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SCA/4969/2009 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4969 of 2009
=========================================================
RAMKRISHNA
FATEHCHAND LALA - Petitioner(s)
Versus
DEPOT
MANAGER & 1 - Respondent(s)
=========================================================
Appearance
:
MS
MAMTA R VYAS for
Petitioner(s) : 1,
MS SEJAL K MANDAVIA for Respondent(s) : 1 -
2.
DS AFF.NOT FILED (N) for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 05/04/2010
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties.
In
present petition, prayer is made by petitioner to direct the
respondent to pay an amount of Rs.12,657/- along with interest and to
direct the respondent to deposit the said amount.
One
Recovery Application No.45 of 2006 Ex.9 Page 15 Annexure ‘A’ was
filed by petitioner before Labour Court, Surendranagar, where, prayer
was made to direct respondent Corporation to pay R.19,931/- to
present petitioner by order dated 29th September 2006.
Thereafter,
another Recovery Application No.316 of 2006 Page 18 was filed by
petitioner with a prayer to Labour Court, Surendranagar to issue
Recovery Certificate of the said amount of Rs.19,931/- dated 17th
January 2007. One SCA No.14757 of 2006 was filed by petitioner before
this Court and this Court has issued notice to respondent
Corporation. On 29th March 2007, following order is passed
by this Court :
1. Heard
learned Advocate Ms. Mamta Vyas for the petitioner and Mr. Hardik
Raval for the respondent corporation.
2. Claim
of the petitioner is in respect of the difference of settlement
which comes to Rs.47927.00. Said claim of the petitioner has not been
disputed by the respondent Corporation. As per the submission made by
the learned Advocate Mr. Raval, number of employees are not receiving
such payment in time in view of the financial constraints of the
Corporation.
3. Therefore,
considering the submissions made by the learned Advocates for the
parties, respondent corporation is directed to pay Rs.47927.00 (Rs.
forty seven thousand nine hundred twenty seven only) to the
petitioner RAMKISHAN
FATECHAND LALA aged about 67 years within three months from the date
of receipt of copy of this order. This order has been passed by this
court considering peculiar facts of the case and the age of 67 years
of the petitioner.
4. With
these observations and directions, this petition
is disposed of at this stage without expressing any opinion on merits
of the matter. D.S.P.
In
view of aforesaid order passed by this Court, learned advocate Mr.
Hardik C. Rawal appeared on behalf of Corporation and before this
Court, claim of petitioner which was considered being a difference of
salary which comes to Rs.47,927/- and said claim of petitioner has
not been disputed by Corporation before this Court. Thereafter,
notice has been served to Corporation by Advocate dated 23rd
May 2008 claiming said amount from Corporation. The reply given by
Divisional Controller, Rajkot where total amount is required to paid
by Corporation to petitioner which comes to Rs.51,611/- and out of
that, difference of Earned Leave comes to Rs.19931/- has been paid by
order dated 17th May 2007 and now, only amount is remained
to be paid Rs.31,680/- which was also paid by cheque dated 3rd
October 2007. Therefore, according to Corporation, no amount is
required to be paid by Corporation to petitioner.
Thereafter,
contempt proceeding has been filed by petitioner which has been
disposed of with an observation that applicant shall take out
substantive proceedings in respect of his grievance.
Affidavit-in-reply
is filed by Account Officer of GSRTC, Rajkot Shri Jagdishbhai
Jethalal. The relevant Para 3, 6 and 7 are quoted as under :
3. I
say that the petitioner is retired from the service on 31-5-1999. The
settlement made between the corporation and the union came into
existence in 1997 and the pay scale had been revised with effect from
7-9-2000. So, earlier the amount of Rs.19,931/- has been paid to the
petitioner and that was without revising the pay scale as per the
settlement. I say that thereafter the calculation made in settlement
arrears of the petitioner and the same is as under :
difference of leave encashment + DA = 62,512 amount of HRA = 1,939 --------- 64,451 Advance payment - 10,000 --------- 54,451 Professional tax - 340 --------- 54,411 Advance payment - 2,500 --------- 51,611 Payment made of leave encashment - 19,931 --------- 31,680 The
said amount is paid on 3-10-2007. Hence, nothing remain to be paid to
the petitioner. I annex herewith the settlement sheet here with and
mark as Annexure R1 to the reply.
