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Judgment
The Honourable Mr. Justice Vinod K. Sharma, J.—The Petitioner has approached this Court, with a prayer for issuance of a writ, in the nature of declaration, to quash the order passed by the Respondent, in ordering, recovery of Rs. 49,450.50/- [Rupees Forty nine thousand four hundred and fifty and Fifty paise only] from the terminal benefits of the Petitioner, and also for direction to pay the gratuity of two years, service.
The Petitioner joined service as ''Conductor'' with the Tamil Nadu State Transport Corporation (Kumbokonam) Limited, on 11th December 1980. The Petitioner, in the year 2003, sought voluntary retirement, under the Voluntary Retirement Scheme, which was accepted and the Petitioner retired from service on 10th April 2003.
In-spite of fact that the Petitioner had put in twenty two years, three months and 28 days of service, the gratuity for two years and pensionary benefits, were not released to the Petitioner.
The Petitioner had filed W.P.(MD) No. 6216 of 2008, which was allowed by this Court, on 28th November 2008, by directing the Respondent to grant pensionary benefits to the Petitioner.
The Petitioner, in this case, has challenged the order, vide which, a sum of Rs. 49,450.50/- [Forty nine thousand Four hundred Fifty and fifty paise] is ordered to be deducted, out of the retrial benefits, by claiming it, to be due under ''non-implemented increment cuts''.
The calculation given by the Respondent is, that on account of voluntary retirement of the Petitioner, the Respondent could not enforce the punishment of stoppage of increment for the remaining period of service, which he was to undergo, in case, he would not have gone on voluntary retirement.
The order on the face of it, is perverse, and seems to be out-come of the imagination of a sick mind. The impugned order is not only arbitrary but on the face of it patently perverse. The impugned order therefore is violative of Article 14 of the Constitution of India.
It is unimaginable in a civil society, for any official to draw such conclusion, and order recovery from the retrial benefits only because the person retires before the actual date of retirement that too under the scheme, framed by the Respondent. The cut of increment can only arise if the Petitioner was to be paid salary regularly without being in employment.
There is also no justification with the Respondent, in not granting of gratuity for two years of service. It is not disputed that the Petitioner has rendered service for more than twenty two years, there appears no justification in cutting the gratuity of two years, unless, it is shown that the Petitioner was paid maximum amount under the rule.
The orders of recovery and that of non-release of gratuity, for two years are per se, arbitrary and amounts to malafide exercise of power, which cannot be sustained in law.
Consequently, the writ petition is allowed, the Respondent is directed to release a sum of Rs. 49,450.50/- [Rupees Forty nine thousand Four hundred Fifty and fifty paise only], along with interest @ 9% per annum from due date till realization, wrongly deducted under the heading ''non-implemented increment cuts''. The Respondent is also directed to pay gratuity for two years of service, which has been left out of the calculation.
The payment be released to the Petitioner within two months of the receipt of the certified copy of this order.
The Petitioner shall also be entitled to the costs of this petition, which is assessed at Rs. 10,000/- [Rupees Ten thousand only].
It is not disputed that the impugned order of assessment is appellable and in addition to the violation rests in the assessment order can be agitated u/s 16(d) of the Tamil nadu General Sales Tax Act. Keeping in view of the fact that the writ petition was admitted in the year 2007 and that this Court in W.P. No. 6556 of... decided on 29th July 2008 has interfered with the similar order which would not be observed to release to Petitioner ordinary remedy. there is no dispute of facts. The contention of the Learned Counsel for the Petitioner that the assessment order has been passed without issuance notice is reverted by the Learned Counsel for the state by contending that the inviting objection was in-fact issued to the Petitioner as mentioned in the impugned order. The Learned Counsel for the State therefore prays for short adjournment to place the copy of the notice and the showing the receipt of the notice by the Petitioner.
The Learned Counsel for the Petitioner states that the connected W.P. Nos. 3817 and 3818 of 2009 stands transferred to the Hon''ble Supreme court and is pending adjudication therein. The decision of the Hon''ble Supreme court will decide the fate of this case also. Adjourned with liberty either of the parties to get the cae reference after the decision by the Hon''ble Supreme in.