Central Administrative Tribunal - Delhi
Vijay Mohan Singh Khosla (Pc No. 3045) ... vs Union Of India Through on 9 July, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.2354 of 2015 MA No.2103 of 2015 This the 9th day of July, 2015 Honble Mr. G.George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) 1. Vijay Mohan Singh Khosla (PC No. 3045) Age 69 S/o Late Sh. Ganesh Dass Khosla R/o 1-B, Pocket C SFS, Mayur Vihar Phase III Delhi -110096 2. Bhagwan Dass (PC No. 2518), Age 71 S/o Late Sh Durga Dass, R/o S-200/10, School Block, Shakarpur, Delhi-110092 3. Khairati Lal Batra (PC NO. 912), Age 73. S/o Late Sh. Shobhiraj Batra, R/o C-206, Krishna Apra Sapphire, Vaibhav Khand, Indrapuram, Ghaziaba (UP) 4. Hem Raj (PC No. 3885), Age 67 S/o Late Sh. Taramani R/o B-153, Gali No.2, West Vinod Nagar, Delhi -110092 5. Joti Swarup Sharma (PC No. 2027) Age 71 S/o Late Shri Anand Swarup Sharma, R/o 31/43, Gali No. 1, B.S. Colony, Vishwas Nagar, Shahadra, Delhi 110032. 6. Mangey Ram (PC No. 1746), Age 72 S/o Late Shri Sukhey Ram, R/o b-329, Swaran Jayanti Puram, Ghaziabad (UP). 7. Ramesh Chandra Sharma (PC No. 3178) Age 68 S/o Late Sh. C P Sharma, R/p G-20/145, Sector-7, Rohini, Delhi -110085 8. Udai Singh (PC NO. 3250) Age 66 S/o Late Shr. Lakhpat Singh, J-32, Man Sarover Park, Shahadra, Delhi -110032 9. Ramesh Kumar, (PC No. 3214) Age 63 S/o Late Sh. Hari Govind, H. No. 2824, Gali No. 2A, Behari Colony, Shahadra, Delhi -110032 10. Chander Parkash Verma (PC No.2525) Age 70 S/o Late Sh. Pyarey Lal Verma, R/o H. No. 239, Gali No. 11, West Guru Angad Nagar, Delhi-110092. 11. Suresh Chand Gupta (PC No. 115) Age 74, S/o Late Shri Heera Lal, R/o 4/744, Gali No. 12, Bhola Nath Nagar, Shaharda Delhi-110032. . All the above applicants are retired. Applicants (By Advocate: Shri R.K. Shukla) Versus 1. Union of India Through: The Ministry of Communication & I.T. Department of Telecommunication (DoT) Through its Secretary Sanchar Bhawan, 20, Ashoka Road, New Delhi-110001 2. The Chairman & Managing Director Mahanagar Telephone Nigam Limited, Mahanagar Doorsanchar Sadan, 9,CGO Complex, Lodhi Road, New Delhi-3 3. The Mahanagar Telephone Nigam Ltd. Through its Executive Director, Delhi Unit, Khursheed Lal Bhawan New Delhi -50 4. The Joint GM (HR) Mahanagar Telephone Nigam Ltd. Corporate Office, Mahanagar Doorsanchar Sadan 9, CGO Complex, Lodhi Road, New Delhi-110003 Respondents ORDER (ORAL) SHRI G. GEORGE PARACKEN, MEMBER (J) :
MA 2103/2015 This MA has been filed by the applicants under Rule 4(5) of CAT (Procedure) Rules, 1985 seeking permission to join together in a single Original Application. For the reasons stated therein the same is allowed.
OA 2354/2015This Original Application has been filed by the applicants seeking the following reliefs and interim relief:-
Main Reliefs:-
(a) To direct the respondents to release the arrears of pension w.e.f. 1.1.2007 to 30.9.2012 along with 9% interest as they are sufferer and running to pillar to post since 1.10.2012.
(b) To pass an order in respect of extending the benefits of judgment dt. 24.2.2015 passed in OA No.2703/2013 along with all consequential benefits.
(c) The cost of proceedings be awarded against the respondents.
(d) To allow the Original Application along with costs.
(e) Any other relief which this Honble Tribunal deem fit and proper may also be passed in the facts and circumstances of the case in favour of the applicant. Interim Relief:-
The applicants most respectfully pray that this Honble Tribunal may be pleased to disposed off the Original Application at an admission stage itself directing the respondents to examine the case of the applicants in the parameter of judgment of Prem Lata Khutail vs. UoIand in case applicants case falls within ambit of judgment of Khutail there may be given all benefits as laid down in judgment dated 24.2.2015.
2. Today when this matter was taken up for consideration, learned counsel for the applicants has submitted that the aforesaid reliefs sought by the applicants herein are squarely covered by the earlier Order of this Tribunal dated 24.02.2015 in OA No.2703/2013 - Prem Lata Khutail v. UOI and Anr. A copy of the same has been annexed by the applicant at page 48 of the paper book. The relevant portion of the said Order reads as under:-
4. I have heard learned counsel for the parties. Right to receive pension is recognized as right to property by the Constitution Bench Judgment of the Honble Supreme Court in Deokinandan Prasad vs. State of Bihar (1971) 2 SCC 330 wherein it ahs been held as under:-
29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.
30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter- affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1)(f) and 31(1) of the Constitution.
31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.
32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun.
503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law.
In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651 also, the Apex Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in property.
5. It is not disputed in this case that the Respondent-MTNL has revised the family pension payable to the Applicant to Rs.8701/- w.e.f. 01.01.2007. In my considered view, its contention that the arrears of family pension from 01.01.2007 to 30.09.2012 will be paid only when its financial position will improve is quite arbitrary. It is well settled law that the pension is not the bounty of the govt. or of any department or any organization which are liable to pay the same. The family pension is the terminal benefit being paid to widow/widower or the dependents of the government servant after his/her death. Therefore, both pension and family pension have to be treated alike, as far as their payments are concerned.
6. I, therefore, allow the OA and direct both DOT and the MTNL to ensure that the arrears of family pension admissible to the Applicant from 01.01.2007 to 30.9.2012 is paid to her with 9% interest, within a period of two months from the date of receipt of a copy of this order. There shall be no orders as to costs.
2. Thereafter, this Tribunal has also disposed of OA No.1840/2015 (Jaswant Singh and others vs. Union of India through Ministry of Communication and Information Technology and others) vide Order dated 28.5.2015. In the said Order, we have followed the aforesaid Order in OA No.2703/2013 (supra). The relevant portion of the said Order reads as under:-
According to the applicants, their cases are squarely covered by an earlier order of this Tribunal dated 24.02.2015 in OA No.2703/2013 -Prem Lata Khutail v. UOI and Anr. A copy of the same has been annexed by the applicant at page 64 of the paper book.
2. In view of the above submission of the applicants counsel, we dispose of this OA at the admission stage itself with a direction to the respondents to examine their cases in the light of the aforesaid order and if their cases are covered by the same, they shall also be given the same benefits. In any case, the respondents shall pass individual orders in the case of the each applicant within a period of two months from the date of receipt of a copy of this order.
3. Registry shall also send a copy of this OA to the respondents for further action in the matter. There shall be no order as to costs.
3. In view of the above position, this OA is also disposed of at the admission stage itself with a direction to the respondents to examine the applicants cases in the light of the aforesaid order and if their cases are covered by the same, they shall also be given the same benefits. In any case, the respondents shall pass individual order in the case of the each applicant within a period of two months from the date of receipt of a copy of this order.
4. Registry shall also send a copy of this OA to the respondents for further action in the matter. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
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