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TARA PRASAD versus THE MANAGING DIRECTOR, U.P.S.R.T.C. AND OTHERS

High Court of Judicature at Allahabad

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Tara Prasad v. The Managing Director, U.P.S.R.T.C. And Others - WRIT - A No. 32652 of 2003 [2004] RD-AH 77 (17 February 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                 Court No. 7

                    Civil Misc. Writ Petition no. 32652 of 2003

Tara Prasad                      Vs.    The Managing Director, UPSRTC, Lucknow

                                                  and others.

                                       Connected with

              Civil Misc. Writ Petition No. 36649 of 2003

Ram Pratap Singh             Vs.   The Managing Director, UPSRTC, Lucknow

                                                  and others.

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

In view of the admitted position in the counter affidavit, the counsel for the petitioner does not want to file rejoinder affidavit.

The counsel for the petitioner has drawn the attention of this Court towards paragraph 20 of the counter affidavit in which the Corporation-respondents has not denied that the retiral benefits of the petitioner have not been paid to him. Paragraph 20 of the counter affidavit is as under:-

         " That thus the Corporation would be paying the post retirement dues to the petitioner as early as possible in accordance with the policy decision as mentioned in the preceding paragraphs. In this regard the deponent is filing copies of policy decisions taken on 23.9.2002, 5.12.2002, 31.5.2003 and 11.8.2003 by the Corporation for early payment of the dues to the retired persons are being filed herewith and marked as Annexures-CA 4, CA 5, CA 6 & CA 7 to this affidavit."

The counsel for the respondents states that though no interim order has been granted in this writ petition in Civil Misc. Writ Petition No. 5167 of 2001 an interim order was granted by this Court on 30.1.2002 in which it is noted that the UPSRTC is in bad financial position and that a proposal has already been submitted to the State Government for release of necessary funds and it is expected that necessary fund will be provided by the State Government. After noting the above fact, the Court directed payment of retiral benefits to the petitioner.The question of payment of interest was kept in abeyance for consideration till the next date of listing. The interim order in writ petition no. 5167 of 2001 dated 30.1.2002 is as under:-

            " Heard Sri V.K. Burman, learned senior counsel for the petitioner and Sri Sameer Sharma and other learned counsel representing the UPSRTC.

                It is not disputed that the retiral benefits are due to the petitioners.

                Shri Sameer Sharma, learned counsel for the UPSRTC submits that the Corporation is in bad financial position and that a scheme  has already been submitted to the State Government for release of necessary fund and it is expected that necessary fund will be provided by the State Government.

                  List this petition on 16.4.2002.

                  In the meanwhile, retiral benefits may be paid to the petitioner. The question of payment of interest will be considered on the next date of listing.

                                                                 Sd/- Janardan Sahai,J.

                                                                            30.1.2002."

The counsel for the petitioner submits that the retiral benefits  is the only  source of livelihood of the employee who has put in long years of service and it can  not be denied to him. He states that right to livelihood is a fundamental right of the emplopyee as envisaged under Artricle 21 of the Constitution of India. The petitioner was retired from service on 30.6.2000. The interim order in writ petition No. 5167 of 2001 quoted above was passed on 30.1.2002 whereby it was expected that the State Government would give necessary funds. The petitioner has served the Corporation for a long time and after retirement he is entitled to his retrial due as a matter of right.

 Since alleged policy decisions were annexed with the counter affidavit as Annexures- CA-4, CA-5, CA-6 and CA-7 now denying immediate payment of retrial dues, there was no question of praying for quashing of the policy decisions in the writ petition. The counsel for the petitioner  draws attention to the fact that almost in all the cases the UPSRTC has not paid the retiral benefits to its employee  when they  retired from service and the employees who  approach this Court for a direction then they were paid their dues by the Corporation after a direction is issued by the Court. The Court has held  that such  policy decision appended as Annexures CA 5, 6 and 7 are arbitrary and are against the fundamental right of livelihood of the employee  guaranteed under Article 21 of the Constitution of India.  

