Central Administrative Tribunal - Delhi
Raghu Raj Singh vs Delhi Transport Corporation on 10 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No. 1247/2009 New Delhi this the 10th day of February, 2010 Honble Mr. Justice M.Ramachandran, Vice Chairman (J) Honble Dr. Veena Chhotray, Member (A) Raghu Raj Singh, (Ex. C.M.D.), S/o Late Sh. R.N. Singh, R/o 41, Banglow Road, Delhi-110007 -Applicant (By advocate: Shri Sukhbir Singh) -V E R S U S- 1. Delhi Transport Corporation, through its Chairman cum Managing Director, I.P. Estate, New Delhi-110002 2. The Secretary, The Ministry of Surface Transport, Government of India, New Delhi 3. The Secretary, The Ministry of Personnel, Pension, Training & Grievances, Government of India, New Delhi -Respondents (By Advocate: Ms. Arti Mahajan) O R D E R Dr. Veena Chhotray, Member (A):
The TA No. 1247/2009 has arisen out of the WP (C) No. 6690/2007 transferred by the Delhi High Court vide its order dated 1.4.2009.
The applicant who superannuated from the DTC on 19.2.1996, is aggrieved at the respondents not counting his period of service as Chairman cum Managing Director (4.2.1991 till 19.2.1996) for pension and other retiral dues.
By way of relief, directions were sought for (a) fixing the pension and other pensionary benefits like gratuity, provident fund etc. on the basis of last salary drawn and last post held as Chairman cum Managing Director; (b) calculation of such dues in the capacity of CMD and the release of illegally withheld entitlements. Besides, as an omnibus clause any other or further order deemed fit in favour of the petitioner has also been incorporated in the prayer clause.
2. A counter affidavit has been filed by the respondents contesting the claims. On behalf of the applicant, the learned counsel Shri Sukhbir Singh and for the respondents, the learned counsel Ms. Arati Mahahan would appear and make their submissions.
3.1 The brief facts of the case are that the applicant who was a regular officer of the DTC since 1964 had got appointed as CMD through the Bureau of Public Enterprise in 1991. Joining initially as a management trainee in 1962 and appointed as Traffic Superintendent in 1964, the applicant had got promoted in the DTC as Chief General Manager in 1990. He was given the additional charge as CMD for a brief period, and appointed as Chairman cum Managing Director w.e.f. 4.2.1991. This appointment was by way of selection through the Bureau of Public Enterprise. A copy of the relevant Notification dated 1.2.1991 issued by the Ministry of Surface and Transport has been enclosed with the petition as Annex.-A. The appointment was for a period of five years or till the date of his superannuation, whichever earlier. Detailed terms and conditions of appointment were prescribed vide the Ministrys subsequent letter dated 16.5.1991 (Annex.-B). As revealed from the CA, this was the only case of a departmental officer being appointed as the CMD, as the prevalent practice otherwise has been of an IAS Officer holding this post. The applicant superannuated as CMD w.e.f. 29.2.1996.
3.2 Though initially DTC had Contributory Provident Fund Scheme for its employees, in 1992 it implemented Pension Scheme on the pattern of CCS (Pension) Rules and while making it compulsory for the future appointees, for the existing ones and for those who already stood retired, the scheme was given a retrospective effect w.e.f. 1.1.1981. This was, however, subject to an option being exercised to retain the CPF benefits or to opt for the Pension Scheme in which case the employers share had to be refunded. This option was to be exercised within a stipulated time period. The applicant had exercised his option in favour of the Pension Scheme in 1992.
4. The respondents stand is that after his superannuation as the CMD, the applicant has been released all his pensionary dues, admissible in accordance with rules. The applicant, however, not satisfied with the dues already received, lays claims as to his entitlement for pension and other pensionary benefits like gratuity for the period he served the corporation as its CMD. This includes not only counting the period for purposes of pension but basing it on his last salary drawn as the CMD. As per the applicant, these dues have been illegally withheld by the respondents.
5. The applicants claims rest mainly on three planks: the terms of his appointment as the CMD; the pension scheme of the DTC and the CCS (Pension) Rules that had been adopted by the respondent-Corporation under the above scheme. It is stated that the order dated 16.5.1991 laying down the terms and conditions of his appointment as CMD had in para 2 laid down about the applicant being governed by the DTC Rules, in respect of aspects not specifically covered under Para 1. Thus, as DTC implemented its pension scheme of 1992, the applicant automatically got covered under the same. To reinforce this point, it is also mentioned that the Pension Scheme covered all the employees of the DTC including the CMD. In this context, the absorption of the applicant as the CMD in DTC in public interest, as stipulated under the Rule 37 CCS (Pension) Rules, 1968 has been adverted to. The applicants exercise of option in favour of the pension in 1992 in his capacity as the CMD and non-revocation of the pension scheme against the petitioner have also been cited. To build up the argument, further non-release of the managements share of the Provident Fund for the entire period of service including that in the post of CMD has also been averred.
