Delhi District Court
Delhi Financial Corporation vs Raj Kumar on 23 October, 2007
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IN THE COURT OF DR.SUDHIR KUMAR JAIN : ADDITIONAL DISTRICT JUDGE :DELHI.
RCA: 47/2005.
Date of Institution : 25.10.2005
Date of decision : 23.10.2007
Delhi Financial Corporation,
Saraswati Bhawan, E-Block,
Connaught Place,
New Delhi-110001.
... Appellant.
Versus
Raj Kumar,
S/o Late Saran Singh,
R/o C-4/117, Keshav Puram,
(Lawrence Road),
New Delhi-110034.
... Respondent
Appearances :
For appellant : Sh. Ajay Dabas, Advocate.
For respondent : Sh. S.K.Saxena, Advocate.
APPEAL AGAINST THE IMPUGNED JUDGMENT AND DECREE DATED
21.09.2005 PASSED BY THE LEARNED CIVIL JUDGE, DELHI
JUDGMENT
This judgment shall decide an appeal filed by the appellant/defendant Delhi Financial Corporation (hereinafter referred to as "appellant") against the respondent/plaintiff Raj Kumar ((hereinafter referred to as "respondent") 2 challenging the impugned judgment and decree dated 21.09.2005 (hereinafter referred to as 'impugned judgment') passed by the trial court.
2. Briefly stated the relevant facts are that the respondent has filed a suit for permanent injunction, mandatory injunction and declaration against the appellant by pleading that the respondent initially was employed with National Small Industries Corporation Limited, Okhla Industrial Estate, New Delhi (hereinafter referred to as "NSIC") as LDC in the year 1962; the plaintiff in the year 1972 proceeded on deputation with the appellant vide office order bearing no.SIC/ESTT:II/4(189)72 dated 01.08.1972 for a period of one year w.e.f. 01.08.1972 (FN) as usual terms and conditions; the respondent has reported for duty on 01.08.1972 (FN) as Senior Clerk; the appellant has issued order of appointment on deputation basis as Senior Clerk w.e.f. 01.08.1972(FN) vide office order no.DFC/Estt/4172 dated 01.08.1972; the respondent was permanently absorbed with the appellant vide letter no.DFC/75 dated 01.10.1975; the respondent has also given an option to remain permanently in the service of the appellant as Senior Clerk in public interest; the respondent has submitted a letter dated 06.03.1996 to NSIC, requesting for issuance of certificate for no break in service during the period w.e.f. 14.05.1962 to 01.08.1972; the respondent also requested the appellant on 27.03.1996 that the services rendered by him with previous employer NSIC 3 be considered as continued without any interruption for the calculation of pension and other retirement benefits as required under the sub rule 5 of rule 59 C.C.S. Pension Rule, 1972; the appellant has also calculated the previous services rendered by the respondent in NSIC for the purposes of pension and other retirement benefits and due to this reason, the appellant had deposited Rs.16,448/- on 19.09.1996; the appellant retired from the services of the appellant w.e.f. 31.03.1996 after attaining the age of superannuation; the respondent was granted pension of Rs.2796/- on the basis of combined services rendered by him and received the said pension for the period of 2 years 6 months without any objection; the appellant vide office order bearing no.DFC/PRS/PF/98-99/8474 dated 15.07.1998 informed the appellant that he is not entitled to count the past service rendered in NSIC and accordingly the pension was ordered to be reduced to Rs.1435/- w.e.f. 01.11.1998; the respondent made representations dated 21.07.1998 and 15.10.1998 but without any affect; the respondent was also directed vide letter dated 15.12.1998 to deposit back the excess payment of Rs.3086/- within two months; the orders bearing no.DFC/PRS/PF/98-99/8474 dated 15.07.1998 and bearing no.DFC/PRS/P/4/97-98 dated 15.12.1998 are illegal, arbitrary and against the principles of natural justice. Hence the respondent has filed the suit and prayed that the appellant be restrained from giving any effect in 4 manner whatsoever to the office order bearing no.DFC/PRS/PF/98-99/8474 dated 15.07.1998 and also from recovering Rs.3086/- from the respondent, a decree of declaration for declaring the office order bearing no.DFC/ PRS/PF/98-99/8474 dated 15.07.1998 as null and void and also to declare that the respondent is entitled for the counting of service from 14.05.62 to 25.09.1975 and also the benefits arising out of that, a decree of mandatory injunction for directing the appellant to count the service rendered from14.05.62 to 25.09.1975 in NSIC in the service so rendered with the appellant.
