IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14116 of 2007 Krishna Deo Prasad, Son of Sri Sidheshwar Prasad, Resident of Village – Makhdumpur, P.S. – Jehanabad, District - Jehanabad. …………… Petitioner Versus 1. The State Of Bihar through the Registrar Cooperative Societies, Bihar, Patna. 2. The Registrar, Cooperative Societies, Bihar, Patna. 3. The Bihar State Cooperative Land Development Bank Simit Budh Marg, Patna. 4. The Chairman, Bihar State Cooperative Land Development Bank, Simit, Budh Marg, Patna. 5. The Managing Director, The Bihar State Cooperative Land Development Bank, Simit, Budh Marg, Patna. 6. Director (Personnel) The Bihar State Cooperative Land Development Bank, Simit, Budh Marg, Patna. ………….. Respondents ----------- 4 12/08/2011 Heard Sri Birendra Prasad, learned counsel for the petitioner, learned counsel appearing on behalf of Respondent Nos. 1 & 2/State and Sri Rajesh Prasad Chaudhary, learned counsel appearing on behalf of Respondent Nos. 3 to 6/Bihar State Cooperative Land Development Bank Ltd. The petitioner, who retired with effect from 31.3.2006, from the Bihar State Cooperative Land Development Bank (hereinafter referred to as the ‘Bank’) while invoking writ jurisdiction of this Court has prayed for directing the Respondents to pay all his retrial benefits and legal dues. The petitioner had retired from Rafiganj Branch of the Bank. After retirement, amount under the head of contributory provident fund and group insurance has been paid, but till date, following dues were not cleared which has been enumerated in paragraph no. 7 of the writ petition: (i) Amount of gratuity. (ii) Amount of leave encashment 2 (iii) Salary for working period from May 2004 to November 2004 7 months and Aug. 2005 to March 2006 8 months Total 15 months which has been sanctioned vide order no. 3534 dated 27.11.2006 for Rs. 1,85,310.00. (iv) Amount of Bank contribution for Rs. 21,000/- which has been occurred from abovementioned arrear salary. (v) Arrear D.A. from 1.7.2000 to September 2001 which was sanctioned vide order no. 9821 dated 2.10.2001 and also from 1.1.2001 to May 2003 sanctioned vide order no. 2430 dated 16.6.2002. (vi) Amount of statutory upto date interest dues amount and legal cost. After his retirement in the year 2006 in 2007 the petitioner represented before the authority concerned for clearing his dues since he was in urgent need in relation to his daughter’s marriage even then no action was taken by the Respondent-Bank and finally the petitioner was constrained to approach this court by filing the present writ petition in the month of November, 2007. Despite filing number of representations the Respondent- Bank had not taken any notice for clearance of all the dues of the petitioner and thereafter the petitioner was constrained to approach this court by filing the present writ petition in November, 2007. Despite the fact that the present writ petition was filed in the year 2007 no counter affidavit was earlier filed on behalf of Respondent-Bank. However, on 25th July, 2011 on behalf of 3 Respondent Nos. 3 to 6/Bank a counter affidavit has been filed. In the counter affidavit the Respondent-Bank has not disputed the claim of the petitioner. They have admitted that certain amount under different heads were sanctioned by the competent authority in the year 2007, however a plea has been taken that payment will be made in chronological order as per the turn of the petitioner. It would be appropriate to quote paragraph no. 4 of the counter affidavit for just decision of the case which is as follows:- “4. That the petitioner was field employee who retired from service on 31.03.2006 from Rafiganj Branch of the Bank, after retirement from service his following dues has been settled and sanctioned order has been issued (i) Gratuity Rs. 60390/- vide letter no. 2745 dated 13.11.2007 (ii) Leave encashment Rs. 87112/- vide office order no. 2745 dated 13.11.2007 (iii) Arrears of salary from May 2004 to November 2004 and August 2005 to March 2006, which comes after calculation Rs. 185310/- for which vide office order no. 3534 dated 27.11.2006 Executive order has been issued. Since the payment order for arrears of salary was issued after superannuation of the petitioner, therefore, no provident fund deduction has been made. With regard to arrears of difference of salary, it is stated that keeping in view the financial condition of the bank, under a policy decision the dearness allowance was given vide office order no. 9821 dated 29.10.2001 with effect from 1.7.2000 under the following conditions:- 4 (a) For present, the monetary benefit will be given from October 2001. (b) For arrears of dearness allowance for the period July 2000 to September 2001 will be decided later on as per the financial condition of the bank. Vide bank order no. 2430 dated 10.06.2003 the order for payment of dearness allowance with effect from 1.1.2001 was given under following conditions:- (a) For the present Monetary benefit will be given with effect from June 2003. (b) For arrears from January 2001 to May 2003 decision will be taken subsequently as per the financial condition of the bank. It will be relevant to state that due to bad financial condition no decision could be taken for payment of arrears from July 2001 to September 2001 and January 2001 to May 2003. Accordingly for the said period the arrears of dearness allowance has not been paid to any of the employees of the bank. However, as and when the Financial condition of the bank will improve & fund is received in the bank, the arrears of aforesaid period will be paid to the petitioner along with other employees of the bank.” In sum and substance on behalf of the Bank a plea has been taken that financial condition of the Bank was not appropriate for making payment and also that dues will be cleared in a chronological manner since the Bank has taken such decision. 5 In this case rejoinder dated 26th July, 2011 to the counter affidavit has been filed on behalf of the petitioner wherein the petitioner has asserted that financial position of the Bank has already been improved and the Respondent-Bank is trying to make out a case of financial crunch which is not true. The petitioner in its rejoinder has given certain examples to corroborate that financial position of the Bank is presently sound and due to that reason the Bank is disbursing loans in crores, purchasing number of vehicles, appointing large number of employees and even the Bank has spent a huge amount to the tune of Rs. 50 Lakhs for modernization and repairing of its own building. The Bank after filing of the rejoinder by the petitioner to the counter affidavit has further filed a supplementary counter affidavit in reply to petitioner’s rejoinder to the counter affidavit on 1st August, 2011. In the supplementary counter affidavit the Bank has virtually admitted the plea of the petitioner taken in its rejoinder but the Bank has tried to give an explanation for such expenditure. Sri Birendra Prasad, learned counsel for the petitioner in view of the facts and circumstances has argued that once the financial position of the Bank has already improved the Bank may not be allowed to withhold post and pre retrial dues of the petitioner on its so-called plea of clearing dues of the petitioner in chronological manner. Learned counsel for the petitioner at the time of argument has also taken the plea that chronological list is also not strictly being 6 followed by the Bank. Sri Rajesh Prasad Chaudhary, learned counsel for the Respondent-Bank has tried to justify the stand of the Bank that retrial dues will be paid in chronological manner. Sri Chaudhary has drawn my attention to Annexures ‘B’ & ‘B/1’ to its counter affidavit i.e. Office Order of the Bank. It was submitted that as per the decision of the Bank retrial dues of the employees who had retired till 31st December, 2005 were to be paid as per Order dated 02.08.2010 i.e. Annexure – B/1. Sri Chaudhary has also drawn my attention to an order dated 29.10.2010 passed in CWJC No. 16653 of 2010 at pages 17 to 19 of the counter affidavit and also on Annexure –C i.e. a photo- copy of Order dated 18.05.2011 passed in CWJC No. 4956 of 2011 (pages 20 to 23 of the counter affidavit). It was argued by Sri Chaudhary that different Bench of this court has approved the stand of the Bank for clearing the dues in chronological manner. Besides hearing learned counsel for the parties, I have also perused the materials available on record. It need not to be elaborated that retrial dues of an employee cannot be treated as a bounty. After retirement, as a matter of right, a retired employee is entitled to claim his retrial dues and employer is duty bond to pay retrial dues immediately after his retirement. The plea of financial crunch has got no such relevance to deny the claim of retrial dues. If an employee, whose right granted under Article 21 of the Constitution so far as retrial dues is concerned, is infringed and he approaches the court under Article 226 of the Constitution of India, the court is required to 7 protect the right of a citizen and in the light of protecting the right, which has been conferred under part-III of the Constitution of India, the writ court is duty bound to protect such right. So far as order dated 18.5.2011 passed in C.W.J.C. No. 4956 of 2011 (Annexure-C to the counter affidavit) is concerned, in the said case, petitioner, who was already functioning in the Bank, had claimed for payment of arrear of salary. It was not in relation to payment of retrial dues. Accordingly, the order referred by learned counsel for the Bank may not help the Bank in proper adjudication of the present case. In similar manner, the petitioner in C.W.J.C. No. 16653 of 2010 had claimed for payment of his arrear of salary. Moreover, in the facts and circumstances of the present case particularly in view of the stand taken by the petitioner regarding improved financial position of the Bank is concerned, the court is of the opinion that payment of retiral dues of the petitioner cannot further be delayed. The petitioner in its rejoinder which was filed on 26th July, 2011 has categorically stated that Bank had purchased vehicles, Bank has now started distributing loans in crores, Bank is appointing employees and the Bank has spent huge amount for repairing/modernization of its building which was not categorically denied by the Bank in its supplementary counter affidavit in reply to petitioner’s rejoinder which was filed on 1st August, 2011, the court is of the opinion that in such a situation any plea on behalf of the Bank for withholding dues of retired employees of the Bank cannot be sustained nor retired employee can be denied his dues by any of the 8 employer on such pretence. I have already indicated that denying dues to the retired employees amounts to infringing his right conferred under Part-III of the Constitution of India and with a view to protect the right of a citizen it is duty of a writ court to interfere in the matter. In view of the facts and circumstances of the present case the court is of the opinion that it is a fit case for directing the Respondent-Bank particularly Respondent No. 5/Managing Director, the Bihar State Cooperative Land Development Bank, to clear all the dues of the petitioner and make payment within a period of two months from the date of receipt/production of a copy of this order. The Respondents, particularly Respondent No. 5, is further directed to pay interest at the rate of 4 % per annum on all the dues of the petitioner from the date of retirement of the petitioner till the date of payment. With above observation and direction the writ petition stands allowed. Praful ( Rakesh Kumar, J.)