Central Administrative Tribunal - Delhi
Sulochana Devi vs Municipal Corporation Of Delhi on 26 November, 2024
1
O.A. No. 1932/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1932/2024
Reserved on: 22.10.2024
Pronounced on: 26.11.2024
HON'BLE SHRI AJAY PRATAP SINGH, MEMBER (J)
Sulochna Devi
Aged about 63 years
W/o Jagdish Chander Malik
R/o 15, Bajrang Enclave,
Najafgarh,South West,
Delhi-58.
...Applicant
Versus
1. Municipal Corporation of Delhi through Commissioner,
Dr. Shyama Prasad Mukherjee,
Civic Centre, Jawahar Lal Nehru Marg,
New Delhi - 110 002.
2. Chief Administrative Medical Officer,
Mata Gujri Hospital,
Municipal Corporation of Delhi
Tilak Nagar, Delhi - 110 018.
...Respondents
For Applicant: Mr. J.S. Mann, counsel for applicant.
For Respondents: Ms. Neha Bairagee, Panel Counsel-MCD
O R D E R (ORAL)
AS PER AJAY PRATAP SINGH, MEMBER JUDICIAL:
The applicant, a retired LHV from CAMO Department of West Zone, MCD, by means of this Application has invoked the jurisdiction of this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 for issuance of a direction to the respondent (MCD) to release retirement gratuity Rs.12,74,130/- and arrears Rs.32,500/- with interest and also grant interest for all delayed payments at the rate of 18% per annum from the date of entitlement till the date of actual payment.2 O.A. No. 1932/2024
PRAYER
2. Applicant has claimed following main relief (s) [as extracted from the OA) reads as under:-
"a. To direct the respondents to release amount of retirement benefits etc. as per details furnished in ANNEXURE A-1 and monthly pension.
b. To direct the respondents to grant interest @ 18% or as deemed fit in respect of all delayed payments of retirement benefits including pension as per details furnished in ANNEXURE A-1.
c. Any other relief or direction which this Hon'ble Tribunal deems fit and proper in view of the facts and circumstances of the case may be granted/passed in favour of the applicant and against the respondents."
FACTS IN BRIEF
3. Shorn of unnecessary details, briefly stated facts adumbrated by the applicant that applicant superannuated on 31.05.2021 as LHV from CAMO Department of West Zone MCD with unblemished service record. Respondents have paid Commuted value of pension Rs.12,97,930/- on 12.04.2022, GIS Rs.20,000/- GPF Rs.2,36,184/- on 19.03.2022 and leave encashment amount on 31.08.2021 after delay of about one year. So also respondents have not released retirement gratuity Rs.12,74,130/- and arrears Rs.32,500/-. The respondents have not paid retirement benefits even after three and half years of retirement, that too without any justification. Hence, the applicant is entitled for interest at the rate of 18% per annum on the delayed payments as well as on the unpaid amount of retirement benefits.
4. Per contra, the respondents have contested the matter by filing short affidavit stating that the applicant was working as Lady Health Visitor, regular employee under MCD and superannuated on 31.05.2021. The details of status of disbursement of retirement benefits of the applicant are reproduced as under:-
Sl.No. Details Total Amount Status of Disbursement 1 GPF Rs.23,06,184/- Already paid 2 GIS Rs.18,496/- Already paid 3 Leave Encashment Rs.7,72,200/- Already paid 4 Gratuity Rs.12,74,130/- Bill passed on 13.07.2021 to be paid 5 Commutation of Pension Rs.12,74,130/- 06,37,065 (50% paid) 06,37,065(50% pending) 6 Pay Diff Arrears Rs.33,600/- Bill passed - to be paid 3 O.A. No. 1932/2024
5. Respondents have also made averments in the counter reply that remaining gratuity Rs.6,37,065/- and difference of pay Rs.33,600/- shall be paid as soon as funds are made available to the respondents.
SUBMISSIONS
6. Shri J.S. Mann, learned counsel for applicant argued and can be summarized as -
(i) Applicant superannuated on 31.05.2021 as regular employee of MCD with unblemished service record and entitled for retirement benefits payments on the date of superannuation on 31.05.2021 whereas respondents even after three and half years of the retirement have withheld gratuity amount Rs.6,37,065/- and pay difference arrears Rs.33,600/-. Applicant is entitled for interest @ 18% per annum on the unpaid retirement benefits.
(ii) Respondents have not released GPF, GIS, leave encashment, commuted value of pension, gratuity on retirement, hence applicant is also entitled for interest @ 18% per annum from the date of retirement till the date of actual payment as there is no lawful reason for non-payment after delay of more than one year.
(iii) O.M. dated 05.10.1999 issued by DOPPW and para 2(a) of said O.M. provides for settlement of dues in Rules 56 to 76 CCS (P) Rules, 1972. So also O.M. dated 05.10.1999 provides for settlement of retiral dues within 30 days and authorities are liable to pay for delayed period interest at the rate of 12% p.a. So also applicant entitled for interest for unpaid retiral dues as delay is solely attributed to administrative lapses and as per Rule 68 of Rules, 1972 entitled for interest @ 18% per annum.
(iv) Hon'ble Supreme Court in case of Vijay L. Mehrotra Vs. State of U.P. (2000) 2 SLR 686, held employee entitled for 18% interest p.a. for delay of more than six months on unpaid retiral dues particularly when there is justification for withholding the retiral dues.
(v) Hon'ble High Court of Delhi in case of EDMC Vs. Jeet Singh WP(C) No.9947/2021 vide Order dated 13.09.2021 has decided the 4 O.A. No. 1932/2024 identical issue whereby MCD required to pay interest at rate of 12% p.a. till date of payment. Their Lordships considered contention of MCD is not well off, as other Corporations and held same is not a good enough reason. Hon'ble High Court of Delhi Order dated 13.09.2021 is final Order and binding on this Tribunal, so also applicant entitled for interest at the rate of 12% p.a. from date of entitlement till date of actual payment on unpaid retiral dues.
(vi) Hon'ble High Court of Delhi in case NDMC Vs. Laxman Singh in WP(C) 7044/2019 held that there is no legal principle that merely because the employer in financial stringency not obliged to pay interest.
