Central Administrative Tribunal - Ernakulam
K.Sasisekharan Nair vs Union Of India Represented By The ... on 17 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/311/2015
Tuesday, this the 17th day of May, 2016
CORAM:
Hon'ble Mr. U.Sarathchandran, Judicial Member
K.Sasisekharan Nair
S/o.G Krishna Pillai, Retd. Senior Superintendent, RMS
TV Division, Trivandrum, residing at Krishna Vilas
Malayinkil P.O, Trivandrum - 695 571 ...... Applicant
(By Advocate - Mr.Shafik M.A)
Versus
1. Union of India represented by the Secretary
Department of Posts, Ministry of Communications
New Delhi - 110 011
2. The Chief Postmaster General
Kerala Circle, Trivandrum - 685 011 ...... Respondents
(By Advocate - Mr.K.Kesavankutty, ACGSC)
This Original Application having been heard on 6.4.2016, the Tribunal on
17.05.2016 delivered the following:
ORDER
By Hon'ble Mr.U.Sarathchandran, Judicial Member Applicant is a retired Senior Superintendent of the Indian Postal Service Group A, retired from the Trivandrum North Division, Kerala Circle. He retired on 29.2.2008. While he was working as Senior Superintendent of Post Offices, Trivandrum North Division in 2006-2007, he was the Senior Superintendent of Post Offices relating to the GPO Trivandrum. He was served with a charge sheet under Rule 14 of the CCS CCA Rules on 29.2.2008, one week prior to his retirement. It was converted in to a Rule 9 inquiry after his retirement. Even though the charges alleged were not proved in the inquiry proceedings, the disciplinary authority disagreed with the findings of the inquiring authority and imposed a major penalty of 20% cut of the pension as advised by the UPSC. Applicant challenged the order of punishment before this Tribunal in O.A 1028/2011. The said O.A was allowed quashing the punishment and the appellate orders. Respondent was directed to disburse full pension to the applicant vide Annexure A-2 order dated 22.5.2013 of this Tribunal, but declined the the prayer for interest on the arrears on the ground that the issue of charge sheet is not actuated by malafide. A contempt petition CP(C) No.111/2013 was filed before this Tribunal for non-implementation of Annexure A-2 order. Thereupon, respondents withdrew the charge sheet vide Annexure A-3 order. As this Tribunal has declined to grant interest on the retirement benefits, applicant challenged Annexure A-2 order before the High Court in OP (CAT) No.39/14 specifically on the issue of interest on delayed/reduced payment of pension and commuted value of pension. As the respondents filed the counter affidavit stating that applicant has not claimed interest and had agreed that if he submits a representation it will be examined, the High Court disposed of the OP (CAT) No.39/14 vide Annexure A-6 judgment dated 30.06.2014 directing the respondents to consider the claim as per law. Applicant submitted Annexure A-5 representation to the respondents which was disposed of by the respondents vide the impugned Annexure A-1 order granting interest on the delayed payment of DCRG alone stating that there is no Rule to pay interest on the delayed payment or reduced payment of pension as well as the commuted portion of the same. Due to the non-implementation of Annexure A-6 judgment of the Hon'ble High Court, the applicant approached the High Court with a Contempt Petition CCC No. 1215/2014 which was disposed of by the High Court granting liberty to the applicant to challenge Annexure A-1 order (herein). Accordingly, the applicant has approached this Tribunal seeking;
' (I) To call for the records relating to Annexure A-1 to A-7 and to quash A-1 order to the extent, it rejects the applicant's claim for interest on the reduced pension as well as the commutation of pension. (II) To declare that the applicant is entitled for interest on the reduced pension and commuted value of pension from the due date till the date of payment at the rate of 12% per annum.
(III) To direct the respondents to grant interest for the delayed payment the reduced pension and commuted value of pension from the due date till the date of payment at the rate of 12% per annum. '
2. Respondents filed a reply statement contending that since the High Court has directed to consider the representation of the applicant as per law, Annexure A-5 representation was considered and Annexure A-1 order was passed thereon as there is no rule for payment of interest on delayed payment of retire-mental pension and commutation of pension. Stating a chronology of events after the issuance of charge sheet, respondents further states that there was no willful delay on the part of the respondents in finalising the disciplinary proceedings.
3. A rejoinder, additional reply statement, additional rejoinder thereon and a second additional reply statement were filed by the parties reiterating the earlier contentions in a more argumentative manner.
4. Heard both sides and perused the record. Shri.M.A Shafik appeared for the applicant and Shri.K.Kesavankutty, ACGSC appeared for respondents.