Article 226 or 227 was devised to advance justice and not to thwart it, as has been held by the apex Court in State of U.P. Vs. District Judge, Unnao, 1984 SC- 1401. Right to life includes right to subsist or livelihood. Deprivation of right to live can be interfered under Article 226 being in violation of Article 21 of the Constitution. The respondents can not be permitted to deprive the petitioners of their pensionary benefits in the garb of a ''policy decision' of the government which is in fact an administrative decision of the officers of the Corporation, as such denial of retiral dues would amount to denial of right to live  to the petitioners and includes right to live with dignity. The said policy decision is only a working scheme for payment of pension, gratuity and other retiral dues which  has been taken in the meeting under the Chairmanship of the Managing Director. Annexure-CA 6 is the letter dated 31st May, 2003 in respect of extension of the scheme for payment of  retiral dues of the employees issued by the Head Office of the Corporation at Lucknow.From perusal of the aforeasid  it is also evident that the employees/officers who had retired or those who had been appointed during the period 1.6.72 to 26.7.82 on pensionable post no policy decision has been taken by the State Government. Annexure-CA 7 is also a  decision taken in the meeting dated  11.8.2003 of the Officers of the Corporation. The guide-lines/Circulars have no statutory force and they are not law as held by the apex court in para 19 in State of Kerala Vs Chandra Mohan, (2004) 3 S.C.C. 429. To the same effect are Punit Rai Vs Dinesh Chaudhary, (2003) 8 S.C.C. 204 and Union of India Vs Naveen Jindal, (2004) 2 S.C.C. 510.

The Court has wide powers under Article 226 of the Constitution and  may  even grant prayer not specifically prayed for. Though the prayer to quash the said policy decision taken by the Corporation is not specifically prayed for but it is covered by prayer no.3  i.e. in the alternative to issue any other such order or  direction which the Court may deem fit and proper in the facts and circumstances of the case. Even otherwise, the Court has power to mould relief under Article 226 of the Constitution of India,which is equitable jurisdiction. Even where there is policy decision by the Government, in appropriate cases, the Court can not deny relief for want of such prayer particularly, where there is infringement of Article 21 of the Constitution. I am supported in my view by a recent judgment of the apex Court in Sri Justice S.K. Ray Vs. State of Orrisa and others, 2003 AIR SCW-402= AIR 2003 SC-924. In the aforesaid case, the Lokpal whose tenure was got curtailed claimed compensation only for loss of present tenure.  Relief of compensation for loss of future employment was not claimed by him.  He was found entitled only to compensation on account of loss of future employment. The apex Court in the circumstances, has held that he can not be denied relief for want of such prayer and the Court under Article 226 of the Constitution has power to mould relief. The retiral dues are alms of an employee and he earns the retiral dues for his long faithful service. Justice Delayed is Justice Denied. More than 5 years have passed since the petitioner has retired from service and is still waiting to receive retiral benefits. The Policy decision regarding payment of retiral benefits  to the effect that as and when the funds will be available the retiral benefits of the employee will be paid, is wholly arbitrary and against the principle of natural justice.    

The case is also covered by judgment dated 29.11.2002 in W.P. No. 3731 of 2001 connected with a large number of similar petitions. While allowing the petition the Court held :-

             " On the aforesaid facts and circumstances, the writ petitions are allowed. Uttar Pradesh State Road Transport Corporation and Regional Provident Fund Commissioner, as well as the Life Insurance Corporation are directed to pay to the peitioners the entire arrears of gratuity, employees provident fund, leave encashment, group insurance within a period of three months from today. The employees shall also be entitled to interest at the rate of 10% per annum on the delayed payment which shall be paid within next three months. So far as the arrears of account of pay scale fixed on the recommendation of Vth Pay Commission are concerned, the corporation may take up the matter for its  sanction with the State Government within a month and that the State Government shall endeavour  to decide the matter having regard to the facts and circumstances of the case and hardships faced by the retired employees within three months. As and when these arrears are sanctioned these shall be paid to petitioners without any delay. There shall be no order as to costs.

                                                                          Sd. Hon.Sunil Ambwani,J.

                                                                                       29.11.2002."

