Central Administrative Tribunal - Delhi
Om Prakash vs Comm. Of Police on 6 April, 2023
1
OA No.1939 of 2021
Court No.6 (item No.28)
Central Administrative Tribunal
Principal Bench
OA No.1939/2021
Reserved on: 13.03.2023
Pronouncement on: 06 .4. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Om Prakash (Aged 73 Years)
Sr. Citizen, Gp. „C‟ (8920406675)
S/o X-16, Budh Vihar, Phase-I, New Delhi-48
(Serving life imprisonment in Central Jail,
Tihar Jai No.2,)
New Delhi-110064.
Applicant.
(Through Advocate: Sh. B.S. Jarial )
Versus
1. Govt. of Delhi through C.P. Delhi
Neew Delhi-110001.
2. Deputy Commissioner of Police (Security)
Vinay Marg, New Delhi-110021.
-Respondents
(Through Advocate: Mr. Anuj Kumar Sharma)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. The present Original Application has been filed by the applicant because of non-release of leave encashment due to him after his superannuation on 31.08.2008.2 OA No.1939 of 2021
Court No.6 (item No.28)
2. Brief facts of the case are that the applicant was working as Head Constable in Delhi Police. A criminal case was filed against him in respect of FIR No. 764/1980 under Section 302/34 and 330/34 of IPC. Vide order dated 2.2.1993, the learned Session Judge of Delhi convicted the applicant alongwith two others Head Constables and awarded a sentence of life imprisonment. The applicant filed an appeal before the Hon‟ble High Court of Delhi which was rejected vide its order dated 6.3.2009 and thereafter the applicant approached the Hon‟ble Supreme Court of India against the High Court order dated 6.3.2009. The Hon‟ble Supreme Court of India, vide its judgment dated 16.12.2015, dismissed his appeal in SLP No.4483/2009. Consequent upon the applicant‟s conviction in the aforementioned criminal case by the Learned Additional Session Judge, the applicant was dismissed from service vide order 4.1.2007 invoking the provisions of Article 311(2) of the Constitution of India. His appeal against the said order to the Appellate Authority was also rejected vide order dated 9.8.2007.
Being aggrieved, the applicant filed OA No.1755/2007 in the Principal Bench of the Tribunal 3 OA No.1939 of 2021 Court No.6 (item No.28) and the Tribunal vide its order dated 18.12.2007 ordered to reinstate him in service from the date of dismissal (4.1.2007) of the appeal by the applicant in the criminal case by the Hon‟ble High Court vide its judgment dated 4.12.2008. The respondent instated the applicant in service from the date of his dismissal vide order dated 27.09.2009. The applicant was deemed retired from service on attaining the age of superannuation, i.e., on 31.05.2008.
Consequent upon dismissal of the SLP by the Hon‟ble Supreme Court vide its judgment dated 16.12.2015, the respondents started the process to impose penalty of withholding his full pension and gratuity vide memo No. 27/08/2015 dated 21.09.2015. Finally by virtue of power vested under Rule 09 of CCS (Pension) Rules, 1972 imposed the penalty of withholding of 100% monthly pension and withholding 100% amount of gratuity. The applicant made a representation dated 2.2.2021 to the respondents for payment of leave encashment. However, the respondents have not so far released his leave encashment dues.
Being aggrieved, the applicant has filed the present Original Application seeking the following relief(s):- 4 OA No.1939 of 2021
Court No.6 (item No.28) i. Direct the respondents to immediately pay compound interest at the rate of 18% for the delay payment of leave encashment from the due date i.e. 01.06.2008, the date of retirement till the final payment is made ii. To Pass any such order or orders as may be deemed fit and proper by the Hon‟ble Tribunal in the facts and circumstances of the case.
3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
4. The main grounds taken by the applicant in his OA and the grounds reiterated by his counsel during the course of arguments is that there was no reasoned and speaking order passed by the competent authority under rule 39 (3) of the leave rules of CCS (Leave) Rules of 1972 for withholding the leave encashment dues of the applicant. Though Rule 39 (3) of CCS (Leave) Rules empowers the competent authority to withhold the payment of the leave encashment such 5 OA No.1939 of 2021 Court No.6 (item No.28) withholding of leave encashment should be carried out followed by due process of law and principal of natural justice.
5. The learned counsel for the applicant quoted the judgment of Delhi High Court in Government of Delhi and another vs. Premnath Manchanda in W.P.(C ) No.9394 of 2017, specifically in para 6 of the said judgment states that;
"it is undisputed that the respondent retired from service on 31.08.2010 on attaining the age of superannuation and that at the time of his retirement, or immediately thereafter, leave encashment was not released to him. There is also no dispute on the proposition that leave encashment can be withheld under Rule 39 (3) of CCS (Leave) Rules, 1972, if at the time of retirement, an employee is under suspension or disciplinary or criminal proceedings are pending against him. However, a reading of the said provision clearly shows that in order to withhold the leave encashment in whole or in part, the authority competent to grant leave has to pass an order specifically withholding the encashment, if in its view there is a possibility of some money becoming recoverable from the employee on conclusion of the proceedings against him."
