Central Administrative Tribunal - Delhi
Mrs Saramma Joseph vs Edmc on 27 October, 2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.3096/2019
This the 27th day of October, 2022
Hon'ble Mr. Ashish Kalia, Member(J)
Mrs. Saramma Joseph(Retired Nursing Sister)
W/o Sh. Joseph Jose, Group C
R/o Flat No.26B, PKT-3, Mayur Vihar
Phase-3, Delhi-96.
... Applicant
(By Advocate: Mr. Manjit Singh Butalia)
VERSUS
The Commissioner, EDMC
Plot Number 419, MCD Udyog Sadan
Patparganj, Delhi-110092.
...Respondent
(By Advocate: Ms. Filza Moonis)
ORDER(Oral)
The present OA has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"(a) Direct the respondents to grant the benefits etc given in Para 4(d) of the Application along with arrears and interest @18% pa with all other consequential benefits;
(b) Direct the respondents to produce all the records of the case along with their reply for perusal by this Hon'ble Tribunal;2 OA No.3096/2019
2. The applicant joined initially as Staff Nurse and retired as Nursing Sister in the year 2016. She made a representation dated 12.07.2017 seeking Transport allowance and conveyance allowance. She also made a representation dated 06.12.2017 for release of gratuity, LTC, CTG and transport charges also. Thereafter, she sent a legal notice to the respondents on 03.06.2019 claiming therein the pensionary benefits.
3. Learned counsel for the applicant relied upon the judgment dated 05.02.2003 passed by the Hon'ble Apex Court in H. Gangahanume Gowda v. Karnataka Agro Industries Corpn. Ltd. wherein it has been held as under:-
"It is evident from Section 7(2) that as soon as gratuity becomes payable, the employer, whether any application has been made or not, is obliged to determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority specifying the amount of gratuity. Under Section 7(3), the employer shall arrange to pay the amount of gratuity within 30 days from the date it becomes payable. Under sub- section 3(A) of Section 7, if the amount of gratuity is not paid by the employer within the period specified in sub-section (3), he shall pay, from the date on which the gratuity becomes payable to the date on which it is paid, simple interest at such rate not exceeding the rate notified by the Central Government from time to time for repayment of long term deposits; provided that no such interest shall be payable if the delay in the payment is due to the fault of the employee and the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground.3 OA No.3096/2019
From the provisions made in Section 7, a clear command can be seen mandating the employer to pay the gratuity within the specified time and to pay interest on the delayed payment of gratuity. No discretion is available to exempt or relieve the employer from payment of gratuity with or without interest as the case may be. However, under the proviso to Section 7(3)A, no interest shall be payable if delay in payment of gratuity is due to the fault of the employee and further condition that the employer has obtained permission in writing from the controlling authority for the delayed payment on that ground...."
In view of above, learned counsel for the applicant submits that the applicant is entitled for interest on delayed payment as well.
4. Notice in this case was issued to the respondents. They put in appearance and filed a detailed reply opposing the claim of the applicant. It is stated that the financial position of EDMC is not good as it has accrued huge liabilities in terms of employee dues, contractor dues, statutory dues and other third party payments.
5. It is further stated that even the monthly salaries and retiree pensions were delayed leading to regular strikes and agitations by employees as well as contractors. It is the case of the respondents that EDMC was facing acute financial crunch since its creation as the Government did not provide funds to it as recommended by the 4th Delhi Finance Commission.
4OA No.3096/2019
6. However, the respondents have been able to pay the monthly salaries and pension in time using the funds released by the government as per 5th Delhi Finance Commission recommendations in the year 2018-19 as also the internal revenue generated by EDMC. It is also stated that retirement benefits have been paid upto date along with bonus and four numbers of pending DA arrears.
7. The respondents have further submitted that EDMC is spending Rs.165-170 crores per month on salaries, pension and essential utilities which comes to Rs.2000 crores per annum and against the aforesaid expenditure, the internal revenue of EDMC is estimated to be Rs.950 crores while the government has allocated Rs.938 crores as basic tax share, and, therefore, EDMC will only be able to pay salaries and pension.
