1. The State of Jharkhand 2. The Secretary, Education Department, Khunti, P.O. and P.S v. 1. Saihun Barla, son of Late Mangra Barla, resident of village – Bera Kenduda
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 293 of 2023 1. The State of Jharkhand 2. The Secretary, Education Department, Khunti, P.O. and P.S. ----- Khunti, District Khunti 3. The Director, Education Department, Khunti, P.O. and P.S. Khunti, District Khunti 4. The District Superintendent of Education, Khunti, P.O. and P.S. – Khunti, District – Khunti. … … … Appellants Versus 1. Saihun Barla, son of Late Mangra Barla, resident of village – Bera Kenduda, Manoharpur, P.O. – Dumirta, P.S. Rajnandpur, District – West Singhbhum at Chaibasa. 2. The Principal, S.P.J. Mission Primary School, Kain Banki, P.O. – Sode, P.S. Rania, District – Khunti, Jharkhand … … … Respondents ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI ------- For the Appellants For the Respondents : Mr. Manish Mishra, GP – V : Mr. Raunak Sahay, AC to GP - V : Order No. 05/Dated 23rd April 2024 ------ 1. The instant intra-court appeal, under clause 10 of the Letters Patent, is directed against the order/judgment dated 11.01.2023
Legal Reasoning
passed by the learned Single Judge of this Court in W.P(S) No. 2579 of 2020. 2. Before proceeding further it needs to refer herein that the Co- ordinate Bench has issued notice upon respondent both on issue of limitation and admission vide order dated 22nd December 2023. 3. Notice issued under the both processes. 4. It has been reported by the office vide office note dated 06.02.2024 that as per the service report receipt of the Registrar, Civil Court, Chaibasa, notice has been served upon respondent personally, Page 1 the copy of the said service report is available on record. The said respondent has not appeared through Vakalatnama. 5. This Court considering the fact that the notice has been received by concerned respondent personally even though he has chosen not to appear, therefore, proceeding to examine the issue on merit as well as on issue of limitation and the appeal both. I.A. No. 6298 of 2023 6. The instant interlocutory application has been filed for condoning the delay of 80 days. 7. This Court taking into consideration the fact and the reasons assigned in the instant interlocutory application is of the view that the delay in filing the appeal needs to be condoned, so that the issue on merit be decided. 8. 9. Accordingly, the interlocutory application is allowed. In consequence thereof 80 days delay in filing the appeal is, hereby, condoned. 10.
Decision
I.A. No. 6298 of 2023 stands disposed of. L.P.A. No. 293 of 2023 Facts 11. The order/judgment dated 11.01.2023 passed by the learned Single Judge of this Court in WP(S) No. 2579 of 2020 by which the learned Single Judge has allowed the writ petition by holding the writ petitioner entitle for grant of interest on delayed payment of leave encashment amount at least from June, 2015 till the date of payment with a further direction upon respondents to calculate the interest at the rate of 7% per annum from June 2015 till the date of payment and the Page 2 same has been directed to be paid within three months from the date of receipt of copy of this order. 12. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated read as under: - The petitioner was appointed on 01.07.1993 as an Assistant teacher in S.P.J. (C.N.I.) Mission Primary School, Kain Banki, P.O. Sode, P.S. Rania, District Khunti, Jharkhand and after rendering more than 20 years of satisfactory service retired on 31.07.2013. After retirement, the petitioner has been granted all the retiral benefits except the salary amount of unutilized earned leave. After clearance of certificate, the respondent authorities have fixed the pension in the favour of petitioner vide memo No. 1500 and released the Gratuity amount vide memo No. 1501, but respondent authorities have not paid the unutilized earned leave despite several representation. Being aggrieved with the non-action of the respondents concern the petitioner preferred the writ petition being W.P.(S) 2579 of 2020. During pendency of said writ petition, the Superintendent of Education had sanctioned the Leave Encashment amount in favour of the petitioner vide Memo No. 204 dated 29.03.2022. The learned single judge has allowed the said writ petition vide order dated 11.01.2023 by holding the writ petitioner entitle for grant of interest on delayed payment of leave encashment amount at least from June, 2015 till the date of payment with a further direction upon respondents to calculate the interest at the rate of 7% per annum from June 2015 till the date of payment and the same has been directed to be paid within three months from the date of receipt of copy of this order. 13. Hence this appeal. Page 3 14. It is evident from the factual aspect that the respondent/petitioner was working as Assistant Teacher in the Minority aided School i.e. SPJ (CNI) Mission Primary School, Kain Banki, Rania, Khunti and superannuated from the service on 31.07.2013. The pensionary benefit has been paid to him but the leave encashment was not paid in his favour. 15. The issue regarding entitlement of the leave encashment as to whether it is to be paid to the Assistant Teacher has already been considered by this Court in the case of Mariyam Tirkey vrs. State of Jharkhand & Ors. reported in 2014(1) JLJR 465 wherein ratio has been decided that the teachers working in the minority aided institutions have also been held to be entitled for leave encashment. 16. The said judgment was pronounced on 03.01.2014, and the same was questioned before the Hon’ble Apex Court by filing Special Leave Petition being SLP Civil No. 20606-20607/2014, which was also dismissed vide order dated 15.12.2014. 17. The respondent/writ-petitioner has made claim for payment of leave encashment amount. The same has not been given on the ground that the day when the respondent/writ-petitioner has retired there was no adjudication of issue of entitlement of the leave encashment. 18. The claim of the payment of leave encashment since has not been addressed, hence the petitioner has preferred writ petition being W.P.