6. Learned counsel for the applicant cited the rule 39 (3) of CCS (Leave) Rules, 1972, which is reproduced below:
"Rule 39: Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service (3) The authority competent to grant leave may withhold whole or 6 OA No.1939 of 2021 Court No.6 (item No.28) in part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any."
7. Learned counsel for the applicant further cited the decision in case of Dhir Chand vs. State of Haryana and ors of the Punjab and Harayana High Court in C.W.P No.27383 of 2013, wherein it was held that even dismissed employee cannot be denied leave encashment. It was ruled that leave encashment was a part of salary and could not be withhold even when the employee is dismissed from service.
8. The learned counsel for applicant further cited the judgment dated 09.01.2008 of Apex Court in S.K. Dua Vs. State of Haryana & Anr in Appeal (Civil) No. 184 of 2008 in para 11 it was held that:
" ...the fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well- founded that he would be entitled to interest on such benefits. If 7 OA No.1939 of 2021 Court No.6 (item No.28) there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of bounty is, in our opinion, well-founded and needs no authority in support thereof."
9. The learned counsel for the applicant further cited order dated 20.09.2011 of Coordinate Bench of the Tribunal in OA No. 1611/2011 in Brijendra Singh vs. Union of India and others; the order dated 19.09.2013 passed in OA No. 4109/2012 in Kamal Ram Meena vs. Union of India and others; the judgment dated 4.9.2012 passed in WP © No. 550/2012 by the High Court of Delhi in the case of Govt. of Delhi vs. Nand Lal Singh; the judgment dated 13.03.2012 passed in W.P.(C) No. 1227/2012 in case of Delhi Police vs. Balwant Singh by the High Court of Delhi which has relied upon the judgment of Apex Court in S.K. Dua Vs. State of Haryana & Anr (supra) 8 OA No.1939 of 2021 Court No.6 (item No.28)
10. The learned counsel for the applicant stated that in the instant case the respondents have reinstated the applicant in service vide order dated 27.9.2009 w.e.f. his date of dismissal i.e. 4.1.2007. Because of this order the applicant was retired honourably from service on 31.05.2008. In view of this, he was entitled for his retirement benefits. Though, because of pending judicial proceedings, the respondents imposed the penalty of forfeiting of 100% pension and gratuity vide order dated 20.6.2017, there was no such order regarding withholding his leave encashment. He further argued that rule 39(3) of the CCS(Leave) Rules, 1972 specifically mentions leave encashment can be withheld only if the competent authority is of the view that there is a possibility of some money becoming recoverable from the applicant on conclusion of the proceedings against him. As the judicial proceedings involved in criminal cases and there was no possibility of any pecuniary loss to the government and therefore there was no possibility of any recovery of money from the applicant, the respondent could not have withheld payment of his leave encashment after he was reinstated in service and retired as such on 31.05.2008. Moreover, there was no reasoned and 9 OA No.1939 of 2021 Court No.6 (item No.28) speaking order and no notice to the applicant for such withholding of leave encashment dues. In view of the judgments of the Apex Court and the order of Coordinated Benches of the Tribunal and the judgment of the Delhi High Court cited above, he prayed that the relief prayed by the applicant should be granted.
11. The learned counsel for the respondents stated that an amount of Rs. 1,30,276/- equivalent to the applicants leave salary on full pay in lieu of 298 days unutilized earned leave at applicants credite as on his date of retirement was sanctioned to the applicant vide order 16.9.2021. As regards to payment of interest on the leave encashment amount as arrived above, the counsel for the respondents stated that as per para 2 (f) of the decision of Government of India‟s Decision No.5 below rules 68 of CCS (Pension) Rules,1972, there is no rule for payment of interest on delayed payment of leave encashment. The said para 2 of Government of India‟s Decision No.5 below rules 68 of CCS (Pension) Rules,1972 reads as under:-
"In the matter of delayed payment of leave encashment, the Department of Personnel & Training in their note dated 2.8.99 has clarified that there is no provision under CCS (Leave) Rules for payment of interest or for fixing 10 OA No.1939 of 2021 Court No.6 (item No.28) responsibility. Moreover, encashment of leave is a benefit under the leave rules and not a pensionary benefit"
The counsel for the respondents stated that there is no basis for claiming interest on delayed payment of leave encashment of the applicant.
