Central Administrative Tribunal - Delhi
Anil Kumar Mittal vs M/O Water Resources on 29 January, 2025
1
OA 1024/2019
Item No.16/C-1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1024/2019
Order reserved on: 03.01.2025
Order pronounced on: 29.01.2025
Hon'ble Mr. Rajinder Kashyap, Member (A)
Shri Anil Kumar Mittal
S/o Late Shri Bishambhar Dayal Mittal,
House No. 121, Pocket V, Mayur Vihar Phase 1,
Delhi -110091,
Aged about 60 years, Group A (Deputy Director)
... Applicant
(By Advocate: Mr. Abhay Kumar Srivastava)
Versus
1. Union of India,
Through Secretary,
Ministry of Water Resources, RD&GR,
Sharam Shakti Bhawan, Rafi Marg,
New Delhi-110001.
2. The Secretary,
Department of Personnel & Training
Ministry of Personnel, Public Grievances & Pensions
North Block, New Delhi-110001.
3. Chairman,
Central Water Commission,
3rd Floor, South Wing, Sewa Bhawan, R.K. Puram,
New Delhi-110066
... Respondents
(By Advocates: Mr. Pradeep Kumar Sharma)
2
OA 1024/2019
Item No.16/C-1
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant in para 8 of the OA has prayed for the following reliefs: -
"(a) Declare the Impugned order/letter dated 17.12.2018(Annexure A1) informing therein that Sri Anil Kumar Mittal, Dy. Dir (Retd.) has been sanctioned provisional pension vide PAO, CWC letter dated 30.11.2018 as his vigilance clearance was not received as illegal, arbitrary, discriminatory and violation of principles of natural justice and quash/set aside the same.
(b) Declare that the Applicant is entitled for regular pension, commutation of pension, Gratuity, leave encashment w.e.f 01.07.2018 and direct the Respondents to grant him regular pension, commutation of pension, Gratuity, leave encashment w.e.f 01.07.2018 with all the consequential benefits as neither any disciplinary or judicial proceedings are instituted against the applicant till the date of his retirement i.e 30.06.2018 nor he has been placed under suspension.
(c) Direct the respondents to make payment of penal interest @12% per annum on all the retirement benefits mentioned aforesaid under para (b) for causing inordinate delay in making payment w.e.f 01.07.2018 till the date of making payment thereof.
(d) Award exemplary cost for litigation expenses against the respondents and in favour of the Applicant in the facts and circumstances of the case in the interest of justice.
(e) May also pass any other and further orders / directions as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case against the respondents and in favour of the Applicant to meet the ends of justice." `
2. Brief facts of the case are that the applicant joined as Design Assistant in the Central Water Commission (CWC) on 27.06.1983. He was appointed on promotion from Junior Time Scale (Assistant Director/ Assistant Executive 3 OA 1024/2019 Item No.16/C-1 Engineer) to Senior Time Scale (Deputy Director/Executive Engineer) vide CWC order dated 04.11.2011 and he superannuated from the post of Deputy Director, CWC, New Delhi on 30.06.2018. In the office order dated 28.06.2018, it is mentioned that MoWR, RD & GR has not yet cleared the applicant‟s Vigilance angle and their reply is awaited. However, „Vigilance Clearance‟ from CWC was already issued vide its letter dated 10.01.2018 after obtaining approval of Secretary & Vigilance Officer, CWC, New Delhi. It is submitted that after superannuation of the applicant, he was entitled for regular monthly pension, Commutation of Pension, Gratuity, Leave Encashment etc. w.e.f. 30.06.2018 as per CCS (Pension) Rules, 1972 but the applicant did not receive any of the pensionary benefits despite the fact that the pension papers duly filled up were submitted to the concerned Section of the Department (Respondent No.3) and the respondents did not even care to inform him the withholding his regular pension, Gratuity, Leave Encashment. Thereafter, the applicant made a representation dated 13.11.2018 to the respondents and the respondents instead of granting regular pension, Commutation of Pension, Gratuity, Leave Encashment w.e.f. 01.07.2018, granted Provisional Pension w.e.f. 01.07.2015 under Rule 69 of CCS Pension Rules, 4 OA 1024/2019 Item No.16/C-1 1972 vide letter dated 30.11.2018 stating that the applicant‟s vigilance clearance has not been received.
