Central Administrative Tribunal - Delhi
Shri Radhey Mohan vs Delhi Transport Corporation on 27 July, 2009
Central Administrative Tribunal Principal Bench TA No.1065/2009 New Delhi, this the 27th day of July, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Dr. Ramesh Chandra Panda, Member (A) Shri Radhey Mohan S/o Sh. Kanahya Lal, R/o Village & P.O. Kanjhawala, Delhi 110 081. . Applicant. (BY Advocate : Shri N. L. Bareja) versus 1. Delhi Transport Corporation through its Chairman-cum-Managing Director, I.P. Estate, New Delhi. 2. The Depot Manager, Delhi Transport Corporation, Hari Nagar Depot-III, New Delhi. Respondents. (By Advocate : Shri Abhinav Prakash) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri S. Radhey Mohan, the Applicant herein, was appointed as DR under the Respondents w.e.f. 6.5.1961, later on appointed as MR on 1.1.1965, which was designated as Junior Clerk in 1972. He was promoted to the post of Senior Clerk in 1976 and was later on promoted as Assistant in charge. In 1994, the Applicant was involved in a criminal case and was charged under Section 302, 321 and 34 of IPC in FIR No.129/1994 registered on 11.12.1994. The Applicant surrendered himself to custody on 8.1.1995, as a result of which, he was placed under suspension w.e.f. 8.1.1995. The Applicant was convicted in the said case and was sentenced to undergo rigorous imprisonment (RI) for life and fine of Rs.1000 vide judgment dated 31.7.1998. Being aggrieved, the Applicant appealed against the said order in Criminal Appeal No.387/98 which was considered by the Honble High Court and suspended the sentence, as a result of which, the Applicant was enlarged on bail on 8.12.1998. It is stated by the Applicant that though his sentence was suspended and the appeal was pending against the conviction, the Respondents instead of taking him on duty, dismissed him w.e.f. 31.07.1998 vide order dated 25.9.1998. Against the dismissal, he moved the Honble High Court by way of CWP No.2223/2000, praying for withdrawal of the dismissal order. But the same was dismissed in limine vide Honble High Court order dated 8.5.2000. Between October to December 2001, the Applicant appealed to the Respondents for releasing him the benefits like Contributory Provident Fund (CPF in short), Leave Encashment, Pay/Salary due to him as on 1.8.1998. In 2002, the Respondents released the Applicant his pay and allowances up to end of July 1998 but there was no response from the Respondents about the payment of Gratuity and Leave Encashment as prayed for by him in his application dated 4.10.2001 and vide his legal notice dated 10.01.2002. It is stated by him that the Depot Manager of Respondent-DTC vide its letter dated 24.12.2001 (Page 14) intimated him on his representation of 4.10.2001 that he was not entitled for the benefit of Gratuity. Being aggrieved by the said order and having assailed the same, he moved to the Honble High Court in Civil Writ Petition No.1395/2002 on 26.2.2002. This Writ Petition was considered by the Honble High Court of Delhi and transferred to this Tribunal since the service matters pertaining to Delhi Transport Corporation (DTC) have been transferred to the Central Administrative Tribunal. Therefore, the said WP(C) No.1395/2002, CM No.3432/2009 has been taken in the Tribunal as TA No.1065/2009.
2. The Applicants prayers before us for adjudication relate to :
a) issue order, directions or writ in the nature of:
Certiorary, quashing the letter dated 24.12.2001 issued by the respondent No.2 for depriving the petitioner of his rights to the release of the gratuity for his service for more than 37 years, rendered under the respondents and that too without indicating the rules under which the petitioner has been said to be not entitled for the gratuity.
Mandamus, directing the respondents to release the payment of gratuity and leave encashment of about 30 days saved by him during his period of service under the respondents, for which he became entitled w.e.f. 1.8.1998.
b) order or direct the respondents to pay interest at the market rate of 18% per annum on the amount of gratuity and leave encashment w.e.f. 1.8.1998, when he became entitled to the same till the date of actual payment.
c) Any other or further order or directions which this Honble Court may deem fit and proper in favour of the petitioner and against the respondents.
3. On the basis of the notice issued by the Honble High Court, the Respondents have submitted detailed written submissions on 25.09.2002 and the Applicant has filed a rejoinder affidavit in this case.
4. We have heard Shri N. L. Bareja, Learned Counsel for Applicant and Shri Abhinav Prakash, Learned Counsel for Respondents, and have perused the pleadings.
