Central Administrative Tribunal - Ernakulam
V.Nirmala vs The Controller Of Communication ... on 14 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 261/2012
Friday, this the 14th day of September, 2012.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
V.Nirmala,
Retired Sub Divisional Engineer,
Bharat Sanchar Nigam Limited,
Residing at Thycattu Veedu, Kulathoor,
Uchakada.P.O., Neyyatinkara,
Thiruvananthapuram. - Applicant
(By Advocate Mr Vishnu S Chempazhanthiyil)
v.
1. The Controller of Communication Accounts,
Department of Telecom Cell,
Kerala Circle, O/o the CGMT,
Thiruvananthapuram-695 033.
2. The Principal General Manager,
Thiruvananthapuram SSA,
BSNL, Thiruvananthapuram-695 001.
3. The Chief General Manager, BSNL,
Kerala Circle, Vikas Bhavan Post,
PMG Junction, Thiruvananthapuram
695 033. - Respondents
(By Advocate Mr Millu Dandapani, ACGSC for R.1)
(By Advocate Mr P Muraleedharan for R.2 & 3)
This application having been finally heard on 11.09.2012, the Tribunal on
14.09.2012 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The applicant retired as a Sub Division Engineer in the BSNL on 31.5.2011. Certain prohibitory orders were passed by the Second Additional Sub Court, Thriruvananthapuram in O.S.No.439/2011 with respect to disbursement of leave encashment dues to the applicant and also under the Group Insurance Scheme. Annexure A-4 refers. Further, the Principal Sub Court has also passed an order of attachment in O.S.No.734/2010. The Principal Sub Court has however, lifted the attachment as against gratuity benefits vide Annexure A-7. Another prohibitory order in respect of DCRG due to the applicant has been issued by Special Deputy Tahsildar(Revenue Recovery), Thiruvananthapuram vide Annexure A-6. The applicant has given his consent for withholding of the DCRG payable to him by a separate communication.
2. There appears no prohibitory orders or attachment or attachment in respect of commutation of pension due to the applicant. However, as per the Annexure A-1 impugned order, issued by the first respondent, the pensionary benefits except pension have been withheld at the advice of respondent No.3. The applicant has come against the same and has prayed for the following reliefs:
(i) Call for the records leading to the issue of Annexure A-1 and set aside Annexure A-1.
(ii)Direct the respondents to release commuted value of pension to the applicant forthwith.
(iii)Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
3. Respondents 1 has filed their reply and respondents No.2 and 3 have filed a separate reply. First respondent has stated that the pension papers pertaining to the applicant were forwarded to him on 24.4.2011 and pension sanctioning authority i.e. the 3rd respondent intimated to withhold an amount of Rs.8,87,325/- from the pensionary benefits admissible to the applicant, on account of attachment and orders against disbursement of various pensionary benefits. The pensionary benefits authorised to the applicant constituted monthly pension (which has been released ), DCRG (withheld with the consent of the applicant) and commuted value of pension amounting to Rs.5,91,738/- withheld at the direction of the 3rd respondent. The 3rd respondent had in a later communication intimated that an amount of Rs.19,89,347/- had to be withheld from the pensionary benefits vide Annexure R-2. This fact was communicated to the applicant vide Annexure R-3. The total liabilities of the applicant were worked out at Rs.29,43,414/- vide Annexure R-4. The 3rd respondent reiterated that no payments including commuted value lof pension can be disbursed until the court orders for attachment are vacated. Respondent No.1 has communicated the very same fact to the applicant vide Annexure R-9.
4. In para 3 of their reply, respondent No.1 has stated that the 1st respondent has no reservation of their own in releasing the commuted value of pension and the same is withheld on specific instructions from the 3rd respondent.
5. On behalf of respondents 2 & 3, reply has been filed wherein it has been stated that no legal right of the applicant is infringed. The respondents received many prohibitory orders from the court and other agencies/departments restraining the payment of various amounts from gratuity, leave encashment, benefits from insurance etc. from the applicant. The respondents obeyed the orders of the Court. Hence the O.A is liable to be dismissed. The respondents have also stated that they have to recover an amount of Rs.20,211/- from the applicant as outstanding in respect of loans and advances. The fact of the applicant having given consent for withholding the DCRG due to her has also been mentioned in their reply. Respondents sought legal advice from the counsel in view of the other pending orders of attachment and other requests for recovery received in the name of the applicant. The legal advice was received to the effect that pensionary benefits including commuted value of pension cannot be disbursed so long as the attachment orders are in force.