Thereafter, a reminder was also submitted by the applicant in this regard but no pensionary benefits were released by the respondents. It is further submitted that more than seven months have passed but the respondents have not yet sanctioned/released the Regular pension, Commutation of Pension, Gratuity, Leave Encashment to the applicant causing great financial and mental hardship. The provisional pension sanctioned by the respondents vide letter dated 30.11.2018 under Rule 69 of the CCS Pension Rule are illegal, discriminatory and non-est in the eyes of law and violation of principles of natural justice as the applicant superannuated as Deputy Director, in CWC on 30.06.2018 and neither any departmental or judicial proceedings are instituted against him while he was in service i.e. before retirement nor the applicant has been placed under suspension from an earlier date. It is averred that in the case of applicant, Rule 69 is not applicable and he is entitled for regular pension for the reason that Rule 69 is applicable only in cases where departmental or judicial proceedings are instituted and are continued. Therefore, the applicant prayed for sanction of regular pension, gratuity, commutation of Pension, leave 5 OA 1024/2019 Item No.16/C-1 encashment and CGEIS. The applicant has cited Rule-9 of CCS (Pension) Rules 1972 which is as under: -
"9. Right of President to withhold or withdraw pension (1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, or withdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or gratuity of the whole or part of any pecuniary loss caused to the Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement:
Provided that the Union Public Service Commission shall be consulted before any final orders are passed:
Provided further that where a part of pension is withheld or withdrawn, the amount of such pensions shall not be reduced below the amount of rupees three thousand five hundred per mensem."
3. Being aggrieved by the inaction on the part of respondents in not granting Regular (Monthly) pension, Commutation of Pension, Gratuity, Leave Encashment etc. to the applicant and only granting Provisional Pension w.e.f. 01.07.2018, the applicant has filed present Original Application seeking the aforementioned relief.
4. Pursuant to the notice and rebutting the claim of the applicant, the learned counsel for the respondents filed their counter affidavit stating that the applicant was a Senior Time Scale (STS) Officer of the Central Water Engineering Group-A Service and was posted as Deputy Director with the concerned respondent department (Central Water Commission) and retired on attaining the age of superannuation on 30.06.2018 from STS post of 6 OA 1024/2019 Item No.16/C-1 Deputy Director. His retirement benefits could not be released for want of Vigilance Clearance. He further stated that a vigilance case had been initiated against the applicant for having made huge payments worth lakhs on certificate of payment (COP) basis while the applicant was working in Lower Yamuna Division, Agra as Executive Engineer during the period 2012-2015 and a case of disciplinary proceeding under Rule 14 of CCS (CCA) Rules, 1965, along with draft charge sheet against the applicant was sent to the DOWR RD and GR/Central Vigilance Commission for approval of the same and as the vigilance proceedings were pending before the authorities, the vigilance clearance of the applicant could not be given at that time. He submitted that CGEGIS had already been released to the applicant almost an year back on 13.03.2019. The Respondents submitted that DOWR, RD and GR/Central Vigilance Commission finally exonerated the applicant of the charges framed against him on the grounds that the matter being of the years 2012-2015 stood time barred by limitation to initiate any disciplinary proceedings against the applicant Under Rule 9 CCS (Pension), Rule 1972 and therefore, the DoWR, RD and GR decided in favour of the applicant by stating that Vigilance case be closed against the applicant and retirement 7 OA 1024/2019 Item No.16/C-1 benefits be released. In consonance thereof, Central Water Commission respondent No.3 released all the pensionary benefits to the applicant as detailed below: -
1. PPO Monthly pension released vide No.018721903368 (Annexure-R-at Rs.29,940/- commutation) per month.
2. CGEGIS to the tune of Rs.1,11,161/- had already of been released on 13.03.2019.
3. Leave Encashment to the tune of Rs.8,00,895/- was released on 19.12.2019.
4. DCRG amount to Rs.17,61,969/- was released on 02.01.2020
5. Commuted value of pension to the tune of Rs.19, 62, 627/-
was released on 06.01.2020 (Rs. Rs.46,66,592/-).
