Central Administrative Tribunal - Delhi
Dr. K.C. Rakesh vs Municipal Corporation Of Delhi on 8 August, 2011
Central Administrative Tribunal Principal Bench OA No.2521/2011 MA No.1783/2011 MA No.1942/2011 New Delhi this the 8th day of August, 2011. Honble Mr. M.L. Chauhan, Member (J) Dr. K.C. Rakesh, S/o late Sh. Leeladhar, R/o C-13/86, Sector-3, Rohini, Delhi-85. -Applicant (By Advocates Shri J.S. Mann and Shri V.P. Sharma) -Versus- 1. Municipal Corporation of Delhi, Dr. Shyma Prasad Mukherjee, Civic Center Minto Road, New Delhi-110002 (through its Commissioner). 2. Smt. Indira Yadav, Director (Pry. Edn.) (Retd.) Municipal Corporation of Delhi, Dr. Shyma Prasad Mukherjee, Civic Center Minto Road, New Delhi-110002. 3. The Additional Commissioner, (Engineering & Personnel) (C.E.D.), Municipal Corporation of Delhi, Dr. Shyma Prasad Mukherjee, Civic Center Minto Road, New Delhi-110002. 4. The Director, Personnel, C.E.D., Dr. Shyma Prasad Mukherjee, Civic Center Minto Road, New Delhi-110002 5. The Accounts & Finance Branch, Municipal Corporation of Delhi, Dr. Shyma Prasad Mukherjee, Civic Center Minto Road, New Delhi-110002. 6. The Director (P.E.), Education Department, Municipal Corporation of Delhi, Dr. Shyma Prasad Mukherjee, Civic Center Minto Road, New Delhi-110002. -Respondents O R D E R
Applicant, who has retired on 31.03.2004 from the post of Assistant Director of Primary Education in Municipal Corporation of Delhi (MCD), has filed this OA, thereby praying for the following reliefs:
a) The respondents may be directed to grant interest @ 18% in respect of all delayed payments as per details furnished hereinabove.
b) Any other relief or direction which this Honble Tribunal deems fit and proper in view of the facts and circumstances of the case may be granted/passed in favor of the applicant and against the respondents.
2. The basis for claiming the aforesaid relief is delay in making the payment on account of fixation of pay on the post of Additional Director, leave encashment, earned leave, pension, gratuity and commutation, as set out in para 4.9 of the OA. It may be stated here that the retiral benefits as well as the arrears on account of leave encashment and pay fixation was given to the applicant vide separate orders dated 8.2.2006, 16.3.2006, 24.3.2006, 30.5.2006 and 15.6.2006. From the material placed on record, it is evident that although prior to this date applicant has made various representations to the authorities regarding his grievance of non-payment of the aforesaid amounts but after release of the aforesaid payments the applicant made a representation dated 26.06.2006/3.7.2006 (Annexure P-21). As can be seen from this representation, the basis for claiming the interest on delayed payment of pension/gratuity etc. is Govt. of Indias Department of Pension & P.W., Notification No.7(13)/85-P&PW dated the 12th March, 1986 and published as S.O. No.1246 in the Gazette of India, dated the 29th March, 1986. It may be relevant to state here that on the basis of the aforesaid notification sub rule (2) of rule 68 of CCS (Pension) Rules, 1972 was substituted to the following effect:-
(2) Every case of delayed payment of gratuity shall be considered by the Secretary of the Administrative Ministry or the Department in respect of its employees and the employees of its attached and subordinate offices and where the Secretary of the Ministry of the Department is satisfied that the delay in the payment of gratuity was caused on account of Administrative lapse, the Secretary of the Ministry or the Department shall sanction payment of interest.
3. Thus, as can be seen from the provisions quoted above, the interest can be paid on delayed payment of gratuity and there is no specific provisions in the CCS (CCA) Rules, 1972 regarding payment of interest on delayed payment of pension/commuted value of pension and also regarding leave encashment etc. It may be stated here that the Parliamentary Standing Committee on MHA in its 44th report recommended that where timely payment of pension and retiral dues is not made to the employees of the Union Government similar provisions as made in Section 17-A under Employees Provident Fund Act and Miscellaneous Provisions Act, 1952 should also be made applicable, which inter alia says that in case the Commissioner fails without cause to settle the claim complete in all respects within 30 days, the Commissioner shall be liable for delay beyond the said period and penal interest @12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner. However, the Govt. of India did not accept the recommendation so made by the Parliamentary Standing Committee. However, Govt. of India issued an OM dated 5.10.1999. The said instructions, inter alia, stipulates that as per CCS (Pension) Rules, 1972 no interest is payable on delayed payment of pension/commuted value of pension. Thereafter, keeping in view the recommendation made by the Committee it was decided that:
(a) All pensioners dues are to be settled by strictly following the procedures laid down in Rules 56 to 76 of CCS (Pension) Rules, 1972.
