JUDGMENT
Vijender Jain, J.
1. Rule.
2. This is a classic case of total indifference of two public sector undertakings to the petitioner who rendered his service for 21 years. Respondents 1 to 3 is National Thermal Power Corporation Ltd. and respondent No. 4 is National Power Transmission Corporation (now known as Power Grid Corporation of India Ltd.). Petitioner was working with respondent No. 1 since 1976. The case of the petitioner is that he joined respondent No. 4 in the year 1991 as he was offered the post of Deputy General Manger (Consultancy). Letter of appointment is at page 96 of the paper-book issued by respondent No. 4. The same was issued on 13.11.1991. Clause 4 of the said letter is important as both the parties have laid much reliance on the same. Same is reproduced as under:
“In case you have taken House Building Advance from NTPC, NPTC has no objection in taking over the liability of such advances and in case you have drawn only a portion of HBA sanctioned to you by NTPC, the unutilised/undrawn part of the advances so sanctioned will be paid by NTPC, as per the payment schedule already submitted by you NTPC against you HBA, on completion of legal formalities. Till such time the formalities are not completed, NPTC will make recoveries of principal/interest from your salary and remit such recoveries to NTPC.”
3. Mr. Kaul, learned counsel for the petitioner has contended that the petitioner had obtained some house building loan from respondent No. 1 and that loan was re-imbursed to the petitioner in terms of the rules and regulations of respondent No. 1. However, at the time of offering appointment to the petitioner, respondent No. 4 had undertaken to re-pay to respondent No. 1 said house building advances which the petitioner had received from respondent No. 1. On 14.11.1991 respondent No. 4 wrote a letter to respondent No. 1 in the following terms:
“Shri A.K. Ramachandran, Dy. General Manager (Communications) has been offered an appointment to the post of Dy. General Manager (Consultancy) in NPTC. Shri Ramachandran has informed that he has taken House Building & Conveyance Advances from NTPC. It is to inform you that we undertake to repay the outstanding House Building & Conveyance Advances and interest accrued thereon, in respect of Shri Ramachandran within one month of his joining NPTC, as per Rules of NPTC.”
(Emphasis supplied)
4. Undertaking of respondent No. 4 was accepted by respondent No. 1 as per page 19 (Annexure D) of the paper-book.
5. The petitioner superannuated from service with respondent No. 4 in April, 1997. Mr. Kaul has contended that once there was an undertaking on the basis of the agreement between respondent No. 1 and respondent No. 4 with regard to repayment of housing loan, respondent No. 1 could not have withheld the gratuity payable to the petitioner on account of said housing loan. He has further contended that even if there was some dispute inter se respondent No. 1 and respondent No. 4 with regard to the factum of payment of house loan which was to be paid by respondent No. 4 to respondent No. 1, the petitioner could not be made to suffer on account of inaction on the part of respondent No. 1 and respondent No. 4 so as to deprive the petitioner from his gratuity since 1991. In support of his contention, learned counsel for the petitioner has relied upon F.R. Jesuratnam v. Union of India and Ors. 1990 (Supp) SCC 640, Mohammad Shabbir Nadvi v. Jamia Milia Islamia , R. Kapur v. Director of Inspection (Painting & Publication) Income Tax and Anr. , Texmaco Ltd. v. Ram Dhan and Anr. , and Sudhir Chandra Sarkar v. Tata Iron & Steel Co. Ltd. and Ors. .
6. On the other hand, Mr. Rajinder Dhawan, learned counsel for the respondents 1 to 3 has contended that in terms of Clause 8 of the House Building Allowance, the said sanction was under the NTPC HBA Rules. It was further contended by Mr. Dhawan that the undertaking was issued by respondent No. 4 on 14.11.1991 but actually the payment was made on 28.11.1994. The emphasis of learned counsel for the respondents 1 and 3 was that petitioner knew that he had to make payment to respondent No. 1 and that is why the petitioner was also writing for reduction of interest from penal to normal and respondent No. 1 was justified in withholding gratuity of the petitioner till the amount under housing building loan was paid to respondent No. 1. Amount of house building loan was paid on 28.11.1994 by respondent No. 4. However, the gratuity, amounting to Rs. 28,601/- was released in favor of the petitioner in 1995 only. There is no dispute that the amount of gratuity which was to be paid by respondent No. 1 to the petitioner was Rs. 62,167/-. On the basis of the aforesaid contention, Mr. Dhawan has contended that the petitioner is not entitled for any relief in the writ petition.
7. Mr. D.S. Chauhan, learned counsel for respondent No. 4 has contended that it was the duty of the petitioner to have filed an application after appointment in 1991 with respondent No. 4, so that the amount which was to be given to respondent No. 1 could have been deducted from his salary and failure of the petitioner to do so, would not fasten any liability on respondent No. 4. Mr. Chauhan has also contended that the advances so sanctioned was to be paid to respondent No. 1 on completion of legal formalities. As no legal formalities were done, respondent 4 was not under any obligation to pay the amount to respondent No. 1. Mr. Chauhan has also relied upon a letter written by the petitioner to respondent No. 1 (which is at page 23-24 of the paper-book) and on the basis of the said letter, he has tried to canvass before this Court that it was petitioner whose inaction resulted in the late remittances to respondent No. 1.
