Central Administrative Tribunal - Delhi
Om Prakash vs The Chairman on 17 March, 2011
Central Administrative Tribunal Principal Bench OA No.2490/2010 New Delhi, this the 17th day of March, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Om Prakash Ex-Conductor, DTC R/o H. No.52/36, A-2, Gali No.17, Nai Basti, Anand Parwat, New Delhi. Applicant. (By Advocate : Shri S. N. Sharma) Versus The Chairman Delhi Transport Corporation I.P. Estate, New Delhi. . Respondent. (By Advocate : Ms. Arati Mahajan) : O R D E R :
Through the present OA, the Applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, with following prayers:-
(i) Direct the respondent to pay the interest on arrears of pension released from 01.05.93 to July 2009 at the same rate of interest as the DTC is being charged on Provident Fund.
(ii) Direct the respondent to charge the interest on the PF share from the employee upto April 1993 and refund the excess interest as the department has charged on the Management share of provident fund i.e. on Rs.6409/-.
(iii) Any other relief or relieves as deemed fit in the facts and circumstances of the case may also be awarded by passing appropriate order (s) in the interest of justice.
2. Factual matrix of the case as would be relevant to adjudicate the above prayers would reveal from the application that the Applicant was sent for Conductor training on 23.05.1979 and was appointed as retainer crew on 4.12.1980 (Annexure-R1 and R2) and was brought on monthly rate w.e.f. 5.06.1981. He was dismissed from service due to his participation in an illegal strike in 1988 and was taken back with 50% back wages in 1989. At the time of his dismissal in 1988 he was released employers share of PF but on his return to service he did not refund the same to DTC. In 1992, DTC introduced the Pension Scheme w.e.f. 27.11.1992 (Annexure-A2). The Applicant opted for the pension scheme. In 1993, DTC introduced Voluntary Retirement Scheme (VRS) and the Applicant opted for the same which was granted to him w.e.f. 30.04.1993. At the time of retirement he did not refund the CPF amount to which he was not entitled under the Pension Scheme. It is stated by the Respondents that the DTC share of CPF was `6409.60 and interest thereon from 28.07.1989 to 31.12.2008 at different rate of interest (12% from 28.07.1989 to 30.06.2000; 11% 01.07.2000 to 31.03.2001, 9.5% from 1.4.2001 to 31.3.2005 and 8.5% from 1.4.2005 to 31.12.2008) was worked out at Annexure-R6 as `40413.46 totallying `46,883.06. Ultimately, the Applicants problems to get pension and the arrears of pension were sorted out by the Respondents by recalculating his qualifying service and found that his qualifying service was 10 years, 5 months and 6 days. Thus, as per the DTC Rues, he was entitled for his pension as he was one of the pension optees of DTC. However, while sanctioning and releasing the arrears of pension they took note of the Applicants reply dated 23.12.2008 that the Employers Share with up to date interest should be deducted from the arrears of his pension vide his letter dated 23.12.2008 (Anneuxre-R5). After accepting his request to adjust the Employers contribution in the PF along with interest the said amount of `48896.77/- was deducted from the pension and an amount of `315899.23 was released as arrears of pension to the Applicant in July, 2009. The present controversy is that as the Applicant took voluntary retirement in 1993 and was paid the arrears of pension in July, 2009, his claim is that for the belated release of arrears of pension, the DTC should pay him the interest on the same. He is also praying to direct the Respondents to refund him the amount of interest on the principal amount of `6409 i.e. the difference amount of interest that was charged between April, 1993 and date of the adjustment.(July 2009)
3. Shri S. N. Sharma, learned Counsel for the Applicant, would contend that the Applicant was entitled to the pension as per the Pension Scheme right from the date of his voluntary retirement w.e.f. 30.04.1993 but the Respondents for one reason or the other delayed the sanction of the Applicants pension right up to 2009 and only in July, 2009 not only he was sanctioned the pension but the arrears of pension was paid. He further submits that as the Applicant retired on 30.4.1993, the interest on the Employers share to the PF charged by the Respondents from April, 1993 to the date of adjustment (31.12.2008) should be paid back to him. Shri Sharma has placed his reliance on the judgment of the Honble High Court in the case of Delhi Transport Corporation Versus Shri K. C. Anand LPA 1336/2007 and CM Nos.16017/2007 and 16018/2007 decided on 29.01.2008.
