Central Administrative Tribunal - Ernakulam
M K Babu vs The Secretary Ministry Of Defence South ... on 25 January, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ERNAKULAM
Original Application No. 180/00539/2019
Wednesday, this the 25th day of January, 2023
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
M.K. Babu,
S/o Late M.T. Kuttappan, aged 65 years,
retired unskilled labourer, INS Garuda, Vichling,
Naval Base, Kochi,
residing at Madambithara House,
Eramalloor P.O.,
Cherthala-688 537. ..... Applicant
(By Advocate : Mr. M.R. Hariraj)
Versus
1. Union of India,
represented by Secretary to Government of India,
Ministry of Defence,
New Delhi-110 001.
2. The Flag Officer-Commanding in Chief,
Southern Naval Command,
Naval Base,
Kochi-682 004.
3. The Commanding Officer,
INS Garuda, Naval Base,
Kochi-682 004.
4. The Principal Controller of Defence Accounts(Pensions),
EDP G/Civilian, Computer Centre,
Draupathi Ghat,
Allahabad-211 014.. ..... Respondents
(By Advocate: Mrs. O.M. Shalina, SCGSC)
This Original Application having been heard on 12.01.2023, the
Tribunal on 25.01.2023 delivered the following:
OA/180/00539/2019
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ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant was engaged as unskilled labourer on casual basis by the 3rd Respondent in INS Garuda at Naval Base, Kochi He was granted temporary status by Annexure A1 dated 13.07.2001 w.e.f. 18.07.2001. He was regularized by Annexure A2 dated 06.02.2006. He was later confirmed by Annexure A3 w.e.f. 6.02.2007. While so, the applicant along with few other filed OA No.122/2009 before this Tribunal seeking temporary status and regularisation in accordance with the scheme of the Government. Though it appears that from the facts of the case of the applicant it was not essential for him to seek such relief, it seems that it was disposed of by Annexure A4 order dated 24.07.2007, by which the applicants therein were directed to submit their representation, which was ordered to be disposed of within a stipulated period. Based on Annexure A4, date of regularisation was preponed to 18.07.2002 by Annexure A5. He was granted the 1 st MACP by Annexure A6 order w.e.f. 18.07.2011. There after the applicant and others preferred OA No.724/2011 seeking relief for granting pension, taking the period of temporary status as casual labourer, as qualifying service. By Annexure A7 order it was declared that the applicant was entitled to CCS(Pension) Rules 1972, taking into account their services as temporary status casual employees. It emerges that it was challenged in OP(CAT) 278/2013, which was ultimately dismissed. According to the applicant, thereafter several representation were submitted. They were not granted pension reckoning the period of their casual service as qualifying service.
OA/180/00539/2019 3 Hence he had preferred the OA after his retirement on 31.08.2011.
2. In the OA a reply statement was filed, wherein Annexure R-2 to R-13 were produced by the respondents, denying the claims set up in the application and the reliefs sought. It was contended by the applicant that those documents included several adverse orders, which were issued without notice to him. Consequently, the OA was amended incorporating pleadings challenging the documents produced as Annexure R4 to R13, by producing several of such documents as A10 to A16. It was contended that Annexure R11 to R13 referred to another employee and hence no relief was sought in respect of these documents.
3. AnnexureA10 is a communication of the Civilian Establishment Officer dated 31.07.2012 referring to a representation of the applicant requesting to treat him a 2004 entry employee and requesting to grant all pensionary benefits. But the claim was based on the ground that MACP was granted to him w.e.f.18.07.2001. It was held in Annexure A10 that the date of regularisation was mistakenly taken as 18.02.2001, instead of February 2006. It had to be regularized from 06.02.2006 in the CE list. He was only to be granted increments w.e.f 18.07.2001 and not to be regularized from that date. By Annexure A11 order dated 08.08.2012 issued by the Headquarters, Southern Naval Command, the 1st MACP was cancelled holding that he was not entitled to pensionary benefits as per the CCS(Pension) Rules 1972. Annexure A12 was consequential order issued OA/180/00539/2019 4 thereupon and Annexure A13, the Due Drawn Statement. A14 to A16 referred to various communications.
4. In the pleadings in the amended OA, it was contended that A10 to A15 were issued without notice to the applicant and without communicating them to him. The relief sought was to quash Annexure A9 to A10. The contention of the applicant was that the basic document Annexure R5 & R6 were nonest, since it was issued without notice and that no reason was stated as to why the benefits granted to the applicant were cancelled and the amounts sought to recovered from him.