(b) Wherever delays are anticipated, provisional pension should be sanctioned immediately.
(c) Any delay in processing of pension resulting in pension not being authorized on the last working day of retirement of the Government servant, should be reported by the Head of Office of the next higher authority who would watch the settlement of delayed cases.
(d) In respect of delayed payment of gratuity wherever it results in payment of penal interest at the rate applicable to GPF deposits under Rule 68 of CCS (Pension) Rules, 1972, Secretary of the Administrative Ministry or Department would initiate action to fix responsibility at all levels to recover the amount from the concerned Dealing Official, Supervisor and Head of Office in proportion to their salary by following the prescribed procedures for the purpose. This should be strictly enforced with immediate effect.
(e) Once it has been decided to pay gratuity, the amount should be paid immediately pending a decision regarding payment of interest. This would reduce the interest liability if any, on payment of delayed gratuity.
(f) In the matter of delayed payment of leave encashment, the Department of Personnel and Training in their note dated 2-8-1999 has clarified that there is no provision under CCS (Leave) Rules for payment of interest or for fixing responsibility. Moreover, encashment of leave is a benefit granted under the leave rules and not a pensionary benefit.
(g) In the matter of CGEGIS, the Department of Expenditure, Ministry of Finance in their U.O. No.709/E/V/99, dated 6-8-1999 has clarified that payments under CGEGIS cannot be termed as terminal benefit. As payments under this Scheme are made in accordance with the Table of Benefit which takes into account interest up to the date of cessation of service, no interest is payable on account of delayed payments under the scheme. They have also clarified that CGEGIS payment cannot be withheld and no Government dues can be recovered from the accumulation except the amount claimed by the financial institution as due from the employee on account of loans taken for house building purpose.
4. Thus, in view of the statutory provisions as well as the decision taken by the Govt. of India the only statutory provision regarding payment of interest, that too at GPF rates is applicable to the payment of gratuity amount only and not in respect of other retiral benefits etc., that too, if there is administrative lapse. Even otherwise also as per the representation dated 26.06.2006/3.7.2006 (Annexure P-21) the applicant is claiming interest only on the basis of the OM dated 20.3.1986, relevant portion of which has been reproduced hereinabove, and has not cited any other order of the Govt. of India or the provisions of the Rules, which entitles the applicant for grant of interest in regard to other payments. Be that as it may, the question, which requires my consideration, is whether the relief prayed for by the applicant can be granted at this stage.
5. When the matter was listed on 15.07.2011 this Tribunal passed the following order:
Prima facie, I am of the view that the present OA is barred by limitation. However, learned counsel for applicant while drawing my attention to the order dated 7.1.2011 passed by this Tribunal in TA-49/2010 submits that the liberty granted by this Tribunal to withdraw the TA and to file fresh OA shall condone the limitation period. This plea cannot be accepted. At the most, the period during which the applicant was pursing the matter before the trial court in civil suit till filing of this OA may constitute a sufficient cause but in the instant case the payment of retiral benefits to the applicant was made on 8.2.2006, 5.3.2006 and latest on 12.6.2006, as such it was open for the applicant to make grievance regarding the payment of interest thereafter but in fact the suit for the first time was stated to be instituted in trial court in March, 2009. Thus the delay for the intervening period has not been explained. Learned counsel for applicant wants to file appropriate application for condonation of delay. Let the same be filed within two weeks.
6. Pursuant to the aforesaid order, applicant has filed an application for condonation of delay, which was registered as MA-1942/2011. At this stage, it will be useful to quota para 2. I to V of the MA, which thus read:
I. The applicant was retired from the post of Additional Director (P.E.) of MCD on 31.03.2004.
II. The applicant was released his pension and other terminal benefits on 15.06.2006 i.e., after a delay of 26 months that too without interest.
III. The applicant made representations to pay interest on delayed payments of pension and terminal benefits and other dues repeatedly and but the respondents did not respond to his representations.
IV. The applicant filed an application dated 14.07.2006 under RTI Act, 2005 on the subject of aforesaid payment of interest which was replied in negative vide letter dated 28.09.2006 (Annexure A-23 of OA.) V. On receiving the aforesaid denial for the said payment of interest from the respondents, the applicant filed a civil suit for declaration, recovery and mandatory injunction before the court of Senior Civil Judge at Delhi on 28.03.2009.