3. The appellant has filed the written statement. The appellant has alleged that the suit is barred u/s 80 of the Code of Civil Procedure, 1908; the appellant is a notified financial institution and a public sector undertaking within the meaning of pension rules and is also adopting Central Government Rules relating to pensionary benefits; the employees of the appellant are governed under CCS (Pension) Rules and powers to relax any condition/Rules is not vested in the Corporation; the respondent joined the appellant on 01.08.1972 on deputation and was absorbed permanently w.e.f. 26.09.1975; the respondent has retired on 31.03.1996 after attaining the age of superannuation of 58 years and his pension was fixed by counting his part service rendered by him with NSIC and accordingly he was paid gratuity and 5 commuted pension; past service rendered by the respondent cannot be counted in view of office Memorandum bearing no.28/24/94-P & P.W.(B) dated 30.05.1995 issued by Government of India as contained in Appendix 12 of C.C.S. (Pension) Rules; when the said clerical error was noticed, the case of the respondent was reviewed and the counting of his past service rendered in the parent department was disallowed vide order dated 31.03.1998 passed by the Competent Authority. The appellant has also controverted other allegations of the plaint.
4. Replication filed.
5. The trial court vide order dated 07.07.2003 has framed the following issues :--
1. Whether the services rendered by the plaintiff in NSIC, were taken into account by the defendant due to mistake? OPD
2. Whether plaintiff is entitled to the relief of permanent injunction as claimed in the plaint? OPP
3. Whether the plaintiff is entitled to the relief of declaration? OPP
4. Whether the plaintiff is entitled to the relief of mandatory injunction? OPP
6. The respondent has examined himself as PW1 and tendered his affidavit which is ExP1. The respondent has referred the documents in Ex.P1 which are ExPW1/1 to ExPW1/15. The appellant has examined T.Raju, 6 Assistant Manager (Personal) as DW1 who tendered his affidavit as ExD1. The DW1 referred one document during the cross examination which is ExPW1/P1.
7. The trial court vide impugned judgment has decreed the suit of the respondent and the appellant was restrained from giving any effect in any manner whatsoever to the order dated 31.03.1998 and office order bearing no.DFC/PRS/PF/98-99/8474 dated 15.07.1998 and also from recovering Rs.3086/- from the respondent. The order dated 31.03.1998 and office order bearing no. DFC/PRS/PF/98-99/8474 dated 15.07.1998 was also declared as null and void and the respondent was entitled for the counting of service w.e.f. 14.05.1962 to 25.09.1975 for the purpose of retiral benefits.
8. The appellant being aggrieved filed appeal and and challenged the impugned judgment on the grounds that the impugned judgment has been passed on the basis of conjunctures and surmises; no notice u/s 80 of the Code of Civil Procedure, 1908 was ever served upon the appellant; the past service of the respondent rendered with the NSIC was counted by the appellant due to clerical mistake; the trial court has not considered the the office memo bearing no.28/24/94-P & P.W.(B) dated 30.05.1995 of the Government of India as contained in Appendix 12 of CCS (Pension) Rules besides other grounds.
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9. Sh.Ajay Dabas, Advocate, counsel for the appellant and Sh.S.K.Saxena, Advocate, counsel for the respondent heard. Record and impugned judgment perused.
