Soumen Sen, J.(Oral):- The Appeal Arose Out Of An Order Passed Bythe Learned Single Judge In A Writ Petition In Which An Ex-Employee Of Theappellant Has Filed A v. Director Of Inspection [Painting Andpublication] Income Tax And Another; Reported In [1994] 6 Scc 589 And Inthakur Kishan Singh [Dead] Vs. Arvind Kumar, Reporte

IN THE HIGH COURT AT CALCUTTACIVIL APPELLATE JURISDICTIONORIGINAL SIDE APO/31/2024WITH WPO/1881/2006IA NO: GA/2/2023 M/S. GARDEN REACH SHIPBUILDERS AND ENGINEERS LIMITEDVSSAMAR BIJOY BHOWMICK AND ORS BEFORE :-THE HON'BLE JUSTICE SOUMEN SEN -A N D-THE HON'BLE JUSTICE UDAY KUMARDATED : 4[th] April, 2024. -Appearance :Mr. L. K. Gupta, Sr. Adv.Mr. Ranjay De, Adv.Mr. Basabjit Banerjee, Adv.Mr. Adityajit Ahel Bose, Adv.…for appellant.Mr. Subir Sanyal, Sr. Adv.Ms. Sumitra Das, Adv.…for respondent no.1. Soumen Sen, J.(Oral):- The appeal arose out of an order passed bythe learned single Judge in a writ petition in which an ex-employee of theappellant has filed a writ petition praying, inter alia, for release of retiralbenefits along with interest. Indisputably, the writ petitioner retired from service on 31.1.2007.The appellant by a communication dated 8.2.2007 informed the writpetitioner that the retiral benefits would not be released in his favour sincehe has not vacated the official accommodation. However, the appellantreleased a sum of Rs.15,27,442.03 in favour of the writ petitioner on accountof the provident fund dues vide cheque no.156373 dated 1.2.2007 in the interregnum by a judgment and order dated 31.8.2012 passed by the SpecialJudge, CBI Court, Alipore, South 24 Parganas in case no. SPL 15 of 2001the petitioner was acquitted. We have been informed that the appeal ispending. However, the fact remains that the writ petitioner was not paidgratuity and arrears salary soon after his retirement or being acquitted bythe Special Judge on 31.8.2012. Mr. Subir Sanyal, learned senior counsel representing the writpetitioner has submitted that the alleged failure on the part of the writpetitioner to vacate the official quarter cannot be a ground to deny retiralbenefits and in this regard he has relied upon the decision of the Hon’bleSupreme Court in R. Kapur vs. Director of Inspection [Painting AndPublication] Income Tax and Another; reported in [1994] 6 SCC 589 and inThakur Kishan Singh [Dead] vs. Arvind Kumar, reported in [1994] 6 SCC 591. Mr. Gupta, learned senior counsel appearing on behalf of theappellant has submitted that the learned single Judge has failed to take intoconsideration that by reason of failure on the part of the appellant tosurrender the quarter in time huge expenditure has to be incurred by theappellant towards the rent and the appellant was unavailable to provideaccommodation to its officials. It is submitted that even on the basis of ratiodecidendi of the decisions relied upon by Mr. Sanyal, the petitioner is notentitled to interest on the arrears salary. We have carefully read the order passed by the learned single Judge.It appears that by the office order dated 20.12.2006 the respondent hadcategorically stated that since judicial/criminal proceeding against thepetitioner was in progress the appellant had decided that the gratuity shouldbe paid to the writ petitioner on conclusion of the proceeding subject to thedecision of the appropriate court or authority. Subsequently, however, after the petitioner retired from service by an office order dated 8.2.2007 thepetitioner was, inter alia, informed as follows : “Since ‘No Dues’ certificate has not been issued by the AdministrativeDepartment due to your failure to vacate Company’s accommodation,Finance Department cannot be advised to release your terminalbenefit at this stage as per the Company’s Rules except accumulatedbalance in Provident Fund for which you are requested to contact PFSection of the Company.” the petitioner retired from service by an office order dated 8.2.2007 thepetitioner was, inter alia, informed as follows : “Since ‘No Dues’ certificate has not been issued by the AdministrativeDepartment due to your failure to vacate Company’s accommodation,Finance Department cannot be advised to release your terminalbenefit at this stage as per the Company’s Rules except accumulatedbalance in Provident Fund for which you are requested to contact PFSection of the Company.” In terms of the aforesaid order the appellant had, however, disbursedthe provident fund dues as payable to the writ petitioner on 1.2.2007. Sincethen, the proceeding initiated against the writ petitioner under theprovisions of section 7 and section 13[2] of the Prevention and CorruptionAct, 1988 was finally decided by a judgment and order passed by the SpecialJudge, CBI Court, Alipore on 31.8.2012 whereby the writ petitioner as anaccused person was acquitted in view of section 248[1] of CriminalProcedure Code from the charges for the offences punishable under sections7 and 13[2] read with section 13[1][d] of the Prevention and Corruption Act,1988. The learned single Judge noticing that the Conduct, Discipline andAppeal Rules do not allow the appellant to withhold such terminal benefitsand allowed the writ petition relied upon paragraph 11 of the judgment in R.Kapur [supra] in which the Hon’ble Supreme Court was pleased to observeas follows: “11. The Tribunal having come to the conclusion that DCRG cannotbe withheld merely because the claim for damages for unauthorisedoccupation is pending, should in our considered opinion, havegranted interest at the rate of 18% since right to gratuity is notdependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case inwhich the award of 18% is warranted and it is so ordered. The DCRGdue to the appellant will carry interest at the rate of 18% per annumfrom 1.6.1986 till the date of payment. Of course this shall be withoutprejudice to the rights of the respondent to recover damages underFundamental Rule 48-A. Thus, the civil appeal is allowed. However,there shall be no order as to costs.” The issued raised by Mr. Gupta, learned senior counsel in this appealis whether in the given facts and circumstances the writ petitioner would beentitled to interest on the arrears salary. We are of the view that Mr. Gupta,learned senior counsel is able to make out a case for payment of interest onthe arrears salary from the date of superannuation having regard to the factthat we have not find any plausible explanation from the writ petition for notreleasing the quarter after the writ petitioner had retired from service andreceived the provident fund dues. In our view, the statutory dues like provident fund, gratuity andpension cannot be equated with arrears salary. The payment of interest is anequitable remedy and depends upon various factors. In the given facts andcircumstances of the case, we are of the view that the writ petitioner may notbe entitled to any interest till July, 2019 when, ultimately, on the basis ofthe order passed by a learned single Judge the quarter was surrendered andhanded over to the landlord. The appellant, however, did not release thearrears salary after the flat was surrendered nor any proceeding wasinitiated for realization of any loss or damage suffered. At the same time, onecannot ignore the fact that the appellant retained the quarter for all theseyears. Under such circumstances, we modify the order passed by the learnedsingle Judge only to the effect that the writ petitioner shall be entitled tointerest on the arrears salary from August, 2019 till the date of actual payment along with gratuity and leave encashment @ 10% per annum. Thepayment of arrears salary and gratuity along with interest shall be paidwithin a period of eight weeks from the date of communication of this orderafter deducting a sum of Rs.2822/- as directed by the learned single Judge.All other observations and directions while disposing of the writ petition bythe learned single Judge remain undisturbed. Both the appeal and the application stand disposed of. I agree (SOUMEN SEN, J.) (UDAY KUMAR, J.) pkd.