Central Administrative Tribunal - Delhi
Hargian Singh S/O Kartar Singh vs Government Of Nct Of Delhi Through on 3 September, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.1780/2007 This the 3rd day of September, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Hargian Singh S/O Kartar Singh, H. No.581, Vill & PO Nangloi, Delhi-110041. Applicant ( By Shri Saurabh Ahuja, Advocate ) Versus 1. Government of NCT of Delhi through Chief Secretary, Delhi Secretariat, IP Estate, New Delhi-2. 2. Director of Education, Govt. of NCT of Delhi, Delhi Secretariat, Dehi-2. 3. Labour Department through Labour Commissioner, Govt. of NCT of Delhi, 15 Rajpur Road, Delhi-54. 4. Deputy Director of Education, Govt. of NCT of Delhi, Distt. North West-B, Pitam Pura, Delhi-88. 5. Senior Accounts Officer (Admn.), Principal Accounts Office, GNCT of Delhi, A Block, Vikas Bhawan, New Delhi. 6. Deputy Controller of Accounts (Funds), GPF Cell, Govt. of NCT of Delhi, Delhi Sercetariat, Delhi-2. 7. Principal, Govt. Comp. (Sarvodaya) Girls Sec. School, U-Block, Mangol Puri, Delhi. Respondents ( By Shri Rishi Prakash, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Hargian Singh, the applicant herein, while in service, was not made over his salary from 5.12.1994 till 9.9.1998. Even though, he had retired on 31.10.2005, he is still not made over the salary for the period aforesaid nor was given any post-retiral dues till such time the present Application came to be filed. Applicant, in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, seeks salary for the period from 5.12.1994 to 9.9.1998 with interest, as also arrears of pension with interest on account of delayed payment.
2. The facts on the basis whereof the reliefs as indicated above are sought to rest reveal that the applicant was appointed as sub Inspector in Co-op. Societies on 8.12.1964 and was promoted as UDC in June, 1979, and finally as Grade-II (DASS) in 2004 with effect from 1997. With regard to his promotion with effect from 1997 notionally without any monetary benefits, the applicant has filed another Application bearing OA No.468/2008, which we have decided on 2nd September, 2008 separately. The applicant was transferred from Labour Department to Directorate of Education on 5.12.1994 and was then posted at District Central in diverted capacity with direction to work physically in the personal branch of Minister of Education, vide order dated 23.12.1994 (Annexure-1). It is the case of the applicant that he worked in the personal branch of Minister of Education and Development and was attached with Chairman of Delhi Land Reforms committee w.e.f. 5.12.1995 to 9.9.1998. It is further his case that his work during the said period was satisfactory, which would be authenticated from a certificate issued by Chairman of Delhi Land Reforms Committee on 9.9.1998 (Annexure-2). The respondents, however, did not release the salary of the applicant w.e.f. 5.12.1994 to 9.9.1998. Vice-Principal, Government Sarvodaya Kanya Vidyalaya (GSKV), U-Block, Mangol Puri, issued memorandum dated 27.10.2005 stating that the school authorities had not drawn the salary of the applicant for the said period as per record (Annexure-3). The oral requests made by him for his salary proved abortive. The applicant, thereafter made written representations also on 9.5.2005 and 8.6.2005 pleading therein that he was going to superannuate on 31.10.2005 and that he should not be harassed and made to run from pillar to post to get his just claim. The respondents, however, vide memorandum dated 12.8.2005 directed him to furnish relevant information/ requisite documents on the following queries raised:
1. Copy of posting order of Sh. Hargian Singh, UDC in Delhi Land & Reforms Committee.
2. Where is the attendance record of DLRC?
3. Why was monthly record not being maintained?
4. Who set up the office of DLRC?
5. Whether DLRC is a Govt. body, if so, a copy of notification to this effect may be enclosed.
6. Reasons for non-representation during your 4 years stay with so called DLRC and without lodging any protest.
7. Have been you paid any sum of honorarium in DLRC? The applicant was asked to do the needful within three days of receipt of the communication so that the same may be placed before the Director (Education) for appraisal. The applicant immediately furnished the relevant information/requisite documents pertaining to the queries raised by the respondents, as mentioned above, vide his letter dated 30.8.2005. He superannuated on 31.10.2005 but even after that he was neither paid pension nor provisional pension. His case was, however, forwarded for necessary action vide letter dated 3.4.2006 to pay his salary w.e.f. 5.12.1994 to 9.9.1998, for regularization of service, completion of service book/leave account etc. The respondents, it is the case of the applicant, are still sitting tight over his representations and thus neither releasing his salary for the aforesaid period nor the pension.
