Delhi District Court
Kamalesh Kumar Agrawal vs Airport Authority Of India & Ors. Page 1 ... on 26 April, 2012
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
CS No: 95/11
Unique case ID No.02405C0434822010
Kamalesh Kumar Agrawal
S/o Late Sh. R.S. Agrawal
R/o C84, Airport Apartments
Vikaspuri, New Delhi110018 ...Plaintiff
1. Airports Authority of India
Through its Regional Executive Director
North Region, Operational Offices,
Rangpuri, Gurgaon Road,
New Delhi110037
2. Airports Authority of India
Through its Chairman
Rajiv Gandhi Bhawan
Safdarjung Airport, New Delhi110043
3. Union of India
Through its Secretary
Ministry of Civil Aviation
Rajiv Gandhi Bhawan
Safdarjung Airport, New Delhi110003 ...Defendants
Date of Institution: 13.12.2010
Date on which judgment was reserved: Not reserved.
Date of pronouncing judgment: 26.04.2012
Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 1 of 27
CS. No.95/11
J U D G M E N T
1. This judgment shall decide the suit filed by the plaintiff.
Case of the Plaintiff
2. The plaintiff has stated in the plaint that he was employed with the defendant no. 1 Airports Authority of India and was posted at IGI Airport, New Delhi. The operation and management of the said Airport was handed over by Airports Authority of India to Delhi International Airport India Limited.
3. The Airports Authority of India introduced two schemes for its employees.
The first scheme was for redeployment whereas the other scheme was for voluntary retirement. The schemes were introduced by notification no.A. 60011/105/2000/IR&PP/Vol/II dated 09.03.2009. Employees were asked to opt for either of the schemes till 25.03.2009.
4. Under the redeployment scheme, employees were entitled to opt for any other airport for their employment. Their posting in the said airport was agreed to be treated as a transfer and transfer benefits were extended to them. It was also noted that employees of IGI Airport who do not opt for redeployment would be offered voluntary retirement.
5. The plaintiff initially did not opt for either of the schemes. He was transferred from IGI Airport to Maharana Pratap Airport, Udaipur by transfer order no. AAI/GM(P&A)/NR/REDEPLOYMENT dated 05.05.2009. The plaintiff wrote letter dated 08.05.2009 expressing his Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 2 of 27 CS. No.95/11 wish of opting for voluntary retirement scheme (VRS) with effect from 31.07.2009 and seeking advice whether he shall remain at Delhi or join at Udaipur and opt for voluntary retirement scheme from there. The plaintiff was instructed to first proceed to Udaipur. The plaintiff accordingly joined his duty at Udaipur. He also shifted his family to Udaipur. The plaintiff was paid Rs.12,621/ as TA/DA after adjusting the money that he had already been given.
6. It is further stated in the plaint that the voluntary retirement scheme was extended upto 31.07.2009. The plaintiff opted for voluntary retirement scheme from Udaipur Airport. It was accepted on the same day and the plaintiff was relieved from duty with effect from 31.07.2009.
7. The plaintiff then returned from Udaipur to Delhi. The plaintiff claimed TA/DA from the defendants. He was paid Rs.4,348/ through account payee cheque. The plaintiff was also entitled to one month's salary (Rs. 30,240/) as transfer grant to settle down at Delhi. The plaintiff claimed the aforesaid sum. He learnt that a circular dated 17.06.2009 had been issued by the defendant no. 2 in which it was stipulated that TA/DA and transfer grant shall not be paid to employees who have opted for voluntary retirement scheme after opting for redeployment.
8. The said circular was contrary to TA/DA Regulations of the defendants and was not circulated at Udaipur Airport till the plaintiff had been relieved from his duties. The said circular was also not applicable to the plaintiff. The defendant nos. 1 and 2 also recovered a sum of Rs.47,621/ Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 3 of 27 CS. No.95/11 from the plaintiff which had earlier been paid to him.
9. The plaintiff has claimed recovery of the aforesaid sum of Rs.47,621/.
Plaintiff has also sought recovery of balance sum of Rs.30,240/ as transfer grant for settling at Delhi from Udaipur. The plaintiff issued legal notice dated 04.09.2010 to the defendants for recovery of the said sum. The defendants failed to comply with the said notice.
10. The plaintiff has filed the present suit seeking recovery of a sum of Rs.
95,450/ under the following heads:
S.No Particulars Amount due
1 Transfer benefit as TA/DA from Delhi to Udaipur Rs.47,621/
2 Balance payment as TA/DA including transfer grant Rs.30,240/
payable for settling down from Udaipur to Delhi
3 Interest at the rate of 18% p.a. with effect from Rs.17,589/
01.08.2009 to 15.12.2010
Total Rs.95,450/
11. The plaintiff has also challenged letter dated 17.06.2009 and letter dated 07.08.2009 issued by the defendants to the extent to which they disentitle him to transfer and retirement benefits.
