Central Administrative Tribunal - Hyderabad
Abdul Razack vs The President Of Income Tax And Anr. on 12 October, 2004
Equivalent citations: 2005(3)SLJ281(CAT)
JUDGMENT S.K. Agrawal, Member (A)
1. The applicant has filed this O.A. with a prayer to quash the impugned order dated 10.7.2003 passed by the 1st respondent namely, The President of Income Tax Appellate Tribunal, New Delhi and directing him to obey, comply and carry out the directions given by this Tribunal in its common orders dated 1.3.2001 passed in O.A. No. 1774/1999 and in O.A. No. 93/2001 and regularise the service period of 357 days of the applicant as qualifying service for payment of pension and gratuity as per Central Civil Services (Pension) Rules, 1972 and to pass such other and further orders as may be considered necessary to render full and complete justice to the applicant.
2. The facts of the case in brief are that:
The applicant retired from service as Judicial Member, Income Tax Appellate Tribunal, Nagpur on superannuation on 14.2.2003. While in service the applicant was transferred from Chennai Bench to Guwahati Bench and the same was subsequently modified to Cuttack by order dated 19.7.1999. Aggrieved by the said order, the applicant filed O.A. No. 1774/99. However, during the pendency of the said O.A., the said transfer order was again modified transferring him to Nagpur and he joined in the said post on 9.12.99. The applicant had earlier filed before this Tribunal O.A. No. 93/2001 praying for payment of arrears of salary and other allowances. This Tribunal has disposed of the above O.A. by common order dated 1.3.2001 giving directions in Para 9 of the said order which read as under:
"The respondents are therefore directed to pay all arrears of salary and other allowances as are admissible under law for the period till the applicant joined at Nagpur after he was relieved from Chennai. The respondents are further directed to regularise the period of service of the applicant."
3. The applicant addressed letter dated 11.12.2002 to the Assistant Registrar, Nagpur Bench of ITAT requesting him to inform whether any order has been passed by the 1st respondent regularising the services of the applicant as ordered and directed by this Tribunal in the order dated 1.3.2001. The Assistant Registrar sent a letter dated 13.1.2003 to the applicant requesting for submission of application for regularising the period of 357 days leave as ordered and directed by this Tribunal and as desired by the Assistant Registrar, the applicant through letter dated 20.1.2003 forwarded leave application for sanction of 357 days as Extra Ordinary Leave and requesting for regularisation of the service period as per the order and directions of this Tribunal as above. The 1st respondent by order dated 11.2.2003 sanctioned 357 days Extra Ordinary Leave but did not mention about the regularisation of the said sanctioned leave period as ordered and directed by this Tribunal. Thereupon, the applicant sent representation on 10.4.2003 to the Assistant Registrar requesting that the 1st respondent has only sanctioned leave of 357 days as EOL but has not regularised the sanctioned leave period as ordered and directed by this Tribunal because mere sanction of EOL of 357 days will not entitle the applicant for receipt of pension upon retirement on 14.2.2003. The 1st respondent was thus requested to pass order to the effect that the sanctioned EOL of 357 days shall be counted and reckoned as qualifying service for pension payment purposes. An inquiry having been made by the applicant, the Assistant Registrar informed the applicant through letter dated 10.6.2003 that the Pay and Accounts Officer has rejected his pension papers on the ground that his qualifying service is less than 10 years and that the sanctioned EOL of 357 days without medical certificate cannot be considered as qualifying service for pension purposes.
4. Thereupon, the applicant again addressed a letter to the 1st respondent on 2.6.2003 drawing his attention to the representation dated 10.4.2003 of the applicant and again requesting him to pass orders to the effect that the sanctioned EOL of 357 days shall be counted and reckoned as qualifying service for pension, gratuity and other retirement benefits as per the directions of this Tribunal. However, the 1st respondent passed order dated 10.7.2003 rejecting his representation dated 10.4.2003 on the ground that the sanctioned EOL of 357 days without medical certificate cannot be counted as qualifying service for pension as per Govt. of India instructions under Rule 21 of the CCS (Pension) Rules, 1972. Rule 21 of the CCS (Pension) Rules, 1972 which lays down treatment of EOL for pensionary benefits as below:
"Under Rule 21 of the CCS (Pension) Rules, 1972, extraordinary leave granted on medical certificate qualifies for pension."
