CW 3489/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.3489/06 S.K. Chakrabarty Versus RRS [Co-operative] Spinning & Ginning Mills Federation Limited & Anr. DATE OF ORDER : 16/12/2008 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Sunil Samdaria, for petitioner Mr. Rajendra Prasad Sharma, for respondents *** This is a second round of litigation of present petitioner claiming certain dues to which he was entitled for on account of his order of removal being set aside by this court. As a consequence whereof, he would have been treated in service and became entitled for all service benefits which were due and admissible flowing thereof till he attains the age of superannuation which the respondents have failed to compute in terms of provisions of Rajasthan State Cooperative Spinning and Ginning Mills Federation Employees Service Rules, 1994 [“Rules, 1994”]. Petitioner was in employment of respondents working as Spinning Master served with the charge sheet on 13th April, 1994 and after being held CW 3489/06 [2] guilty, punished with the penalty of removal from service vide order dt.24th January, 1995 – against which he preferred departmental appeal that too was rejected on 31st January, 1996. The order of penalty was challenged by the petitioner in Civil Writ Petition No.2494/96 which was allowed by this court on 2nd July, 2002 – relevant part whereof is reproduced as under: “In view of what I have discussed hereinabove I hold the impugned dismissal order dated January 18/24, 1995 and appellate order dated January 30/31, 1996 illegal, void and inoperative. Since the petitioner during the pendency of the writ petition has already been retired from the services the only relief that would be available to him is the payment of arrears of salary and other emoluments payable to him with effect from January 24, 1995. The writ petition stands allowed accordingly.” Against the order of Single Bench of this court dt.2nd July, 2002, respondents preferred special appeal which was dismissed on 11th July, 2003. Later on, in compliance of judgment of this court dt.2nd July, 2002, certain payments were made by the respondents of which details have been furnished in Ann.7 dt.4th January, 2005. According to petitioner, the payments to which he was entitled for as observed by this court CW 3489/06 [3] admissible under law since have not been computed as per Rules, 1994 and paid to him, he approached this court by filing instant petition. In the writ petition, the petitioner has raised several grievances, but finally he confines to following reliefs: “[i] Entitlement of arrears of salary & allowance w.e.f. 24.01.1995 till the age of superannuation taking into consideration Annual Grade Increments[AGIs commencing from the year 1990] & the consequential revised terminal benefits viz. Pension, gratuity, leave encashment etc. etc. [ii] Entitlement of salary & allowances for the period between 30.05.1996 to 12.02.1997 which were refused to be paid by the respondents on the alleged premise of gainful employment. [iii] Entitlement of arrears of salary & allowances [after adding AGI's] uptill October, 2000 in accordance with the date of birth recorded in Certificate of Board of Secondary Education in consonance with Rule 3.11 of SPINFED Employees Service Rules, 1994. [iv] Entitlement of refund of Rs.11,000/- along with interest which was illegally deducted towards penal rent. [v] Leave encashment of 257 days. [vi] Interest on gratuity, provident fund & leave encashment. [vii] Medical allowance, HRA, CCA have also not been paid.” CW 3489/06 [4] which according to the petitioner has been arbitrarily denied by the respondents. Counsel for petitioner submits that he was deprived of his annual grade increment from 1990 onwards till he was removed from service vide order dt.24th January, 1995. At the same time, salary & allowances for the intervening period were also withheld by the respondents and according to his date of birth recorded in the Certificate of Board of Secondary Education, he ought to have retired from service in October, 2000 since 58 yrs. is the age of superannuation. Respondents have arbitrarily computed his benefits upto October, 1999 and so also withholding of payments with respect to leave encashment and denial of gratuity and other benefits paid to him including medical allowance which was also part of emoluments arbitrarily withheld by the respondents. Respondents have filed reply to the writ petition wherein it has been averred that apart from inquiry initiated against the petitioner in regard to charge sheet dt.13th April, 1994 in CW 3489/06 [5] which he was removed from service dt.24th January, 1995, further disciplinary inquiry was initiated against the petitioner dt.29th October, 1991 and prior thereto, he was placed under suspension vide order dt.5th April, 1991. Such inquiry could not be finalized for the reason that pending inquiry since he was removed from service, no further effective steps were taken by the respondents, as such, he was not entitled for increments for the intervening period. It has been further averred that as regards entitlement of salary and allowances for the intervening period as claimed by the petitioner from 30th May, 1996 to 12th February, 1997 he was gainfully employed in a private limited Company, of which document Ann.R/2 dt.30th September, 1996 has been placed on record – it discloses that the petitioner was gainfully employed in Gokak Vadodara Spinning Mills in the intervening period for which salary and allowance have been deducted while computing his benefit in terms of order of this court. It has been further averred that as regards his date of retirement as per service record maintained in the office of respondents 7th September, 1941 is the date of birth recorded and CW 3489/06 [6] of the aforesaid period after computation payment was accordingly, released to him. So far as deduction of penal rent is concerned, counsel submits that since he has unauthorizedly occupied accommodation after order of removal from service adequate deductions were made towards penal rent and so far as leave encashment is concerned, counsel submits that after examining the record whatever he was entitled for leave encashment of 57 days which accordingly, was paid to him and at the same time there is no document or explanation placed on record to