Case of the Defendants
12. After service of summons, written statement was filed by defendant nos. 1 and 2. They stated in their written statement that the plaintiff had been transferred by order dated 25.04.2009. It was admitted that the letter dated 08.05.2009 written by the plaintiff was received in the office of defendant Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 4 of 27 CS. No.95/11 nos. 1 and 2. It was however denied that the plaintiff was advised to take VRS after joining his duties at Udaipur. It is stated in the written statement of defendant nos. 1 and 2 that the plaintiff joined his duties as per the transfer order and redeployment policy. It is further stated that as per voluntary retirement scheme, 2009, an employee is entitled for transportation costs of personal effects and travelling costs of self and family members, as admissible. It is further stated in the written statement that the plaintiff is not entitled to one month's salary as transfer grant since the said benefit is not mentioned in the voluntary retirement scheme. It is further stated that employees are entitled to one month's basic pay and DA as transfer grant only on transfer under redeployment. The stand of defendant nos. 1 and 2 is that under the voluntary retirement scheme, the plaintiff is entitled for only the benefits which are mentioned therein which the plaintiff has already drawn.
13. It is further stated by defendant nos. 1 and 2 that on receipt of legal notice from the plaintiff, it was clarified by letter dated 23.12.2010 that the benefits for the employees who have opted for voluntary retirement scheme shall be governed by voluntary retirement scheme 2009 itself that had been circulated on 09.03.2009 whereas the benefits on transfer/redeployment are governed by paragraph no. 2 of the letter dated 09.03.2009. It was further clarified by letter dated 05.01.2011 that CHQ letter No. A60011/105/2000/IR&PP Vol. III dated 17.06.2009 stands modified to the extent of clarification by letter dated 23.12.2010. Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 5 of 27 CS. No.95/11 Accordingly, the plaintiff is entitled for TA/DA and transfer grant on transfer under redeployment. The defendant has asserted that benefits under voluntary retirement scheme are different from benefits under redeployment.
14. The defendants have further stated in the written statement that the plaintiff is only entitled to TA/DA and transfer grant on transfer but not on voluntary retirement. The interpretation of the plaintiff of the voluntary retirement scheme is contested by the defendants. According to the defendants, Clause 3.8 of the voluntary retirement scheme 2009 was applicable only to employees who opt for voluntary retirement from IGI Airport.
15. The defendants have further stated that they could not file reply to the legal notice since the matter had been referred to CHQ and a clarification was awaited. The defendants have also stated that the plaintiff is not entitled to interest since the matter was under consideration as to whether the amount claimed by the plaintiff is admissible.
16. Defendant no. 3 failed to file its written statement within the period prescribed by law. Its defence was struck off by order dated 08.09.2011. Issues
17. After completion of pleadings, issues were framed by order dated 08.09.2011 as follows :
1. Whether the plaintiff is entitled to recovery of the sum prayed for? OPP.
2. Relief.Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 6 of 27
CS. No.95/11
Plaintiff's Evidence
18. Plaintiff adduced evidence in support of his case. He examined himself as PW1. He tendered his affidavit Ex. PW1/A in evidence. In his affidavit, he deposed on the lines of the plaint. He identified and relied upon the following documents:
a. Notification dated 09.03.2009 as Ex. PW1/1;
b. Transfer order dated 05.05.2009 as Ex. PW1/2; c. Letter dated 08.05.2009 as Ex. PW1/3;
d. Order dated 05.05.2009 as Ex.PW1/4;
e. Order dated 30.07.2009 as Ex. PW1/5;
f. Letter dated 17.06.2009 Ex. PW1/6;
g. Letter dated 07.08.2009 as Ex. PW1/7;
h. Statement of Account as Ex. PW1/8;
i. Letter of acceptance and relieving of employees dated 29.07.2009 as Ex.PW1/9;
j. Letter dated 05.01.2010 as Ex. PW1/10;
k. Legal notice dated 04.09.2010 as Ex.PW1/11;
l. Speed post receipts as Ex.PW1/12 (colly);
m. AD cards as Ex. PW1/13 (colly);
n. Notice dated 09.03.2011 as Ex. PW1/14;
o. Speed post receipts as Ex. PW1/15;
p. Gazette Notification dated 4.07.2003 issued by Ministry of Civil Aviation as Ex. PW1/16.
PW1 was crossexamined and discharged.
