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Central Administrative Tribunal - Delhi

Presently At vs Delhi Development Authority on 17 April, 2014

      

  

  

 Central Administrative Tribunal
Principal Bench
New Delhi

OA No. 1170/2013


  Order reserved on: 23.10.2013
                                   Order Pronounced on: 17.04.2014     

Honble Shri Sudhir Kumar, Member (A) 
Honble Shri Raj Vir Sharma, Member (J) 

Mrs. Vibhuti Jauhari
Deputy Director (Architecture)
Rohini E-Narela
H.U.P.W. D.D.A, Vikas Minar,
New Delhi-110 002

Presently at:
G-5, Major P. Acharya Block
Grafikon Paradise Society,
Nimbroad, Kondhwa,
Pune-411048
Maharasthra.						-Applicant

(By Advocate: Shri Sumit Kumar)

	Versus

1.	Delhi Development Authority
	Through the Vice-Chairman
	Vikas Sadan, New Delhi-110 0003.

2.	The Commissioner (Personnel)
	Delhi Development Authority
	Vikas Sadan, New Delhi-110 003.		-Respondents
(By Advocate: Shri Manish Garg)

O R D E R

Per Mr. Sudhir Kumar, Member (A):

The applicant is before us challenging the order dated 19.03.2013, whereby the respondents have rejected her request for voluntary retirement on the ground that she has not completed the age of 50 years as stipulated in FR 56 (k) and that she has not completed 20 years of qualifying service, which is the requirement as per Rule-48 A of CCS (Pension) Rules 1972. Her grouse is that the stand now taken by the respondents is contrary to the earlier letter dated 23.05.2011 (Annexure A-3) by which the similar request of the applicant had earlier been rejected, stating that she had not completed 10 years of minimum qualifying service for grant of voluntary retirement. The applicant has assailed the stand of the respondents to be contrary to the Honble Delhi High Courts judgment in Delhi Development Authority vs. Shri Kundan and Ors. in WP (C) No.4311/2003, judgment dated 05.04.2010, a copy of which she has annexed as Annexure A-6. She has submitted that in this judgment the Honble Delhi High Court had laid down the law that bodies like the Respondent-DDA are not bound by the Central Government Rules, and, therefore, they can have their own arrangements for permitting the employees to retire on voluntary basis, which has been her prayer in view of the peculiar family conditions through which she is going through.

2. The applicant was appointed as Assistant Architect DDA on 24.08.2000, confirmed on 26.06.2001, completed 10 years of service as on 26.06.2011, and had completed 40 years of age as on 26.01.2012. In between she had taken Extra Ordinary Leave from 20.11.2000 to 18.02.2001, and later from 20.11.2001 up to 11.07.2003. Her submission is that her husband is ill, residing in USA, and is a patient of Tuberculosis, and was admitted in USA Hospital for one and a half years from August 2011, and is still under observation and treatment, because of which, and her other family commitments towards her child, she had applied for voluntary retirement in the year 2011, which had been rejected by the respondents through Annexure A-3, as mentioned above. She had thereafter applied for Child Care Leave for 1 year 9 months, which also was sanctioned for 9 months. After having worked for 11 years 9 months and 1 day, the applicant sought for voluntary retirement from DDA services on 25.12.2012, and gave three months notice for that. Since that was not sanctioned, she had applied for extension of her Child Care Leave, consideration of which also was pending at the time of filing of the OA. She has relied on Paragraph-2, 9,10,11 &12 of the above cited judgment of the Honble Delhi High Court in DDA vs. Shri Kundan and Ors. (supra), in which the Honble High Court has held as follows:-