5. Aggrieved by the impugned order dated 10.7.2003 of the 1st respondent, the applicant made representation dated 4.8.2003 to the 2nd respondent praying for directions to the 1st respondent to pass order reckoning and counting the sanctioned EOL of 357 days as qualifying service for the purpose of paying pension and other retirement benefits as per law to him. When the respondents did not pass any order on the representation dated 4.8,2003, a reminder letter was sent to the 2nd respondent through Speed Post on 22.10.2003. The applicant submitted that till the date of filing of this O.A., there was no response from the 2nd respondent on the representation dated 4.8.2003. Hence, the present O.A. has been filed by the applicant seeking for the reliefs as prayed for in this O.A.
6. The applicant contended that the impugned order is wholly arbitrary and capricious offending Article 14 of the Constitution of India and hence requires to be quashed. The applicant further submitted that the 1st respondent ought to have obeyed, complied and carried out the directions of this Tribunal in O.A. Nos. 1774/99 and 93/01 dated 1.3.2001 and regularise his service period for the purpose of pension and other pensionary benefits as per law. The applicant, therefore, contended that the impugned order is passed in utter contempt and gross violation of the order and the directions of this Tribunal, hence deserves to be quashed. The impugned order has deprived the applicant of leading a reasonable and good life befitting the status of a Retired Judge by illegally denying pension and gratuity and other retiral benefits which he is lawfully entitled to like any other Government servant of his rank and status. The applicant has further submitted that when this Tribunal has ordered and directed on 1.3.2001 to regularise the service period of the applicant, it was not open for the respondents to circumvent, subvert and sit over the judgment, order and direction of this Tribunal and pass the impugned order taking aid of ambiguous Government instructions purported to have been issued under Rule 21 of CCS (Pension) Rules, 1972 and deprive and deny the applicant the pensionary and other benefits and facilities available to him under law. The applicant further submitted that the 1st respondent has failed to appreciate that the order and direction of this Tribunal should prevail over any executive instruction of any Government Department. The 1st respondent, therefore, should have ignored any Government instructions issued under Rule 21 of CCS (Pension) Rules and should have given effect to the order and direction of this Tribunal and regularise the service period of 357 days to the applicant. The applicant further submitted that he has served the Government of India for 12 years and is thus lawfully entitled to pension and other benefits as are available to any other retired Government servant of same rank, status and pay. It is not the intention of the Government to deprive or deny pensionary and medical benefits to its retired servants on mere technicalities and petty and trivial unintentional violations of service rules. Receiving pension after retirement by a Government servant is his statutory right and corresponding duty of the Government of India to pay as per service rules which are in the nature of Contract and Guarantee by the Government to the retired Government servants. The 1st respondent himself being a Government servant and holding a judicial post has failed to appreciate this clear legal position and has grossly erred in passing the impugned illegal order requiring annulment by this Tribunal.
7. In the additional papers filed by the applicant during the course of hearing, it has been submitted that the applicant was retired and was permitted to retire while under suspension on attaining superannuation age of 62 years as per Rule 11 of ITAT Members Recruitment & Conditions of Service Rules, 1963, hence there is no break in service or forfeiture of service as per Rule 27(c) of (Pension) Rules, 1972. In this connection, we feel it proper to reproduce Rule 27(c) of CCS (Pension) Rules, 1972 which has been produced by the applicant which reads as under:
"(1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases:
(a) xxx xxx xxx (b) xxx xxx xxx (c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension; (d) xxx xxx xxx (e) xxx xxx xxx (2) Notwithstanding anything contained in Sub-rule (1), the Appointing Authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave."
