Delhi District Court
Smt. Raj Rani vs M/S Delhi Transco Ltd on 23 May, 2015
IN THE COURT OF ANURAG SAIN, ADJ02 (EAST),
KARKARDOOMA COURTS, DELHI
C.S. No.: 733/14
Unique Case ID No. 02402C0014722013
Smt. Raj Rani
W/o Late Sh. S.S. Singh,
C/o Sh. K.C. Sharma,
R/o H.No. 60, New Layal Pur,
Post Office Krishna Nagar,
Delhi110051.
.........Plaintiff
Versus
M/s Delhi Transco Ltd.,
At: Shakti Sadan, Kotla Road,
New Delhi110002.
Through its CharimancumManaging Director
.......Defendant
Date of institution : 16.01.2013
Date of reserving judgment : 19.05.2015
Date of pronouncement : 23.05.2015
JUDGMENT
1. The present suit for recovery of amount of Rs.5,04,238/ has C.S. No.: 733/14 Page 1 of 23 been filed by the plaintiff against the defendant.
2. Briefly stated the facts of the case are that:
(a) The late husband of the plaintiff was employed under the defendant as head cashier in Raj Ghat Power House, New Delhi and retired from the employment on attaining the age of superannuation.
(b) The retirement benefits including the payment of pension and gratuity legally payable to the deceased husband of the plaintiff was withheld by the employer/defendant on flimsy grounds without any legal justification.
(c) The defendant made the payment of the amount legally due to the husband of the plaintiff with considerable delay and by withholding the amount of interest legally payable on the said amount for the period of delay caused arbitrarily in making the payment.
(d) That the plaintiff's husband expired in a fatal accident on 16.06.2006. The plaintiff approached the defendant to take proper steps for making payment with interest for the period of delay but despite the representations C.S. No.: 733/14 Page 2 of 23 followed by the legal notice, defendant denied to pay the same on one pretext or the other.
(e) On these premise, the plaintiff has filed the present suit against the defendant for recovery of amount of Rs. 5,04,238/ as interest on the amount admittedly payable by the defendant to the late husband of the plaintiff.
3. Written statement was filed by the defendant wherein it has submitted that the payment towards the terminal benefits were withheld on account of unauthorized occupation of employer's accommodation and also due to pendency of a vigilance case against Late Sh. S.S. Singh and the said case was culminated in imposition of penalty of 20% cut in pension for five years. It has been further averred that in response to the penalty, the deceased had preferred to file a review petition but the competent authority did not agree with his contention and decided to retrain the same penalty vide communication dated 04.08.2006 and whatever time has been taken, it has been taken only because of the mentioned proceedings. It has been further averred that as per the provisions contained in Government of India decision dated 10.01.1983, the payment only due on C.S. No.: 733/14 Page 3 of 23 04.08.2006 i.e. from the date of finalization of vigilance case pending against Late Sh. S.S. Singh. Thereafter, the whole delay cannot be attributed to the defendants. It has been further averred that the defendant has made the payment as per the rules with applicable interest at the rate of 8% w.e.f. 04.08.2006 to 20.07.2008 i.e. Rs.68,135/ through cheque which has been duly received vide letter dated 10.08.2010. Rest of the contents of the plaint have been denied by the defendant in the written statement.
4. Replication to the written statement filed by the plaintiff wherein all the averments made in the plaint have been reiterated and reaffirmed whereas those made in the written statement have been denied. It has been further averred that no PF and gratuity of an employee can be withheld in any case and interest at the rate of 18% for the amount withheld by the employer is payable to the employee as has been held by the Hon'ble Supreme Court of India in various judgments.
5. The court vide order dated 13.01.2014 framed following issues: (1) Whether the plaintiff has not filed required and mandatory courts fee? OPD.
(2) Whether the plaintiff is entitled to decree of recovery C.S. No.: 733/14 Page 4 of 23 Rs.5,04,238/ along with interest as prayed for? OPP. (3) Relief.