(vii) So also recently Hon'ble High Court of Delhi at New Delhi in identical case Municipal Corporation of Delhi Vs. Bijender Singh, WP(C) 7668 of 2024 decided vide Judgment dated 06.11.2024. Their Lordships directed MCD to pay interest @ 12% p.a. on retiral benefits. The MCD has challenged the Order dated 06.02.2024 in OA No.1195/2023 grant of 12% interest p.a. on ground of MCD is facing extreme financial crises and not position to pay 12% p.a. to employees. Their Lordship rejected plea of MCD to pay interest on retrial dues on GPF rate and upheld the order dated 06.02.2024 in OA No.1195/2023 (Delhi) for payment of 12% as rate of interest payable for the delay in disbursal of the retiral benefits. Hon'ble High Court of Delhi in MCD Vs. Bijender Singh (supra) in identical case upheld order of this Tribunal directing MCD to pay 12% p.a. interest on unpaid retiral dues and rejected plea of MCD that there is financial crunch with MCD.
(viii) Respondents-MCD has implemented orders passed by this Tribunal and granted interest on unpaid retiral dues at the rate of 12% p.a. In OA No.4304/2018, OA 4661/2018, OA 4108/2018, OA 933/2019, OA 3680/2019, OA 2537/2021, OA 2627/2021, OA 2655/2021, OA 2754/2021, OA 2778/2021, OA 2779/2021, OA 445/2022, OA 164/2022, OA 165/2022, OA 850/2022, OA 839/2022, OA 849/2022 vide Orders dated 20.09.2022 this Tribunal allowed above OAs directing MCD to pay interest @ 12% p.a. for delayed period of unpaid retiral dues. The Order dated 20.09.2022 in all the above OAs based on Order dated 13.09.2021 5 O.A. No. 1932/2024 by Hon'ble High Court of Delhi in WP(C) No.9947/2021, upheld order dated 24.07.2019 in OA No.4306/2018 (Delhi) directing respondents to pay dues of applicant along with 12% p.a. admissible interest till date of payment. So also in OA No.2392/2024 and OA No.262/2023 vide order dated 05.12.2023 directed MCD to pay interest @ 12 p.a. for delayed payment.
(ix) This Tribunal in OA No.4306/2018 Jeet Singh vs. EDMC granted 12% p.a. interest on delayed unpaid retiral benefits. Hon'ble High Court of Delhi in WP(C) No.9947/2021 vide order dated 13.09.2021 upheld interest rate @ 12% p.a. on unpaid retiral dues.
(x) Hon'ble Supreme Court in case of State of A.P. & Anr. Vs. Dinavahi Lakshmi Kameshwari (2021) 11 SCC 543, related to deferment of salaries/pension due to Covid-19 pandemic in peculiar facts and circumstances and situation. Little difference in facts, it is well settled in law that ratio will not be binding. The law laid down in case of Dinahahi Lakshmi Kameshwari (supra) is not applicable in case in hand due to different facts in both the cases. Applicant is entitled for interest at the rate of 12% p.a. for unpaid retiral dues as solely there are administrative lapses.
7. Ms. Neha Bairagee, Panel Counsel for MCD, the learned counsel appearing for the respondents contended and can be summarized as-
(i) Applicant superannuated on 31.05.2021 as LHV and retirement benefits paid i.e. GPF Rs. 23,06,184/-, GIS Rs.18,496/-, leave encashment Rs.7,72,200/-, commutation of pension Rs.12,97,930/-, part payment of gratuity Rs.6,37,065/- (50% paid) and only Rs.6,37,065/- (50% pending) so also pay difference arrears Rs.33,600/- to be paid. The remaining dues of balance gratuity of Rs.6,37,065/- and pay difference arrears Rs.33,600/- shall be paid at earliest on availability of the funds to the respondents.
(ii) Applicant is entitled for interest as per prevailing GPF rates on delayed retiral benefits. This Tribunal in catena of Orders on similar facts and law in OA No.1147/2022 vide Order dated 1909.2022, OA No.3812/2023 vide order dated 27.09.2024, OA No.3082/2023 vide Order dated 07.08.2024, OA No.1170/2024 vide Order dated 6 O.A. No. 1932/2024 27.09.2024, OA No.179/2024 vide Order dated 22.08.2024, OA No.1007/2024 vide order dated 08.08.2024, OA No.2318/2023 vide Order dated 07.11.2023, OA No.3790/2024 vide Order dated 30.09.2024 and OA No.2392/2024 vide order dated 31.05.2024, held that interest at the prevailing GPF rate is admissible from date of superannuation till the amount is actually paid.
(iii) Hon'ble High Court of Delhi at New Delhi Municipal Corporation of Delhi Vs. Smt. Ram Pyari [WP(C) No.7024/2024] vide interim Order dated 16.05.2024 has stayed order dated 20.09.2022 in OA No.2779/2021 directing to pay interest @ 12% per annum on unpaid retiral benefits. Applicant is entitled to interest at the GPF rate on delayed retiral benefits.
(iv) The remaining retiral dues of the applicant shall be released and interest at the rate of GPF rate shall be paid in consonance with Order passed in OA No.3586 of 2023 and law laid down in case of State of Andhra Pradesh & Anr. Vs. Dinarahi Lakshmi Kameshwari (2021) 11 SCC 54 simple interest of deferred salaries and pension.
ANALYSIS AND FINDINGS
8. I have bestowed my anxious considerations on the rival contentions of the parties and also perused the material placed on record.
THE ISSUES
9. From the above submissions of the parties and the material placed on record, in my view two issues arise for consideration, viz.-
(i) Whether the respondents in the facts of the case, are justified in not releasing payment of gratuity and arrears of difference of pay and interest thereon. So also paid rests of retirement benefits belatedly?
(ii) Whether the applicant is entitled to get any interest for the withheld retirement gratuity and difference of pay arrears amount and on delayed payment of other retirement benefits?
7 O.A. No. 1932/2024RULE OF LAW
10. Before dealing with the rival contentions advanced at the Bar, it is apposite to refer the Scheme, relevant statutory rules occupying the field, administrative instructions and precedent for payment of retirement benefits on date of retirement and interest on delayed payment as -
A. The Central Civil Services (Pension) Rules, 1972, applicable to the applicant, relevant rules are -
(i) Rule 3 - Definitions
(r) Retirement Benefits - includes pension or service gratuity and
retirement gratuity where applicable.