3. Pursuant to notice issued by this Tribunal, respondents 1, 2, 4 and 7 have entered appearance and contested the cause of the applicant by filing counter reply. Respondent No.3, Labour Commissioner, Government of NCT of Delhi; respondent No.5, Senior Accounts Officer (Admn.), Principal Accounts Office, Government of NCT of Delhi; and respondent No.6, Deputy Controller of Accounts (Funds), GPF Cell, have chosen neither to appear nor to file any reply. In the counter reply filed on behalf of respondents 1, 2, 4 and 7, it has inter alia been pleaded that the Application is barred by limitation. It is averred that if the salary of the applicant was not drawn for the period as mentioned above, why he kept quiet during the relevant period which is about four years, and that he cannot be allowed to take advantage of his own negligence and laches. It is then averred that the services of the applicant cannot be regularised for want of his posting order with the Delhi Land Reforms Committee by the office of Minister of Education, and duly authenticated attendance certificate from the office of Minister of Education. Inasmuch as, the services of the applicant cannot be regularised, it is averred that no question arises for completion of his service book. It is then pleaded that neither the applicant nor the then office of Minister of Education could produce the posting order of the applicant in the Delhi Land Reforms Committee by the office of the Minister, and the authenticated attendance certificate from the office of the Minister, in absence whereof his services for the period from 5.12.1994 to 9.9.1998 were not regularised by the competent authority. It is denied that the applicant made any representation to the 7th respondent or to any other answering respondent before 9.5.2005, by which time his claim had already become time barred.
4. The applicant has filed rejoinder wherein it has been averred that he was working as UDC on 5.12.1994 in the Labour Department and thereafter taken on the strength of Directorate of Education, and consequent upon his joining the Directorate, he was posted at Central District. He was, however, directed to work in the personal branch of the Ministry of Education in diverted capacity vide order dated 23.12.1994. The said order was passed with the approval of Joint Director (Education). Consequent upon his posting at Central district, he was posted in GGSSS, U-Block, Mangol Puri w.e.f. 5.12.1994. He was directed vide order dated 20.3.1995 to continue to work in the personal branch of the Minister of Education in diverted capacity till further orders (Annexure-8). He gave his joining report immediately, but was not paid salary w.e.f. 5.12.1994. He raised his grievance orally with the Principal, GGSSS, U-Block, Mangol Puri, and the Principal told him that as the last pay certificate (LPC) was not forwarded by Labour Department to Education Department, therefore, his salary could not be disbursed. He immediately preferred representation dated 18.12.1997 to Deputy Labour Commissioner with request to forward his LPC to Directorate of Education as he was not getting salary w.e.f. 5.12.1994 (Annexure-9). The said representation was also forwarded to Chief Secretary, Delhi on 22.12.1997 (Annexure-10). The LPC was issued on 2.8.2000. The applicant again preferred representations dated 12.5.2000 and 17.5.2000 (Annexure-11 colly.), and dated 9.5.2005 and 8.6.2005 (Annexure-4) for releasing his salary for the period 5.12.1994 to 9.9.1998, for regularizing his service, and for completion of his leave account for the said period. It is reiterated that the applicant had replied to all the queries raised in the order of respondents dated 12.8.2005. Thereafter, the applicant was communicated order dated 3.4.2006 that his grievance was under consideration (Annexure-7). It is mentioned that during the pendency of the present Application, from March, 2008 the respondents have started paying pension to the applicant. The respondents have not chosen to file any reply to the rejoinder of the applicant.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Inasmuch as, the applicant has been made over his pension during the currency of the present Application, in March, 2008, the surviving claim of the applicant would be for salary for the period 5.12.1994 to 9.9.1998 with interest, as also interest on pension from the date of his superannuation up to March, 2008.