5. In the application it was further contended that after the filing of the OA, the applicant suffered a massive stroke in April2022 and he was bed- ridden evidenced by Annexure A17 to A19. The relief sought in the amended OA are as follows:-
(i) To declare that the applicant is entitled to have 50% of his casual service from 4/5/1987 to 18/7/2001 and full service from18/7/2001 to 31/8/2012 as qualifying for pension and that he is entitled to be granted pension and pensionary benefits under the CCS Pension Rules 1972 and to direct the respondent to compute the pension and pensionary benefits of the applicants accordingly and to draw and disburse the arrears of pension and pensionary benefits due to the applicant with interest @12% per annum from 31/8/2012 till date of payment.
OA/180/00539/2019 5 (ia) Call for the records leading to Annexure A9 to A15 and quash the same
(ii) To declare that the applicant is entitled to have his pension revised with effect from 1/1/2016 and direct the respondents to pay the applicant arrears of revised pension with interest @12% per annum from the dates on which it became due till the date of the actual payment.
6. Detailed reply statement was filed essentially contending that the applicant did not satisfy the qualifying service to grant him benefit of pension and pensionary benefits under the CCS(Pension) Rules 1972 and also to declare that applicant was entitled to have 50% of casual service from 04.05.1987 to 18.07.2001 and full service from 18.07.2001 to 31.08.2012 as qualifying service.
7. Heard the learned counsel for the applicant and the learned SCGSC.
8. Though detailed and exhaustive arguments were advanced by the learned counsel for the applicant essentially contending that the applicant was entitled for the benefits and that by computing 50% of casual service from 04.05.1987 to 18.07.2001 and full service from 18.07.2001 to 31.08.2012 as qualifying for his pension, he was entitled to pension and pensionary benefits under the CCS (Pension) Rules 1972, I am not inclined to go into those questions, in the light of two specific contentions advanced by the learned SCGSC touching on the very root of the claim set up by the OA/180/00539/2019 6 applicant.
9. The learned SCGSC pointed out that the 2nd limb of the first prayer was to direct the respondents to compute the pension and pensionary benefits treating that he was entitled to be granted pension under the CCS(Pension) Rules. To counter, this claim, the learned SCGSC invited the attention of this Tribunal to Annexure A7 order of CAT. It was pointed out that it was held in Annexure A7 that the applicant was entitled to be granted pension as per the CCS(Pension) Rules, taking into account the period of their service as temporary status casual labourers. All the benefits given to the applicant in OA 517/2011 shall stand extended to the case of the applicants in OA No.724/2011 also. It was pointed out that identical relief was sought by similarly situated persons by filing OA No.517/2001. It was allowed. Accordingly, OA No.724/2011 was ordered in tune with the order in OA No.517/2011. The basic contention of the learned SCGSC was that the applicant did not have the qualifying service of 10 years as contemplated in Rule 49 of CCS(Pension) Rules. It was pointed out that in OA No.517/2011, it was clearly specified that the half temporary service would have to be added to the regular service, for the purpose of entitlement of terminal benefits. It was stated that in compliance with R1 order, competent authority issued Annexure A10 sanction order and accordingly temporary status in respect of the applicant have been reckoned for pension and pensionary benefits. According to the respondents, for reckoning the pensionary benefits of the applicant the service details are as follows. The OA/180/00539/2019 7 date of temporary status was 18.07.2001, the date of regularisation was 06.02.2006 and the date of retirement was 31.08.2011. 50% of the service from 18.07.2001 to 06.02.2006 and total service from 06.02.2006 to 31.08.2011 was liable to be reckoned.
10. According to the respondents, in accordance with the Rules governing regularisation of casual service only ½ of the service as temporary status labourer is to be reckoned for the purpose of pensionary benefits. The learned SCGSC referred to the DoPT order produced as Annexure R1. It was further stated that DoPT order dated 26.02.2016 reiterated that after entering 3 years continuous service, after confirmation, temporary status, casual labourers were treated at par with temporary Group 'D' employees for the purpose of contribution to General Provident Fund. After their regularisation 50% of service rendered under temporary status would be counted for the purpose of retirement benefits. The learned SCGSC relied on Annexure R2, DoPT OM dated 26.02.2016 to supplement it. It was contented that no Government order, authorizes counting of casual service prior to temporary status period, for the purpose of pension and pensionary benefits.
