Central Administrative Tribunal - Madras
M Muthukumar vs M/O Textiles on 5 March, 2024
1 OA No.310/00244/2022 CENTRALADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA/310/00244/2022 Dated this, 5° day of March, Two Thousand Twenty Four... .. -. CORAM : HON'BLE MR M. SWAMINATHAN JUDICIAL MEMBER M. Muthukumar, S/o R. Mahalingam, eee ee No.1/1,F-2, Jamal Enclave, APMS 1* Street, Cinnandikuppam Road, Vettuvankeni, Chennai. .. Applicant By Advocate M/s V. Vijay Shankar Vs. 1.The Director General, National Institute of Fashion Technology, NIFT Campus,Hauz Khas, Near Gulmohar Park, ' New Delhi. 2. The Director, National Institute of Fashion Technology, No.21, 27" Main Road, 16® Cross Sector I, HSR Layout, Bengaluru. » Respondents By Advocate Mr. J. Vasu 2 OA No.310/00244/2022 ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) The applicant has filed the OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
" to call for the records of the 2™ respondent in -- its No.5400 (2)/Estt/Admn./Per-A/MM/14 dated 07.09.2021 ad NIFT/HQ/E.I/Mise./2019 of the 1* respondent dated 20.10.2021 and quash the same and consequently direct the Respondents to disburse the balance amount of Rs.2,56,935/- representing the remaining amount of Gratuity along with interest at 15% per annum from 3.05.2019 and pass such other order or orders as may be deemed fit and thus render justice."
2. Brief Facts of the Case are as follows:
The applicant joined service as Auditor-II on 16.05.1983 in Khadi and Village Industries Commission (K VIC) and worked for a period of 8 years and 3 months. Subsequently, he was selected and appointed as Superintendent cum Accountant in Ali Yuvar Jung National Institute for Hearing Handicapped (AYJNIHH) on 12.08.1991, under the Ministry of Welfare, where he worked for nearly 4 years upto 30.05.1995. Thereafter, he was appointed as Accounts officer under the respondent organization viz National Institute of Fashion Technology (NIFT), on 31.05.1995. He served there for nearly 24 years and retired on 31.05.2019, on attaining the age of superannuation. The retirement/service gratuity and other 3 OA No.310/00244/2022 benefits were transmitted from KVIC viz. I* employer to 2™ employer, who in turn re-transmitted the same to the respondents .
institution. However, the respondents, without taking into account the past service and have paid the less Gratuity to the applicant than his actual entitlement. The applicant submits that he is entitled to an amount of Rs.20 Lakhs as Gratuity. However, only a sum of Rs.17.43 Lakhs has been paid. To the several representations made by the applicant to disburse the balance amount, the respondents have not taken any steps. On the other hand, the respondents 1 & 2 vide their letter dated 07.09.2021 and 20.10.2021, rejected the applicants' claim, stating that the terminal benefits of the applicant have been settled and nothing is pending to be paid to him. Challenging the said orders, the applicant has come before this Tribunal.
3. The learned counsel for the applicant contended that the applicant had rendered 12 years of service from 16.05.1983 to 30.05.1995 with the previous employers. For such service, the applicant was not paid any retirement benefit in the form of Gratuity or Earned Leave compensation at the relevant point of time. He further submitted that in September 2020 that is, 1 year after his retirement under the 2™ respondent, the 2™ respondent institution 4 OA No.3 10/00244/2022 transferred a sum of Rs.15,638/- to the applicant which was received from AYJMIHH. The applicant immediately submitted his objection and pointed out that this amount should be retained by the 2% respondent institute and the applicant should be compensated by grating enhanced Gratuity by counting the past service. However, the applicant's objection went unheeded.
4. The learned counsel for the applicant further submitted that the applicant is willing to refund the amount of Rs.15,698/-. In as much as applicant has not derived any Pro rata retirement benefit at the relevant point of time viz., in 1995, he is entitled to count the past service of 12 years for the purpose of Gratuity and other terminal benefits. He further submitted that payment of Gratuity and Pension is not a bounty but it is a compensation for the 12 years of service rendered by the applicant and such entitlements cannot be curtailed at the whims and fancies of the respondents. Hence, he prayed for the relief sought in the OA.
5. Per contra, the learned counsel for the respondents vehemently opposed the submissions of the applicant. He contended that the appointment of the applicant as Accounts Officer in NIFT, was treated as a fresh appointment. He further contended that the Service 5 OA No.3 10/00244/2022 Book of the applicant from his previous department thatis AYINIHH = to the present Department that is, NIFT were not transferred as per SR 198. In the absence of non-transfer of Service Book, the period of service may not be counted form the initial date of joining in his first organization i.e., KVIC.
6. He further contended that the benefit of past services rendered by the applicant in the parent Department, prior to joining to NIFT in respect of Gratuity, Leave Encashment for unutilized leave in total amounting to Rs.15,698/- were received from AYJNIHH vide letter dated. 24.09.2020. with the direction to onward payment io the applicant, and accordingly payment were released to the applicant by NIFT, Bengaluru. Therefore, nothing is left over to be payable to the applicant.
7. The learned counsel for the respondents denied the contention of the applicant that the 2 respondent as an autonomous institution of Government of India is governed by the CSS (Pension) Rules. It is informed that the CCS (Pension) Rules, shall not apply to persons entitled to the benefit of a Contributory Provident Fund and NIFT is not pensionable establishment. Therefore, NIFT is not governed by the CCS (Pension) Rules . Hence, he prayed that the OA is liable to 6 OA No.3 10/00244/2022 be dismissed.
