Central Administrative Tribunal - Delhi
Sh. Deoki Nandan Bisht vs Municipal Corporation Of Delhi on 7 August, 2009
Central Administrative Tribunal Principal Bench TA No.1055/2009 New Delhi, this the 7th day of August, 2009 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Sh. Deoki Nandan Bisht S/o Lt. Sh. C. D. Bisht R/o No.907, Laxmibai Nagar, New Delhi-110 023. Applicant. (By Advocate : Shri B. S. Jain) versus 1. Municipal Corporation of Delhi through its Commissioner, Town Hall, Delhi 110 006. 2. The Secretary, Department of Official Language Ministry of Home Affairs, Lok Nayak Bhawan, New Delhi 110 003. Respondents. (By Advocate : Ms. Biji Rajesh for Shri Gaurang Kanth) : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
Shri Deoki Nandan Bisht, the Applicant herein, joined Municipal Corporation of Delhi (MCD in short) on 22.1.1970 as Steno Typist and was confirmed in the said post on 1.4.1974. The Union Public Service Commission advertised a post of Assistant Director (Type & Stenography) to be filled on direct recruitment basis in the Department of Official Language, Ministry of Home Affairs (MHA in short) to which the Applicant applied through Respondent-1. Having been selected for the said post, the Applicant was relieved vide officer order dated 20.2.1981 (Annexure-P1). He joined the said post on 22.2.1981. He represented to Respondent No.1 to count his past service (22.1.1970 to 20.2.1980) with the Respondent No.1 and followed up with some reminders [Annexure-P2 (colly)]. He was on lien of the MCD when he joined in the MHA for which he was requested to pay leave salary at the rate of Rs.74 per month and pension contribution of Rs.82 per month vide MCD letter dated 6.2.1982 (Page 80). He was reminded on 6.3.1982, 8.7.1982, 23.12.1982, 14.2.1983, 24.2.1983, 31.3.1984, 31.5.1984 etc. The Applicant was ultimately requested vide MCD letter dated 16.4.1983 (Page 90) to pay leave salary and pension contribution and to resign from MCD service or join MCD service at once as per orders of the Government of India, FR 14A, failing which his lien would be terminated. The Applicant did not pay leave salary and pension contribution. On the other hand, he requested MCD in his letter dated 24.8.1984 (Page 92), to accept his resignation with effect from 20.2.1981 (Afternoon), the date on which he was relieved from MCD service. MCD accepted his resignation and paid the admissible dues to the Applicant. However, with regard to his representation to consider his representation to consider his past services in MCD for MHA, Respondent-MCD considered Applicants request in the light of MCD Resolution No.1381 dt. 23.3.1987 and did not accept the request of the Applicant which was conveyed to him vide letter No.1136/MS/98 dated 19.2.1998. Being aggrieved, the Applicant filed the Writ Petition (WP(C) 6298/1999) in Honble High Court of Delhi which was transferred to this Tribunal vide Honble High Court Order dated 5.3.2009 which was taken up in this TA.
2. The Applicants prayers are as follows :-
i) issue a Writ of Mandamus or any other appropriate Writ, Order or direction quashing the order dated 19th February, 1998 issued by the respondent No.1 with all its consequences;
allow the Civil Writ Petition and issue an appropriate Writ, Order or Direction directing the respondent No.1 to pay its contribution towards petitioners pension and gratuity to the respondent No.2 with all its consequences.
Allow costs of the proceedings;
Pass any other order or orders which this Honble Court may deem just & equitable in the facts and circumstances of the case.
3. We heard Shri B. S. Jain, Learned Counsel for the Applicant and Ms. Biji Rajesh, the Learned Counsel for the Respondent No.1 and perused the pleadings.
4. Shri B. S. Jain in his contentions submitted that (i) the Applicant worked in the MCD for over 10 years before he joined MHA; (ii) the Government of India (MHA) had accepted to count the past service of the Applicant for pensionary purpose subject to certain conditions ; and (iii) the Applicant remitted Rs.47852 to Government of India account as per direction of the MHA. He contended that the Applicant had fulfilled his responsibility, and MHA had conveyed to count the past service for pension purpose but MCD did not pay/deposit Rs.53438 sought by MHA for the said purpose. He, therefore, submitted that Tribunal should intervene and direct MCD to remit the said amount to MHA and allow this OA.
