Central Administrative Tribunal - Delhi
Vibhuti Jauhari vs Delhi Development Authority Delhi on 24 November, 2023
1
OA No.3997 of 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.3997/2018
Reserved on: 13.10.2023
Pronounced on: 24.11.2023
Hon'ble Mr. Anand Mathur, Member (A)
Smt. Vibhuti Jauhari
W/o Late Shri Vinay Jauhari,
D/o Sh. Madan Mohan Seth,
Ro G-5, Major P. Acharya Block,
Grafikon Paradise Society,
N.I.B.M. Road, Kondhwa,
Pune - 411 048.
(Maharashtra)
...Applicant
(By Advocate: Shri Ajesh Luthra)
Versus
1. Delhi Development Authority through
Vice Chairman,
Block -B, 1st Floor,
Vikas Sadan,
New Delhi - 110 023.
2. The Director,
Personnel Branch-I,
Delhi Development Authority,
Block-B, 3rd Floor,
Vikas Sadan,
New Delhi - 110 023.
...Respondents
(By Advocate: Smt. Sriparna Chatterjee)
2
OA No.3997 of 2018
ORDER
The applicant has filed the present OA seeking the following relief:
"(a) Quash and set aside the impugned order dated 10.09.2018 (Annexure A/1) in toto and impugned order dated 12.03.2018 (Annexure A/2) to the limited extent, whereby pension and other terminal benefits have been denied to the applicant;
(b) Direct the respondents to determine and release leave encashment, gratuity and pension/commutation of pension to the applicant w.e.f. 06.11.2015;
(c) Determine and grant an amount equal to the balance Child Care Leave of the applicant;
(d) According all consequential benefits;
(e) Award interest @ 15% p.a. from the dates due till the payments are released;
(f) Award costs of the proceedings; and
(g) Pass any order/relief/direction(s) as this
Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicant."
2. Learned counsel for the applicant stated as under:-
2.1 The applicant, who was appointed as an Assistant Architect with the respondents in the year 2000, was confirmed on the said post w.e.f. 26.06.2001.
Subsequently, she was promoted as Deputy Director (Architect) on 23.10.2002.
2.2 Due to illness of her husband coupled with certain other family circumstances, the applicant submitted 3 OA No.3997 of 2018 applications for voluntary retirement between 04.03.2011 and 11.03.2011, but the respondents, vide order dated 23.05.2011, informed her that since she had not completed 10 years of qualifying service, she was not eligible to apply for voluntary retirement. Meanwhile, on 14.07.2011, the respondents certified that she had completed 10 years of service on 26.06.2011.
2.3 On 15.02.2012, though the applicant applied for Child Care Leave (CCL) for one year and nine months, she was sanctioned the said leave for nine months only, vide order dated 29.03.2012. During the CCL period, she again tendered a notice for voluntary retirement on 27.09.2012, which was declined by the respondents.
2.4 Aggrieved, the applicant filed OA No.1170/2013 before this Tribunal, which was dismissed vide order dated 17.04.2014. Against the said order, she preferred RA No.165/2014, which also stood dismissed by this Tribunal, vide order dated 19.08.2015.
2.5 During pendency of the aforesaid RA, the applicant was issued a Show Cause Notice on 19.05.2015 by the respondents proposing her termination from service. As the applicant was a confirmed employee, she could not have been terminated from service on account of any misconduct 4 OA No.3997 of 2018 including absence from duty. Hence, she submitted her reply to SCN on 09.06.2015. However, the respondents terminated her services vide order dated 06.11.2015. 2.6 According to Regulation 30(A) of DDA Conduct, Disciplinary and Appeal Regulations, 1999 [hereinafter referred to as DDA Regulations, 1999], such an action is permissible against temporary employees only. However, for purposes of imposing a major penalty of dismissal or removal from service, action can be taken under Regulation
25. Hence, the action of the respondents in terminating the services of the applicant is bad in law and against the aforesaid regulations.
