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2024 Supreme(J&K) 123
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
M.A. CHOWDHARY, J.
Raja Begum & Ors. – Petitioners
Versus
J. & K. State Forest Corporation & Ors. – Respondents
SWP No. 2335 of 2018, SWP No. 865 of 2015, SWP No.1024 of 2015, SWP No. 1028 of 2015, SWP No. 1029 of 2015, SWP No. 984 of 2016, SWP No. 2354 of 2018, SWP No. 2871 of 2018
Decided On : 21-05-2024
For the Petitioners: Mr. Zahoor A. Jan.
For the Respondents: Mr. Mubeen Wani, Dy.AG.
The financial constraints of an employer should not justify the delay in releasing retiral benefits to employees, and the right to salary is a fundamental right for every employee.
Headnote:
COLA Arrears - Release of Withheld Dues - J&K State Forest Corporation Act 1978, J&K Civil Service (Revised Pay) Rules 2009, Payment of Gratuity Act 1972 - The court allowed the connected petitions with a direction to release entire withheld dues on account of COLA, leave salary and 6th Pay arrears along-with interest in favour of the petitioners or their predecessors-in-interest, minus that amount which has already been paid to them. The amount shall be calculated by the respondent-Corporation within a period of four weeks positively from today, and a proposal seeking financial assistance, be forwarded to the Government. The exact amount shall be communicated to the Finance Department with a copy to the Administrative Forest Department. Further, it is made clear that, whatever, amount is calculated as arrears by the respondent-Corporation shall be provided by the Government under a separate “Head”. The said amount shall be made available in addition to the wages bill, which generally is provided by the Government to the Corporation.
Fact of the Case:
The petitioners, retired employees of J&K State Forest Corporation, sought release of entire withheld dues on account of COLA, leave salary and 6th Pay arrears along-with interest, claiming entitlement based on various government orders and regulations.
Finding of the Court:
The court found that the petitioners were entitled to the withheld dues and directed the respondent-Corporation to calculate the amount within four weeks and seek financial assistance from the Government to make the payment. The court emphasized that the financial constraints of the Corporation should not be a reason to delay the release of retiral benefits.
Issues: The main issue was the entitlement of the petitioners to receive the withheld dues on account of COLA, leave salary and 6th Pay arrears, and whether the financial constraints of the Corporation justified the delay in payment.
Ratio Decidendi: The court held that the financial constraints of the Corporation should not be a reason to delay the release of retiral benefits, emphasizing that the right to salary is a fundamental right for every employee. The court also directed the Government to provide financial assistance to the Corporation for the payment of the withheld dues.
Final Decision: The court allowed the connected petitions and directed the release of entire withheld dues on account of COLA, leave salary and 6th Pay arrears along-with interest in favour of the petitioners or their predecessors-in-interest, with the Government providing financial assistance to the Corporation for the payment.
JUDGMENT :
1. All the above mentioned connected eight Writ Petitions, which have been clubbed together, are proposed to be decided through this common judgment, as all of them have similar and identical issues involved with regard to release of entire withheld dues on account of COLA, Leave Salary and 6th Pay Commission arrears by the respondent-J&K State Forest Corporation (for short ‘the Corporation’), along-with interest, in favour of the petitioners.
2. The facts of the case, as are culled out from the record of all the cases are that, the petitioners in each writ petition are entitled to COLA arrears, differential Leave Salary and 6th Pay Commission arrears, along-with interest. It will be useful to refer the reliefs sought in each of the Writ Petitions as follows:-
2.1. In SWP No. 2335/2010, the predecessor-in-interest of the petitioners had retired on 31-07-2009, therefore, the petitioners claimed to be entitled to arrears of 78 COLA Slabs, differential Leave Salary and differential Gratuity on account of increase in last drawn wages due to release of 78 COLA Slabs.
2.2. In SWP No. 865/2015, the petitioner of this writ petition having been retired on 30-04-2010, claims to be entitled to arrears on account of 109 COLA Slabs, besides differential Leave encashment, however, differential gratuity stands received by him as per orders of the Controlling Authority.
2.3. Petitioner in SWP No. 1024/2015 having been retired on 30-04-2009, claims to be is entitled to arrears on account of 78 COLA Slabs, besides differential Leave encashment, however, differential gratuity stands already received by him as per the orders of the Controlling Authority.
2.4. In SWP No. 1028/2015, petitioner having been retired on 30-04-2007, claims to be entitled to arrears on account of 25 COLA Slabs, besides differential Leave encashment also becomes due to him as he was paid Leave Salary only on basic pay, however, differential gratuity stands already received by him as per the orders of the Controlling Authority.
2.5. In SWP No. 1029/2015, the petitioner having been retired on 30-04-2009, claims that he is entitled to arrears on account of 78 COLA Slabs, besides differential Leave encashment also becomes due to him as he was paid Leave Salary only on basic pay. Differential gratuity stands already received by him as per the orders of the Controlling Authority.
2.6. Predecessor-in-interest of the petitioner in SWP No. 984/2016 had died in harness on 17-09-2010, before issuance of the G.O. 280-F of 2010 dated: 14-11-2010, wherein COLA was converted into D.A w.e.f. 01-07- 2010 and before issuance of SFC Order No. 775 of 2010 dated: 30-11-2010, whereby the then respondent No. 2, taking undue and unfair advantage of his position and authority, pressurized the Corporation employees to surrender COLA claim. Therefore, his legal heirs are entitled to arrears on account of 111 COLA Slabs from 01/2007 up to 06/2010 and 45% D.A from 07/2010 upto 17-09-2010. Differential Leave encashment also becomes due to them. Differential gratuity stands already received by them as per the orders of the Controlling Authority.
2.7. In SWP No. 2354/2018, the petitioner had retired on 31- 08-2009, therefore, he is entitled to arrears on account of 78 COLA Slabs. Differential Leave encashment and Gratuity also becomes due to him.
2.8. Petitioner in SWP No. 2871/2018 had retired on 30-06- 2008, therefore, he is entitled to arrears on account of 43 COLA Slabs. Differential Leave encashment and differential gratuity also becomes due to him.
3. The petitioners contended that the Government, vide Government Order No. 92-F of 2009 dated: 24-04-2009, accorded approval for adoption of 6th Pay Revision in PSUs (Public Sector Undertakings) effectively from 01-07-2009 and retrospectively w.e.f. 01/2006. As per the condition no: 3 of the said Government Order, PSU employees were entitled to left over COLA installments and as per condition no: 9, J&K Civil Service (Revised Pay) Rules, 200