(ii) Rule-5- Regulation of claims to pension or family
pension.
(1) Any claim to pension or family pension shall be regulated by
the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be.
(2) The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day.
(iii) Rule 50 - Retirement/Death Gratuity (1)(a) A Government servant, who has completed five years' qualifying service and has become eligible for service gratuity or pension under Rule-49, shall, on his retirement, be granted [retirement gratuity] equal to one-fourth of his emoluments for each completed six monthly period of qualifying service, subject to a maximum of 16 ½ times the emoluments.
(iv) Rule 58 - Preparation of pension papers.
Every Head of Office shall undertake the work of preparation of pension papers in Form 7 two years before the date on which a Government servant is due to retire on superannuation, or on the date on which he proceeds on leave preparatory to retirement, whichever is earlier.
(v) Rule 60 - Completion of pension papers.
The Head of Office shall complete Part-I of Form 7 [not later than six months of the date of retirement] of the Government servant.
(vi) Rule 68- Interest on delayed payment of gratuity.
(1) If the payment gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as 8 O.A. No. 1932/2024 may be prescribed and in accordance with the instructions issued from time to time:
Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers.
(2) Every case of delayed payment of gratuity shall be considered by the Secretary of the Administrative Ministry or the Department in respect of its employees and the employees of its attached and subordinate offices and where the Secretary of the Ministry or the Department is satisfied that the delay in the payment of gratuity was caused on account of administrative lapse, the Secretary of the Ministry or the Department shall sanction payment of interest.
(3) The Administrative Ministry or the Department shall issue Presidential sanction for the payment of interest after the Secretary has sanctioned the payment of interest under sub-rule (2).
(4) In all cases where the payment of interest has been sanctioned by the Secretary of the Administrative Ministry or the Department, such Ministry or the Department shall fix the responsibility and take disciplinary action against the Government servant or servants who are found responsible for the delay in the payment of gratuity.
[Emphasis supplied] B. O.M. No.38/64/98-P&PW (F) dated 5th October, 1999 issued by Ministry of Personnel, PG & Pensions, Department of Pension & Pensioners Welfare, Government India, reads -
"Subject: Implementation of recommendations contained in para 61 of 44th Report of Parliamentary Standing Committee on Ministry of Home Affairs - Time Schedule for disbursement of Pension
- regarding.
In para 61 of the 44th Report of Parliamentary Standing Committee on MHA, the Committee had observed that timely payment of pension and retirement dues is not being made to the retiring employees of Union Government. The Committee drew attention to the Employees Provident Fund Scheme and the Notification issued by the Ministry of Labour on 27.10.97 amending the Employees Pension Scheme, 1995. In terms of provisions under Employees Provident Fund and Misc. Provisions Act., 1952, the Ministry of Labour inserted a new provision '17 A Payment of Pension' which inter-alia says that "in case the Commissioner fails without sufficient cause to settle a claim complete in all respects within 30 days, the Commissioner shall be liable for the delay beyond the said period and penal interest at the rate of 12% per annum may be charged on the benefit amount and the same may be deducted from the salary of the Commissioner." On the same analogy the Committee has recommended that similar provisions may be formulated and enforced to ensure timely payment of pension and retirement dues to the retiring employees of Union Government.
2. As per CCS (Pension) Rules, 1972, no interest is payable on delayed payment of pensions/commuted value of pension. However, the above recommendation of the Committee on delayed payment of retirement dues has been examined in this Department in consultation with Department of Personnel & Training and Department of Expenditure, Ministry of Finance and it has been decided to implement the recommendation as detailed below:-9 O.A. No. 1932/2024
(a) All pensioners' dues are to be settled by strictly following the procedures laid down in Rules 56 to 76 of CCS (Pension) Rules, 1972.
(b) Wherever delays are anticipated provisional pension should be sanctioned immediately.
(c) Any delay in processing of pension resulting in pension not being authorized on the last working day of retirement of the government servant, should be reported by the Head of Office to the next higher authority who would watch the settlement of delayed cases.
(d) In respect of delayed payment of gratuity wherever it results in payment of penal interest at the rate applicable to GPF deposits (at present 12% per annum compounded annually) under Rule 68 of CCS (Pension) Rules, 1972, Secretary of the Administrative Ministry or Department would initiate action to fix responsibility at all levels to recover the amount from the concerned Dealing Official, Supervisor and Head of Office in proportion to their salary by following the prescribed procedures for the purpose. This should be strictly enforced with immediate effect.
(e) Once it has been decided to pay gratuity the amount should be paid immediately pending a decision regarding payment of interest. This would reduce the interest liability if any on payment of delayed gratuity.
(f) In the matter of delayed payment of leave encashment, the Department of Personnel & Training in their note dated 2.8.99 has clarified that there is no provision under CCS (Leave) Rules for payment of interest or for fixing responsibility. Moreover, encashment of leave is a benefit granted under the leave rules and not a pensionary benefit.
(g) the matter of CGEGIS, the Department of Expenditure, Ministry of Finance in their U.O.No. 709/EV/99 dated 6.8.99 has clarified that payments under CGEGIS cannot be termed as terminal benefit. As payments under this Scheme are made in accordance with the Table of Benefit which takes into account interest upto the date of cessation of service, no interest is payable on account of delayed payments under the scheme. They have also clarified that CGEGIS payment cannot be withheld and no Government dues can be recovered from the accumulation except the amount claimed by the financial institution as due from the employee on account of loans taken for house building purpose.
3. Contents of this OM may also be brought to the notice of concerned attached/subordinate/field organisations under the administrative control of respective Ministry/Department, for compliance.
4. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue after consultation with the Comptroller & Auditor General of India."
[Emphasis supplied] C. Hon'ble Supreme Court has held in case of S.K. Dua Vs. State of Haryana [2008 (3) SCC 44] that even in absence of statutory rules, an employee can claim interest on retiral benefits as benefits are not in the nature of bounty. Their Lordships held as -
"14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. 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 10 O.A. No. 1932/2024 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. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
[Emphasis supplied] CASE LAW
11. Hon'ble Supreme Court judgments, whose implication was debated, reproduced for ready reference as under:-
(i) State of Kerala Vs. M. Padmanabhan Nair [(1985) 1 SCC 429] The relevant entire paragraphs reads as-
"1. Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment.
