RSA No.22 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.22 of 2009
Date of Decision:13.01.2009
Amritsar Aviation Club & anr.
....appellants
Versus
Savitri Devi & anr.
.....respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr.Govind Goel, Advocate
for the appellants
****
RAKESH KUMAR GARG J.
Brief facts leading to the filing of this appeal are that
plaintiff-respondent worked as store keeper of the appellant. Plaintiff
retired from service after attaining the age of superannuation on
30.06.1997. She received a total sum of Rs.2,10,326/- from defendant-
appellant Nos.2 and 3, towards the salary, leave encashment etc.vide
cheque dated 14.02.2003. Since the payment of her dues was made after
a considerable delay, she requested the defendants/appellants to pay
interest on delayed payment. The plaintiff also served legal notice upon
the defendant-appellants, but to no effect. In these circumstances, the
plaintiff filed the present suit for declaration to the effect that she is entitled
to interest @ 24% per annum on delayed payment of Rs.2,10,326/- being
salary etc.from the defendants with consequential relief of mandatory
injunction directing the defendants to release interest on the aforesaid
amount to the plaintiff.
Defendant-appellants No.2 and 3-appellants filed written
statement raising various preliminary objections regarding the
maintainability of the suit and that the suit is time barred. On merits, it was
admitted that the plaintiff had been working as store keeper in Amritsar
RSA No.22 of 2009 2
Aviation Club. It was also admitted that she retired from service on
30.06.1997 after attaining the age of 60 years and the
defendants/appellants had paid a sum of Rs.2,10,326/- vide cheque dated
14.02.2003 as full and final settlement of her dues which were accepted by
her without any kind of protest. It was further stated in the written
statement that Aviation Club did not have the funds to pay the salary of the
staff because it is the State Government which release grant in aid to the
club for the purpose of disbursement of the salary of the staff. It was
alleged that grant in aid was not released by the State Government,
therefore the salaries of the staff could not be paid well in time. Since the
Government had not released the grant in aid, the working staff of the club
filed Civil Writ Petition No.19810 of 2001 in this Court for seeking a
direction to the Government to release the grant in aid to the club for
releasing dues of the staff and this Court vide its order dated 22.08.2002
directed the Punjab Government to release grant in aid to the club
i.e.appellant for payment of pending dues of the staff. It was further stated
in the written statement that the order was regarding pending dues only
and no order was passed by this Court to pay interest on delayed payment.
Therefore, the defendants are not liable to pay interest on the delayed
payment. Thus, it was prayed that the suit of the plaintiff be dismissed.
Defendant No.1, the Director, Civil Aviation Club(Punjab)
filed separate reply stating therein that the plaintiff was employee of the
Amritsar Aviation Club and not a government employee and the said club is
a private body controlled by their own rules and regulations. The dues to
the plaintiff have been paid by defendant Nos.2 and 3. It was also stated
that defendant No.1 is not liable to pay interest on the delayed payment. It
was prayed that the suit of the plaintiff be dismissed. On the basis of the
pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiff is entitled to get the interest on sum
RSA No.22 of 2009 3of Rs.2,10,326/- @24% p.a.from the defendant? OPP
2. Whether the plaintiff is entitled for mandatory injunction as
prayed for?OPD
3. Whether the present suit is not maintainable? OPD
4. Whether the plaintiff has no cause of action to file the
present suit?OPD
5. Whether the plaintiff estopped by her own act and
conduct from filing the present suit?OPD
6. Whether the suit is not properly valued for the court fee
and jurisdiction?OPD
7. Relief.
The trial Court after considering the evidence on record and
hearing the learned counsel for the parties held that defendant Nos.2 and
3 have withheld the retiral benefits of the plaintiff without assigning any
sufficient reason and therefore the plaintiff is entitled to interest on delayed
payment and decreed the suit of the plaintiff with costs and defendants
were directed to pay interest on delayed payment along with interest
@ 12% per annum from the due date till the decision of the case and
further future interest @ 6% per annum from the date of decision till
realization.