6. In order to prove her case, the plaintiff examined herself as PW1 and tendered her examination in chief by way of affidavit Ex. PW1/1 which is on the line of the averments mentioned in the plaint. PW1 has also relied upon documents viz. Ex.P1 reply notice of Delhi Transco Ltd. dated 01.10.2012, Ex.P2 legal notice dated 16.08.2012, Ex.P3 letter to PIO (H.R.) Delhi Transco Ltd. dated 18.08.2011, Ex. P4 reminder to Sh. Rakesh Kumar Mehta IAS ChairmancumMD of Delhi Transco Ltd. dated 20.01.2011, Ex.P5 letter to Director HR Delhi Transco Ltd. dated 29.12.2010, Ex.P6 letter to Sh. Rakesh Mehta (IAS) ChairmancumManaging Director of DTL dated 30.09.2010, Ex.P7 letter of Superintendent Power of Govt. of NCT of Delhi to the G.M (A) Delhi Transco Ltd. dated 14.09.2010, Ex.P8 letter of H.R. (II) Delhi Transco Ltd. dated 08.06.2010, Ex.P9 Letter of Deputy Manager, H.R (II) to Joint Secretary Delhi Transco Ltd. dated 20.05.2010. Ex.P10 Letter from Govt. of NCT of Delhi Transco Ltd. dated 29.04.2010. This witness was crossed examined on behalf of the defendant and the plaintiff C.S. No.: 733/14 Page 5 of 23 vide separate statement closed the evidence on 10.09.2014.
7. To rebut the case of the plaintiff, the defendant examined Sh. Surender Singh Salhotra, Dy. Manager of the defendant company as DW1 who tendered his examination in chief by way of affidavit Ex. DW1/A. He also relied upon documents viz photocopy of [G.I., Dept. of Per. & A.R., O.M. No.F.7(1) P.U./79, dated the 11th July, 1979 and No.1(4)/Pen. Unit/82, dated the 10th January, 1983.] as RW1/1, photocopy of the letter dated 10.08.2010 written by the plaintiff to the defendant for receipt of payment of Rs.68,135/ towards interest at the rate of 8% for the period from 04.08.2006 to 20.07.2008 and further requesting to reconsider and review the case of payment of interest at the rate of 18% p.a. for the period from 01.12.2000 to 23.07.2008 as Ex. RW/2 and photocopy of Office Memorandum No.38/34/2001P&PW(F) dated 29.04.2002 as Ex.1/1. This witness was cross examined by the ld. counsel for the plaintiff and vide separate statement AR Sh. Surender Singh Salhotra of the defendant closed evidence on behalf of the defendant.
8. Ld. counsel for the plaintiff has relied upon judgment and counsel for the defendant has filed the extracts of CCS Rules. C.S. No.: 733/14 Page 6 of 23
9. The counsel for the plaintiff has submitted that the husband of the plaintiff was working as Head Cashier at Rajghat Power House, New Delhi and retired from the employment of the government on attaining the age of superannuation. He further argued that the retirement benefits including payment of pension and gratuity were illegally and without any reasons payable to the husband of the plaintiff, were withheld by the defendants on flimsy grounds and without any legal justification. He further submitted that the husband of the plaintiff expired in a fatal accident on 16.06.2006. He further argued that plaintiff had to face financial constraints because of the considerable delay in releasing the retiremental benefits to the plaintiff and it was after repeatedly approached to the officials of the defendant, the defendant had paid the retiremental benefits i.e. pension and gratuity to the plaintiff on 23.07.2008 and that too without interest. He further argued that the plaintiff has to run again from pillar to post to get the interest on the late payment, which eventually the defendants have paid to the plaintiff a sum of Rs.68135/ on 02.08.2010 vide cheque no.531341 drawn on SBI, Chandni Chowk. He C.S. No.: 733/14 Page 7 of 23 further argued that in these premise, the plaintiff is entitled for the interest @ 18% from the day of his retirement till the year 2008 on the retiremental benefits due to the husband of the plaintiff.
10.On the other hand, it has been argued by the defendant that the defendant is a Govt. Undertaking and it is governed by the CCS Rules. He argued that as per Chapter VIII Clause 68 deals with the interest on delayed payment of gratuity, rule 9 deals with the power of the defendant to withhold or withdraw the pension in case of any departmental or judicial proceedings were initiated against the husband of the plaintiff under the aforesaid rules.