7. At this stage, it will also be useful to quote para-5 of the MA, which is to the following effect:
5. That although the aforesaid civil suit claiming the interest on delayed payments of pension etc. was filed 03 months before the expiry of three years of limitation period yet it could not be filed immediately after the payments of pension and other terminal benefits were released on 12.06.2006 because the applicant got sever heart attack due to which he had to undergo a by-pass surgery of his heart and remained under treatment for years together after that in Escorts Hospital and for this un-avoidable reasons of his ill health he could not file the suit thereafter. Kindly refer Annexure MA-1.
8. In para-6 of the MA, applicant has stated that the jurisdiction of this Tribunal over MCD was notified on 1.12.2008, as such, as per Section 21 (a) (2) and (3) OA could have been filed upto 31.05.2009.
9. In the light of the facts, as noticed above, vis-`-vis the order passed by this Tribunal dated 15.07.2011, relevant portion of which has been reproduced above, the question is whether the explanation given by the applicant constitutes sufficient cause to condone the delay. It may be stated here that I have not reproduced other part of the MA because it relates to the explanation given by the applicant after the suit was instituted till filing of the OA, as this Tribunal vide its aforesaid order noticed that the said period during which applicant was pursuing the remedy before the wrong forum may constitute sufficient cause, but the reasons for not approaching this Tribunal during the intervening period when cause of action/payment was made till the suit was filed was required to be explained by the applicant. According to me the aforesaid reasons given by the applicant do not constitute sufficient cause. Admittedly, the applicant was entitled to provisional pension immediately after his retirement, i.e., 1.4.2004 in case there was delay in processing of pension papers. Thus, cause of action in not releasing the provisional pension, commutation amount as well as leave encashment has arisen in the year 2004. The suit was instituted by the applicant in March, 2009 after the prescribed period of limitation. Similarly, the payment was made to the applicant during the period ranging from 8.2.2006 to 15.6.2006. It is also not in dispute that the jurisdiction to entertain the service matter regarding MCD was conferred upon this Tribunal w.e.f. 1.12.2008, the suit was filed by the applicant on 28.3.2009. From the material placed on record it is also evident that the applicant became aware regarding non-entitlement to interest when he sought information under Right to Information Act, 2005 on 28.09.2006 (Annexure A-23). Thereafter applicant issued legal notice on 30.07.2007. It was incumbent upon applicant to seek proper remedy immediately thereafter but the applicant filed a civil suit, which too was not maintainable when jurisdiction, authority and power to entertain such matter was conferred upon this Tribunal, in respect of MCD, on 1.12.2008. The said suit appears to have been filed in order to rigor out the statutory provisions of limitation, as stipulated under Section 21 of the Administrative Tribunals Act, 1985. The reference made by the applicant to Section 21 (2) (a) of the Administrative Tribunals Act is wholly misconceived, as sub Section 21 (2) (a) is attracted where the grievance relates to 3 years immediately considering the date when the Administrative Tribunals Act came into being, i.e., 1.7.1985. Although it is true that in terms of the provisions contained in sub Section 21 of the Administrative Tribunals Act, it is not necessary to give an explanation for delay, which occurred within a period mentioned in sub sections (1) or (2) of Section 21 of the Administrative Tribunals Act, 1985, explanation has to be given for delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. As already stated above, in the instant case the explanation offered was that a civil suit was instituted within a period of 3 years, which is within limitation. As already stated above, once the jurisdiction was conferred upon this Tribunal in respect of MCD matters w.e.f. 1.12.2008, the explanation given by the applicant that he filed a civil suit before the Trial Court within the outer limit of a period of 3 years, according to me, is not a sufficient cause to condone the delay, more particularly when cause of action in respect of payment of provisional pension, commuted value, leave encashment and also provisional gratuity had arisen on and with effect from 1.4.2004 after his retirement, as neither disciplinary proceedings nor criminal proceedings were pending. Simply because belated payment was made in 2006 will not defer the cause of action although the payment of the aforesaid amount in 2006 may be a relevant consideration to grant interest. At this stage, it will be useful to refer to the decision of the High Court in the case of Jagdish Ram v. DTC, Writ Petition (Civil) No. 3133/2008 decided on 11.12.2008 where in para-5 the learned single Judge has held as under:-
5. It is a matter of record that the present petition was filed by the petitioner in April, 2008, i.e., after more than 10 years of receipt of arrears of pension/commuted pension by him which he had received in March, 1998. The only grievance made by the petitioner in this petition is about the interest for delayed payment. I am of the opinion that the cause of action for claiming interest on arrears of pension/commuted pension arose to the petitioner in March, 1998 when he was paid the arrears. The claim for interest by no means can be said to be a recurring cause of action. The petitioner should not have waited for the outcome of the writ petition filed by his colleague.