10. It is not disputed that the respondent was appointed in NSIC in the year 1962 as LDC. The respondent has proceeded on deputation to the appellant vide office order bearing no.SIC/ESTT:II/4(189)72 dated 01.08.1972 ExPW1/1 for a period of one year w.e.f. 01.08.1972 (FN) on usual terms and conditions. The respondent was appointed on deputation basis as Senior Clerk with the appellant w.e.f. forenoon of 01.08.1972 vide office order bearing no.DFC/ESH/4172 dated 01.08.1972 ExPW1/2. The respondent was absorbed permanently with the appellant w.e.f. 25.09.1975 (AN) in pursuance of letter bearing no.SIC/ESHII/4(189)57 dated 25.10.1975 Ex.PW1/3. The respondent has also given his option to remain permanently in the services of the appellant as Senior Clerk in public interest after taking voluntary retirement from his parent department vide letter dated 26.09.1975 Ex.PW1/4. The respondent also submitted a letter dated 06.03.1996 Ex.PW1/5 to the previous employer NSIC for issuance of certificate that there was no break in the service during the period of his service with NSIC. The NSIC vide letter bearing no.SIC/PERS.II/4(189) dated 06.08.1996 Ex.PW1/6 also intimated to the respondent and the appellant that there was no service break in the 8 service of the respondent during his tenure in the NSIC w.e.f. 14.05.1962 to 01.08.1972. The respondent has written a letter dated 27.03.1996 Ex.PW1/6A to the appellant and requested that service rendered by the respondent with NSIC be considered as continue service without any interruption for the purposes of calculating pension and other retirement benefits as required under sub.rule 5 of Rule 59 of CCS(Pension) rules, 1972. The appellant vide proceedings Ex.PW1/9 has counted the previous service rendered by the respondent in NSIC with the appellant for the purposes of pension and other retiral benefits as per the order of Managing Director of the appellant. The respondent has deposited Rs.16,448/- in cash vide deposit cash receipt Ex.PW1/8 in pursuance of order dated 11.09.1996 Ex.PW1/7. The respondent has retired on 31.03.1996 after attaining the age of superannuation of 58 years. The appellant for the purposes of calculating pension and other retiral benefits has counted the past service rendered by the respondent in NSIC. The respondent was paid gratuity and commuted pension accordingly. The respondent was granted pension of RS.2796/- per month on the basis of continued service. The respondent issued a letter bearing no.DFC/PRS/PF/98-99/8474 dated 15.07.1998 Ex.PW1/10 on the basis of order dated 31.03.1998 whereby the respondent was informed that his qualifying service for the purpose of pensionary benefits has been considered 9 from the date of his absorption i.e 25.09.1975. The appellant made representation dated 21.07.1998 Ex.PW1/11. The appellant also issued a letter bearing no.DFC/PRS/P/4/97-98/808 dated 15.12.1998 Ex.PW1/12 whereby informed the respondent that the representation dated 21.07.1998 Ex.PW1/11 was disallowed and the respondent was further informed about the reduction of pension to Rs.1435/- per month w.e.f. 01.11.1998. The respondent was further directed to deposit Rs.3086/- as paid excessive. The appellant has also sought expert's opinion from Finance Department, Government of NCT of Delhi vide letter dated 25.08.2000 Ex.PW1/13 regarding the counting of past service rendered by the respondent for the purpose of pension and pensionary benefits. The Deputy Secretary Finance, Government of NCT of Delhi vide letter dated 19.09.2000 Ex.PW1/14 guided the appellant that appellant cannot deviate from the provision laid down in CCS(Pension) Rules, specially Appendix-12 . Vide letter dated 09.02.2000 Ex.PW1/15 the Deputy Secretary Finance (G) informed the appellant that under Rule 70 of CCS (Pension) Rules, the pension once authorised after final assessment shall not be revised to the disadvantage of the Government Servant, unless such revision becomes necessary on account of detection of clerical error subsequently. From the perusal of above facts it is clear that the respondent was granted pension at Rs.2796/- per month on the basis of 10 continued service rendered by the respondent with the previous employer NSIC and with the appellant. The respondent received the said pension for a period of two years and six months without any objection. The appellant vide letters dated 15.07.1998 Ex.PW1/10 and dated 15.12.1998 Ex.PW1/12 has reduced the pension to Rs.1435/- per month w.e.f. 01.11.1998 after relying upon office memorandum bearing no.28//24/94-P & P.W.(B) dated 30.05.1995.
11. The main issues involved for the disposal of appeal is that whether the service rendered by the respondent for the period w.e.f. 14.05.1962 to 25.09.1975 when the respondent was absorbed permanently with the appellant can be counted for the purpose of calculation of pension and other retiral benefits in the service so rendered by the respondent with the appellant and whether the service rendered by the respondent for the period w.e.f. 14.05.1962 to 25.09.1975 i.e the day on which the respondent was absorbed permanently in the appellant cannot be counted for the purpose of pensionary benefits in pursuance of office memorandum bearing no. 28/24/94-P & P.W.(B) dated 30.05.1995.