8. It is added that without any additional financial support, the EMC is not able to dispose of any of the liabilities/arrears accrued and, therefore, the employees as well as contractors are now approaching court of law to recover their dues. Since the EDMC has still not been able to make any payment to the employees, as directed 5 OA No.3096/2019 by the courts, they have starting recovering their dues through execution of such orders, and subsequent attachment of Municipal fund leading to further financial crunch. However, the following policy has been framed and approved by the competent authority for disposing of the employee dues as per availability of funds to discourage employees from approaching court of law:-
"EDMC will set aside Rs.5.00 Cr. to 10 Cr. per month to pay off the arrears of employees as per availability of funds without affecting timely payment of salaries and pensions. However, it will be ensure that minimum amount of Rs.5.00 crores per month shall be released to clear the arrears of employees:-
i. A minimum amount of Rs.5.00 Cr. will be used for payment of arrears every month which will be increased as per availability of funds.
ii. The arrears pending as on date will be paid in the following order:
a. Non-metric upgradation arrears. b. ACP/MACP Arrears.
c. DA Arrears d. 7th Pay Commission arrears e. LTC and leave encashment f. Any other allowances.
g. Regularization arrears in cases where it is justified and as per FR-SR, DOP&T rules and Hon'ble Supreme Court orders.
iii. Payment will be made on a seniority based first on date of retirement and then on date of passing the bills among them.
iv. Thereafter, the same policy may be adopted on DA Arrears, 7th CPC Arrears and ACP/MACP Arrears, in that chronology.
v. Thereafter other arrears may be paid.6 OA No.3096/2019
vi. All arrears due may be paid off in case funds for the same is made available by the Government or enough funds under dues on 4th DFC is received.
vii. Priority Payments may be limited to very needy cases only to ensure the above payments."
9. It is stated that the following payments have been made to the applicant:-
Sl. Items Amount (in Status of Payment No. Rs.) i. LTC Arrears for year 29,684/- Passed out due, it is in 2016-17 demand Vide Demand No.17/1128 dated 22.11.2016, will be paid as per availability of funds.
ii. CTG & T.A. 1,02,054/- Passed out due, it is in demand Vide Demand No.36/1413 dated 20.03.2018, will be paid as per availability of funds.
iii. 7th CPC Pay Difference 1,00,899/- Passed out due, it is in Arrear demand Vide Demand & will be paid as per availability of funds. iv. 3rd MACP Arrear w.e.f. 12,108/- Passed out due, it is in 27.02.2015 to demand Vide Demand & 31.12.2015 will be paid as per availability of funds. v. DA Arrears 5,298/- Paid on 05.09.2019 (Jan-15 to Sept-15) DA Arrears 5,439/- Pain on 19.10.2019 (July-15 to Sept-15) DA Arrears 5,439/- Paid on 19.10.2019 (Jan-16 to March-16) vi. Retirement Gratuity 12,30,528/- Pain on 19.02.2019 vii. Commutation Pension 14,82,787/- Paid on 19.02.2019
viii. Arrears of salary after The correction of grade i.e. 3 rd MACP correction of grade Arrear and the same bill has also been passed on 11.12.2019 ix. Arrears of pension after (mentioned at point No.iv above) correction of grade x. Interest on Gratuity and As per record, there is no policy available computation paid laid for paying interest on outstanding arrear.
after 26 months of
retirement on
31.12.2016, in March,
2019
7
OA No.3096/2019
10. Heard learned counsel for the parties at length. The question raised in the present petition is that the applicant is entitled for payment immediately after retirement and in case of delay he is entitled for interest on delayed payment in terms of the judgment passed by the Hon'ble Apex Court referred to hereinabove by the applicant.
11. It is a well settled law that pension is not a bounty which can be withheld by the employer concerned. In numerous judgments, the Hon'ble Apex Court has held that pensionary benefits are payable from very next day of retirement. However, the respondents takes sometime to make the payment due to various reasons for deficiency of funds, non submission of forms/documents by the applicant in order to prepare the bills etc. The Apex Court held in the matter of The Punjab State Cooperative Agricultural Development Bank Ltd. v. The Registrar, Cooperative Societies and Others., 2022 SCC online SC 28 dated 11.01.2022, it has been held that non availability of financial reserves would not be a defence available to the appellant Bank in taking away the 8 OA No.3096/2019 vested rights accrued to the employees that too when it is for their socio-economic security. It is an assurance that in old age their periodical payment towards pension shall remain assured.
12. Learned counsel for the respondents also took the plea that due to unification of MCD which was earlier fragmented into four parts there is administrative delay and because of the covid period also there is delay in making the payments. It is not at all a reasonable excuse for not making payment to the employee concerned.
13. Be that as it may, the respondents have admitted that they are ready to make the payments to the applicant due to him as per the policy laid down by the respondents themselves.
14. Learned counsel for the applicant, during the course of arguments, submits that there are certain more payments which are to be paid by the respondents.
15. As far as the payment which are claimed in the OA, they shall be made to the applicant within a period of 9 OA No.3096/2019 three months from today with interest @ 6% p.a. from the date of filing of this OA till the date of actual payment. As regards the other payments, let the applicant make a representation to the respondents who may decide the same within a reasonable time.
16. With this observation, the OA stands allowed. No order as to costs.
(Ashish Kalia) Member(J) /vb/