Central Administrative Tribunal - Delhi
Sh. D.N. Kumar vs Union Of India Through on 7 February, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2994/2011
Reserved on : 01.02.2012.
Pronounced on : 07.02.2012.
Honble Dr. A.K. Mishra, Member (A)
Sh. D.N. Kumar,
(Retd. Govt. Servant)
C-2/97, West Enclave,
Pitampura, Delhi-34. . Applicant
(through Sh. B.R. Sharma, Advocate)
Versus
Union of India through
1. Secretary,
Ministry of Home Affairs,
Govt. of India, North Block,
New Delhi-1.
2. Joint Secretary (R),
Ministry of Home Affairs,
Govt. of India,
Lok Nayak Bhawan (Ist Floor),
Khan Market, New Delhi-1.
3. Deputy Secretary (SW),
Ministry of Home Affairs,
Govt. of India,
Jaisalmer House,
Man Singh Road,
New Delhi. . Respondents
(through Sh. T.A. Ansari, Advocate)
O R D E R
Most of the facts relating to this case have been recorded in the order dated 18.10.2011. The grievance of the applicant is that although he retired from government service drawing pay scale meant for UDC, yet his pension was calculated on hypothetical basis treating his status as in the rank of LDC during his deputation period in National Textile Corporation (NTC) before his final absorption there, although he was drawing the salary applicable to a UDC before his deputation. The applicant, who was transferred to the surplus cell and working with the Settlement-Commissioner (Department of Rehabilitation) prior to his deputation to NTC accepted 100% commutation value of his pension determined on the basis of the calculation sheet given at page-66. The applicant has acquiesced in the calculation and did not raise any dispute while accepting 100% commutation value. However, consequent on acceptance of the recommendations of the Fifth Pay Commission, government decided that all the employees having taken 100% commutation value of pension would be entitled to 1/3rd of the pension. The applicant submits that only when he was entitled to 1/3rd pension he became aware of the incorrect calculation of his pension. He made many representations. As would be seen from the noting of the Under Secretary, his case was pending at government level for a long time to take a final decision in the matter. An extract of the note of the Under Secretary dated 03.07.2009 reads as under:-
The case of Shri D.N. Kumar is pending for a decision for a long time. There appears to be some force in the arguments advanced by him particularly in view of DOR letter dated 26.9.1972 at p.4/c which was issued after the stipulation of the Central (Surplus Staff) Cell and is crucial in this case. Shri Kumar also met Dy. Secretary (SW) on 15.6.2009 when the undersigned was also present. He explained his case in length with all relevant papers and was able to convince us with his arguments. It is felt that Shri Kumar would have continued to work as UDC in all the circumstances but for his deputation to NTC Ltd. It is therefore, proposed to refix his Pension on the basis of last Pay drawn as UDC in the manner explained in the above referred O.M. Necessary calculation will be worked out after a decision on the above proposed line is approved. The matter, although very old, was referred to Department of Personnel & Training (DoP&T) in the interest of justice to reconsider the case in the light of the facts which had been set forth in the office note. DoP&T advised that the applicants pension for the period he was on foreign service should be determined on the basis of emoluments which he would have otherwise drawn under the government had he not been on foreign service. Thereafter, a view was taken that his average emoluments for that period should be determined on the hypothetical basis of what he would have drawn as LDC on which post he had a permanent lien since 18.07.1972 had he not been transferred to NTC, no matter what was the actual pay he was drawing at the time of his transfer. Accordingly, it was decided that there was no error in calculation of his pension; the applicant was intimated about the decision in the impugned order of 11.04.2011 of the Ministry of Home Affairs; hence the O.A.
2. In this context, learned counsel for the applicant draws my attention to the letter dated 26.09.1972 of the Department of Rehabilitation addressed to the Foreign employer confirming that had the applicant continued with the Government of India, he would have officiated as UDC. The letter reads as follows:-
To The Assistant Director, National Textile Corporation Ltd., 6th Floor, Surya Kiran Building, 19, kasturba Gandhi Marg (Curzon Road), New Delhi.
Subject :- Deputation of Sh. D.N. Kumar, a permanent LDC of the cadre of the Department of Rehabilitation as Assistant in the National Textile Corporation Ltd.
******* Sir, I am directed to refer to your letter No.NTC/Estt.3(47)/72 dated September, 1972 on the subject mentioned above, and to confirm that Sh. D.N. Kumar, a permanent Lower Division Clerk of the erstwhile office of the Chief Settlement Commissioner would have continued to officiate as Upper Division Clerk but for his option for transfer to the Central (Surplus Staff) Cell and subsequent deputation to the Corporation.
