Central Administrative Tribunal - Delhi
Darshan Kr Gupta vs M/O Defence on 8 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA 1610/2015
Reserved on: 1.06.2016
Pronounced on: 8.07.2016
Hon'ble Mr. P.K. Basu, Member (A)
Darshan Kumar Gupta, Age 69 years, SE (SG) Retd.
MES No.300144,
S/o late Shri Babu Ram Gupta
R/o 25, South Park Apartments,
Kalkaji, New Delhi-110019 ... Applicant
(Appeared in person)
Versus
Union of India through
The Secretary
Ministry of Defence,
South Block, New Delhi ... Respondent
(Through Shri Hanu Bhaskar, Advocate)
ORDER
The applicant, who appeared in person, has made the following prayers:
"8.1. Direct respondent to pay commutation of pension amount Rs.4,45,303.86/- and treat it as fixed deposit w.e.f. 1.11.1996.
This commutation amount is shown in Appendix 11 & Calculation Sheet Appendix 20 of pension papers (Annexure A-3), commutation of pension date is 01.11.1996 as shown in Col.23 of the PPO (Annexure A-4).
8.2. Direct respondent to treat the Resident Monthly pension (After adjusting commuted amount of pension) as Recurring Deposit w.e.f. 30.11.1996.
Arrears of pension have been paid as under:2 OA 1610/2015
(i) Rs. 6,27,575.00 on 20.06.2003
(ii) Rs.1,46,047.00 on 29.04.2004
These two payments be deducted from Recurring deposit amount due on these respective dates and balance amount be treated as fixed deposit w.e.f. 29.4.2004 till date of payment.
Further Resident pension from 1.5.2004 be treated as "Recurring Deposit".
8.3. Direct respondent to treat the following payment made to applicant as fixed deposit w.e.f. 01.11.1996 to date of their payment.
Payment Amount
Date (Rs.
(i) PT-TA/DA 16.9.2002 20711.00
(ii) Refund of 13.9.2002 29848.00
CGEGIS
(iii) E/L Encashment 31.12.2002 21497.00
(iv) Gratuity 30.11.2007 252174.00
(v) Final settlement 12.3.2003 600235.00
Amount of GPF
A/c No. 536008
Amount available on 01.11.1996 be treated as
Principal Amount.
Due/Drawn statements be prepared, paid amount be adjusted on the respective dates of payment and balance amount be treated as fixed deposit from these respective dates of payment.
8.4. Direct respondent to pay 18% P.A. interest on all fixed and Recurring deposit because of the reasons explained in para 5.2 (B) above.
Interest should be compounded half yearly as is being done in all desposits like:
(i) Bank deposit as per RBI guidelines.
(ii) Bond
(iii) Debentures
(iv) Promissory Notes issued by PSU's and
private companies
(v) Provident Fund accounts.
8.5. Direct respondent to pay as damages an amount which should be equal to the payable amount at the 3 OA 1610/2015 time of its payment on a/c of Hon'ble Tribunal order in this case in para 8.1 to 8.4 above to compensate applicant for the reasons explained in para 5.3. above.
8.6. Direct respondent to pay Rs.10,000.00 (Rupees ten thousands) as cost of petition to applicant as he has been forced to take legal action.
8.7. To pass such other order or further orders as Hon'ble Court may deem fit and proper in the facts and circumstances of this case."'
2. The applicant's case is that he gave three months notice for voluntary retirement from service on 1.08.1996. This was rejected by the respondents on 31.10.1996. However, no detailed reasons were assigned as to on what grounds his prayer has been rejected.
3. The applicant thereafter filed representation on 2.11.1996 citing the relevant rule primarily stating that the rules clearly stipulate that he would be treated as having retired from service on 31.10.1996. He, therefore, requested through his representation for post retirement benefits. The respondents gave him a reply on 7.11.1996 again reiterating that his request for voluntary retirement has been rejected and since he is being treated as not retired from service, there is no question of granting post retirement benefits.
4. The applicant thereafter approached the Tribunal in OA 1062/1998 but the said OA was dismissed. Vide order dated 10.01.2002, the Hon'ble High Court in C.W. No.5349/2000 heard the matter and held that:
4OA 1610/2015
"......once the petitioner has exercised his statutory right in terms of Article 459 (1), question of acceptance thereof did not arise and the petitioner stood relieved w.e.f. 31.10.1996. We make it clear that we have not entered into the question as to whether the petitioner would be entitled to take benefit of CCS Pension Rules or not.
Before parting with the case, we may notice that the petitioner after service of notice offered to retire voluntarily and did not report for duty w.e.f. 1.11.1996 where after a show cause notice was issued. Keeping in view the fact that in law the petitioner was entitled to retire w.e.f. 31.10.1996, we are of the opinion that issuance of the aforementioned show-cause notice would not stand in the way of the petitioner retiring voluntarily w.e.f. 1.11.1996. The petition is allowed and the order dated 31.10.1996 is quashed. No order as to costs.
