Central Administrative Tribunal - Delhi
Shri S.N. Bhargava vs Union Of India : Through on 3 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2291/2007 New Delhi, this the 3rd day of February, 2009 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri S.N. Bhargava, S/o Late Sri J.N. Bhargava, Chief Commissioner of Income Tax (Retd) Aged 65 years, 304, Fancy Society, 19, Vasundhara Enclave, Delhi 110096 Applicant (Applicant in person) VERSUS Union of India : Through 1. Secretary, Ministry of Finance, North Block, New Delhi 2. Chief Commissioner of Income-Tax, CR Building, IP Estate, New Delhi Respondents (By Advocate: Shri V.P. Uppal) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a retired Chief Commissioner of Income Tax through this OA challenges deduction of Rs.13,495/- on account of interest on House Building Advance (HBA) from his gratuity amount of Rs.3,50,000/-. The OA seeks by way of relief quashing the impugned order dated 29.1.2007 as also a direction to the Respondents for reimbursement of the amount of Rs.13,495/-. Additionally a direction for payment of interest on late payment of gratuity amount of Rs.13,495/- has also been prayed.
2. In brief, the applicant retired on 30.9.2002. His gratuity was sanctioned on 8.1.2003. From the admissible amount of Rs.3.50 lacs, an amount of Rs.80,135/- was deducted which comprised (a) LTC reimbursement of Rs.63,460/- with (b) penal interest of Rs.3,180/-, making a total of Rs.66,640/- and (c) interest on HBA amounting to Rs.13,495/-. As per the applicant, these deductions had been wrongly made and when the representations made to the authorities were of no avail, he filed a number of OAs before the Tribunal for relief. The present OA is third in the series. Without recounting the details of the orders in these OAs and the follow ups, it would suffice to state that the claim of the applicant on account of wrongful deduction of LTC reimbursement was upheld by the Tribunal in OA No.2417/2005 vide order dated 21.3.2006 (Annexure A/2). Even though the OA mentions regarding this amount of Rs.66,640/- having still not been refunded to the applicant, as this does not form part of the relief claimed in the instant OA, we are concerned only with the balance amount of Rs.13,495/-.
3. The rejoinder mentions the detailed break-up as follows:-
a. Rs.3,191, on account of rebate of = % interest for undergoing vasectomy operation;
Rs.1,500, for not accounting the credits for the months of 10/87, 1/94 and 2/94, @ Rs.500;
Amount in para a) and b) above, is Rs.4,691. Balance deduction is Rs.8,804 (13,495-4,691). This could be accounted by the credits for the months of 1/82 to 11/85 and 6/2001 to 9/2002, Rs.31,500;
xxxxxx"
4. On the point of admissibility of rebate of half a percent in interest for undergoing vasectomy operation, the applicants claim is that he had undergone the aforesaid operation considering the incentive provided by the Government of India and as per various instructions, he is entitled to the rebate.
This, however, has been contested by the Respondents whose case is that the applicant is not entitled for this rebate since he did not fulfill all the conditions as per the Government instructions.
4.1 As the issue involves interpretation of relevant instructions and their applicability to the present case, it would be appropriate to briefly recount them:
(a) The Govt. of India vide OMs dated 1.9.1979 and 22.9.1980 issued instructions to provide =% less interest for promoting small family norms. It was decided that the rate of interest on HBA to such Government servants as volunteer for sterilization will be half per cent less than the normal rate of interest. This was subject to certain eligibility conditions. Cause (v) of this OM stipulates as under:
(v) The concession will be admissible only to the Central Government servants who undergo the sterilization operation on or after the date of issue of this order. (emphasis supplied) On 18.2.1980, a clarification was issued about the rebate being admissible in respect of those employees whom the HBA is released in full after 1.9.1979 even though the formal sanction may have been issued earlier.
Again by a further clarification on 31.3.1981, it was provided that this incentive is admissible to those Government servants who had undergone the sterilization operation on or after 1.9.1979 provided it was before the release of the first instalment of their HBA.