5. Shri Bareja, the Learned Counsel for the Applicant contends that the Applicant has put in more than 37 years of service. He has faced the criminal charge not on account of his misconduct in the Respondent-DTC but it was a quarrel in the village, as a result of which, he has been falsely involved in the criminal case and convicted in the Trial Court against which the Applicant has moved the higher Court where the sentence has been suspended and the appeal against conviction is pending. Though he was dismissed from service w.e.f. 31.7.1998, the Applicant has been moving the Respondent-DTC to get gratuity and leave encashment. But the Respondents instead of applying their mind have dismissed his representation by stating that the Applicant is not entitled for the leave encashment and gratuity. His main contention is that the Applicant is eligible to get gratuity as per the payment of Gratuity Act 1972, and also the encashment of leave.
6. On the contrary, Shri Abhinav Prakash, Learned Counsel for the Respondents, submits that it is a pure case of conviction by the Learned Court of Shri D. K. Saini, Additional Session Judge, Delhi where the Applicant has been punished for life imprisonment and fine of Rs.1000/- vide judgment dated 31.7.1998. In view of the said judgment, the Applicant was dismissed from service as per the DTC Clause 15 (2) VII of DRTA Condition of Appointment & Service Rules w.e.f. 31.7.1998. He further contends that Applicants appeal against the order of dismissal before the Honble High Court has been dismissed in limine. As such, the Applicant is not agitating before this Tribunal against the order of dismissal. He is only agitating that he should be paid gratuity and leave encashment. The main contention of the Respondents is that since the Applicant is a dismissed employee of the DTC, as per Para No.26(3) of the DTC Employees Provident Fund Regulations, he is not entitled to get the gratuity from the Respondent. He also informed that the Applicant had already been paid his own as well as the Corporation contribution towards C.P. Fund. But as per the DTC practice, he pleads, gratuity and leave encashment are not to be paid to the dismissed employee and the Applicant was informed of the same vide letter dated 24.12.2001.
7. The issues that come up for our determination are in narrow compass- whether the Applicant is entitled to (a) Gratuity and (b) leave encashment or not?
8. We now examine the issue whether the Applicant is entitled to get the leave encashment. We find from the averment that the Applicant has accrued leave to his account over 37 years of service. As per rules, the periodic leave encashment was permitted to him when he was in service. At the time of his dismissal he avers (Page 9) that he has accumulated about 30 days of leave, which he has not availed as per the normal rule. The leave accrues to the employee during his service, which he is entitled to avail. In the alternative, he can realize the same through leave encashment as may be admissible to him as per the Rules. Dismissal due to his conviction in a case not directly or indirectly related to his employment, cannot deprive the Applicant to encash the balance leave standing to his credit when he was dismissed from service. We are of the considered view that the Applicant being eligible for the leave encashment, the Respondents are duty bound to pay him the same. Leave encashment is part of the salary and is covered under the expression Pay and Allowances. The Respondents admit that the Applicant was paid salary and other allowances up to 31.7.1998, but was not paid leave encashment. Therefore, the Applicant is entitled to get the entire leave encashment, despite he was dismissed from service since leave accrued is due to service rendered by him and his dismissal on account of conviction is not related to the offence committed during the course of service can be the basis to deprive him of the leave encashment. In our opinion, the Applicant is entitled to receive the encashment of his outstanding leave to his credit as on 31.7.1998. Our view is fortified by the judgment of Honble Supreme Court passed on 15.9.2004 in State of Rajasthan versus S. R. Hr. Secondary School, Lachmangarh and others (2005-SCC-10-346). We, therefore, direct Respondent No.1 to calculate the amount of leave encashment admissible to the Applicant and pay simple interest of 8% thereon with effect from 1.11.1998 till the date of payment.
