Central Administrative Tribunal - Delhi
Raj Singh Dahiya vs Commissioner Of Mcd on 5 August, 2009
Central Administrative Tribunal Principal Bench TA No.934 /2009 New Delhi, this the 5th day of August, 2009 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Raj Singh Dahiya S/o Late Kartar Singh Attendance Officer (Head Master) Civil Line Zone, Education Department Muncipal Corporation of Delhi & R/o 247, Kewal Park, Delhi-33 Applicant. (By Advocate : Shri S.S. Dahiya) Versus 1. Commissioner of MCD, Delhi Through Deputy Education Officer, Civil Line Zone, Municipal Corporation of Delhi Delhi -110054 2. Assistant Chief Accountant Civil Line Zone Municipal Corporation of Delhi 16, Rajpura Road, Delhi-110054. . Respondents. (By Advocate : Ms Menaka Guruswamy) : O R D E R : Honble Dr. Ramesh Chandra Panda, Member (A) :
Shri R.S. Dahiya, the Applicant herein, was appointed as a Primary School Teacher with the MCD on 3.1.1966 and on promotion he became Head Master on 15.10.1999 and thereafter in 2004, he was promoted as Attendance Officer. He retired on 31.10.2005. His only prayer in the present OA is to direct the Respondents to sanction terminal benefits including pension, gratuity, commutation of pension, leave encashment and bonus including interest thereon. Accordingly, he moved the Honble High Court of Delhi and filed WP (C) No.1595/2006. In view of the Govt. of India Notification dated 01.12.2008 whereby the Central Administrative Tribunal has been empowered to adjudicate the service matter of MCD, the WP (C) No.1595/2006 was transferred to this Tribunal by the order of Honble High Court dated 12.3.2009. We have taken up the said case in TA No.934/2009, which was finally heard by us on 31.7.2009.
2. The prayers of the Applicant are as follows :
(i) Direct the respondents to pay the terminal benefits i.e. pension, gratuity, pension-commutation, arrear of leave encashment, bonus, and the interest accrued on the late payment to be made by the respondents (the calculation in this regard is given in para No.21 of the writ petition).
(ii) Direct the respondents to make the provisional pension terminal benefits in accordance with Rule 64 of CCS Pension Rule 1972.
(iii) Fix the responsibility of the officer who dereliction from its duty and made to suffer the petition.
(iv)) And/or pass any other order as the Honble court may deem, fit and proper
3. We heard Shri S.S. Dahiya, learned counsel representing the Applicant and Ms. Menaka Guruswamy, learned counsel representing the Respondents and perused the pleadings.
4. Shri S.S. Dahiya, counsel for the Applicant narrated the historical background of the case to highlight grievances of the Applicant and informed that fixation of pay scale as Head Master and Attendance Officer had not been properly done by the Respondents for which his pension had been fixed at lower than admissible. He submitted that the Applicant had received commutation value of the pension, gratuity and leave encashment. In respect of the Respondents averment, that there was clerical error, he contended that even if there was error in fixation of pay, the pension could not be revised under CCS (Pension) Rules. He drew our attention to the Rule 68 and 70 of the CCS (Pension) Rules. He also contended that the entire payment for pensionary benefits had not been made to him and whatever payments had been made were done belatedly. As such the Applicant was entitled for interest on such belated payment. He drew our attention to the rejoinder where an elaborate working sheet on interest calculation at the rate of 12% has been made by the Applicant. In support of his contentions he relied on the judgment of Honble High Court of Delhi in case of Roshan Lal & Others Versus DTC decided on 28.2.2007.
5. On the contrary, Ms. Guruswamy representing the Respondents, contended that there was no disciplinary action against the Applicant but there was only a clerical error in fixation of pay when he was Head Master and Attendance Officer. However, for correcting the said error, the Applicant was put to notice vide the Respondents letter dated 4.10.2005. Respondents also issued another letter dated 31.10.2005 to the Applicant when he was still in service and was about to retire. Her contention was that Applicant had already been given an opportunity on the correction of error which took place earlier in fixation of his pay. After the corrections were carried out the pension was revised. She also submitted that the Applicant had been paid Rs.3,20,670/- vide cheque No.185474 dated 25.7.2006 towards Commutation of Pension, Rs.2,72,531/- vide cheque No.185473 on 25.7.2006 towards Gratuity and Rs.1,52,257/- on 8.5.2007 towards Leave Encashment. She contended that the case of Honble Delhi High Court cited by the learned counsel for the Applicant would not be applicable in the present case since the facts of the said case are different from the present OA. Further, she submits that Rule 70 of the CCS (Pension) Rules provides that the authority concerned can revise the pension if clerical error has been detected.
