Bombay High Court
Smt. K. Radhamal W/O Mr. C. Kannan vs The General Manager/ Administrative ... on 10 April, 2018
Author: M. S. Sonak
Bench: V. K. Tahilramani, M. S. Sonak
skc JUDGMENT-WP-3733-12407-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3733 OF 2015
Smt. K. Radhamal w/o. Mr. C. Kannan ...Petitioner
Versus
The General Manager /
Administrative Officer,
Government of India, Currency
Note Press, Nashik Road & Ors. ...Respondents
WITH
WRIT PETITION NO. 12407 OF 2015
The General Manager /
Administrative Officer,
Government of India, Currency
Note Press, Nashik Road & Ors. ...Petitioners
Versus
Smt. K. Radhammal w/o. Mr. C. Kannan ...Respondent
Mr. C. T. Chandratre with Mr. V. U. Sherkhane for Petitioner
in WP 3733 of 2015 and for Respondent in WP 12407 of
2015.
Mrs. Neeta Masurkar for Respondent Nos. 1 and 3.
Mr. A. R. Gole with Mrs. Anjali Helekar for Respondent No.
2.
CORAM: SMT. V. K. TAHILRAMANI, Acting C. J. &
M. S. SONAK, J.
DATE : 10 APRIL 2018
ORAL JUDGMENT :
1] Heard the learned counsel for the parties.
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2] Rule in both the petitions. With the consent of and at
the request of the learned counsel for the parties, Rule, in both the petitions, is made returnable forthwith. 3] Since, the challenge in both these petitions is to the judgment and order dated 20th August 2013 made by the Central Administrative Tribunal (CAT) in Original Application No. 542 of 2012, it is only appropriate that both these petitions are taken up for consideration together and disposed of by a common judgment and order. 4] OA No. 542 of 2012 was instituted by Smt. K. Radhamal, wife of Mr. C. Kannan claiming the following reliefs:
"8(a) The Hon'ble Tribunal be pleased to call for the records of the case and after examining the same be pleased to allow this Original Application.
(b) The Hon'ble Tribunal be pleased to hold and declare that the Applicant is entitled to get all the legitimate claims i.e. :
(I) Death cum Gratuity (II) Service Gratuity (III) Provident Fund (IV) Compensatory Services (V) Family Pension (VI) All other consequential benefits.
(c) The Hon'ble Tribunal be pleased to issue directions to the Respondents to sanction and page 2 of 12 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:22:26 ::: skc JUDGMENT-WP-3733-12407-15 release all benefits stated in above prayer clause within a period of 3 months from the date of the Order of this Hon'ble Tribunal.
(d) Cost is provided.
(e) Any other and other reliefs be granted as the nature and circumstance of this application may require."
5] The CAT, by the impugned judgment and order dated 20th August 2013 has declined to award Smt. K. Radhamal most of the reliefs prayed for by her except that the direction has been issued to the General Manager, Currency Note Press, Nashik Road, who is the petitioner in writ petition no. 12407 of 2015, to pay to Smt. K. Radhamal Death cum Retirement Gratuity (DCRG) benefit amounting to Rs.3,820.05 together with interest thereon at the rate of 12% per annum, if, such amount, has not already been paid to the husband of K. Radhamal. The General Manager, Currency Note Press has instituted writ petition no. 12407 of 2015 to question the interest amount which has been awarded by the CAT. Smt. K. Radhamal has instituted writ petition no. 3733 of 2015 to question the denial of several other reliefs like family pension etc. claimed for by her in her OA No. 542 of 2012.
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6] Mr. Chandratre, the learned counsel for Smt. K.
Radhamal (petitioner) submits that the petitioner's husband was compulsorily retired some time in the year 1981. In terms of Rule 40 of CCS Pension Rules, he was entitled to pension or gratuity or both at the rate not less than two thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement. This benefit was unlawfully denied to the petitioner's husband and therefore, ought to be awarded or in any case, deemed to have been awarded. Thereafter, Mr. Chandratre, refers to Rule 54(2)(iii) of the Pension Rules to submit that where a government servant dies after retirement from service and was on the date of death in receipt of pension, the family of the deceased shall be entitled to family pension. On these basis, Mr. Chandratre submits that the petitioner, wife of the deceased government servant, was entitled to family pension and other benefits which form the award of such family pension. He submits that since these aspects have not been considered by the CAT, the impugned judgment and order is liable to be set aside.
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7] Mrs. Masurkar, submits that the husband of the
petitioner, after his retirement from the army was drawing pension from the army. On the basis of the same, the petitioner, continues to draw family pension. She submits that the husband of the petitioner has worked at two different institutions at one and the same time and such simultaneous service virtually amounts to a fraud on the exchequer. In any case, she submits that in the present case C. Kannan, the husband of the petitioner has put in only nine years of service, which is not at all qualifying service for the purposes of receipt of any pension. Since, the petitioner's husband was not eligible to receive any pension, there is no question of the petitioner claiming any family pension. She submits that the OA before the CAT was instituted after inordinate and unexplained delay. For all these reasons, she submits that the writ petition no. 3733 of 2015 instituted by the petitioner is liable to be dismissed. 8] Mrs. Masurkar further relies upon the statutory rules dealing with the procedure for payment of dues to families of government servant / pensioner who are missing or whose whereabouts are not known. In particular, she relies page 5 of 12 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:22:26 ::: skc JUDGMENT-WP-3733-12407-15 upon Rule 2 of Chapter 64 which provided that family of an employee can apply for payment of DCRG and if, after one year and it is only thereafter that such application can be assessed and the decision be taken with regard to payment of DCRG amounts. Once a decision is taken, if, the amount is not actually disbursed, then there is liability for payment of interest after fixing responsibility of the delay on the concerned official. She submits that the CAT, without adverting to such statutory rules, has, straightaway directed a payment of interest at the rate of 12% per annum and this is an exercise in excess of jurisdiction. On these basis, she submits that writ petition no. 12407 of 2015 may be allowed.