19. Plaintiff then examined Mr. Ghanshyam Singh as PW2. Mr. Ghanshyam Singh deposed that defendant no. 2 had extended the period of operation of voluntary retirement scheme, 2009 till 31.07.2009. He also deposed about instructions given to the plaintiff regarding compliance of transfer Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 7 of 27 CS. No.95/11 orders. The witness was crossexamined and discharged. Plaintiff closed his evidence.
Defendants' Evidence
20. The defendants led evidence in support of their case. They examined Mr. Rajiv Duggal as DW1. DW1 tendered his affidavit Ex. DW1/A in evidence. In his affidavit, he deposed on the lines of the written statement. The witness was crossexamined and discharged. Defence evidence was closed.
Findings of the Court
21. Final arguments are heard. Record is perused. The issuewise findings are as under:
Issue No. 1
"Whether the plaintiff is entitled to recovery of the sum prayed for? OPP."
22. The onus to prove this issue is upon the plaintiff. The plaintiff has claimed recovery of a sum of Rs.95,450/ from the defendants. The said sum of money has been claimed from all the defendants.
23. At the very outset, it may be noted that the plaintiff is not entitled to recover the said sum of money from defendant no. 3. The defendant no. 3 is the Union of India. Defendant nos. 1 and 2 are Airports Authority of India. The plaintiff had been employed with the Airports Authority of India. The suit is aimed at recovery of contractual dues. The said contract had been entered into only with the Airports Authority of India. The Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 8 of 27 CS. No.95/11 Airports Authority of India is a statutory body having been established under the Airports Authority of India Act, 1994. As per Section 3 (2) of the Airports Authority of India Act, the said authority is a body corporate capable of being sued in its own name, though established by the Union of India. Since the Airports Authority of India is a separate and independent juristic entity, the Union of India cannot be saddled with its liabilities. Hence, the plaintiff is not entitled to recover any sum of money from the defendant no. 3 and the suit as against defendant no. 3 is liable to be dismissed.
24. The sum of Rs.95,450/ has been claimed under the following heads:
a. Rs. 47,621/ as transfer benefit for shifting from Delhi to Udaipur. b. Rs. 30,240/ as transfer grant for shifting from Udaipur to Delhi. c. Rs. 17,589/ as interest on the aforesaid sums at the rate of 18% p.a from 01.08.2009 to 15.12.2010.
The aforesaid sums of money have been claimed on the basis of invalidity of certain letters issued by the defendants. The claims are dealt with separately hereinbelow.
Transfer benefit for transfer from Delhi to Udaipur
25. The first head under which the plaintiff has claimed recovery of money is that of transfer benefit which includes TA/DA and transfer grant for shifting from Delhi to Udaipur. This sum is of Rs.47,621/. The said sum Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 9 of 27 CS. No.95/11 of money had earlier been paid by defendant nos. 1 and 2 to the plaintiff but was later recovered from the plaintiff. That it had been paid and later recovered has been admitted by the defendant nos. 1 and 2 in their written statement. The question that arises therefore is whether the plaintiff is entitled to receive the said sum of money.
26. It is the admitted case of the parties that the plaintiff had been employed with the Airports Authority of India. It is also admitted between the parties that schemes of redeployment and voluntary retirement were introduced by letter dated 09.03.2009. The said letter offered the employees the option of being redeployed or seeking voluntary retirement. This option was not exercised by the plaintiff till he was transferred. The transfer order was issued without any willingness for redeployment. It is not the case of the defendant nos. 1 and 2 that the plaintiff had sought redeployment and it is pursuant to the said redeployment that the transfer order dated 05.05.2009 had been issued. Since transfer order had not been issued on the basis of option of redeployment by the plaintiff, and redeployment policy had to be mandatorily opted for to be invoked, the transfer cannot be treated as being pursuant to the redeployment scheme. The order dated 05.05.2009 can only be considered as a simple transfer order under the regular terms of service. As such, the said transfer would be governed not by the redeployment scheme but by the Airports Authority of India (Travelling Allowance and Daily Allowance) Regulations, 2003. As per the said regulations, the plaintiff is entitled to Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 10 of 27 CS. No.95/11 daily allowance, travel allowance and transfer grant, besides other benefits. The plaintiff is entitled to claim the said allowances being admissible under the rules.
27. The defendant nos. 1 and 2 have not been able to demonstrate any ground to deprive the plaintiff of the said allowances and at the rate at which the plaintiff had claimed them. It is not the case of the defendant nos. 1 and 2 that the plaintiff is entitled to a lesser sum of money than that which is claimed for the transfer from Delhi to Udaipur. Hence, it is held that the plaintiff is entitled to recover a sum of Rs.47,621/ from the defendant nos. 1 and 2 as transfer benefits for his transfer from Delhi to Udaipur.
