Central Administrative Tribunal - Delhi
Address For Service vs State Of Up & Ors on 18 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.1821 OF 2013 New Delhi, this the 18th day of February, 2014 CORAM: HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBR .. Sh.Suraj Bhan, s/o Sh.Kanwar Lal, aged 64 years, Ex-APM RN HO, New Delhi 110015 R/o H.No.RZ-43A, G Block, Dharampura, Najafgarh, New Delhi 110043 Address for service: C/o Sh.R.P.Sharma, Advocate, CAT Bar Room-2, New Delhi 110001 Applicant (By Advocate: Shri R.P.Sharma) Vrs. 1. Union of India, M/o Communication & IT, Through Secretary, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi 110001. 2. The Chief Postmaster General, Delhi Circle, Meghdoot Bhawan, Link Road, New Delhi 110001. 3. The Sr.Supdt. of Post Offices, New Delhi West Division, Naraina, New Delhi 110028 Respondents (By Advocate: Shri R.K.Jain) .. ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following relief:
(a) To declare that the applicant is entitled to the interest @Rs.18% per annum on delayed payment of his retiral benefits from 1.9.2009 to Jan./Feb.2012 and quash the impugned letter dated 4.3.2013 (Annexure A/1).
(b) To direct the respondents to pay the interest @Rs.18% per annum on delayed payment of retiral benefits to the applicant in a time bound manner as if the impugned order has not been issued.
( c) To pass any other and further order or orders as deemed fit & proper in facts & circumstances of the case in the interest of justice.
(d) To award exemplary cost of these proceedings to the applicant, who is a senior citizen and has been compelled to seek redressal through this Honble Tribunal.
2. Brief facts of the applicants case run thus: The applicant retired on superannuation on 31.8.2009. At the time of retirement, he was Assistant Postmaster (LSG) in Delhi Circle. Before his retirement, he was served with a charge-sheet for major penalty, vide Memo dated 2.6.2008. The alleged charges were that while working as Postal Assistant at Ramesh Nagar H.O. from 1.11.1999 to 27.1.2000 the applicant had failed to check the discharge certificate being received from DESU Colony PO from the Stolen Certificate Compendium/Circulars and he had failed to submit returns of discharge certificates including the fraudulently discharge certificates in the said P.O. which resulted in the fraudulent payment of NSC/KVPS to the tune of Rs.6,10,800/-. As the applicant denied the charges in his letter dated 20.6.2008, the enquiry was conducted and the Enquiry Officer submitted his report to the respondents in August 2009, prior to the superannuation of the applicant. As the said disciplinary proceeding was not concluded, the applicant had earlier approached this Tribunal in OA No.539 of 2011. The Tribunal, vide order dated 13.5.2011 (Annexure A-2), disposing of the said O.A., issued the following direction:
6. It is, therefore, necessary for the Respondents to consider the Enquiry Officers Report and find out whether the grave misconduct or negligence is made out against the Applicant for taking further action under appropriate Rules of CCS (Pension) Rules and in case the CCS (Pension) Rules are attracted in the present case, the Competent Authority should decide the disciplinary case within a period of four months from the date of receipt of a certified copy of this order. Thereafter, the respondents issued Presidential Order No.C-14016/74/2010-VP dated 29.9.2011(Annexure A/3) dropping the said disciplinary proceedings against the applicant. As would appear from his representation dated 15.2.2012 (Annexure A/4) made by the applicant to respondent no.2, the leave encashment was paid on 1.1.2012, commuted value of pension was paid on 10.2.2012, and DCRG was paid to him on 10.2.2012. In the said representation dated 15.2.2012 and another representation dated 19.2.2012 (Annexure A/4) the applicant claimed interest on delayed payment of his retiral dues. The respondents, vide letter dated 4.3.2013 (Annexure A/1) granted interest on Gratuity, but rejected his claim for interest on delayed payment of leave encashment and commutation value of pension. The interest on Gratuity of Rs.57,993/- was paid by the respondents to the applicant, vide cheque no.590300 dated 10.5.2013. Hence, the applicant has filed the present Original Application for the relief referred to in paragraph 1 above.
