Lakhanlal Borasi And Ors vs State Of Madhya Pradesh & Ors

Prakash Shrivastava, J

Heard.

These appeals have been filed u/S.2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypith Ko Appeal) Adhiniyam, 2005,against the order of the learned Single Judge dated 17/9/2018 passed in WP No.7378/2018 whereby the writ petition has been allowed and the order of the State government dated 8/6/2017 and consequential recovery has been quashed and the State authorities have been directed to refund back the gratuity amount which was deducted and issue the revised PPO giving the benefit of Second Kramonnati and pay the consequential arrears and also extend the benefits of the leave encashment if not already granted. WA No.446/2019 is at the instance of the State assailing the order of the learned Single Judge on the ground that the petitioner is not entitled to the benefits whereas WA No.1869/2018 is at the instance of the writ petitioner claiming the interest on the delayed payment of retiral dues with the plea that the writ court has ignored that aspect.

The brief facts are that the petitioner who was working as contingency employee was granted the benefit of first Kramonnati with effect from 2/9/2001 and thereafter time scale of pay and then second kramonnati with effect from 2/9/2013 on completion of 24 years of service. The petitioner stood retired on 31/3/2017 on reaching the age of superannuation, but while issuing the PPO certain objections were raised on the issue of improper grant of kramonnati and excess payment on account of improper pay revision, therefore, by the order dated 8/6/2017 the benefit of the Kramonnati granted to the petitioner was cancelled and the recovery was directed and consequentially a sum of Rs.1,83,310/- was deducted from the gratuity amount payable to the petitioner. Aggrieved with the same he had filed the writ petition claiming the other reliefs also which has been allowed by the learned Single Judge by the order under appeal.

Learned counsel for State submits that the learned Single Judge has committed an error in quashing the order of recovery without appreciating that the employee concerned being a contingency paid employee was not entitled to the kramonnati.

As against this, learned counsel for employee has submitted that the issue in respect of extending benefit of kramonnati has already been concluded by the earlier judgment, therefore, the order of the learned Single Judge in this regard does not suffer from any error and that the State authorities inspite of the settled legal position had deducted the amount, therefore, the employee is entitled to the interest on the delayed payment of the retiral dues.

We have heard the learned counsel for parties and perused the record.

It is not in dispute that the writ petitioner employee was a contingency paid employee and was granted benefit of first and second kramonnati on completion of 12 and 24 years of service. The only objection of the State authorities is that writ petitioner was not entitled to the benefit of Kramonnati being a contingency paid employee, but this controversy has been concluded by the judgment in the matter of Teju Lal Yadav Vs. State of MP ILR (MP) 2009 page 1326 as also by the judgment dated 7/11/2005 passed in WP No.1070/2003 in the case of K.L.Asre Vs. State of MP wherein the employee working in the work charge contingency paid establishment receiving regular pay scale have been held to be entitled for grant of second kramonnati. In the case of Tejulal (supra), this court has held as under:-

"10. As far as work charged and contingency paid employees are concerned, their service conditions are governed by the same rules namely the Work Charged and Contingency Paid Employees Recruitment Rules, applicable to various departments and the work Charged and Contingency Paid Employees Pension Rules 1979 and the Work Charged and Contingency Paid Employees Revision of Pay Rules, 1990. For the purpose of recruitment, appointment, pay revision and grant of pensionary benefits, the work charged and contingency paid employees constitute a common class and their terms and conditions of employment are governed by identical set of rules. It is, therefore, clear that for the purpose of recruitment, appointment, grant of pension and revision of pay scales, work charged and contingency paid employees are treated similarly and a separate set of rules, different from the one applicable in the regular establishment, govern their terms and conditions of employment. The work charged and contingency paid employees constitute a common class and therefore, this class of employees are entitled to similar treatment in all respects, deviation being permissible on justifiable grounds and reasons. In the present case, the benefit of time bound promotion under the scheme- Annexure P/3 and P/4 is extended to vehicle drivers working in the work charged and contingency paid establishment, as per the policy itself.

