Central Administrative Tribunal - Delhi
Ram Kumar Sharma vs National Projects Construction ... on 15 October, 2024
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OANo.1066/2022
Central Administrative Tribunal
Principal Bench
OA No. 1066/2022
Reserved on: 04.10.2024
Pronounced on: 15.10.2024
Hon'ble Mr. Manish Garg, Member(J)
Hon'bleMr. Rajinder Kashyap, Member (A)
Ram Kumar Sharma, Ex-Manager (Civil), Group A,
Emp. No. 3776, E-339, New Palam Vihar,
Phase-II, Gurugram-122017
.....Applicant
(ByAdvocate: Ms. Abha Sharma)
VERSUS
The Chairman & Managing Director,
National Projects Construction,
Under Ministry of Water Resources,
Corporation Ltd., Registered office-
Plot No. 30-31, Raja House, Nehru Place,
Delhi-110019
-Respondents
(By Advocate: Ms. Divya Singh, Mr. Uttkarsh for Mr.
Gyanendra Singh)
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OANo.1066/2022
ORDER
By Hon'ble Mr. Rajinder Kashyap, Member (A):-
By way of the present OA filed u/s 21 of the AT Act, 1985, the applicant has prayed for the following reliefs in Para 8 of the above OA: -
"(i) This Ld. Tribunal may kindly allow the present O.A and direct the Respondent Corporation to release withhold amount of leave encashment to the Applicant forthwith;
(ii) Award interest @ 18% to the Applicant against the Respondent Corporation on the delayed payment of leave encashment from 01.02.2021 till the date of payment.
(iii) pass order or other further such order or orders as may be deem fit and proper under the circumstances of this case."
2. The brief facts in the matter are that the applicant was appointed on 18.09.1990 and held several posts by way of promotion during the period from 18.09.1990 to 30.01.2021. The applicant superannuated on 31.01.2021. At the time of his superannuation, he was holding the post of Manager (Civil) in the North Western Zone, Gurugram. The applicant states that he superannuated without any blame/allegation or any charges/memo under the CC&A (Conduct) Rules, 2005 of the respondent Corporation. He states that on his retirement his gratuity and leave encashment was not paid to him and for that purpose he made his representation dated 18.09.2021 to the respondents. However, neither any reply was given nor the 3 OANo.1066/2022 dues were released. He contends that leave encashment for 300 days of Earned is pending and in so far as the claim relating to gratuity is concerned, the matter has been adjudicated in the Court of Ld. Controlling Authority which is the Competent Authority under the Payment of Gratuity Act, 1972. Hence, the same is not agitated before this Tribunal. He submits that denial of legitimate and bonafide earned legal right of leave encashment tantamounts to cause harassment and victimization without any fault committed and the said dues have not been settled by the respondents despite representation dated 18.09.2021 followed by representations/reminders dated 23.03.2021, 26.06.2021, 29.07.2021, 2.10.2021, 1.12.2021 and 21.01.2022. The respondents neither replied nor settled the claim of the applicant. The applicant states that the respondents have failed to adhere to its own Rule 3 i.e. NPCC (CC&A) Rules, 2005. The relevant rule is as follows:
"3. Application. 1 These rules apply to all Corporation employees including retired employees against whom disciplinary proceedings were initiated before retirement except those who fall in any of the following categories :-
(a) Employees on foreign service or deputation;
(b) Person in casual employment;
(c) Persons subject to discharge from service on less than one month's notice;
(d) Persons for whose appointment and other matters covered by the Rules special provisions is made by or under any law for the time being in force, in regard to the matters covered by such law 4 OANo.1066/2022
(e) Workcharged employees of the Corporation."
From the perusal of the said Rule 3, it speaks that the Applicant was not subject matter or liable for any action under the said NPCC (CC&A) Rules, 2005. Therefore, he was entitled to get his earned retiral dues."
3. While seeking relief, the applicant has raised grounds that there is no fault on his part and the respondents have willfully denied his legitimate and bonafide right towards his retiral dues. He submits that the said action of the respondents is arbitrary, biased, malafide and based on conjecture and surmises. He further states that there is no inquiry/investigation pending against the applicant either during his service period or after his retirement on his superannuation on 30.01.2021. Therefore, to withhold the amount of leave encashment amounts to gross discrimination, harassment, victimization and illegally denying the same with ulterior motive and nefarious design and in gross violation to the right of leave encashment or under any rule and law. He states that the respondents have no rule under which they can withhold the amount of leave encashment after his retirement on superannuation. He states that the respondents have not made out any case of misconduct against the applicant under which the applicant is liable to be imposed any punishment in accordance with the provisions of the said NPCC (CC&A) Rules, 2005 as such rules were not at all applicable to him after his retirement on superannuation. He also further contends that 5 OANo.1066/2022 denial of leave encashment and retiral dues is in violation of his right under Article 14 & 16 of the Constitution.
