IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 6081 of 2005
Taleshwar Narayan Petitioner
Versus
1. Bihar State Food & Civil Supplies Corporation Ltd.
through its Chairman-cum-Managing Director, Bihar, Patna
2. Chief of Claim, Bihar State Food & Civil Supplies Corporation
Ltd, Bihar, Patna Respondents
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CORAM: The Hon'ble Mr. Justice D.G.R. Patnaik
For the Petitioner: Mr. Sumit Gadodia, Advocate
For the Respondents: Mr. Satyender Singh, Advocate
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5. 26.04.2010
Heard counsel for the parties.
2. From the rival submissions of the learned counsel for the parties, it appears that
during the petitioner’s tenure in service as go-down Incharge under the respondent Bihar
State Food & Civil Supplies Corporation Ltd, certain go-down shortage was detected.
As per the contention of the learned counsel for the petitioner, though godown
shortage to the extent of 5%, was permissible on account of natural phenomena, as
acknowledged by the respondent Corporation in general, but in the case of the petitioner,
this acknowledgment was withdrawn and the amount of go-down shortage was assessed
and sought to be recovered from the petitioner. The total amount of go-down shortage
was thereafter, recovered from the salary of the petitioner during the tenure of his
service. Rather, a sum of Rs. 1,731.35 paise was also recovered from the petitioner’s
salary. Thereafter, the petitioner had retired on 31.01.2005 and he had demanded
payment of his retiral dues, but when it was not forthcoming promptly, the petitioner felt
constrained to file a writ application before this court. While disposing of the writ
application, this court had directed the respondents to pay the retiral dues to the
petitioner within the period stipulated in the order.
Instead of complying with the directions, the respondents have not only withheld
the petitioner’s Gratuity to the extent of Rs. 2,21,992/-, but have also withheld his
unutilized Earned Leave to the extent of Rs. 1,05,120/- and on the contrary, have raised a
demand against the petitioner for payment of interest on the amount of go-down shortage
at the rate of 18% per annum till 2003-04 and further interest at Bank lending rate till
2005-05.
3. The petitioner has challenged the impugned order dated 27.6.2005 (Annexure-2)
passed by the Respondent No. 2 whereby, the aforesaid demand for payment of interest
has been made. The petitioner has also prayed for a direction upon the respondents to
forthwith release and pay the amount of his Unutilized Earned Leave and Gratuity and
also to refund him the excess amount of Rs. 1,731.35 paise which was recovered from
his salary.
4. Assailing the impugned order, Shri Sumeet Gadodia, learned counsel for the
petitioner would submit that having recovered the entire amount of the purported go-
down shortage from the petitioner’s salary and having not raised any demand for
payment of interest at the time of recovery, the petitioner is neither liable to pay any
further amount by way of interest and neither is the respondent entitled to claim and
recover any such amount from the petitioner. To buttress his argument, learned counsel
would refer to and rely upon a judgment of this court passed in the case of Nageshwar
Singh vs. Bihar State Food & Civil Supplies Corporation Ltd and others vide WPS No.
210 of 2008 and another judgment of the Apex Court passed in the case of Bihar State
Food & Civil Supplies Corporation Ltd vs. Durga Prasad Sinha vide Civil Appeal No.
3504 of 2007.
5. Counsel for the respondents, on the other hand, would submit that against the
order passed by the Single Judge of this court in the case of Nageshwar Singh (Supra), a
LPA was filed by the respondents which is presently pending before this court vide LPA
No. 93 of 2009.
As regards the judgment of the Supreme Court referred to by the learned counsel
for the petitioner, learned counsel for the respondents would argue that the ratio decided
in that case, would not be applicable in the facts of the present case, in view of the fact
that in the aforesaid judgment, the Supreme Court had observed that the demand for
payment of interest from the retiral dues of the employee, without initiating any inquiry
against the employee, is illegal. In the present case, an inquiry was initiated after
retirement of the petitioner after issuing him a show-cause notice and thereafter, a
decision was taken on the basis of the findings of the Inquiry Report.
6. In the case of Nageshwar Singh (Supra), the Single Bench of this court while
considering an identical issue, has held that the demand for payment of interest, which
was not raised earlier at the time of recovery of the principal amount, cannot be raised by
the employer from the retired employee. The ratio decided by the Single Bench of this
court court in the case of Nageshwar Singh (Supra), squarely applies to the facts of the
present case also.
7. Learned counsel for the respondents concedes that though, a LPA has been filed
by the respondents against the judgment of the Single Bench, passed in the case of
Nageshwar Singh (Supra), but no order of stay of the operation of the impugned order
passed by the Single Bench, has been obtained by the respondents.
8. Applying the ratio decided in the case of Nageshwar Singh (Supra), I am of the
opinion that the impugned order dated 27.06.2005 (Annexure-5) is unsustainable in law
and is therefore, quashed. The respondents, who have admittedly retained the amount of
Unutilized Earned Leave and Gratuity and also have realized the excess amount of Rs.
1,731.15 paise from the petitioner’s salary, are directed to pay the aforesaid amounts to
the petitioner within one month from the date of this order, failing which the payable
amounts shall carry interest at the rate of 9% per annum commencing from the date of
the petitioner’s retirement, till the date of final payment.
9. With these observations, this writ application is disposed of.
Let a copy of this order be given to the counsel for the respondents.
(D.G.R. Patnaik, J)
Ranjeet/