11. It was contended by the learned CGSC that on reckoning the qualifying period of the applicant in accordance with the above provisions, it will be clear that the applicant had not satisfied the minimum qualifying service of 10 years. It was further contended that Annexure A7 also did not declare unconditionally that the applicant was entitled to pension as per the OA/180/00539/2019 8 CCS(Pension) Rules 1972. It was pointed by the learned CGSC, referring to AnnexureA7 that the operative portion in para 3 of the order shows that the declaration was that the applicant was entitled to pension as per CCS(Pension) Rules 1972 taking into account period of their service as temporary status casual labourer. It was further clarified that all the benefits as given to the applicant in OA No.517/2011 shall be extended to the case of the applicant in Annexure A7 also. Para-1 of AnnexureA7 order quotes the operative portion in OA No.517/2011. Para -10 of order in OA No.517/11 clearly shows that the claim of the applicant in OA No.517/2011 was granted subject to the fulfillment of the conditions prescribed in the pension Rules. Relevant portion of the order is as follows:
"10. Subject to fulfillment of the conditions prescribed in the pension rules, necessary action to issue PPO etc. should be undertaken on priority basis.......The entitlement of pension shall be from the date of the 1st application's superannuation."
(emphasis supplied) It clearly shows that the order was subject to the fulfilment of the conditions prescribed in the pension Rules. Hence, only if the applicant had completed qualifying service, then he would be entitled for benefits as sought for. It was in tune with the above direction that the order in Annexure A7 was also passed. Hence, the essential question is whether he had the requisite qualifying service.
12. As evident from the details of service, it is evident that entitled qualifying period can be reckoned only from the date of temporary status which is 18.07.2001 and not from 04.05.1987. The pre-temporary status OA/180/00539/2019 9 period was wrongly claimed in the application.
13. The learned SCGSC further pointed out that the first limb of relief No.1 was sought in OA No.724/2011. That relief was not granted by the Tribunal, as evident from AnnexureA7 order in OA No.724/2011. Evidently, that part of the relief has to be deemed to be declined. There is considerable force in the contention set up by the learned SCGSC.
14. The learned SCGSC, disputing the next contention of the learned counsel for the applicant that the documents by which the benefits granted to the applicant was withdrawn and recovery ordered, was without any grounds and that it was issued without notice to the applicant, placed before me several documents. The learned SCGSC placed reliance on OM dated 28.07.2016, issued by the DoPT, after issuance of Annexure R2. It is related to a clarification regarding contribution to GPF and pension. It was clarified that the benefit of GPF and old pension scheme was applicable to all those casual labourers who were covered under the scheme of 10 th September, 1993 even if they were regularized on or before 01.01.2004.
15. Learned SCGSC contended that the applicant, while he was granted the benefits had given an undertaking in writing dated 09.12.2012 undertaking to pay the entire excess amount, if any, paid to him. Learned SCGSC placed reliance on a communication dated 14.08.2012 issued on behalf of the Commanding Officer addressed to the applicant by which he was informed that since he was not eligible to the benefit of regularisation of casual OA/180/00539/2019 10 service reckoning for the purpose of financial upgradation under the MACP scheme, the 1st financial upgradation arrears granted to him with effect from 18.07.2011 was held to be void. Hence, he was not eligible for pensionary benefits as per the CCS(Pension) Rules 1972. It is seen that the applicant has acknowledged the receipt of the above letter by affixing his signature on the above order. The learned SCGSC further pointed out that this order was challenged in OA No.1025/2012 before this Tribunal. An interim stay was granted against recovery, and the respondents were restrained from effecting recovery from the applicant, on the strength of the impugned order. A copy of the above order dated 14.11.2012 was placed before me. A copy of the final order produced before me shows that the Tribunal, after an elaborate discussion of the rival contentions referred to the representation submitted by the applicant against the impugned order. There is a reference in the above order that a representation had been submitted for determining his pension according to the said Rules. The Tribunal on the basis of the materials placed had arrived at the conclusion that the applicant had a total period of 6 years and 6 months only and concluded that hence he would not satisfy the conditions regarding regular service as contemplated in Clause 9 of MACP scheme. The Tribunal concluded that the respondents have acted correctly in issuing the impugned order. Having held so, applying the principles laid down in Rafiq Masih case, the Tribunal granted relief against recovery. The amount recovered was ordered to be returned to him.