For the reasons stated above, the writ petitions are allowed and the policy decision is quashed. A direction is issued to respondent no.1 to pay retiral benefits to the petitioner within two months along with 18% compound interest  from the date of his retirement. Exemplary cost of Rs.5, 000/- is imposed on the Corporation.

Dated 17.2.2004

CPP/-

                                                                 Court No. 7

                    Civil Misc. Writ Petition no. 32652 of 2003

Tara Prasad                      Vs.    The Managing Director, UPSRTC, Lucknow

                                                  and others.

                                       Connected with

              Civil Misc. Writ Petition No. 36649 of 2003

Ram Pratap Singh             Vs.   The Managing Director, UPSRTC, Lucknow

                                                  and others.

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

In view of the admitted position in the counter affidavit, the counsel for the petitioner does not want to file rejoinder affidavit.

The counsel for the petitioner has drawn the attention of this Court towards paragraph 20 of the counter affidavit in which the Corporation-respondents has not denied that the retiral benefits of the petitioner have not been paid to him. Paragraph 20 of the counter affidavit is as under:-

         " That thus the Corporation would be paying the post retirement dues to the petitioner as early as possible in accordance with the policy decision as mentioned in the preceding paragraphs. In this regard the deponent is filing copies of policy decisions taken on 23.9.2002, 5.12.2002, 31.5.2003 and 11.8.2003 by the Corporation for early payment of the dues to the retired persons are being filed herewith and marked as Annexures-CA 4, CA 5, CA 6 & CA 7 to this affidavit."

The counsel for the respondents states that though no interim order has been granted in this writ petition in Civil Misc. Writ Petition No. 5167 of 2001 an interim order was granted by this Court on 30.1.2002 in which it is noted that the UPSRTC is in bad financial position and that a proposal has already been submitted to the State Government for release of necessary funds and it is expected that necessary fund will be provided by the State Government. After noting the above fact, the Court directed payment of retiral benefits to the petitioner.The question of payment of interest was kept in abeyance for consideration till the next date of listing. The interim order in writ petition no. 5167 of 2001 dated 30.1.2002 is as under:-

            " Heard Sri V.K. Burman, learned senior counsel for the petitioner and Sri Sameer Sharma and other learned counsel representing the UPSRTC.

                It is not disputed that the retiral benefits are due to the petitioners.

                Shri Sameer Sharma, learned counsel for the UPSRTC submits that the Corporation is in bad financial position and that a scheme  has already been submitted to the State Government for release of necessary fund and it is expected that necessary fund will be provided by the State Government.

                  List this petition on 16.4.2002.

                  In the meanwhile, retiral benefits may be paid to the petitioner. The question of payment of interest will be considered on the next date of listing.

                                                                 Sd/- Janardan Sahai,J.

                                                                            30.1.2002."

The counsel for the petitioner submits that the retiral benefits  is the only  source of livelihood of the employee who has put in long years of service and it can  not be denied to him. He states that right to livelihood is a fundamental right of the emplopyee as envisaged under Artricle 21 of the Constitution of India. The petitioner was retired from service on 30.6.2000. The interim order in writ petition No. 5167 of 2001 quoted above was passed on 30.1.2002 whereby it was expected that the State Government would give necessary funds. The petitioner has served the Corporation for a long time and after retirement he is entitled to his retrial due as a matter of right.

 Since alleged policy decisions were annexed with the counter affidavit as Annexures- CA-4, CA-5, CA-6 and CA-7 now denying immediate payment of retrial dues, there was no question of praying for quashing of the policy decisions in the writ petition. The counsel for the petitioner  draws attention to the fact that almost in all the cases the UPSRTC has not paid the retiral benefits to its employee  when they  retired from service and the employees who  approach this Court for a direction then they were paid their dues by the Corporation after a direction is issued by the Court. The Court has held  that such  policy decision appended as Annexures CA 5, 6 and 7 are arbitrary and are against the fundamental right of livelihood of the employee  guaranteed under Article 21 of the Constitution of India.  