2.7 Though the termination of the applicant was bad in law, yet, without raising any issue on the legality or otherwise of her termination, she submitted an application dated 23.11.2015 for clearance of her dues, i.e., release of gratuity, GPF accumulation, leave encashment and other pensionary/terminal benefits.
2.8 On 12.03.2018, the respondents released the amount of Gratuity and GPF accumulation, but other pensionary/terminal benefits were denied to her. The applicant submitted a representation dated 07.08.2018 followed by a reminder dated 03.09.2018 for grant of 5 OA No.3997 of 2018 pension and other retirement benefits including leave encashment etc., which was rejected by the respondents vide order dated 10.09.2018.
2.9 In support of her claim, the applicant has taken the following grounds:-
(i) On termination, her past ten years' service has been forfeited whereas dismissal or removal entails forfeiture of service and not Termination;
(ii) Regulation 23 of DDA Regulations, 2009 specifies that Termination shall not amount to be a penalty within the meaning of this Rule.
Moreover, as per Rule 26 of CCS (Pension) Rules, resignation entails forfeiture of entire past service, yet it has been held that if an employee resigns from service after rendering such length of service, which otherwise entitles him/her to pension, resignation shall not entail forfeiture of service and pension would still be admissible to him/her.
(iii) Admittedly, the applicant has rendered more than 10 years of service with DDA and she has not even resigned from service, she is therefore entitled to pension and other retirement benefits. 6 OA No.3997 of 2018
3. Per contra, the respondents have filed a counter affidavit stating that while working as Deputy Director (Arch), the applicant had applied for voluntary retirement vide letters dated 04.03.2011 and 11.03.2011 with a request to provide all benefits as per rules including 50% pension on completion of ten years of qualifying service. Subsequently, she withdrew her application for voluntary retirement vide letter dated 15.04.2011. 3.1 She had applied for CCL for one year nine months, but she was granted 9 months leave upto 24.12.2012 vide letter dated 13.12.2012. She again applied for voluntary retirement w.e.f. 25.12.2012 giving three months' notice with a request to grant her earned leave for 33 more days w.e.f. 25.12.2012 to 26.01.2023 and CCL w.e.f. 27.01.2013 to 20.01.2014.
3.2 The applicant was intimated vide office order dated 17.01.2014 that she had applied for extension of CCL already availed w.e.f. 02.04.2012 to 24.12.2012 without the approval and sanction of the competent authority. Hence, she was directed to join her duty within a week's time. She applied for voluntary retirement vide letter dated 25.09.2012 giving three months' notice. The said request was also rejected vide letter dated 19.03.2013 as she did 7 OA No.3997 of 2018 not fulfill the condition of qualifying service required as per rules.
3.3 Office memos dated 11.07.2013 and 08.11.2013 had been served upon the applicant directing her to join duty within a week's time but she did not turn up and continued overstaying on unauthorized leave. In her reply to SCN received on 10.02.2014, she stated that till her case of voluntary retirement is decided by the Tribunal, extension of CCL upto 15.02.2015 in continuation of the leave already sanctioned upto 24.12.2012 may be granted. Again, vide office orders dated 01.04.2014 and 09.06.2014, she was directed to join her duty but she neither gave a reply nor joined duty.
3.4 Meanwhile, OA No.1170/2013 filed by the applicant had been dismissed by this Tribunal vide order dated 17.04.2014 and even RA No.160/2014 filed by her against the said order also stood dismissed on 19.08.2015. 3.5 She did not fulfill the criteria of minimum qualifying service of 20 years to be eligible for voluntary retirement. She was continuing on unauthorized leave for more than two years. SCN dated 19.05.2015 was issued to the applicant asking her to explain as to why her services should not be terminated as per Regulation 30-A (c) of DDA 8 OA No.3997 of 2018 Regulations, 1999. Since the applicant had not completed 20 years of qualifying service, she was not entitled to be considered for grant of pension. However, request for granting of service gratuity had been considered by the respondents and granted the same to the applicant along with GPF interest as approved by FM/DDA.