4. Per contra, Ms. Arati Mahajan, learned counsel for the Respondents opposing the contentions raised by the Applicant submits that the delay in sanction of the pension was not on the account of the Employer-DTC but on the account of the Applicant, as the Applicant did not refund the Employers contribution to the PF along with interest paid to him during the strike period in 1988. Further, the Applicant having qualifying service of 10 years, his service period was calculated again and again and ultimately arrived that he had more than 10 years of qualifying service and accordingly the pension was sanctioned and very promptly the same was paid in July, 2009. After deducting the Employers contribution to the PF amounting to `6409.60 and interest thereon amounting to `40473.46, from the Applicants pension arrears as the employer paid him the Employers share of PF as far back as in 1988. Therefore, she submits that the OA having no merits should be dismissed. She has placed her reliance on the judgment of Honble High Court of Delhi in the case of Delhi Transport Corporation Versus Shri Baijnath Bhargava & Others (LPA 33/98 decided on March, 16, 2000).
5. Having heard the rival contentions, I perused the pleadings as well.
6. The controversy is in very narrow compass. Those are; (i) whether the Applicant is entitled to the interest on the belated payment of pension and (ii) whether the Applicant is entitled to refund of amount of differential amount of interest from 30th April, 1993 to 31.12.2008 deducted from the arrears of his pension?
7. On a very close scrutiny of the facts, admittedly the Applicant was having required number of years of service (10 years) as on 30.04.1993 when the Applicant took the voluntary retirement. It is the responsibility of the Respondent DTC to calculate his service and sanction within a reasonable period of 3 months from that date. On the other hand, the Applicant has to approach for nearly more than 15 years regularly to the Respondents office to ensure that his entitled pension is sanctioned. By no stretch of imagination the delay in sanctioning the pension could be attributed to the Applicant. Thus, I come to the considered conclusion that the delay has been caused by DTC in sanctioning pension to the Applicant in July, 2009. He should have been sanctioned his pension within 3 months of his voluntary retirement (VRS was taken on 30th April, 1993 and the 3 months period would be up to 31.07.1993). The delay has started occurring right from 1.08.1993. It is trite law that if the employee is not responsible for the delay in sanction of the retiral benefits, more specifically, the pension, the same shall be paid by the concerned employer along with interest to the employee. Such is the case in the present OA. DTC is responsible for delay in pension sanction to the Applicant. Hence, interest on pension arrears is admissible. In this context, I refer to a Division Bench judgment of the Punjab & Haryana High Court in A.K. Kapoor HSE-1 (Retd.) v State of Haryana & Others [1991 (6) SLR 583]. While dealing with entitlement to interest of an employee whose post-retiral dues had been withheld, the Division Bench held that writ only for interest is maintainable. The pertinent observations made by the Division Bench read, thus :
21.The petitioners had a legal right to the payment of retiral benefits and there was a corresponding legal duty imposed upon the respondents to deal with the matter in accordance with the Rules and the binding decisions of the highest Court. The respondents have thrown the policy and the statutory Rules to the wind. The object of providing pensionary benefits was obviously to enable the large body of Government pensioners not only to keep their body and soul together by warding off he pangs of deprivation towards the fall of their life but also to enable them to maintain a reasonable standard of living for themselves and their dependent. On the other hand, however, the casual way and manner their cases have been dealt with, in our view amounts to insult to human dignity. For their rightful dues they have been running from pillar to post and if this system of lethargy is permitted to continue, we are sure that the system itself shall be reduced to mockery.
