LPA No. 967 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH 1. LPA No. 967 of 2011 Date of Decision: September 08, 2011 O.P. Bansal and others …Appellants Versus State of Haryana and others ...Respondents 2. LPA No. 654 of 2011 Mangi Ram and others …Appellants Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. R.K. Malik, Sr. Advocate with Mohan Lal Singla, Advocate for the appellant (in LPA No. 967 of 2011) Mr. Anurag Goyal, Advocate for the appellant (in LPA No. 654 of 2011) Mr. Aman Chaudhary, Addl. A.G., Haryana Mr. Rameshwar Malik, Advocate for respondent No.2. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This order shall dispose of two appeals, namely, LPA No. LPA No. 967 of 2011 -2- 967 of 2011 and 954 of 2011 filed under Clause X of the Letters Patent, which have been preferred by the unsuccessful appellant-writ petitioner challenging identical judgment of the learned Single Judge dated 31.01.2011. The learned Single Judge has found that substantial relief has been granted by respondent No. 2 to the appellants. The writ petitioner-appellant are employees of the Haryana State Minor Irrigation Tubewell Corporation-respondent No.2 (for brevity 'the HSMITC'). They had approached this Court with a prayer for grant of equivalent scales of pay as were given to those deputationists who were working on the corresponding post in HSMITC. The relief claimed by some of them was allowed vide order dated 18.05.1993 passed by this Court in CWP No. 14200 of 1992 (P-1). Even, the LPA against the view of the learned Single Judge was dismissed on 22.08.2001 (P-2). It is appropriate to mention that the learned Single Judge in that case while granting the relief held as under: “Accordingly, this writ petition is allowed. It is held that the petitioners will be entitled to the revised scales of pay with effect from May, 1989 and has been granted to the persons working in the Corporation by way of deputation or in the public works department of the Govt. The needful shall be done within 4 months from the date of receipt of a copy of this order. They will be entitled to all consequential benefits. In case, the needful is not done within the aforesaid time, the petitioners shall be entitled to the payment of the arrears etc. LPA No. 967 of 2011 -3- alongwith interest @ 12% per annum from the date of actual payment. However, in the circumstances of the case, there will be no order as to costs.” 2. The matter travelled to Hon'ble the Supreme Court and on 16.04.2008, Civil Appeal was dismissed (P-5). It is appropriate to mention that the writ petitioner-appellants filed interlocutory application before Hon'ble the Supreme Court to become a party but the same was also dismissed. However, they were permitted to address the Court in support of claim of similarly situated persons but without filing any pleading. 3. It is further necessary to mention that some other employees of HSMITC filed CWP No. 16163 of 1995 during the pendency of the Letters Patent Appeal No. 725 of 1993 and a Division Bench passed a short order disposing of the aforesaid petition and issuing directions that whatever benefit would be granted in the Letters Patent Appeal mutatis mutandis would apply to other employees of the Corporation who are similarly situated as those writ petitioners relatable to LPA No. 725 of 1993. 4. On the basis of the aforementioned facts and circumstances, a request was made by the writ petitioner- respondents to the appellant to grant them pay scale along with interest. A detailed order was passed by the Managing Director on 24.02.2010 (P-8) granting them the pay scale as per judgment of the learned Single Judge rendered on 18.05.1993 (P-1). However, the LPA No. 967 of 2011 -4- prayer for interest was declined. Consequently, no interest was paid on the excuse that the learned Single Judge has ordered payment of interest only in the eventuality arrears of revised pay scale were not paid to those writ petitioner-respondents within stipulated period. The view of the Managing Director of HSMITC is reflected in the following para of the order, which reads as under: “7. It is intimated that the Hon'ble High Court allowed 12% interest to the petitioners of the CWP No. 14200 of 1992 in case the payment of arrears is not made within 4 months from the date of receipt of a copy of the judgment. HSMITC and the Govt. filed LPA in the High Court which was dismissed on 22.08.2001. The liability of interest started after 4 months of the date of receipt of judgment in the CWP No. 14200 of 1992 and was otherwise not a core issue for the decision of the Hon'ble High Court. 8. The representations of Ex. XENs/ SEs regarding claim of 12% interest who have been granted the modified pay scales in light of the aforesaid judgment upheld by the Hon'ble Supreme Court and order dated 31.07.2008 of the Hon'ble High Court in their CWPs, is not justified as the interest was allowed by the Hon'ble High Court to the SDOs who were petitioners and that too if the judgment is not implemented within 4 months of its receipt. The contention of these XENs/ SEs that they are similarly situated and as such the judgment dated 18.05.1993 is “mutatis mutandis” applicable upon them is not tenable so far as the payment of 12% interest is concerned LPA No. 967 of 2011 -5- as it was not a core issue decided by the Hon'ble High Court. The payment of interest became payable after 4 months of the non implementation or the judgment. The Hon'ble High Court has not passed any order regarding payment of 12% interest in any of the CWPs filed by these XENs/ SEs which were disposed of on 31.7.2008. Thus, it is clear that either these XENs/ SEs did not press for claiming 12% interest or the Hon'ble Court considered and rejected the same. 9. It is further pertinent to note here that the petitioners Ex-XENs filed LA Nos. 2 and 3 (In SLP(C) No. 140 of 2002) titled as HSMITC versus GS Uppal and others in the Hon'ble Supreme Court of India for impleadment as party. The Hon'ble Supreme Court disposed of the said L.A. by passing the following order:- “The applicants herein are not parties before the High Court and cannot be allowed to be joined as parties for the first time in this Court. However, as their interest is common with the respondents, already on record they are allowed the liberty of addressing the Court in support of respondents but without filing any pleadings. The prayer for impleadment is refused.” 