8. I have given my careful consideration to the arguments advanced by learned counsel for all the parties. Why this matter has been pending with two public sector undertakings for such a long time and why the petitioner has to take recourse to approach this Court after struggling before two public sector undertakings, depicts a sordid state of affairs in this country. Admittedly the amount was paid to respondent No. 1 by respondent No. 4 on account of house building loans on 28.11.1994. At page 83 Annexure R 4/5 is a receipt of respondent No. 1. That shows that a sum of Rs. 1,55,063/- has been received on account of refund of HBA : Principle Rs. 61,980/-, interest Rs. 93,083/- from petitioner (EMP No. 00016). When respondent No. 1 has realised that amount, how respondent No. 1 could withhold gratuity of the petitioner after 28.11.1994. This is apart from the fact that respondent No. 1 could not have withheld gratuity at all even if payment was not made by the petitioner as has been laid down in F.R. Jesuratnam’s case (supra), where the Supreme Court observed as under:
“We are of the view that gratuity is no longer a bounty but it is a matter of right of the employee and it can, therefore, no longer be regarded as a provision in the discretion of the President as provided in the Pension Regulations. Since there is no legal provision empowering the authorities to forfeit the gratuity payable to an employee, the order passed by the Government forfeiting the gratuity payable to the appellant must be held to be bad and must be set aside. We accordingly set aside the order of the High Court as also the Order of the Government forfeiting the gratuity of the appellant and direct that gratuity shall be paid to the appellant forthwith. There will be no order as to costs of the appeal. The appeal is disposed of in these terms.”
9. Let me advert to the contention of learned counsel for respondent No. 1 as to whether respondent No. 1 was justified in withholding the gratuity of the petitioner from 1991. The letter of respondent 4 addressed to respondent No. 1 provides answer to this question. The said letter was written on November 14, 1991 by respondent No. 4 to respondent No. 1 and in the said letter it was specifically mentioned that respondent No. 4 undertakes to repay the outstanding house building and conveyance advances and interest accrued thereon in respect of Shri Ramachandran within one month of his joining NPTC as per rules of NPTC. After the said letter form respondent No. 4, action of non-payment of gratuity by respondent No. 1 is capricious, arbitrary and illegal. Respondent No. 4 is also responsible for not taking action in terms of its own appointment letter as well as the undertaking. It was argued before me that in terms of the appointment letter, there was no liability of respondent No. 4 and it was only if the petitioner would have fulfillled the legal formalities by writing an application for disbursement of repayment of the housing advances to respondent No. 1, respondent No. 4 would have acted and petitioner having not made an application before respondent No. 4, respondent No. 4 could not take action with promptitude.
10. Clause 4 of the appointment letter which was issued on 13.11.1991 provides answer to the submission of respondent No. 4, which specifically has stipulated that till such time the formalities are not completed, respondent No. 4 will make recoveries of principle/interest from the salary of the petitioner and remit such recoveries to respondent No. 1. Not only this, the letter of appointment dated 13.11.1991 and with eyes wide open undertaking is given to respondent No. 1 by respondent No. 4 on 14.11.1991. Therefore, it cannot be said that the petitioner was in any way responsible for requesting respondent No. 4 to deduct the amount from his salary and the petitioner having not done so, has not performed his part of the obligation. Judging from any angle it seems that the petitioner has been harassed for no fault of his. He has been making representations for release of his gratuity to respondent.1 as discussed above. In any case from November, 1994 when the amount was received by respondent No. 4. The respondent could not, in law, stopped payment of gratuity to the petitioner.
11. I do not find any force in the arguments of Mr. Dhawan that petitioner has given a letter dated 28.4.1995 to adjust the gratuity amount due to the petitioner against the dues intimated by Finance Department. Letter dated 28.4.1995, as explained in the rejoinder filed by the petitioner, was on account of fact that gratuity amount has not been released till that date, although the amount of Rs. 1,55,063/- has been paid in November, 1994 by respondent No. 4 to respondent No. 1. It was explained by counsel for the petitioner that letter was given on account of Rs. 11,549/- which was deducted by respondent No. 1 under the head of other recoveries. As a matter of fact, that letter dated 28.4.1995 ceases significance in view of the fact that the payment on account of the outstanding house building loan was given to respondent No. 1 in November, 1994 itself.
12. I do not see any force in the arguments of Mr. Dhawan that the interest which was paid by the petitioner was only up to 1995 and subsequently further interest was to be paid by the petitioner amounting to Rs. 22,016/-. If that was so, why the same has not been indicated in the receipt issued by respondent No. 1 on 28.11.1994. This is sheer and afterthought. As the petitioner has to take recourse of the Court for vindicating his right and that too for gratuity, I allow this writ petition and direct respondent No. 1 to pay the amount of remaining gratuity after deducting a sum of Rs. 28,601/- from Rs. 62,167/-. The amount of Rs. 28,601/- has been paid in December, 1995. Therefore, respondent No. 1 shall pay interest on the amount not paid to the petitioner from Rs. 62,167/- till December, 1995 at the rate of 18% per annum. The amount to be paid after 1995 on the remaining amount of gratuity i.e. Rs. 62,167/- minus Rs. 28,601/- shall be paid with interest at the rate of Rs. 12% per annum till the same is paid. Respondent No. 1 shall pay cost of Rs. 20,000/- and respondent No. 4 shall pay cost of Rs. 10,000/- to the petitioner. Let all the payments be paid to the petitioner within a period of four weeks.
13. With these observations, writ petition stands disposed of. Rule is made absolute.