8. The observations made above with regard to post-retiral dues would, in my view, equally apply to the admitted right of the Applicant in the present case to get interest on the admissible pension arrears. The decision of the Division Bench in A.K. Kapoor (supra) was affirmed by a Full Bench of the same High Court in A.S. Randhava v State of Punjab & Others [1997 (4) SLR 617]. The relevant observations made by the Full Bench read as follows :-
10. The question that now arises for our consideration is whether a retiree can approach this court under Article 226 of the Constitution to claim interest only on the delayed payment of pension and other retiral benefits. As observed earlier, there is a duty cast on the State to disburse pension and retiral benefits immediately when they become due and it is the non-performance of this statutory duty which gives rise to the retiree to claim compensation by way of interest. This right to claim interest partakes the nature and character of the retiral benefits and is indeed a concomitant of the right to claim pension and retiral benefits and cannot be separated therefrom. This being so, a claim for interest by a pensioner cannot be equated with a claim for money simpliciter or any interest thereon arising out of contractual obligations.
9. Guided by the judgments of the Honble Supreme Court in Nalini Kant Sinha versus State of Bihar & Others [1993 Supp (4) SCC 748], Punjab State Electricity Board & Others versus Kuldip Singh [(2005) 13 SCC 372], Gammon India Limited versus Niranjan Das [(1984) 1 SCC 509], E. Parmasivan & Others versus Union of India & Others [(2003) 12 SCC 270], and Government of West Bengal versus Tarun K. Roy & Others [(2004) 1 SCC 347, I hold the view that the present Applicant would be entitled to the interest on the basis of the facts and circumstances of the case. Insofar as, delay in payment of pension is concerned, I find absolutely, no jurisdiction on the part of the Respondents to delay in calculation of his qualifying service to withhold the same for more than 15 years. Therefore, in the present case I hold that the Applicant would be entitled to interest on the arrears of pension. The question is what rate of interest would be admissible? In the present context, 9% simple rate of interest per annum will be admissible. I, therefore, hold the view that the interest on the arrears of pension (`315899.23), the Applicant would be entitled to interest at the rate of 9% per annum, from 01.08.1993 to 30.06.2009 (the actual date of payment of pension arrears). Thus, I fix the simple rate of interest of 9% per annum on the pension arrears amounting to `3,15,899.23 to be paid by the Respondents to the Applicant for the period 1.08.1993 to 30.06.2009.
10. Coming to the second issue that the interest deducted by the Respondents from the arrears of pension for non refund of the Employers share along with interest, I find that as the delay in sanction of pension was mainly due to the Respondent not arriving at the correct period of qualifying service put in by the Applicant, he would be entitled to refund of the interest calculated on the Employers share from 1.08.1993 up to 31.12.2008 and adjusted from the arrears of pension. It is seen from the reply affidavit that `3327.74 (`521.26+`831.70+`931.50+`1043.28) have been assessed as interest on the principal amount of Employers share of CPF for the period 28.07.1989 to 31.3.1993 which the Respondent DTC is legally entitled to adjust from the Applicants pension arrears. Balance amount of `37145.72 has to be refunded to the Applicant. Hence, Respondent DTC is accordingly directed to refund `37145.72 (`40473.46-`3327.74).
11. In view of the above conclusions and taking into account the full facts and circumstances of the case, I direct the Respondent-DTC (1) to pay the admissible interest on arrears of pension as stated in Paragraph 9 within, and (2) to refund `37145.72 as the interest on employers share of PF (`521.26+`831.70+`931.50+`1043.28) illegally deducted from his arrears of pension, within a period of 9 weeks from the date of receipt of a certified copy of this order.
12. It is noted that the Applicant has suffered the mental agony and the distress in presenting his case before the DTC for more than 15 years. I, therefore, allow the cost of litigation to the Applicant which is fixed at `5000/- to be paid by the Respondent-DTC to the Applicant.
13. In terms of the above directions, the Original Application is allowed. No costs.
(Dr. Ramesh Chandra Panda) Member (A) /pj/