2. Usually the delay occurs by reason of non-production of the L.P.C. (last pay certificate) and the N.L.C. (no liability certificate) from the concerned Departments but both these documents pertain to matters, records whereof would be with the concerned Government Departments. Since the date of retirement of every Government servant is very much known in advance we fail to appreciate why the process of collecting the requisite information and issuance of these two documents should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made to the Government servant on the date he retires or on the following day and pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement.
3. The instant case is a glaring instance of such culpable delay in the settlement of pension and gratuity claims due to the respondent who retired on May 19, 1973. His pension and gratuity were ultimately paid to him on August 14, 1975 i.e. more than two years and 3 months after his retirement and hence after serving lawyer's notice he filed a suit mainly to recover interest by way of liquidated damages for delayed payment. The appellants put the blame on the respondent for delayed payment on the ground that he had not produced the requisite L.P.C. (last pay certificate) from the Treasury Office under Rule 186 of the Treasury Code. But on a-plain reading of Rule 186, the High Court held -- and in our view rightly -- that a duty was cast on the Treasury Officer to grant to every retiring Government servant the last pay certificate which in this case had been delayed by the concerned officer for which neither any justification nor-explanation had been given. The claim for 11 O.A. No. 1932/2024 interest was, therefore, rightly, decreed in respondent's favour.
4. Unfortunately such claim for interest that was allowed in respondent's favour by the District Court and confirmed by the High Court was at the rate of 6 per cent per annum though interest at 12 per cent had been claimed by the respondent in his suit. However, since the respondent acquiesced in his claim being decreed at 6 per cent by not preferring any cross-objections in the High Court it would not be proper for us to enhance the rate to 12 per cent per annum which we were otherwise inclined to grant."
[Emphasis supplied]
(ii) O.P. Gupta Vs. Union of India & Ors. [(1987) 4 SCC
328. Their Lordships seisin with the issue whether the applicant entitled to interest on the delayed payment of his retirement benefits. Relevant paragraph 24 & 25 reads as -
"24. Normally, this Court, as a settled practice, has been making direction for payment of interest at 12 per cent on delayed payment of pension. There is no reason for us to depart from that practice in the facts of the present case.
25. The result therefore is that the appeal succeeds and is allowed with costs. The judgment and order passed by the High Court are set aside and the writ petition is allowed. The impugned orders passed by the Director General of Works, Central Public Works Department dated 17-9-1982 and 9-4-1985 declining to permit the appellant to cross the efficiency bar at the stage of Rs 590 in the pre-revised scale of Rs 350-900 w.e.f. 5-10-1966 as also from 5- 10-1972, and also at the stage of Rs 810 in the revised scale of Rs 650-1200 w.e.f. 5-10-1973 or from any subsequent date up to 31- 3-1978, the date of his superannuation, are quashed. We direct the Director General of Works to make an order in terms of FR 25 allowing the appellant to cross the efficiency bar at the stage of Rs 590 w.e.f. 5-10-1966 and at the stage of Rs 810 w.e.f. 5-10-1973 and subsequent dates, according to the decision of the Government of India, Ministry of Finance dated 21-9-1967 as later clarified by the Ministry of Home Affairs Memorandum dated 6-4- 1979 and to re-fix his salary upon that basis and pay the difference, as also re-fix his pension accordingly. The appellant would be entitled to interest at 12 per cent per annum on the difference in salary as well as in pension. We further direct that the Government of India will make the payment to the appellant within four months from today.
[Emphasis supplied]
(iii) In R.Kapoor Vs. Director of Inspection (Painting and Publication) Income-Tax and Anr. [(1994) 6 SCC 589]. The relevant paragraphs 6 to 11 reads as -
"6. The Tribunal on a consideration of the above held that death- cum-retirement gratuity (hereinafter referred to as 'D.C.R.G.') could not be withheld merely because the employee had not vacated the allotted premises during the course of his employment. Inasmuch as the appellant continued to retain the allotted residence even after retirement, interest at the rate of 10% could be paid to the appellant.12 O.A. No. 1932/2024
7. As regard the refund of the excess damages i.e. Rs. 1070 less Rs. 176 for the period 1.10.1979 to 20.11.1981, it was directed to be refunded and the recovery of damages could be made under Fundamental Rule 48A(iv)(c)(ii)(8).
8. In this appeal before us the appellant urges that he would be entitled to 18% interest at least in view of judgment of this Court in State of Kerala and others v. M. Padmanabhan Nair . Relying on this ruling, it is submitted that there is unjustified culpable delay in issuing the No Demand Certificate. The Tribunal having held that D.C.R.G. cannot be withheld because of the pendency of the claim for damages should have awarded interest at the rate of 18% per annum.
9. The respondent has not entered appearance.
10. This Court in M. Padmanabhan Nair's case (supra) has held as under: 'Pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rats till actual payment."
11. The Tribunal having comes to the conclusion that D.C.R.G. cannot be withheld merely because the claim for damages for unauthorised occupation is pending, should in our considered opinion have granted interest at the rate of 18% since right to gratuity is not dependent upon the appellant vacating the official accommodation. Having regard to these circumstances, we feel that it is a fit case in which the award of 18% is warranted and it is so ordered. The D.C.R.G. due to the appellant will carry interest at the rate of 18% per annum from 1.6.1986 till the date of payment. Of course this shall he without prejudice to the right of the respondent to recover damages under Fundamental Rule 48A. Thus, the civil appeal is allowed. However, there shall be no order as to costs."
[Emphasis supplied]
(iv) Vijay L. Mehrotra Vs. State of U.P. [AIR 2000 Supreme Court 3513 (2) = (2001) 9 SCC 687]. The relevant paragraph 3 and 4 reproduced as -
"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., 31- 8-1997 till the date of payments."
