RSA No.22 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.22 of 2009 Date of Decision:13.01.2009 Amritsar Aviation Club & anr. ....appellants Versus Savitri Devi & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Govind Goel, Advocate for the appellants **** RAKESH KUMAR GARG J. Brief facts leading to the filing of this appeal are that plaintiff-respondent worked as store keeper of the appellant. Plaintiff retired from service after attaining the age of superannuation on 30.06.1997. She received a total sum of Rs.2,10,326/- from defendant- appellant Nos.2 and 3, towards the salary, leave encashment etc.vide cheque dated 14.02.2003. Since the payment of her dues was made after a considerable delay, she requested the defendants/appellants to pay interest on delayed payment. The plaintiff also served legal notice upon the defendant-appellants, but to no effect. In these circumstances, the plaintiff filed the present suit for declaration to the effect that she is entitled to interest @ 24% per annum on delayed payment of Rs.2,10,326/- being salary etc.from the defendants with consequential relief of mandatory injunction directing the defendants to release interest on the aforesaid amount to the plaintiff. Defendant-appellants No.2 and 3-appellants filed written statement raising various preliminary objections regarding the maintainability of the suit and that the suit is time barred. On merits, it was admitted that the plaintiff had been working as store keeper in Amritsar RSA No.22 of 2009 2 Aviation Club. It was also admitted that she retired from service on 30.06.1997 after attaining the age of 60 years and the defendants/appellants had paid a sum of Rs.2,10,326/- vide cheque dated 14.02.2003 as full and final settlement of her dues which were accepted by her without any kind of protest. It was further stated in the written statement that Aviation Club did not have the funds to pay the salary of the staff because it is the State Government which release grant in aid to the club for the purpose of disbursement of the salary of the staff. It was alleged that grant in aid was not released by the State Government, therefore the salaries of the staff could not be paid well in time. Since the Government had not released the grant in aid, the working staff of the club filed Civil Writ Petition No.19810 of 2001 in this Court for seeking a direction to the Government to release the grant in aid to the club for releasing dues of the staff and this Court vide its order dated 22.08.2002 directed the Punjab Government to release grant in aid to the club i.e.appellant for payment of pending dues of the staff. It was further stated in the written statement that the order was regarding pending dues only and no order was passed by this Court to pay interest on delayed payment. Therefore, the defendants are not liable to pay interest on the delayed payment. Thus, it was prayed that the suit of the plaintiff be dismissed. Defendant No.1, the Director, Civil Aviation Club(Punjab) filed separate reply stating therein that the plaintiff was employee of the Amritsar Aviation Club and not a government employee and the said club is a private body controlled by their own rules and regulations. The dues to the plaintiff have been paid by defendant Nos.2 and 3. It was also stated that defendant No.1 is not liable to pay interest on the delayed payment. It was prayed that the suit of the plaintiff be dismissed. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to get the interest on sum RSA No.22 of 2009 3 of Rs.2,10,326/- @24% p.a.from the defendant? OPP 2. Whether the plaintiff is entitled for mandatory injunction as prayed for?OPD 3. Whether the present suit is not maintainable? OPD 4. Whether the plaintiff has no cause of action to file the present suit?OPD 5. Whether the plaintiff estopped by her own act and conduct from filing the present suit?OPD 6. Whether the suit is not properly valued for the court fee and jurisdiction?OPD 7. Relief. The trial Court after considering the evidence on record and hearing the learned counsel for the parties held that defendant Nos.2 and 3 have withheld the retiral benefits of the plaintiff without assigning any sufficient reason and therefore the plaintiff is entitled to interest on delayed payment and decreed the suit of the plaintiff with costs and defendants were directed to pay interest on delayed payment along with interest @ 12% per annum from the due date till the decision of the case and further future interest @ 6% per annum from the date of decision till realization. Feeling aggrieved against the aforesaid judgment of the trial Court, defendant Nos.2 and 3 filed Civil Appeal No.199 of 1997 and defendant No.1 filed Civil Appeal No.207 of 2007. Both the appeals were decided by impugned judgment and decree dated 16.10.2008 passed by District Judge, Amritsar, whereby Appeal No.207 of 21.09.2007 titled as 'The Director, Civil Aviation Club versus Savitri Devi & ors' was allowed and it was held that the plaintiff-respondent was not an employee of the State of Punjab and as such no liability could be fastened upon the appellants in Civil Appeal No.207 of 21.09.2007. However, in Civil Appeal RSA No.22 of 2009 4 No.199 of 1997 filed by the present appellants, findings of the trial Court were affirmed except for the modification in the rate of interest i.e.interest on the delayed payment prior to the institution of the suit was reduced from 12% to 8% per annum. Except this modification, the appeal filed by the present appellants was dismissed by the Lower Appellate Court. Still feeling aggrieved, the appellants have filed the present appeal challenging the judgment and decrees of the Courts below. According to the learned counsel for the appellants, the following substantial questions of law arise in this appeal: 1. Whether the suit filed by the respondent-plaintiff seeking declaration and mandatory injunction for the grant and payment of interest on the retiral dues from the date of retirement i.e.30.06.1997 was maintainable, especially after the plaintiff-respondent had already been paid the entire amount of the retiral dues way back on 14.02.2003? 2. Whether the suit filed by the plaintiff-respondent seeking declaration and mandatory injunction for payment of interest on her retiral dues from the date of retirement i.e 30.06.1997 could be filed on 30.04.2005 and the suit so filed was ex facie, time barred and outside the jurisdiction of the Court in view of Section 3 of the Limitation Act? 3. Whether the courts below had any jurisdiction to entertain the suit for interest alone? 