6. The applicant has filed his rejoinder to the two replies. It has been stated by the applicant that the very same counsel who gave legal opinion vide Annexure R-2(g) has advised the BSNL to the effect that any amount other than DCRG, leave encashment, salary and Group Insurance Scheme can be disbursed. Further, so long as there is no attachment as against release of commuted value of pension, the respondents cannot withhold the same.
7. Counsel for the applicant argued that when court orders are obeyed, they have to be obeyed strictly in terms of the order. Nowhere in any of the prohibitory or attachment order has there been a direction to withhold commuted value of pension. The counsel further submitted that as long as no specific attachment of the commuted value of pension exists, the respondents are due bound to disburse the same to the applicant as pension is neither a bounty nor a gratis and has to be paid to the individual without any inordinate delay.
8. Counsel for the respondents in unison submitted that their reservation in release of commuted value of pension is that the money due from the applicant is stupendous extending to Rs.30 lakhs approximately and the amount withheld by them (excluding commuted value of pension) is much less. Notwithstanding the fact that there is no specific order of attachment from the court for withholding the commuted value of pension, the amount has been withheld in view of the fact that the applicant owes a lot of money to various parties including BSNL Co-operative Housing Society.
9. Arguments were heard and documents perused.
10. Facts are admitted. The only issue to be decided is whether pension or commutation of pension enjoys immunity from attachment. First of all, it is only the government dues that could be recovered from the terminal benefits and the Pension Rules provide for such recovery or adjustment of government dues only from the Gratuity. Rule 63 and Government of India Instructions under Rule 73 refer. Dues of Municipality and Cooperative Societies are not treated as Government Dues. The term 'Government dues' is defined in Rule 71(3) the same includes dues pertaining to Government accommodation including arrears of licence fee and 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.
11. In the case of Union of India v. Wing Commander R.R. Hingorani, (1987) 1 SCC 551, the Apex Court has observed as under:-
Section 11 of the Pensions Act, 1871 which reads as follows:
"Exemption of pension from attachment.--No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any court at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such court."
According to its plain terms, Section 11 protects from attachment, seizure or sequestration pension or money due or to become due on account of any such pension. The words "money due or to become due on account of pension" by necessary implication mean money that has not yet been paid on account of pension or has not been received by the pensioner and therefore wide enough to include commuted pension."
12. This has been affirmed in the case of Radhey Shyam Gupta v. Punjab National Bank, (2009) 1 SCC 376, wherein the Apex Court has held as under:-
"33. ....... In other words, the High Court erred in altering the decree of the trial court in its revisional jurisdiction, particularly when the pension and gratuity of the appellant, which had been converted into fixed deposits, could not be attached under the provisions of the Code of Civil Procedure. The decision in Jyoti Chit Fund case has been considerably watered down by later decisions which have been indicated in para 22 hereinbefore and it has been held that gratuity payable would not be liable to attachment for satisfaction of a court decree in view of proviso (g) to Section 60(1) of the Code.
34. x x x x x x
35. We also agree with Ms Shobha that even after the retiral benefits, such as pension and gratuity, had been received by the appellant, they did not lose their character and continued to be covered by proviso (g) to Section 60(1) of the Code. Except for the decision in Jyoti Chit Fund and Finance case, where a contrary view was taken, the consistent view taken thereafter supports the contention that merely because of the fact that gratuity and pensionary benefits had been received by the appellant in cash, it could no longer be identified as such retiral benefits paid to the appellant."
13. Thus, there is no provision in the Rules governing the pension and commutation of pension for adjustment of pension or commuted value of pension against any government dues payable by the Government servant. The decision of the Apex Court supports the case of the applicant. In fact, if there be any guidelines for the authorities issuing PPOs, in all expectations, the fact that adjustments of government dues could be made only from the DCRG would have been highlighted.
14. In view of the above, the OA is allowed. It is declared that withholding of the commuted value of pension of the applicant is beyond the provisions of the relevant rules and as such, the same shall not be withheld. Respondents are directed to release the same within a period of six weeks from the date of communication of this order. If the same is not paid within the above scheduled time frame, the respondents shall pay interest on the delayed payment right from the date of retirement of the applicant till the date of payment at the rate of 9% per annum and if the delay is due to callousness of the officials in the respondents' organization, the amount of interest so paid shall be recoverable from the erring individuals, as laid down in the case of Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 wherein the Apex Court has held as under:-
"11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries."
15. There shall be no order as to costs.
Dr K.B.S.RAJAN JUDICIAL MEMBER trs