3. The respondents have filed a counter reply resisting the claim made by the applicant. In the counter, the respondents have taken the stand that in the absence of specific provisions in the CCS (Pension) and Government of Indias decisions, interest cannot be granted on delayed payment of leave encashment and commuted value of pension, which were paid to the applicant after conclusion of the disciplinary proceedings.
4. I have perused the materials on record and heard the learned counsel appearing for the parties.
5. Admittedly, the gratuity, commuted value of pension and leave encashment payable to the applicant on his retirement were withheld on account of pendency of disciplinary proceeding which was instituted against the applicant while he was in service. By the order dated 29.9.2011 (Annexure A/3), issued in the name of the President, the said proceeding was dropped. The relevant portion of the order dated 29.9.2011(ibid) is quoted hereunder:
The President, after careful consideration of the facts and circumstances of the case has ordered to drop the proceedings under Rule 9 of the CCS (Pension) Rules, 1972 as there was no involvement of the CO in sending KVPs discharge returns to DA(P) during the months of November, 1999, January,2000 and March, 2000. After the disciplinary proceeding was concluded in the above manner, admittedly the respondents paid the gratuity, leave encashment, commuted value of pension to the applicant in January and February 2012 without any interest thereon. The applicants representation claiming interest on all the heads was considered by the respondents, and while allowing interest on delayed payment of gratuity under Rule 68 of the CCS (Pension) Rules, his claim for interest on delayed payment of commuted value of pension and leave encashment was rejected by the respondents, vide Annexure A-1. It is the stand of the respondents that in the absence of specific provisions in the CCS (Pension) Rules and Government of Indias decisions for granting interest on delayed payment of dues on the said two heads, the applicants claim therefor was disallowed.
6. In support of his claim for interest on delayed payment of commuted value of pension and leave encashment, the applicant has relied on the following decisions:
(1) Vijay L.Malhotra vs. State of UP & ors, JT 2000(5) SC 171;
(ii) Union of India and another v. M/s Sail Ltd.(Unit Mawana Sugar work) & ors, 12(2006) DLT 611 (DB);
S.K.Dua v. State of Haryana & ors, (2008) 3 SCC 44;
S.L.Thareja vs. UOI & ors, OA No.1418/2009, decided on 7.1.2010;
Kanta Prasad v. DG, CPWD, ND, OA No.326/2010, decided on 4.8.2010;
Narender Pal v. Union of India and others, OA 432/2011, decided on 30.5.2012;
Union of India v. Narender Pal, W.P. ( C) No.127 of 2012, decided on 9.1.2012.
I have carefully perused the above decisions.
7. In the case of K.C.Uttreja v. The State Government of NCT of Delhi, OA No.1709 of 2007, decided on 21.2.2008, following the decisions of the Honble Supreme Court in Vijay L.Malhotras case (supra) and S.K.Duas case (supra) and a Full Bench decision of this Tribunal and other decisions of the Honble High Court, this Tribunal, while considering a similar question, observed and held in paragraphs 12, 13, 14, 17, 18, 19, 20 and 21 of the judgment as follows:
12. It is trite that an administrative instruction issued by the Govt. though supplements the rules if rules are silent on an aspect of the matter. However, when the rules do not stipulate as to the methodology in the present case of interest on commuted value of pension, insurance and leave encashment, the law declared by the Apex Court, which holds the field, overrides any administrative instructions and in law does not allow through an administrative order to overturn the judicial decision or its effect except by a due process of law, i.e., framing of the rules, as held by the Full Bench of this Tribunal at Mumbai Bench in of this Tribunal in R. Jambukeswaran and others v. Union of India and others, 2004 (2) ATJ CAT 1.
13. A Division Bench of the Chandigarh Bench of this Tribunal in Unreserved Employees Association v. Union of India, 2005 (1) ATJ 1 ruled that a judicial pronouncement cannot be overturned by issuing an administrative order. Moreover, in Govt. of Andhra Pradesh v. G.V.S.K. Girls High School, 2002 (1) SC SLJ 224, the Apex Court ruled that legislation cannot overrule a judgment, unless it removes the basis of the legal right upon which the judgment is based. The aforesaid has also been re-iterated by the Apex Court in State of Haryana v. Ram Kumar, JT 2000 Suppl. 1 SC 294. In the above backdrop of the matter the Apex Court from time to time in several pronouncements held the right of interest on delayed retiral dues in Union of India v. M.S. Abdulla, 2006 SCC (L&S) 1410, and interest was allowed on account of delayed payment of retiral dues, including pension and revision of the pay scale as per the recommendations of the Central Pay Commission by granting 12% interest. The Apex Court also in U.P. Raghhavendra Acharya and others v. State of Karnataka and others, 2006 SCC (L&S) 1948, in so far as pension is concerned, held pension not to be a bounty but a deferred salary akin to the right to property.