xxx xxx xxx xxx In case the petitioner was aggrieved by delay in payment of arrears of pension/commuted pension to him and wanted interest on the said amount, then he should have taken recourse to legal proceedings within a reasonable time, if not within three years of arising of cause of action in his favour. There is no explanation at all given by the petitioner for delay of ten years in filing of the present petition after receipt of arrears of pension/commuted pension by him,
10. The aforesaid judgment of the learned Single Judge was challenged before the Division Bench of the High Court by filing LPA-74/2009 Jagdish Ram v. D.T.C. and the High Court also held that cause of action will arise when the payment regarding retiral benefit was received by the employee and it is not a recurring cause of action. The judgment given by the High Court is squarely applicable in the facts and circumstances of the case.
11. That apart, from the material placed on record it is evident that the retiral benefits of the applicant could not be settled because the applicant while working in MCD was appointed on the post of Assistant Commissioner in KVS on 13.3.1996. He was on probation and during the period of probation his services were terminated/repatriated vide order dated 31.1.1998. He did not join the parent department, i.e., MCD. Further the aforesaid period when he was working in KVS was not regularized and whether said period should be counted as qualifying service for the purpose of pensionary benefits. The order to that effect was passed on 8.2.2006, whereby the period w.e.f. 31.3.1996 to 16.12.1997 was treated as qualifying service in MCD and the period from 17.12.1997 to 31.1.1998 was treated as dies non. Further from the material placed on record it is evident that applicant has also taken House Building Advance (HBA) as well as scooter advance. When he retired on superannuation on 31.3.2004 the substantial amount of HBA to the tune of Rs.61463/- and a sum of Rs.13255/- on account of scooter advance (vide letter dated 7.4.2005 and 5.4.2005 respectively, pages 50-51 of the paper-book) were outstanding. Further from the perusal of the document dated 10.05.2006 it is evident that the recovery of the excess payment of pay due to shifting of increment from 1.4.1998 to 17.5.1998 and in the years 1.4.1999 to 1.5.1999, and in the years 2000, 2001, 2002 and 2003 was also required to be effected from the applicant. It may also be relevant to mention here that applicant did not join the parent department after his termination/repatriation by the KVS for a period of 103 days. The MCD has regularized this period as leave period. The said issue was also settled subsequently to his retirement. Thus, it cannot be said that the delay in making the payment is wholly attributable to the administrative lapse and not to the applicant.
12. Thus, in view of what has been stated above, I am of the view that applicant has not made out any case for the grant of relief, which is accordingly dismissed at the admission stage itself, with no order as to costs.
13. Before parting with the matter, I may also notice the judgments cited by the applicant. Learned counsel of applicant has placed reliance on the judgment of the Full Bench of the Punjab & Haryana High Court in the case of A.J. Randhawa v. State of Punjab, 1997 (7) SLR 8. That was a case where the matter was referred to Full Bench as there were conflicting views as to whether the Writ Petition is maintainable for claiming the interest only on delayed payments and other retiral benefits to which a retired Government employee is entitled under Civil Services Rules. The said question was answered in the affirmative and it was held that a writ petition is maintainable for claiming interest only on delayed payment of pension and other retiral benefits to which a retired government employee is entitled under the Civil Service Rules relating to pension and provident fund. It was further held that in the present case there is no statutory explanation for delay in disbursing the retiral benefits to the pensioners and they are, therefore, entitled to interest at the rate of 12% per annum for the period of delay on the amounts as paid to them. As can be seen from the facts given in the judgment that the petitioner retired from service on 1.3.1992 but the retiral benefits were released on 12.1.1995 and DCRG was released on 27.4.1995. The Writ Petition was filed in the year 1995. Thus, there was no delay in filing the Writ Petition. It was in this context that the relief regarding interest was paid to the petitioners. I fail to understand how applicant can get any assistance from this decision. Admittedly, applicant has filed the civil suit after lapse of more than 3 years when the cause of action had arisen in his favour. That apart, the applicant is claiming interest not only on gratuity amount but also on other retiral benefits for which there is no provision in the CCS (Pension) Rules, 1972 and also the Leave Rules. The Government has also taken a decision that in such cases no interest should be paid. Regarding gratuity rules stipulate awarding of interest if there is administrative lapse and not otherwise. Applicant has not made out any case for the grant of interest in the light of the instructions issued by the Govt. of India and statutory provisions, besides there is considerable delay in agitating the matter. Similarly the applicant also cannot take any assistance from the judgement of the Rajasthan High Court in State of Rajasthan v. Radha Mohan, 1986 (1) SLJ 172, which was rendered in the facts and circumstances of that case.
(M.L. Chauhan) Member (J) San.