We may, however, further observe that as we have not considered as to whether provisions of Rule 48 and 48A would apply in the case of the petitioner, the petitioner would be at liberty to pursue his other remedy for claiming retiral benefit in accordance with law."
5. The applicant thereafter vide letter dated 20.03.2002 addressed to the respondents sought sanction of pension and gratuity which included an application for commutation of pension in Form 1A in triplicate. The Office of Principal C.D.A., Allahabad issued PPO to the applicant thereafter on 4.03.2003. However, the nature of pension was indicated as `Discipline', no gratuity was granted and absolute date of commutation indicated as 1.11.1996. Further, against the column "capitalized value of pension", it was shown as "rupees nil only".
6. The applicant thereafter filed OA 768/2005, which was disposed of vide order dated 20.04.2006. In this OA, the applicant had sought deletion of `Discipline' in the PPO, 5 OA 1610/2015 commutation of pension and retirement gratuity as well as 18% interest per annum compounded half yearly on all retiral benefits due on 1.11.1996. The matter was examined by the Tribunal and finally disposed of by the following order:
"17. In view of the discussion made hereinabove, I find there is no justification in inserting the term "DISCIPLINE" under column 8 of the PPO. Similarly, I find no reason and justification in the Respondents' action in withholding gratuity payable to the applicant. However, in the peculiar facts and circumstances, he would not be entitled to any interest, as prayed for. Accordingly, OA is partly allowed. The necessary exercise shall be completed within a period of two months from the date of communication of this order. No costs."
In short, the only prayer of gratuity was allowed as well as removal of the word `Discipline'. The prayer for interest was not allowed. Regarding commutation, the Court held that following the mandate of Rule 4 of CCS (Commutation of Pension) Rules 1981, the applicant would not be entitled to commutation of pension.
7. The applicant filed representation for commutation of pension and interest on retiral benefits on 12.03.2008 after he was acquitted of the CBI case pending against him vide order dated 31.07.2007 of the CBI Court Jabalpur. This was followed by another letter dated 10.09.2012 and again on 12.12.2013. The applicant's argument is that after his acquittal by the CBI Court, there was nothing to prevent grant of commutation of pension and other retirement benefits treating him as retired on 1.11.1996 and his prayer should be allowed. 6 OA 1610/2015
8. It is also argued that vide letter dated 6.05.2009, the Director (Pers and Legal) had written to the Central Record Office that medical examination in this case may be dispensed with considering the facts and circumstances of the case. However, vide order dated 4.12.2008, the applicant was asked to report for medical examination. In this regard, the applicant's case is that this letter had forwarded application for commutation in form 1A, which is for commutation of pension without medical examination whereas if the respondents were interested in treating his case under the category of medical examination, he should have been sent Form 2. It is, therefore, the case of the applicant that respondents despite letter dated 6.05.2009, by forwarding Form 1A, are trying to wrongly make out a case that they had asked him for medical examination forwarding him Form 2 and because he did not appear in that medical examination, his request is treated as withdrawn.
9. In fact, the applicant states that as per GOI instructions under Rule 68 of CCS (Pension) Rules, he is entitled to penal interest at the rate of 12% per annum if there is delay in payment of pensionary benefits. It is stated that this rule does not restrict itself to gratuity but clearly states payment of pension and retirement dues and, therefore, he is entitled to interest at least at the rate of 12% per annum. However, his argument is that in Smt. S.R. Venkatraman Vs. Union of India and another, AIR 1979 SC 49, the Hon'ble Supreme Court has held that "malice in its legal sense means malice such 7 OA 1610/2015 as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause." An administrative order which is based on reasons of fact which do not exist, must, therefore be held to be infected with an abuse of power. The applicant further stated that in Vijay L. Mehrotra Vs. State of U.P. and others, JT 2000 (5) SC 171, the Hon'ble Supreme Court held as follows:
"4. In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondents to pay to the appellant within 12 weeks from today simple interest at the rate of 18 per cent with effect from the date of her retirement i.e. 31st August, 1997 till the date of payments."
Similarly, the applicant referred to order dated 22.03.2000 of the Principal Bench of the Central Administrative Tribunal in OA 1687/1999, Dr. Durga Dass Vs. Chief Secretary, Govt. of NCT of Delhi and others, where the Tribunal citing the judgment of the Hon'ble Supreme Court in Dr. Uma Agarwal Vs. State of U.P. and another, 1993 (3) SLJ 212 (SC), held as follows:
"24..........This is an unfortunate state of affairs and in my view the applicant has been put to a long period of mental torture and harassment due to the inordinate delay of the respondents in releasing the payments due to him and also the non-payment of a part of his GPF due to the missing credits.
xxxx xxxx xxxx xxxx
26. In view of the above discussion, this OA is disposed of with the following directions:8 OA 1610/2015
(1) The respondents are directed to pay to the applicant interest at the rate of 18 per cent per annum on the delayed payment of pension from 1.9.97 to 17.4.99, and on gratuity from 1.8.87 till 3.2.99 within three months from the date of receipt of a copy of this order.