6. Having heard the rival parties, the short question that comes up for our consideration and determination is whether the retiral benefits as sought for in this OA along with interest have been paid by the Respondents to the Applicant?
7. On perusal of pleadings, we find that the Respondents have paid the Applicant the following retiral benefits sought for in this OA.
1. Gratuity Rs.2,72,531 Vide Cheque No. 185473 dated 25.7.2006
2. Commutation (i) Rs.3,20,670 Vide Cheque No.185474 Value of Pension dated 25.7.2006
(ii) Rs.2825 Vide Cheque No.216453 dated 13.7.2007
3. Amount due to Rs.1,52,257 It was paid on 8.5.2007 leave encashment
4. Difference of Rs.27512 It was paid on 28.2.2006 Pension
5. Bonus Rs.2467 It was paid on 17.8.2006
8. It is admitted by the Applicant that he was paid initially provisional pension and subsequently the full pension was being paid on the basis of revised pension fixed by the Respondents. There is no grievance with regard to the payment of pension and the Applicant has been receiving his pension regularly.
9. In respect of the payment of gratuity, it is noticed that the Applicant was paid gratuity of Rs.2,72,531/- vide cheque no.185473 dated 25.7.2006. Normally, the belated payment of gratuity, as per the Payment of Gratuity Act would attract interest. At the same time administration is to be allowed a period of upto 3 months to process the retiral benefits as admissible to the Applicant. Since the Applicant retired on 31.10.2005 and the gratuity was paid on 25.7.2006, this would attract interest for belated payment after allowing 3 months of processing period upto end of January 2006. The period for interest purpose will be 1.2.2007 to 25.7.2007. Thus the said interest would be paid to the Applicant at the simple rate of interest of 8%. Our view is forfied by Honble Supreme Court Judgment. In case of delay in payment of gratuity, it is trite that the employee has to get interest for the belated payment of gratuity by the employee. Honble Supreme Court issued direction to calculate gratuity along with interest from the date of accrual of gratuity till the date of payment in the case of State of Kerala and Others versus M. Padmanabhanai (AIR 1985 SC 356 (357). It was observed that gratuity is not a bounty to be distributed by the Government to its employees on their retirement but is a valuable right and property on their hands and any culpable delay in settlement/disbursement thereof must be visited with the penalty of payment of interest. The right to interest on delayed payment of gratuity is statutory. The Section 8 of the Payment of Gratuity Act also prescribe for payment of interest if gratuity is to be recovered from the employer to pay to employee. In view of well settled legal position and statutory provision, we direct the Respondent No.1 to pay simple interest to the Applicant on the amount of gratuity at the rate of 8% from 1.2.2007 to 25.7.2007.
10. With regard to leave encashment, it is to be noted that it is trite that leave encashment is a part of pay and salary though belatedly paid would not attract any interest thereon. Further with regard to the commutation of pension, the payments have been made in July 2006 and no interest is applicable for the same.
11. With regard to afresh dispute raised by the Applicant regarding fixation of pay, it is appropriate for us not to adjudicate the matter which has not been pressed in the present OA. Our scope in this OA is only in respect of the payment of retiral benefits and not the fixation of pay. During the arguments, counsel for the Applicant has brought out the issue of fixation of pay. There is no scope for the same in this OA. Therefore, liberty is granted to the Applicant to agitate the issue separately before the appropriate forum as may be advised.
12. In view of the above facts and circumstances of the case, we note that retirement benefits have been paid to the Applicant. However, as observed by us within, we direct the Respondent-1 to pay interest at the simple rate of 8% on belated payment of gratuity as observed by us in Para 9 within. In terms of the above directions, Original Application is disposed of. No costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber) Member (A) Member (J) /jk/