28. It is also pertinent to note that the plaintiff has, during the pendency of the suit, received the sum of Rs.47,621/ from the defendant nos. 1 and 2, as stated by the plaintiff in his examinationinchief. Since the said sum of money has been received by the plaintiff during the pendency of the suit, the plaintiff is not entitled to recover the said sum of money afresh by a decree under this suit. Hence the plaintiff is not entitled to a decree for recovery of the said sum of money.
Balance payment of transfer benefits for transfer from Udaipur to Delhi
29. The plaintiff has claimed recovery of a sum of Rs.30,240/ under this head. The case of the plaintiff is that this is a sum of transfer grant which was due to him for settling down from Udaipur to Delhi. According to the plaintiff, he had availed voluntary retirement and was therefore entitled to Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 11 of 27 CS. No.95/11 receive this sum.
30. On the other hand, the defendant nos. 1 and 2 have pleaded that the said sum of money is not payable to the plaintiff. The case of the defendant nos. 1 and 2 is that upon availing voluntary retirement under the Voluntary Retirement Scheme, 2009, the employees are entitled to only those benefits which are mentioned in the said scheme and no other. Hence the transfer grant which is payable to other superannuating employees is not payable to the plaintiff.
31. In order to evaluate the legal force in the rival contentions, it is imperative to examine the relevant provisions of law which govern the terms and conditions of service of employees of the Airports Authority of India. The Airports Authority of India had been constituted under the Airports Authority of India Act, 1994. Under Section 10 of the said Act, the Authority has been empowered to appoint officers and employees. As per Section 10 (2), each such employee is subject to the conditions of service laid down in regulations. Regulations have thus been framed. These include the Airports Authority of India (General Conditions of Service and Remuneration of Employees) Regulations, 2003. Regulation 12 of the said regulations is relevant. Regulation 12 (2) prescribes that an employee seeking voluntary retirement after the age of 50 years shall be entitled to gratuity as admissible. Regulation 12 (3) lays down that employees retiring between the age of 50 and 60 years shall be entitled to full retirement benefits. Regulation 12(4) stipulates that the authority shall be Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 12 of 27 CS. No.95/11 empowered to frame voluntary retirement schemes. From the above rules, it is clear that while the retiring employee is entitled to all retirement benefits, he may also seek retirement under voluntary retirement schemes. The said provisions give sanctity to voluntary retirement schemes framed by Airports Authority of India and clothe such schemes with the force of law.
32. The bone of contention between the parties is whether an employee who avails voluntary retirement under the scheme can claim benefits which are not prescribed by the scheme. I agree with the contention of the defendant nos. 1 and 2 that when an employee avails voluntary retirement under the special scheme, his compensation shall be only that which is admissible under the said scheme. The question that remains to be determined is whether the voluntary retirement scheme, 2009 makes provision for extending transfer grant to the retiring employee.
33. In my opinion, even under the Voluntary Retirement Scheme, 2009, an employee can claim, and is entitled to, transfer grant. The Voluntary Retirement Scheme, 2009 provides in clause 3.2 as under:
"The compensation under VRS will be in addition to the terminal benefits".
From the provision, it is abundantly clear that a person who is seeking voluntary retirement under the scheme shall be entitled not only to the compensation prescribed under the scheme but also "terminal benefits". The expression "terminal benefits" refers to payments due to the employee Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 13 of 27 CS. No.95/11 on cessation of employment. The provision negates the contention of defendant nos. 1 and 2 that the voluntary retirement scheme dispenses with grant of benefits which are admissible to other retiring employees.
34. Under Clause 3.8 of the Voluntary Retirement Scheme, 2009, the retiring employee is entitled to transfer benefits for himself and for his family. The benefits include transportation costs as admissible. Clause 3.8 is quoted herein:
"Transfer benefit for self and family by the entitled class where the employees intends to settle down after taking VRS. For this purpose the entitlement will include transportation costs of personal effect and travelling costs of self and family members as admissible."