6. Dealing first with the question of salary of the applicant for the period 5.12.1994 to 9.9.1998, it may be recalled that insofar as, his transfer from Labour Department to Directorate of Education on w.e.f. 5.12.1994 is concerned, same is not in dispute. It is also authenticated by order Annexure-1 dated 28.12.1994, which clearly mentions that consequent upon transfer of the applicant from Labour Department vide orders dated 26.7.1994, the applicant was taken on the strength of directorate of Education w.e.f. 5.12.1994. This order has been issued by Administrative Officer E.I., Directorate of Education, Government of NCT of Delhi. The fact that the applicant indeed worked in the personal branch of the Minister of Education and Development and was attached with Chairman of Delhi Land Reforms Committee with effect from 5.12.1994 to 9.9.1998 is, once again, proved from certificate Annexure-2 dated 9.9.1998. The same has been issued by Chairman, Delhi Land Reforms Committee, Government of NCT of Delhi. It reads, thus:
Certified that Shri Hargian Singh, Grade-III (DASS)/UDC, of Education Deptt., has worked in the personal branch of Minister of Education and Development and attached with chairman of Delhi Land Reform Committee, in diverted capacity vide Office order No.415 bearing No. DE-I(5)/3/E.I/93/ PF/28994-29000 dated 23/12/94 of Dte. Of Education, Old Sectt., Delhi w.e.f. 05/12/94 to 09/09/98 (AN).
He has not availed any Earned Leave/Medical Leave Leave/EOL during his stay in this office.
His work during the above period has been found satisfactory. Reading of the certificate reproduced above would manifest that the applicant worked in the personal branch of Minister of Education, attached with Chairman of Delhi Land Reform Committee in diverted capacity vide office order dated 23.12.1994. Vice Principal, GSKV, U-Block, Mangol Puri issued memorandum dated 27.10.2005 stating that the school authorities had not drawn the salary of the applicant for the aforesaid period as per record, as may be made out from Annexure-3. The applicant on his repeated representations was asked to furnish information/requisite documents on the queries reproduced above. He replied to the said memorandum on 30.8.2005 (Annexure-6). With the reply Annexure-6, the applicant attached photo copy of the order dated 23.12.1994 issued by the Directorate of Education, Establishment (I) whereby he was posted in the District Central but was required to work in the personal branch of Minister of Education in diverted capacity. He also mentioned that vide another order No. 219 dated 20.3.1995 issued by the District Central, he was posted in personal branch of the Minister of Education. He enclosed copy of that order as well. He also mentioned that for purposes of his pay he was shown posted in the Govt. Comp. Model Girls Sr. Secondary School, U-Block, Mangol Puri, Delhi. He also mentioned that attendance record was maintained by the then office of Chairman, Delhi Land Reform Committee and clarification, if any, in that behalf, could be obtained from that office, as per the address furnished by him. He, however, attached with the reply certificate dated 9.9.1998 issued by Chairman, Delhi Land Reform Committee with regard to his work, conduct, attendance, leave etc. He mentioned that the said certificate had already been sent by him to Joint Director of Education (Admn.) vide letter dated 8.6.2005. He, however, enclosed yet another copy of the same with his reply Annexure-6. He further mentioned that during the period in question, he had sent many communications to the Principal, Govt. Comp. Model Girls Sr. Sec. School, U-Block, Mangol Puri and higher authorities requesting therein for releasing his salary. His application for release of salary was also forwarded by Pay & Accounts Officer, PAO-XIII, Shankar road, New Delhi, along with his LPC and other documents. He also visited the School several times and met the Principal, but ultimately he was told that due to non-availability of vacant post in the grade, his salary could not be drawn and paid to him.
7. It is wholly understandable that despite the applicant placing on record with the respondents all supporting documents clearly showing his posting and working with the office of Chairman, Delhi Land Reform Committee, on what conceivable grounds the respondents would still endeavour to show this Tribunal that the applicant had not proved his posting and working with the office of Chairman, Delhi Land Reform Committee from 5.12.1994 to 9.9.1998. Transfer of the applicant when he was working in Labour Department, to Education Department, is not in dispute. Consequent upon transfer from Labour Department, he joined the Education Department on 23.12.1994, as has been proved and is also not in dispute. It is the Education Department itself, which, while the applicant took over thereat, clearly mentioned that the applicant, UDC, was posted at District Central, but would, however, work in personal branch of Minister of Education in diverted capacity. Certificate dated 9.9.1998 issued by Chairman, Delhi Land Reform Committee, would further clearly manifest that the applicant had worked in personal branch of Minister of Education and Development, attached with Chairman, Delhi Land Reform Committee in diverted capacity, vide office order dated 23.12.1994. Clinching, documents placed by the applicant on record apart, it further appears to us that if the respondents were in any doubt with regard to working of the applicant with the office of Chairman, Delhi Land Reform Committee, why they could not ascertain the same from the