[Emphasis supplied]
(v) In Gorakhpur University and Ors. Vs. Dr. Shitta Prasad Nagendra and Ors. [(2001) 6 SCC 591]. The relevant paragraph 5 reads as -
13 O.A. No. 1932/2024"5. We have carefully considered the submission on behalf of the respective parties before us. The earlier decision pertaining to this very University, reported in S.N. Mathur [(1996) 2 ESC 211 (All)] is that of a Division Bench, rendered after considering the principles laid down and also placing reliance upon the decisions of this Court reported in R. Kapur [(1994) 6 SCC 589 : 1995 SCC (L&S) 13 : (1994) 28 ATC 516] which, in turn, relied upon earlier decisions in State of Kerala v. M. Padmanabhan Nair [(1985) 1 SCC 429 :
1985 SCC (L&S) 278] and Som Prakash [(1981) 1 SCC 449 :
1981 SCC (L&S) 200 : AIR 1981 SC 212] . This Court has been repeatedly emphasizing the position that pension and gratuity are no longer matters of any bounty to be distributed by the Government but are valuable rights acquired and property in their hands and any delay in settlement and disbursement whereof should be viewed seriously and dealt with severely by imposing penalty in the form of payment of interest.
[Emphasis supplied]
(vi) Union of India Vs. M.S. Abdulla [2006) 6 SCC 455]. The entire judgment reads as -
"1. Leave granted.
2. The only controversy raised in this appeal is whether the respondent is entitled to payment of interest on retiral benefits at the rate of 12% per annum for the period beyond six months from the retirement or with effect from three months after the Fifth Pay Commission Report.
3. The Tribunal's view, which was accepted by the High Court, was that payment of interest should be calculated with effect from three months after the Fifth Pay Commission Report. Our attention had been drawn to a circular dated 6-5-1991 which lays down that normally with regard to payment of retiral benefits, payment of interest is to be made in case there is delay of more than six months. In our opinion, the same principle should also be applied in case of payment of interest on retiral benefits by reason of voluntary retirement on the basis of the Firth Pay Commission Report.
4. The appeal is allowed to that extent and the payment of interest shall be made for the period of delay after six months from the date of Fifth Pay Commission Report. No order as to costs."
[Emphasis supplied]
(vii) Alok Shankar Pandey Vs. Union of India [(2007) 3 SCC 545]. Relevant paragraphs 6 to 10 reads as -
"6. Considering the above facts, the Commission directed the respondent to pay 12% per annum interest on the instalments from the dates of the payment till the date of refund. This appeal has been filed claiming interest at a higher rate.
7. Learned counsel for the appellant Shri Parag P. Tripathi referred to various decisions in which this Court has granted higher rate of interest e.g. Renusagar Power Co. Ltd. v. General Electric Co. [1994 Supp (1) SCC 644] 14 O.A. No. 1932/2024
8. We are of the opinion that there is no hard-and-fast rule about how much interest should be granted and it all depends on the facts and circumstances of each case. We are of the opinion that the grant of interest of 12% per annum is appropriate in the facts of this particular case. However, we are also of the opinion that since interest was not granted to the appellant along with the principal amount, the respondent should then in addition to the interest at the rate of 12% per annum also pay to the appellant interest at the same rate on the aforesaid interest from the date of payment of instalments by the appellant to the respondent till the date of refund of this amount, and the entire amount mentioned above must be paid to the appellant within two months from the date of this judgment.
9. It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital. For example if A had to pay B a certain amount, say 10 years ago, but he offers that amount to him today, then he has pocketed the interest on the principal amount. Had A paid that amount to B 10 years ago, B would have invested that amount somewhere and earned interest thereon, but instead of that A has kept that amount with himself and earned interest on it for this period. Hence, equity demands that A should not only pay back the principal amount but also the interest thereon to B.
10. With these observations, the impugned judgment is modified and the appeal is disposed of accordingly.
[Emphasis supplied]
(viii) S.K. Dua Vs. State of Haryana [(2008) 3 SCC 44]. The relevant paragraph 14 reads as -
"14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. 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. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
[Emphasis supplied]
(ix) D.D. Tiwari Vs. Uttar Haryana Bijli, reported in (2014) 8 SCC 894. Relevant paragraphs 6 and 8 reads as -
"6. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31-10-2006 and the order of the learned Single Judge after adverting to the relevant facts and the legal position has given a direction to the respondent employer to pay the erroneously withheld pensionary benefits and 15 O.A. No. 1932/2024 the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this Court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this Court in the judgment referred [(1985) 1 SCC 429 : 1985 SCC (L&S) 278] to supra. We have to award interest at the rate of 9% per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.
7. ... ... ...
8. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date the amount falls due to the deceased employee. With the above directions, this appeal is allowed.
[Emphasis supplied]
12. Hon'ble High Court of Delhi at New Delhi, our own parent Hon'ble High Court decided the identical issue on facts and law reads as -
(i) East Delhi Municipal Corporation and Anr. Vs. Karam Singh [W.P.(C) No.8223 of 2008 vide judgment dated 07.08.2018 . This Tribunal in OA No.2196 of 2011 vide Order dated 17.07.2017 directed EDMC to grant him interest on the delayed payment of all retirement benefits including gratuity, leave encashment, commutation, GPF at prevailing 8% per annum for the delayed payment. Their Lordships in the Writ Petition (C) No.8223/2008 vide judgment dated 07.08.2018 directed respondents to release amount in four weeks failing which rate of interest shall be increased to 10% p.a. on expiry of three months reckoned from date of passing impugned order dated 17.07.2017 and dismissed the petition in limine.
(ii) East Delhi Municipal Corporation Vs. Jeet Singh, WP(C) 9947/2021, Hon'ble High Court of Delhi at New Delhi upheld order dated 24.07.2019 by this Tribunal in OA No.4306 of 2018. Jeet Singh Vs. EDMC, whereby interest for delayed payment of retiral benefits at the rate of 12% p.a. has been upheld. The Writ Petition filed by respondents-EDMC stands dismissed.
16 O.A. No. 1932/2024(iii) In case of Delhi Police Vs. Balwant Singh, WP(C) 1227 of 2012 vide judgment dated 13.03.2012, Hon'ble High Court of Delhi upheld Order dated 19.05.2011 in OA No.3933 of 2010, whereby this Tribunal granted simple interest @ 9% a.m. on delayed payment. Their Lordships observed that in case of Vijay L. Mehrotra (supra) directed that interest be paid at as high rate as 18% p.a. and upheld decision of this Tribunal granting interest at the rate of 9% p.a. and dismissed with Writ Petition.
