IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No.10013 of 2023
th
Decided on: 29 February, 2024
__________________________________________________________
Sh. Shiv Lal …...Petitioner
Versus
The Himachal Pradesh Tourism
Development Corporation. ……Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting?
For the petitioner: Mr. Om Prakash Goel, Advocate.
For the respondent: Ms. Shilpa Sood, Advocate.
Ranjan Sharma, Judge (Oral)
With the consent of the parties, the instant
writ petition, is taken up for disposal, at this stage, in
view of the order(s) intended to be passed hereinafter.
2. The petitioner, having retired on 31.03.2022
from the post of MDH from the Respondent-Corporation,
has filed the writ petition with the following prayers:-
“(a) That a writ of mandamus or any other
appropriate writ order or directions may kindly
be issued directing the respondents to release
1 Whether reporters of Local Papers may be allowed to see the judgment?
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the revised higher amount of gratuity and leave
encashment in favour of the petitioner in terms
of the revised pay rules as well as the payment
of gratuity (amendment) Act, 2018 alongwith
interest @ 9% per annum.
(b) That a writ in the nature of Mandamus or any
other appropriate writ order or directions may
kindly be issued directing the respondent to
release the arrears along with interest @ 9% per
annum on account of the delayed period
payment.”
3. Case of the petitioner is that he retired from
service of the Respondent-Corporation as a Manager on
31.03.2022 and he was sanctioned the Gratuity
amounting to Rs.10,00,000/- (Ten Lakhs) on 28.06.2022
(Annexure P-3). The State Government issued the H.P.
Civil Services (Revised Pay) Rules on 03.01.2022, revising
the pay scales of its employees w.e.f. 01.01.2016; and
thereafter the State Authorities issued another Office
Memorandum on 25.02.2023 giving the revised retiral
benefits i.e. revised pension, revised gratuity, revised
commuted pension and revised leave encashment to its
employees w.e.f. 01.01.2016. Paras 6.1 and 6.2 of the
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Office Memorandum dated 25.02.2023, dealing with the
admissibility of “Retirement Gratuity/DCRG” whereby the
maximum admissible amount of DCRG of Rs.10,00,000/-
(Rupees Ten Lakhs) was allowed to Rs.20,00,000/-
(Rupees Twenty Lakhs) w.e.f. 01.01.2016, read as under:-
6.1 The rates for payment of death gratuity shall
be revised as under:-
Length of qualifying service Rate of Death Gratuity
Less than one year 2 times of monthly
emoluments
One year or more but less 6 times of monthly
than 5 years emoluments
5 years or more but less than 12 times of monthly
11 years emoluments
11 years or more but less 20 times of monthly
than 20 years emoluments
20 years or more Half month’s
emoluments for every
completed six-monthly
period of qualifying
service subject to a
maximum of 33 times of
emoluments.
6.2 The maximum limit of retirement gratuity and
death gratuity is enhanced from Rs.10 Lakhs to Rs.20
Lakh. The revised rates of retirement gratuity and
death gratuity shall be admissible w.e.f. 01.01.2016.
The first proviso under Rule 50(1)(b) of CCS
(Pension) Rules, 1972 shall stand modified to this
extent.”
4. Learned counsel for the petitioner submits
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once the Office Memorandum dated 03.01.2022 giving
revised pay scale w.e.f. 01.01.2016 and the Office
Memorandum dated 25.02.2023, giving revised retiral
benefits w.e.f 01.01.2016 to the employees of the State
Government have been adopted by the Respondent-
Corporation then, the employees of the Corporation,
including the petitioner is eligible for admissible amount
of Revised Gratuity/DCRG, out of the enhanced limit of
Gratuity of Rs.20,00,000/- (Twenty Lakhs) w.e.f.
01.01.2016.
5. In these circumstances, learned counsel for
petitioner submits that once the petitioner retired on
31.03.2022, then the petitioner is entitled to the
Revised/Enhanced Gratuity, under the CCS (Pension)
Rules on the date of retirement but the Respondent-
Corporation has already paid an amount of
Rs.1,00,000/- (Rupees One Lakh Only), whereas, the
“admissible amount of Revised Gratuity” has been
withheld till day. He further submits that the non-
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release/withholding of Revised Enhanced Gratuity
without giving prior notice and personal hearing is illegal.