3.6 The respondents have also filed an additional affidavit, more or less reiterating the contentions raised in the counter affidavit.
4. The applicant filed a rejoinder controverting the averments made in the counter affidavit and reiterated that in view of fact that she, being a permanent employee and upon her abrupt termination, is entitled to pension and other terminal benefits.
5. Learned counsel for the applicant filed written synopsis reiterating more or less similar averments as made in the OA. It has been stated therein that qualifying service is forfeited if a penalty of dismissal or removal is inflicted whereas the same is not forfeited in the case of penalty of compulsory retirement. Moreover, three major penalties contained under Rule 30 ibid are three different modes of cessation of service under Regulation 23 and in consonance with Article 311 of the Constitution of India 9 OA No.3997 of 2018 and can be inflicted only after holding major penalty proceedings. Whereas termination under Regulation 30(A) is a mode of cessation of service of a regular employee without attaching any stigma and without holding major penalty proceedings and is not a penalty, and thus obviously provided under a different chapter of rules separately from the chapter of punishment. 5.1 It has been further stated that pension is admissible for qualifying service of less than 20 years but more than 10 years as per Rule 49 (2) of CCS (Pension) Rules. The respondents have omitted to consider Rule 50 of CCS (Pension) Rules which provides for Gratuity upon completion of 05 years of qualifying service. As per DoP&T decision dated 20.09.2003, even temporary government servant having less than 10 years' service are eligible for gratuity whereas the claim of the applicant has been rejected without any rhyme or reasons, which act of the respondents is violative of the rules on the subject.
6. Heard Sh. Ajesh Luthra, learned counsel for the applicant, Smt. Sriparna Chatterjee, learned counsel for the respondents, perused the material available on record as also the citations relied upon by learned counsel for both the parties.
10OA No.3997 of 2018
7. Services of the applicant had been terminated by Vice Chairman, DDA vide Order No.F.9(118)/2000-PB-I/2898 dated 06.11.2015 (Annexure A-10) in exercise of powers conferred upon him under Regulation 30(A) of DDA Conduct, Disciplinary and Appeal Regulations, 1999. The said Regulation reads as under:-
REGULATION - 30 A "Notwithstanding anything contained to the contrary in any other regulation the service of any employee may be terminated by the Authority if;
(a) His/her post is abolished;
(b) He/she is declared on medical ground to be
unfit for service in the authority, or
(c) He/she remains on unauthorized absence
for 60 days or more.
Explanation:
1. In the cases of (a) and (b) above, the service shall be terminated after giving three months notice to a permanent employee and one month notice to a temporary employee or pay in lieu thereof in both the cases.
2. In the case of (c) above, services of an employee shall be terminated if he fails to explain his conduct satisfactory within 15 days from the date of receipt of the Show Cause Notice by him. The management shall be empowered to take decision without resorting to further inquiries.
3. (a) The decision in case of (c) above would be taken only with the prior approval of the competent authority.
(b) The reason for the decision would be recorded in writing."
As may be seen from Explanation (1) of the Regulation that it applies equally to permanent as well as temporary 11 OA No.3997 of 2018 employees, the only difference being the period of notice required in each case.
7.1 On 25.08.2023, learned counsel for the respondents stated as under:-
(i) Learned counsel for the respondents contends that the term 'termination' is exclusive to the disciplinary rules of DDA and does not have a counterpart under the CCS (CCA) Rules. If that be so, what is the authority for DDA to formulate such rules?
(ii) She also states that rules are silent about the payment of settlement/retirement dues to the employees whose services are terminated under Rule 30(a). If that be so, which retirement dues including pension would such an employee be entitled to?
(iii) In terms of point no. (ii) above, since there are no rules on the subject, how was gratuity paid to the applicant and not the remaining dues? She responded by saying that gratuity was paid to the applicant in terms of the direction given by this Tribunal in OA No. 1170/2023. A perusal of the said order reveals that no such specific direction had been given to pay gratuity."
