Central Administrative Tribunal - Ernakulam
Union Of India Represented By vs Union Of India Represented By on 13 November, 2015
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION No.180/00365/2014
FRIDAY, this the 13th day of November, 2015
CORAM :
HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER
1 Smt.A.G.Geetha, aged 61 years, w/o P.N. Jagadeesan,
Assistant, Passport Office, Malappuram,
Residing at 'Ponoth House' Ponoth Road,
Kaloor, Cochin -682 017.
2 Smt.K.Susheela Devi, aged 60 years,
w/o late B.Mohandas, Assistant,
Passport Office, Malappuram,
Residing at 'Balavihar' East Kadungalloor,
Alwaye -2. . . . . Applicants
(By Advocate Mr.Shafik M.A.)
versus
1. Union of India represented by
Secretary to the Government of India,
Ministry of External Affairs, New Delhi.
2. The Chief Passport Officer &
Joint Secretary (CPV),
Ministry of External Affairs, New Delhi.
3. The Regional Passport Officer,
Regional Passport Office,
Panampilly Nagar, Cochin-35. . . . . Respondents
[By Mr.N.Anil Kumar, Sr.PCGC(R )]
This Original Application having been heard on 12.10.2015, this Tribunal on
13-11-2015 delivered the following:
ORDER
Per HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER Applicants are retired Assistant Passport Officers. They are aggrieved by the inaction on the part of the respondents in granting pension and other retiral benefits like DCRG, Commutation of Pension, Leave Encashment etc. from the dates on which they became due. They seek a direction to the respondents to disburse the aforesaid retirement benefits with 18% penal interest.
2. Respondents contend that the delay in payment of retiral benefits to the applicants was on account of the direction given from the Office of the Principal Chief Controller of Accounts (Pr.CCA), Ministry of External Affairs (M.E.A.) due to the pendency of OA No. 609/12 presuming that in the event of the aforesaid OA being allowed the pay of the applicants herein would have to be re-fixed. Therefore the respondents decided to grant only provisional pension to the applicants and to retain 20% of their gratuity for making adjustments of the over payment if any, provided the OA No. 609/2012 is allowed by this Tribunal. The respondents [who consist of the Union of India represented by Secretary, Ministry of External Affairs, the Chief Passport Officer & Joint Secretary(CPV) and the Regional Passport Officer, Cochin] contend that since the Principal Chief Controller of Accounts, Ministry of External Affairs being the primary decision maker in the pension matters, even respondent No.2 i.e the Chief Passport Officer (CPV) have no option but to follow the directions of the Pr.CCA as the latter is the internal auditor of the Ministry of External Affairs. Respondents further submit that though Respondent No.2 is the employer of the applicants, he does not have any statutory authority to issue directions to the Principal Chief Controller of Accounts, Ministry of External Affairs.
3. Proceedings in this OA reveal that from the very admission stage itself this Tribunal had taken exception to the stand taken by the respondents in granting only provisional pension to the applicants and the steps taken to withhold the gratuity due to the applicants. Normally, withholding of gratuity and granting of provisional pension takes place only when some disciplinary proceedings or judicial (Criminal) proceedings are pending against the official retiring from service while such proceedings are pending against him. This is for the purpose of enabling the Government to recover any monetary loss caused to the Government. Rule 9 of CCS (Pension) Rules, 1972 empowers the President of India to withhold the pension or gratuity or both either in full or in part if any judicial or departmental proceedings are pending against Government servant and if any pecuniary loss has been caused to the Government if, in any such proceedings, he is found to guilty of grave misconduct or negligence during the service. Similarly, Rule 69 of CCS (Pension) Rules prohibits payment of gratuity until conclusion of the departmental or judicial proceedings and issue of orders thereon. Payment of provisional pension is also contemplated only when such proceedings are pending against the Government employee. Rule 71 of CCS (Pension) Rules enjoins the Head of Office to ascertain and assess the Government dues payable by a Government servant due for retirement. The term 'Government dues' has been given meaning as the dues pertaining to Government accommodation including arrears of licence fee as well as accommodation beyond permissible period after retirement and the dues other than government accommodation, viz. balance of house building or conveyance or any other advance, over payments of leave salary, arrears of income tax under the Income tax Act 1961. Only in those circumstances the Head of Office is entitled to adjust government dues against retirement gratuity, not from the pension payable. It is settled law that pension is not a bounty of the Government. In State of Jharkhand and Others v. Jitendra Kumar Srivastava and Another; (2014) 2 SCC (L&S) 570, the Apex Court held :
'8. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un- blemished service. Conceptually it is so lucidly described in D.S.Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A.Desai, who spoke for the Bench, in his inimitable style, in the following words:
'The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised ? Is the employer, which expression will include even in the State, bound to pay pension ? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service ?