Learned counsel for the petitioner submits that once
neither any departmental proceeding nor any criminal
prosecution was pending on date of retirement then,
denial or withholding revised Gratuity is illegal. It is
further submitted that once no Government-Corporation
Dues are outstanding against the petitioner on the date
of retirement then, withholding and non-release of
“admissible amount of Revised Gratuity”, without the
authority of law, is violative of Articles 14, 16 and 300-A
of the Constitution of India.
6. Learned counsel for the petitioner further
submits that in view of the non-release/withholding of
Revised Enhanced Gratuity arbitrarily till day, the
petitioner is entitled to the Statutory Interest on retiral
benefits from the due date till realization under Rule 65
of the CCS (Pension) Rules @ 7.1% per annum.
7. In the above background, learned counsel for
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the petitioner submits that the case of the petitioner for
grant of relief prayed by him is squarely covered under
the judgment dated 24.02.2022 delivered in CWP
No.6628/2021 titled as Anil Kumar Goel vs. The
Himachal Pradesh Tourism Development and anr.
decided on 24.02.2022 which reads as under:-
“4.
While disposing of Review Petition No.110 of
2021 on 25.11.2021, preferred against the order
dated 09.11.2021 passed in CWP No.6928 of
2021, in which, the aforesaid order dated
25.08.2021 passed in CWP No.4377 of 2021 was
relied upon, this Court has clarified the
aforesaid order in the terms that the respondent-
Corporation shall be liable to pay entire retiral
dues of the petitioner, including gratuity, arrears
of pension and leave encashment alongwith
prescribed rate of interest, within a period of six
months from the due date till the actual
payment is made.
5. We are, therefore, persuaded to dispose of these
writ petitions with a direction to the
respondents to pay gratuity and leave
encashment to the petitioners with actual
rate of interest as per applicable rules, till
the time of actual payment, which shall be
paid to them within a period of six months from
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today. The due amount of payment, if delayed
beyond six months, shall be paid with interest to
the rate of 9% per annum till the date of its
actual payment. The writ petitions stand
disposed of in the above terms, so also the
pending miscellaneous application(s), if any.”
8. Alternatively, the learned counsel for the
petitioner submits that consequent upon, the
amendment to the Payment of Gratuity Act (vide
Amendment Act No. 12 of 2018) notified on 11.04.2018,
the maximum amount of Gratuity was enhanced from
Rs.10,00,000/-(Rupees Ten Lakhs) to Rs.20,00,000/
(Rupees Twenty Lakhs); and the petitioner, having retired
from service of Respondent-Corporation on 31.03.2022,
is entitled to admissible amount out of the Enhanced
Revised-Gratuity, but the action of the Respondents in
releasing a sum of Rs. 1,00,000/- (Rupees One Lakh
Only) or such like amount is illegal and the petitioner is
entitled to statutory interest on such Revised Gratuity
under Section 7(3A) of the Payment of Gratuity Act, to
the petitioner till day.
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9. In order to substantiate the submissions made
in Para 6 (supra), the learned counsel for the petitioner
places reliance on the judgment passed by Division
Bench of this Court in CWP No.2740 of 2022, titled as
Mudit Kumar Versus Himachal Pradesh Tourism
Development Corporation, decided on 30.12.2022 along
with connected matters, which reads as under:-
“3. The respondent has filed its reply, wherein it has
not denied the entitlement of the petitioner(s) to
the reliefs, as sought for, and the only ground
taken for not granting the benefit to the
petitioner(s) is contained in para-4 of the reply,
which reads as under:-
That the petitioner is entitled to the higher
amount of gratuity as per payment of
Gratuity Act. 1972 amended on 29.3.2018
by the Govt. of India, published in the
Gazettee of India (Annexure R-2). But the
petitioner despite of being entitled cannot
be granted the financial benefit exceeding
the limit of Rs. 10.00,000/- because of the
fact that the competent authority of the
Respondent corporation ie. Board of
Directors (BOD) in its meeting held on
29.11.2019 vide agenda item No. 154.7 that
due to poor financial health of the HPTDC
the item agenda has been deferred till the
resources of the corporation allow to bear
the expenditure (Annexure R-3). Hence, the
financial benefits exceeding the capping of
Rs. 10.00.000/- as per payment of Gratuity
Act, 1972 amended on 29.3.2018 referred
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above can be given to the petitioner along
with other similarly situated retirees only in
case the same will be approved by the
competent authority i.e. Board of Directors
(BOD) of the respondent corporation as per
availability of funds in future. It is further
submitted that respondent corporation is a
semi Govt. commercial organization where,
the benefits like revised pay scale from time
to time at par with the Govt. Departments
are being released to the eligible employees
of the HPTDC, only after the prior approval
of the competent authority i.e. Board of
Directors. It is pertinent to mention here
that, the matter with respect of revised pay
scale was placed before the Board of
Directors of HPTDC. in its meeting held on
5.9.2022 for granting of above benefits to
the eligible employees of the Respondent
corporation. It is. also submitted that as &
when the Board of Directors of the
Respondent Corporation approves the adoption
of revised pay scale effective from 1.1.2016
onward at par with the Himachal Pradesh Govt.