7.2 The Tribunal, noting the aforementioned points, directed the learned counsel for the respondents to clarify the same by filing an additional affidavit. Accordingly, she filed an additional affidavit stating that under Section 3 of DD Act, 1957 and Section 57 [1(C)] of the said Act and with prior approval of the Central Government, DDA Conduct, Disciplinary and Appeal Regulations, 1999 had been framed. Services of the applicant had been terminated as per the provision of Regulation 30A (C) of DDA Regulations, 12 OA No.3997 of 2018 2009 which provides special procedure in certain cases and services of an employee can be terminated by the authority, if -
(a) His/her post is abolished;
(b) He/she is declared on medical ground to be unfit for service in the authority, or
(c) He/she remains on unauthorized absence for 60 days or more.
On the other hand, penalties of compulsory retirement, removal or dismissal have been provided for, under regulation 23, of DDA Rules, 1999.
7.3 Insofar as release of gratuity without there being any rule to this effect is concerned, it has been stated in the aforesaid additional affidavit that the same had been considered in compliance of the Tribunal's directions given in the earlier OA filed by the applicant that "it would be appropriate if the request of the applicant is considered by the respondent for her release from her employment, with whatever monetary benefits possible which may come to her way being allowed and that the case of the petitioner deserved sympathetic consideration but under the extant rules". The competent authority, interpreting the relevant rules, decided to pay the Service Gratuity vide order dated 20.02.2018 which also contains the reason for not paying the pension.
13OA No.3997 of 2018 7.4 It is seen that three grounds have been provided for making use of the said regulation and as per explanation (i) beneath the regulation, three months' notice to permanent employee and one month's notice to a temporary employee or pay in lieu thereof in both the cases, have been prescribed. It has also been mentioned in the counter affidavit and the additional affidavit filed on behalf of the respondents that Regulation 30A is unique to DDA. However, the provisions of these clauses are dealt in a different way in terms of CCS (CCA) Rules. For instance, in case the post is abolished, normally an attempt is made to adjust the employee working against that post in some other similar post. Similarly, if a person is declared medically unfit for service then he is allowed to retire and is entitled to pension as per his eligibility. On the third issue regarding unauthorized absence, it is taken to be an act of indiscipline and is dealt by following the due procedure prescribed under the CCS (CCA) Rules of issuing a chargesheet, holding an enquiry etc. and then imposing one of the penalties prescribed under the said rules. 7.5 What is glaringly unacceptable in the instant case is that although DDA has made its unique rule but has failed to formulate any rule regarding retirement dues payable to such employees whose services are 14 OA No.3997 of 2018 terminated under Regulation 30A. The stand taken by learned counsel for the respondents that the applicant has been given Service Gratuity on the basis of direction of this Tribunal in an earlier OA filed by her, is also not acceptable because on an issue like retirement dues, a government organization cannot subjectively decide as to which dues are to be paid to different employees. The rules need to be very clearly laid down and cannot be decided on a cases to case basis. There has to be a defined set of rules especially in view of the fact that the rule regarding 'Termination' is unique to DDA.
7.6 On this issue, it is also seen that although not spelt out in clear terms, yet the nature of 'Termination' in DDA regulations ibid is somewhat similar to compulsory retirement under the CCS (CCA) Rules. However, under CCS (CCA) Rules, a person who is compulsorily retired, is entitled to all pensionary benefits as per his eligibility and does not suffer any loss on this count whereas in DDA, no rule has been made regarding payment of any retirement/terminal benefits payable to staff whose services are terminated under Regulation 30A.
7.7 The aforementioned position clearly shows that Regulation 30-A of DDA Rules, 1999 does not correspond 15 OA No.3997 of 2018 to any such rule under CCS (CCA) Rules. It is also a fact that the protection granted to government employees under Article 311 of the Constitution of India cannot be denied by DDA and the said rule does not conform to the provisions of the said Article.