5. Learned counsel for the respondents further stated that as all the pensionary benefits has been released to the applicant with utmost urgency after the closure of vigilance case and his exoneration charge of making huge payments for the years 2012-2015, has been closed, the question of payment of interest to the applicant does not arise and he should be grateful to the respondents for making quick fast payment and without any delay all his payments totaling Rs. 46,66,592/- has been paid to him and released long back. Therefore, the claim of the applicant with regard to the facts and circumstance is not tangible and accordingly the present Original Application should be dismissed.
6. Applicant has filed his rejoinder to the counter affidavit filed by the respondents reiterating the stand 8 OA 1024/2019 Item No.16/C-1 taken in the Original Application and stated that there is delay in granting monthly pension, CGEIS, leave encashment, DCRG amount, commuted value of pension totaling about Rs 46,66,592/- after a lapse of approximately one year and six months as the applicant superannuated from the post of Deputy Director, Central Water Commission, New Delhi on 30.06.2018 and neither any departmental or judicial proceedings were instituted against the applicant while he was in service i.e. before retirement nor the applicant was placed under suspension from an earlier date. He further states that as per Para 2
(b) (i) & (ii) of Rule 9 of CCS (Pension) Rules 1972 the departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall not be instituted save with the sanction of the president and shall not be in respect of any event which took place more than four years before such institution. Further, Gratuity and Pensions are hard earned benefits of an employee and right to receive pension is in the nature of "property", the Hon'ble Supreme Court has held that this right cannot be taken away from a government employee even if departmental or criminal proceedings are pending against him and thus gratuity and pension are not the bounties. An employee 9 OA 1024/2019 Item No.16/C-1 earns these benefits by dint of his long, continuous, faithful and unblemished service. It is thus hard earned benefits which accrues to an employee and is in the nature of "property". This right to property cannot be taken away without the due process of law as per the provisions as per Article 300 A of the Constitution of India. He further states that Rule 68 of CCS(Pension) Rules, 1972 provides for payment of interest at the rate applicable to GPF deposits on delayed payment of gratuity and recovery of interest so paid from the officers responsible for such delay.
7. The applicant contends that all pensioners dues are to be settled by strictly following the procedure laid down in rule 56 to 76 of CCS (Pension) Rules, 1972. Where ever delays are anticipated, provisional pension/gratuity should be sanctioned immediately to avoid interest payment and since the applicant superannuated on 30.06.2016 and the DCRG, amounting to Rs. 17,61,969/-, was released to the applicant on 02.01.2020 i.e. after a lapse of approx one year and six months, the applicant is entitled for payment of interest at the rate applicable to GPF deposits on delayed 10 OA 1024/2019 Item No.16/C-1 payment of gratuity (DCRG) for 18 months. It is further stated that the payment of interest at the rate applicable to GPF deposits on delayed payment of gratuity (DCRG) for 18 months as per Rule 68 of CCS (Pension) rules 1972 are in favour of the applicant. In support his claim, the learned counsel for the applicant relies upon the rulings of the Hon‟ble Supreme Court as that the right of Gratuity and Pensions are hard earned benefits of an employee and this right to receive pension cannot be taken away from a Government employee even if departmental or criminal proceedings are pending against him. He also rely on the order dated 29.08.2008 passed by the Coordinate Bench of the Tribunal at Hyderabad in OA No. 59/2008 in Brahmaiah vs. Union of India, and also the order dated 03.08.2018 passed in OA No. 021/00281/2016 in M. Dharam Raj vs. Ministry of Defence.
8. I have heard the learned counsels for both parties carefully and perused the records available on records thoroughly.
ANALYSIS
9. The applicant claimed penal interest on all retiral dues. In the year 1991 the Government of India DoP&T 11 OA 1024/2019 Item No.16/C-1 allowed interest on delayed payments on retiral dues vide letter No. 7/20/89-P & No. (F) dated 22.1.91.