Article 226 or 227 was devised to advance justice and not to thwart it, as has been held by the apex Court in State of U.P. Vs. District Judge, Unnao, 1984 SC- 1401. Right to life includes right to subsist or livelihood. Deprivation of right to live can be interfered under Article 226 being in violation of Article 21 of the Constitution. The respondents can not be permitted to deprive the petitioners of their pensionary benefits in the garb of a ''policy decision' of the government which is in fact an administrative decision of the officers of the Corporation, as such denial of retiral dues would amount to denial of right to live  to the petitioners and includes right to live with dignity. The said policy decision is only a working scheme for payment of pension, gratuity and other retiral dues which  has been taken in the meeting under the Chairmanship of the Managing Director. Annexure-CA 6 is the letter dated 31st May, 2003 in respect of extension of the scheme for payment of  retiral dues of the employees issued by the Head Office of the Corporation at Lucknow.From perusal of the aforeasid  it is also evident that the employees/officers who had retired or those who had been appointed during the period 1.6.72 to 26.7.82 on pensionable post no policy decision has been taken by the State Government. Annexure-CA 7 is also a  decision taken in the meeting dated  11.8.2003 of the Officers of the Corporation. The guide-lines/Circulars have no statutory force and they are not law as held by the apex court in para 19 in State of Kerala Vs Chandra Mohan, (2004) 3 S.C.C. 429. To the same effect are Punit Rai Vs Dinesh Chaudhary, (2003) 8 S.C.C. 204 and Union of India Vs Naveen Jindal, (2004) 2 S.C.C. 510.

The Court has wide powers under Article 226 of the Constitution and  may  even grant prayer not specifically prayed for. Though the prayer to quash the said policy decision taken by the Corporation is not specifically prayed for but it is covered by prayer no.3  i.e. in the alternative to issue any other such order or  direction which the Court may deem fit and proper in the facts and circumstances of the case. Even otherwise, the Court has power to mould relief under Article 226 of the Constitution of India,which is equitable jurisdiction. Even where there is policy decision by the Government, in appropriate cases, the Court can not deny relief for want of such prayer particularly, where there is infringement of Article 21 of the Constitution. I am supported in my view by a recent judgment of the apex Court in Sri Justice S.K. Ray Vs. State of Orrisa and others, 2003 AIR SCW-402= AIR 2003 SC-924. In the aforesaid case, the Lokpal whose tenure was got curtailed claimed compensation only for loss of present tenure.  Relief of compensation for loss of future employment was not claimed by him.  He was found entitled only to compensation on account of loss of future employment. The apex Court in the circumstances, has held that he can not be denied relief for want of such prayer and the Court under Article 226 of the Constitution has power to mould relief. The retiral dues are alms of an employee and he earns the retiral dues for his long faithful service. Justice Delayed is Justice Denied. More than 5 years have passed since the petitioner has retired from service and is still waiting to receive retiral benefits. The Policy decision regarding payment of retiral benefits  to the effect that as and when the funds will be available the retiral benefits of the employee will be paid, is wholly arbitrary and against the principle of natural justice.    

The case is also covered by judgment dated 29.11.2002 in W.P. No. 3731 of 2001 connected with a large number of similar petitions. While allowing the petition the Court held :-

             " On the aforesaid facts and circumstances, the writ petitions are allowed. Uttar Pradesh State Road Transport Corporation and Regional Provident Fund Commissioner, as well as the Life Insurance Corporation are directed to pay to the peitioners the entire arrears of gratuity, employees provident fund, leave encashment, group insurance within a period of three months from today. The employees shall also be entitled to interest at the rate of 10% per annum on the delayed payment which shall be paid within next three months. So far as the arrears of account of pay scale fixed on the recommendation of Vth Pay Commission are concerned, the corporation may take up the matter for its  sanction with the State Government within a month and that the State Government shall endeavour  to decide the matter having regard to the facts and circumstances of the case and hardships faced by the retired employees within three months. As and when these arrears are sanctioned these shall be paid to petitioners without any delay. There shall be no order as to costs.

                                                                          Sd. Hon.Sunil Ambwani,J.

                                                                                       29.11.2002."

For the reasons stated above, the writ petitions are allowed and the policy decision is quashed. A direction is issued to respondent no.1 to pay retiral benefits to the petitioner within two months along with 18% compound interest  from the date of his retirement. Exemplary cost of Rs.5, 000/- is imposed on the Corporation.