12. Sh.Ajay Dabas, Advocate, counsel for the appellant has argued that the period w.e.f. 14.05.1962 to 25.09.1975 cannot be counted in the service of the respondent for the purpose of pensionary benefits in pursuance of office 11 memorandum bearing no.28/24/94-P & P.W.(B) dated 30.05.1995; the trial court has not considered said office memorandum while passing the impugned judgment; the suit is also barred u/s 80 of the Code of Civil Procedure, 1908 as no notice was served upon the appellant before the filing of the suit. Sh.S.K.Saxena, Advocate, counsel for the respondent has argued that in view of Rule 70 of CCS (Pension) Rules, 1972 the pension once fixed cannot be reduced to the disadvantage of a Government Servant ; and the appeal is liable to be dismissed.
13. The appellant is relying upon the office memo bearing no.28/24/94-P & P.W.(B) dated 30.05.1995 which is reproduced as under :--
In cases of mobility of personnel between Government and Financial Institutions and vice versa, such employees are not entitled to count their past services for pensionary benefits on their permanent absorption.
With reference to this Department's O.M.No.4/8/84-P. & P. W., dated the 14th May, 1986 and O.M. No.4/23/87-P. & P.W., dated the 10th November, 1987 [vide Note 1 below Order (3)] on the subject mentioned above, inquiries have been made to the effect whether the benefit of counting of service for the purpose of pensionary benefits, as admissible in terms of this Department's O.M.No.28/10/84-Pension Unit, dated the 29th August, 1984 [Order (i) above], is to be allowed in the case of mobility of personnel from Government to Nationalized Banks and financial institutions like Life Insurance Corporation of India and General Insurance Corporation, etc., and vice versa
2. The matter has been considered in the light of instructions issued by this Department in regard to mobility of personnel 12 between Government and non-Government Organizations including Public Sector Undertakings and Autonomous Bodies.
The orders contained in this Department'sO.M. No.4/8/84-P. & P.W., dated the 14th May, 1986 and O.M. No.4/23/87-P. & P.W., dated the 10th November, 1987, stated that the Nationalized Banks including the Reserve Bank of India and the State Bank of India and its subsidiaries, the General Insurance Corporation of India and its four subsidiaries are to be teated as Autonomous Bodies for the purpose of grant of pro rata retirement benefits to the permanent Central Government employees who are absorbed by these Bodies on the terms and conditions envisaged in Ministry of Finance, Department of Expenditure O.M.No.26/(18)/E.V./75, dated the 8th April, 1976, [Order (4)] as amended form time to time. It is clarified the such employees are not entitled to count the service rendered in Government for the purpose of pension on absorption in the Nationalized Banks including the Reserve Bank of India and the State Bank of India and its subsidiaries and other financial institutions including Life Insurance Corporation of India, General Insurance Corporation and its subsidiaries as per our O.M.No.28/10/84-Pension Unit, dated the 29th August, 1984, referred to above.
3. Central Government employees who have rendered services in the Nationalized Banks as well as other financial institutions including Life Insurance Corporation of India/General Insurance Corporation prior to their appointment in the Central Government are also not entitled to count such service for the pensionary benefits under the Central Government. They are, however, free to seek terminal benefits as admissible under the relevant rules from the concerned Nationalized Banks and such other institutions in which they had rendered service before being appointed in the Central Government.
4. Ministry of Defence, etc., are requested to clarify this position to all concerned authorities under their administrative control. The past cases decided otherwise than the procedure clarified above may be reviewed in case the concerned employees are still in service.
[G.I.Dept.of Pen.& Pen.Welfare, O.M.No.28/24/94-P.&P.W.(B), dated 30.05.1995] 13
14. The respondent is relying upon the Rule 70 CCS (Pension) Rules, 1972 which deals with the revision of pension after authorization which is reproduced as under :--
(1)Subject to the provisions of Rules 8 and 9, pension once authorized after final assessment shall not be revised to the disadvantage of the Government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently:
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years form the date of authorization of pension. (2)For the purpose of sub-rule (1) the retired Government servant concerned shall be served with a notice by the Head of Office requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him.
(3)In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment, shall be adjusted in installments by short payments of pension in future, in one or more installments, as the Head of Office may direct.