2. Mr. Bhupesh Narula counsel for the petitioner DDA in W.P.(C) No.5343/2004 has argued that the DDA is neither a factory, mine, oilfield, plantation, port or railway company within the meaning of Section 1(3)(a) of the Gratuity Act, nor a shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in Delhi, within the meaning of Section 1(3)(b) nor has it been notified under Section 1(3)(c) of the Act and thus the provisions of the Act are not applicable. However, I find that this Court as far back as in Municipal Corporation of Delhi Vs. V.T. Naresh MANU/DE/0146/1985 held that merely because MCD is a local body or a local authority created by the Delhi Municipal Act, 1957 would not mean that it will not be an establishment? so long as it is so in relation to any law relating to establishment?. The MCD was thus held to be an establishment within the meaning of Section 1 (3) (b) of the Gratuity Act. The judgment of the single judge in V.T. Naresh was upheld by the Division Bench of this Court as recently as in MCD Vs. Rati Ram 153 (2008) DLT 284. What has been held qua MCD, applies equally to the petitioner DDA also. There is thus no merit in the said plea.

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10. Mr. Arun Birbal points out that though the judgment of the single judge in Delhi Jal Board has been upheld by the Division Bench vide judgment dated 13th January, 2009 in LPA No.780/2008 titled Delhi Jal Board Vs. Gulshan Kumar Oberoi, an SLP there against being SLP Civil No.4451/2009 is pending before the Supreme Court and contempt proceedings before this Court have been stayed. However as far as this Court is concerned, the said judgment is final and squarely applies to the petitioner DDA.

11. In view of the judgments and the discussion thereon herein above, the question of applicability of the Gratuity Act to employees of petitioner DDA is no longer res integra and the same is held applicable to the petitioner DDA. The writ petitions thus have to fail.

12. Before parting with the case I may notice that Mr. Arun Birbal at the commencement of hearing had also drawn attention to the fact that the respondents in these petitions had approached the authorities under the Gratuity Act after a long delay of 2 to 8 years and that the appeals preferred by the DDA against the order of the Controlling Authority had also been dismissed for the reason of having been filed beyond the time prescribed in the proviso to Section 7(7) of the Act. However Mr. Anuj Aggarwal, Advocate for the respondent in W.P.(C) No.6886/2003 has stated that in view of the legal question involved, he is not pressing the said plea and would like the matter to be decided on merits. The respondents in the other two petitions are ex parte. All the writ petitions are in the circumstances dismissed.

3. The Applicant has submitted that when it has been held that within the meaning of Section 1 (3) (b) of the Payment of Gratuity Act, 1972, the employees of DDA are not Government servants, the DDA cannot insist on the strict adherence to the CCS Rules for considering granting the Voluntary Retirement to its employees. She has thereafter sought shelter behind Rule-4 of Payment of Gratuity Act, 1972, and Rule-12 of Employees Provident Fund and Miscellaneous Act, 1952, and the Employees Pension Scheme of 1995, to submit that these provisions provide for a scope for voluntary retirement of an employee, like the applicant herein, after qualifying service of 10 years and age of 40 years. She has also sought shelter behind sub rule 11A inserted in Rule 37A of the CCS (Pension) Rules, 1972, in which it has been provided that a permanent Government servant absorbed in a public sector undertaking etc., who has been confirmed, shall be eligible to seek voluntary retirement after completing 10 years of qualifying service, with both the Government and the autonomous body put together, and shall be eligible for pro-rata pensionary benefits. She has submitted that when an erstwhile Government servant can be given such protection, there is no reason why such protection cannot be made applicable to an employee of the PSU/Public Autonomous Body, for whom 10 years qualifying service has been prescribed for the purpose of pension.

