R.N. Chandrakar, JJ. JUDGMENT (Delivered on Q-rk January, 2010) The foliowing judgment of the Court was deiivered by Dhirendra Mishra, J. 1. Heard on l.A.No.02, flied by the appellant; l.As. No. 3 & 4, filed by respondent No.1, applications for taking documents on record. 2. The above applications are allowed and/documents . are taken on record. L/‘\ \ ’,/ L, ,Ir—sr‘ Q I With the consent of the parties, the appeal was finally heard. This writ appeal is directed against the order dated 20‘“ October, 2009 passed in Writ Petition (S) No.3458/2007 whereby learned Single Judge allowing the writ petition of respondent No.1 herein has directed the appellant/Municipal Corporation to compute interest on the amount of provident fund at the statutory rate, notified from time to time by the competent authority, in this respect, from the date it became due till it was actually paid to respondent No.1. Shri Sanjay K. Agrawal, learned counsel for the appellant, submitted that respondent No.1 has already been paid interest @ 5% p.a. after his retirement on 313‘ January, 2004 as per policy decision of the Corporation and as per recommendations of the Committee constituted by the High Court vide orders dated 19.0.2006 and 13.3.2008 in ’ pursuance of W.P.No.4405/99, Bhagwan Singh Baghel Vs. State of Chhattisgarh and others, with regard to payment of gratuity etc. The Committee vide its order dated 17.12.2008 has already held that the rate of interest applicable to Government servants on. GPF would not be applicable as it is a policy decision of the Corporation. The order impugned directing the appellant to pay interest at the statutory rate shall create heavy financial burden on the Municipal Corporation as the employees, having already retired from services and accepted the rate of interest at 5% p.a., shall claim interest at the statutory rate. in the absence of any statutory provisions in the Municipal Corporation Act, ’1956 (in short “the Act, 1956") regarding entitlement of payment of interest on provident fund payable to the employee as per statutory rate ,,. notified from time to time by the "cOmpetent authority of the State /\, ##A Government, no writ of mandamus under Article 226 of the Constitution of India could be issued to the appellant/Corporation. . Reliance is placed on the judgment in the matter of Oriental Bank of Commerce Vs. Sunder Lal Jain and another1. . On the other hand, Shri Ajay Shrivastava, Iearned counsel for respondent No.1, submitted that respondent No.1 was appointed by the Municipal Council, Rajnandgaon in the year 1971; Rule 24 of the Chhattisgarh Municipal Employees Recruitment and Conditions of Service Rules, 1968 (in short “the Rules, 1968") provides that the Chhattisgarh General Provident Fund Rules, as amended from time to time, shall apply to a municipal employee in the same way as are applicable to a Government servant of similar status. As per sub-section (5) of Section 442 of the Act, 1956, the conditions of service, pay and allowances existing in respect of all permanent officers and servants of the Municipal Council shall be deemed to be their existing service conditions, pay and allowances under the Act, 1956. The Finance Department of the State of Chhattisgarh vide its circular dated 27.5.2002 clarified that the employees of Corporation/Board/Local Self Organization, would be entitled for pay, allowances and other benefits/facilities as extended by the State Government to its employees. . We have heard Iearned counsel for the parties and perused the record of the writ petition as well as additional documents tiled by the parties in this appeal. \\ , ‘ A I 1 (2008) 2 SCC 280 //, 9. The petitioner/respondent No.1 retired on 315‘ January, 2004; his GPF amount was paid with interest vide Annexure R/1-A. The petitioner appiied on 30m October, 2006 (Annexure P/2) for interest @ 13% on his provident fund in place of interest @ 5% p.a. as paid to him after retirement, on the ground that one retired employee Radheshyam Sharma of the Corporation has been paid interest @ 13%. However, his prayer was rejected vide order dated 25.1 1 .2006 (Annexure P/1 ). Aggrieved by the aforesaid order, the petitioner filed a writ petition annexing therewith copy of the order of the Commissioner (Annexure P/3), wherein it has been mentioned that the Mayor-in—Councii in its meeting dated 25.10.2005 resolved to pay interest @ 13% on the provident fund, and copy of the order dated 29.11.2005 passed in W.P.No.107/93, Radheshyam Sharma Vs. State of Madhya Pradesh and others (Annexure P/4). 