15. It is not disputed that both the parties are governed by the CCS (Pension) Rules, 1972. It is also not disputed that the pension was reduced to Rs.1435/- per month from Rs.2796/- per month w.e.f. 01.11.1998 as past service of the respondent with NSIC can not be counted. It is also admitted case of the appellant that no show cause notice was given to the respondent prior to the deduction of the pension vide order dated 31.03.1998. It is also admitted that 14 no personal hearing was granted to the respondent before reducing the pension and passing the order dated 31.03.1998.
16. Initially the appellant has counted the past service of the respondent rendered with the NSIC but subsequently after relying upon the office memorandum bearing no.28/24/94-P & P.W.(B) dated 30.05.1995, the pension was reduced by claiming that the past service of the respondent was counted due to the clerical mistake. The office memorandum bearing no.28/24/94-P & P.W.(B) dated 30.05.1995 provides that the Central Government Employees who have rendered services in the Nationalized Banks as well as other financial institutions prior to their appointment in the Central Government are not entitled to count such service for the pensionary benefits under the Central Government. In view of the office memorandum bearing no. 28/24/94-P & P.W.(B) dated 30.05.1995 the past service of the respondent rendered with the NSIC was counted for the purpose of pensionary benefits. Rule 70 of the CCS (Pension) Rules, 1972 provides that once the pension is authorized after final assessment it cannot be reduced to the disadvantage of the Government Servant, unless such revision becomes necessary on account of detection of clerical error subsequently. The counting of service rendered by the respondent with the NSIC by the appellant for the purpose of calculation of pension and retirement benefits cannot be 15 counted as clerical mistake. The appellant has given the detailed thought before taking such decision as reflected from the Ex.PW1/9. Even, otherwise, the respondent was not given any opportunity of being heard before the reduction of the pension. The principles of natural justice were also not followed by the appellant before reducing the pension of the respondent from Rs.2746/- to Rs.1435/-. The proviso clause attached to the Rule 70 further provides that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years form the date of authorization of pension. The appellant has paid the pension to the respondent for a period of more than two years. There is nothing on record which can suggest that the appellant before the reduction of the pension of the respondent has taken the concurrence of Department of Personnel and Administrative Reforms. The respondent placed on record some communications between the Finance Department of the Government of NCT of Delhi and the appellant regarding the reduction of pension of the respondent. These correspondences are not a concurrence of the Department of Personnel and Administrative Reforms required as per the proviso clause attached to Rule 70. The appellant has reduced the pension of the respondent without following the principles of natural justice and due 16 process of law.
17. The counsel for the appellant has argued that the suit is barred under section 80 of the Code of Civil Procedure, 1908. The trial court has not framed the specific issue regarding the bar of Section 80 of the Code of Civil Procedure, 1908. It is not the case of the respondent that he has served a notice u/s 80 of the Code of Civil Procedure, 1908 prior to the institution of the suit. Section 80 of the Code of Civil Procedure, 1908 provides that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office. Section 80 (2) further provides that A suit to obtain an urgent or immediate relief against the Government or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1). The perusal of trial court record reveals that no such leave was granted to the respondent. The respondent has claimed an urgent relief as the appellant without following the due process of law, has reduced the pension of the respondent. The relief sought by the respondent is urgent in nature. Although no specific order was passed by the trial court for granting leave for institution of the suit without serving notice but 17 this is merely an irregularity and not illegality. The objection taken by the appellant regarding Section 80 not give much help to the appellant.
18. The impugned judgment passed by the trial court is perused. The trial court has considered all the relevant factors before passing the impugned judgment. There is no ambiguity or illegality in the impugned judgment. The impugned judgment is well reasoned and supported by the documentary evidence. The trial court has taken all the relevant Rules into consideration before passing the impugned judgment. There is no ground to interfere in the impugned judgment. The appeal is dismissed. However the appellant shall be at liberty to re-decide the pension of the respondent after following the due mandatory provisions contained in Rule 70 of the CCS (Pension) Rules, 1972 or any other applicable statutory provision. No order as to costs. A copy of this judgment alongwith TCR be sent to the trial court for information. File be consigned to the record room.
Announced in the open court (Dr.Sudhir Kumar Jain) Dated 23.10.2007 Additional District Judge/Delhi.