Central Administrative Tribunal - Allahabad
Mahendra Pratap Singh vs Union Of India Through The Secretary on 20 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ALLAHABAD this the 20th day of March , 2013 ORIGINAL APPLICATION NO. 387 of 2011 HONBLE MR. SHASHI PRAKASH, MEMBER-A Mahendra Pratap Singh, S/o Shri Pradeep Singh, R/o Village & Post Office Birpur, District - Kannauj. Applicant. V E R S U S 1. Union of India through the Secretary, Ministry of Communication, Dak Bhawan, New Delhi. 2. The Post Master General, Kanpur Region, Kanpur. 3. The Superintendent of Posts, Fatehgarh Division, Farrukhabad. . . . . . . . . . . . . Respondents Present for the Applicant: Sri Pankaj Srivastava Present for the Respondents: Smt. Poonam Singh O R D E R
By way of the instant original application filed under section 19 of Administrative Tribunals Act 1985, the applicant has prayed for direction to the respondents to release amount of gratuity of the applicant with 18% interest per annum.
2. The facts of the case are that aggrieved with the action of the respondents for recovery of D.A from the pay of the applicant he filed Original Application No. 460/2005 praying for a direction to the respondents for refund of recovered amount alongwith 18% interest. That O.A was allowed on 06.11.2008 and the respondents were directed to refund the amount already recovered from the applicant (Annexure A-1). The matter went up to the contempt proceeding and ultimately in compliance of the order dated 06.11.2008 the respondents handed over a cheque to the applicant and on that account the contempt proceeding was dropped on 19.11.2010 (Annexure A-2). The applicant retired from service on 31.12.2009. Thereafter as the respondents withheld the amount of gratuity of the applicant he made a representation to the respondents on 19.03.2010 (Annexure A-3). As the respondents did not pay any heed to the representation of the applicant, he filed the instant original application on the ground that the respondents have no authority to withhold the gratuity as per the provisions of CCS (Pension) Rules. It is averred in the O.A that the action of the respondents is illegal, arbitrary and bad in law. In support of his contention, learned counsel for the applicant has placed reliance upon a judgment of Honble Apex Court in the case of State of Jharkhand Vs. Uma Prasad 2009 (16) SCC 767.
3. In the Counter Reply on behalf of the respondents it has been stated that the applicant, who is ex-service man pensioner, was appointed as GDS Branch Post Master on 04.01.1979 and he took over the charge of the post on 05.01.1979. He was getting dearness relief on his pension and also received D.A while he was working as GDS Branch Postmaster form 01.07.1986 to 17.07.1997. It is averred that D.A to the ex-serviceman pensioner was not admissible as per the instructions contained in D.G (Posts), New Delhi letter No. 14-26/87-PAP dated 09.12.1988 and the same is admissible w.e.f. 18.07.1997 as per the instructions contained in DOP & PW OM No. 45/73/97-8 & PW (G) dated 02.07.1999 (Annexure CA-1). Therefore, the applicant was over paid D.A w.e.f. 01.07.1986 to 17.07.1997 and the said amount was ordered to be recovered from the pay and allowances of the applicant at the rate Rs. 500/- per month. It is also alleged in the Counter Affidavit that the applicant being the In-charge of Post Office did not deduct the amount of recovery and received whole amount of pay and allowances which resulted occurrence of a difference of Rs. 43,060/- in cash balance in the post office where the applicant was posted. It is further stated that one Shri Kanhaiya Bux Singh, Ex. GDS Branch Postmaster, Aslatabad, who was one of the applicant in O.A No. 460/05, agreed to deduct the disputed amount of Rs. 23,380/- from his retiral dues and he has been paid all his retiral dues after adjusting Rs. 23,380/-. Similarly, the applicant was also paid his retiral dues to the tune Rs. 61,865/- after deducting Rs. 43,060/- . The applicant has already received the cheque of that amount on 19.11.2010.
4. Heard learned counsel for either sides and perused the pleadings on record.
5. Learned counsel for the applicant argued that pursuant to the direction of this Tribunal dated 06.11.2008 in O.A No. 460/2005 the retiral benefit to the applicant was partly released and an amount of Rs. 43,060/- was deducted by the respondents from his gratuity, which is not permissible in law. He argued that deduction made from the gratuity by the respondents was highly arbitrary, illegal and it should be refunded to the applicant. In this regard learned counsel for the applicant placed reliance upon a judgment of Apex Court in the case of State of Jharkhand Vs. Uma Prasad (2009) 16 Supreme Court Cases 767 where the court had ordered for releasing death-cum-retiral benefit accrued in favour of the husband of the respondent in that case.
6. Smt. Poonam Singh appearing on behalf of respondents reiterated the points mentioned in the Counter Affidavit and argued that as per the instructions issued by the DOP dated 02.07.1999 an employee is not entitled to claim double D.A. In the instant case the applicant was not only receiving D.A in the capacity of Branch Post Master to which he was selected as an ex-service man, but also continued to draw D.R on his pension as an ex-service man to which he was not entitled. Therefore the difference of D.R, which he had drawn on his pension as an ex-service man and D.A drew in the capacity of B.P.M, was calculated and the amount came to Rs. 43,060/- and this amount was deducted from his gratuity at the time of his retirement. Learned counsel went on to submit that the applicant has already been paid Rs. 61,865/- towards retiral dues after adjusting Rs. 43,060/- through cheque, which was handed over to him in court and on that account the contempt proceeding was dropped on 19.11.2010. Learned counsel also drew attention to the case of one Shri Kanhaiya Bux Singh, who had similarly drawn D.A against the post of BPM as well as D.R against his pension as ex-service man. When this error was detected he agreed to get the excess amount adjusted from his retiral dues. Learned counsel therefore, contended that the deduction of amount in question from the gratuity of the applicant was in accordance with rules.
7. I have considered the rival submissions. The short controversy to be decided in this case is that, whether any recovery made from the gratuity of a retired employee is legally tenable. It is a settled position that an employee is not entitled for double DA/DR. In the instant case while the applicant has not alluded to this fact, it has been clearly brought out in the Counter Affidavit. It is also observed that in a similar case the respondents went on to recover the excess amount paid to the other person who had taken advantage of both D.A and D.R. In this regard it may be pertinent to refer to the ruling of the Apex Court in the case of Jarnail Singh Vs. Secretary, Ministry of Home Affairs and others (1993) 1 Supreme Court Cases 47, wherein the court has given a clarification in relation to Central Civil Services (Pension) Rules 1972. In the above case the Honble Apex Court has clearly held that conceptually pension includes gratuity and hence by way of punishment payment of gratuity could also be withheld under Rule 9 for recovery of loss sustained to the Government. It may be pertinent to refer that a perusal of the judgment cited by the learned counsel for the applicant in the case of State of Jharkhand Vs. Uma Prasad (Supra) shows that the facts of that case pertains to the recovery in the disciplinary proceeding which is totally distinguishable from the facts of the present case and the law laid down by the Apex Court in the above case is not applicable in the instant case.
8. From the facts of the case it is evident that the applicant had drawn D.R on his pension as an ex-service man to which he was not entitled as he was already drawing D.A in the capacity of B.P.M. Therefore, the respondents were well within their competence to deduct the amount so paid to him. Further mindful of the above ruling of the Apex Court, wherein it has clearly been held that the pension includes gratuity and recovery of loss accrued to the Government can be deducted from the gratuity, I do not find any infirmity in the action of the respondents.
9. In view of the observations made above I do not find any merit in the case and is dismissed accordingly. No costs.
(Shashi Prakash) Member-A Anand....
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7 O.A No. 387/11