Pan Singh And Another vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The application in CLMA No.9807 of 2019, seeking condonation of delay of 18 days in preferring the Special Appeal, is not opposed by Mrs. Seema Sah, learned counsel for the respondents, and the delay is, therefore, condoned.

Heard Mr. Amar Murti, learned counsel for the appellant, Mr. B.S. Parihar, learned Standing Counsel for the State of Uttarakhand and Mrs. Seema Sah, learned counsel for respondent Nos.2 to 5 and, with their consent, the Special Appeal is disposed of at the stage of admission.

This appeal is preferred against the order passed by learned Single Judge in WPSS No.1218 of 2019 dated 29.05.2019.

Facts, to the limited extent necessary, are that the petitioners retired from service as Logging Assistant/Assistant Logging Officer in the months of October and December, 2017. As they were not paid gratuity, Leave Encashment and Arrears of VIIth Pay Commission scales of pay, they invoked the writ jurisdiction of this Court. On the basis of instructions received from the Corporation by Mrs. Seema Sah, learned Standing Counsel, the writ petition was disposed of recording the submission of the Corporation that the amount of E.P.F. and Group Insurance has already been paid to the petitioners; as regards payment of Gratuity and leave encashment, after audit objections were removed, the amount payable as Gratuity and leave encashment would be paid to them within two months; and arrears of the VIIth Pay Commission pay scales, if any, would also be paid to the petitioners within three months, after adjusting the excess amount, if any, paid to the petitioners under other heads.

The learned Single Judge further observed that the petitioners would be entitled to interest on delayed payment of Gratuity in terms of Section 7 (3-A) of the Payment of Gratuity Act, 1972 as per the prevailing interest rates.

We were surprised that the petitioners, in the writ petition, had preferred an appeal as the order under appeal, appeared to us, to have granted all the reliefs which they had sought for in the writ petition.

Mr. Amar Murti Shukla, learned counsel for the appellants-writ petitioners, would, however, contend that, taking advantage of the observations in the order under appeal that the amount would be paid after adjusting the excess amount, if any, paid to the petitioners under other heads, the respondents had unilaterally reduced their grade pay, and had sought to adjust them against the retiral benefits, without even putting the appellants on notice, and without even giving them an opportunity of being heard.

Mrs. Seema Sah, learned Standing Counsel for the Corporation, would contend that, since this action of the respondents was not under challenge in the writ petition, it cannot be the subject matter of the present appeal.

Since the action of the respondents, in reducing the petitioner's grade pay on 01.06.2019, was subsequent to the disposal of the writ petition by order dated 29.05.2019, the subsequent action, taken against the petitioners by the respondents, would not justify an appeal being preferred, against the order passed in the writ petition, on the premise that some observations in the order gave rise to the order dated 01.06.2019 being passed. The remedy available to the appellants is not to prefer an appeal against the order passed in the writ petition dated 29.05.2019, but to avail their judicial remedies, against the subsequent order dated 01.06.2019, in independent legal proceedings.

Suffice it to make it clear that neither the order under appeal, nor the order now passed by us, shall disable the appellants from questioning the order dated 01.06.2019, or any proceeding subsequent thereto, in independent legal proceedings.

Subject to the aforesaid observations, the Special Appeal fails and is, accordingly, dismissed. No costs.