Feeling aggrieved against the aforesaid judgment of the trial
Court, defendant Nos.2 and 3 filed Civil Appeal No.199 of 1997 and
defendant No.1 filed Civil Appeal No.207 of 2007. Both the appeals were
decided by impugned judgment and decree dated 16.10.2008 passed by
District Judge, Amritsar, whereby Appeal No.207 of 21.09.2007 titled as
‘The Director, Civil Aviation Club versus Savitri Devi & ors’ was
allowed and it was held that the plaintiff-respondent was not an employee
of the State of Punjab and as such no liability could be fastened upon the
appellants in Civil Appeal No.207 of 21.09.2007. However, in Civil Appeal
RSA No.22 of 2009 4
No.199 of 1997 filed by the present appellants, findings of the trial Court
were affirmed except for the modification in the rate of interest i.e.interest
on the delayed payment prior to the institution of the suit was reduced from
12% to 8% per annum. Except this modification, the appeal filed by the
present appellants was dismissed by the Lower Appellate Court.
Still feeling aggrieved, the appellants have filed the present
appeal challenging the judgment and decrees of the Courts below.
According to the learned counsel for the appellants, the
following substantial questions of law arise in this appeal:
1. Whether the suit filed by the respondent-plaintiff seeking
declaration and mandatory injunction for the grant and
payment of interest on the retiral dues from the date of
retirement i.e.30.06.1997 was maintainable, especially
after the plaintiff-respondent had already been paid the
entire amount of the retiral dues way back on
14.02.2003?
2. Whether the suit filed by the plaintiff-respondent seeking
declaration and mandatory injunction for payment of
interest on her retiral dues from the date of retirement i.e
30.06.1997 could be filed on 30.04.2005 and the suit so
filed was ex facie, time barred and outside the jurisdiction
of the Court in view of Section 3 of the Limitation Act?
3. Whether the courts below had any jurisdiction to entertain
the suit for interest alone?
4. Whether the courts below had any jurisdiction to direct
the payment of interest when the issue as to who was the
employer of persons working in Civil Aviation Club is
under consideration of this Court in CWP No.2244 of
1999, 14401 and 19810 of 2001 and who is liable to pay
RSA No.22 of 2009 5the retiral dues of the employees working in Civil Aviation
Clubs is pending consideration in CWP No.19059 of 2006
and CWP No.19363 of 2006?
In support of his case, learned counsel for the appellants
has vehemently argued that the suit of the plaintiff-respondent seeking
declaration and mandatory injunction for payment of interest on her retiral
dues from the date of retirement i.e.30.06.1997 could not be filed on
30.04.2005 and the suit so filed was ex facie, time barred and outside the
jurisdiction of the Court in view of Section 3 of the Limitation Act and was
liable to be dismissed on this ground alone. Elaborating his argument
further, learned counsel stated that the cause of action if any accrued to
the plaintiff on the date of her retirement i.e.on 30.06.1997 and in spite of
the fact that she did not get the retiral benefits, she did not take out any
legal proceedings within the time frame as prescribed by law and thus with
the flux of the time, the claim of the respondent became time barred and
therefore the suit was liable to be dismissed on this ground. Learned
counsel for the appellant has further argued that the courts below have
erred in ignoring that the issue as to whether the plaintiff and other similarly
situated employees of the Civil Aviation Club were liable to be paid retiral
benefits by the State Government or not was pending consideration of the
Hon’ble High Court in various writ petitions i.e. CWP No.19059 of 2006 and
19363 of 2006 and even the matter as to who was the employer of these
employees is pending consideration before a Division Bench of this Court
in CWP No.2244 of 1999, 14401 of 2001 and 19810 of 2001 and till the
decision of the above writ petitions, it was not possible to make payment of
any amount consequent upon retirement of various employees, therefore,
the Courts below could not have ignored the effect of the pendency of the
above litigation in the High Court and thus the judgment and decrees of the
Courts below are liable to be set aside.