8. Heard the learned counsel for the applicant M/s. Vijay Shankar, and the learned counsel for the respondents, Mr. J. Vasu, and perused the pleadings and the materials placed on record.
9, There is no dispute with regard to the admitted facts. It is worth mentioning the Government of India Rules on Resignation- Technical formality from Swamy's Handbook. The same reads as follows:
"1 When Government Servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons-
i)The resignation will be treated as a technical formality
ii)the benefit past service if otherwise admissible under the rules, will be allowed for purpose of fixation of pay in the new post iti) leave at credit will be carried forward
iv) the past service will be countered for pension to the extend it would, but for the resignation
2.A Government Servant who is selected for a post in a Central Autonomous body will be released only after obtaining and accepting his resignation from the Government service. Such Resignation will not entail forfeiture of the service for purpose of.
retirement/terminal benefits. In such cases, the Government servant shall be deemed to have retired from the service from the date of resignation and he will be eligible to receive all retirement/terminal benefits as admissible under the relevant applicable rules to him, in his parent organisation."
Further, it is also to be noted that the DOPT has issued various 7 OA No.310/00244/2022 instructions from time to time regarding Technical Resignation and Lien, The Department has now issued a OM dated 24.11.2022 consolidating these instructions for better understanding and guidance. The relevant portions, for the purpose of deciding the present OA are extracted as hereunder:
"2.1 Technical Resignation 2.1.1.As per the Ministry of Finance OM No.3379----. --. EI (b)/65 dated the 17" June, 1965, the resignation is treated as a technical formality where a Government Servant has applied through proper channel for a post in the same or some other Department, and is on selection, required to resign the previous post for administrative reasons. The resignation will be treated as technical resignation if these conditions are met, even if the Government Servant has not mentioned the word "Technical" while submitting his resignation. The benefit of past service, if otherwise admissible under rules, may be given in such cases.
Resignation in other cases including where competent authority has not allowed the Government Servant to forward the application through proper channel will not be treated as a technical resignation and benefit of past service will not be admissible. Also, no question of benefit of a resignation being treated as a technical resignation arises in case of it being from a post held on ad hoc basis. a 2.1.2 This benefit is also admissible to Government servants who have applied before joining the Government service and on that account the application was not routed through proper channel. The benefit of past service is allowed in such cases subject to the fulfilment of the following conditions:
(i) the Government servant should intimate the 8 OA No.310/00244/2022 details of such application immediately on their joining;
(ii) the Government servant at the. time-of.............-
resignation should specifically make a request, indicating that he is resigning to take another appointment under the Government for which he applied before joining the Government service'
(iii) the authority accepting the resignation should satisfy itself that had the employee been in service on the date of application for the post mentioned by the employees, his application would have been forwarded through proper channel."
10. Admittedly, the applicant was initially joined in Khadi and Village Industries Commission (K VIC), under the erstwhile Ministry of Industry (presently Ministry of Micro Small and Medium Enterprises) w.e.f. 16.05.1983, and worked for 8 years and 3 months. After technical resignation from KVIC, he joined in the Ali Yavur Jung National Institute of Speech and Heading Disabilities {(AYJNIHH), an autonomous bddy under Ministry of Social and Empowerment, Government of India, on 12.08.1991 He worked nearly 4 years, upto 30.5,1995 and on technical resignation from AYJINIAH, he joined the National Institute of Fashion Technology (NIFT), an autonomous body under the Ministry of Textile, on 31.05.1995, as Accounts Officer, After rendering 24 years of service in the NIFT, he retired on attaining the age of superannuation on 9 OA No.310/00244/2022 31.05.2019. Itis also to be seen that the applicant had taken up the employment after submitting technical resignation in each organization. He has thus rendered about 12 years of service from ~ ~~ 16.05.1983 to 30.05.1995 with the previous employers. For such service he was not paid any retirement benefits of Gratuity or Earned Leave component at the relevant point of time. At time of retirement from NIFT, the applicant was sanctioned Rs.17.43,065/- as Gratuity, for the 24 years of service rendered in NIFT. It is seen that benefit for past services rendered by the applicant, prior to joining to NIFT, in respect of Gratuity, Leave Encashment, amounting to Rs.15,698/- were received from the 2™ employer of the applicant on 24.09.2020 and was paid to the applicant. As the applicant had taken up the each employment through proper channel and by submitting resignation, such resignations should be termed as "Technical". Thus, he fulfilled the conditions laid down in consolidated instructions ( which have been extracted in the earlier part of the order) issued by the DOPT OM dated 24.11.2022.
li. In view of the above discussion, I am of the considered view that the applicant is entitled to Rs.20,00,000/- as Gratuity for the total service of 36 years rendered by him, including the 12 years of service rendered from 16.05.1983 to 30.5.1995, along with the 24 years of 10 OA No.310/00244/2022 service rendered under the 2™ respondent. Hence, the orders impugned in the OA are quashed and set aside, It is seen that the Gratuity already sanctioned and paid to the. applicant...was .
Rs.17,43,065/-. He was also paid Rs.15,698/- from the previous employer and the balance to be paid is Rs.2,41,237/. The respondents are directed to pay the said amount of Rs.2,41,237/-, within a period of 3 months from the date of receipt of a copy of this order. It is also made clear that the applicant is not entitled to interest for the said amount.
12. With the above direction, the OA is disposed of. No order as to costs