Central Administrative Tribunal - Delhi
Kundan vs M/O Defence on 13 September, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3472/2015
Reserved on: 5.09.2017
Pronounced on:13.09.2017
Hon'ble Ms. Praveen Mahajan, Member (A)
Shri Kundan aged about 69-1/2 years
S/o late Shri Battan R/o Village
Chakrasainpur Babugarh Post
Babugarh Cantt. Distt. Hapur ... Applicant
(By Advocate: Mr. V.P.S. Tyagi)
Versus
1. The Union of India
(Through the Secretary)
Ministry of Defence,
South Block, New Delhi-110001
2. The Director General of RVS (RV-I)
QMG's Branch AHQ
IHQ of MOD (Army)
West Block-III, R.K. Puram
New Delhi-110066
3. The Controller General of Defence Accounts
(CGDA)
Ulan Batar Marg Palam
Delhi Cantt-110010
4. The Controller of Defence Accounts
(Army)
Belvadier Complex
Meerut Cantt-250001
5. The Commandant
Equine Breeding Stud
(EBS) Babugarh Cantt.,
Distt. Hapur (U.P.) ... Respondents
(By Advocate: Mr. D.S. Mahendru)
2 OA 3472/2015
ORDER
The applicant has come before the Tribunal seeking the following reliefs:
(a) Direct the respondents to make payment of the 'Leave encashment' to the applicant in r/o the leave accumulated by him while working as CLTS w.e.f.
1.7.96 and standing at his credit upto the time he was superannuated w.e.f. 31.3.2006 on attaining age of 60 years and interest @ 12% p.a. need be also allowed him.
(b) Direct the respondents to compute and workout the arrears of "Paid Weekly Off" remaining unpaid for the period he worked as daily wages prior to the period of conferment of temporary status i.e. 1.7.96 as per provision of 7.6.88 and also be admitted arrears and paid on a/c of ad-hoc bonus to become entitled as casual labourer.
(c) The applicant also need be paid interest on the belated payment of service gratuity as per law and judicial pronouncement to avoid any penalty inflicted upon the erring authorities as per law.
(d) Pass any order or direction as deemed just and proper in the facts and circumstances of the matter with cost of this OA to be imposed and paid in favour of the applicant.
2. The case of the applicant is that he was engaged in the year 1965 on daily wage basis with the respondent department. Subsequently, he was conferred with temporary status on 10.09.1993. Even though he could not be granted substantive absorption against the regular grade, he was entitled for leave on pro-rata basis at the rate of one day for every 10 days of work. He submits that he will also be allowed to carry forward the leave at his credit on regularization. The only time when leave encashment is not allowed is on termination of service for any reason or on his quitting service. Since the applicant retired 3 OA 3472/2015 on attaining the age of 60 years on 31.03.2006, he became entitled for leave encashment for the accumulated leave at his credit on 31.03.2006, which he has earned on conferment of temporary status with effect from 1.07.1996. The OA also talks about interest to be paid on delayed payment of gratuity as per law. In the reliefs sought, the applicant has also prayed for ad hoc bonus of "paid weekly off" prior to conferment of temporary status on him on 1.07.1996, as per provisions of 7.06.1988. During the course of hearing, however, learned counsel for the applicant stated that he would not be pressing for this relief. In his additional affidavit, the applicant has made a reference to OM dated 10.09.1993, in support of his contentions.
3. The respondents in their counter state that service gratuity of Rs.33,551/- was paid to the applicant on 21.05.2008 (Annexure A-4 refers). They state that against this, the applicant filed an OA No.554/2009, claiming that payment made to him under the Gratuity Act 1972 is not applicable to him and made a prayer that his case may be considered for according ex- post-facto sanction for grant of pensionary benefits under the provisions of Rule 88 of CCS (Pension) Rules 1972. The OA was dismissed on 26.04.2010. Hence, the applicant has now raised the question of payment of interest on delayed payment of gratuity after a period of more than seven years from the date of actual payment. This, according to them, is contradictory to his claim in the earlier OA that gratuity, per se, was not applicable to him under the Gratuity Act.
4. In their counter, the respondents have dealt with the issues raised by the applicant, at length. They have made 4 OA 3472/2015 reference to various OAs filed by the applicant at different points of time seeking different reliefs from the respondents. Finally, the respondents submit that benefit of leave encashment due, has been given to all eligible employees and has already been submitted for audit and release of amount, on priority. On the point of ad hoc bonus, the respondents stand is that this claim has been raised after more than nine years from the date of his superannuation and that ad hoc bonus in respect of all eligible CLTS employees has already been paid as per existing orders at the relevant time. They contend that the applicant is not entitled to reliefs sought for and the OA is liable to be dismissed.