11. The counsel for the defendant has argued that the plaintiff has concealed the material facts from this court and in fact, true facts of the case are that the husband of the plaintiff late S S Singh was employee of the erstwhile DESU / Delhi Vidyut Board, who was superannuated from the service on 30.11.2000 i.e. prior to the unbundling of DVB. He further argued that prior to the retirement of late Sh. S S Singh, a major penalty disciplinary proceedings were initiated against him under rule 14 of CCS (CCA Rules) vide memorandum C.S. No.: 733/14 Page 8 of 23 No.F10/3102/Discip/20002001/AO(P.II)/109192 dated 08.09.2000. He further submits that the parties are governed by the CCS Rules 1965 and service related retrial benefits were covered under CCS Rules 1972. During the said disciplinary proceedings, late Sh. S S Singh was superannuated and the said proceedings were cumulated into imposition of the penalty of 20% cut in pension for five years vide order No.F.BPL/103/F. 10(3102)/2005HR(Vig.)/605 dated 05.09.2005. He further submitted that late Sh. S S Singh preferred review / appeal against the said penalty order dated 05.09.2005, the same was dismissed and communicated to late Sh. S S Singh vide order No.F.BPL/102(3102)/2006HR(Vig.)/358 dated 04.08.2006. He also argued that the husband of the defendant at the time of his retirement was residing in an official accommodation of erstwhile Delhi Vidyut Board. He has further argued that w.e.f. 1st July 2002, the Delhi Vidyut Board was unbundled into six different entities and defendant is one of them and in pursuance of Delhi Electricity Reforms (Transfer Scheme), Rules, the colony under which the flat/accommodation in which the husband of the plaintiff was residing, became the property of C.S. No.: 733/14 Page 9 of 23 Indraprastha Power General Co. Ltd. and the said accommodation was retained by the husband of the plaintiff unauthorizedly after his retirement in 2000 till the year 2006. It has been further argued that the Estate Officer initiated the eviction proceedings against the plaintiff under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 by issuing showcause notice to the plaintiff which were resulted into passing of eviction order dated 02.03.2007 and arrears of damages of Rs.4,50,993/ for unauthorized occupation and during the eviction proceedings son of the plaintiff submitted that the retrial dues of his father are still with the defendant and the department may deduct the same from the retrial dues of his father and in terms of the same, the IPGCL requested the defendant for making the payment to them from the retrial dues of the husband of the plaintiff but the said request of IPGCL was rejected by the defendant. It has been further argued by the ld. counsel for the defendant fairly submits that though it has been wrongly mentioned in the pleadings that payment towards the terminal benefits were withheld on account of unauthorized occupation of the employers accommodation and also due to C.S. No.: 733/14 Page 10 of 23 pendency of vigilance case against late Sh. S S Singh, husband of the plaintiff, but, the defendant has not withheld any single penny payable against death cum retirement gratuity and commuted value of pension and monthly pension as well. He further argued that in fact, after the death of the husband of the plaintiff in the year 2006, the said 20% deductions was discontinued and since then full pension is plaid to the plaintiff, also total sum of Rs.415969/ against death cum retirement gratuity and commuted value of pension, was also released to the plaintiff. He further argued that the delay in making the payment of the retiremental benefits to the plaintiff, was solely due to the time consumed in making various communications between the different departments of the plaintiff viz. IPGCL, pension trust, finance department of DTL, record section etc. He further argued that though there is no delay in releasing the retiremental benefits to the plaintiff, assuming if any there is, the same is neither intentional nor deliberate, but due to the reasons mentioned above. In these premise, the defendant, prays for the dismissal of the suit of the plaintiff.
12.I have heard ld. counsel for the parties. I have also gone through C.S. No.: 733/14 Page 11 of 23 the entire records of the case including pleadings of the parties, evidence led by the parties, written submissions filed by the defendant and the judgments relied upon by them.
13. From the facts of the case, it is clear that the plaintiff has tried to project absolutely different picture of the facts of the case. It is not that plaintiff is not aware about the facts as stated by the defendant in its written statement and documents relied by him, it is also from the documents of the plaintiff itself shows that the plaintiff has tried to misled the court from not disclosing the true facts.
