Central Administrative Tribunal - Delhi
Shri Subash Chander Gupta vs Municipal Corporation Of Delhi on 16 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI T.A. NO. 29/2009 New Delhi, this the 16th day of February, 2009 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Shri Subash Chander Gupta S/o Late Shri Harish Chander Gupta R/o Flat No.335A/C-4-B Janak Puri, New Delhi-110 059. Petitioner By Advocate: Shri Manoranjan. Versus Municipal Corporation of Delhi Through Commissioner, MCD, Town Hall, Chandani Chowk, Delhi-110 006. ..Respondents By Advocate: Shri Sanjiv Sabharwal with Shri Alok Singh. ORDER
In this case following reliefs have been claimed by the petitioner:-
(i) To finalize and pay to the petitioner Pension, Gratuity, balance of Leave Encashment with interest and interest for the period of late payment of GPF and GIS (Group Insurance Scheme) calculated on the basis of his last drawn salary being Rs.10,250/- while working on the post of Assistant Chief Accountant in the MCD General Wing, in the scale of Rs.7500-12000 at the date of retirement on 29.6.2007.
(ii) To finalise and pay to the petitioner commuted pension on the basis of his last pay drawn salary being Rs.10,250/- while working on the post of Assistant Chief Accountant in the MCD General Wing, in the scale of Rs.7500-12000 at the date of retirement on 29.6.2007.
(iii) To issue Medical Card as per the entitlement of the petitioner on the basis of his last drawn salary being Rs.10,250/- while working on the post of Assistant Chief Account in the MCD General Wing, in the scale of Rs.7500-12000 at the date of retirement on 29.6.2007.
2. It is submitted by the petitioner that he joined the department of MCD as an Auditor on 18.4.1975. He retired on attaining the age of superannuation on 29.6.2007 while working as Accounts Officer (Pension) on deputation in the General Wing of MCD but his medical identity card was not issued nor other retrial dues viz. Pension, Gratuity, Commutation of Pension, balance Leave Encashment with interest were paid, nor interest for the period of late payment of GPF and GIS (Group Insurance Scheme) were paid.
3. The brief facts as stated by him are that in August, 2001, he was sent on deputation to General Wing of MCD in the same department to work as Assistant Chief Accountant in the pay scale of Rs.7500-12000 and he retired from the same post. Pay drawn by him for the last 10 months was Rs.10,250/-, therefore, his retrial benefits should have been fixed as per last pay drawn by him whereas respondents were calculating his pensionary benefits on the basis of pay at Rs.9925/- which he would have drawn, had he remained in the parent department as Assistant Audit Officer in the scale of Rs.6500-10500 subsequently revised to Rs.7450-11500 in the Statutory Audit Department. Moreover, GPF was paid to him on 30.7.2007, i.e., after one month of his retirement, that too without interest @ 12%. It is in these circumstances that Writ Petition was filed by the petitioner seeking the relief as mentioned above which has been transferred to this Tribunal. He has relied on Rule 33 and 34 of CCS (Pension) Rules.
4. Respondents have opposed this OA. They have submitted since the pay drawn by applicant before his deputation was in the scale of Rs.7450-11500 where he was holding the post of Assistant Audit Officer. Accordingly, on the date of retirement, his basic pay on the post of Assistant Audit Officer in parent department was fixed at Rs.9925/- and pension was fixed accordingly. They have relied on Note 7 under Rule 33 of the CCS (Pension) Rules and item No.7 of the annexure below Section 5 in Appendix-5 of Fundamental Rules.
5. They have further submitted that after calculating his pensionary benefits on the basis of Rs.9925/-, following payments have been made to the petitioner:-
27.7.2007 Rs. 2,00,990/- on account of leave encashment.
1.8.2007 Rs.8369 on account of GIS.
16.11.2007 Cheque for an amount of Rs.6,67,583 was prepared on 8.11.2007 for DCRG and Commutation of pension and vide letter dated 16.11.2007 he was requested to collect the cheque but he did not collect the same. Accordingly, cheque for Rs.6,67,583 was sent to him along with letter dated 1.1.2008 vide speed post dated 2.1.2008.