13. The Principal Bench of this Tribunal in similar facts and legal issue passed orders as -
(i) In case of Bedram Vs. Commissioner, DMC, OA No.2537 of 2021, vide Order dated 20.09.2022. The payment or retirement benefits could not be made due to shortage of funds. This Tribunal maintaining principle of parity in facts and law in case of OA No. 4306 of 2018 vide Order dated 24.07.2019 directed respondents to pay the dues along with 12% p.a. rate of interest on delayed period. Hon'ble High Court, Delhi in WP(C) No.9947 of 2021 vide Order dated 13.09.2021 has upheld the Order dated 24.07.2019 in OA No.4309 of 2018. Their Lordships - directed respondents to pay the dues of applicant along with 12% p.a. rate of interest for delayed period.
(ii) Suresh Kumar Vs. The Commissioner, East DMC & Anr., OA No.4304 of 2018, Dashrath Vs. The Commissioner, North DMC in OA No.4108 of 2018, vide Order dated 20.09.2022, Raj Kumar Singh Vs. The Commissioner (East-DMC) in OA No.933/2019 vide order dated 20.09.2022, Kanta Vs. NDMC, OA No.3680 of 2019 vide Order dated 20.09.2022. OA No.2627 of 2021 - Agarbal Singh Vs. Commissioner, DMC vide Order dated 20.09.2022. In OA No.2655/2021 Bhawar Singh Vs. DMC vide Order dated 20.09.2022. OA No.2754/2021 Mange Ram Vs. North DMC decided vide Order dated 20.09.2022. OA No.2778 of 2021 Ishwar Vs. North DMC vide Order dated 20.09.2021. OA No.2779 of 2021 -Ram Pyari Vs. Commissioner, North DMC, vide Order dated 20.09.2022, OA No.445/2022 Rajendra Prasad Vs. North DMC vide Order dated 20.09.2022, OA No.849 of 2022 Surendra Singh Rana Vs. NDMC vide Order dated 20.09.2022, in OA No.839 17 O.A. No. 1932/2024 of 2022, Mukesh Kumar Vs. NDMC vide Order dated 20.09.2022, OA No.850 of 2022 Rajinder Singh vs. NDMC vide Order dated 20.09.2022. So also in OA No.164/2022 Satpal Vs. NDMC and OA 165/2022 Ramesh Kumar Vs. NDMC decided on 20.09.2022. The Coordinate Bench of this Tribunal placing reliance on the Order dated 13.09.2021 by Hon'ble High Court, New Delhi in WP(C) No.9947/2021 directed respondents to release remaining amount of retirement dues along with 12% p.a. rate of interest till actual date of payment.
(iii) In case of Kartar Singh Vs. MCD, OA No.262/2023 vide Order dated 05.12.2023, the Coordinate Bench of this Tribunal in identical facts and circumstances. The arguments of MCD about financial constraint also considered and rejected. This Tribunal in above matter directed respondents to pay the interest to the applicant @ 12% per annum for delayed payment.
ISSUE NO.1
14. It is clear as noon day that applicant superannuated on 31.05.2021 as LHV, regular employee under MCD with unblemished service record and entitled for retirement benefits on date of retirement dated 31.05.2021.
15. Respondents have paid belatedly as stated in the OA not rebutted in the counter reply. The retirement benefits paid to applicant are -
Sl.No. Details Total Amount Paid on 1 Commutation of Pension Rs.12,97,930/- 12.04.2022 2 GPF Rs.23,06,184/- 19.03.2022 3 GIS Rs.20,000/- Paid 4 Leave Encashment Rs.7,72,200/- Paid 5 Gratuity Rs.6,37,065/- 50% paid
16. The balance retirement benefits still not been paid and due for payment after three and half years. The details as given by respondents are -
Sl.No. Details Total Amount Remarks 1 Gratuity Rs.6,37,065/- 50% pending 2 Pay Difference Arrear Rs.33,600/- Pending 18 O.A. No. 1932/2024
17. Applicant superannuated on 31.05.2021 and governed by CCS (Pension) Rules, 1972. Rule 58 of Rules, 1972 specifically provide that preparation of pension papers starts two years before government servant is due to retire on superannuation.
18. Rule 60 of Rules, 1972 further provides that completion of pension papers not later than six months of the date of retirement of the government servant.
19. Rule 83 of Rules, 1972 further specifically provides that pension became payable to the applicant from the date on which superannuation.
20. Rule 68 of Rules, 1972 specifically mandates for payment of interest on delayed payment of gratuity. It further provides that the payment of gratuity becomes due and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid by the respondents to the applicant.
21. It is well settled proposition of law that pension and retiral dues are not a charity or bounty, but a legal right of an employee to get the same after rendering a long service as prescribed in accordance with rules. In the case of Deokinandan Prasad Vs. The State of Bihar and Others (1971) 2 SCC 330, the Constitution Bench of the Apex Court repelled the contention made on behalf of the respondents that Fundamental Rights of the petitioner are affected by the impugned order dated 12.06.1968 withholding the pension and has opined that the right to get pension is "property" and by withholding the same, the petitioner's fundamental rights guaranteed under Articles 19 (1) (f) and 31(1) are affected. The Constitution Bench thereafter having noticed various authoritative pronouncements of the High Courts and the Supreme Court and also keeping in view the provisions contained in Article 19 (1) (f) (as it stood then) in para 33 of the judgment has held as under:-
"3. 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 19 O.A. No. 1932/2024 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. However, vide Forty-Fourth Constitutional Amendment Act, 1978, Clause (f) of Article 19 (1) and Article 31 (1) being deleted and the validity of the same having been approved, it is no longer a Fundamental Right, yet it is a Constitutional Right in view of insertion of Article 300A in the Constitution under Chapter-IV (Right to Property) whereby no person can be deprived of his property save by authority of law."
22. Another Constitution Bench of the Apex Court in the matter of D. S. Nakara and Others Vs. Union of India (1983) 1 SCC 305 while endorsing its earlier view expressed in Deokinandan Prasad's case (supra) held as under:-
"The antiquated notion of pension being a bounty a gratuitous 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 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 one s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters 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 v. Iqbal Singh."