Vide OM dated 21.5.1990, the above condition of restricting it to before the release of the first instalment of HBA was removed and it was decided that the benefit of rebate would be admissible even after the release of the first instalment of the HBA.
Vide C.& A.G OM dated 6.1.1992, it was communicated that as per clarification received from the Govt. of India the aforesaid rebate would not be allowed where the sterilization operation had been undergone after drawal of the first instalment of the HBA. However, this OM also provided that the cases already settled with reference to the earlier orders were not to be re-opened as that would not be administratively feasible.
The aforesaid points were reiterated vide Governments O.M. dated 3.3.1994.
Copies of instructions from Swamys House Building Advance Rule find annexed as R-1 with the counter reply.
4.3 The claim of the applicant is that the sterilization operation was undergone by him in November, 1983. This is not disputed by the Department. What is disputed is the admissibility of the special concession on this count in the normal rate of interest leviable on HBA. The payment of HBA was made to Shri Bhargava in five instalments as under:
1st = Rs.17,783 in 11/79 IInd = Rs.3,750 in 3/80 IIIrd = Rs.26,000 in 8/80 IVth = Rs.17,500 in 2/81 Vth = Rs.4,967 in 9/82The respondents case is that since the sterilization operation had been undergone after the last instalment of the HBA release in September 1982, the applicant had not fulfilled all the prescribed eligibility conditions (paras 6, 7 & 8 to 12 of the counter affidavit filed in reply to the rejoinder by the applicant). For this they refer to the conditions imposed by the OM dated 31.3.1981 regarding the operation taking place before the release of the first instalment of the HBA, which was not the case here. However, the applicant who is pleading his case personally, would challenge this view of the Respondents.
The applicant submits that vasectomy operation was undergone by him in response to these special Government guidelines even at the cost of a difficult personal option. The operation once undergone was irreversible. The averment of the applicant acquiring a vested right would be made. In support, he would cite judicial dicta from various rulings of which the observation of the Tribunal in OA 1505/2007 (Rahul Rai Sur) vide order dated 1.4.2008 would be particularly emphasized:
There would be no need to make a mention of other judgments of the Honble Supreme Court taking the same view, and suffice it to say that it is well settled proposition of law by now that even though, the legislature may have power to amend prospectively or retrospectively, and the retrospectivity may be express or implied, the vested rights already having accrued to a person cannot be taken away by retrospective amendment of rules. (para 18 pp 22) Besides, the doctrine of promissory estoppel would be evoked midst reference on the judicial pronouncement on this subject. The applicant would draw our attention to the Union of India & Ors v. Godfrey Philips India Ltd., Union of India & Ors vs. India Tobacco Co. Ltd & Union of India & Ors vs. Vazir Sultan Tobacco Co. Ltd {1986 (Vol.158) SC 574}:
The true principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise or representation is made and it is in fact so acted upon by the other party, the promise or representation would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings which have taken place between the parties.
The applicant would support his contentions regarding admissibility of the rebate by relying on the OM dated 25.1.1990 by which the conditionality regarding the operation being before the release of the first instalment of the HBA had been deleted. On the query that by this trend of logic he was attributing retrospective effect to those instructions, his response would be about the same not holding true in the instant case in view of his already acquiring a vested right. From the Bench a counter argument was posed that if the OM of 1990 was to be taken to carry retrospective effect, the same should also hold good in case of the subsequent C.& A.G. OMs of 1992 and the GOA OM of 1994 re-imposing the aforesaid condition. This, however, would not be acceptable to the applicant who would advance the plea that in a situation where two different interpretations of Government instructions are possible, the one favouring the Government employee should only weigh with the Tribunal.