31.7.2007 GPF was released Rs.8,72,792.
8.8.2007 Pension was finalized and PPO issued but he did not collect the PPO Book. However, pension has been transferred in PNB, Chandani Chowk since October, 2007 as per his option but he has not submitted life certificate in PNB to withdraw the same.
6. They have further stated that immediately after receipt of application of the petitioner on 25.6.2007 for issue of Medical Card, the case was processed. As some discrepancies in details of family members of the petitioner were noticed during scrutiny of the applications for issue of Medical Card, these were rectified by the petitioner on 1.8.2007 and as such, Medical Card No.804 was prepared in his favour on 1.8.2007. They have thus prayed that T.A. may be dismissed.
7. I have heard both the counsel and perused the pleadings. The short point which needs to be decided here is on what basis petitioners pensionary benefits are required to be fixed whether on the basis of actual emoluments drawn by him during last 10 months before his retirement or what he would have drawn in his parent department had he not been on deputation. Admittedly the last pay drawn by applicant for ten months before his retirement was Rs.10,250/- whereas respondents have fixed his pensionary benefits on his basic pay of Rs.9,925/- what he would have drawn in his parent department had he not been on deputation.
8. Chapter IV of CCS (Pension) Rules deals with emoluments and average emoluments. Rule 33 for ready reference reads as under:-
33. Emoluments 1[The expression `emoluments' means basic pay as defined in Rule 9 (21) (a) (i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practising allowance granted to medical officer in lieu of private practice.] 2[EXPLANATION. - Stagnation increment shall be treated as emoluments for calculation of retirement benefits.]
9. Average emoluments have further been explained in Rule 34, which for ready reference reads as under:-
34. Average Emoluments Average emoluments shall be determined with reference to the emoluments drawn by a Government servant during the last ten months of his service. Since counsel for the respondents had relied on Note 7 under Rule 33, it would be relevant to quote that note also, which reads as under:-
NOTE 7. - Pay drawn by a Government servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments.
10. Perusal of both these Rules makes it clear that emoluments means the pay, which government servant was receiving immediately before his retirement and average emoluments are determined with reference to the emoluments drawn by a Government servant during the last ten months of his service meaning thereby that whatever pay applicant was drawing during the last ten months of his service are to be taken into consideration. Admittedly, applicant was drawing Rs. 10,250/- emoluments during the last ten months of his service, therefore, pensionary benefits are required to be calculated as per those emoluments.
11. As far as Note 7 is concerned, it deals with those persons, who are on Foreign service. Foreign service has been defined in Rule 3(g) pf CCS (Pension) Rules, which reads as under:-
Rule 3(g) - Foreign service means services in which a Government servant receives his pay with the sanction of the Government from any source other than the Consolidated Fund of India or 4[the Consolidated Fund of a State or the Consolidated Fund of a Union Territory.
12. It is thus clear foreign service means when the employee gets his pay from any source other than the Consolidated Fund of India. It is not the case of respondents that applicant was getting his pay at the time of his retirement from any source other than the Consolidated Fund of India. On the contrary, the factual position is that petitioner was posted on deputation from one wing to the other in MCD itself and was paid emoluments also by MCD, therefore, by no stretch of imagination can it be stated that petitioner was on Foreign service.
13. It is not disputed that petitioner retired on 29.06.2007 from general wing of MCD itself while working as Assistant Chief Accountant, which is evident from page-31 and the last pay drawn by him was Rs.10,250/- per month, therefore, in these peculiar facts of the case, respondents are directed to calculate petitioners pensionary benefits on the basis of actual emoluments drawn by him for the last ten months before his retirement and pay the same to the petitioner along with due & drawn statement within three months from the date of receipt of a copy of this order. Since this delay has taken place due to interpretation of rules and department was under the impression that his retrial benefits could be fixed on the basis of emoluments which he would have drawn otherwise, therefore, applicant would not be entitled to interest on this difference which would have to be calculated afresh. If petitioner has any other grievance, that can be taken up separately.
14. With the above directions, TA stands allowed. No costs.
(MRS. MEERA CHHIBBER) MEMBER (J) Rakesh