12. I have gone through the records of the case thoroughly and heard the arguments carefully. In the instant case it is admitted by the respondent that an amount of Rs.1,30,276 as leave encashment due to the applicant has already been sanctioned vide office order No. 15091-95/CR-XIII/SEC dated 16.09.2021. So there is no dispute regarding entitlement of leave encashment of the applicant and the main issue which remains is that the payment of interest on delayed payment of leave encashment dues of the applicant. From counter affidavit and pleadings by the counsel for the applicant it is not cleared that whether the amount of leave encashment as sanctioned by the respondents has been credited to the Bank account of the applicant.
13. As regards to entitlement of leave encashment and payment of interest there are several judgments of the Apex Court and the Coordinated Bench of the 11 OA No.1939 of 2021 Court No.6 (item No.28) Tribunal. In State of Kerala vs. M. Padmanabhan air, (1985) SCC 429, the Apex Court has held 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 stettlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till the actual payment."
14. The above decision has also been reiterated by the Apex Court in S.K. Dua Vs. State of Haryana & Anr (supra). Earlier the Apex Court in Deokinandan Prasad vs. the State of Bihar & Others (1971) 2 SCC 330, the Apex Court observed as under:
"3. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by Sub-article (5) of Article
19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.However, vide Forty-Fourth Constitutional Amendment Act, 1978, Clause (f) 12 OA No.1939 of 2021 Court No.6 (item No.28) of Article 19 (1) and Article 31 (1) being deleted and the validity of the same having been approved, it is no longer a Fundamental Right, yet it is a Constitutional Right in view of insertion of Article 300A in the Constitution under Chapter-IV (Right to Property) whereby no person can be deprived of his property save by authority of law."
15. Again, it was in D.S. Nakara & others vs. Union of India (1983)1 SCC 305; the Apex court endorsed the earlier view expressed in Deokinandan Prasad vs. the State of Bihar & Others (supra).In other words, in the case of Deokinandan Prasad vs. the State of Bihar & Others as well as in D.S. Nakara & others vs. Union of India; the Apex Court has recognized that pension was a right to property enshrined in the constitution of India. However after repeal of 19(1(f) and article 31 (1) of the Constitution vide Constitution (Forty Fourth Amendment ) Act, 1978, the right to property was no longer remained a fundamental right. It is still a Constitutional right as provided in Article 300A of the Constitution. The Apex Court in State of Jharkhand and others vs. Jitendera Kumar Srivastava & anothers in Civil Appeal No.6770 of 2013 has held that;
" it hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be terms as 13 OA No.1939 of 2021 Court No.6 (item No.28) "Law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the applicant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."
16. The aforementioned judgments of the Apex court are equally applicable for payment of retirement benefit like leave encashment. The Delhi High Court in GNCT of Delhi vs. Nand Lal Sing in WPC No. 5505 /2012 has held that:
"4. In view of the aforesaid, the respondents' action denying interest on delayed payment of retiral dues of the applicant for the reason of absence of any rule is not tenable. As a matter of fact, the payment of interest for delayed payment of retiral dues itself is in the nature of indemnification of the loss suffered by the applicant on account of wrongful deprivation of financial enjoyment of the dues to which he is otherwise entitled to in law. Admittedly, such interest is payable when delay is not attributable to the applicant in any manner. The respondents have not alleged any delay attributable to the applicant herein. Their only plea is that there is no provision in the rules providing for payment of such interest which plea is not sustainable in law in view of the Hon'ble Supreme Court judgment referred to above."14 OA No.1939 of 2021
Court No.6 (item No.28)
17. The above judgment quoted the judgments in the case of Government of NCT of Delhi vs. S.K. Srivastava in WPC No.1186 /2012 decided on 19.02.2012 and Delhi Police vs. Balwant Singh wherein the Apex court has held that interest on delayed payment of retiral dues, such as leave encashment amount and delayed payment of pension would be allowable to the retiring employee. In view of the aforementioned judgments, the Applicant is entitled for payment of interest on the delayed payment of leave encashment due to him. The contention of the counsel for the respondents is that OM No.38/64/98-P&PW(F) dated 5.10.1999 does not allow the interest on delayed payment of leave encashment due is not tenable in view of the Apex Court decision in State of Jharkhand other (Supra) wherein it was held that the executive instructions are not having statutory character and therefore cannot be termed as law within the meaning of Article 300A of the Constitution of India. On the basis of such circular which is not having the force of law, interest on delayed payment of encashment cannot be ruled out.
15OA No.1939 of 2021 Court No.6 (item No.28)
18. In view of the above, the following orders are given:-
(i). The respondents are directed to pay the sanctioned amount of leave encashment i.e. Rs.
1,30,276/- immediately to the applicant.
(ii). The respondents are directed to pay the interest on the delayed payment of aforementioned leave encashment at the applicable of GPF rates to the applicant for the period from the date of retirement till the date of delayed payment of leave encashment.
19. The OA is allowed with the aforesaid directions. There shall be no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /