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Sanjib Ratan Saha v/s The Institute of Cost Accountant of India & Others

Company & Directors' Information:- RATAN CORPORATION LIMITED [Active] CIN = U74120MH1992PLC068199

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    W.P. No. 28561 (W) of 2017

    Decided On, 25 June 2018

    At, High Court of Judicature at Calcutta


    For the Petitioner: Subir Sanyal, Sumouli Sarkar, Advocates. For the Respondents: Dr. Sutanu Kar Patra, Advocate.

Judgment Text

The petitioner retired as the Director (Finance) of the Institute of Cost Accountant of India, i.e. the respondent no. 1, on June 30, 2016. His grievance is that he has not been paid his retiral dues for a pretty long time. He has mentioned the various components of his retiral dues in the writ petition. He sent electronic mail on November 13, 2016 and subsequently on various dates to the respondent for releasing his retiral benefits.

It is the further case of the petitioner that on June 21, 2017 he received a communication from the Deputy Director (HR and Administration), i.e. the respondent No. 7, that the matter relating to the release of retiral benefits was under the purview of the Council of the respondent no. 1 Institute and the Secretary and other officials could act on the decision of the Council. But in the meeting of the Council held on July 21, 2017 it was resolved that the matters relating to release of terminal claims of retired/resigned employees should not be brought before the Council. Hence it was decided to take the agenda item out of its purview. It was further resolved that the administration could follow the rules for payment of terminal claims of the concerned employees and pay their dues in accordance with the rules.

The petitioner alleges that in spite of the resolution adopted by the Council of the Institute the administration did not take any step for implementation of the resolution or for disbursing the retiral dues in favour of the petitioner.

Therefore, the petitioner has inter alia prayed for a direction, writ in the nature of mandamus, commanding the respondents to forthwith release the retiral benefits as mentioned in prayer (a) together with interest accrued thereon.

On December 13, 2017, when this writ petition was moved, in spite of service none appeared on behalf of the respondents. This Court had directed the Secretary, respondent no. 4 to file a report, in the form of an affidavit, in response to the allegations made in the writ petition. It was further directed that the report must specifically disclose why in spite of the resolution taken by the Council the retiral dues had not yet been disbursed to the petitioner.

Pursuant to the said order the Secretary (Acting) of the Institute of the respondent no. 1 had filed an affidavit from which it appears that the Provident Fund dues had been settled in his favour on June 30, 2016 and he had also been receiving pension in terms of the Service Rules of the Institute. However, the Institute was not able to immediately settle the dues of the petitioner with regard to Gratuity, Leave Encashment, Festival Allowance and the balance accumulated in the employees' benevolent fund due to various internal/administrative defects and paraphernalia. In order to overcome the said difficulty the Council of the Institute on December 22, 2017 set a Committee to look into the matter and resolve all cases in which retiral benefits of the Institute's retired employees have not been released.

The affidavit of the respondents further records that on January 11, 2018 the remaining retiral benefits of the petitioner have been released by the Institute under various heads as mentioned in the affidavit.

Mr. Sanyal, the learned Advocate for the petitioner, did not wish to file any rejoinder to the said affidavit and did not raise any issue about the quantum of the payment made under various heads. But he submitted that he is entitled to interest for the delayed release of the retiral benefits of the petitioner.

A major plank of Mr. Sanyal's argument is that the report doesn't mention any reason why the retiral dues of the petitioner have been withheld for more than a year and a half and why despite his repeated requests the respondents did not act either in terms of the resolution of the Council of the Institute or in terms of the relevant Rules.

Dr. Patra, the learned Advocate for the respondents submitted that if the petitioner was praying for interest on the belated payment of the retiral dues they may be permitted to file another affidavit bringing on record the allegations against the petitioner.

This has been a rather unusual submission. Why should the Court allow the respondents to file another affidavit giving them the opportunity to bring the "allegations" against the petitioner? There was already a direction to the effect that in the report to be filed in the form of an affidavit the respondents were to disclose why in spite of the resolution taken by the relevant Council the retiral benefits have not been disbursed to the petitioner and this is what the answering respondents also understood about the direction. In paragraph 3 of the affidavit the respondent No. 4 had summed up the order and the direction directing him to file a report specifying why the retirement benefits of the petitioner had been withheld. As such, there should not have been any area of confusion or lack of understanding about what the respondents were required to mention in the affidavit.

While the respondent No 4 in paragraph 3 the affidavit has stated he was affirming it pursuant to the direction of the Court - after mentioning what the direction was - it is only expected that the affidavit used pursuant to the said order would disclose all the reasons which the respondents might think to be relevant for withholding the retiral dues of the petitioner. If in spite of it the respondents have not mentioned the so-called real reasons or the "allegations" against the petitioner it must be deemed either that there was no real reason for withholding the retiral benefits of the petitioner or by not providing the real reason they were not acting pursuant to the direction of the Court. It is all the more so that the petitioner had prayed for interest in the writ petition itself.