9] In the present case, the petitioner claims the benefit of family pension and other benefits on account of the service of her husband Mr. C. Kannan who was working with the Currency Note Press at Nashik. There is no dispute that Mr. C. Kannan has put in only nine years of service with Currency Note Press Nashik. Thereafter, he virtually absconded and was untraceable for several years. Ultimately, penalty of compulsory retirement was imposed page 6 of 12 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:22:26 ::: skc JUDGMENT-WP-3733-12407-15 upon C. Kannan some time in the year 1981.
10] Even if we are to ignore the record which suggests that C. Kannan discharged duties at two separate institutions, almost simultaneously or the delay involved in the institution of the OA before the CAT, what we find is that C. Kannan, had hardly put in nine years of service at the Currency Note Press at Nashik on the date when penalty of compulsory retirement was imposed upon him. Admittedly, as on the said date, the minimum qualifying service for eligibility of any pension was 20 years.
11] Rule 40 of the CCS Pension Rules, upon which Mr. Chandratre has relied upon, reads as follows :
"40. Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement.
(2) Whenever in the case of a Government servant the President passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these rules, the Union Public Service Commission shall page 7 of 12 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:22:26 ::: skc JUDGMENT-WP-3733-12407-15 be consulted before such order is passed.
Explanation.- In this sub/rule, the expression "pension" includes gratuity.
(3) A pension granted or awarded under sub- rule (1) or, as the case may be, under sub-rule (2), shall not be less than the amount of (Rupees Three thousand five hundred) per mensem." 12] The aforesaid Rule, does not state that a government servant who is compulsorily retired is bound to be paid pension irrespective of whether or not he may have completed the qualifying service. Although, the Rule states that a government servant, compulsorily retired from service may be granted pension or gratuity at the prescribed rates 'admissible to him on the date of his compulsory retirement'. This presupposes that on the date of compulsory retirement, the concerned government servant, was eligible for pension after completion of qualifying years of service. If this condition is not fulfilled, there is no question of any insistence on the payment of pension.
13] That apart, if, C. Kannan or for that matter his wife
were serious for claiming pension, then, the cause of
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action, if at all, for such claim, arose in the year 1981. The OA was filed in the year 2012. The same was hopelessly barred by limitation. The explanation for the delay is hardly acceptable, taking into consideration the length of such delay. Mrs. Masurkar points out that for almost two years after the date of imposing of penalty of compulsory retirement, C. Kannan, did correspond with the currency Note Press, Nashik.
14] Rule 54(2)(iii) of the CCS Pension Rules provides that where a government servant dies after retirement from service and was on the date of death in receipt of pension, then, the family of the deceased shall be entitled to family pension. From the use of the word 'and' it is quite clear that at least two pre-conditions have to be fulfilled before a claim can be made to family pension. The first is the death of the government servant concerned after he is retired from service and the second is that such government servant, on the date of his death, was in receipt of pension. Admittedly, the second condition, is not fulfilled in the present case. Neither, was C. Kannan factually in receipt of any pension post his retirement nor can it be said that C. page 9 of 12 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:22:26 ::: skc JUDGMENT-WP-3733-12407-15 Kannan was in fact eligible to receive pension but was denied the same contrary to law. Since, these pre- conditions, which are joined by the conjunction 'and' have not been fulfilled in the present case, the claim for family pension is untenable and has been rightly denied by the CAT.
15] For the aforesaid reasons, we see no merit in writ petition no. 3733 of 2015 which is liable to be dismissed and is hereby dismissed.
16] So far as writ petition no. 12407 of 2015 is concerned, we see no error in the impugned judgment and order to the extent, it directs payment of Rs. Rs.3,820.05 towards DCRG. This is because this amount was admitted as payable by the General Manager, Currency Note Press. However, there is absolutely no discussion as to why interest has been awarded. The General Manager, Currency Note Press, has made categoric statements that necessary intimation was sent to C. Kannan with regard to the receipt of amount towards DCRG. Thereafter, it is the case of C. Kannan's wife that C. Kannan was not traceable for several years.
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There is nothing on record that even the Currency Press, Nashik, was aware of the whereabouts of Kannan's wife or that Kannan's wife made any application in the prescribed form or even otherwise seeking for such amount. There is a detailed procedure for payment of dues to families of government servants / pensioners who are missing or whose whereabouts are not known. The CAT, has not even adverted to such procedure which is prescribed in such cases. Without any discussion or any reasons, the Currency Note Press, Nashik, has been saddled with liability to pay interest at the rate of 12% per annum. This does appear to be an exercise in excess of jurisdiction.
17] Accordingly, though, we do not intend to interfere with the impugned order to the extent it directs the Currency Note Press, Nashik, to pay an amount of Rs.3,820.05 towards DCRG benefits, the award of interest thereon is liable to be quashed and the same is hereby quashed. Writ petition no. 12407 of 2015 is liable to be allowed partly to such extent.
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18] Accordingly, Rule in writ petition no. 3733 of 2015 is
discharged and the Rule in writ petition no. 12407 of 2015 is made partly absolute to the aforesaid extent. There shall be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE) CHANDKA page 12 of 12 ::: Uploaded on - 13/04/2018 ::: Downloaded on - 15/04/2018 01:22:26 :::