4. She had also relied upon the case of Shri Sudesh Kumar vs. Delhi Transport Corporation in WP (C) No.3461/2003 dated 12.12.2008, and another order passed by this Tribunal in TA No.1068.2009 Shri Karan Singh vs. Delhi Transport Corporation, which she had filed as Annexure A-8. She had, therefore, prayed that as it is not possible for her to resume her duties because of the compelling family circumstances, as she has already given her three months notice w.e.f. 25.12.2012, the respondents have erred in deciding against granting her voluntary retirement as prayed for. The case of the applicant rests on the submission that the Respondent-Authority has been constituted under Section 56 of the Delhi Development Act, 1957, which empowers the Central Government to frame the Rules for officers and employees of the DDA, and also the conditions under which the pension and Provident Funds etc. of such officers may be constituted, but that the Rules of the Government do not automatically apply. She has submitted that Rule-48 of the CCS (Pension) Rules, 1972, prescribes 20 years qualifying service for voluntary retirement only for the Government servants, and not for an employee of a PSU/Autonomous Body, for whom 10 years qualifying service has been prescribed under Rule 49 (2) b of CCS (Pension) Rules, 1972. She had, therefore, prayed for the following reliefs and Interim Reliefs:-

In the premises set forth above, the applicant most respectfully prays for the following reliefs:-

(a) Direct the Respondents to decide the application of the Applicant dated 25.9.2012 for voluntary retirement w.e.f. 25.12.2012 and grant the same to the Applicant; and

(b) To pass such other order/orders as this Honble Tribunal may deem just and proper in the facts and circumstances of the case.

Interim relief:

(a) The applicant may be directed to be considered on leave till the application for voluntary retirement is decided.

(b) To pass such other order/orders as this Honble Tribunal may deem just and proper in the facts and circumstances of the case.

5. In the counter reply filed on 22.08.2013, the respondents pointed out the Rules 26, 36,48 and 48-A of the CCS (Pension) Rules, 1972, to clarify the position in regard to retiring pension when a Government servant voluntarily leaves the service before attaining the age of compulsory retirement. It was submitted that voluntary retirement can be sought under Rule 48 A of the CCS (Pension) Rules after completion of 20 years of qualifying service, or after attaining the age of 50 years under FR-56(K) of the Fundamental Rules. It was submitted that Rules which the applicant is relying upon do not relate to the case of voluntary retirement, as they relate only for the purpose of pensionary benefits to retirement of a person prior to attaining the qualifying service of 33 years, and provide that if a person retires, but has not been able to complete the full length of 33 years qualifying service, he can be granted pro rata pension on the basis of length of his period of service. It was submitted that this Rule deals with the amount of pension, and prescribes pensionary benefits being made available pro rata even after 10 years of qualifying service of retiring Government servant on the date of his superannuation, but it does not relate to cases of voluntary retirements, as has been tried to make out by the applicant.

6. Even the Rule 37A of CCS (Pension) Rules, which the applicant has relied on, was pointed out to be applicable in respect of only those Government employees, who were later absorbed in PSUs/Autonomous bodies. It was submitted that since the applicant has joined the services in the DDA itself, and has continued in DDA, even the said Rule regarding absorbed Government employees does not apply in her case. It was, therefore, submitted that the applicants request was rightly rejected on 19.03.2013, based upon the relevant Rules.

7. As regards the judgment of the Honble High Court cited by the applicant, it was submitted that the same was case specific, and its ratio is not attracted to the facts and circumstances of the instant case. It was pointed out that the constitution of Pension and Provident Fund of the DDA is governed by Section 27 of the DD Act, 1957. It was further submitted that the Child Care Leave (CCL) of 9 months was also properly granted to the applicant by the Competent Authority, but that the applicant could not have applied for additional CCL in view of the Rule position notified through the DoP&T OM dated 18.11.2008 that CCL cannot be demanded as a matter of right, and an employee cannot proceed on CCL without first getting the said leave sanctioned.

8. It was further pointed out that while adopting its Pension and Provident Fund Rules under Section-27 of the DD Act, 1957, the DDA has adopted the Rules of the Central Government itself, and, therefore, the CCS Rules cited are fully applicable in her case. It was also submitted that the Voluntary Retirement Scheme operational in DTC, which the applicant has claimed to be applicable in her case also, cannot be automatically applied in DDA. It was, therefore, submitted that the applicant is not entitled to any relief, and the OA deserves to be dismissed with costs.

