IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
CWP No.10018 of 2023
th
Decided on: 29 February, 2024
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Sh. Chaman 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 as
Sr. Accountant 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 arrear of salary + Dearness Allowance w.e.f.
01.01.2016 till 31.03.2022, as per the re-fixation
order issued by the respondent as per Annexure
P-2, in favour of the petitioner on the basis of re-
fixation of higher pay in terms of revision of jpay
scales w.e.f. 01.01.2016 in accordance with law
alongwith interest @ 9% per annum from due
date till the date of its realization on account of
the delayed period payment.
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 50% balance payable amount of
interim relief in favour of the petitioner
alongwith interest @ 9% per annum on account
of the delayed period payment, in the interest of
law and justice.”
3. The petitioner was appointed as Accounts
Clerk in the Respondent-Corporation on 27.09.1985 at
Shimla. After rendering an unblemished services, the
petitioner retired, on attaining the age of superannuation
on 31.03.2022, after rendering about 37 years of service
in the Corporation. Post retirement, the first prayer of the
petitioner is that based on Government Notification dated
03.01.2022, the Respondent-Corporation issued an order
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on 26.09.2022, granting the revised pay scales to the
employees of the Corporation w.e.f. 01.01.2016,
including the Dearness Allowance as made applicable
from time to time and arrears accruing therefrom have
not been released till day; the second prayer [made orally]
by Mr. O.P. Goel, learned for the petitioner, is that
consequent upon the revision of pay scales [on
26.09.2022, Annexure P-2], the Revised Gratuity and
Revised Leave Encashment has neither been sanctioned
nor released to the petitioner and the rightful dues, have
been withheld or release is being delayed without any
fault attributed to the petitioner, for which the petitioner
is entitled to interest from due date till actual realization.
In the above background, the petitioner is
praying for; (i) release of revised pay arrears and dearness
allowance w.e.f. 01.01.2016 till superannuation on
31.03.2022; and (ii) interest @ 9% per annum for delayed
release of benefits from due date till realization.
4. At this stage, Mr. Om Prakash Goel, learned
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counsel for the petitioner submits that consequent upon
the entitlement and admissibility of revised pay scale, the
petitioner shall also be entitled to the revised retiral
benefits (i.e. revised gratuity and revised leave
encashment from the due date of retirement).
5. Ms. Shilpa Sood, learned Standing Counsel for
the respondent, does not dispute the entitlement of the
petitioner for arrear of revised pay scale and Dearness
Allowance thereon. However, she submits that the
petitioner has not prayed for grant of revised gratuity and
revised leave encashment in terms of the Notifications
issued by the State Government which have been
adopted and made applicable to the employees of the
Corporation in the instant petition. However, she submits
that submission so put forth is that the financial
condition of the Corporation is not in good humour as on
day and therefore, the admissible revised benefits as
referred to above, cannot be granted to the petitioner in
lump-sum.
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6. The above plea so taken by the Standing
Counsel for the Corporation, in considered view of this
Court is not tenable in law, for the reason, that once the
petitioner has served the Respondent-Corporation then,
the petitioner has acquired a legal and vested right in law
[based on relevant Act, Rules and Office Memorandums
issued thereunder to receive the benefits of revised pay-
salary including arrears; the revised gratuity and revised
leave encashment. These legal entitlements come within
the ambit of “Property under Article 300 A of the
Constitution of India” and that being so, the respondents
cannot wither withhold or delay the timely release of
these legal entitlements, except in accordance with law.
7. Notably, the revised retiral benefits can only be
denied to the petitioner-employee, in case there is any
criminal prosecution or disciplinary proceedings against
the petitioner as on the date of his/her retirement. It is
not the case of the Respondent-Corporation that such
rider or embargo exists on the petitioner. In this view of
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the matter the plea so taken, though verbally on
instructions of the Corporation, is not at all tenable in
Law as well as facts.
8. While dealing with the similar situation in
CWP No.2473 of 2022, titled as Sh. Salig Ram
Chauhan versus Himachal Pradesh Horticulture
Produce Marketing and Processing Corporation Ltd
and another, decided on 04.07.2023, (Annexure P-4),
has mandated the respondents to release the revised pay
arrears, by directing the respondents to release the
revised pay arrears w.e.f. 01.01.2016 to the petitioners
by following the same analogy this Court directs the
Respondent-Corporation to release the arrears of revised
pay and Dearness Allowance to the petitioner within six
months from today as agreed between the parties, failing
with the Respondent-Corporation shall pay interest at the
rate of 9% per annum from the due date till actual
payment.