14. My issuewise findings are as under:
15.Issues no.1 Whether the plaintiff has not filed required and mandatory courts fee? OPD.
16.Onus to prove this issue was upon the defendant. The plaintiff has filed the present suit for recovery of Rs.5,04,238/ and filed the court fees of Rs.7,500/. Thereafter the plaintiff has filed the deficit court fees of Rs.7,000/ and thus the plaintiff has filed a total court fees of Rs.14,500/. To rebut the case of the plaintiff, the defendant has examined Sh. Surender Singh Salhotra, Dy. C.S. No.: 733/14 Page 12 of 23 Manager of the defendant company as DW1 who tendered his examination in chief by way of affidavit Ex. DW1/A. However in the entire examination in chief by way of affidavit Ex. DW1/A, DW1 has not deposed anything to prove this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
17. Issue no.2 Whether the plaintiff is entitled to decree of recovery Rs. 5,04,238/ along with interest as prayed for? OPP.
18.Onus to prove the same was upon the plaintiff. To prove this issue, the plaintiff has examined herself as PW1 and tendered her examination in chief by way of affidavit Ex. PW1/1. In the affidavit Ex. PW1/1, it has been deposed by the plaintiff that her late husband Sh. S.S. Singh retired from the service on 30.11.2000 and his pension and gratuity were due just after his retirement which were withheld arbitrarily on flimsy grounds on account of unauthorized occupation of accommodation and also due to pendency of vigilance case against late Sh. S.S. Singh who died in a road accident on 16.06.2006.
19.The entire cross examination of the PW1 is only on the point C.S. No.: 733/14 Page 13 of 23 that on what basis the plaintiff has claimed 18% interest on PF and gratuity of her husband to which the plaintiff has replied that she does not know exactly the reason but as per the legal advice, she is claiming the same.
20.It is the case of both the parties that the parties are governed by CCS Pension Rules 1972.
21. The entire case of the parties is that as per the plaintiff the defendant have withheld the retirement benefits of the plaitiff without any reason and therefore they claim interest on the delayed payment. The case of the defendant is that they have valid reason for withholding the retiremental benefits to the plaintiff therefore interest cannot be awarded on the delayed payment to the plaintiff.
22.During the course of arguments, the plaintiff states that the plaintiff is claiming interest for the period from 4.06.2008 till 23.07.2008 only. Statement of the plaintiff in this regard was recorded. What is left before the court to see whether the plaintiff is entitled for the interest on the delayed payment if so at what rate and for what period. It is admitted fact that there was delay in releasing of the retiremental benefits (DCRG) to C.S. No.: 733/14 Page 14 of 23 the plaintiff by the defendant.
23.It is not out of place to mention that it is the settled preposition of the law that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but have become valuable rights and property in their hands. Nobody can withheld the payment of gratuity and pension of an employee without any sufficient reason.
24.Coming to the interest part as claimed by the plaintiff, the plaintiff has claimed interest for the period from 2006 to 2008.
25.What is being argued by the counsel for the defendant that delay has been caused due to various communications between the different departments and finally with the approval from the competent authority i.e. CMD, DTL, the gratuity and other pensionery dues were released to the plaintiff on 23.07.2008.
26.He has further argued that delay, if any, in paying the arrears of pension and gratuity after 2006 which were given to the plaintiff in the year 2008, was solely on the basis of the administrative reason and the defendant have been bonafidely pursuing the matter before the concerned department and the moment, they have got the clearance from the concerned C.S. No.: 733/14 Page 15 of 23 department, they issued a cheque of Rs.4,15,969/ and that they have paid the interest of the late payment @ 8% per annum which is permissible under rule 68 of CCS Rules.