- What is a pension? What are the goals of pension? What Public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors. [1971] Su.S.C.R.634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any oneb�s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377 SC'.
8. It is thus hard earned benefit which accrues to an employee and is in the nature of 'property'. This right to property cannot be taken away without the due process of law as per the provisions of Article 300A of the Constitution of India.' Regarding delayed payment of pension and payment of interest, the Apex Court held in Union of India v. Justice S.S.Sandhawalia, (1994) 2 SCC 240, that :
'Once it is established that an amount legally due to a party was not paid to it, the party responsible for withholding the same must pay interest at a rate considered reasonable by the Court. Therefore, we do not see any reason to interfere with the High Court's order directing payment of interest at 12% per annum on the balance of the death- cum-retirement gratuity which was delayed by almost a year.' Similarly in S.K.Dua v.State of Haryana, (2008) 3 SCC 44, the Apex Court observed:
'If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of 'bounty' is, in our opinion, well founded and needs no authority in support thereof'.
4. As pointed out earlier, in the admission stage itself this Tribunal was astonished to see that the pension of the applicants were not paid within time from the due date and only a provisional pension was sanctioned subsequently though no judicial or departmental proceedings were pending against the applicants. Directions were issued to the respondents to find out who is responsible for causing delay in payment of pensionary benefits to the applicants. In the reply statement and additional reply statement filed by the respondents the details of payments made to the applicant till 12 December, 2014 have been given in a tabular form.
Name Pension Gratuity & CGEGIS Encashment of
Commutation Leave
of pension
Provisional
Pension for the
period July-
Sept 2013 for
Rs.68,544/-
handed over
to in Dec.
2013 Rs.10,44,386/-
representing
Provisional commutation of
Pension for the pension and
period Oct-Nov 80% of Gratuity
2013 for credited in D.D.No.340908
Rs.45,696/- bank on 12-08- dated 13-11-
credited in 2014. 2013 for Rs.
bank on 3,62,915/-
07-01-2014 handed over in
Dec.2013.
Provisional Rs.31,618/-
Pension for the credited in
period bank on 17-03-
Smt.A.G.Geetha Dec.2013 for 2014
Rs. 22,848/-
credited in
bank on
20-02-2014.
Provisional
Pension for the
period Feb-
May 2014 for
Rs.96,200/-
credited in
bank on
15-07-2014.
Rs.1,42,857/-
representing
Provision 20% of
Pension for the withheld
period June Gratuity
2014 for deposited in
Rs.24,050/- bank on
credited in 01-10-2014
bank 05-08-14
D.D.No.
702740 dated
13-11-2014
being
Provisional
Pension for Jan
2014 for
Rs.22,848/-
handed over
on 17-11-2014
Rs.11,08,796
representing
commutation of
Smt.K.Suseeladevi Update given pension and Rs.33,216
as Note 2 80% of Gratuity credited in
below credited in bank on 30-04-
bank on 12-08- 2014
2014 Rs.4,59,050/-
credited in
bank on 20-02-
Rs.1,55,371/- 2014.
representing
20% of
withheld
Gratuity
deposited in
bank on 01-10-
2014
Note: 1. D.D.for Rs.4,16,026/- towards final payment of GPF handed over to Smt.A.G.Geetha and D.D. for Rs.2,82,201/- towards final payment of GPF in respect of Smt.K.Suseeladevi deposited into her account on 26-12-2013.