Yours faithfully, (J.L. Ahluwalia) Joint Director In view of this specific declaration, I find that there is merit in the contention of the applicant that he would have continued in the rank of UDC, not as LDC as has been hypothetically supposed, had he continued with the Govt. Admittedly, the applicant was promoted to the rank of UDC as far back on 19.03.1955 and continued to work in that rank uninterruptedly till his transfer to NTC initially on deputation and subsequently on permanent absorption. That being so, there is no justification to say that he would have continued in the pay scale of LDC had he continued in the government. This is a supposition which does not have any factual basis to support it. The applicant might have had permanent lien on LDC post, but the fact remains that he continued to hold UDC post uninterruptedly till his transfer to NTC where his salary was fixed initially on the basis of his last pay drawn till his permanent absorption.
3. However, learned counsel for the respondents takes the plea of limitation to challenge the maintainability of this O.A. According to him, the pension of the applicant was determined way back in the year 1975. The applicant took 100% commuted value of the pension so determined, and raised no dispute; his conduct would show that he had acquiesced in the determination of the pensionary benefits. Therefore, he cannot raise this issue after lapse of so many years from the date when the original cause of action arose.
4. Learned counsel for the applicant submits that the applicant, in good faith, accepted 100% value of commutation; but he had no knowledge about the manner of determination of his pension. It was only after 14.07.1998 when the Government of India issued the Office Memorandum giving the benefit of 1/3rd part of the pension and the applicant became entitled to reduced pension on a regular basis that he came to know about incorrect determination of his pension. He took up the matter with the respondent authorities. They considered his case as late as July, 2007, but ultimately decided to his disadvantage on July, 2010 and issued the impugned order only on 11.04.2011 which has given raise to a fresh cause of action. Learned counsel cited the following two cases:-
(i) M.R. Gupta Vs. UOI & Ors., 1995(5)SCC 628.
(ii) UOI&Ors. Vs. Tarsem Singh, 2009(1) SC 371.
to contend that non-grant of legitimate pension amount to a government servant would be considered as a continuing cause of action because the government servant would stand to lose his pension every month.
5. Now, as far as one time payment of commuted value of the pension is concerned, the applicant has admittedly acquiesced in the position and he cannot re-agitate that issue after lapse of so many years. But, as far as payment of 1/3rd of pension is concerned, the plea of limitation will not apply in view of the settled law cited by the applicant to the effect that incorrect pension is a continuing wrong and could be challenged later.
6. On merits, it is clear that the applicant was in the rank of UDC since 1955 without interruption. The Administrative Ministry has given a clear statement that he would have continued in the rank of UDC had he not opted for transfer to National Textile Corporation. The calculation sheet at page-66 on the basis of which his pension was determined is given in the following table:-
Assistant 11-12-70 to 18-3-71 408-00 46-40 1480-46 Assistant 19-3-71 31-8-71 416-00 48-00 2514.58 U.D.C. 1-9-71 30-9-71 416-00 - 416-00 U.D.C. 1-10-71 18-3-72 426-00 - 2377-35 U.D.C. 19-3-72 18-7-72 434-00 - 1736-00 L.D.C. 19-7-72 31-7-72 340-00 - 142-58 L.D.C. 1-8-72 31-12-72 348-00 - 1740-00 L.D.C. 1-1-73 - 358-00 - 11-55 L.D.C. 2-1-73 10-12-73 374-00 - 4222-57 Total for 36 months 14,641-09 Average emoluments 406-69
It shows that for a period prior to his deputation to NTC his pay was being calculated in the rank of UDC. It was suddenly reduced to a lower pay applicable to an LDC on a hypothetical basis which cannot be sustained by the facts of this case. At no points of time the applicant had been reverted to the rank of LDC since his promotion in the year 1955, and the statement of the Administrative Ministry that he would have continued to officiate as UDC, reinforces his entitlement to the benefits in terms of the advice of DoP&T.
7. Keeping in view the facts and circumstances of the case, the respondents are directed to refix the pension of the applicant by holding that he would have continued as UDC during the period he was under National Textile Corporation on deputation before final termination of his lien with government. The applicant is entitled to revised pension on the basis of such determination and all arrear regular pensionary benefits arising there from from the date 1/3rd pension in terms of the O.M. of 14.07.1998 was admissible to him. It is made clear that since the applicant himself had acquiesced in the pensionary calculation while accepting one time payment of 100% commuted value, he would not be entitled to revised commuted value. The respondents are directed to determine his revised pension and release it within three months from the date of receipt of a copy of this order. The O.A. is disposed of accordingly. No costs.
(Dr. A.K. Mishra) Member (A) /Vinita/