8. In the counter reply filed by the respondents they stated that as per CCS (Pension) Rules, the minimum service required for the purpose of granting pension is 10 years. As per Rule 21 of the said rules, the extraordinary leave other than extraordinary leave granted on medical certificate does not count as qualifying service for pension and the same was also clarified by the Government of India decision issued subsequently. Since the applicant was granted EOL of 357 days without medical certificate, the said period cannot be counted towards qualifying service and as such the applicant did not have the required minimum 10 years of service for the purpose of grant of superannuation pension. In this connection, the respondents further reiterated that an employee is eligible for pension if his claim is coming within the provisions of Rules. For superannuation pension, minimum 10 years service is essential and the extraordinary leave can be reckoned as qualifying service if the same is granted against medical certificate. Since the grant of EOL to the applicant is without medical certificate, Rule prohibits treating the said period as qualifying service for payment of pension. The respondents, therefore, stated that the contention of the applicant that he worked as Member, ITAT from 1991 to 2003 viz., for 12 years, is untenable. Even the applicant does not have the minimum 10 years of qualifying service for the purpose of granting pension. The contention of the applicant that the impugned proceedings are arbitrary, capricious etc., are untenable as the said proceedings are issued following the Rules.
9. The respondents further submitted in their reply that the authorities have complied with the orders of this Tribunal dated 1.3.2001 and regularised the absence period of the applicant by granting the leave available to him as per Rules. Hence the contention of the applicant that the authorities violated the said orders are also unsustainable and are liable to be rejected.
10. In reply to the applicant's contention made in Para 5(g) of the O.A., it has been submitted by the respondents that Rule 21 of CCS (Pension) Rules clearly indicates that all leave during service for which leave salary is payable and all extraordinary leave granted on medical certificate shall count as qualifying service provided that in the case of extraordinary leave other than granted on medical certificate, the Appointing Authority may at the time of granting of such leave allow the period of leave to count as service if such leave is granted to a Government servant due to his inability to join or rejoin to duty on account of civil commotion or for prosecuting higher scientific and technical studies. As the case of the applicant did not fall under any of these provisions, his case for counting the said period as qualifying service was correctly rejected. As the said rejection is as per the rules, the contentions in this para are also untenable and are liable to be rejected.
11. The learned Counsel for the applicant has cited certain judicial pronouncements in his favour which are as under:
(i) "Entitlement of pension-- Petitioner denied of his pension on the ground that his services are less than 10 years on 20.1.95 --Instructions were issued by the Government when daily wages were regularised and on that date petitioner had 13 years"; Nasib Singh v. State of Punjab, 1999(5) SLR 497 (P&H).
(ii) "Petitioner denied pension on the ground that he has not put in 10 years--Petitioner worked from 5.7.73 to 12.9.83 with a notional break which was later on regularised--Respondent contended that the period of notional break was a EOL--Held not so"; Sahib Singh v. State of Haryana, 1999(5) SLR 499 (P&H).
(iii) "Regularisation--Eligibility--Service during prescribed period--Recruitment of, if satisfied by a person deemed to be in service during that period by virtue of a Judicial order"; Anil K. Sharma v. State Insurance & GPF Department and Anr., 2003 SCC (L&S) 1026.
(iv) "An order passed without hearing infringing fundamental right is null and void that is to say never existed"; Nawabkhan Abbaskhan v. State of Gujarat, .
(v) "If an act is not done as prescribed by law then the same is not entertainable --On the aspect of reply statement filed by a person under no authority and oath of administration by a Private Secretary who is not empowered to administer Oath--The judgment relied upon is violation of statutory provision of filing of Election petition in language other than prescribed is not entertainable--Same analogy to be applied in the present case where Deponent is not a party to the proceedings nor is empowered to file it and Oath administration is done in contravention of Section 3 of the Oaths Act, 1969." (Gwalior Bench). (Relevant Paras 44 to 46).
(vi) "Hearing a person essential before any Adverse Order is passed", (Relevant Para 16 at page 2265).
(vii) "An order passed without giving any opportunity to a person is Nullity, that is to say no existence of an order in the eye of Law"; .
(viii) "Courts have inherent powers to do justice unless prohibited by law", .