RSA No.22 of 2009 6
I have heard learned counsel for the appellants and
perused the impugned judgment and decrees of the Courts below and has
perused the record of the case with the help of counsel for the appellants.
I find no force in the contentions raised by the learned
counsel for the appellants. Admittedly the plaintiff was working as a store
keeper in Amritsar Aviation Club i.e.appellants. It is also not disputed that
she retired from service on 30.06.1997 on her attaining the age of
superannuation and her salary and other benefits were paid vide cheque
dated 14.02.2003. A perusal of the written statement filed by the appellants
would further show that it has nowhere been disputed that plaintiff-
respondent was not an employee of the Amritsar Aviation Club or the
appellants. The only defence taken in the written statement by the
appellants was that since the grant in aid was not being released by the
State Government, therefore salaries of the staff could not be paid well in
time. Thus, the contention raised by the learned counsel for the appellants
is that the issue with regard to the fact as to who was the employer of the
plaintiff and other similarly situated employees of the Aviation Club which is
alleged to be pending in the writ petitions is of no consequence. Moreover,
except the references of these writ petitions, nothing is placed on record by
the appellants to prove this fact that the aforesaid question is pending
before the Hon’ble High Court. Moreover, it has been admitted by the
appellants in the written statement that the plaintiff had been working as
store keeper in Amritsar Aviation Club and as stated above the appellants
have not disputed their liability to pay the plaintiff-respondent her salary
and other benefits on the ground that appellants are not her employers.
Thus, the contention raised by the learned counsel for the appellants is
without any merit and the same is rejected.
The second contention of the learned counsel for the
appellants that suit is barred by limitation is also liable to be rejected on the
RSA No.22 of 2009 7
ground that no such objection was raised by the appellants in their written
statements nor any issue was claimed in this regard. No doubt, it is the
duty of the Court to see whether the suit is within limitation and if it is found
ex facie that the suit is beyond limitation, the same can be dismissed as
time barred even without raising any objection by the defendant, but in the
present case, admittedly the appellants made the payment of retiral
benefits vide cheque dated 14.02.2003 and therefore the limitation in this
case for filing suit for payment of interest commenced to run from
14.02.2003 i.e.when a sum of Rs.2,10,326/- was paid to respondent No.1
by the appellants being salary and other retiral benefits. Once the
appellants admitted their liability to pay salary and other retiral benefits to
respondent No.1 on 14.02.2003, it cannot be argued that the interest
accrued thereon from the date of retirement of respondent No.1, became
time barred. Learned counsel for the appellants had also argued that there
was no culpable delay on the part of the appellants in releasing the retiral
dues of the plaintiff so as to entitle her any interest from the appellants as
the grant in aid was not being released by the State Government and the
appellants promptly made the payment on receipt of such grant and in fact
the plaintiff-respondent had accepted the retiral benefits without any
protest and in these circumstances the claim for interest was wholly
unjustified. This argument of the appellants is also liable to be rejected as
it is settled law that if an employee retires from service then employer is
liable to pay his retiral benefits promptly. It is well settled that right to
receive retiral benefits is a fundamental right of an employee and is not a
bounty. Simply because plaintiff-respondent accepted the retiral benefits
on 14.02.2003 without any protest would not imply that she had forfeited
the interest on the delayed payment and she cannot be estopped from
claiming interest on the delayed payment. Appellants being employers of
the plaintiff-respondent were duty bound to pay the salary and other retiral
RSA No.22 of 2009 8
benefits of the plaintiff-respondent on her retirement. Withholding of the
retiral benefits for a period of six years by appellants is not justified. The
right of the employee to get his retiral benefits cannot be eclipsed by the
fact that grant in aid was not released by the State of Punjab to the
appellants. Neither the delay in payment of retiral benefits to the plaintiff-
respondent can be justified on this ground.
For the reasons recorded above, I find no merit in this
appeal.
No other point was argued.
Thus,substantial questions of law as raised by the
appellants do not arise in this appeal.
Dismissed.
(RAKESH KUMAR GARG)
JUDGE
13.01.2009
neenu