Dated 17.2.2004

CPP/-

                                                                 Court No. 7

                    Civil Misc. Writ Petition no. 32652 of 2003

Tara Prasad                      Vs.    The Managing Director, UPSRTC, Lucknow

                                                  and others.

                                       Connected with

              Civil Misc. Writ Petition No. 36649 of 2003

Ram Pratap Singh             Vs.   The Managing Director, UPSRTC, Lucknow

                                                  and others.

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

In view of the admitted position in the counter affidavit, the counsel for the petitioner does not want to file rejoinder affidavit.

The counsel for the petitioner has drawn the attention of this Court towards paragraph 20 of the counter affidavit in which the Corporation-respondents has not denied that the retiral benefits of the petitioner have not been paid to him. Paragraph 20 of the counter affidavit is as under:-

         " That thus the Corporation would be paying the post retirement dues to the petitioner as early as possible in accordance with the policy decision as mentioned in the preceding paragraphs. In this regard the deponent is filing copies of policy decisions taken on 23.9.2002, 5.12.2002, 31.5.2003 and 11.8.2003 by the Corporation for early payment of the dues to the retired persons are being filed herewith and marked as Annexures-CA 4, CA 5, CA 6 & CA 7 to this affidavit."

The counsel for the respondents states that though no interim order has been granted in this writ petition in Civil Misc. Writ Petition No. 5167 of 2001 an interim order was granted by this Court on 30.1.2002 in which it is noted that the UPSRTC is in bad financial position and that a proposal has already been submitted to the State Government for release of necessary funds and it is expected that necessary fund will be provided by the State Government. After noting the above fact, the Court directed payment of retiral benefits to the petitioner.The question of payment of interest was kept in abeyance for consideration till the next date of listing. The interim order in writ petition no. 5167 of 2001 dated 30.1.2002 is as under:-

            " Heard Sri V.K. Burman, learned senior counsel for the petitioner and Sri Sameer Sharma and other learned counsel representing the UPSRTC.

                It is not disputed that the retiral benefits are due to the petitioners.

                Shri Sameer Sharma, learned counsel for the UPSRTC submits that the Corporation is in bad financial position and that a scheme  has already been submitted to the State Government for release of necessary fund and it is expected that necessary fund will be provided by the State Government.

                  List this petition on 16.4.2002.

                  In the meanwhile, retiral benefits may be paid to the petitioner. The question of payment of interest will be considered on the next date of listing.

                                                                 Sd/- Janardan Sahai,J.

                                                                            30.1.2002."

The counsel for the petitioner submits that the retiral benefits  is the only  source of livelihood of the employee who has put in long years of service and it can  not be denied to him. He states that right to livelihood is a fundamental right of the emplopyee as envisaged under Artricle 21 of the Constitution of India. The petitioner was retired from service on 30.6.2000. The interim order in writ petition No. 5167 of 2001 quoted above was passed on 30.1.2002 whereby it was expected that the State Government would give necessary funds. The petitioner has served the Corporation for a long time and after retirement he is entitled to his retrial due as a matter of right.

 Since alleged policy decisions were annexed with the counter affidavit as Annexures- CA-4, CA-5, CA-6 and CA-7 now denying immediate payment of retrial dues, there was no question of praying for quashing of the policy decisions in the writ petition. The counsel for the petitioner  draws attention to the fact that almost in all the cases the UPSRTC has not paid the retiral benefits to its employee  when they  retired from service and the employees who  approach this Court for a direction then they were paid their dues by the Corporation after a direction is issued by the Court. The Court has held  that such  policy decision appended as Annexures CA 5, 6 and 7 are arbitrary and are against the fundamental right of livelihood of the employee  guaranteed under Article 21 of the Constitution of India.  