The defendant nos. 1 and 2 have not disputed that the plaintiff is entitled to the transfer benefits prescribed in clause 3.8. (paragraph no.13 of the written statement). It is contended however by the said defendants that the transfer benefits under Clause 3.8 do not include transfer grant. This contention does not have force. The expression "transfer benefit" has not been defined under the scheme. In common parlance, transfer benefits include all the sums payable to the employee on account of his transfer. The intention of the Airports Authority of India, by engrafting the said provision, is that the retiring employee shall be treated to be under transfer for the purpose of computing benefits admissible to him. That being so, all benefits which are admissible to an employee on transfer are to be given to the employee who retires under the scheme. As per Regulation 13 of the Airports Authority of India (Travelling Allowance and Daily Allowance) Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 14 of 27 CS. No.95/11 Regulations, 2003, an employee is entitled to transfer grant on being transferred. The said grant has been mentioned as one of the benefits that one gets on being transferred. As such, it qualifies as "transfer benefit"
and is required to be given to the retiring employee as per clause 3.8. From the above, it is apparent that the plaintiff is entitled to receive transfer grant for settling down after availing voluntary retirement.
35. Even if it is assumed that the Airports Authority of India (Travelling Allowance and Daily Allowance) Regulations, 2003 is not applicable, there is other material to suggest that transfer benefits under clause 3.8 include transfer grant. What all would be included in the expression "transfer benefit" is indicated by clause 2 of the redeployment scheme. Clause 2 of the redeployment scheme shows transfer grant as one of the "transfer benefits". The redeployment scheme and the voluntary retirement scheme had been notified as parts of a single document by letter dated 09.03.2009. It appears that the Airports Authority of India had framed the two schemes simultaneously. The expression "transfer benefits" used in different parts of the notification can be construed to be holding the same meaning. In other words, the meaning of the said expression used in the latter part of the notification (containing the voluntary retirement scheme, 2009) can be drawn from the meaning elaborated in the former part of the notification (which contains the redeployment scheme). While doing so, support is drawn from the decision of Hon'ble Supreme Court in Central Bank of India Vs. Ravindra and Others, AIR 2001 SC 3095. In that case, Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 15 of 27 CS. No.95/11 the Hon'ble Court observed that "ordinarily, a word of expression used at several places in one enactment should be assigned the same meaning so as to avoid "a headon clash" between two meanings assigned to the same word or expression occurring at two places in the same enactment." The expression "transfer benefits" has been used in the redeployment scheme to include transfer grant. Hence the said expression used in the voluntary retirement scheme must also imply to include transfer grant. Since "transfer benefits" are admissible in voluntary retirement, the availing employee shall be entitled to receive transfer grant as one such benefit.
36. Clause 3.8 states that transfer benefit will "include transportation costs".
The expression "include" implies that the transfer benefit would include benefits other than transportation costs and that transportation costs is only one of those. The defendant nos. 1 and 2 have however tried to urge that the said clause implies that the only transfer benefit that the retiring employee shall get is the transportation costs. This is not the denotation of the expression "include". The interpretation of the provision canvassed by the defendant nos. 1 and 2 is not borne out from the said provision. Restricting transfer benefits to only the said transportation costs amounts to doing violence to the plain and literal meaning of the provision. From the abovesaid, it is clear that the retiring employee is entitled to transfer grant under the Voluntary Retirement Scheme, 2009. Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 16 of 27 CS. No.95/11
37. The defendant nos. 1 and 2 have contended that as per letter dated 17.06.2009 Ex. PW1/6 and letter dated 07.08.2009 Ex. PW1/7, the plaintiff is not entitled to transfer benefits namely TA/DA and transfer grant. The said contention is without merit. The reasons are as follows:
