1 wp4274.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 4274 OF 2009 01. Shri Prabhakar s/o Baburao Tekale, age 53 years, occupation : Nil, r/of at present near Aswamed Hotel, Barshi Road, Latur, District : Latur. Petitioner versus 01. The State of Maharashtra, through Its Secretary, Co-operative Deptt. Mantralya, Mumbai. 02. The Managing Director, Maharashtra State Co-operative, Marketing Federation Limited, Kanmoor House, Narshi Natha Street, Mumbai - 400 009. 03. The Manager (Admn.), Maharashtra State Co-operative, Marketing Federation Limited, Kanmoor House, Narshi Natha Street, Mumbai - 400 009. 04. The Accounts Officer, Pension Scheme,' The Regional Provident Fund Commissioner Office, Bhavishya Nidhi Bhavan, Bandra (East) Mumbai- 400 051. 05. The District Marketing Officer, Chatrpati Shivaji Yard, Tuljapur Road, Osmanabad, District Osmanabad. Respondents ------ Shri A.S.Londhe, Advocate, for Petitioner. Shri S.S. Tope, Advocate for Resp Nos. 2 and 3. Shri K.B.Choudhary, Adv. for Resp. No. 4. ------ 2 wp4274.09 Coram: Smt. Nishita Mhatre & M.T.Joshi, JJ. Judgement reserved on : 08.07.2011 Judgement pronounced on : 20.07.2011 Judgement (Per: Smt. Mhatre, J.) 01. Rule. By consent, rule made returnable forthwith. 02. The present petition has been filed by an employee of Respondent No.2, who has availed of the Voluntary Retirement Scheme ("VRS" for short) offered to the employees of Respondent No.2. The Petitioner has sought directions against the Respondents to correct the date of commencement of his pension to 1.6.2004 from the date 15.3.2007 as wrongly recorded, and to pay him arrears of pension for 34 months. The petitioner has also sought arrears of the pay-scales prescribed by the 5th Pay Commission which are applicable to the employees of Respondent No. 2, for the period from June 2003 to March 2004. A further direction is sought against the Respondents, to recalculate the pension and other legal dues payable to the petitioner in accordance with the 3 wp4274.09 recommendations of the 5th Pay Commission. Besides, the petitioner has also sought a direction to the Respondents to pay him the aforesaid amounts together with interest @ of 18 per cent per annum. The brief facts giving rise to the present petition are as follows; 03. The petitioner was employed as a Sales Executive with Respondent No.2-Corporation in its District Office- Respondent No.5. The petitioner opted for voluntary retirement under the VRS which was offered to the employees of Respondent No. 2, by its circular dated 3.3.2004. The petitioner was informed by Respondent No. 2 by its letter dated 31.5.2004, that his application for voluntary retirement was accepted and that he was relieved from service with effect from the same date i.e. 31.5.2004. It appears that the petitioner has been paid pension from 15.3.2007, in stead 1.6.2004. According to the petitioner, since he had voluntarily retired with effect from 31.5.2004, he was entitled to pension 4 wp4274.09 from the next day i.e. 1.6.2004. The difference payable, according to the petitioner, is of nine months pension. 04. Respondent No.2 resolved on 16.12.2003, to make the recommendations of the 5th Pay Commission applicable to its employees with effect from 1.6.2003. Accordingly, the petitioner was paid the difference in salary for April 2004 and May 2004 to the tune of ` 2,333/=. That amount was paid to the petitioner on 3.3.2006. The petitioner contends that since the recommendations of the 5th Pay Commission were made applicable to the employees of Respondent No.2 with effect from 1.6.2003, he is entitled to the difference in salary for ten months i.e. from 1.6.2003 till 31.5.2004 when he retired. The petitioner has fortified his contention, by stating that he has already been paid difference for two months as stated above. Accordingly, the petitioner has claimed the remaining 10 months salary which he calculates to be ` 11,665/=. 05. The next claim that the petitioner has made is with respect to the gratuity payable under the VRS. According to 5 wp4274.09 the petitioner, he has been paid gratuity on the basis of his old salary and not on the revised salary payable after the 5th Pay Commission's recommendations were made applicable to the employees of Respondent No. 2. The petitioner has claimed ` 23,330/= in respect of the difference in gratuity payable to him. 06. Under the VRS, the petitioner was entitled to salary for 36 months. Although salary has been paid, it has not been calculated bearing in mind the revision of pay-scales with effect from 1.6.2003 in view of the 5th Pay Commission's recommendations being made applicable to him. 07. The petitioner has also claimed difference in the amount of leave encashment on the basis of 5th Pay Commission's recommendations which, according to him, is ` 9,915.25. 