(S) No. 2579 of 2020, wherein, the learned single Judge while allowing the writ petition vide order dated 11.01.2023, has passed the following direction: - “7. Considering the aforesaid judgment and the peculiar facts of this case, I hold that petitioner is entitled for grant of interest on delayed payment of leave encashment amount at least from June 2015 till the date of payment. The respondents are Page 4 directed to calculate the interest @ 7% per annum from June 2015 till the date of payment and will pay the same within three months from the date of receipt of copy of this order.” 19. The said order is under challenged in this appeal. Submission of the learned counsel for the appellant 20. The learned counsel appearing for the State-appellant has submitted that order to the effect by holding the writ petitioner entitled for 7 % interest on the delayed payment cannot be said to be proper due to the reason that the entitlement of interest itself has not been decided, but learned Single Judge without taking into consideration the aforesaid fact, since has passed the order as the same is not sustainable in the eye of law. Analysis 20. We have heard the learned counsel for the State-appellant and gone through the judgment passed by the learned Single Judge as available in the impugned order. 21. Here the admitted fact is that the petitioner had superannuated from service on 31.07.2013. The issue of leave encashment finally been adjudicated by delivery of judgment on 03.01.2014 in the case of Mariyam Tirkey vrs. State of Jharkhand & Ors. (Supra) wherein, it has been held that the teachers of Minority Aided Institutions are also entitled to receive the benefits of the leave encashment. 22. The further admitted fact is that the judgment in the case of Mariyam Tirkey vrs. State of Jharkhand & Ors. (Supra) although was pronounced on 03.01.2014 deciding entitlement of leave encashment to be paid in favour of the teachers of Minority Aided Institutions. But the leave encashment has not been encashed in the monetary term up to 29.03.2022 in favour of the respondent/petitioner. Page 5 23. The question herein is that when the State has taken the ground regarding the non-adjudication of the entitlement of leave encashment which even though has been decided on 03.01.2014 then why about 8 years has been taken by State in disbursing the amount and if the decision has been taken for disbursement of the leave encashment amount in favour of the petitioner after 8 years then question arises who is at fault in non-disbursing the said benefit to the petitioner. 24. Law is well settled so far as the issue of payment of interest is concerned i.e. State has failed in disbursing the amount then attributability will be upon the State and in that view of the matter, the State will have to compensate the litigant concerned by making payment of interest. However, the matter would have been different if the State would be in a position to establish the fact that delay not attributable to the State, rather, it is attributable to the concerned litigant. 25. The Hon’ble Apex Court in the case of Vijay L. Mehrotra v. State of U.P. reported in (2001) 9 SCC 687, has observed that the retiral benefits, should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement itself. Further, it has been ordered in the aforesaid judgment that if there is any delay showing no reason of justification for years together a direction has been passed directing the respondent to pay the retiral benefits along with the simple interest with effect from the date of retirement till the date of payment. For ready reference the relevant paragraphs of the aforesaid judgment are being quoted as under 26. Further the Hon’ble Apex Court in the case of D.D. Tewari (Dead) through legal representatives v. Uttar Haryana Bijli Vitran Nigam Limited, (2014) 8 SCC 894 has been pleased to direct for making Page 6 payment of interest @ 9% on the delayed payment of pension and gratuity on the ground of delay of making payment of the retiral dues. 27. The Hon’ble Apex Court in the aforesaid judgment has taken into consideration the ratio laid down in State of Kerala v. M. Padmanabhan Nair, (1985) 1 SCC 429 wherein the Hon’ble Apex Court has reiterated his view holding that “Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.” 28. Since this Court, has reached to the conclusion that there is no fault lies on the part of the writ petitioner, rather laches lies on the part of the respondents /appellants and as such, the fact is apparent as per the material available on record that there is delay in making payment of the leave encashment amount to the writ petitioner and as such, the writ petitioner/respondent is entitled for interest component on the length of delay. 29. This Court while adverting to the factual aspect of the instant case has found that although the entitlement was decided by this Court in the case of Mariyam Tirkey vrs. State of Jharkhand & Ors. (Supra) in which the judgment was pronounced on 03.01.2014 but even then, the monetary benefit in consequence of the leave encashment has not been paid fairly for a period of about 8 years that too without any reason. 30. In such circumstances, the direction has been passed by the learned Single Judge accepting the claim of the writ petitioner holding her entitle for leave encashment along with the interest at the rate of 7% per annum, which according to our considered view cannot be said to be faulted. Page 7 31. This is for the reason that the issue of attributability of causing delay has not been casted by the State upon the petitioner rather as per the admitted fact that the delay in making payment of leave encashment amount is upon the State. 32. Hence, applying the judgement as referred hereinabove that the learned Single Judge if has directed for disbursement of the amount of leave encashment along with the interest at the rate of 7%, the same suffers from no error. 33. In consequence thereof, the instant appeal stands dismissed. 34.. Pending interlocutory applications, if any, also stands dismissed. (Sujit Narayan Prasad, J.) (Arun Kumar Rai, J.) Umesh-Abhishek/- Page 8