1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1788 OF 2009 Smt.Janhavi w/o Shriram More, Age 57 years, Occu.Nil, R/o C/o A.B.Satpute, D-9, Disha Nabhangan, Sant Tukoba Nagar, CIDCO N-2, Aurangabad .. PETITIONER VERSUS 1. The State of Maharashtra, Through its Secretary, Co-operation Department, Mantralaya, Mumbai 2. The Managing Director, Maharashtra State Co-operative Marketing Federation Ltd., Kanmoor House, Narshi Natha Street, Mumbai 400 009 3. The Manager (Adm), Maharashtra State Co-operative Marketing Federation Ltd., Kanmoor House, Narshi Natha Street, Mumbai 400 009 4. The Assistant Provident Fund Commissioner, Sub Regional Office, Town Center, CIDCO, Aurangabad 5. The District Marketing Officer, Complex Building, New Mondha, Aurangabad ..RESPONDENTS Shri A.S.Londhe, Advocate for petitioner Shri K.G.Patil, Assistant Government Pleader for respondents 1 and 5 Shri K.B.Choudhari, Standing Counsel for respondent No.4 Shri S.S.Tope, Advocate for respondent Nos.2,3 and 5 2 CORAM : P.V. HARDAS AND S.V.GANGAPURWALA, JJ DATE : 20th April, 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission. 2. This is a petition under Article 226 of the Constitution of India by the petitioner who has obtained voluntary retirement under the scheme of Voluntary Retirement and who unfolds a very pathetic tell. According to the petitioner the application of the petitioner came to be accepted w.e.f. 31.5.2004 and the petitioner stood retired on 1.6.2004. The amount of gratuity to which the petitioner was entitled and which ought to have been paid within a reasonable period was not paid for more than a year. According to the petitioner also the arrears of fifth pay commission w.e.f. 1.6.2003 till 31.3.2004 were not paid to the petitioner but only the arrears of the fifth pay for the months of April 2004 and May 2004 were paid to the petitioner. The petitioner, therefore, claims that the arrears of retiral benefits should be awarded subject to the payment of interest by the respondents. 3 3. Another grievance of the petitioner is that though the petitioner stood retired from 1.6.2004, the pension by the respondent i.e. respondent No.4 was paid to the petitioner w.e.f. 24.1.2005 and not from 1.6.2004. Shri K.B.Choudhari, learned Counsel appearing for the respondent No.4 has pointed out to us that the application of the petitioner itself was received on 24.1.2005 and consequently, the pension was made payable w.e.f. 24.1.2005. Since the petitioner had opted to retire prior to attending the age of superannuation, quantum of pension payable to the petitioner obviously stood reduced. The respondents have very fairly stated that the petitioner, if desires the payment of pension from 1.6.2004, the petitioner may submit a necessary application which would be decided by the respondents and pension would be made payable from 1.6.2004 and the amount of pension payable to the petitioner would be accordingly reduced and the petitioner would be liable to pay the installments under the scheme from the period from 1.6.2004 till December 2004. 4. In the light of the aforesaid submissions, we are inclined to allow this petition. The learned Counsel for the petitioner states that the petitioner would submit an application to the respondents within one week from today claiming pension w.e.f. 1.6.2004 and would further comply with all the formalities necessary to be complied with by the petitioner before being paid 4 the pension. The aforesaid compliances, if insisted by the respondents, in accordance with law, be done by the petitioner at its earliest. We further direct the respondent No.4, on receipt of the application of the petitioner, to decide the same and pass orders, in accordance with law, within a period of two weeks from the date of receipt and further to ensure that in the event the petitioner has complied with all the formalities, the arrears of pension w.e.f. 1.6.2004 be paid to the petitioner within four weeks of passing of the said order. Failure to pay the said amount within the stipulated period would carry interest at the rate of 8% per annum from the date the amount of pension became due and payable to the petitioner. 5. Learned Counsel for respondents 2, 3 and 5 has stated before us that after the Government made the fifth pay commission applicable to the employees of respondents 2, 3 and 5, an agreement was arrived at between the employer and the union. Since the petitioner was not a member of the union as the petitioner had stood retired, the arrears of fifth pay commission w.e.f. 1.6.2003 till 31.3.2004 were not paid to the petitioner and only arrears of the fifth pay commission of April and May 2004 were paid to the petitioner. According to us since the petitioner was an employee of the respondents on 1.6.2003, and continued to be an employee till 1.6.2004, there is no justifiable reason to 5 deny the payment of arrears of the fifth pay commission to the petitioner much less on a specious plea that petitioner was not a member of the union when the agreement was executed between respondents 2, 3 and 5 and the union. According to us, the petitioner is entitled in law to be paid the arrears of fifth pay commission. Learned Counsel for respondents 2, 3 and 5 states that the aforesaid arrears would be paid to the petitioner within three months from today. We accept the aforesaid statement as an undertaking to the Court and allow this petition in respect of the said relief by directing the respondents to pay the arrears of fifth pay commission to the petitioner within three months from today. Failure to pay the arrears of fifth pay commission would attract interest at the rate of 8% per annum on the entire amount of pensionary benefits to which the petitioner is entitled in law from the date the said amount became payable till payment of the said amount by the respondents. In the peculiar facts of the present case, therefore, we do not award any interest on account of delayed payment of gratuity amount. 6. Rule is thus made absolute on the above terms with no orders as to costs. ( S.V.GANGAPURWALA ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/1788.09wp)