The principles laid down in the case of Shri K.L. Asre (supra) has been made applicable to time keepers, working work charged and contingency paid establishment. If time keepers and drivers in the work charged and contingency paid establishment are entitled to promotion under the time bound scheme, there is no reason as to why the said benefit be not extended to other employees constituting the same class in the work charged and contingency paid establishment. The policy is made applicable to drivers of this establishment and the reason for not making the said policy applicable to other categories of the work charged and contingency paid establishment is not indicated in the return. No reason is given as to why a different policy is being adopted in the case of other employees in the work charged and contingency paid establishment and the benefit granted to drivers in the said establishment is not extended to other employees like the petitioner. Respondents being a "State" has to give similar benefit to employees similarly situated and forming a common class. They may be justified in granting some additional benefit to some of the employees in comparison to others, but the justification and reasons for such a classification has to meet the test of Article 14 of the Constitution and the decision has to be reasonable, fair and justified by cogent reasons and relevant considerations. Except for contending that the policy is not applicable to employees working in the work charged and contingency paid establishment, no justification is forthcoming from the respondents with regard to further classification amongst the employees working in the work charged and contingency paid establishment with regard to implementation of the Policy - Annexure P-3 and P-

When the employees working in the work charged and contingency paid establishment constitute a common class, all benefits which are extended to one set of employees namely drivers as per the policy and the time keepers in the light of the judgment in the case of K.L. Asre (supra) has to be granted by the respondents to the present petitioners also. In the absence of proper justification for adopting a different policy and cogent reason given justifying the reasonableness in the classification and differentiation done fulfilling the requirement of Article 14 of the Constitution, discrimination cannot be permitted. Parity in employment is required to be maintained and therefore, keeping in view the circumstances and the action of the respondents in adopting a pick and choose method violative of Article 14 of the Constitution in the case of employees who form a homogeneous class, the action discriminatory in nature cannot be upheld by this Court.

Keeping in view the aforesaid, the respondents are directed to extend the benefit of promotion in accordance with the aforesaid scheme to the petitioner and after evaluating his case in accordance with the requirements of the said scheme, grant benefit to the petitioner. In case the petitioner is found entitled then necessary orders in this regard be passed within a period of three months."

Having regard to the aforesaid, the learned Single Judge has not committed any error in allowing the writ petition and quashing the order of recovery dated 8/6/2017.

So far as the issue of grant of interest on account of delayed payment is concerned, it is noticed that inspite of the aforesaid legal position the State authorities had recovered the amount from the retiral dues payable to the petitioner. Though the writ petitioner employee stood retired on 31/3/2017, but on account of the impugned action the payment of the retiral dues was delayed.

Hon'ble The Supreme Court in the matter of S.K.Dua Vs. State of Haryana & Another AIR 2008 SC 1077 in this regard has held that a retired employee on account of the delay in payment of retiral dues is entitled to the interest not only under the applicable rules, regulations etc. but even in the absence thereof, he can claim interest under Part III of Constitution relying upon Art.14,19 and 21 as the retiral benefits are not in the nature of bounty.

The division bench of this court also in the matter of State of M.P. and others Vs. Ramji Das Agarwal 2013(1) MPLJ 53 has held that a retired employee is entitled to the interest on the unpaid post retiral dues.

In the matter of Aditya Mishra Vs. State of M.P & Ors. 2014(2) MPLJ 59 also this court in a case where retiral dues was withheld without any justifiable reason has held the employee to be entitled to the interest for the delay in making the payment of retiral dues.

Having regard to the aforesaid, we are of the opinion that the writ petitioner employee is entitled to the interest for the delay in payment of the retiral dues. Hence WA No.446/2019 filed by the State is dismissed and WA No.1869/2018 filed by the writ petitioner employee is allowed by directing the respondents to pay to the appellant interest @ 6% from the date the amount had become due and payable till the date payment is made. Let this exercise be completed within 90 days from today.

The signed order be placed in the record of WA No.1869/2018 and copy whereof be placed in the record of connected WA No.446/2019.

c.c as per rules.