(ix) "Suspension of a Government servant does not amount to a reduction in Rank. Suspension is a temporary deprivation of ones office or position. By reason of suspension the person suspended does not lose his office nor does he suffer any degradations. It is only that he ceases the powers to discharge the duties of the office for the time being"; Kali Prosonna Roy v. State of WB, ; Divisional Supdt. v. Mukund Lal, AIR 1957 Punjab 668.
(x) "An employee under suspension continues to be a member of the Service", D.D. Suri v. Govt. of India, 1973(1) SLR 668 (Delhi).
(xi) "Suspension is neither removal nor dismisal from service of a Government servant, therefore, Article 311(2) is not attracted for hearing"; State of Orissa v. Shiva Prashad Dass and Anr., .
12. We have perused all the facts of the case and the material placed before us and heard the arguments of the learned Counsel for the applicant as well as the respondents.
13. It is true from the facts that vide order dated 1.3.2001 this Tribunal had clearly directed the respondents to regularise the period of service of the applicant. This has, however, not been done as desired by the applicant. Although it was not mentioned in the order of this Tribunal, it implies that the order was for regularising the period of service of the applicant as per law. When going through the legal provisions, we find that EOL for 357 days sanctioned without medical certificate cannot be counted as qualifying service for the purpose pension under Rule 21 of CCS (Pension) Rules, 1972. It is, therefore, not open to the applicant to press too much on this point that whether rules permit or not, respondents were to regularise the period of service of the applicant. As per the statement furnished by the respondent authorities during the course of hearing, the total qualifying service of the applicant excluding the period of 357 days of EOL has been calculated to be 8 years, 6 months and 5 days. It is further mentioned in the statement that the applicant was under suspension from 20.3.2001 and, therefore, the period from the date of suspension uptill the date of retirement is not to be counted as qualifying service for the purpose of pension and pensionary benefits. The learned Counsel for the applicant submitted that this action of the respondent authorities in not counting the period of suspension from 20.3.2001, for the purpose of counting as qualifying service, is not as per the rules. We find sufficient strength in the arguments of the learned Counsel for the applicant that as Rule 27(1)(c) of the CCS (Pension) Rules clearly lays down that the period of suspension in cases where Government servant is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension, will not be excluded for the purpose of calculation qualifying service of a Government servant. In the present case, we find that vide Notification F.No. A-12023(1)/91-Admn.III(LA), dated 11.7.2003 published in Gazetted of India, Part-I, Section-2, issued by the Department of Legal Affairs, Ministry of Law and Justice, Government of India, the applicant stood retired while under suspension on superannuating from Government service with effect from the afternoon of 14th February, 2003 in accordance with Rule 11 of the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963. From this, it is clear that though under suspension, the applicant was permitted to retire by the Government by a specific order to that effect and as such this case would be duly covered under Rule 27(1)(c) of CCS (Pension) Rules. This would mean that his services from 20.3.2001 upto 14.2.2003 during which period he was in receipt of subsistence allowance also from the Government, will be counted towards qualifying service for the purpose of admission of pension and pensionary benefits. When this period of suspension viz., from 20.3.2001 to 14.2.2003 is also taken into account as per Rule 27(1)(c) for the purpose of calculation of qualifying service, the applicant clearly completes more than 10 years of service and as such he would be entitled for pension and pensionary benefits. When the learned Counsel for the respondents was asked to explain and give his views in respect of Rule 27(1) (c) of CCS (Pension) Rules, he could not offer any comments contrary to the view taken by us.
14. In view of the above, we hold that the period from the date of suspension of the applicant till the date of his retirement on superannuation, shall be counted for the purpose of qualifying service, in terms of Rule 27(1)(c) of CCS (Pension) Rules, 1972 and as such we hold that the applicant is eligible for pension and pensionary benefits as he is covered under the rules by fulfilling more than 10 years of qualifying service as Member of the Income Tax Appellate Tribunal. The respondents are directed to pass necessary orders granting pensionary benefits to the applicant and also calculate and pay the pension payable to him under the rules after his retirement on 14.2.2003. This should be down within a period of two months from the date of receipt of a copy of this judgment. With the above directions, the O.A. is allowed with no order as to costs.