Departments in HPTDC. the balance amount of
Leave encashment, if any as per these pay
scales will be calculated and released to the
petitioner as per availabilities of the funds."
4. Once the respondent accedes to the entitlement and
eligibility of the petitioner(s) for grant of relief of
revised gratuity, obviously, the mere fact that the
same could not be placed before the competent
authority, 1.e. the Board of Directors, can be no
ground to deny such benefit to the petitioner(s).
5. Accordingly, we deem it proper to dispose of these
petitions by directing the respondent to release
the revised higher amount of gratuity and leave
encashment. in favour of the petitioner(s), in
terms of the Revised Pay Rules as well as
Payment of Gratuity (Amendment) Act. 2018,
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within a period of three months from today,
failing which the respondent shall be liable to
pay interest @ 9% per annum, from the date of
filing of the petition, till its realization in favour of the
petitioner(s). The pending application(s), if any, are
also disposed of.”
10. So far as the claim for Revised Leave
Encashment is concerned, once the revised pay has been
decided to be released, therefore, based on such revised
pay, the petitioner is entitled to Revised Leave
Encashment in terms of mandate of this Court in CWP
No.7359 of 2021, titled as Amita Gupta Versus State
of H.P. & ors., decided on 01.12.2022.
11. In the background of the submissions made in
Para 3 to 8 (supra), the learned counsel for the petitioner
submits that the petitioner would be satisfied, in case, a
direction is issued to the respondents/competent
authority to consider/examine the case of the petitioner
for redressal of grievances, raised by him in the instant
petition (for releasing the admissible amount of Revised
Enhanced Gratuity and Revised Leave Encashment) in
the light of the aforesaid judgments, within a time bound
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schedule.
12. The prayer being innocuous, is not opposed by
Ms. Shilpa Sood, learned counsel for the Respondent-
Corporation, on facts as well as in law.
13. Having regard to the submissions made by
learned counsel for the parties, the writ petition is
disposed of by directing the respondents-competent
authority to consider/examine the case of the petitioner,
for release of admissible amount of Revised-Enhanced
Gratuity and Revised Leave Encashment in the light of
the judgments in case of Anil Kumar Goel, Mudit
Kumar and Amita Gupta (supra), in accordance with
law, within four months from today.
14. Upon consideration, since the respondents are
directed to release, the benefits of legal entitlements of
Revised Gratuity and Revised Leave Encashment which
became due and payable on retirement withheld
arbitrarily, but were delayed till day. In addition thereto,
the Respondent-Corporation shall release the statutory
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interest admissible, under the Statute or Rules or Orders
issued thereunder to the petitioner from the due date till
actual realization of aforesaid benefits [i.e. as is
admissible on GPF under Rule 65 of CCS (Pension) Rules
i.e. 7.1 per annum or interest admissible on long term
deposits under Section 7(3A) of Payment of Gratuity Act
i.e. 6.75% per annum]. Further, the respondents shall
release similar rate of interest @ 6% per annum or
Revised Leave Encashment, from due date (i.e. expiry of
those months from the date of notification of revised pay
scale by the Respondents-Corporation, till its realization,
to the petitioner, within four months from today; failing
which, the Respondents, shall be liable to pay interest @
9% per annum from due date till realization.
In aforesaid terms, the writ petition as well as
the pending miscellaneous application(s), if any, shall
also stand disposed of, accordingly.
(Ranjan Sharma)
February 29, 2024 Judge
(Shivender)