4.4 The learned counsel Shri V.P. Uppal, arguing the case on behalf of the respondents, would vehemently refute the above contentions. He would deny accrual of any vested right in favour of the applicant in the given situation or applicability of the doctrine of promissory estoppel. The learned counsels averment would be that since on the date of the operation as per the prevailing instructions at that point of time (vide OM dated 31.3.1981 incorporating the pre-condition of the rebate being admissible only in those cases where the release of first instalment of HBA had still not taken place), the applicant was not entitled to claim the special rebate. The subsequent instruction of 1990 was stated not to be applicable in the present case.
Shri Uppal would protest against the evocation of the doctrine of acquiring vested interest or promissory estoppel. How an employee could acquire a vested interest when the instructions at that point of time did not confer the benefit as admissible, the learned counsel would argue.
4.5 Considering the rival contentions carefully, we do not agree with the applicants stand on this point to be on a sound footing. The relevant guidelines at that point of time were of 31.3.1981 which prescribed the special rebate to only such cases where the sterilization operation had been undergone before the release of the first instalment of the HBA. The applicant could not claim benefit of a subsequent relaxation accorded in 1990 after a lapse of seven years of the operation. Continuing the same tenor of argument, the claim for accrual of any vested interest or coming under the shadow of the doctrine of promissory estoppel would also slip away.
5. The OA has also averred about the deduction on account of interest on HBA not being admissible under the CCS (Pension) Rules. In support, he would rely upon rule 71 of the CCS (Pension) Rules and would further advert to the view taken by this Tribunal on a similar point in OA No.1761/2007 (Shri R.C. Chauhan) decided on 29.4.2008.
5.1 Rule 71 of CCS (Pension) Rules, 1971 pertains to recovery and adjustment of Government dues. Sub-clause (3) of the rule contains a comprehensive description of the various dues comprised under the expression Government dues. It reads as follows:-
71. Recovery and adjustment of Government dues (1) xxxxx xxxxx xxxxx xxxx (2) xxxxx xxxxx xxxxx xxxx The expression Government dues includes-
dues pertaining to Government accommodation including arrears of licence fee, if any;
dues other than those pertaining to Government accommodation, namely, balance of house building or conveyance or any other advance, overpayment of pay and allowances or leave salary and arrears of income tax deductible at source under the Income Tax Act, 1961 (43 of 1961) Rule 73 of CCS (Pension) Rules, 1971 pertains to Adjustment and recovery of dues other than dues pertaining to Government accommodation. Sub-clause (3) reads as follows:
7.3 Adjustment and recovery of dues other than dues pertaining to Government accommodation (1) xxxx xxxx xxxx xxxx (2) xxxx xxxx xxxx xxxx (3) The dues as assessed under sub-rule (2) including those dues which come to notice subsequently and which remain outstanding till the date of retirement of the Government servant, shall be adjusted against the amount of (retirement gratuity) becoming payable to the Government servant on his retirement. While it would be averred by the applicant that a lack of specific mention of the term interest on HBA under sub-rule (3) clause (b) of Rule 71 connotes the same not coming within its purview, the learned counsel for the respondents would call this contention as utterly untenable. He would further aver that as per Rule 73 (3) read with Rule 71 (3)(b), it was within the competence of the authority to deduct the amount by way of interest on HBA from the retirement gratuity of a retiring employee.
As regards the OAS No.1671/2007 is concerned, since the issue therein was different concerning dues in the context of Railway Service (Pension) Rules, 1993 and relevant instructions thereon, the same may not be construed as binding in the present case.
6. The second part of the total sum of Rs.13,495/- comprised the deduction of an amount of Rs.1500/- for not accounting the credits for the months of 10/87, 1/94 and 2/94 @ Rs.500/-, the applicant would draw our attention to the supportive documentary proofs annexed as Annexure B-1 along with the affidavit filed on 17.11.2008 (internal pages 21, 23 and 24). A perusal of these documents does lend support regarding deduction of the necessary amounts for the months of 10/1987, 1/94 and 2/1994. However, the counter reply to the rejoinder (para-12) avers about the recovery for the month of Feb. 1994 having been accounted for in the calculation of dues by the respondents. In view of the documentary proofs now produced before us there seems to be a need for re-look on this aspect of by the respondents.