A. The letter dated 17.06.2009 and letter dated 07.08.2009 are not part of the Voluntary Retirement Scheme, 2009. They cannot therefore run contrary to the said scheme. They cannot recall a benefit granted or admissible under the said scheme. For recalling or withholding such benefits, the provisions of the scheme will have to be altered. This cannot be done under the garb of "clarification" since clarifications cannot be repugnant to the provisions sought to be clarified. B. The Voluntary Retirement Scheme, 2009 was framed by the Airports Authority of India. It has force of law since the power to frame such scheme is vested with the Airports Authority of India under Regulation 12 (4) of the Airports Authority of India (General Conditions of Service and Remuneration of Employees) Regulations, 2003, which in turn have been framed under Section 42 (2) (b) of the Airports Authority of India Act, 1994. Hence, the Voluntary Retirement Scheme, 2009, upon being framed by the Airports Authority of India, has the force of law and is binding. On the other hand, the letters dated 17.06.2009 and 07.08.2009 have not been framed by the Airports Authority of India and are not in the nature of a Voluntary Retirement Scheme. They have no legal sanctity. Individual officers of the Airports Authority of India, howsoever senior, Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 17 of 27 CS. No.95/11 are not competent to frame the scheme or to prescribe any deviation therefrom. It is only the Airports Authority which must do this. Hence the said letters are invalid and ultra vires. An entitlement derived from a scheme having statutory force can be withdrawn only by another statutory act. Even if the contents of the letters had been agreed upon, the agreement would have been void being contrary to law. The letters have no legitimacy and are not binding on the plaintiff. C. Even otherwise, letters dated 17.06.2009 and 07.08.2009 are not applicable to the plaintiff. It is stated in the said letters that TA/DA and transfer grant shall not be given to employees who have opted for transfer under the redeployment plan and have subsequently opted for voluntary retirement scheme. In the present case, admittedly, the plaintiff has never opted for redeployment under the redeployment plan. Hence the disentitlement to transfer benefits does not apply to the plaintiff. The redeployment scheme has been identified as Ex. PW1/1. It does not prescribe that those employees who do not avail voluntary retirement shall be considered for redeployment. Instead, it requires employees to positively and affirmatively opt for redeployment under the scheme. If one fails to opt for redeployment during the period of validity of scheme, he shall be offered voluntary retirement. In the present case, this affirmative action of opting for the redeployment scheme was never taken by the plaintiff. As stated in the plaint and as reiterated in the affidavit Ex. PW1/A, the defendant nos. 1 and 2 have also not pleaded in their written Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 18 of 27 CS. No.95/11 statement or stated in defence evidence that the plaintiff ever gave his option for redeployment. Since the plaintiff never opted for redeployment, the consequences mentioned in the letter dated 17.06.2009 Ex. PW1/6 and the letter dated 07.08.2009 Ex. PW1/7 do not apply to the plaintiff. On the pretext of the said letters, the defendant nos. 1 and 2 cannot withhold payment of TA/DA and transfer grant.
D. Plaintiff has stated in his affidavit Ex. PW1/A that the letter dated 17.06.2009 Ex. PW1/6 had not been circulated at the Udaipur Airport where he was posted, till the plaintiff had been relieved from his duties.
PW1 has not been crossexamined in this respect. The defendant has failed to establish through evidence that the said letter dated 17.06.2009 Ex. PW1/6 was brought to the notice of the plaintiff before he was relieved from duties. The letter cannot be binding on the plaintiff unless its terms are specifically brought to the notice of the plaintiff before his retirement. Had the letter been brought to his notice, the plaintiff might have chosen to continue in service. This choice ought to have been given to the plaintiff. Terms of voluntary retirement cannot be prejudicially modified with retrospective effect.
Similarly, the letter dated 07.08.2009 Ex. PW1/7 had been issued after the plaintiff had already retired. The terms of voluntary retirement and the benefits admissible cannot be changed retrospectively after voluntary retirement has already been availed. Hence, the said letter also cannot be used by the defendant nos. 1 and 2 to withhold TA/DA and transfer grant. Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 19 of 27 CS. No.95/11 While holding so, I draw support from the decisions of Hon'ble Supreme Court in the case of State of U.P vs. Jogendra Singh (1998) 1 SCC 449 and V. Kasturi vs. Managing Director, State Bank of India (1998) 8 SCC 30. In these cases, the Hon'ble Supreme Court held that liberalized provisions relating to retiral benefits introduced after the employee's retirement cannot be availed of by the said employee. By corollary, any curtailment of retiral benefits introduced after the retirement would not apply to the retired employee to his detriment.
38. Ld. Counsel for defendant nos. 1 and 2 has urged that the plaintiff is not entitled to transfer grant for his transfer from Udaipur to Delhi since it was not necessary at all and the original place of posting of the plaintiff was at Delhi. This contention is not tenable. The plaintiff had gone to Udaipur not out of his own volition but under compulsion. This compulsion had been created by the defendant nos. 1 and 2 themselves by issuing the transfer order. Hence, the plaintiff cannot be faulted for the said transfer to Udaipur.