2. It is informally learnt that both Applicants have started receiving their regular pension. It was also admitted by the respondents there was some delay on the part of the pension disbursing bank in disbursement of pension as the bank was not supplied with life certificate of the applicants, but the same also was rectified later.
5. It has to be noted that the Applicant No.1 retired from service on 30.6.2013 and that Applicant No.2 on 30.11.2013. The only plausible explanation of the respondents in this case is that it was on account of the directions of the Principal Chief Controller of Accounts, Ministry of External Affairs, retiral benefits of the applicants were withheld. By way of explanation they state that the Principal Chief Controller of Accounts took such a decision to withhold the pension and gratuity and retiral benefits on the ground of pendency of OA No. 609/2012. Learned counsel for the applicants, Mr.Shafik M.A. submitted that OA No. 609/2012 was relating to a seniority dispute which had nothing to do with the pensionary benefits of the applicants.
6. This Tribunal perused the record in OA No. 609/2012. It was filed by Shri M.C Das and two other Passport Granting officers seeking following relief:
(a) Declare that the respondents 1 to 3 are not entitled to seniority from the date of their initial casual engagement, but only with effect from the dates from which they were regularly absorbed i.e. 01.06.1985 in the case of the 1st and the 2nd respondents and 13.06.1985 in the case of the 3rd respondent and direct the respondents accordingly;
(b) Award costs of and incidental thereto;
(c) Pass such other orders or directions as deemed just and fit by this Honb�ble
Tribunal.
7. At this juncture, it is worthwhile to have a glance at the the service history of the applicants. Both the applicants in the present OA commenced their service in the Passport Office as daily rated Clerks. Subsequently they were regularised in service. They filed OA No. 27/2009 challenging the order rejecting their claim for seniority w.e.f. the date of regularisation of their daily rated service in 1978. The aforesaid OA No.27/2009 was allowed by this Tribunal declaring that the applicants are entitled to be granted regularisation from the initial date of their engagement as Daily Rated Clerks with effect from 15.05.1978, and are entitled to other service benefits emanating therefrom. Thereafter some of the employees who were directly recruited as Lower Division Clerks by the Staff Selection Commission filed OA No. 609/2012 seeking the afore quoted reliefs. OA No. 609/12 and connected 8 other cases were disposed of by this Tribunal vide a common order dt 21.8.2014. In order to appreciate the background of this case further it would be worthwhile to quote some portions from the above said common order:
'20. We take note that in the initial stages the Central Passport Organization under the Ministry of External Affairs had engaged daily rated clerks on the basis of selection from the lists furnished by the Employment Exchanges. Recruitment of Lower Division Clerks through the Staff Selection Commission came into vogue only at a later stage. Even then also the daily rated casual clerks already engaged continued in service. Such daily rated persons were subsequently regularized in service. According to the respondents there are over 1,000 such daily rated clerks all over the country who were working on casual basis and got regularized subsequently. We further note that apart from the orders relied on by the respondents 1 to 3 in OA No.609 of 2012 a few other orders also were passed by this Tribunal granting seniority and other service benefits retrospectively to those employees who were initially engaged on casual basis, dating back to their initial engagement. Some of those orders were subjected to judicial review by Hon'ble High Court without success. As conflicting decisions have been rendered by this Tribunal in different cases relating to the seniority of persons who were initially engaged as daily rated clerks, three OAs viz. OA Nos. 75 of 2010, 82 of 2010 and 196 of 2010 were referred to the Full Bench of this Tribunal. Those cases were jointly heard and a common order dated 12.8.2011 was passed by the Full Bench holding that the persons who were initially appointed on daily rated basis cannot claim seniority from the date of such initial engagement. Nevertheless, the full bench of this Tribunal granted other service benefits with retrospective effect from the date of their initial engagement. ......