27. Assuming the averment of the defendant to be correct, however, the records filed and relied upon by the defendant speaks otherwise. The defendant had in his written submissions has stated that the husband of the plaintiff was unauthorizedly occupying the government accommodation since his retirement and has not vacated the same. There were different communications between the inter departments and after getting the clearance from the same, they have released the pensionary / retiremental benefits to the plaintiff. This fact is patently false on the face of the record. As per the defendant, the eviction proceedings by Estate Officer initiated on 14.12.2006 by issuance of show cause notice EO/65/06/240 dated 14.12.2006 to the plaintiff and ultimately the said eviction proceedings resulted into passing of eviction order under sub section 2 and 2(a) of Section 7 of Public Premises (Eviction of unauthorized occupants Act 1971) vide No.744 dated 02.03.2007. This means that there were no proceedings C.S. No.: 733/14 Page 16 of 23 pending against the husband of the plaintiff on 04.08.2006 when the defendant confirmed and upheld the penalty already imposed upon the husband of the plaintiff and the disciplinary proceedings were concluded.
28.As per rule 68 of CCS Rules 1972, the defendant has to release the pensionary benefits to its employee's immediately on his retirement or for any reasons mentioned in the rule 68 and in any case, not beyond three months from the date of the retirement of the reasons mentioned in the rule 68. In case there is a delay beyond the period of 3 months that eventually the defendant has to pay interest applicable as per GPF rules.
29.Three months time was quite sufficient to complete the entire process of retirement benefits to the plaintiff. It is incumbent duty of the defendant to have process of making payment of gratuity and pension to the plaintiff well within time so that the plaintiff or legal heirs of the plaintiff should not fell hardened and burdened. In all probabilities the defendant has to conclude its formalities qua the release of pensionary benefits to the plaintiff on or before 03.11.2008. Here in the present case, I have already stated above, on the date when the disciplinary C.S. No.: 733/14 Page 17 of 23 proceedings were concluded, there was no proceedings of any nature pending against the husband of the plaintiff.
30.Thus, from the above, it is clear that the submissions so made by the defendant for the delay in releasing of the retiremental benefits to the plaintiff hold no water.
31. As already held in various judgments that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but, have become valuable rights and property in their hands.
32.Admittedly, there is delay of more than two years in releasing the pensionery benefits viz pension and gratuity for the period from 04.08.2006 to 23.07.2008 to the plaintiff which is not attributable to the plaintiff. From the record, it is clear that the departmental proceedings against the husband of the plaintiff were terminated/dropped on 04.08.2006, whereas the pensionery benefits were released to the plaintiff on 23.07.2008. There is considerable delay for the reasons so stated above, even deducting the period of three months, which were granted to the defendant to complete the formalities regarding the payment of pensionery benefits to the plaintiff. C.S. No.: 733/14 Page 18 of 23 The defendant is well versed with the provisions of CCS Rules. It was the incumbent duty of the defendant to release the pensionery benefits to the LRs of the plaintiff Shri S.S.Singh and ought to have pay interest at the rate of 8% p.a. on delayed payment as per the rules at the time of releasing of the cheque of Rs.4,15,969/which was not done by the defendant. This shows the lackadaisical attitude of the defendant in pursuing the matter in the case of the plaintiff herein. It is only when the plaintiff pursued her matter continuously and diligently before the concerned authority of the defendant. Reference in this regard is placed to Ex.P1, Ex.P4 and Ex.P6. The defendant paid interest at the rate of 8% p.a. to the plaintiff and that too after period of two years on 10.08.2010.
33.Thus, the defendant is liable to pay interest on the delayed payment of gratuity and pension. The plaintiff has claimed interest on the delayed payment of gratuity and pension at the rate of 18% per month as per market rate of interest and the defendant has gave reasons as stated above for the delay in not releasing the retiremental benefits (DCRG) to the plaintiff. Both the parties have relied upon the judgment of Hon'ble Supreme C.S. No.: 733/14 Page 19 of 23 Court of India in a case titled as D.D. Tewari (D) Thr. LRs. Vs. Uttar Pradesh Bijli Vitran Nigam Ltd. & Ors. in Civil Appeal No.7113 of 2014 (arising out of SLP (C) No.25015 of 2011) in respect to the interest to be awarded or not to be awarded.