10. The Constitutional Bench of the Hon‟ble Apex Court in the case of Deokinandan Prasad V. State of Bihar, (1971) 2 SCC 330 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 anyone‟s discretion. The right to receive pension flows to the officer not because any order of the authority is required but by virtue of statutory Rules.
11. It is a well settled position of law that where charge sheet is dropped and the employee is exonerated of all charges, retiral dues are to be paid with interest. It is held that there may be rule or not but denial of interest on retiral due is violation of Articles 14,19 and 21 of the Constitution of India. For facility of reference, the relevant para in the matter of S.K. Dua vs State of Haryana & Anr decided on 9 January, 2008 is mentioned as under: -
"11. Having heard the learned counsel for the parties, in our opinion, the appeal deserves to be partly allowed. It is not in dispute by and between the parties that the appellant retired from service on June 30, 1998. It is also undisputed that at the time of retirement from service, the appellant had completed more than three decades in Government Service. Obviously, therefore, 12 OA 1024/2019 Item No.16/C-1 he was entitled to retiral benefits in accordance with law. True it is that certain charge sheets/ show cause notices were issued against him and the appellant was called upon to show cause why disciplinary proceedings should not be initiated against him. It is, however, the case of the appellant that all those actions had been taken at the instance of Mr. Quraishi against whom serious allegations of mal- practices and misconduct had been levelled by the appellant which resulted in removal of Mr. Quraishi from the post of Secretary, Irrigation. The said Mr. Quraishi then became Principal Secretary to the Chief Minister. Immediately thereafter charge-sheets were issued to the appellant and proceedings were initiated against him. The fact remains that proceedings were finally dropped and all retiral benefits were extended to the appellant. But it also cannot be denied that those benefits were given to the appellant after four years. 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 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."
12. In the matter of S.K. Dua versus State of Haryana, (2008) 3 SCC 44, (supra) the Hon‟ble Supreme Court considered the issue of interest on retiral dues and held that 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 the absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of 13 OA 1024/2019 Item No.16/C-1 the Constitution relying on Articles 14, 19 and 21 of the Constitution.
13. The decision in Vijay L. Mehrotra v. State of U.P, AIR 2000 (SC) 3513 (2), the Hon'ble Apex Court held that in case of an employee retiring after having rendered service, it is expected that all the payment of retiral benefits should be paid on the date of retirement or soon thereafter, if for some unforeseen circumstances the payment could not be made on the date of retirement interest needs to be paid to the retired employee. In the above case, there was considerable delay in making payment of retirement benefits without any reason or justification for such delay and therefore, the Hon'ble Apex Court awarded simple interest @ 18% per annum from the date of retirement till the date of payment.
14. In the matter of Vijay L. Mehrotra v. State of U.P, AIR 2000 (SC) 3513(2), (supra) the Hon‟ble Supreme Court allowed 18% interest. Hon‟ble Supreme Court not only accorded interest on GIS but also on encashment of leave, gratuity, commuted pension etc., which is a binding precedent.
14OA 1024/2019 Item No.16/C-1
15. From the above decisions and guidelines issued by the Government mentioned above, the interest has to be paid on retiral dues from the date of superannuation as per the following: -
(i) letter No. 7/20/89-P & No. (F) dated 22.1.91
(ii) The applicant relies upon Apex Court Decision
16. In the matter of R. Kapur Vs Director of Inspection decided on 29 September, 1994, interest was allowed. For facility of reference, para 11 of the judgement is as under: -
"11. The Tribunal having come to the conclusion that DCRG 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 DCRG 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 be without prejudice to the right of the respondent to recover damages under Fundamental Rule 48-A. Thus, the civil appeal is allowed. However, there shall be no order as to costs."