The stand of the defendant nos. 1 and 2 and the measures adopted by them have been inconsistent. On one hand, employees of IGI Airport were offered the option of availing either redeployment or voluntary retirement. They were entitled to exercise this option till 31.07.2009. Yet, before closure of the last date of giving one's option, on 05.05.2009 itself, the defendant nos. 1 and 2 directed the plaintiff to join his duties at Udaipur. This had been done prior to the plaintiff exercising either option. Unless Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 20 of 27 CS. No.95/11 the plaintiff opts for redeployment, he could not have been transferred. Yet, the transfer order was issued. Further, on 08.05.2009, when the plaintiff exercised his option and chose voluntary retirement with effect from 31.07.2009, the defendant nos. 1 and 2 ought not have insisted on his transfer to Udaipur. Yet, as stated by PW1 in his affidavit Ex. PW1/A and as corroborated by PW2 Ghanshyam Singh in his examinationinchief, the officials of the defendant nos. 1 and 2 insisted that the plaintiff shall join his duties at Udaipur. In view of the exercise of option of voluntary retirement, the defendant nos. 1 and 2 ought to have recalled the transfer order in writing. Not having done so, the plaintiff had no option but to join his duties at Udaipur. Even if the contention of the defendant nos. 1 and 2 that their officials had never verbally instructed the plaintiff to join his duties at Udaipur is accepted as true, then too, by virtue of existence of, and failure to recall, the transfer order dated 05.05.2009, the plaintiff had no option but to join his duties at Udaipur. This is besides the fact that the defendant nos. 1 and 2 have failed to produce any evidence and particularly the best witness Mr. J.C. Wadhwa to support its contention that such verbal instruction were never given. Not only this, the plaintiff was allowed to join his duties at Udaipur and was allowed to continue to function there till 31.07.2009. When the defendant nos. 1 and 2 already knew that the plaintiff had opted for voluntary retirement, if they did not want the plaintiff to proceed to Udaipur, they should have recalled the transfer order or refused to allow the plaintiff to join his duties at Udaipur Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 21 of 27 CS. No.95/11 or to function there. Yet, none of this was done. This implies that the defendant nos. 1 and 2 had no objection to the plaintiff seeking voluntary retirement from Udaipur and had no objection if all transfer benefits are extended to the plaintiff as provided under the Voluntary Retirement Scheme.
39. The defendants have contended in their written statement that the plaintiff was not entitled to transfer benefits in view of the clarifications made by letters dated 23.12.2010 and 05.01.2011. This contention is rejected outrightly since the said letters dated 23.12.2010 and 05.01.2011 have not been filed by the defendants with their written statement. In order to rely upon a document, a party has to at least place it on record and then prove it in accordance with law. Unless the document is filed, its contents cannot be relied upon as per Sections 64 and 91 of the Evidence Act. Contents of a document can only be proved by producing the document. Oral evidence regarding contents of document is inadmissible. Moreover, it is not the case of defendant nos. 1 and 2 that the said letters have been lost or stolen. The testimony of DW1 Rajiv Duggal regarding the contents of letters dated 23.12.2010 and 05.01.2011 is inadmissible. This is besides the fact that the said letters have admittedly been issued much after the retirement of the plaintiff and are therefore not applicable to the plaintiff.
40. The plaintiff has claimed transfer grant of Rs.30,240/. It is not the case of the defendant nos. 1 and 2 that the salary of the plaintiff was lesser than the said sum or that the transfer grant of the plaintiff, if awardable, would Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 22 of 27 CS. No.95/11 be a lesser sum. In other words, there is no dispute regarding the quantification of transfer grant. Hence, in accordance with Clause 3.8 of the Voluntary Retirement Scheme, 2009, the plaintiff is entitled to recover transfer grant of Rs.30,240/ from the defendant nos. 1 and 2. Claim of interest
41. The plaintiff has prayed for presuit interest from 1st August, 2009 to 15th December, 2010. The interest has been claimed over the sum of transfer grant of Rs. 47,621/ and the balance of transfer benefits of 30,240/. It has already been held above that the plaintiff is entitled to transfer grant for his transfer from Delhi to Udaipur amounting to Rs. 42,621/. This sum had been wrongfully recovered by the defendant nos. 1 and 2 from the plaintiff. It has also been held above that the plaintiff is entitled to receive Rs. 30,240/ as transfer benefits for shifting from Udaipur to Delhi. This sum of money had not been paid by the defendant nos. 1 and 2 to the plaintiff. For withholding the said sums of money, the defendant nos. 1 and 2 are liable to pay interest. The question is at what rate interest is to be given and for what period.
42. Interest has to be given for the period during which the sum of money due to the plaintiff wrongfully remained with the defendant. The sum of Rs. 47,621/ had been recovered by the defendant nos. 1 and 2 from the plaintiff. However, the date on which the defendant nos. 1 and 2 had recovered the said sum of money has not been stated by the plaintiff either in the plaint or in the affidavit Ex. PW1/A. The letter dated 05.01.2010 Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 23 of 27 CS. No.95/11 Ex. PW1/10 written by the plaintiff to the defendant indicates the said recovery of Rs. 47,621/. It can only be assumed that the recovery was done on or before 05.01.2010. Since it is the letter dated 05.01.2010 which indicates the said recovery, it is deemed fit to grant interest to the plaintiff over the sum of Rs. 47,621/ only from the date of service of letter dated 05.01.2010. The letter dated 05.01.2010 bears the stamp of the defendants which shows that it was received in the office of the defendants on 05.01.2010 itself. Hence, the plaintiff is entitled to interest on Rs. 47,621/ with effect from 05.01.2010. The suit was instituted not on 15.12.2010 (date till when plaintiff has claimed presuit interest) but on 13.12.2010. Hence, plaintiff shall be entitled to presuit interest till 13.12.2010.