......
22. We note that applicants in many of the OAs under consideration before us have already retired from service. Some are on the verge of retirement. Meanwhile most of the genera of officials who were initially appointed as daily rated clerks after their regularization have earned promotions, reaching up to the rank of Passport Granting Officers/ Assistant Passport Officers and some could reach only up to the level of Superintendents. So is the case of the direct recruits. No doubt, upsetting the long enjoyed seniority of such officials will cause heart burn and humiliation to many of them. Therefore, it is high time that the controversy has to be brought to a quietus which requires a broad consensus and sense of equity, justice and over and above, the willingness to accept realities.' The aforesaid OAs were disposed of by this Tribunal with the following directions:
'24. in the circumstances and in order to bring quietus to the controversy we are inclined to accept the stand taken by the 1 st respondent Ministry which we consider as their policy decision to give effect to the full Bench decision dated 12.8.2011 in OAs Nos. 75 of 2010, 82 of 2010 and 196 of 2010 rendered by this Tribunal. However, we direct the 1st respondent that while doing so not to disturb the rights of those employees who have secured orders of this Tribunal which have been confirmed by the High Court, and attained finality, prior the date of the full bench's order.'
8. A reading of the orders in OA No.27/2009 and the common order in OA No. 609/2012 and connected cases shows that the order obtained by the applicants in the case on hand having attained finality, the applicants herein was given protection of seniority they have obtained vide order in OA No. 27/2009. In fact OA No. 609/2012 was only a case of seniority dispute which would not have created any impact on the average pay and allowances of the applicants herein because the applicants' seniority was already settled and attained finality in 2009 in OA No. 27/09. It appears that there had been conflicting decisions of this Tribunal in similar other cases regarding granting of seniority to the employees from the date of their initial enrolment of service as daily rated. In some cases this Tribunal held that the regular recruits have seniority over the erstwhile daily rated employees. Consequently a full Bench of this Tribunal held that those who were appointed on daily rate cannot claim seniority from the date of their initial engagement. However, by that time the order obtained by Applicants in OA 27/2009 had attained finality. However the respondents seem to have been hesitant in giving benefits of the order in OA No. 27/2009 to the applicants herein. Therefore the applicants in OA No. 27/2009 moved MA No. 1012/2012 under Rule 24 of the CAT Procedural Rules over implementation of the final order in OA No. 27/2009. This Tribunal vide order dt 12.11.2012 in MA No.1012/2012 held:
'It has been stated that in OA 609/12 a seniority issue has been raised impleading applicants No.1-3 as respondents therein. It is for this reasons that this order has not been complied with. Be that as it may, once this order has become final, the same shall be complied with, albeit, a rider may be imposed that the compliance of the order shall be subject to the outcome of O.A. 609/12. As the Hon'ble High Court has dismissed the O.P. as early as in February 2012, respondents shall accord priority and see that the order dated 28th October 2009 is complied with, within four weeks from today. MA is accordingly allowed'.