14. In Dr. Uma Aggarwal (supra) a three-Judge Bench of the Apex Court ruled as to interest of retiral dues, including pension in the light of the decision of the Apex Court in State of Kerala v. M. Padmanabhan Nair, 1985 (1) SCC 429, with the following observation:
5. We have referred in sufficient detail to the Rules and instructions which prescribe the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various governmental departments of their duties in initiating various steps at least two years in advance of the date of retirement. If the rules/instructions are followed strictly much of the litigation can be avoided and retired Government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the Government servant. Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired Government servant claims interest for delayed payment, the Court can certainly keep in mind the time-schedule prescribed in the rules/instructions apart from other relevant factors applicable to each case.
17. Pension to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Dodge v. Board of Education (1937 (302) US 74 : 82 Law Edn. 58) a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want.
17. If one has regard to the above, though the question of non-existence of rules was considered, yet when it is observed that interest can be claimed on the basis of Articles 14, 19 and 21 of the Constitution of India being a Fundamental right, the same holds field and for want of any provision under the Pension Rules the OM of Department of Pension and Pensioners Welfare dated 5.10.1999, which is in direct conflict with the pronouncements of the Apex Court, including the decision in Gorakhpur Univeristy (supra), where the interest was allowed to be disbursed, the instructions cannot override the judicial pronouncements. It is trite that once an arena is covered by judicial pronouncements, the administrative instructions, unless transformed into a valid legislation, cannot be allowed to infiltrate the said arena.
18. In the light of the above, though the Pension Rules do not contain any provision of interest on other heads of retiral dues, other than gratuity, yet the judicial pronouncements estoppes the right of Govt. servant if the retiral dues are delayed.
19. Non-fixation of basic pay of applicant when he was drawing Rs.9,000/- and clarification sought by the respondents is certainly a delay caused by the Govt. without any fault attributable to applicant. Merely because applicant has written that on the minimum of the pay scale, his retiral dues may be accorded would not amount to any estoppel or acquiescence, as no estoppel functions against a fundamental right to be granted pension and other retiral dues. The applicant with a view to get whatever is readily payable to him has done this but this does not extinguish his right to claim interest. The fault to correctly re-fix the pay and thereafter pension is squarely lies on the respondents but despite applicant has submitted his papers before time could not have been anticipated and redressed his grievance. Moreover, Government cannot approbate and reprobate simultaneously. Once DCRG of applicant on account of delayed payment has been revised with interest and arrears thereof, the same holds good mutatis mutandis for other heads of retiral dues, including commutation of pension, leave encashment, insurance etc.
20. It is pertinent to note that in Vijay L. Mehrotra (supra) the Apex Court not only accorded interest on GIS but also on encashment of leave, gratuity, commuted pension etc., which would on all fours be a binding precedent and would apply to the instant case.
21. In the result, for the foregoing reasons, OA is partly allowed. Impugned order is set aside insofar as it denies interest to applicant on his delayed payment of commuted value of pension, leave encashment and UTGEIS. Respondents are directed to accord interest to applicant on all the above heads from the date of expiry of three months from the date of retiral benefits till it is actually paid @12% p.a. with arrears thereof, within a period of two months from the date of receipt of a copy of this order. No costs.
8. In the light of the decision of this Tribunal in K.C.Uttrejas case (supra), which was based on the judicial pronouncements of the Honble Supreme Court and other decisions of this Tribunal and Honble High Court, I hold that the applicant is entitled to interest on commuted value of pension and leave encashment from the date of expiry of three months from the date the said dues became payable to him at the same rate as applicable to G.P.F. Accordingly, the impugned order (Annexure A-1) is quashed and the respondents are directed to determine the amount of interest on commuted value of pension and leave encashment and pay the same to the applicant within a period of three months from the date of receipt of copy of this order.
9. In the result, the Original Application is allowed as above. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN