Central Administrative Tribunal - Delhi
Dr. Santokh Singh (Retired) vs Union Of India Through on 21 October, 2013
Central Administrative Tribunal Principal Bench OA No.3813/2012 Reserved on: 31.07.2013 Pronounced on: 21.10.2013 Honble Dr. Birendra Kumar Sinha, Member (A) Dr. Santokh Singh (Retired) Formerly Joint Secretary and Legal Adviser Kothi No.24, Pocket 11 A, Sector 23, Rohini, Delhi 110 085. Applicant (Applicant in person) Versus 1. Union of India through Law Secretary, Department of Legal Affairs, Ministry of Law and Justice, Shastri Bhawan, New Delhi. Respondent (By Advocate: Sh. Rajesh Katyal) O R D E R
The instant Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 against the order dated 15.05.2012 by virtue of which interest has not been allowed on late payment of leave encashment and CGEGIS to the applicant. The applicant has claimed the following reliefs:-
A. Direct the respondent to pay interest @ 18% per annum from 1.2.2011 till the date of payment as per the law handed down by the Honble Supreme Court in Vijay L. Mehrotra v. State of U.P., AIR 2000 Supreme Court 3513(2) = 2000 AIR SCW 2678, in Civil Appeal No.687 of 2000, D/-31.1.2000.
B. Direct the respondent to pay at least another Rs.10 lakh as an exemplary cost for harassing and depriving the applicant of his rightful dues and infringing his fundamental right of peaceful life.
C. Direct the respondent to pay the costs of litigation to the applicant for compelling him to come to his Honble Tribunal and taking away his time and money cost and peaceful life for this purpose and this cost should not be less than what is being incurred/spent by the respondent to defend this OA.
D. Any other relief which this Honble Tribunal may deem fit in the circumstances of the case.
2. The facts of the case, in brief, are that the applicant served the Government of India for a total period of 42 years 8 months and 20 days from 10.05.1968 to 31.01.2011 including 12 years with the Defence Service. On 31.01.2011, the applicant superannuated as Joint Secretary and Legal Advisor to the Government of India vide Notification No.A-38012/08/2010-Admn.IV(LA) dated 31st January, 2011 issued on 01.02.2011. However, another notification no.A-38012/08/2010-Admn.IV(LA) dated 31st January, 2011 was also issued only on 01.02.2011 ex-post facto stating that it had been decided to hold an inquiry against the applicant under Rule 14 of the CCS (CCA) Rules, 1965. The applicant submits that this Notification has not been received by him till date. He has objected to making reference to a notification which has not been received by him asking the respondents to withdraw the same immediately. The applicant has clearly submitted that he was in the office in the afternoon on 31.01.2011 and he had never evaded duty during his service career or has ever refused any service made upon him. The applicant is an awardee of Sangram Medal for Indo-Pak War, 1971 and a number of other Military decorations. On 02.02.2011, the applicant requested the respondents for payment of his pensionary benefits in normal course, which did not receive any response. The applicant followed it up with another request on 29.03.2011 to the extent of threatening that he would return his military decorations if his request is not acceded to, and also met the Law Secretary personally. On 21.02.2012, the applicant submitted that the money due to him on account of leave encashment and CGEGIS have not been paid to him despite his repeated requests and claimed the same with interest @ 18% per annum from 31.01.2011. The applicant has relied upon the decision of the Honble Supreme Court in the matter of Vijay L. Mehrotra versus State of U.P. [AIR 2000 (SC) 3513(2)] wherein it has been held that in the case of an employee being retired after having rendered service, it is expected that all payments of retiral benefits should be made to him on the date of retirement or soon thereafter. However, the respondents issued the order of release of the leave encashment amount vide the impugned letter dated 15.05.2012 without interest. The applicant submits that he has suffered a loss on account of late receipt of his amount due in lumpsum which he would have managed a better annuity through investments. He received his GPF amount of Rs.19.00 lakhs somewhere in the beginning of March, 2012 which he ought to have received on 31.01.2011. The plea of the applicant is that the late receipt of the amount has affected his fundamental right to peaceful life guaranteed under Article 21 of the Constitution of India and, therefore, he has the remedy as provided in terms of the judgment of Honble Supreme court in the matter of Vijay L. Mehrotra versus State of U.P. (supra).
3. The respondents have filed a counter affidavit denying the prayer of the applicant. The respondents submit that the applicant, prior to his superannuation, was placed under suspension w.e.f. 29.11.2010. Subsequently, the suspension was revoked with the approval of the competent authority. However, disciplinary proceedings were initiated against him with the concurrence of CVC and a charge sheet was issued by speed post/by hand and through special messenger on 31.01.2011 that being the date of his superannuation conveying the decision of the President to hold an enquiry against the applicant under Rule 14 of the CCS (CCA) Rules, 1965. However, the respondents admit that the enquiry officer could not proceed further as the applicant had taken the plea that no charge sheet had been received by him which fact was accepted by the enquiry officer. The report of the Enquiry Officer to this effect was placed before the disciplinary authority who desired to close the case following the second stage advice of the CVC. The CVC, however, insisted to proceed against the applicant under the provisions of Rule 9 of the CCS (Pension) Rules, 1972 and also directed to investigate as to whether the applicant was involved in a forgery and also whether his legal advice tendered on a consideration in view of the evidence unearthed in 2G matter. Since the disciplinary authority has not taken any decision as the CBI has yet to furnish the reply in this regard, the applicant has been granted provisional pension under rules of Government of India. However, encashment of leave and CGEGIS has not been released due to the aforesaid reasons. Subsequently, after having obtained the view of the CVO, leave encashment amounting to Rs.9.30,010/- and CGEGIS amounting to Rs. 46,960- were released to the applicant. The question of granting penal interest did not arise as there was no administrative delay in releasing the amount once the CVO opinion in favour of the organization.
4. The respondents have relied upon the OM dated 01.05.2012 wherein it has been clarified that the encashment of leave is being granted under the Leave Rules and is not a pensionary benefits as there is no provision under CCS (Leave) Rules for payment of interest or for fixing responsibility, hence, no interest can be paid on encashment of leave. As regards CGEGIS, it has been clarified by the respondents that it does not constitute a terminal benefit as the payment under this Scheme is made in accordance with the Table of Benefit which takes into account the interest upto the date of cessation of service.
5. The short issue in this case is that whether interest on delayed payment of leave encashment and CGEGIS is admissible. The applicant has relied upon the judgment of the Honble Supreme Court in the matter of Vijay L. Mehrotra versus State of U.P. (supra). In that case the appellant had retired from service on 31.08.1997 and the payment of retiral benefits had been made to her long after her retirement in the years ranging from 27.11.1997 to 05.11.1999. The Honble Supreme court has held as under:-
3. In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay to the appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement, i.e., 31st August, 1997 till the date of payments.
5. The appeal is allowed to the above extent. It is to be noted that the order aforesaid is in respect of retiral benefits to be paid on the date of retirement or soon thereafter. In the same breath, the Honble Supreme Court went ahead to hold that there is no justification for not making the payment for months together.
6. I have taken a note of the argument of the respondents that the leave encashment and CGEGIS are not included within the term of retiral benefits. There is no provision under the CCS (Leave) Rules for payment of interest or for fixing the responsibility for late payment of the same. As regards CGEGIS, it is made under a Scheme which terminates with the date of retirement and there is no provision for payment of interest thereafter. In this respect, respondents have relied upon he OM dated 01.05.2012 of the Ministry of Personnel, PG and Pensions, Department of Pension and Pensioners Welfare. No doubt what has been stated is factually correct. Encashment of leave is in lieu of non-utilization of the leave that has accrued to the employee concerned. Therefore, it is not governed by the CCS (Pension) Rules, 1972. In this regard, the provision in the Leave Rules is as follows:-
39. Leave/Cash payment in lieu of leave beyond the date of retirement, compulsory retirement or quitting of service.
No leave shall be granted to a Government servant beyond the date of his retirement, or the date of his final cessation of duties, or the date on which he retires by giving notice to government or he is retired by Government by giving him notice or pay and allowance in lieu of such notice, in accordance with the terms nd conditions of his service, or the date of his resignation from service.