9. So far as the claim for Revised Leave
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Encashment and Gratuity is concerned, this Court has
relies upon a judgment passed in CWP No.9377 of 2023,
titled as Rakesh Agnihotri versus HPTDC and others,
decided on 15.12.2023, has mandate the Respondent-
Corporation to release the admissible Revised Leave
Encashment and Enhanced Revised Gratuity along with
interest as under:-
“6. Learned counsel for the petitioner further
submits that the non release/withholding of
Revised Enhanced Gratuity, has resulted in
depriving the petitioner of the statutory
interest from the due date till realization under
Rule 65 of the CCS (Pension) Rules @ 7.1% per
annum also.
7. In the above background, learned counsel for
the petitioner submitted 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 24.2.2022 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
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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 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. Learned counsel for the petitioner
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alternatively submits that consequent upon
the amendment to the Payment of Gratuity
Act (vide Amendment Act No. 12 of 2018)
notified on 11.4.2018, the maximum
amount of Gratuity of Rs.10,00,000/-
(Rupees Ten Lakhs) was enhanced to
Rs.20,00,000/- (Rupees Twenty Lakhs);
and the petitioner, who retired from service
of the Respondent-Corporation on
31.08.2021 is entitled for Enhanced
Gratuity but the action of the Respondents
in not releasing the admissible amount of
Rs.17,82,415/- or such like amount and
admissible interest under Section 7(3A) of
the Payment of Gratuity Act, to the
petitioner till day is illegal.
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 H.P.T.D.C, decided
on 30.12.2022 alongwith 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
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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 above can be given
to the petitioner along with other
similarly situated retirees only in case
the same will be approved by the
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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
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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,
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. While dealing with the issue regarding the
claim for Revised Leave Encashment based on the
revision of pay revised pay as per Office Memorandum
dated 03.01.2022 w.e.f. 01.01.2016 [in case of State
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Government Employees], the Division bench of this Court
in CWP No.7359 of 2021, titled as Amita Gupta Versus
State of H.P. & ors., decided on 01.12.2022, has held
that the revised pay admissible on retirement shall be
treated as the ‘last pay drawn’ for the purpose of
calculating the leave encashment of an employee. On this
analogy, once the Respondent-Corporation has issued a
communication on 26.09.2022 [Annexure P-1] adopting
the Office Memorandum dated 03.01.2022 issued by the
State Government then, the Respondent-Corporation is
bound to release the Revised Leave Encashment to the
petitioner, in case not already released.
11. Now, the issue remains as to at what rate of
interest is to be granted to the petitioner-employee in
case the retiral benefits are withheld or delayed by an
employer.
12. In this context, so far as, the interest on
Revised Pension is concerned, Enhanced/Revised Gratuity
is concerned admissible under the Payment of Gratuity
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Act [as amended in 2018] enhancing the maximum
admissible amount of Gratuity from 10 Lakh to 20 Lakh,
the Respondent-Corporation shall release the Statutory
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 on admissible amount of gratuity 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).
13. In the background of the discussions made in
Paras 3 to 12 (supra), the learned counsel for the
petitioner submits that the petitioner would be satisfied,
in case, a direction is issued to the
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respondents/competent authority to consider/examine
the case of the petitioner for (i) releasing the arrears of
revised pay along with Dearness Allowance w.e.f.
01.01.2016 to 31.03.2022 and Interest thereon and
(ii) the admissible amount of Revised Enhanced Gratuity
and Revised Leave Encashment), [if not already released]
along with interest in the light of the aforesaid
judgments, within a time bound schedule.
14. The prayer being innocuous, is not opposed by
Ms. Shilpa Sood, learned counsel for the Respondent-
Corporation, on facts as well as in law.
15. 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 (i) admissible Arrear of Revised Pay and
Dearness Allowance and (ii) the Revised-Enhanced
Gratuity and Revised Leave Encashment, if not already
released, in the light of the judgments in case of Anil
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Kumar Goel, Mudit Kumar and Amita Gupta (supra), in
accordance with law, within four months from today.
16. Upon consideration, in case the Respondent-
Corporation decides to release the aforesaid legal
entitlements Revised Pay, Revised Gratuity and Revised
Leave Encashment, which became due and payable on
retirement; but was either withheld or delayed, therefore,
in these circumstances, the Respondent-Corporation is
directed to release the Statutory 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 on admissible
amount of gratuity under Section 7(3A) of Payment of
Gratuity Act i.e. 6.75% per annum]. Further, the
respondents are also directed to release similar rate of
interest @ 6% per annum or Revised Leave Encashment,
from due date (i.e. expiry of those months from the date
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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)