9. The next issue of the Applicant relates to the payment of gratuity. The Section 4 of the Payment of Gratuity Act 1972 provides that the gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service of not less than 5 years on his superannuation or on his retirement or resignation or on his death or disablement due to accident or disease. The Clause 6 of Section 4 of the Payment of Gratuity Act 1972 prescribes the grounds under which gratuity can be withheld or forfeited partly or fully. This Rule reads as follows :-
Section 4 (6) Notwithstanding anything contained in sub-section The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
The gratuity payable to an employee [may be wholly or partially forfeited] If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
10. In the present OA, the Applicant has demonstrated that he was not convicted for any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer-DTC, nor he has caused any loss to the DTC. He has been convicted of an offence alleged to have been committed in his village due to individual rivalries. The conviction has got no direct or indirect relationship or linkage with his official duties. Though, the Applicant has been dismissed from service as per the DTC Rules, he has not been dismissed on the ground of his riotous or disorderly conduct or any act of violence on his part, nor he has been dismissed for the offence involving moral turpitude. It has been also established by the Applicant and admitted by the Respondents that the offence committed by him was not in the course of his employment but it was outside his normal call off duty. Thus, as per the payment of Gratuity Act 1972, the Gratuity cannot be forfeited. It is admitted fact that the Applicant has put in 37 years of service and for the same he is entitled to the admissible gratuity.
11. Gratuity is earned by an employee by virtue of his service over a period with his employer. As back as 1975, the DTC has adopted the Payment of Gratuity Act 1972 and has been implementing. The Provisions of Section 4 (6) (a) do not come into operation unless there is a termination on the grounds set out in that sub section. The statutory provision for forfeiture must be construed strictly. In case the termination/dismissal (in case of the present TA), if the grounds of such termination does not come within the ambit of Section 4 (6), the forfeiture is not admissible and the employee does not forfeit his right to gratuity.
12. The Provisions of Section 4 (6) (b) (i) is not attracted in the present OA simply because dismissal of the Applicant has not been due to his riotous or disorderly conduct or any other act of violence on his part. The dismissal is based on the conviction which was for the offence committed in his village which was far away from his place of official duties. Even the provisions of Section 4 (6) (b) (ii) will not apply in this case. This Section provides that forfeiture will be permissible if the offence involving moral turpitude has been committed. The Applicants dismissal is not based on that ground. The said Section also prescribes that if such offence is committed in course of employment, the forfeiture of gratuity is permissible. In this regard, the offence was committed by the Applicant not in the course of his employment.
13. In view of the statutory provisions of the Payment of Gratuity Act, 1972 and settled legal position, we come to the considered conclusion that the Applicant has the right to gratuity and there are no grounds admissible under the Act to allow the Respondents to forfeit (wholly/partly) the gratuity of the Applicant. Mere dismissal from service cannot deprive the Applicant his right to gratuity. The Respondents have not demonstrated (a) application of their mind in declaring the Applicant not entitled to gratuity, and (b) the order of forfeiture of Applicants gratuity.
14.1 In view of the fact that the Respondent-DTC has not passed an order on the Gratuity except that they have simply conveyed to the Applicant that he was not entitled, we consider it non application of mind. This stand of the Respondent is not legally tenable. The Regulation of DTC relied upon by the Learned Counsel for the Respondents, in so far as conflicting with the provisions of the Payment of Gratuity Act 1972, those Regulations cannot be invoked to deprive the Applicant his right to gratuity. As per Rule 14 of the Payment of Gratuity Act, consequences of this Act are supreme and shall have the effect notwithstanding anything inconsistent therewith contained in any other Act or any other instruction including the Rules. As per the Payment of Gratuity Act, the Applicant will be eligible to get the admissible gratuity.
14.2 In case of delay in payment of gratuity, it is trite that the employee has to get interest for the belated payment of gratuity by the employee. Honble Supreme Court issued direction to calculate gratuity along with interest at the rate of 10% per annum from the date of accrual of gratuity till the date of payment in the case of State of Kerala and Others versus M. Padmanabhanai (AIR 1985 SC 356 (357). It was observed that gratuity is not a bounty to be distributed by the Government to its employees on their retirement but is a valuable right and property on their hands and any culpable delay in settlement/disbursement thereof must be visited with the penalty of payment of interest. The right to interest on delayed payment of gratuity is statutory. The Section 8 of the Payment of Gratuity Act also prescribe for payment of interest if gratuity is to be recovered from the employer to pay to employee. In view of well settled legal position and statutory provision, we direct the Respondent No.1 to pay simple interest to the Applicant on the amount of gratuity at the rate of 8% from 1.11.1998 (3 months from the date of his dismissal) to the actual date of payment.
15. Taking into account the totality of the facts and circumstances of the case, the TA is allowed in terms of our above directions to the Respondent-1 (a) to pay gratuity and leave encashment and (b) also interest thereon to the Applicant within 3 months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Dr. Ramesh Chandra Panda) (M. Ramachandran)
Member (A) Vice Chairman (J)
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