Central Administrative Tribunal - Madras
M Krishnasamy vs M/O Finance on 26 February, 2024
¢ se ee ee ee ee ee ere eee 1 OA No.310/00504/2023 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/00504/2023 Dated this Be day of February, | Two Thousand Twenty Four CORAM : HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER M. Krishnasamy, Deputy Commissioner of Customs(Retired), Commissioner of Customs, Customs House, No.60, Rajaji Salai, Chennai. .. Applicant By Advocate Mr. K.S. Saravanan Vs. -. -------- + 1.The Chief Commissioner of Customs (Chennai Zone), Customs House, No.60, Rajaji Salai, Chennai. 2.The Commisssioner of Customs, No.60, Rajaji Salai, Chennai. .. Respondents By Advocate Mr. J Vasu Maz 2 OA No.310/00504/2023 ORDER
(Pronounced by The Hon'bie Mr. M. Swaminathan, Fudicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
"to call for the records of the 1* respondent impugned letter No.nil datd nil (sent through mail No.Nil dated 01.11.2022) and quash the same and direct the respondents to grant interest at 12% per naum from -- 31.08.2010 upto 18.09.2021 and 14.10.2021 respectively for the delayed payment of gratuity and earend leave encashment and pay the same within the time framed to be fixed by the Hon'ble Tribunal and pass such other or orders as may be deemed fir and thus render justice."
2. Brief facts of the case as submitted by the applicant are as follows:
The Applicant entered service in the year 1975 as Inspector of Central Excise.. He got several Promotions and finally as Deputy Commissioner of Central Excise, in which capacity, he reached superannuation on31.08.2010, after rendering 35 years of service. He further submits that just 2 days before his superannuation, on 28.08.2010, a Charge Memo was issued to the applicant regarding an incident that took place in the year 2003 -- 2004. Against which the applicant filed OA No.1521 of 2010 before this Tribunal which by its order dated 18.10.2012 allowed the OA by setting aside the Charge Memo. "Subsequently, the respondents filed an appeal before the Hon'ble Madras High Court in W.P.No.33507 of 2013. The Hon'ble High Court by its order dated pe eee ee -
3 © scan -QAN0.310/00504/2023-------- = -= > 04.12.2018 confirmed the order of the Tribunal and dismissed the appeal of the respondents. Subsequently the respondents filed appeal before the Hon'ble Apex Court in SLP No.21750 of 2019, and the same was dismissed on 19.07.2019. After 11 years, the respondents released his gratuity and earned leave encashment. The applicant made a representation dated 30.12.2021, claiming interest for the belated payment of gratuity. The said rejected was rejected by an order 01.011.2022 of the respondents. Challenging the present OA is filed.
3. The learned counsel for the applicant submitted that the reliance on the OM dated 11.07.1979 and 10.01.1983 to reject the request of the applicant for interest on the belated payment of Gratuity as they do not relate to cases where the very Charge Memo is held to be illegal and stand vitiates by abnormal and unexplained delay. The learned counsel further submitted that on that ground only, this Tribunal had quashed the Charge Memo and the said findings confirmed by the Hon'ble High Court and as well as the Hon'ble Apex Court.
4. The learned counsel further submitted that it is well settled law, as laid down by the Hon'ble High Court and the Hon'ble Supreme court in catena of Judgments, that when the department proceedings are concluded and employee exonerated or when such proceedings are quashed as being 4 OA No.310/00504/2023 illegal and unjustified, the department is bound to grant interest on-delayed-----
payments on pensionary benefits. The ratio of the said judgments will squarely apply to the case on hand. He therefore, prayed that the relief sought by the applicant is to be allowed.
5. The learned counsel for the applicant relied on the following decisions:
G} Judgment, dated 17.12.2008 of the Hon*ble Madras High Court in WA.No.886 of 2007 reported in (2009) 3 MLJ 1 (Volume
242).
Gi) Judgment, dated 28.07.2011 of the Hon'ble Madras High Court in W.P.No.12716 of 2010, reported in (2011) 7 MLJ 1336.
6. Per contra, the learned counsel for the respondents vehemently opposed the submission of the applicant. He contended that in terms of OM dated 11.10.2022 (R-11) it is mentioned in Point No.4 (d), that in case of a Government Servant to whom provisional pension was paid and retirement gratuity was not paid on retirement, on account of departmental or judicial proceedings pending, against him on the date of retirement and despite him not having been fully exonerated of all charges on conclusion of such departmental or judicial proceedings, the competent authority decides to allow payment of pension and retirement gratuity either in full ar 5 OA No.310/00504/2023 or in part, interest shall be payable on retirement gratuity and arrears of pension, if any, from the date of expiry of a period of three months from the date on which the order for payment of pension and gratuity is issued by the competent authority up to the date of payment of pension and gratuity.
7. He further submitted that in terms of the Note dated 01.06.2022 (R-
12) issued by the Deputy Commissioner, Vigilance General c Commissionerate, Chennai Customs at para 3, it was stated that, "the Charge Memo issued was quashed by Hon'ble CAT Madras on account of inordinate and unexplained delay in initiating the proceedings against the applicant without going into the merits of the case. Hence, this is not a case fit to be considered as full exoneration and gratuity is deemed to have fallen due on the date of issue of Board's order 16/2001 dated 17.05.2021".