4. Whether the courts below had any jurisdiction to direct the payment of interest when the issue as to who was the employer of persons working in Civil Aviation Club is under consideration of this Court in CWP No.2244 of 1999, 14401 and 19810 of 2001 and who is liable to pay RSA No.22 of 2009 5 the retiral dues of the employees working in Civil Aviation Clubs is pending consideration in CWP No.19059 of 2006 and CWP No.19363 of 2006? In support of his case, learned counsel for the appellants has vehemently argued that the suit of the plaintiff-respondent seeking declaration and mandatory injunction for payment of interest on her retiral dues from the date of retirement i.e.30.06.1997 could not be filed on 30.04.2005 and the suit so filed was ex facie, time barred and outside the jurisdiction of the Court in view of Section 3 of the Limitation Act and was liable to be dismissed on this ground alone. Elaborating his argument further, learned counsel stated that the cause of action if any accrued to the plaintiff on the date of her retirement i.e.on 30.06.1997 and in spite of the fact that she did not get the retiral benefits, she did not take out any legal proceedings within the time frame as prescribed by law and thus with the flux of the time, the claim of the respondent became time barred and therefore the suit was liable to be dismissed on this ground. Learned counsel for the appellant has further argued that the courts below have erred in ignoring that the issue as to whether the plaintiff and other similarly situated employees of the Civil Aviation Club were liable to be paid retiral benefits by the State Government or not was pending consideration of the Hon'ble High Court in various writ petitions i.e. CWP No.19059 of 2006 and 19363 of 2006 and even the matter as to who was the employer of these employees is pending consideration before a Division Bench of this Court in CWP No.2244 of 1999, 14401 of 2001 and 19810 of 2001 and till the decision of the above writ petitions, it was not possible to make payment of any amount consequent upon retirement of various employees, therefore, the Courts below could not have ignored the effect of the pendency of the above litigation in the High Court and thus the judgment and decrees of the Courts below are liable to be set aside. RSA No.22 of 2009 6 I have heard learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below and has perused the record of the case with the help of counsel for the appellants. I find no force in the contentions raised by the learned counsel for the appellants. Admittedly the plaintiff was working as a store keeper in Amritsar Aviation Club i.e.appellants. It is also not disputed that she retired from service on 30.06.1997 on her attaining the age of superannuation and her salary and other benefits were paid vide cheque dated 14.02.2003. A perusal of the written statement filed by the appellants would further show that it has nowhere been disputed that plaintiff- respondent was not an employee of the Amritsar Aviation Club or the appellants. The only defence taken in the written statement by the appellants was that since the grant in aid was not being released by the State Government, therefore salaries of the staff could not be paid well in time. Thus, the contention raised by the learned counsel for the appellants is that the issue with regard to the fact as to who was the employer of the plaintiff and other similarly situated employees of the Aviation Club which is alleged to be pending in the writ petitions is of no consequence. Moreover, except the references of these writ petitions, nothing is placed on record by the appellants to prove this fact that the aforesaid question is pending before the Hon'ble High Court. Moreover, it has been admitted by the appellants in the written statement that the plaintiff had been working as store keeper in Amritsar Aviation Club and as stated above the appellants have not disputed their liability to pay the plaintiff-respondent her salary and other benefits on the ground that appellants are not her employers. Thus, the contention raised by the learned counsel for the appellants is without any merit and the same is rejected. The second contention of the learned counsel for the appellants that suit is barred by limitation is also liable to be rejected on the RSA No.22 of 2009 7 ground that no such objection was raised by the appellants in their written statements nor any issue was claimed in this regard. No doubt, it is the duty of the Court to see whether the suit is within limitation and if it is found ex facie that the suit is beyond limitation, the same can be dismissed as time barred even without raising any objection by the defendant, but in the present case, admittedly the appellants made the payment of retiral benefits vide cheque dated 14.02.2003 and therefore the limitation in this case for filing suit for payment of interest commenced to run from 14.02.2003 i.e.when a sum of Rs.2,10,326/- was paid to respondent No.1 by the appellants being salary and other retiral benefits. Once the appellants admitted their liability to pay salary and other retiral benefits to respondent No.1 on 14.02.2003, it cannot be argued that the interest accrued thereon from the date of retirement of respondent No.1, became time barred. Learned counsel for the appellants had also argued that there was no culpable delay on the part of the appellants in releasing the retiral dues of the plaintiff so as to entitle her any interest from the appellants as the grant in aid was not being released by the State Government and the appellants promptly made the payment on receipt of such grant and in fact the plaintiff-respondent had accepted the retiral benefits without any protest and in these circumstances the claim for interest was wholly unjustified. This argument of the appellants is also liable to be rejected as it is settled law that if an employee retires from service then employer is liable to pay his retiral benefits promptly. It is well settled that right to receive retiral benefits is a fundamental right of an employee and is not a bounty. Simply because plaintiff-respondent accepted the retiral benefits on 14.02.2003 without any protest would not imply that she had forfeited the interest on the delayed payment and she cannot be estopped from claiming interest on the delayed payment. Appellants being employers of the plaintiff-respondent were duty bound to pay the salary and other retiral RSA No.22 of 2009 8 benefits of the plaintiff-respondent on her retirement. Withholding of the retiral benefits for a period of six years by appellants is not justified. The right of the employee to get his retiral benefits cannot be eclipsed by the fact that grant in aid was not released by the State of Punjab to the appellants. Neither the delay in payment of retiral benefits to the plaintiff- respondent can be justified on this ground. For the reasons recorded above, I find no merit in this appeal. No other point was argued. Thus,substantial questions of law as raised by the appellants do not arise in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 13.01.2009 neenu