23. Recently Hon'ble Supreme Court in case R. Sundaram Vs. the Tamil Nadu State Level Scrutiny Committee, [2023 Live Law (SC) 207], Their Lordships held as under-
"11. Keeping in mind the submissions of both the parties, at the very outset we would like to state that the right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification as has been held in the case of State Of Jharkhand & Ors. vs Jitendra Kumar Srivastava & Anr.1 . The relevant paragraph of the judgment is being extracted herein:
"15. In State of W.B. v. Haresh C. Banerjee [(2006) 7 SCC 651 : 2006 SCC (L&S) 1719] this Court recognised 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. 20-6-1979, the right to property no longer remained a fundamental right, it was still a constitutional right, as provided in Article 300- A 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.20 O.A. No. 1932/2024
16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognised as a right in "property"...Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."
12. Further, in the case of Dr. Uma Agarwal vs. State of U.P.2 , this Court held that, the grant of pensionary benefits is not a bounty, but a right of the employee, and as such cannot be denied without proper justification."
[Emphasis supplied]
24. I am of the considered opinion that respondents have withheld DCRG Rs.6,37,065/- and difference of pay arrears Rs.33,600/- in highly arbitrary and illegal manner. Three is delay of more than three and half years as applicant retired on 31.05.2021 and entitled retirement benefits should have been paid on 31.05.2021 or soon thereafter. There is absolute unexplained delay and culpable delay attributed on the part of respondents not releasing DCRG amount and other retiral dues on the date of retirement. Applicant is held entitled for interest at the rate of 8% per annum on the unpaid retirement benefits as computed supra from date of entitlement till date of actual payment.
25. Now again coming to the facts of the case in hand. It is not disputed that applicant rendered blemished service to the respondents and earned the retirement benefits. The stand of respondents that same shall be released when sufficient funds will be available on basis of first come first service. Hon'ble High Court of Delhi at New Delhi, our own High Court in case of Municipal Corporation of Delhi Vs. Bijender Singh, WP(C) 7668 of 2024 Their Lordships decided vide Judgment dated 06.11.2024. Their Lordship seisin with similar issue held that action of MCD is unthinkable in law besides amounting to unfair labour practice and rejected the ground of financial constraint. This Tribunal, therefore, hold that there is no justification or any reason for the respondents in not releasing balance retirement gratuity, 7th CPC arrears as stated in the OA. The equity is in favour of the applicant.
21 O.A. No. 1932/202426. I have already extracted and examined in detail the Scheme of statutory rules - Pension Rules 1972, executive instructions and precedents to answer issues. The applicant superannuated on 31.05.2021 and there is no impediment to grant retirement benefits on date of superannuation or soon thereafter. Applicant rendered services with unblemished service record and neither any disciplinary nor any judicial proceedings pending.
27. I am of the firm view and in light of enunciation of law on the first issue, the inaction on the part of respondents in not releasing of payment of retirement gratuity, commuted value of pension and GIS after delay of more than three and half years as also is highly arbitrary and illegal as retirement dues are not bounty.
28. I, therefore, hold that there is absolutely no justification or any lawful reason for the respondents-MCD in not making full payment of retirement benefits already processed on retirement but not paid in full. Hence, the first issue is, therefore, answered against the respondents and in favour of applicant.
ISSUE NO.2
29. So far as the second issue as evident that the applicant superannuated on 31.05.2021 and after more than three and half years of delay, respondents have withheld retirement gratuity Rs.6,37,065/- and difference of pay arrears amount Rs.33,600/-. As per Scheme of the Rules, 1972 and precedents indicated hereinabove and facts of the case in hand, it is expected that all the payments of the retiral benefits should be paid on the date of retirement or soon thereafter. In the present case on hand, there is absolutely no reason or justification for not making payments after delay of more than three years and seven months of date of superannuation of the applicant.
30. The respondents/MCD has not placed any material on record to substantiate their stand that MCD, in such a dire financial crisis, is not in a position to pay interest on retiral dues of the applicant withheld unjustly. Applicant has statutory right to received his retirement benefits payments on time at time of retirement or soon thereafter. Respondents have still not paid in full said benefits.
22 O.A. No. 1932/2024Hon'ble High Court of Delhi at New Delhi in Municipal Corporation of Delhi Vs. Bijendra Singh (supra) has dealt with this issue in detail. The entire judgment for ready reference reproduced as under:-
"1. This writ petition assails order dated 6 February 2024 passed by the learned Central Administrative Tribunal, Principal Bench, New Delhi1 in OA 1195/2023.
2. The respondent, as the applicant in the OA, retired from the post of Assistant Municipal Secretary on 31 May 2019. He was aggrieved by the fact that his retiral benefits had not been paid to him. Para 5 of the impugned judgment reads thus:
"5. Since this is an identical matter and the respondent has not given any legitimate reason for such a delay, for the sake of parity, expectations of getting similar relief is not unreasonable. Thus, the OA is allowed with a direction to the respondent to release the payment of interest on the delayed payment of gratuity at the GPF rate and on the other retiral benefits @12 % per annum from the due date. This exercise shall be completed within a period of two months from the date of receipt of a copy of this Order. No costs."
3. The MCD, which has sought to challenge this decision, has raised only one contention in its writ petition, which is that it is facing extreme financial crisis and is not therefore in a position to pay interest at the rate of 12% p.a. to the respondent.
4. The contention is inherently unbelievable. It cannot be believed that the MCD does not have the funds to pay 12% interest to the respondent, as directed by the learned Tribunal. We are sanguine that the funds available with the MCD are far in excess of the interest which would be payable to the respondent @ 12% on his retiral arrears.
5. Besides, there is no iota of material on record which can support the contention that the MCD is in such dire financial crisis that it is not in a position to pay interest at the rate of 12% p.a. on the retiral dues of the respondent which have been unjustly withheld from him.
6. It must be remembered that the survival of a conscientious government servant, and his family, in the evening of their lives, is often dependent on their retiral benefits. Expeditious and prompt disbursal of retiral benefits is, therefore, of the essence, and any unjustified delay in disbursal thereof must be met with a zero tolerance approach.
7. There is a finding of 4 years' delay, on the part of the MCD, in disbursing the retiral dues of the respondent, which the MCD does not dispute. Inasmuch as the petitioner is aggrieved only by the rate of interest levied by the learned Tribunal on the respondent's retiral benefits, there is an implied acceptance that this delay is attributable solely to the MCD, for no explainable reason whatsoever. 8. It is worthwhile, here, to extract the Grounds in the present writ petition:
"A. Because the Hon'ble CAT turned a blind to the precarious situation in which the Petitioner is due to the paucity of funds at its disposal and the Petitioner 23 O.A. No. 1932/2024 Corporation is in the midst of an extreme financial crisis where it is not able to pay salaries to its existing employees let alone retiral benefits of its ex-employees.