8. The applicant thereafter filed a rejoinder on 03.10.2013. It was reiterated that by its letter dated 05.10.1988, the Govt. of India has permitted Public Sector Enterprises and Undertakings to introduce Voluntary Retirement Scheme in respect of even those employees who have completed 10 years of service or 40 years of age. It was further submitted that through the Bureau of Public Enterprises (BPE, in short) OM dated 23.06.1988, it has been directed that Public Sector Enterprises can make Death-cum-Retirement Gratuity payable to their employees in cases of resignation/retirement after 5 years of qualifying service. It was further submitted that since the Honble Delhi High Court has in the case of Municipal Corporation of Delhi vs. V.T. Naresh MANU/DE/0146/1985 held that MCD was an establishment, what has been upheld qua the MCD applies equally to the DDA also.

9. It was submitted that the case of the applicant is that the DDA is not a Government, but rather it is an establishment, and Rules applicable to Public Sector Undertakings like Payment of Gratuity Act, 1972, & Employees Provident Funds & Miscellaneous Provision Act, 1952, are, therefore, applicable and binding on the Respondent-DDA and its employees. It was submitted that DDA has wrongly been taking the stand that it is not a Public Sector Undertaking, but that it is rather governed by the Government Rules. Thereafter, Rules concerning Public Sector Undertakings were cited, along with BPE Circulars, and it was submitted that DDA not being a Government, it cannot impose the condition of 20 years of qualifying service upon its employees, who were not Government servants, but that it should rather impose parameters, directions and instructions of the Government as applicable to Public Sector Undertakings, and issued by the Bureau of Public Enterprises. It was, therefore, submitted that parameters of the Government instructions in the case of Public Sector Undertakings, which prescribe 10 years qualifying service for seeking voluntary retirement, are applicable to DDA. Applicability of Rule-37A of the CCS (Pension) Rules 1972 was again pleaded.

10. It was further submitted that it is unthinkable that the rules could be such that employees with six months service in Government and 9.1/2 years service in DDA, can seek voluntary retirement after 10 years of their service, while a direct employee of the DDA, who has put in nearly 12 years of service in the DDA, will be asked to wait for another 8 years to seek voluntary retirement.

11. It was reiterated that a similar stand in the case of Delhi Jal Board has been rejected by the Honble Delhi High Court and later by the Honble Apex Court. Shelter was again sought behind Para-11 of the judgment in the case of DDA vs. Shri Kundan and Ors. (supra) to submit that DDA being an establishment, the parameters applicable to the bodies corporate, or Public Sector Undertakings, which provide for voluntary retirement after 10 years of service, have to be followed by DDA. It was, therefore, again prayed that the OA be allowed.

12. Heard. We have gone through the provisions of Delhi Development Act, 1957, and in particular Section-27 of the said Act, which was produced before us during the course of hearing. It is seen that Section-27 provides for Pension and Provident Funds, which states as follows:-

SECTION-27 PENSION AND PROVIDENT FUNDS (1) The Authority shall constitute for the benefit of its whole-time paid members and of its officers and other employees in such manner and subject to such conditions, as may be prescribed by rules, such pension and provident funds as it may deem fit.

(2) Where any such pension or provident fund has been constituted, the Central Government may declare that the provisions of the Provident Funds Act, 1925 (19 of 1925), shall apply to such fund as if it were a Government Provident Fund.

13. It is, therefore, clear that it is mandatory and obligatory on the part of the Authority to constitute and establish a fund towards pension and provident fund to be paid to the whole-time paid staff, including members, officers and other employees of the Authority. Constitution of the said fund has been left to the discretion of the Authority, with the limitation that it would be subject to the conditions that may be placed by the Central Government, by rules made in exercise of its powers under the provisions of the Act. This fund is provided to be constituted for the benefit of the staff of the Authority, and the Authority has to take care of all provisions of managing the pension and provident fund, while constituting the said funds.