Article 226 or 227 was devised to advance justice and not to thwart it, as has been held by the apex Court in State of U.P. Vs. District Judge, Unnao, 1984 SC- 1401. Right to life includes right to subsist or livelihood. Deprivation of right to live can be interfered under Article 226 being in violation of Article 21 of the Constitution. The respondents can not be permitted to deprive the petitioners of their pensionary benefits in the garb of a ''policy decision' of the government which is in fact an administrative decision of the officers of the Corporation, as such denial of retiral dues would amount to denial of right to live  to the petitioners and includes right to live with dignity. The said policy decision is only a working scheme for payment of pension, gratuity and other retiral dues which  has been taken in the meeting under the Chairmanship of the Managing Director. Annexure-CA 6 is the letter dated 31st May, 2003 in respect of extension of the scheme for payment of  retiral dues of the employees issued by the Head Office of the Corporation at Lucknow.From perusal of the aforeasid  it is also evident that the employees/officers who had retired or those who had been appointed during the period 1.6.72 to 26.7.82 on pensionable post no policy decision has been taken by the State Government. Annexure-CA 7 is also a  decision taken in the meeting dated  11.8.2003 of the Officers of the Corporation. The guide-lines/Circulars have no statutory force and they are not law as held by the apex court in para 19 in State of Kerala Vs Chandra Mohan, (2004) 3 S.C.C. 429. To the same effect are Punit Rai Vs Dinesh Chaudhary, (2003) 8 S.C.C. 204 and Union of India Vs Naveen Jindal, (2004) 2 S.C.C. 510.

The Court has wide powers under Article 226 of the Constitution and  may  even grant prayer not specifically prayed for. Though the prayer to quash the said policy decision taken by the Corporation is not specifically prayed for but it is covered by prayer no.3  i.e. in the alternative to issue any other such order or  direction which the Court may deem fit and proper in the facts and circumstances of the case. Even otherwise, the Court has power to mould relief under Article 226 of the Constitution of India,which is equitable jurisdiction. Even where there is policy decision by the Government, in appropriate cases, the Court can not deny relief for want of such prayer particularly, where there is infringement of Article 21 of the Constitution. I am supported in my view by a recent judgment of the apex Court in Sri Justice S.K. Ray Vs. State of Orrisa and others, 2003 AIR SCW-402= AIR 2003 SC-924. In the aforesaid case, the Lokpal whose tenure was got curtailed claimed compensation only for loss of present tenure.  Relief of compensation for loss of future employment was not claimed by him.  He was found entitled only to compensation on account of loss of future employment. The apex Court in the circumstances, has held that he can not be denied relief for want of such prayer and the Court under Article 226 of the Constitution has power to mould relief. The retiral dues are alms of an employee and he earns the retiral dues for his long faithful service. Justice Delayed is Justice Denied. More than 5 years have passed since the petitioner has retired from service and is still waiting to receive retiral benefits. The Policy decision regarding payment of retiral benefits  to the effect that as and when the funds will be available the retiral benefits of the employee will be paid, is wholly arbitrary and against the principle of natural justice.    

The case is also covered by judgment dated 29.11.2002 in W.P. No. 3731 of 2001 connected with a large number of similar petitions. While allowing the petition the Court held :-

             " On the aforesaid facts and circumstances, the writ petitions are allowed. Uttar Pradesh State Road Transport Corporation and Regional Provident Fund Commissioner, as well as the Life Insurance Corporation are directed to pay to the peitioners the entire arrears of gratuity, employees provident fund, leave encashment, group insurance within a period of three months from today. The employees shall also be entitled to interest at the rate of 10% per annum on the delayed payment which shall be paid within next three months. So far as the arrears of account of pay scale fixed on the recommendation of Vth Pay Commission are concerned, the corporation may take up the matter for its  sanction with the State Government within a month and that the State Government shall endeavour  to decide the matter having regard to the facts and circumstances of the case and hardships faced by the retired employees within three months. As and when these arrears are sanctioned these shall be paid to petitioners without any delay. There shall be no order as to costs.

                                                                          Sd. Hon.Sunil Ambwani,J.

                                                                                       29.11.2002."

For the reasons stated above, the writ petitions are allowed and the policy decision is quashed. A direction is issued to respondent no.1 to pay retiral benefits to the petitioner within two months along with 18% compound interest  from the date of his retirement. Exemplary cost of Rs.5, 000/- is imposed on the Corporation.

Dated 17.2.2004

CPP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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