43. The sum of Rs. 30,240/ became due and payable by defendant nos. 1 and 2 to the plaintiff only after the plaintiff had shifted from Udaipur to Delhi. The date on which the bills were submitted and claim was made by the plaintiff has not been disclosed by the plaintiff. It can only be noticed from the letter dated 05.01.2010 Ex. PW1/10 that the said sum of Rs. 30,240/ had been demanded. From the aforesaid, it would be apt to grant interest on the said sum of Rs. 30,240/ with effect from the date of service of the said letter upon defendant nos. 1 and 2 i.e., 05.01.2010. The date of institution of suit being 13.12.2010, plaintiff is entitled to recovery of pre suit interest till the said date.
44. As to the rate of presuit interest, the plaintiff has claimed interest at 18% per annum. However, in my opinion, the said rate of interest is excessive. It Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 24 of 27 CS. No.95/11 would be harsh to grant interest at the said rate particularly when there is no stipulation agreed upon between the parties prescribing the said rate of interest. Having regard to the prevailing bank rates, it would be apt to grant presuit interest at the rate of 9% per annum.
45. To sum up, the plaintiff is entitled to interest on the sum of Rs. 77,861/ from 5.01.2010 till 13.12.2010.
46. The plaintiff has also prayed for pendente lite interest and future interest.
47. The sum of Rs, 47,621/ has admittedly been paid by the defendant nos. 1 and 2 to the plaintiff on 22.09.2011 (examinationinchief of PW1). Hence, pendente lite interest on the said sum shall be given to the plaintiff from 13.12.2010 till 22.09.2011. No future interest shall be given on the said sum. On the sum of Rs. 30,240/, the plaintiff is entitled to both pendente lite and future interest for the full term.
48. The plaintiff has prayed for pendente lite and future interest at the rate of 18% per annum. However, I deem it fit to grant pendente lite and future interest at the rate of 6% per annum.
49. The plaintiff is also entitled to recover costs of the suit from the defendant nos. 1 and 2.
50. The plaintiff has sought direction to the defendant nos. 1 and 2 to remit the payment to the savings account of the plaintiff. There is no such legal obligation upon defendant nos. 1 and 2. It shall open to the defendant nos. 1 and 2 to remit the aforesaid payment in any lawful manner they deem appropriate. Hence, the said prayer is declined.
Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 25 of 27 CS. No.95/11
51. The issue is partially decided in favour of the plaintiff and against the defendant nos. 1 and 2.
Issue No. 2 Relief
52. In the aforesaid facts and circumstances, the suit is decreed in favour of the plaintiff and against the defendant nos. 1 and 2. The letter dated 17.06.2009 Ex. PW1/6 and letter dated 07.08.2009 Ex. PW1/7 issued by officials of defendant nos. 1 and 2 are declared to be null and void to the extent they provide that the officers who have opted for transfer under the redeployment plan and have joined their new posting and subsequently opted for Voluntary Retirement Scheme shall not be entitled to TA/DA and transfer grant and that the said transfer benefits shall be recovered from them.
53. A further decree is passed for recovery of Rs. 30,240/ by the plaintiff from defendant nos. 1 and 2. The defendant nos. 1 and 2 shall also pay to the plaintiff interest at the rate of 9% per annum on Rs. 77,861/ from 05.01.2010 till 13.12.2010. The defendant nos. 1 and 2 shall also pay to the plaintiff pendente lite interest at the rate of 6% per annum on the sum of Rs. 47,621/ from 13.12.2010 till 22.09.2011. The defendant nos. 1 and 2 shall also pay to the plaintiff pendente lite interest at the rate of 6% per annum on the sum of Rs. 30,240/ from 13.12.2010 (date of institution of the suit) till the date of decree and future interest on the said sum from the date of decree till realization. The defendant nos. 1 and 2 shall also pay costs of the suit to the plaintiff.
Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 26 of 27 CS. No.95/11
54. As against defendant no.3, the suit is dismissed.
55. Decree sheet shall be prepared accordingly.
File be consigned to record room.
Announced in the open Court (Ashish Aggarwal)
on 26th day of April, 2012 Civil Judge 1, South West
District, Dwarka Courts,
Delhi.
Kamalesh Kumar Agrawal vs. Airport Authority of India & Ors. Page 27 of 27
CS. No.95/11