14. The respondents had also relied upon the Delhi Development Authority (Salaries, Allowances and Conditions of Services) Regulations, 1961. It is seen that Regulation-6 of Regulations specifically provides regarding conditions of service as follows:-

6. Conditions of service- Unless expressly provided for in these regulations to the contrary, the general terms and conditions of service of officers and employees of the Authority shall be governed mutatis mutandis by the Fundamental and Supplementary Rules applicable to the Central Government officers and employees and by the Central Civil Service (Temporary Service) Rules, 1949, and by orders and decisions issued by the Central Government under these rules from time to time.

15. The learned counsel for the respondents had also relied upon the case of Union of India and others vs. R.C. Jain and Ors AIR 1981 SC 951 during the course of his arguments. Paragraphs-5, 7, 11, 13 & 14 of that judgment were pointed out before us. It is seen that in Para-14 it has been clearly held by the Honble Apex Court that Delhi Development Authority is a Local Authority, and, therefore, the provisions of the Payment of Bonus Act are not attracted. From a complete reading of the judgment, it is clear that while recognizing DDA to be an autonomous organization under the Government, the Honble Apex Court has not held it to be a Public Sector Undertaking, in the sense the learned counsel for the applicant had tried to argue before us, and the arguments of the learned counsel for the applicant based upon the guidelines of the Bureau of Public Enterprises would not hold much water.

16. We are further unable to accept the proposition that the case of the applicant is on all fours with the case of Delhi Development Authority vs. Shri Kundan and Ors. (supra). The Rule making powers have been assigned upon the DDA through the provisions of the Delhi Development Act, 1957, and, as was submitted rightly by the respondents, Section-27 of the said Act provides for the Authority to constitute for the benefit of its whole-time paid employees and other officers and members, such Pension and Provident Fund Rules as it may deem fit. Once the DDA has adopted the Conditions of Service of its employees to be governed mutatis mutandis by the Fundamental and Supplementary Rules, and the CCS (Temporary Service) Rules, 1949, and by other orders and decisions issued by the Central Government under these rules from time to time, as per Rule-6 of the Delhi Development Authority (Salaries, Allowances and Conditions of Services) Regulations, 1961, )already reproduced above), we cannot but hold that the provisions of FR 56K and Rule 48A of CCS (Pension) Rules, 1972 would be applicable to her case.

17. Though very valiant efforts were made by the learned counsel for the applicant to submit that the instructions issued by the BPE of Govt. of India, which are applicable to the Public Sector Undertakings and other such autonomous bodies coming under the BPE, should be made applicable to the case of the applicant, but this proposition cannot be accepted in view of the specific provision of Rule-6 regarding Conditions of Service of DDA employees, as per the DDA Regulations, 1961 cited above. We are, therefore, unable to accept the contention of the applicant in regard to a reduced time period of 10 years of qualifying service being made applicable to her case for seeking voluntary retirement.

18. However, this being a case of a genuine hardship of one of its employees, even though the applicant cannot be held to be entitled for grant of voluntary retirement under the relevant Rules, because of her not having completed 20 years of qualifying service, or not having crossed 50 years of age, 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. Her case deserves sympathetic consideration, but under the extant Rules, we are unable to grant any of the reliefs, as prayed for by the applicant in her OA.

19. In its judgment in the case of State of Tamil Nadu & Ors. vs. St. Joseph Teachers Training Institute and Anr. (1991) 3 SCC 87: JT 1991 (2) SC 343, it has been held by the Honble Apex Court that mere humanitarian grounds cannot form the basis for granting reliefs against the settled propositions of law, or contrary to law.

20. The OA is, therefore, rejected, but there shall be no order as to costs.

 (Raj Vir Sharma)					(Sudhir Kumar)
   Member (J)						  Member (A)

cc.