Evoking the constitutional right to livelihood and raising the plea of discrimination vis-`-vis his predecessors as well as successors, denial of the legitimate dues of the applicant by the respondents is alleged to be intentional. Besides it is averred that this is a fit case for imposing interest on the amount already withheld by them.
6. In their detailed counter affidavit, the respondents have denied the allegations as utterly baseless. Recounting the entire history of the process of the decision making, it is asserted that in this case, the respondents have gone to great lengths to ensure retiral dues to the applicant, who was their ex-CMD, as admissible under the rules.
The CA mentions that the post of CMD has always been held by an IAS Officer and this was the sole exceptional case where a departmental officer had been appointed as the CMD. It is also stated that applicant is the only ex-CMD of DTC who has taken and is taking pension from DTC. According to the respondents, the applicant has already been released pension as well as gratuity for the period under the DTC before his appointment as CMD. Further for the CMDs period, he has not been found eligible as per rules for pensionary benefits. Para 6 of the CA makes the following submissions:-
Even though the petitioner opted for the pension scheme while serving as CMD, he cannot be said to have become eligible for pension, as according to the CCS (Pension) Rules, (which are applicable to the pension scheme introduced by DTC in 1992), the pensioners are to be paid Central DA on the basis of their basic pension. As the petitioner after his appointment as CMD was drawing Industrial DA, it was not possible to pay pension to him. As per the respondents, there is no rule or example in the CCS Rules which may be applicable to pensioners for payment of pension when an employee has been drawing industrial DA.
In their preliminary objections, the respondents have referred to the tendering of resignation by the applicant from the post of Chief General Manager vide his application dated 11.4.1998, on which basis as per the decision taken in the DTC Board, the pension till the period of Chief General Manager had been released. It is stated that non-disclosure of this vital fact in his WP shows that the applicant has not approached the Tribunal with clean hands.
The learned counsel for the respondents, Ms. Aarati Mahajan would seek to emphasis that the applicant who had already received benefits i.e. receipt of pension for his past services along with salary as CMD and DA at industrial rates was now trying to overreach by also claiming pensionary benefits for the period as CMD, though not admissible as per the relevant rules. According to the learned counsel this was a clear abuse of the process of law. Further, the applicant who was well aware of the rule position was also, as per the learned counsel, deliberately distorting facts.
The CA also submits that since DTC employees are not as such covered under the definition of Central Government Employees, and only the CCS (Pension) Rules have been adopted, the competent authority of the DTC is capable to take the decision and thereafter the matter may be referred to the DTC Board for finality.
7. We have heard the learned counsels and also perused the material on record. The basic issue for us to adjudicate is two fold i.e. one, whether the applicants period as CMD is entitled to be counted for purposes of pension; Two, if not pension, what other benefits he should have got and whether those have been released by the respondents.
8.1 Though the applicant was a departmental officer of DTC, his appointment as the CMD was not in that capacity, nor was it by way of promotion. Instead it was a fresh appointment by way of selection through the Bureau of Public Enterprise. This basic fact about the nature of appointment as CMD provides the foundation on which everything else rests. The appointment was for a fixed tenure and in a particular scale of pay. The relevant notification dated 1.2.1991 (Annex. A) states that the applicant had been appointed CMD in schedule C scale of pay of Rs.7500-8500 for a period of five years or till the date of superannuation, whichever is earlier, w.e.f. 4.2.1991.
The detailed terms and conditions of the appointment as CMD had been prescribed by the Ministry of Surface Transports subsequent letter dated 16.5.1991 (Annex.-B). It is a detailed order covering virtually all aspects of service conditions. Particularly relevant for our purposes are the provisions relating to dearness allowance, provident fund and gratuity. Para 1, sub para IV stated that the officer would be allowed DA in accordance with the BPE OM dated 8.6.1990 as amended from time to time. This pertained to industrial DA. As per sub para IX, he was to be governed by Provident Fund and Gratuity as per the DTC Rules. Besides by way of other conditions, Para 2 of the order stated that in respect of other conditions not covered in para, he was to be governed by the rules of DTC.
Since the Pension Scheme got introduced in DTC only in the year 1992, no specific provision was made in that regard in the aforesaid order. However, as the Pension Scheme when introduced covered all DTC employees, the benefits of the same would become applicable to the applicant as well, subject, however, to the admissibility or otherwise under the specific provisions or otherwise.
8.2 Even though the DTC employees are not covered under the definition of Central Government as such, the Pension Scheme adopted was on the pattern of CCS (Pension) Rules. Provisions of the Pension Rule 37 have been evoked in this case. This is an enabling provision for payment of pension incases of absorption of a Government servant in a corporation, company or body wholly or substantially controlled by the Central or the State Governments. Extracts from sub-para 1 and sub para 3 are reproduced below:
(1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to sub-rule (3) he shall be eligible to receive retirement benefits if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
(3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the serviced rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the central Government in accordance with the orders issued by the Central Government. Thus as per the provisions of this Rule, an employee has a two fold alternative option; in case of there being a pension scheme with the absorbing body, he can exercise an option for counting his previous service for purposes of pension or alternately he may opt for receiving pro rata retirement benefits for the previous service rendered in accordance with rules and instructions on the subject.