5. In rejoinder, the applicant has again reiterated the submissions made in his OA and pressed for his claims as sought for in the OA.
6. In the additional affidavit filed on behalf of respondents, it has been prayed that the prayers of the applicant need to be disallowed since his contentions are not admitted, as correct, by them. It has also been stated that as per Defence Service Regulations 1987, Vol.II para 592, all the documents containing old records were destroyed by burning through a Board of Officers. According to the records available with them, the applicant was initially engaged as a Daily Rated Worker since March 1980 and was granted casual labour temporary status with effect from 1.07.1996. In case the applicant has proof about his engagement with effect from 1965, as claimed, then he may submit the same to the respondents for examination. In absence of same, the applicant is not entitled to any further relief claimed.
5 OA 3472/2015
7. Heard both the learned counsels and perused the record.
8. During the course of hearing, learned counsel for the applicant, Shri V.P.S. Tyagi reiterated the submissions already made in OA. He made it clear that he would not be pressing for the relief sought regarding payment of ad hoc bonus on Paid Weekly Off. On leave encashment he again went through the provisions of OM No.51016/2/90-Estt(C) dated 10.09.1993 of DoP&T and drew the attention of the Court to para 5.3 of the same, which reads as under:
"5. (III) Leave Entitlement will be on a pro-rata basis at the rate of one day for every 10 days of works casual or any other kind of leave except maternity leave will not be admissible. They will also be allowed to carry forward the leave at their credit on their regularization. They will not be entitled to the benefits of encashment of leave on termination of service for any reason or on their quitting service."
He emphasized that since the services of the applicant had neither been terminated nor had he quit the service, he is entitled to leave encashment, as claimed. He also submitted that the applicant was entitled to interest on delayed payment of gratuity which was paid to him on 21.05.2008 i.e. almost two years after his superannuation.
9. Learned counsel for the respondents Shri D.S. Mahendru rebutted the arguments of the learned counsel for the applicant. He took the Court through various OAs filed by the applicant at different points of time. He stated that the applicant is a compulsive litigant and has been seeking piecemeal reliefs from various judicial forums. When it was pointed out by the learned counsel for the applicant Shri Tyagi that multiple reliefs could not have been claimed by the applicant, Shri Mahendru, learned 6 OA 3472/2015 counsel for the respondents stated that multiple reliefs, consequential to each other, could have been claimed.
10. On going through the facts and circumstances of the case, I find merit in the applicant's claim. In order to appreciate the prayer for payment of interest on delayed payment of gratuity, it is necessary to notice the provisions of the Payment of Gratuity Act, 1972 to the extent they are relevant. They are extracted below:
"7. Determination of the amount of gratuity (1) A person who is eligible for payment of gratuity under this Act or any person authorized, in writing to act on his behalf shall send a written application to the employer, within such time and in such form, as may be prescribed, for payment of such gratuity.
(2) As soon as gratuity becomes payable, the employer shall, whether an application referred to in sub-section (1) has been made or not, determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity so determined.
...................................
(3A) If the amount of gratuity payable under sub- section (3) is not paid by the employer within the period specified in sub-section (3), the employer shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate, not exceeding the rate notified by the Central Government from time to time for repayment of long-term deposits, as that Government may, by notification specify;
Provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on this ground."
11. The rules on the subject are clear and need no further elaboration. Though the applicant had contested the payment of gratuity and sought pensionary benefits from the Court, which 7 OA 3472/2015 later came to be rejected, the fact remains that gratuity was paid to him later than when it was due. In support of his claim for leave encashment with interest thereon, and interest on delayed payment of gratuity, the applicant has relied on the order of the Principal Bench of the Tribunal in OA 4374/2013 decided on 22.08.2016, relevant portion whereof reads as follows:
"5. In view of the above, the OA is disposed of with the direction to the respondents to pay leave encashment amount due to the applicant as per Rule alongwith interest of 8% and interest on delayed payment of DCRG as per DCRG Rules. The order shall be complied within 90 days from the receipt of a certified copy of this order."
The Tribunal, in deciding the said OA, relied on its earlier order in OA 1255/2013 decided on 13.03.2015.
12. The present case being fully covered by the order of the Tribunal in OA 4374/2013 (supra) is disposed of in same terms, directing the respondents to make payment of leave encashment to the applicant in respect of leave accumulated to him while working as CLTS with effect from 1.07.1996 and standing at his credit upto the time of his superannuation on 31.03.2006. He shall also be entitled to interest @ 8% on leave encashment and interest on delayed payment of gratuity at GPF rates, in accordance with the provisions contained in Payment of Gratuity Act. These directions shall be implemented within a period of 90 days from the receipt of a certified copy of this order. No costs.
(Praveen Mahajan) Member (A) /dkm/