As such the submission of Dr. Patra that if the petitioner prays for interest they should be given an opportunity to file an affidavit, is without any valid justification and is against the settled procedure for disposal of a petition. The prayer of the respondents for an opportunity to file another affidavit was turned down by an order, dated January 30, 2018, wherein it was specifically recorded that the respondents who have not acted in terms of the Court's order could not ask for yet another opportunity to file a fresh affidavit to come up with some allegations against the petitioner which they, in exercise of their own wisdom, did not mention in the affidavit. The Court rejected the prayer for filing piecemeal affidavits to one writ petition for the failure of the respondents to bring on record what they now be tried to project as the "real reasons".

The affidavit nowhere says anything against the petitioner. It also doesn't say that any act of the petitioner, while he was in service, could even be remotely connected with withholding of his retiral benefits. On the contrary it says that the Institute was unable to immediately settle the retiral dues due to various internal/administrative difficulties and/or paraphernalia. This statement has been made too wide in the affidavit. In paragraph 7 it has been specifically stated that withholding of the retiral dues was neither deliberate nor was done to harass the petitioner.

If they were unable to settle the dues due to internal/administrative defects and/or paraphernalia, one wonders how does the question of making allegations against the petitioner arise. Moreover, it also does not appear from the affidavit that any of the acts of the petitioner could have any role to play for the delayed disbursement of his retiral dues. It was on December 22, 2017 that a committee was set up to look into the matter and resolve all cases where retiral benefits of the ex- employees of the Institute had not been released. Thereafter, as mentioned in paragraph 6 of the affidavit, the remaining retiral benefits of the petitioner were released. The setting up of the Committee for releasing the retiral dues of the ex-employees of the Institute also clearly suggests that there must have been many employees the retirement benefits in whose favour have not been released.

The law point is very well settled that retiral dues of an employee is something which he has earned by dint of the service rendered to the employer during the whole of the service career. It is his rightful claim and is not a bounty. A retired employee is entitled to get the same, if the service rules provided for it, as of right. This benefit runs with the service condition and is one of the prizes of retirement which an employee may always legitimately expected.

The need to settle the retiral dues at an early date has been repeatedly emphasized by different courts. An employee who puts in long years of service has not only a legitimate expectation but a definite right to get the retiral benefits disbursed in his favour at an early date. It is a right which has accrued in his favour and without any just cause no authority can not only deprive an ex- employee of those benefits but cannot even delay in disbursing the same. About four decades and a half ago the Supreme Court in the case of State of Mysore Vs. C. R. Sheshadri, reported in (1974) 1 LLJ 301 (SC) observed that a retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary expectation of the superannuated public servant, it was becoming necessary to issue directions for early payment of the dues.

In the case of Dr. Uma Agarwal Vs. State of U.P. and Another, reported in AIR 1999 SC 1212, a three-judge bench of the Supreme Court found that the retiral benefit was delayed by the department which was inexcusable. The Supreme Court observed that grant of pension was not a bounty but a right of a government servant. Delay in settlement of retiral benefit is frustrating and must be avoided at all costs. The Supreme Court considered the case to be fit for awarding an interest to the petitioner and quantified the interest payable at Rs. 1 lakh and directed the respondents to pay the same to the petitioner within two months from the date of the judgment.

More recently in the case of D. D. Tiwary (Dead) through Legal Representatives Vs. Uttar Haryana Bijli Vitran Nigam Limited and Others, reported in (2014) 8 SCC 894, the Supreme Court found that the retiral benefits of the appellant were withheld by the respondents on some alleged grounds. But no disciplinary proceeding was pending against him on the date of retirement. The appellant approached the High Court seeking a direction upon the respondents regarding payment of retiral benefits with an interest at the rate of 18% on the delayed payments. The Supreme Court reiterated the principle as laid down in State of Kerala Vs. M. Padmanavam Nair, reported in (1985) 1 SCC 429, that pension and gratuity are no longer any bounty to be distributed by the government to its employees on their retirement but have become valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with penalty of payment of interest at the current market rate till actual payment is made to the employee. The Supreme Court observed that the said legal principle still holds good for awarding interest on delayed payments to a retired employee. The impugned orders in that appeal which di

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d not award interest to the appellant was described by the Supreme Court as a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement till the date of payment. The Supreme Court consequently awarded interest at the rate of 9% per annum on the amount payable by the respondents. Such amount was to be paid within a period of six weeks from the date of receipt of a copy of the order and, if not, the same would carry interest at the rate of 18% per annum from the date the amount fell due to the deceased employee. In such view of it I direct the respondent No. 1, Institute to pay interest at the rate of 9 per cent per annum on the remaining retiral benefits which were released on January 11, 2018. Such interest shall be calculated from August 1, 2016 giving respondents the benefit of a month after the petitioner's retirement as a reasonable period for disbursing the retiral benefits till the actual date of payment. With the aforesaid directions this writ petition is allowed. There shall be no order as to costs. Parties will be at liberty to get xerox certified copy of this order upon payment of requisite court fees and after fulfilling the necessary pre-conditions.