9. The order quoted above was a shot in the arm of the Principal Chief Controller of Accounts of M.E.A. in not paying full pension, gratuity and other retiral benefits to the applicants. It appears that he neither bothered to look into the pleadings in the OA No. 609/2012 nor the fact that the order in OA 27/ 09 has attained finality. He has failed to take note that no interim order was passed in OA 609/12. What this Tribunal permitted the respondents in MA 1012/12 was to pass the order fixing the seniority subject to the rider that the order will be subject to the outcome of OA No. 609/2012. This has given a leewage to the Principal Chief Controller of Accounts to put an embargo on disbursing the retiral benefits of the applicants without noticing that there is no provision in the Pension Rules or any other law for withholding the pension or gratuity or payment of only a provisional pension and a portion of the gratuity in the absence of any pending judicial / departmental proceedings against the Government servant. The Principal Chief Controller of Accounts, MEA never bothered to get a clarification from this Tribunal in the matter of payment of pension to the applicants by moving a Miscellaneous Application either in OA 609/12 or in any other case. Without doing so, the Principal CCA of MEA seems to have arrogated himself in taking a unilateral decision to grant only provisional pension to the applicants even though no law permits him to do so. This conduct of the Principal CCA, as stated by the Respondents in this OA in their pleadings, indicate that the same has resulted in delayed payment of the pensionary benefits to the applicants.
10. It appears that Respondents No.2 & 3 were only meek officials o were forced to obey the dictates of the Principal CCA who has thrown his weight around as the final authority of deciding the pension of retired employees.
True, financial discipline and financial accuracy is required in the matter of disbursement of pension. Nevertheless, pension being a right of the retired employee having the status of property as defined in Article 300 of the Constitution of India, a Prl.CCA cannot simply arrogate himself by interpreting the rules and factual situations in his own ways, in an arbitrary manner. This Tribunal is of the view that the view taken by the Principal Chief Controller of Accounts, MEA, as revealed from records / pleadings produced by the respondents, is absolutely arbitrary and contrary to the provisions of the CCS (Pension) Rules when he decided to direct the Respondents No.2 & 3 to withhold pension and gratuity and to pay only a provisional pension and a portion of gratuity due to the applicants.
11. By any stretch of imagination, the malfeasance of the Principal Chief Controller of Accounts does not exculpate the first respondent Secretary to the Ministry of External Affairs, Government of India. He being the chief executive of the ministry ought to have seen the realities behind the arbitrary decision taken by the Principal CCA instead of treating his dictates as biblical truth. This is a malady of our administrative system, being unduely scarey of persons dealing with accounts and audit. In appropriate cases, it is the duty of the Secretary of the Department to question the logic and merits of the decision taken by the Principal CCA. If he disagrees with the view of the CCA, the Secretary has to take up the matter with Department of Expenditure, Ministry of Finance for a decision on the disputed matter. It was obligatory on the part of the first respondent to do this especially when the matter was relating to the pension of two retired Government servants under him.
12. During arguments, learned counsel for applicants, Mr. Shafik M.A submitted that due to the vigilant and conscientious approach of this Tribunal, the applicants have received their entire retiral benefits but they insist on getting interest for the delayed payments. He referred to the decision of the Supreme Court in Justice S.S.Santawalia case quoted above.
13. In the light of the afore quoted rulings of the Apex Court, this Tribunal is of the view that respondents are liable to pay interest for the delayed payments of all the reitral benefits from the date on which they became due i.e., from the date of retirement of the applicants, with 12% interest. This Tribunal directs the respondents to calculate and pay 12% interest on all the retiral benefits and portions thereof from the date of retirement of the applicants till such payments were actually paid. Such payments include pension, gratuity, commutation of pension and leave encashment.
14. The first respondent, Secretary, Ministry of External Affairs is permitted to conduct an enquiry departmentally to find out the officials responsible for the delay in payment of the retiral benefits and to fix liability of such persons and may recover the interest so awarded to the applicants from the service benefits of such officials ( including the Principal CCA, MEA) ; irrespective of whether they belong to the Indian Audit and Accounts Department or to any other department. If the Secretary, Ministry of External Affairs is incompetent to take disciplinary proceedings against the said person he may report the matter to the appropriate department for taking disciplinary proceedings and for recovery of the said amount (amount of interest payable to the applicants) from the officials concerned as 'pecuniary loss caused to the government'. The aforesaid exercise shall be completed within six weeks from the date of receipt of a copy of this order.
(U.SARATHCHANDRAN) JUDICIAL MEMBER jm