(2) The respondents immediately on receipt of a copy of this order should take vigorous and intensive steps to verify the position of the missing credits of GPF on top priority and ensure that any amount which is due to the applicant towards the said GPF is paid to him within two months together with interest at the rate of 18 per cent per annum from 1.8.97 till the date of actual payment.
(3) The applicant is also directed to submit his GPF pass book, if any, together with other material documents or papers which may be available with him to the respondents within two weeks from the date of receipt of a copy of this order."
10. The next argument forwarded by the applicant is that the PPO is in the nature of a "promissory note" and on account of delay in payment of retiral benefits as per "promissory note", the respondents are liable to pay interest to the applicant upto the date of payment at the rate of 18% per annum as per Rule 80 of the Negotiable Instrument Act.
11. Regarding damages, the applicant cited the judgment in Lucknow Development Authority Vs. M.K. Gupta, JT 1993 (6) S.C. 307, where the Hon'ble Supreme Court held as follows:
"The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome & Anr. 1972 AC 1027 on the principle that, 'an award of exemplary damages can serve a useful purpose in vindicating the strength of law'. An ordinary citizen 9 OA 1610/2015 or a common man is hardly equipped to match the might of the State or its instrumentalities. That is provided by the rule of law. It acts as a check on arbitrary and capricious exercise of power. In Rookes v. Barnard & Ors. 1964 AC 1129 it was observed by Lord Devlin, 'the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service'. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it."
12. The applicant drew our attention to Rule 4 of CCS (Commutation of Pension) Rules 1981, which reads as follows:
"4. Restriction on commutation of pension No Government servant against who departmental or judicial proceedings as referred to in Rule 9 of the Pension Rules, have been instituted before the date of his retirement, or the pensioner against whom such proceedings are instituted after the date of his retirement, shall be eligible to commute a fraction of his provisional pension authorized under Rule 69 of the Pension Rules or the pension, as the case may be, during the pendency of such proceedings."
13. It is argued that neither there was any departmental nor any criminal proceeding pending against him on the date of his voluntary retirement i.e. 1.11.1996. The CBI case came later. Thus, Rule 4 of CCS (Commutation of Pension) Rules 1981 does not apply in his case at all and he is to be granted full pension with commutation as prayed by him. The applicant also referred to Rule 6 of CCS (Commutation of Pension) Rules to claim that commutation of pension in his case has become absolute. It is further stated that medical examination which the respondents are insisting upon for commutation of pension does not apply in 10 OA 1610/2015 his case as he had applied for commutation immediately after 31.10.1996. The application which he filed for commutation and other retirement benefits after his acquittal in 2007 is not his original application for commutation and, therefore, there was no delay in filing of application for commutation of pension beyond one year specified in Rule 13 of CCS (Commutation of Pension) Rules, 1981. In fact, he reiterated that even the respondents had sent him Form 1, which was for commutation of pension without medical examination and not Form 2.
14. The applicant further sought quashing of impugned orders stating that he has been made to suffer for 20 years. In fact he stated that since his voluntary retirement was not accepted on 1.11.1996, he could not take up any other job. It was argued that as per Rule 70 of the CCS (Pension) Rules, once a pension has been authorized after final assessment, it shall not be revised to the disadvantage of the government servant other than for clerical errors.
15. The respondents state that the applicant approached this Tribunal earlier in OA 768/2005 with the prayer of deletion of 'Discipline' from PPO, commutation of pension and retirement gratuity as well as 18% interest per annum on all retiral benefits. In its order dated 20.04.2006, the Tribunal gave the following findings:
(i) Applicant is not entitled to commutation of pension;11 OA 1610/2015
(ii) The term 'Discipline' shall be removed. In fact, it was removed and mentioned as 'Voluntary';
(iii) Gratuity would be payable; and
(iv) Applicant is not entitled to any interest.
16. It is thus argued that once prayer for commutation of pension and interest has been agitated before this Tribunal and not allowed, the applicant is debarred from raising this issue again in this OA as it is hit by the principle of res judicata.
17. After his acquittal on 31.07.2007, the applicant again applied for commutation of pension. The learned counsel for the respondents relied on Rule 4 of CCS (Commutation of Pension) Rules 1981 to support his stand that once a departmental or judicial proceeding is pending, commutation cannot be granted.
Similarly, it is argued that Rule 13 of the aforesaid Rules further provides that application in Form 1 must reach the Head of Office within one year and if it reaches after one year, then the individual shall not be able to get his pension commuted without medical examination and in that event, he has to apply in Form 2.