34.As per the judgment, the Hon'ble Supreme Court of India in a case titled as D.D. Tewari (D) Thr. LRs. Vs. Uttar Pradesh Bijli Vitran Nigam Ltd. & Ors. in Civil Appeal No.7113 of 2014 (arising out of SLP (C) No.25015 of 2011) has held in para4, 5 and 6 that: "4. It is an undisputed fact that the appellant retired from service on attaining the age of superannuation on 31.10.2006 and the order of the learned single judge after adverting the relevant facts and the legal position has given a direction to the employerrespondent to pay the erroneously withheld pensionary benefits and the gratuity amount to the legal representatives of the deceased employee without awarding interest for which the appellant is legally entitled, therefore, this court has to exercise its appellate jurisdiction as there is a miscarriage of justice in denying the interest to be paid or payable by the employer from the date of the entitlement of the deceased employee till the date of payment as per the aforesaid legal principle laid down by this court in the C.S. No.: 733/14 Page 20 of 23 judgment referred to supra. We have to award interest at the rate of per annum both on the amount of pension due and the gratuity amount which are to be paid by the respondent.
5. It is needless to mention that the respondents have erroneously withheld payment of gratuity amount for which the appellants herein are entitled in law for payment of penal amount on the delayed payment of gratuity under the provisions of the payment of Gratuity Act, 1972. Having regard to the facts and circumstances of the case, we do not propose to do that in the case.
6. For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed".
35.Though the defendant has paid interest @ 8% w.e.f. 04.08.2006 to 23.07.2008 to the wife of the plaintiff against the delayed payment of gratuity and pension but the same was paid after great persuasion by the plaintiff who have to run from pillar to post for the same and ultimately on 10.08.2010, the plaintiff was succeeded in getting the interest at the rate of 8% from the C.S. No.: 733/14 Page 21 of 23 defendant as delayed payment of retiremental benefits.
36.Considering the circumstances of the matter, the court is of the opinion that the defendant was grossly negligent in releasing the payment of gratuity and pension to the plaintiff in time which is the valuable right of the plaintiff and relying upon the judgment of Hon'ble Supreme Court in D.D. Tewari's case (Supra), the court award interest at the rate of 9% p.a. on the delayed payment of pension and gratuity amount for the period from 04.08.2006 to 23.07.2008 to the plaintiff within two months from today and in case the defendant does not comply with the order, the defendant is liable to pay interest at the rate of 18% p.a. on the delayed payment. The plaintiff has already received interest at the rate of 8% on the delayed payment and the same is liable to be deducted from the interest so awarded by this court. The issue is answered accordingly.
37.Issue no.3 Relief.
38.In view of the observations made hereinabove, the present suit is decreed in favour of the plaintiff and against the defendant whereby the plaintiff is awarded interest at the rate of 9% p.a. C.S. No.: 733/14 Page 22 of 23 on the delayed payment of pension and gratuity amount for the period from 04.08.2006 to 23.07.2008. The defendant is directed to pay the interest at the rate of 9% p.a. on the delayed payment of pension and gratuity amount for the period from 04.08.2006 to 23.07.2008 to the plaintiff within two months from today and in case the defendant does not comply with the order, the defendant is liable to pay interest at the rate of 18% p.a. on the delayed payment. The plaintiff has already received interest at the rate of 8% on the delayed payment and the same is liable to be deducted from the interest so awarded by this court. There is no order as to costs.
39.Decree sheet be prepared accordingly.
40.File be consigned to record room.
Announced in the open court On 23.05.2015 ( Anurag Sain) Addl. District Judge02 (East) Karkardooma Courts, Delhi C.S. No.: 733/14 Page 23 of 23 C.S. No.: 733/14 23.05.2015 Present: None.
Vide separate judgment announced in the open court today, the present suit is decreed in favour of the plaintiff and against the defendant whereby the plaintiff is awarded interest at the rate of 9% p.a. on the delayed payment of pension and gratuity amount for the period from 04.08.2006 to 23.07.2008. The defendant is directed to pay the interest at the rate of 9% p.a. on the delayed payment of pension and gratuity amount for the period from 04.08.2006 to 23.07.2008 to the plaintiff within two months from today and in case the defendant does not comply with the order, the defendant is liable to pay interest at the rate of 18% p.a. on the delayed payment. The plaintiff has already received interest at the rate of 8% on the delayed payment and the same is liable to be deducted from the interest so awarded by this court. There is no order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
(Anurag Sain) ADJ2, East, Karkardooma Court, Delhi/23.05.2015 C.S. No.: 733/14 Page 24 of 23