16. These facts clearly show that the contention of the applicant that the orders withdrawing his benefits were issued without notice to him does not OA/180/00539/2019 11 appear to be correct. It is also pertinent to note that he had challenged the proceedings and these facts were not disclosed in the original application.
17. Learned counsel for the applicant explained that only much after the earlier proceedings the file was entrusted to him and those facts were not brought to the notice of the counsel. It was also pointed out that the applicant being bed-ridden completely is unable to effectively communicate with him or give him proper instructions at present.
18. Having considered the entire facts, I am satisfied that the applicant is not entitled for any benefit as claimed under the CCS(Pension) Rules. However, learned counsel for the applicant submitted that the right to seek relaxation under Rule 88 of the CCS(Pension) Rules may be reserved. It is made clear that though I am inclined to reject the Original Application, the right of the applicant to seek relaxation invoking Rule 88, if so advised, is reserved.
19. Accordingly, the OA fails and is dismissed. No costs.
(JUSTICE SUNIL THOMAS) JUDICIAL MEMBER "va"
OA/180/00539/2019 12 APPLICANT'S ANNEXURES Annexure A1- A true copy of Memorandum No.CS 2702/1 dated 30/07/2001 Annexure A2 - True copy of the order No.CS 2702 dated 6/2/2006 Annexure A3 - True copy of the order dated 29/2/2008 Annexure A4- A true copy of the final order dated 24/4/2009 in OA 122/2009 Annexure A5- True copy of Civilian Establishment List No.21/2009 dated 24/3/2009 Annexure A6- True copy of the Civilian Establishment List No.36/2011 dated 3/11/2011 Annexure A7- A true copy of the final order dated 17/12/2012 in OA No.724/2011 Annexure A8- A true copy of the judgement dated 27/1/2014 in OP(CAT) No.2783/2013 Annexure A9- A true copy of the letter No.273/56/1/MKB dated 01/06/2018 Annexure A10- A true copy of letter No.273/56/1 dated 31.07.2012 issued by the 3rd respondent Annexure A11- A true copy of letter No.CS 2765/34/MACP dated 08.08.2012 issued by 2nd respondent Annexure A12- A true copy of CE List No.28/2012 along with the corrigendum dated 10.08.2012 Annexure A13- A true copy of due-drawn statement in respect of the applicant Annexure A14- A ture copy of PCDA letter No.G1/C/Navy/VI/2018 dated 28.03.2018 Annexure A15- A true copy of PCDA letter No.G1/C/Navy/VI/2018 dated 10.12.2018 Annexure A16- A true copy of INS Garuda Letter No.273/56/1/MKB dated 14.01.2019 Annexure A17- A true copy of discharge summary dated 23/04/2020 issued by Lissie Hospital AnnexureA18- A true copy of discharge summary dated 8/3/2021 Annexure A19- A present photograph of the applicant RESPONDENTS' ANNEXURES Annexure R1- Copy of Ministry of Personnel, Public Grievances and Pensions (DoPT) OM No.51016/2/90 Estt.(C) dated 10 September 1993 Annexure R2- Copy of DoPT OM No.49014/2/2014-Estt(C) dated 26 February 2016 Annexure R3- True copy of the representation dated 24.05.2012 submitted by the Respondent-applicant Annexure R4- True copy of the letter No.273/56/1 dated 31.07.2012 issued by the 3rd petitioner OA/180/00539/2019 13 Annexure R5- True copy of letter No.CS 2765/34/MACP dated 08.08.2012 issued by Misc. applicant (2nd respondent in OA) Annexure R6- True copy of the CE List No.28/2012 along with the corrigendum dated 10.08.2012 Annexure R7- True copy of due-drawn statement in respect of the respondent herein (applicant in the OA0 Annexure R8- True copy of PCDA letter No.G1/C/Navy/VI/2018 dated 28.03.2018 Annexure R9- True copy of PCDA letter No.G1/C/Navy/VI/2018 dated 10.12.2018 Annexure R10- True copy of INS Garuda letter No.273/56/1/MKE dated 14.01.2019 Annexure R11- True copy of PCDA letter No.G1/C/Navy/VI/2019 dated 25.02.2019 Annexure R12- True copy of PCDA letter No.LC/XI/MISC/DEC2020/N R Sugunan dated 17.12.2020 Annexure R13- True copy of PCDA letter No.G1/C/Navy/VI/2021 dated 05.02.2021
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OA/180/00539/2019