08. The petitioner has then claimed interest @ 10 per cent per annum on the gratuity payable to him as, according 6 wp4274.09 to him, it was to be paid within 45 days under the VRS. However, the same has been paid after a delay of 467 days. 09. An affidavit has been filed by Respondent No.2, conceding that the recommendations of the 5th Pay Commission were made applicable to its employees, by the resolution dated 16.12.2003. It is averred in the affidavit that since the Government had sanctioned the resolution passed by Respondent No.2, only on 3.6.2004 i.e. after the petitioner retired, he was not entitled to the higher pay scale in accordance with the 5th Pay Commission's recommendations. 10. In our opinion, the contention of Respondent No.2 that because the Government has sanctioned the resolution only on 3.6.2004, the amount would not be payable to the petitioner, is unsustainable. The resolution, which was sanctioned by the Government, gave effect to the recommendations of the 5th Pay Commission from 1.6.2003. Therefore, since the Government had sanctioned the resolution of Respondent No. 2 without any changes, the 5th Pay 7 wp4274.09 Commission's recommendations were applicable to the petitioner with effect from 1.6.2003. In fact, Respondent No.2 had paid him the difference in his pay for the months of April and May, 2004. Obviously this difference was paid to him, because Respondent No. 2 had made the recommendations of the 5th Pay Commission applicable to its employees with effect from 1.6.2003. Therefore, in our opinion, the petitioner must be paid all the benefits that he is entitled to under the VRS, taking into account the recommendations of the 5th Pay Commission which have been made applicable by Respondent No. 2 from 1.6.2003. 11. The petitioner's application for voluntary retirement was accepted with effect from 31.5.2004, by the Respondents. In fact, he was relieved from the service on 31.5.2004. Therefore, obviously he was entitled to pension from the next date i.e. 1.6.2004. The pension that the petitioner has claimed is under the Employees' Pension Scheme 1995 framed by the Central Govt. under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. From the affidavit filed 8 wp4274.09 on behalf of Respondent No.4 it appears that the Petitioner's application for pension in form 10-D under the scheme was submitted to office of the Regional Provident Fund Commissioner on 6.3.2007 and he was granted pension from 15.3.2007. In our opinion, this cannot be the reason for denying the pension to the petitioner with effect from 1.6.2003. The pension is payable immediately on retirement, albeit at a lower rate as the petitioner had retired before he reached the age of superannuation. Therefore, the petitioner would be covered by the Employees Pension Scheme of 1995 immediately on retirement i.e. from 1.6.2004. 12. Arrears of gratuity, leave encashment and salary payable under the VRS would obviously have to be recalculated as we have found that the recommendations of the 5th Pay Commission were made applicable to the employees of Respondent No.2 from 1.6.2003. The petitioner would be entitled to all the benefits under the VRS on refixation of his pay scale accordingly. 9 wp4274.09 13. The petitioner has also claimed interest @ 10 per cent as, according to him, the Respondents have deliberately delayed the payment of amounts due to him under the VRS. It is submitted on behalf of the petitioner that the amount which has now been paid to him, is delayed by 467 days, apart from the fact that there is a delay in the payment of pay-scale and arrears payable on account of the revision. The learned Advocate for the petitioner, therefore, strenuously urged that the Respondents may be directed to pay interest @ 10 per cent per annum on the dues payable to the petitioner. 14. We have considered the submissions of the learned counsel for the parties, and in our opinion, the submission of the learned Advocate for the petitioner must be accepted. The petitioner has been unreasonably deprived of the benefits of the VRS. The delayed payment of all his retiral dues under the VRS has resulted in grave injustice to the petitioner. Apart from this, the petitioner has been deprived of the correct salary payable to him from 1.6.2003 till he retired i.e. 31.5.2004. The pension that the petitioner is drawing as a result of non 10 wp4274.09 implementation of the recommendations of the 5th Pay Commission qua the petitioner and the incorrect date recorded for commencement of pension, is also less than what he would be entitled to. Considering all these aspects, in our view, the petitioner would be entitled to interest at the rate of 6 per cent on the delayed payment of the benefits under the voluntary retirement scheme. 15. In the circumstances, the Petition is allowed. Rule made absolute, accordingly, with costs quantified at ` 2000/= payable by Respondent Nos. 2, 3 and 5 to the petitioner. (M. T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) pnd/wp4274.09/ok