7.8 Incidentally, there was a similar rule in the Railways which was applicable to only temporary employees as per which in case of unauthorized absence, services of a temporary employee could be terminated treating it to be a case of 'Deemed Resignation'. However, the same was later on amended by the Railways so as to provide for the benefit of prescribed procedure laid down in the Discipline and Appeal Rules for Railway servants. For the sake of clarity, the rule and its correction are extracted hereunder:-
"Government of India (Bharat Sarkar) Ministry of Railways (Rail Mantralaya) No.E(P&A)I-84/CPC/LE-3 dated 23.3.1985 Sub: Removal from service of temporary Railway employees for unauthorized absence - amendment to Rule 732-RI. Ref: Replies in response to D.O. letter of even number dated 19/20.6.84.
In the light of the response to this Ministry's letter of even number dated 19/20.6.84, the Ministry of Railways have reviewed the provisions contained in Note (2) below Rule 732-RI.
2. Keeping in view the provisions contained in Rule 2014-RII and current judicial pronouncements on this subject, it would not be correct to remove a temporary servant from service on grounds of "deemed resignation". For reasons of unauthorized absence. Temporary railway servants also should be afforded an opportunity to show cause under the Discipline and Appeal Rules, before they are removed from service for unauthorized absence.16 OA No.3997 of 2018
3. Accordingly, the President is pleased to decide in exercise of powers conferred by proviso to Article 309 of the Constitution of India, that Note (2) under Rule 732 of the Indian Railway Establishment Code Volume I shall be amended as in the advance correction slip No.419-RI enclosed, from the date of issue of this letter.
4. These instructions will not, however, apply to casual labour who have been granted temporary status and perquisites applicable to temporary railway employees, but have not been absorbed in regular temporary establishment. In their cases existing rules and orders will continue to remain in force."
CORRECTION SLIP Advance Correction Slip No.419-RI "Note (2) - Where a temporary railway servant fails to resume duty on the expiry of the maximum period of extra-ordinary leave granted to him or, where he is granted a lesser amount of extraordinary leave than the maximum amount admissible, and remains absent from duty for period which, together with the period of extra-ordinary leave granted, exceeds the limit upto which he could have been granted such leave under sub-rule (I) above, he shall, unless the President in view of the exceptional circumstances of the case otherwise determines, he removed from service after following the procedure laid down in the Discipline and Appeal Rules for Railway Servants." 7.9 In the conspectus of the facts and circumstances of the case mentioned above and the pleadings on record, I am of the considered opinion that Rule 30A of DDA Regulations, 1999 needs to be discontinued/suitably amended so as to make it Constitutionally valid in terms of Article 311 of the Constitution of India. The feasibility of making the rules in tune with the time tested CCS (CCA) Rules, 1965 also needs to be explored. I, therefore, feel that the ends of justice would be met by directing the respondents as under:-
17OA No.3997 of 2018
i) The respondents are hereby directed to review the validity of Regulation 30-A of DDA Regulations, 1999 by taking into account the provisions of Article 311 of the Constitution of India, as applicable to permanent employees under the relevant provisions of CCS (CCA) Rules. If it is found that the term 'Termination' needs to be continued, then it should be made Constitutionally valid especially keeping in view Article 311 of the Constitution of India;
ii) The respondents are further directed to decide on the dues that would become payable to employees whose services are terminated under Regulation 30A. The current situation where it is decided on a case to case basis is totally unacceptable. While deciding on the dues that would become payable, the provisions regarding compulsory retirement under CCS (Pension) Rules may be kept in view;
iii) The existing Regulation 30A of DDA Regulations, 1999 shall not be applied to any case till such time the policy is revised, as directed herein above;18 OA No.3997 of 2018
iv) Normally, whenever a rule is amended or a new rule is framed, the same becomes applicable with prospective effect but in the peculiar circumstance of the instant case, the new set of rules to be framed would be applicable to the applicant in the present OA also; and
v) On completion of the exercise, as ordained above, within a period of eight weeks, the case of the applicant shall be decided under the new rules to be framed/modified.
7.10 The instant OA stands disposed of in the aforementioned terms.
8. No order as to costs.
(Anand Mathur) Member (A) /na/