4. The respondents have filed their reply on 18.01.2024. They have stated that due to pendency of vigilance inquiry of the applicant, the vigilance clearance was not given to him hence the applicant's due were not released by the respondents. They state that there is a clear provision under the NPCC (CC&A) Rules that on account of the pendency of disciplinary/judicial proceedings the retiral dues of the employee can be withheld subject to the outcome of the disciplinary/judicial proceedings. They further state that the applicant has chosen to conceal the fact from Tribunal that there is a vigilance inquiry against him. They submit that when the applicant was posted as Manager (Civil) of North Western Zone, Gurugram, he was found to be involved in siphoning public money from Bharat Scouts and Guides (BSG) for his personal gains. A complaint was received from the Director, Bharat Scouts and Guide, New Delhi vide a letter dated 25.04.2019 against Mr. Manohar Kumar, Zonal Manager, NPCC and others regarding sipohoning of public money from Bharat Scouts and Guides for their personal gains, the Under Secretary, Vigilance Section, Department of Water Resources, River Development & Ganga Rejuvenation (DoWR, RD & GR), Ministry of Jal Shaktihad had requested the Chief Vigilance Officer, NPCC to investigate the matter and furnish a factual report. It was informed vide letter dated 19.05.2023 6 OANo.1066/2022 that a Vigilance case was registered against the applicant while he was still in employment of the Respondents NPCC which the applicant was very much aware and even at the time of filing the present OA, however, he chose to deliberately conceal the said fact to mislead this Tribunal. They further stated that based on the investigation into the complaint the following irregularities were found:
"ⅰ) Deviation in PQ Criteria 1 of bid eligibility condition while shortlisting/finalizing the bidder was found.
ii) Additional work amounting to Rs. 304.72 lakhs (inclusive of 8% NPCC PMC Charges plus 14.5% service tax on PMC Charges beyond the permissible limit of 10% of the contract value, was given to the same contractor on nomination basis without competitive bidding, which violates the GFR provisions/guidelines of the Govt."
5. The respondents further state that a vigilance case is pending against the applicant and he concealed the fact about the pendency of the said vigilance case to mislead this Tribunal and on the basis of this alone the present OA is liable to be dismissed with heavy cost. They deny the applicant was entitled to get his retiral dues within thirty days from the date of his retirement. They also state that under the NPCC (CC&A) Rules, the retiral dues of an employee be kept withheld on account of pendency of disciplinary/judicial deciding subject to outcome of the said disciplinary judicial proceeding. They held the view that the applicant is not entitled to the alleged grant of Rs. 7,50,980 towards leave encashment or the interest there on as is being claimed by him in the present OA.
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6. Heard the learned counsels for the parties and examined the pleadings in the matter.
7. While submitting oral arguments, learned counsel for the applicant stated that he will submit a written brief on behalf of the applicant alongwith judgment on which he has placed reliance. The applicant places reliance on judgment of the Hon'ble Supreme Court in the matter of State of Jharkhand & ors. V/s Jitendra Kumar Srivastava & anr. reported in (2013) 12 SCC 2010, NPCC (CC&A) (1 st Amendment) Rules, 2005 (Annexure A-3), judgment of the Calcutta High Court in the matter of Sunil Baran Panda V/s Durgapur Projects Limited & Ors. in W.P.A No. 10421/2021 and judgment of SK Dua V/s State of Haryana & Anr. (2008) 3 SCC 44 in which the Hon'ble Apex Court has held that an employee has a right under Artices 14,19 and 21 of the Constitution of India to claim interest on delayed payment of retirement benefits.
(i) In the matter of State of Jharkhand & ors. V/s Jitendra Kumar Srivastava & anr. (supra) decided on 14.08.2013, the Hon'ble Supreme Court has held as under:
"A person cannot be deprived of this pension without the authority of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.8 OANo.1066/2022
17. It hardly needs to be emphasised that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of the aforesaid Article 300-A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory Rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these Rules, the position would have been different."
(ii) Court in the matter of Sunil Baran Panda V/s Durgapur Projects Limited & Ors. (supra) decided on 21.06.2021, the Hon'ble Calcutta High Court held as under:
"The Hon'ble Apex Court has already held in S.K. Dus (supra) that an employee had a nghi under Articles 14, 19 and 21 of the Constitution of India to claim interest on delayed payment of retirement benefits. Relevant paragraph is quoted below-
14. 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 of reader 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 is 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."