8.3 In this case, as per the resolution of the DTC Board (No. 5/98 dated 4.2.98) in the first instance a technical resignation had been sought from the applicant which had been tendered on 11.4.1998. Further, subsequently vide the resolution No.105/98 dated 30.7.98, it was resolved that the officer should be treated to have been absorbed in DTC in public interest as per the requirement of rule No. 37, CCS (Pension) Rules. This was, however, for the limited purposes of the pensionary benefits. In the same resolution, it had been finally decided by the Board that pension be paid to the applicant against the post of CGM as per Rule (Annex. R-1 with the counter).
It is here that the point of contention arises. Relying upon his absorption as the CMD under the DTC while the applicant is claiming pensionary benefits, both in terms of counting the period as also the last salary drawn for fixation of the pension amount; according to the respondents, the same is not permissible as per the rules and hence can only be granted benefits as per the second option i.e. pro rata retirement for the previous service as per the rules.
8.4 It is trite that service benefits to a public servant can only be allowed in accordance with relevant rules and instructions. The Pension Scheme adopted by the DTC was on the pattern of the Scheme for the Central Government Employees. According to the respondents, the basic difficulty in grant of pension for the tenure of CMD to the applicant was the fact of his having been given the benefit of Industrial DA in that capacity.
This stand of the respondents is found to be supported by a perusal of the CCS (Pension) Rules. Rule 3 dealing with Definitions defines various terms unless the context otherwise requires. Under Clause (1) by insertion of an additional clause (cc) in 1991, the benefit of dearness relief was also included while giving pensionary benefits. This was, however, defined as per Rule 55-A. Rule 55-A dealing with dearness relief on Pension/Family Pension specifically mentions under sub clause (i) the following:-
(i) Relief against price rise may be granted to the pensioners and family pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Government may specify from time to time. We also find this fact supported by a comparative reading of the special provisions under Rule 37 and 37-A. Rule 37 dealing with Pension on absorption of a Government servant in or under a Corporation, Company or Body has been evoked in the present case. While this rule does not contain any mention regarding extension of the benefit to those being given Industrial DA under this rule. However, Rule 37-A, which specifically deals with payment of Pension on absorption consequent upon conversion of a Government Department into a Central Autonomous Body or a Public Sector Undertaking does make the benefit of Central Pension admissible even in cases where the dearness relief as per IDA pattern is payable (para 10).
8.5 Along with the Writ Petition have been enclosed detailed documents pertaining to the processing of this case in the DTC and the subsequent stages of the decision (Annex. K). Besides, corroborating averments have been made in the CA. These reveal that the matter got considered by the Board of the DTC on several occasions i.e. 22.11.1996; 12.11.1997; 4.2.1998; 17.7.1998 and again on 30.7.1998. The decision of the Board, considering the rules, was that the applicant was entitled to be paid pension against the post of CGM.
8.6 It is not disputed that the retiral dues have been paid to the applicant against the post of CGM. It is revealed from the CA that in 1996 itself, the applicant had been released provisional pension calculating the same on the basis of his last salary drawn as CGM. This is said to be at the behest of the applicant himself in order to save him from hardship. After the decision of the Board in 1998, the pension was finally calculated and released. The relevant calculation sheet has been annexed as R-4 with the counter. The gratuity, which had initially been withheld under CCS Pension Rule 69 on account of a pending vigilance inquiry, also on the clearance from the same got released vide the Memo dated 12.4.2001.
8.7 On considering the facts on record and the averments on both the sides, we do not find anything arbitrary in the decision of the respondents for non-grant of pension to the applicant for the period as CMD. Despite his opting for the same for the simple reason that in terms of Pension Scheme itself, benefits could not be extended to those receiving industrial DA and thus the applicant got excluded from the purview of the scheme.
As the settled law is that in judicial review, courts and tribunals are constrained not to issue any directions unsupported by rules/instructions, we find no justification to interfere with the decision taken in this case by the competent authorities.
8.8 However, having said that we find that the applicant has still not been released the employers share of the Provident Fund nor gratuity as per the Act for the period as CMD. The aforesaid pension scheme was in lieu of the earlier Contributory Provident Fund Scheme. Besides these benefits were specifically admissible to him in accordance with para 1, sub para IX of the order dated 16.5.1991 laying down the terms and conditions of appointment. The averment in the TA regarding non-release of these dues is borne out from the perusal of the relevant service records extracted along with the petition. This would also not be rebutted by the respondents.
9. In view of the foregoing, allowing the TA partly, it is disposed with a direction to the respondents to release the Managements share of the Provident as well as the Gratuity for applicants service as per the Act. Considering the totality of the facts and the earnest attempt on the part of the DTC to settle the issues, we do not entertain the prayer for any interest or costs. This is to be done within a period of three months from the date of receipt of a copy of this order.
(Dr. Veena Chhotray) (M.Ramachandran)
Member (A) Vice Chairman (J)
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