6. I
say that total amount including difference of salary of leave, etc.,
Rs.64,451/- has been paid and now he can not claim in the petition
that he is entitled to more amount.
7. I
say and submit that earlier also without giving proper amount of
calculation, the petitioner got the order of paying Rs.47,927/-. At
that time also, he could have filed recovery application instead of
writ petition. The Hon’ble High Court can not go into disputed
questions of facts. Hence, as per our calculation which the
petitioner has also not disputed the full amount is paid and no
amount is requires o be paid to the petitioner and the petition
requires to be rejected.
Against that, affidavit-in-rejoinder is filed by petitioner. The
relevant Para 3 and 5 of rejoinder is quoted as under :
3. With
regard to para-3, I submit that the payment which is shown to have
been made to me, is not as per the rules. As such by an
administrative order No.201/1999, the amount of encashment of 33 days
in the year 1998 is not paid o me and this can be seen from the sheet
produced for the period from 1.8.1997 to 31.7.2000. After the order
dtd.26.3.2007 passed by this Hon’ble Court in my earlier petition
being Spl.CA No.14757/2006, when I received the cheque, I wrote a
letter on 11.10.2007 to the respondents informing that the amount of
leave encashment for the period between 1998-99 is not included and
therefore, the calculation given by the respondent is not correct. A
copy of the letter dtd.11.10.2007 is annexed hereto and marked Annex.
I to this affidavit. It is further submitted that again by an
order dtd.1.2.2008, a request was made with a specific contention
that 33-34 days leave encashment is not granted and therefore, there
is discrepancy in the amount. It is pertinent to note that under the
Right to Information act, I had requested for the details of the
payments made to me and then only the present sheet was supplied. I
again by letters dtd.27.3.2008 and 10.4.2008 requested the
authorities to pay the remaining dues. Copies of the letters
dtd.27.3.2008 and 10.04.2008 are annexed hereto and marked Annexu.
II (Colly.) to this affidavit.
5. I
respectfully submit that I am entitled to get the total pay of
Rs.12,011/- (Rs.4013/- pay + Rs.7,938/- DA + Rs.60/- old DA).
Therefore, the respondents are required to be directed to pay the
same. It is further submitted that when the Hon’ble Court has passed
the order, there is no question of filing a Recovery Application for
this purpose. Even otherwise, I have retired way back on 7.9.2007 and
therefore, after taking this fact into consideration, this Hon’ble
Court has directed to pay the amount immediately.
According
to petitioner, petitioner is entitled total amount of Rs.12,011/-
means Rs.4013/- Pay + Rs.7,938/- DA + Rs.60/- old DA. Therefore,
according to petitioner, petitioner is entitled to recover the amount
of Rs.12,011/- from Corporation.
I
have considered submissions made by both learned advocates as well as
affidavit-in-reply filed by Corporation and rejoinder filed by
petitioner. One fact is very clear that at the time when this Court
has passed an order on 29th March 2007, the difference of
settlement which amount comes to Rs.47,927/-. That amount is not
disputed by advocate of Corporation before this Court. Therefore,
according to my opinion, this much amount must have to be paid by
Corporation. Therefore, in light of this background and admission of
learned advocate Mr. Raval before this Court and so long, this order
is not modified by this Court, the Corporation shall have to pay
Rs.12,011/- being a remaining amount to petitioner.
Learned
advocate Ms. Mandavia submitted that she has received one letter
dated 9th December 2009 from Junior Assistant Mr. Dangar,
Account Branch of ST Corporation, Rajkot. Now petitioner is entitled
only Rs.5,320/- for a period of 33 days EL encashment for the year
1998-99.
Learned
advocate Ms. Vyas is not accepting only this much amount, but,
according to her submission, order passed by this Court where total
amount is not disputed by Corporation, therefore, petitioner is
entitled for Rs.12,011/- from Corporation which includes the
aforesaid Rs.5,320/-.
Therefore,
it is directed to Corporation to pay Rs.12,011/- by account payee
cheque in name of petitioner including the amount of Rs.5,320/- as
per letter dated 9th July 2009 from ST Corporation within
a period of one month from date of receiving copy of present order,
after proper verification.
In
view of above observations and directions, present petition is
disposed of.
Sd/-
[H.K.
RATHOD, J.]
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