5. Ms. Biji Rajesh, the Learned Counsel for the Respondent No.1 opposed the contentions of Shri Jain. She brought to our notice the fact that the Applicant was allowed lien to join in MHA with the condition to pay leave salary and pension contribution every month or to return to MCD before the completion of lien period. Her contention was that the Applicant did not pay the leave salary and pension contribution to MCD and requested to accept his resignation w.e.f. 20.2.1981. She refuted the contention of the Applicant that the resignation was technical resignation and submitted that the resignation with effect from which he was relieved from MCD was allowed and lien was cut off and the Applicant was fully paid his dues from MCD. Further, she stated that MCD adopted Resolution No.1280 dated 6.2.86 which was issued in Commissioners letter dated 4.2.1987 to give effect to the benefits of pension based on combined service w.e.f. 4.2.1987. Since the Applicant left MCD much before 4.2.1987, the policy would not be applicable. Further, Ms. Rajesh contended that since the Applicant did not pay leave salary and pension contribution during the lien period, the MCD was not duty bound to pay to MHA Rs.53438 as MCDs contribution towards Applicants pension.
6. Having heard the rival contentions, we find the following undisputedly admitted facts relevant for us to adjudicate the issues in this OA.
The Applicant joined MHA through direct recruitment for which the UPSC held the examination.
The Applicants lien was allowed by MCD but the Applicant did not discharge his responsibility (leave salary and pension contribution to MCD).
The Applicant requested MCD to accept his resignation retrospectively (20.2.1981) which was granted.
MCD has paid the Applicant all his dues for the service he rendered in MCD.
MHA agreed to treat Applicants past service with MCD (22.01.1970 to 20.02.1981) with certain conditions.
Applicant, as per the directions of MHA, remitted Rs.47852 (i.e. (i) amount of leave encashment along with interest=Rs.4948 and (ii) GPF along with interest=Rs.42904) to Government of India account. The GPF amount was deposited to the Government held GPF account of the Applicant.
MHA vide letter dated 25.7.1997 (Annexure-P9) requested MCD to send a draft of Rs.53438 towards payment of proportionate pension and gratuity for Applicants service in MCD; on the receipt of which the orders for counting of service would be issued.
7. On the subject of counting of past service for pensionary benefits, the MCD Commissioners letter No.F33/CED/357/C&C dated 4.2.1987 (Annexure-P12) is fully applicable. The said letter refers to the Government of India decision allowing the counting of past services for the payment of pensionary benefits and the MCD adopted the same mutatis mutandis and the same came into effect from the date of issue of the said letter i.e. 4.2.1987. In case of the Applicant, his resignation was accepted in the letter dated 24.8.1984 with effect from 20.2.1981. We are of the considered opinion that since the policy resolution was passed in 1986 and letter was issued in 1987, some years after the resignation of the Applicant, the benefits under the said Policy to count past service of MCD for pensionary purpose would not be available for the Applicant. Further, the MCD in its letter dated 9.4.1987 (Page 94) has clearly informed the Applicant that as per rules the benefit of service period are not given for payment of gratuity on tendering resignation. MCD has also submitted that as per MCD Resolution No.1381 dated 23.3.1987, it was found not feasible to pay Rs.53438 as requested by MHA.
8. We also find some rationality in the contention of the Respondents counsel that the Applicant did not pay his leave salary and pension contribution to MCD when he was on lien of MCD and working in MHA and hence he has himself cut off the right to be considered for payment by MCD towards the MCDs pensionary contribution to the MHA.
9. We note that the Applicant in good faith and expecting that MCD will discharge its responsibility, he remitted Rs.47852 vide receipt dated 23.7.1997. The said remittance has two parts (a) GPF and (b) leave encashment. The GPF part has merged with his GPF in the Government of India Account which he would have drawn after his retirement. But in case of the amount of leave encashment (Rs.4948) deposited in Government account, he would not have received back since he moved this application through WP in 1999. This amount belonging to the Applicant still remains with the Government.
10. Taking into account the total facts and circumstances of the case into account, we come to the considered conclusion that there are no ground for us to interfere in the decision of MCD issued vide order dated 19.2.1998. In the result, we find that the Applicant has not made out a case in his support and the TA is dismissed. However, in view of our observations at Para 9 within, we direct the Respondent No.2 to pay to the Applicant his leave encashment amount of Rs.4948/- with simple rate of interest of 8% per month from 23.7.1997 to till date of payment. No costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
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