1999 Supreme(Guj) 507
Gujarat High Court
Judgename :R.BALIA
MOHIBULLAH USMANBHAI SHAIKH - Appellant
Versus
STATE - Respondent
S.C.A. 5183 of 1998
Decided On : 09/28/1999
Headnote:
Employment and Service matter – B. C. S. R – Rule 161 – Constitution of India, 1950 – Article 226 – Compulsorily retirement – Pension –Retiral benefits – Seeks Quashing and setting aside the order and directing respondent no. 1 to exercise his vested power under proviso Rule 161 – Petitioner was compulsorily retired by order – State Government on petitioners representation reinstated the petitioner by order this order also mentioned that during this period petitioner has been paid notice pay pension, gratuity and other retiral benefits – Seeking a mandamus to the respondents to make an order in favour of the petitioner for continuing him until the petitioners are determined and paid to the petitioner – In the alternative for non-extension of period, the compensation of Rs. 2 lakhs have been claimed – Held, If the petitioner fulfills the procedural requirements, it is ordered that, if the petitioner now submits a duly signed BTR form No. 21 for the purpose of withdrawal of the lumpsum amount within one month, the respondents shall make the payment of the admissible sum to the petitioner as stated above within a further period of one month – This will be calculated on the basis of destination to home town disclosed in the service book as the petitioner has opted to claim only lumpsum amount – It has to be computed as on the last date of retirement – One cannot fail to notice that petitioner himself is responsible for not getting this payment by taking a very technical stand on procedural requirements to be fulfilled by him before he could get lump sum payment – Petition dismissed. (Paras 23 and 24)
( 1 ) THE petitioner has claimed the following reliefs in this petition substantively :-[a] Quashing and setting aside the order dated 31/1/95 [annexure i] directing respondent no. 1 to exercise his vested power under proviso [iii] below Rule 161 of B. C. S. R. together with continuity of service with all consequential benefits forthwith till the respondent nos. 2 onwards may be finalise all the terminal benefits on or before the date[s] by which they like to retire the petitioner or an award Rs. 2 lakhs per detaining be awarded to petitioner. [b] quashing and setting aside later part of order dated 4/11/96 directing respondent No. 2 to treat the impugned periods as on duty for all purposes by maintaining the leave balance of petitioner for encashment. [b-1] quashing and setting aside the part of recoveries from the face of order dated 4/11/1996 [annexure VII] passed by the respondent no. 2 of Rs. 63,590/directing the respondent No. 5 to refund the aforesaid recoveries affected on 5/11/1996 together with appropriate rate [s] of interest thereon from 5/11/1996 till the date of refund of the same. [c] to award the compensatory amounts of Rs. 6,80,000. 00 as prayed for vide para [v] at Annexure v and further enhance the said amounts under the circumstances as narrated in ground [g] directing the respondents nos. 2 to 2 to pay the petitioner from the public fund and the said amounts may be recovered from respondent nos. 3 and 5 within the reasonable time. [c-1] to award the compensatory amounts of Rs. 56,00,000. 00 as prayed for vide Annexure x[a] by raising 50% therein at the time of hearing as the respondent nos. 1 and 2 have failed to decide the issue by their hands. [d] to take suo motu action in prosecuting the respondent no. 2 in lieu of giving false affidavit before this Honble High Court as narrated vide para [ii] of Annexure iv and further to sanction an enquiry through Central Bureau of Investigation to enquire the truth of involvement of officers of respondents nos. 1 and 2 in view of facts and circumstances as laid down vide Annexure v for the purpose of prosecuting them as the respondents no. 1 and 2 have failed to take any cognizance thereto. [e] to direct the respondent No. 5 to pay the amounts of Annexure viii colly. with 18% interest thereon and further to award the interest at the rate of 18% to the amounts from item nos. 2 to 5 of annexure ix directing the respondent No. 5 to work out from their dates of accrual upto their dates of payment within reasonable time.
( 2 ) THE petitioner was in the first instance compulsorily retired by order dated 17/1/92 w. e. f. forenoon of 18/1/92 with three months notice pay. The State Government on petitioners representation reinstated the petitioner by order dated 4/1/94. This order also mentioned that, during this period, the petitioner has been paid notice pay pension, gratuity and other retiral benefits. For the recovery of the said amount alongwith for regularising the period during which the compulsory retirement order remained in force, a separate order shall be made. As according to the petitioner, the respondents were not entitled to recover the retiral benefits given in pursuance of order dated 17/1/92 and this would have been resulted in huge recovery on joining, he did not join his duties on reinstatement immediately, but ultimately joined only on 30/1/95. On 31/1/95, he superannuated on attaining the age of 58 years. During the period, until December 1996, the petitioner continued to draw the pension fixed under the compulsory retirement order dated 17/1/92. He has also withdrawn `death cum retirement gratuity as well as the commuted pension as per rules of fixation on pension as a result compulsory retirement in 1992. As the petitioner ultimately retired on 1/2/1995 and he was already drawing pension fixed under 1992 and the question of adjustment of amount paid as retiral benefits during the continuance of his service until 31/1/95 was pending consid