18. The learned counsel for the respondents further drew our attention to Rule 24 of CCS (Commutation of Pension) Rules 1981 that in case an applicant is asked to appear before the medical authority and he fails to do so and there is no reasonable ground for such failure of his appearance, the 12 OA 1610/2015 documents will be returned to Head of Office and the application for voluntary retirement will be treated as withdrawn.
19. It is further argued by the learned counsel for respondents that cause of action for the applicant arose in 2007 after his acquittal in CBI case. However, he has filed this OA only in 2015 after considerable delay and, therefore, it is not maintainable even on the ground of limitation as per Section 21 of the Administrative Tribunals Act 1985.
20. Finally, it is argued that the applicant has received full pension from 1.11.1996 and, therefore, there is no question of commutation at this stage. In fact, in this regard, the learned counsel drew my attention to the prayer of the applicant where he has sought the commutation of pension amount to be treated as fixed deposit with effect from 1.11.1996 and the residual monthly pension (after adjusting commuted amount of pension) as recurring deposit with effect from 30.11.1996 and balance amount of payment of arrears to be treated as fixed deposit with effect from 29.04.2004 till the date of payment. Further prayer made is that residual pension from 1.05.2004 be treated as recurring deposit and he be paid TA/DA, refund of CGEGIS, EL encashment, final settlement amount of GPF and to treat the amount available on 1.11.1996 as principal amount whereas there is no such provision in any rules.
21. In reply to the points raised by the learned counsel for the respondents, the applicant on the question of limitation, states that in such cases of gross denial of justice by the respondents, 13 OA 1610/2015 the Hon'ble Supreme Court has held that limitation will not come in the way of providing justice to the petitioner. On the question of medical examination, the applicant's stand is that the respondents did not issue Form 2 but Form 1A which is for commutation of pension without medical examination and now to take the plea that the applicant was asked for medical examination and he failed to appear before the medical board is an afterthought, just to defeat the claim of the applicant. As regards Rule 4 of CCS (Commutation of Pension) Rules, the applicant reiterates that it refers to cases under Rule 9 of the Pension Rules, which specifically refers to cases where there is loss caused to the government and in this case, there is no loss caused to the government.
22. I have heard the applicant in person and the learned counsel representing the respondents and perused the judgments/ orders cited.
23. I first take up the ground of limitation. It is a fact that after 2008, the applicant did not approach this Tribunal till he filed the instant OA in 2015 i.e. after a period of almost seven years. No reasonable explanation has been given by the applicant as to why he has chosen not to raise the issue in the past so many years. Therefore, the first objection raised by the respondents that OA suffers from delay and laches and hence not maintainable, has to be accepted and I hold that on the ground of limitation, this OA is not maintainable. 14 OA 1610/2015
24. Now I come to the merits of the case. It is a fact that the applicant first approached this Tribunal in OA 768/2005 and as mentioned above, among others, he raised the issue therein of commutation of pension and payment of interest. However, the Tribunal disallowed commutation of pension and interest prayer. Thus, as regards commutation of pension and payment of interest, the matter has already been raised before the Tribunal and rejected and the applicant now cannot raise the same issue again. The prayer for commutation of pension was rejected after examining the rule position. Though the applicant tried to argue that the Tribunal's order is wrong, since he has not challenged the said order in a higher forum, this order has attained finality. Therefore, the applicant cannot now raise the issue of commutation of pension and payment of interest again in this OA. As a consequence, prayer 8.1, 8.2 and 8.4 are disallowed. As regards prayer 8.3, the applicant is entitled for payment of gratuity as has already been held in OA 768/2005 and also interest at the rate of 12% under Rule 68 of CCS (Pension) Rules cited above. Payment of interest on other items in prayer 8.3 is not admissible in terms of order passed in OA 768/2005 (supra). As regards prayer 8.5 i.e. request for payment towards damages, this is beyond the purview of the Tribunal and the applicant is at liberty to raise claim for damages in an appropriate forum. As regards prayer 8.6 i.e. cost of petition to the tune of Rs.10,000/- as he has been forced to take legal action, I find that the respondents cannot be faulted in any manner in this case. There was a CBI case against the applicant 15 OA 1610/2015 from which he was acquitted only on 31.07.2007. The applicant himself did not take action between 2008 and 2015. In 2008, he was asked to undergo medical examination which he did not on a very flimsy ground of not having been sent the right form and as per provisions of Rule 4 of CCS (Commutation of Pension) Rules 1981, his case for commutation of pension, if at all, does not survive. Therefore, since the respondents cannot be blamed for this litigation, I see no reason to award cost on the respondents.
25. The OA is disposed of as per orders above.
( P.K. Basu ) Member (A) /dkm/