17. In the matter of Uma Agrawal (Dr) v. State of U.P., (1999) 3 SCC 438, the Hon‟ble Supreme Court held that delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment, the court can certainly keep in mind the 15 OA 1024/2019 Item No.16/C-1 time-schedule prescribed in the Rules/instructions apart from other relevant factors applicable to each case. (emphasis added)
18. Rule 68 of CCS (Pension) Rules provides that interest on the delayed payment of gratuity. For facility of reference, decision of Government of India issued vide OM No. F. 7 (1)-P.U./79, dated 11.07.1979 and OM No. 1(4)/Pen. Unit/82, dated 10.01.1983 is as follows: -
"(1) Admissibility of interest on gratuity allowed after conclusion of judicial/departmental proceedings-
1. Under the rules, gratuity becomes due immediately on retirement. In case of a Government servant dying in service, a detailed time-table for finalizing pension and death gratuity has been laid down, vide Rule 77 onwards.
2. Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity, if allowed to be drawn by the Competent Authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the Competent Authority.
3. In order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases, in accordance with the aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the Government servants who die during the pendency of judicial/disciplinary proceedings against them and against whom proceedings are consequently dropped.
4. These orders (Paragraph 3) shall take effect from the 10th January, 1983.(G1, Dept. of Pst. & A.R, OM. No. F. 7 (1)-PU/79, 16 OA 1024/2019 Item No.16/C-1 dated the 11th July, 1979 and No. 1 (4)/Pen. Unit/82, dated the 10th January, 1983.] (2) Interest for delayed payment of Retirement/Death Gratuity to be at the rate applicable to GPF deposits.
1. It has been decided that where the payment of DCRG has been delayed beyond three months from the date of retirement, an interest at the rate applicable to GPF deposits will be paid to retired/dependants of deceased Government servants.
2. The Administrative Ministries are requested to ensure that in all cases where interest has to be paid on Death-cum-Retirement Gratuity because of administrative delay, action should be taken against the officer responsible for the delay."
19. It is clear from the conspectus of this matter that retiral dues were paid to the applicant with a considerable delay. This is a matter of grave concern and reflects on the disdainful approach of the respondent towards settlement of retiral dues of a retired government officer.
20. The DoP&T has issued O.M. of 1992 wherein 12 % interest has been stipulated to be paid on the delayed payment of gratuity. The Hon‟ble Supreme Court has held that pension is not a bounty by State but is earned. Therefore, for the aforementioned reasons, the applicant is entitled for penal rate of interest on delayed payments of retiral dues.
21. In view of above, the Original Application is allowed with following directions: -
(i) The applicant is entitled for Regular Pension, Commutation of Pension, Gratuity, Leave 17 OA 1024/2019 Item No.16/C-1 Encashment w.e.f. 01.7.2018 and respondents are directed to sanction him Regular Pension, Commutation of Pension, Gratuity, Leave Encashment w.e.f. 01.7.2018 with all consequential benefits including issuing of PPO, if so required, within 12 (twelve) weeks of receipt of a certified copy of this order.
(ii) Except delayed payment of interest on gratuity, respondents are directed to pay interest to the applicant on the other retiral dues paid with delay at the rate of 12% from the date of superannuation till the date of actual payment within above mentioned 12 (twelve) weeks;
(iii) Interest on the delayed payment of gratuity shall be paid at the rate applicable to GPF within above mentioned time period of 12 (twelve) weeks;
(iv) It is made clear to the respondents that any delay in payment of any principal amount of retiral dues or amount of interest on the said retiral dues, beyond the above mentioned 12 (Twelve) weeks, shall attract additional 8% compound interest for every month of delay in making payment.
(v) Respondents are also directed to pay Rs.20,000/-
(Rs. Twenty thousand only) as cost to the 18 OA 1024/2019 Item No.16/C-1 applicant towards cost of litigation. Cost should be recovered from the officials responsible for causing delay in making payment of retiral dues to the applicant;
(vi) Respondent No. 3 is directed to make entry in the APAR of officials identified for causing delay in payment of retiral dues. A copy of this order shall be sent to Respondent No. 3 through Speed Post.
(vii) Pending M As, if any, stand closed.
(Rajinder Kashyap) Member (A) /mk/