8. He further submitted that the Pension Forms were forwarded to the PAO on 26.07.2021 and the same was returned by the PAO stating that there was discrepancy in the spelling of the applicant instead of M:
Krishnasamy, the applicant has wrongly mentioned his name as M. Krishnaswamy in the Pension Forms submitted during 2010. The applicant vide his letter dated 28.07.2021 stated his correct name as M. _ (2) 6 OA No.310/00504/2023 Krishnasamy and submitted a copy of Aadhaar Card and PAN Card as supporting document. Subsequently, after obtaining vigilance clearance _ on 11.08.2021, Account section, submitted the revised pension papers of the applicant to the PAO section for further action and the applicant was paid DCRG and Leave Encashment on 15.09.2021 and 12.10.2021 respectively. As there was no delay on the part of the department. the --
applicant is not entitled to the relief sought for and the OA is liable to be dismissed.
9. Heard the learned counsel for the applicant Mr. K.S. Saravanan and the learned counsel for the respondents, Mr. J. Vasu, and perused the pleadings and the materials placed on record. I have also gone through the judgments cited by the learned counsel for the applicant.
10. It is clear from the record that just 2 days before the superannuation of the applicant, a Charge Memo was issued on 28.08.2010 alleging that while the applicant was working as Assistant Commissioner of Central Excise in Gujarat in the year 2003, he had failed to note a wrong assessment made by his subordinate. As the Charge Memo was issued after 7 years and that too on the verge of his retirement, the applicant filed OA No.1521 of 2010 challenging the said Charge Memo and this Tribunal by an order dated 18.10.2012 quashed the Charge Memo which was ae ar 7 OA No.310/00504/2023 subsequently upheld by the Hon'ble High Court as well as the Hon'ble Apex Court in appeal by the respondent department. The Hon'ble High Court held that even on merits, the charges were flimsy and that is only a_ case of minor negligence, even going by the allegation in the charge memo. When once the Charge Memo was quashed by the Tribunal and which has been unequivocally confirmed by the higher foras, there was no justification for the respondents to have delayed the payment of retiral benefits of the applicant. In this regard, it is worthwhile to extract the relevant portion of the judgment of the Hon'ble Madras High Court, reported in 2011 (7) MLJ 1336, relied on by the learned counsel for the applicant:
"11. Therefore, the principles laid down by the Division Bench of this Court and the Hon'ble Apex Court make it crystal clear that once the charge memo issued against a delinquent officer is quashed or once the dismissal order passed against the public servant was declared invalid in a civil proceedings, the delinquent officer is deemed to have been in service continuously not facing any delinquency. The said principle is squarely applicable to the facts of the instant case as in this case also the Hon'ble Apex Court has quashed the charge memo issued against the petitioner and as such, he is deemed to have been in service without any departmental proceedings on the date of his retirement, i.¢., on 28.02.2002. In view of the above said reasons, this Court has no hesitation to hold that the petitioner cannot be deprived or denied his right to claim interest for the delayed payment of retiral benefits on the ground of pendency of disciplinary proceedings pending against him earlier.
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14. The learned Standing Counsel for the second C4 3 OA No.310/00504/2023 respondent placed reliance on the second proviso to Rule 45-A(1) which reads hereunder : "Provided further that no such interest shall be payable, - (a) where the institution of departmental or judicial proceeding against the retiring Government servant concemed is pending ; ..." A reading of the above said proviso makes it abundantly clear that no interest shall be payable only where the institution of departmental or judicial proceeding against the retiring .
Government servant is pending. Therefore, the said provision is applicable to the government servant against whom the disciplinary proceedings is pending at the time of retirement.
15. As far as the case of the petitioner is concerned, admittedly he is standing on a different footing. As already pointed out, once the charge memo issued against -
him has been quashed by the Hon'ble Apex Court, the petitioner is continuously deemed to have been in service even at the time of retirement on_28.02,2002. Therefore, L am unable to countenance with the above said contention of the learned counsel for the second respondent.
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17. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in S.K.Dua Vs. State of Haryana reported in 2008 (3) SCC 44. The Hon'ble Apex Court in the said decision has held as hereunder:
14. In the, 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 circumstances on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part I of the Constitution relying on Articles 14, 19 and 21 of the Constitution.
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I found the same principle is reiterated in the Judgment of the Hon'ble Madras High Court in WA.No.886 of 2007 dated 17.12.2008 reported in (2009) 3 MLJ 1 (Volume 242) cited by the applicant. In view of the principles laid down by the Hon'ble Apex court and the Hon'ble Madras High court I have no hesitation to hold that the applicant is entitled to seek the relief of interest. Further, an employee is entitled to claim interest on belated payment of pension and other retiral benefits, even in the absence of statutory rules/administrative instructions or guidelines, under Part III of the Constitution of India relying on Articles 14, 19 and 21 of the Constitution.
11. In view of the aforesaid reasons, the impugned order dated 01.11.2022 passed by the 1* respondent is hereby quashed and set aside. Consequently, the respondents herein is directed to pay interest at the rate of 6% per annum for the delayed disbursement of retiral benefits to the applicant, as prayed for by him.. It is made clear that the said exercise shall be completed within 2 months from the date of receipt of copy of this order.
12. In the result the OA is allowed as indicated above. No costs | | |
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