10. It is specifically mentioned here that the petitioners XENs did not avail the liberty of addressing the Hon'ble Supreme Court in support of respondents as per the aforesaid observation. The contention of the Ex-XENs/ non petitioners SDOs that they are similarly situated as the petitioner of CWP No. 14200 of 1992 and CWP No. 16163 of 1995 is thus devoid of merits and as LPA No. 967 of 2011 -6- such their request for the grant of 12% interest on the arrears of pay, as has been granted to the SDOs of HSMITC in compliance to the judgment of Hon'ble High Court upheld by the Hon'ble Supreme Court is not sustainable. However, the payment of revised DCRG and leave encashment which became due after the grant of modified pay scales of Rs. 4100-5300 is being worked out and will be released as per Rules of the Corporation and relevant provisions of law after completing due formalities.” 5. Feeling aggrieved, the appellants approached this Court with the grievance that they are entitled to payment of interest on the arrears @ 12% on account of delay in payment thereof to which they have been held entitled by the learned Single Judge as back as 18.05.1993. The learned Single Judge has rejected their claim and feeling aggrieved, the writ petitioner-appellants have filed the instant appeal. 6. We have heard learned counsel for the parties. Mr. R.K. Malik, learned Senior counsel and Mr. Anurag Goyal, learned counsel for the appellant have vehemently argued that on any delayed payment of arrears of salary, interest has to be paid because an employee is deprived of using the financial benefits, which have been illegally withheld by the HSMITC. The amount of interest is in the nature of compensation in lieu of the amount withheld and used by the HSMITC. Mr. Anurag Goyal, learned counsel has vehemently argued that the order passed by the Division Bench on 09.11.1995 in LPA No. 967 of 2011 -7- a writ petition filed by 60 employees of HSMITC clearly postulates that the decision which would be rendered in LPA No. 725 of 1993 was to enure to the benefits of other employees of HSMITC including those who were petitioners in that petition. 7. Having heard learned counsel for the parties and after duly perusing the paper book with their able assistance, we are of the view that these appeals deserve to be allowed and the appellants must be held entitled to payment of interest @ 12% per annum from the date the actual amount was payable to them till the date of its payment. It has come on record that after the employees of HSMITC have succeeded by virtue of direction issued on 18.05.1993 by the learned Single Judge of this Court in CWP No. 14200 of 1992 (P-1). Some colleagues of the appellants also filed CWP No. 16163 of 1995 and a Division Bench of this Court vide judgment dated 09.11.1995, in categorical term, held that the Letters Patent Appeal No.725 of 1993 preferred by the respondent-State was pending and whatever the decision would be rendered in the appeal that would mutatis mutandis apply to all other employees of the HSMITC including the one who had filed the petition. The order of the Division Bench deserves to be quoted in extenso which is as under: “Present: Mr. Vivek Bhandari, Adv. for the petitioners. ORDER After hearing the learned counsel for the petitioners, we do not find any merit in the writ petition. There is a reference to a Letters Patent Appeal No. 725 LPA No. 967 of 2011 -8- of 1993 in Annexure P-7 which was filed by the State Government against the judgment of a Learned Single Judge dated May 18, 1993, granting certain relief’s to the employees similarly situated as the present petitioners. Needless to mention that whatever the decision would be rendered in the aforesaid LPA that would mutatis mutandis apply to the other employees of the Corporation including the present petitioners who are similarly situated as these writ petitioners who had earlier filed the writ petition against which the LPA was filed. Dismissed. Sd/- R.S. Mongia, Judge Sd/- K.K. Srivastava, Judge 09.11.1995” 8. It is, thus, evident from the perusal of the order that some of the appellants along with other colleagues had succeeded in securing the order which stipulates that the relief which have been given to the employees involved in LPA No. 725 of 1993 would automatically enure to the benefits of the appellants and other similarly situated persons. It is also clear from the perusal of the judgment passed by the Division Bench in LPA No. 725 of 1993 that the view taken by the learned Single Judge has been upheld as has rightly been pointed out by the counsel for the appellants. Accordingly, the relief which have been given to the appellants in LPA No. 725 of 1993 must enure to the benefit of the appellants in LPA No. 967 of 2011 -9- the instant appeal and other similarly situated persons. 9. It is no doubt true that the learned Single Judge has issued directions for payment of pay scales to employees of HSMITC equivalent to the one which were being paid to those who are brought on deputation. The directions were to be carried within a period of four months from the date of receipt of copy of that order. It was further directed that if the payment of arrears was not made then interest @ 12% per annum was to accrue from the date of accrual to the date of actual payment. In the case of the appellants, the order passed by this Court on 09.11.1995 (P-3) has not been accepted and the appellants were forced to file CWP No. 13440 of 2008 and COCP No. 659 of 2009. As a result, the arrears of revision of pay scale could be paid only somewhere in the year 2009 or 2010. Therefore, there is no justification for respondent to claim that the judgment rendered by the learned Single Judge on 18.05.1993 (P-1) as upheld by the Division Bench in LPA No. 725 of 1993 decided on 22.08.2001 (P-2) was conditional and the interest was payable only if payment of arrears was not made within judicially granted period of four months. That period is over long ago and the plea cannot be raised to deny the relief of payment of interest. We find that the contention raised by the learned counsel for the appellants is meritorious and deserves to be accepted. 10. For the reasons aforementioned, the impugned judgment of the learned Single Judge is set aside and the appeals are allowed. Respondent No.2 is directed to calculate the interest @ 12% from LPA No. 967 of 2011 -10- the date of its accrual to the date of its actual payment. The needful shall now be done within a period of four months from the date of receipt of certified copy of the order. 11. A photocopy of this order be placed on the file of connected case. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE September 08, 2011 Atul