D. Prasada Rao Vs. A.P. State Co-operative Bank and anr. - Court Judgment

Excerpt:
service - delay in payment - section 4 of payment of gratuity act, 1972 - petition filed for seeking declaration that refusal to pay interest on delay in payment of gratuity payable to petitioner as illegal - delay in payment of gratuity caused as on date of retirement of petitioner disciplinary proceedings initiated against him - petitioner challenged proceedings in court resulting in delay of payment - held, no interest would be payable as delay caused at instance of petitioner. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. orderelipe dharma rao, j.1. the petitioner herein seeks to declare proceedings no. cdr/231-d/3395, dated 25-1-2002 of the 1st respondent refusing to pay the interest on the delayed payment of gratuity amount payable to the petitioner on 31-3-2000 for the period of delay from 1-4-2000 to 8-10-2001 as illegal and without jurisdiction and consequentlydo direct the respondents to consider and pay the compound rate of interest at therate of 18% per annum.2. the case of the petitioner who joined as clerk in the respondents-cooperative bank is that though he retired on attaining age of superannuation as assistant general manager on 31-3-2000, the retirement gratuity payable to him is not paid to him on the ground that a charge memo dated 31-3-2000 was issued. the petitioner challenged the same in w.p.no. 11256 of 2001, which was allowed by this court on 8-10-2001 following the judgment in w.p.no. 26148 of 2001, dated 25-4-2001 declaring that the respondents have no jurisdiction to continue the disciplinary proceedings after the superannuation and retirement. thereafter the respondents paid the terminal benefits on 9-10-2001 pursuant to the proceedings dated 6-10-2001. according to the petitioner the total amount payable to him under leave encashment, provident fund contribution, gratuity etc., was rs. 5,22,094-25 ps. the petitioner complains that though the said amount was due to be paid to him on the date of his retirement i.e., 31-3-2000, it was paid only after a long delay of one and half years i.e., on 9-10-2001. the petitioner made a representation to the respondents claiming for payment of interest on the delayed payment of the amount and the same was refused by the proceedings dated 25-1-2002, which is impugned in this writ petition.3. the learned counsel for the petitioner contends that the petitioner having rendered service in the respondent-bank and after attaining superannuation was retired on 31-3-2000, that it is expectedthat all the retiral benefits would be paid to him on the date of retirement, that the respondents are delayed in paying the retiral benefits to the petitioner for a period of one and half years and that therefore the petitioner is entitled to interest at the rate of 18% per annum on the delayed payment of rs. 5,22,094-25 ps.4. on the other hand, the learned counsel for the respondents contends that the petitioner was issued charge memo on the ground of misappropriation of bank funds on the date of his retirement i.e., 31-3-2000, that disciplinary action was initiated against the petitioner for his alleged involvement in misappropriation, that as per the directions of this court in the writ petition filed by the petitioner for payment of retirement benefits he was paid the terminal benefits on 9-10-2001, that withholding of terminal benefits of the petitioner is only due to the fact of pendency of disciplinary action against the petitioner and that therefore the claim of the petitioner that he is entitled to interest on the delayed payment of gratuity cannot be accepted.5. admittedly disciplinary proceedings were initiated against the petitioner on the charges of misappropriation of funds on the date of his retirement i.e., on 31-3-2000. against the said action of the respondents the petitioner filed a writ petition, wherein this court directed the respondents to pay all the terminal benefits to the petitioner holding that the respondents have no authority to withhold the terminal benefits. the delay in payment of terminal benefits to the petitioner is only due to the fact that there is a disciplinary proceedings initiated against him and the same was challenged before this court by way of writ petition and as per the directions of this court the gratuity amount was paid to the petitioner on 9-10-2001 and in view of the same the delay is caused. therefore it cannot be said that the respondents intentionally and deliberately withheld the terminal benefits of the petitioner. no doubt it is true that the gratuity should be paid to the employee on the termination of his employment, but no specific period within which the amount of gratuity has to be paid is prescribed under the provisions of the payment of gratuity act, 1972.6. in support of his contention the learned counsel for the petitioner relied upon two decisions of apex court in vijay l mehrotra v. state of u.p., : (2000)iillj253sc and biman krishna bose v. united india insurance co. ltd. : (2001)6scc477 .7. in vijay l. mehrotra's case (supra) the supreme court dealing with the question with regard to the delay in payment of retiral benefits to a retired employee after having rendered service, held that it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter. if for some unforeseen circumstances the payments could not be made on the date of retirement and directed the payment of the same with interest at the rate of 18 per cent with effect from the date of retirement. the facts in that case decided by the supreme court are different from the facts of this case. in the case on hand the delay in payment of gratuity was admittedly caused only due to the fact that on the date of retirement of the petitioner disciplinary proceedings were initiated for embezzlement of funds of the respondents and at the instance of the petitioner it was challenged in this court and later as per the directions of this court the petitioner was paid retiral benefits and thereby the delay is caused. since the delay is only at the instance of the petitioner, it cannot be termed as the respondents delayed in payment of gratuity to the petitioner on the petitioner retiring after having rendered service.therefore the case relied on by the learned counsel for the petitioner has no application to the facts of the case on hand. the case relied on in biman krishna bose's case (supra) has also no application to the facts of the present case since that is a case relating to the renewal of insurance policy for the expired period.8. for the foregoing reasons, the writ petition fails and is accordingly dismissed. no costs.