7. The remaining amount, out of the total sum of Rs.4691/-, is Rs.8,804/-, which, as per the applicant could be accounted by the credits for the months of 1/82 to 11/85 and 6/2001 to 9/2002 (para-1 of the Rejoinder). With regard to these, the applicant would admit as being not able to produce any supportive documentary proofs, however, he would aver that there should be a presumption of deductions in the normal course. This claim is refuted by the respondents. In their second counter reply filed on 22.12.2008 in response to paras 8 to 12 the respondents submitted the following detailed factual averments:-
The total comes to Rs.70,000/- which has been paid to Sh Bhargava and it was recovered from 10/81 to 12/81 @ Rs.500 and no recovery has been received from 1/82 to 11/85 thereafter from 12/85 to 2/86 @ Rs.1,000/- and 3/86 to 9/87 @ Rs.1,000/- p.m. received. Sh. Bhargava has been paid Rs.70,000/- as HBA in five installments and Rs.61,000/- which was accounted for by ZAO Agra as intimated by ZAO Agra and Rs.9,000/- was accounted for by ZAO, Delhi and last installment was recovered in 9/95 of principal amount thereafter ZAO Delhi has verified the interest of Rs.47,495/- at normal rate and intimated to DDO, HQ (Finance), Delhi. Interest was calculated as per GIO No.2 below rules 6 at the rates 6.5% for first Rs.25,000/- and 8% for the next Rs.25,000/- (Rs.25,001 to 50,000/-) and 10% for the next Rs.20,000 (50001 to 70000). It may be clarified this that the relief on a/c of vasectomy operation has been indicated or otherwise regarding discrepancy between the figures of recovery made from 3/94 to 5/99 is not correct as given by official. The recovery details from 3/94 to 5/99 are as under.
Recovery made from 2/94 to 12/94 @ Rs.500 and 3/95 to 9/95 @ Rs.500/- p.m. comes to Rs.9,000/- as principal amount of BHA. Thereafter recovery of Interest has been started from 10/95 to 5/2001 comes to Rs.34,000/-. The total interest was worked out Rs.47,495/-, out of this Rs.34,000/- was recovered from the DCRG of the officer as per rule 71 (3) dues other than those pertaining to Govt. accommodation, normally balance on house building can be adjusted from Govt. dues. The calculation of interest worked out and intimated to the Deptt. on 9-08-2002 which is well before the retirement. (emphasis supplied) It is trite that a disputed question of fact cannot be looked into by judicial review. In any case, while the respondents aver that no recoveries were made for the period from 1/82 to 11/85 or after 5/2001, the applicant has not been able to produce any documentary proofs to prove the contrary. In the given situation, we would not be able to countenance this averment of the applicant.
The contention of the applicant regarding the impugned order not being a speaking one is not found to be tenable either.
8. To conclude, in view of the foregoing, we find no merit in the applicants claim about the admissibility of the rebate of 0.5% interest under the scheme for promoting small family norms. Similarly, for want of any documentary proofs produced in support, the contention regarding deduction of an amount of Rs.8804/- also by the respondents on the basis of records available with them cannot be countenanced. The only limited point that has emerged is that out of the total amount of Rs.13,495/-, portion (b) comprising of Rs.1,500/- for the claimed missing credits for the months of 10/1987, 1/94 and 2/94 @ Rs.500/-, the respondents averment affirms credit for the month of 2/94 only. In view of the documentary proofs produced this contention of the applicant deserves an appropriate re-look by the respondents. The amount claimed by way of interest on this amount of gratuity does not merit any consideration.
9. This is a long protracted case which deserves at last a quietus. Even though the amount of Rs.1000/- is small, considering the tenacity of the applicant in pursuing his case, the OA is disposed of with a direction to the respondents to reconsider their order dated 29.1.2007 on this limited aspect and finally settle the matter.
There shall be no order as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/