(iii) In OA No. 288/2020 this Tribunal decided on 10.10.2023, relevant portion of the same reads as under:
"6. Heard the arguments by both the counsels. 6.1 In the instant case the applicant retired on 30.12.2017. In fact the respondent have initiated a criminal proceedings against certain employees of the corporation 9 OANo.1066/2022 and subsequently the vigilance division of the corporation had found the present applicant as one of the responsible officials for over payment to the extent of Rs. 99.58 Lakhs to the contractor for construction of Bridge for which the present applicant was In- charge. Nevertheless, retirement benefits like leave encashment, arrears in respect of pay revision are supposed to be effected at the time of retirement. There are catena of judgments of Hon'ble Apex Court that the retirement benefit leave encashment are the private property and they cannot be taken away by except by following due procedure law, if any provision exists for the same. The Hon'ble Apex Court has held that under Article 300A of the Constitution of India such private property of the individuals cannot be taker. away without any statutory provisions. In the instant case, the respondents have not taken the action as per any statutory provision. The sole statutory provision which has been cited in Rule 14A of the NPCC (CC&A) Rules, 2005 which refers to payment of gratuity. It does not relate to payment of leave encashment as well as pay revision."
6.2 I agree with the contention of learned counsel for the applicant that Rule 3 of NPCC (CC&A) Rules, 2005 states that these rules will be applicable to those employees against whom Disciplinary Proceedings are pending. In the instant case, the respondents have not initiated any disciplinary proceeding against the applicant."
8. Government has also noticed in the judgment of the Hon'ble Supreme court dated 27.08.1991 in the matter of Union of India V/s K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in view of the instructions on the subject, the procedure to be followed in regard of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation and procedure and guidelines to be followed- Procedure and guidelines to be followed; an Office Memorandum was issued on 14.09.1992 by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, para 2 of which reads as follows:
10OANo.1066/2022
"2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:-
i) Government servants under suspension;
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for a criminal charge is pending."
9. In the matter of Dattaram Atmaram Sawant v.
Vidharbha Konkan Gramin Bank, 2024 SCC On Line Bom 1253, decided on 02-05-2024 by the Bombay High Court, the Court analyzed Regulations 61 and 67 of Chapter-VI of the Vidharbha Konkan Gramin Bank (Officers and Employees) Service Regulations, 2013 wherein it is stated that an employee earns one day of privilege leave for every 11 days of duty, with the entitlement being the accumulated days earned and that employees are entitled to full emoluments if they have fulfilled the prescribed duty period. Consequently, the Court stated that the right to leave is a statutory entitlement granted to employees as per the provisions of the law. The Court also held that a leave encashment is akin to a salary, which is a property. Depriving a person of his property without any valid statutory provision would violate Article 300-A of the Constitution. If an employee has chosen to accumulate his earned leave to his credit, then encashment becomes his right. The Court relied on State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, wherein the Supreme Court emphasised that the right to 11 OANo.1066/2022 property cannot be infringed upon without due process of law, which is the constitutional mandate enshrined in Article 300-A of the Constitution. The Court also relied on Karnataka Vikas Grameena Bank v. Chandrashekhar, 2021 SCC On Line Kar 15842, wherein the issue of encashment of privilege leave in the case of a resignation was considered and it was held that there was no distinction between the one who retired and the one who resigned since the benefit had already accrued. The Court opined that any attempt to deprive an employee of pension, gratuity, or leave encashment without a statutory provision, is untenable and stated that leave encashment which was acquired by the petitioners constituted their property once earned. Deprivation of such property without statutory backing will not be permitted.
10. None of the conditions as mentioned in para 8 above prevail in the case of applicant hence the respondents are at fault in withholding the retiral benefits in form of his leave encashment. Further, in the instant case, the respondents did not bring out any reasons for withholding the leave encashment dues of the applicant. In view of the law laid down by the Hon'ble Supreme Court on this matter and has laid down in the case of SK Dua (Supra), the respondents are liable to pay interest on the delayed payment of the amount in respect of leave encashment to the applicant.
11. In view of the above, the OA is allowed with following directions:-
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(i) The respondents are directed to pay interest, leave encashment with interest to the applicant at the prevailing GPF rates for the period of delayed payment from the date of his retirement till the payment of such dues.
(ii) The respondents are further directed to complete this exercise within eight weeks from the date of receipt of a certified copy of this Order.
(iii) No order as to costs. Pending MAs, if any, stand closed.
(Rajinder Kashyap) (Manish Garg)
Member(A) Member(J)
/ks/