B. Because the Hon'ble Tribunal has erred in awarding interest at 12% per annum to the respondent, the same is extremely high when considered in the light that the Petitioner has not purposefully withheld the payment of retiral benefits to the respondent but due to the extreme paucity of funds faced by the Petitioner wherein it does not even have funds to pay for day to day activities.
C. Because the Ld. Tribunal has passed the impugned order on the basis of conjectures and surmises and has failed to take into consideration the actual position of the parties, hence the impugned order is illegal; contrary to law and factual position and is liable to be quashed."
The grounds urged are completely meritless. They, in fact, amount to the MCD seeking the imprimatur of the court on their extracting work from their employees without paying their salaries and retiral benefits on time, which is unthinkable in law, besides amounting to unfair labour practice. How the MCD manages its funds is its own affair; suffice it to state, however, that the court can never be an approver to the MCD not paying its employees their wages or retiral benefits. If they default in doing so, they must suffer interest. There is no escape.
9. Learned counsel for the petitioner then submits that the interest on the retiral dues may be also at the GPF rate as was directed in the case of interest on delayed payment on gratuity.
10. There is no justification for this prayer.
11. In the first place, this submission is beyond the pleadings in the writ petition which only pleads financial hardship.
12. Secondly, Rule 68(7)(b) of the Central Civil Services (Pension) Rules, 1968, envisages interest on delayed payment of gratuity at GPF rates, whereas there is no similar dispensation for interest on delayed payment of other retiral benefits.
13. Thirdly, and in any event, the rate of interest is a matter which is within the province of discretion of the learned Tribunal. Mr Sagar, arguing for the petitioner, is unable to point out any legal infirmity in the fixing, by the learned Tribunal, of 12% as the rate of interest payable for the delay in disbursal of the retiral benefits of the respondent.
14. We are exercising Article 226 jurisdiction and are not sitting in appeal over the decision of the learned Tribunal.
15. No conceivably sustainable ground is made out, by the MCD, for us to reduce the rate of interest of 12% p.a. fixed by the learned Tribunal for the delay in payment of gratuity to the respondent.
16. The writ petition is dismissed."
[Emphasis supplied]
31. Ms. Neha Bairagee, Panel Counsel for MCD, learned counsel appearing for the respondents, has placed much reliance upon the case of State of Andhra Pradesh & Anr. Vs. Dinavahi Lakshmi 24 O.A. No. 1932/2024 Kameshewari reported in (2021) 11 SCC 543. We have carefully gone through the above cited judgment.
32. But it is settled position of law that judgment has got no universal application rather the judgment is to be tested on the basis of fact of each case. Reference in this regard be made to the judgment rendered of Hon'ble Supreme Court in the case of Dr.Subramanian Swamy Vs. State of Tamil Nadu and Others, 2014 (5) SCC 75, the relevant paragraphs 47 reads as-
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact-situation of the decision on which reliance is placed."
[Emphasis supplied]
33. Now proceeding to examine the factual aspects as was in the case of Dinavahi Lakshmi Kameshwari (supra) and found therefrom that it is a case arising from order dated 11.08.2020 in backdrop of GOMS issued by A.P. State in backdrop of the Covid-
19. The facts and situation was of Covid-19 period and with due respect in the aforesaid judgment relied upon by the learned counsel for the respondents is not applicable in the peculiar facts and circumstances of the present case in hand.
34. What comes out loud and clear that applicant superannuated on 31.05.2021 and without any justification or lawful reason, respondents did not release retirement benefits on date of retirement or soon. Some of the payments made, but still respondents have not paid retirement gratuity Rs.06,35,065/- and difference of pay arrears Rs.33,600/-. The question remains one of day in retirement benefits without any lawful justification and delay led to miscarriage of justice. Respondents have forced applicant on tortuous road to justice, for no fault more so rendering unblemished long service to the respondents.
35. In case of Alok Shankar Pandey (supra), Their Lordships has held that respondents have illegally and without lawful justification withheld the payments and interest on withheld 25 O.A. No. 1932/2024 amount is either penalty nor punishment but of normal accretion on principal amount withheld and equity demands respondents should also pay interest. Respondents have delayed the payment of retirement benefits for more than three and half years and still some of retirement benefits have not been paid for no reason at all.
36. I am of the considered opinion that respondents have withheld retirement benefits - vested legal right for more than three years without any justifiable reasons. The equity is in favour of the applicant and he is entitled to get the interest.
37. In view whereof, the Tribunal is of the considered opinion that respondents have withheld retirement benefits for more than three years from the date of superannuation i.e. 31.05.2021 for no fault of applicant and delay is solely attributed to the respondents. The second issue on unpaid retirement benefits is also answered against the respondents and in favour of the applicant.
CONCLUSION
38. For the reasons stated above, both the issues are decided in favour of the applicant and against the respondents. The respondents are hereby directed to verify and release all remaining retirement benefits specifically DCRG amount of Rs.06,37,065/- and difference of pay arrears amount Rs.33,600/-, if not already released as stated in the OA, within a period of four months from date of production of the receipt of certified copy of Order passed today with interest at the rate of 8% per annum from date of entitlement till the date of actual payment.
39. Respondents are further directed to pay the applicant simple interest at the rate of 8% per annum on the delayed payment of commuted value of pension Rs.12,97,930/-, GPF Rs.23,06,184/-, GIS Rs.20,000/-, leave encashment amount Rs.7,72,200/- and 50% of gratuity amount Rs.06,37,065/- and other dues already paid with interest @ 8% per annum within a period of four months from the date of receipt of certified copy of the Order passed today, from date of entitlement till date of actual payment.
26 O.A. No. 1932/202440. It is made clear that if the balance retirement benefits being unpaid and interest as stated and computed supra not been paid by the respondents within four months from the date of production or receipt of certified copy of order passed today, the same shall carry simple interest at the rate of 12% per annum from the date of entitlement to the date of actual payment.
41. Resultantly, Original Application is allowed and disposed off to the extent indicated herein-above.
42. There shall be no orders as to costs.
43. As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stands disposed off.
(Ajay Pratap Singh) Member (J) /na/