10. From perusal of the. order dated 29.11.2005 passed in Radheshyam Sharma’s case (Annexure P/4), it appears that the petition was dismissed as withdrawn after recording submission of the petitioner’s counsel that the relief claimed in the petition has been granted by the Corporation and the Corporation has allowed interest @ 13% p.a. However, from the documents annexed with the Additional Return, it appears that the Mayor—in-Council did not take any decision to pay interest @ 13%, as mentioned in Annexure P/3 & Annexure R-1/D. A show cause notice was issued to the errant employees in this regard. Contention of the respondent/petitioner that he was appointed in the MunICIpal Councrl Rainandgaon In the year 1971 MunICIpal CounCIl ‘ was subsequently notified as MunICIpal Corporation serVIce conditions \. 12. Learned counsel for the parties do not dispute that there is no express provision in the Act, 1956 that for the purposes of computation of interest payable to the permanent officers/employees of the Municipal Corporation, the provisions of Chhattisgarh General Provident Fund Rules are applicable. The appellant has also filed copy of the decision dated 17.12.2008 of the Committee, constituted by the High Court in pursuance of W.P.No.4405/99 in the matter of Bhagwan Singh Baghel Vs. State of Chhattisgarh and others, in which it has been held that payment of interest @ 5% on the provident fund deposit, is a policy decision of the Corporation and payment of 5% interest by the . Corporation, as per its policy decision, is just and proper. .2) cm of the permanent ofncers/employees of the Municipal Council are governed by the Rules, 1968, and Rule 24 provides that Chhattisgarh General Provident Fund Rules are applicable to the employees of Municipal Council, and sub-section (5) of Section 442 of the Act, 1956 provides that the existing service conditions of the permanent oflicers/employees of Municipal Council is saved, have not been considered by the learned Single Judge while passing the impugned order as from perusal of the pleadings of the respective parties, it is evident that the aforesaid issue was never raised before the learned Single Judge by the respective parties. ‘ 11. lt is not in dispute that the Circular issued by the Finance Department of the State Government dated 27.5.2002 tiled in appeal, was also not brought to the notice of the learned Single Judge. // ¥ 6 Court, n’ble Supreme Lal Jain‘. the Ho ch a writ of mandamus can be is 13.\n Sunder r‘mc‘lp\es on whi 12 thus‘ “‘12. These very n Bihar principtes Eastem have . . e re e P numefous ear\‘\er yudgments, he‘d 'm para- h: Singh‘, ( r wh'\\e consider‘mg the sued, af’ter refem'ngto ’//, L? s Bank to declare their account as NPA from 3 2000 and apply RBI Guidelines t0 their case. ” 14. Thus, in view of the fad that there is no express provision in the Act, 1956 that the Chhattisgarh General ProvidentFund Rules are applicable to the officers/employees of the Corporation also, finding of the learned Single Judge that the petitioner/respondent No.1 herein is entitled to the interest on the amount of provident fund in accordance with the rate, which is notified from time to time by the competent authority, and directing to compute interest on the amount of provident fund at the statutory rate, cannot be sustained. However, considering the factual and legal arguments advanced by the respective parties for the first time in appeal, we deem it appropriate to remit the writ petition for hearing on merits. 15.Accordingly, the appeal is allowed and the Registry is directed to post the writ petition for hearing before the appropriate Single Bench. W Sd/— \ #7,; *‘V’ ”i Dhirendra Mishra Judge Sd/- Khan ERN. Chandraitar ' Judge '//, 1