aforesaid office, which could have been done within a matter of days, if not within minutes. Further, if it be the case of the respondents that the applicant did not work anywhere for the aforesaid period of four years, why no action was taken against him. Further, the respondents have indeed made over the pension to the applicant and it is not their case that while calculating post-retiral dues of the applicant, and in particular, pension, four years period from 5.12.1994 to 9.9.1998 has been treated as dies non. Still further, it does not stand to reason that the applicant, who was initially appointed on 8.12.1964 and had worked continuously for a period of 30 years without any blemish or absence, would not work for a period of four years and deprive himself of the salary, on which alone he was dependent. From both documentary and circumstantial evidence, as mentioned above, it is proved to the hilt that the applicant had indeed worked from 5.12.1994 to 9.9.1998 with the office of Chairman, Delhi Land Reform Committee, and has been illegally deprived of his salary. Insofar as, the plea raised by the respondents that the applicant did not clamour for his salary for a period of four years and an inference has to be drawn therefrom that he may not have worked as such is concerned, the same is factually incorrect and deserves outright rejection. The applicant in his rejoinder has made a mention of the oral and written requests to Principal, GGSSS, U-Block, Mangol Puri for his pay, and the plea raised by the Principal that his LPC was not forwarded by the Labour Department to Directorate of Education and, therefore, in absence of the same, his salary could not be disbursed. He made representation on 18.12.1997 to Deputy Labour Commissioner with request to forward his LPC to Directorate of Education, as he was not getting his salary w.e.f. 5.12.1994. Copy of the representation has been placed on record as Annexure-9. It is the positive case of the applicant that the said representation was forwarded to the Chief Secretary, Government of NCT of Delhi on 22.12.1997 (Annexure-10). However, the LPC came to be issued only on 2.8.2000 when the tenure of the applicant with the Principal, GGSSS, Mangol Puri had already come to an end. There is no reply to the averments made in the rejoinder, as mentioned above. Obviously, when the applicant was to draw his pay from Principal, GGSSS, Mangol Puri, he was to make a request there only. Immediately, however, when his tenure with the aforesaid School came to an end, he made number of representations to the respondents, which resulted only in making of some queries from the applicant, as mentioned above, which were fully answered by him. Insofar as, the plea raised by the respondents that the Application is barred by limitation is concerned, the same also needs summary rejection, as surely the cause of action for grant of salary arises every month. It is a recurring cause and cannot be defeated on plea of limitation. The view that we have taken above was also taken by us in the matter of O. P. Tokas v Government of NCT of Delhi & Others (OA No.4/2007 decided on 28.11.2007), and further that the plea of limitation should not be even permitted to be raised by the respondents, relying upon the judgment of the Honble Supreme Court in The Madras Port Trust v Hymanshu International [(1979) 4 SCC 176].
8. From the facts and circumstances fully detailed above, we are of the firm opinion that salary of the applicant has been denied to him on wholly untenable grounds. Insofar as, grant of interest to the applicant is concerned, we are of the considered view that the same would depend upon facts and circumstances of each case, and we find no justification whatsoever forthcoming for withholding the pay and pension of the applicant for the period as mentioned above. In the present economic scenario where it is difficult to lead a comfortable life, and one can only manage to exist with the meager salaries paid to government employees, the agony and hardship of a person not made over salary for a period of four years and pension for a period of more than two years can well be imagined and need not be thus over-emphasised. There is no plea raised by the respondents that a writ or an application for interest alone is not competent, but we may mention that entitlement of an employee for interest only on delayed payment of pension has been subject matter of debate and it is by now well settled proposition of law that a writ or an application for interest alone would be competent. Reference in this connection be made to a Division Bench judgment of the Punjab & Haryana High Court in A. K. Kapoor HSE-1 (Retd.) v State of Haryana & Others [1991 (6) SLR 583]. While dealing with entitlement to interest of an employee whose post-retiral dues had been withheld, the Division Bench held that writ only for interest is maintainable. The pertinent observations made by the Division Bench read, thus:
21. The petitioners had a legal right to the payment of retiral benefits and there was a corresponding legal duty imposed upon the respondents to deal with the matter in accordance with the Rules and the binding decisions of the highest Court. The respondents have thrown the policy and the statutory Rules to the wind. The object of providing pensionary benefits was obviously to enable the large body of Government pensioners not only to keep their body and soul together by warding off the pangs of deprivation towards the fall of their life but also to enable them to maintain a reasonable standard of living for themselves and their dependents. On the other hand, however, the casual way and manner their cases have been dealt with, in our view amounts to insult to human dignity. For their rightful dues they have been running from pillar to post and if this system of lethargy is permitted to continue, we are sure that the system itself shall be reduced to mockery. The observations made above with regard to post-retiral dues would, in our view, equally apply to the admitted right of the applicant to get the pay as per statutory rules and instructions issued on that behalf from time to time. The decision of the Division Bench in A. K. Kapoor (supra) was affirmed by a Full Bench of the same very High Court in A. S. Randhava v State of Punjab & Others [1997 (4) SLR 617]. The pertinent observations made by the Full Bench while affirming the judgment of the Division Bench in A. K. Kapoor read, thus:
10. The question that now arises for our consideration is whether a retiree can approach this court under Article 226 of the Constitution to claim interest only on the delayed payment of pension and other retiral benefits. As observed earlier, there is a duty cast on the State to disburse pension and retiral benefits immediately when they become due and it is the non-performance of this statutory duty which gives rise to the retiree to claim compensation by way of interest. This right to claim interest partakes the nature and character of the retiral benefits and is indeed a concomitant of the right to claim pension and retiral benefits and cannot be separated therefrom. This being so, a claim for interest by a pensioner cannot be equated with a claim for money simpliciter or any interest thereon arising out of contractual obligations. Moreover, in a claim for recovering pension or other retiral benefits which the State has wrongfully withheld or even when interest is claimed on those amounts, the plea of bar of limitation cannot be permitted to be raised because the State has defaulted in the performance of its duty in not paying the amount when it became due. In this view of the matter, it follows that when a retired government employee can seek his remedy by invoking the jurisdiction of this court under Article 226 of the Constitution to claim pension and retiral benefits by the issuance of a writ of mandamus or any other order or direction, he is equally entitled to seek relief in the same way for claiming interest only on delayed payments which is an enforcement of an incident of the same right.. In a recent decision recorded by us in O. P. Tokas (supra), while referring to the entire case law on the subject, in addition to judicial precedent above, relying upon a single Bench decision of the Punjab & Haryana High Court in Praveen Jindal & Others v Registrar, Co-operative Societies, Punjab & Another [1994 (5) SLR 511], judgments of the Honble supreme Court in Nalini Kant Sinha v State of Bihar & Others [1993 Supp (4) SCC 748], Punjab State Electricity Board & Others v Kuldip Singh [(2005) 13 SCC 372], Gammon India Limited v Niranjan Das [(1984) 1 SCC 509], as also the decisions of the Honble Supreme Court relied upon by the respondents in E. Parmasivan & Others v Union of India & Others [(2003) 12 SCC 270], and Government of West Bengal v Tarun K. Roy & Others [(2004) 1 SCC 347, we held that a writ or an application would be competent for interest alone, but grant thereof would be dependent upon facts and circumstances of each case. We also held that the law laid down for grant of interest on delayed pension would also be applicable to delayed pay. We have already held that there was no justification whatsoever on the part of the respondents to withhold the pay of the applicant for four long years, which resulted into hardship and misery to the applicant. Insofar as, delay in pension is concerned, once again, we find absolutely, no justification on the part of the respondents to withhold the same for a period of over two years. It may be noted that assuming that the respondents had some doubt with regard to the applicant working with the office of Chairman, Delhi Land Reform Committee from 5.12.1994 to 9.9.1998, they could in any case, fix his provisional pension, which too was not done. The applicant had served the department honestly and efficiently ever since from 1964 till his retirement in 2005. He was entitled for grant of pension having qualifying service for grant of pension. In the matter of carry-home salary, the same was already reduced when he superannuated and yet that reduced amount was also not made over to him for a period of two years. In somewhat similar circumstances, in OA No. 2681/2006 decided on 30.8.2007 in the matter of Mrs. Manju Singh v Government of NCT of Delhi & Others, where senior scale to the applicant was not released on wholly untenable grounds, and where the applicant was paid for long years only half the salary she was entitled to, we allowed interest at the rate of eight per cent per annum on delayed payment of arrears to the applicant. In the present case also, we hold that the applicant would be entitled to interest at the rate of eight percent per annum on delayed salary from 5.12.1994 to 9.9.1998, as also on delayed payment of pension. Insofar as, the salary from 5.12.1994 to 9.9.1998 is concerned, we order payment of the same forthwith. Insofar as, interest as mentioned above, is concerned, the same be calculated and made over to the applicant within a period of two months from today. The applicant also deserves costs of this litigation, which we quantify at Rupees five thousand.
( Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/