justify that why delay was caused in making retiral dues to the petitioner despite order of this court dt.2nd July, 2002 and payments were indisputably made to him vide order Ann.7 dt.4th January, 2005. I have heard counsel for parties and perused the material on record. These matters which in ordinary course were required to be settled at the administrative level itself and retired personnel are not to be CW 3489/06 [7] constrained to approach this court for their legitimate dues to which he is otherwise entitled for under law. It is all the more necessary for the respondents to examine at its own end and find out as to what dues is admissible to him and has been withheld without any provisions under the relevant rules of the Federation. But since a senior citizen has approached, this court considers it proper to redress his grievance in the instant petition itself. I have heard counsel for parties and with their assistance examined the record. [a] So far as first prayer made by petitioner with respect to arrears of salary and allowance is concerned, suffice it to say that he was placed under suspension on contemplation of inquiry vide order dt.5th April, 1991 and charge sheet was served upon him on 29th October, 1991 and pending inquiry, he was reinstated on 1st May, 1992. The ultimate fact is that there was no final fate of alleged inquiry initiated against the petitioner and after judgment of this court dt.2nd July, 2002 whereby order of dismissal was CW 3489/06 [8] set aside and the respondents were directed to make payment of salary and allowances admissible to him. Respondents were under legal obligation to release increments to which he was entitled for as a matter of course in terms of R.6.12 of the Rules, 1994. However, the increment which was withheld by the respondents after holding inquiry with cumulative effect certainly can be noticed by the respondents. Denial of increments, in opinion of this court, is not legally sustainable. [b] So far as entitlement of salary & allowance for intervening period from 30th May, 1996 to 12th February, 1997 is concerned, once the petitioner indisputably remained gainfully employed, of which document has been placed on record as Ann.R/2 along with reply and what has been earned by petitioner could certainly be adjusted by the respondents while making payments which were due and admissible to him under law for the reason that he could not have earned at two places while he continued to be in employment, as such the respondents were justified in making adjustment of the amount received by the petitioner during the intervening period. CW 3489/06 [9] [c] So far as dispute raised by the petitioner with respect to date of birth is concerned, as contained in R.3.11 of the Rules, 1994, suffice it to say that respondents have come out with a specific case that despite date of birth Certificate was demanded by the authority it was never furnished by the petitioner and as per their service record 7th September, 1941 is the date of birth recorded and no objection was ever raised by the petitioner in respect of his date of birth. At the same time, the respondent has further brought to the notice of this court that when the petitioner submitted application seeking employment elsewhere in private company namely; Gokak Vadodara Spinning Mills he has shown his date of birth as 14th September, 1943 certainly it does not corroborate from the date of birth which the petitioner has disclosed in his Certificate of Board of Secondary Education and once the date of birth of petitioner recorded in the office record of respondents was 7th September, 1941, certainly the petitioner was entitled for computation of retiral benefits accordingly and in opinion of this court, respondent was justified in computing emoluments which the CW 3489/06 [10] petitioner was entitled for in terms of date of birth available in their record. [d] So far as entitlement of refund of penal rent is concerned, once the order of dismissal has been set aside by this court, respondents could not be said to be justified in deducting penal rent from the emoluments payable to him and this deduction is not legally permissible since order of removal being set aside petitioner certainly became entitled for all emoluments flowing thereof which he was otherwise entitled for while in service. [e] With regard to leave encashment, respondents have come out with a specific case that leave of 57 days was due to the petitioner as per their record and its encashment was paid to him and in absence of any counter filed by petitioner, this court has to proceed on the basis of averment made by the respondents in their reply which certainly based on record maintained in their office, claim with respect to encashment is not sustainable. CW 3489/06 [11] [f] So far as interest on gratuity, provident fund and leave encashment is concerned, suffice it to say that no justification has come forward from the side of the respondents for the delay which has been caused atleast after judgment of this court dt.2nd July, 2002. Indisputably, payment has been made to the petitioner of the aforesaid dues vide order dt.4th January, 1995 certainly there is a delay which remains unexplained and it is not the case of the respondents that delay could be attributed to the petitioner. In absence whereof, petitioner is entitled for interest @9% over the delayed payment. [g] So far as medical allowance is concerned, in terms of R.12.1 of Chapter XII it only grants medical facilities as provided in the Medical Benefit Rules of the Federation which is not a part of emoluments payable to employees at the end of each month claim is not sustainable. Accordingly, writ petition stands partly allowed. Respondents are directed to release annual grade increments from the year 1990 CW 3489/06 [12] onwards subject to taking note of increment which has been withheld as a major penalty and thereafter, his terminal benefits be computed which include pension, gratuity, leave encashment etc. and should refund penal rent @Rs.11,000/- to the petitioner, which was deducted while making its final computation and shall also pay interest @9% on gratuity, provident fund & leave encashment from 2nd July, 2002 till its actual payment. Respondents shall ensure compliance within three months. No costs. [AJAY RASTOGI], J. FRBOHRA3489CW06 16-12.doc