(a) where a Government servant retires on attaining the normal age prescribed for retirement under the terms and conditions governing his service, the authority competent to grant leave shall, suo motu, issue an order granting cash equivalent of leave salary for both earned leave and half pay leave, if any, at the credit of the Government servant on the date of his retirement subject to a maximum of 300 days;
(b)The cash equivalent of leave salary under Clause (a) shall be calculated as follows and shall be payable in one lumpsum as a one time settlement.-
Cash equi- Pay admissible Number of days of
valent for on the date of unutilized earned
earned retirement plus leave at credit
leave Dearness Allow- subject to the total
ance admissible of earned leave
on that date and half pay leave
exceeding 300 days
____________________
= 30 x
Cash pay Half pay leave Number of days of
ment in salary admissi- half pay leave at
lieu of ble on the date credit subject to the
half pay of retirement total of earned leave
leave plus Dearness and half pay at
component Allowance on credit not exceeding
that date 300 days.
____________________
= 30 x
Note:- The overall limit for encashment of leave including both earned leave and half pay leave shall not exceed 300 days. Likewise, CGEGIS is also under a Scheme specially formulated for this purpose and the interest is allowed during the service of the employee. The term pension as defined under Rule 3(1)(o) of the CCS (Pension) Rules, 1972 includes gratuity except when the term is used in contradistinction to gratuity but does not include dearness relief. The order of the Honble Supreme Court in the matter of Vijay L. Mehrotra versus State of U.P. (supra) is in respect the post retiral dues and does not cover other kind of dues. Yet a distinction has to be made between the pensionary and post retiral dues while the former is bound by the definition under Rule 3(1)(o) of the Pension Rules, the post retiral dues cover all that become payable due to retirement which will include other payables besides pension including the leave encashment and the CGEGIS. Hence, under the Scheme no interest is paid thereafter. Even if the course were to attract payment of interest in absence of clear provision to that effect, the respondents would be hard put to make the payment. However, the question that arises here is that can a retired government employee wait indefinitely for the payment to be made. The payment of interest is to be provided in respect of pension and DCRG only to ensure that there is a responsibility cast upon the respondents organization. Here no such responsibility is cast upon the respondents. As such, the position may be that the payment will get delayed. Though the Honble Supreme Court has not discussed this in respect of leave encashment and CGEGIS, therefore, the thinking of the Honble Court is not found emerging on this point. At the same time, from paragraph 4 of the order, it appears that 18% interest has been directed to be paid to the concerned employee. I pause here to ask myself as to whether the respondents have right to delay payment of dues in respect to CGEGIS and leave encashment as a matter of right and privilege and that what is the course open to the Courts/Tribunals to compel payment and/or compensation on delayed payment except to order of payment of interest thereon. I also take a note of the fact that though the dues under consideration do not get covered under the Pension Rules, 1972, they become payable on account of a common incident that being the retirement of the Government employee. It would not, hence, be fair or advisable to view the two groups of payment as separate in isolation or as separate entities. Therefore, I would like to be guided by the directives of the Honble Supreme Court in payment of interest.
7. From the circumstances of the case, it is quite clear that the government has not drawn up any proceedings against the applicant and in absence of such proceedings, the payment of retiral dues, which became due to the applicant have been paid to him. The fact that the matter is under reference to the CBI, which has not bothered to reply is of no consequence to this court.
8. Now I come to the point pertaining to rate of interest. The interest is awarded to enforce compliance of the orders of the Courts and to act as deterrence for default in future cases. It cannot be usurious or excessively penal. Under these circumstances, I would think it prudent to award interest at the rate which would have been payable in respect of the deposits in GPF.
9. In view of the above discussions, I allow this Original Application directing the respondents to pay the interest over the delayed payment of leave encashment and CGEGIS at the rate at which it is awarded on the deposits of GPF within a period of two months next from the date of receipt of a certified copy of this order. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) Member (A) /naresh/