Judgment:
ORDER

Elipe Dharma Rao, J.

1. The petitioner herein seeks to declare proceedings No. CDR/231-D/3395, dated 25-1-2002 of the 1st respondent refusing to pay the interest on the delayed payment of gratuity amount payable to the petitioner on 31-3-2000 for the period of delay from 1-4-2000 to 8-10-2001 as illegal and without jurisdiction and consequentlydo direct the respondents to consider and pay the compound rate of interest at therate of 18% per annum.

2. The case of the petitioner who joined as clerk in the respondents-Cooperative Bank is that though he retired on attaining age of superannuation as Assistant General Manager on 31-3-2000, the retirement gratuity payable to him is not paid to him on the ground that a charge memo dated 31-3-2000 was issued. The petitioner challenged the same in W.P.No. 11256 of 2001, which was allowed by this Court on 8-10-2001 following the judgment in W.P.No. 26148 of 2001, dated 25-4-2001 declaring that the respondents have no jurisdiction to continue the disciplinary proceedings after the superannuation and retirement. Thereafter the respondents paid the terminal benefits on 9-10-2001 pursuant to the proceedings dated 6-10-2001. According to the petitioner the total amount payable to him under leave encashment, provident fund contribution, gratuity etc., was Rs. 5,22,094-25 ps. The petitioner complains that though the said amount was due to be paid to him on the date of his retirement i.e., 31-3-2000, it was paid only after a long delay of one and half years i.e., on 9-10-2001. The petitioner made a representation to the respondents claiming for payment of interest on the delayed payment of the amount and the same was refused by the proceedings dated 25-1-2002, which is impugned in this writ petition.

3. The learned Counsel for the petitioner contends that the petitioner having rendered service in the respondent-bank and after attaining superannuation was retired on 31-3-2000, that it is expectedthat all the retiral benefits would be paid to him on the date of retirement, that the respondents are delayed in paying the retiral benefits to the petitioner for a period of one and half years and that therefore the petitioner is entitled to interest at the rate of 18% per annum on the delayed payment of Rs. 5,22,094-25 ps.

4. On the other hand, the learned Counsel for the respondents contends that the petitioner was issued charge memo on the ground of misappropriation of bank funds on the date of his retirement i.e., 31-3-2000, that disciplinary action was initiated against the petitioner for his alleged involvement in misappropriation, that as per the directions of this Court in the writ petition filed by the petitioner for payment of retirement benefits he was paid the terminal benefits on 9-10-2001, that withholding of terminal benefits of the petitioner is only due to the fact of pendency of disciplinary action against the petitioner and that therefore the claim of the petitioner that he is entitled to interest on the delayed payment of gratuity cannot be accepted.

5. Admittedly disciplinary proceedings were initiated against the petitioner on the charges of misappropriation of funds on the date of his retirement i.e., on 31-3-2000. Against the said action of the respondents the petitioner filed a writ petition, wherein this Court directed the respondents to pay all the terminal benefits to the petitioner holding that the respondents have no authority to withhold the terminal benefits. The delay in payment of terminal benefits to the petitioner is only due to the fact that there is a disciplinary proceedings initiated against him and the same was challenged before this Court by way of writ petition and as per the directions of this Court the gratuity amount was paid to the petitioner on 9-10-2001 and in view of the same the delay is caused. Therefore it cannot be said that the respondents intentionally and deliberately withheld the terminal benefits of the petitioner. No doubt it is true that the gratuity should be paid to the employee on the termination of his employment, but no specific period within which the amount of gratuity has to be paid is prescribed under the provisions of the Payment of Gratuity Act, 1972.

6. In support of his contention the learned Counsel for the petitioner relied upon two decisions of Apex Court in Vijay L Mehrotra v. State of U.P., : (2000)IILLJ253SC and Biman Krishna Bose v. United India Insurance Co. Ltd. : (2001)6SCC477 .

7. In Vijay L. Mehrotra's case (supra) the Supreme Court dealing with the question with regard to the delay in payment of retiral benefits to a retired employee after having rendered service, held that it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter. If for some unforeseen circumstances the payments could not be made on the date of retirement and directed the payment of the same with interest at the rate of 18 per cent with effect from the date of retirement. The facts in that case decided by the Supreme Court are different from the facts of this case. In the case on hand the delay in payment of gratuity was admittedly caused only due to the fact that on the date of retirement of the petitioner disciplinary proceedings were initiated for embezzlement of funds of the respondents and at the instance of the petitioner it was challenged in this Court and later as per the directions of this court the petitioner was paid retiral benefits and thereby the delay is caused. Since the delay is only at the instance of the petitioner, it cannot be termed as the respondents delayed in payment of gratuity to the petitioner on the petitioner retiring after having rendered service.Therefore the case relied on by the learned Counsel for the petitioner has no application to the facts of the case on hand. The case relied on in Biman Krishna Bose's case (supra) has also no application to the facts of the present case since that is a case relating to the renewal of insurance policy for the expired period.

8. For the foregoing reasons, the writ petition fails and is accordingly dismissed. No costs.