5. The short question to be decided in this case is whether the applicant is entitled to get interest on the delayed payment of full pension and the commutation value thereof in the wake of Annexure A-3 order of this Tribunal ? It is not in dispute that the applicant was shackled with disciplinary proceedings just one week prior to his retirement. The charge memo was issued on 22.2.2008 i.e, just a week before the applicant's retirement. After the retirement, the disciplinary proceedings continued invoking Rule 9 CCS (pension) Rules 1972. Going by the contentions in the reply statement in this O.A, the disciplinary proceedings continued for nearly 3 more years and came to a close by the presidential order dated 10.8.2011 imposing the penalty of reduction of pension. The applicant filed O.A 1028/2011 before this Tribunal challenging the order imposing penalty. Nearly 2 years thereafter in 2013 this Tribunal allowed the Original Application quashing and setting aside the order imposing penalty. Though the applicant had prayed for awarding interest on the delayed payment of pension and pensionary benefits, the same was not allowed by the Tribunal as no malafide intention was attributed for initiating the disciplinary proceedings. However, when the aforesaid Annexure A-2 order was challenged in the High Court on the issue of interest, the High Court permitted the applicant to file a representation as the respondents expressed their willingness to consider such representation. Annexure A-5 representation submitted by the applicant has resulted in the impugned Annexure A-1 order whereby while granting interest at the rate of GPF deposits in respect of the with held DCRG, his request for interest on the pension and commuted portion of retirement benefits was rejected.
6. From the above factual matrix, it can be seen that when the charge sheet was withdrawn by Annexure A-3 order issued by the Government of India, the scenario acquired a different dimension, placing the applicant in the primordial state of blamelessness, not withstanding Annexure A-2 order of this Tribunal. The proceedings initiated by the applicant in the High Court has resulted in Annexure A-7 order enabling the applicant to challenge Annexure A-1 order in appropriate proceedings, obviating the ban of res judicata which otherwise would have been attributed to the present Original Application. Thus, the applicant is perfectly within his right to seek adjudication of the issue of interest on the reduced pension as well as the commuted value of pension from its due date till the date of payment.
7. The gravamen of the respondents' pleas in this case is that there is no express law for payment of interest. Referring to the provisions in the pension rules and the Government of India decisions made C/n CCS CCA (Pension) Rules, 1977 respondents contend that payment of interest is allowable only in respect of delayed payment of gratuity, not for the delayed payment of pension and pensionary benefits.
8. Shri.Shafik.M.A, learned counsel for applicant was drawing sustenance for his contention on the decision of the Hon'ble Supreme Court of India in S.K Dua v. State of Haryana and Another (2008) 3 SCC 44. In that case the Apex Court held :
'In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of statutory rules, administrative instructions or guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14,19 and 21 of the Constitution. The submission of the learned counsel for the appellant, the retiral benefits are not in the nature of 'bounty'is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.'
9. Learned ACGSC on the other hand relied on the specific mention in the aforequoted portion of the judgment of the Apex Court in S.K Dua that the applicant can claim payment of interest if there are statutory rules occupying the field.
10. Shri.M.A.Shafik was relying on the latter part of the aforequoted portion of the judgment i.e, the employee's vested right under part III of the Constitution of India under Articles 14, 19 and 21. He submitted that retiral benefits are not a bounty of the employer.
11. The Apex Court in a catena of decisions, starting from State of Kerala and Others v. M.Padmanabhan Nair (1985) 1 SCC 429, had been taking the view that it is the duty of the Government for prompt payment of pension, failing which the Government will be liable to pay penal interest to the pensioner. A recent decision of the Hon'ble Supreme Court of India in DD Tewari v. Uttar Haryana Bijli Vitran Nigam Limited and Others (2014) 8 SCC 894 also reiterated the same view. This view had been consistently repeated in other decisions many of which have been cited by the applicant in para F of the grounds stated in the O.A. As stated earlier, when the charge sheet was withdrawn by Annexure A-3 order, the applicant should be deemed to have been retired unblemished. Therefore his is entitled to pensionary benefits from the next day after his retirement as if he had retired with a clean slate. Though the disciplinary proceedings initiated by the respondents ended in a fiasco, it was the applicant who had to bear the burnt of the disciplinary proceedings which was continued even after his retirement, leaving him with a reduced quantum of pension and withholding of his gratuity. Commutation of pension also was adversely affected because of the intervening disciplinary proceedings. All these had undoubtedly caused a heavy blow on the post retiral life of the applicant both financially and reputation wise.
12. Right to life is a guaranteed right under Article 21 of Constitution of India. Deprivation of full retiral benefits including the full pension is certainly impinging on the source of livelihood of a retired personnel. If such disciplinary proceeding turns out to be an un-warranted or not in accordance with law, such retired person certainly deserves a compensation in the form of payment of interest on the delayed portion of his retiral dues whether it be pension or gratuity. Of course, Rule 68 of CCS (Pension) Rules provides for payment of interest only for the delayed payment of gratuity amount. A different treatment given to the pensionary benefits which is equally a monetary benefit for the sustenance of post retiral life of a pensioner is un-justifiable and is violative of the equality principles enshrined in Article 14 of the Constitution of India. Therefore, though the Apex Court has not articulated the applicability of Article 14, 19 and 21 of the Constitution of India in the matter of delayed pensionary benefits, the ever expanding horizons of Article 14, 19 and 21 certainly comes to the help of a retired person in the matter of unjustified delay occurred in payment of his full pension and other pensionary benefits including the commuted value of the pension. Hence, even in the absence of any express rules for payment of interest, as observed by the Apex Court, the retired employee can claim interest relying on the constitutional guarantees under Article 14, 19 and 21.
13. In the light of the above discussions, this Tribunal is of the view that the applicant is entitled to interest on the reduced pension and commuted value of pension from the due date till the date of payment, at the rate of the interest payable on the GPF deposits. Accordingly, Annexure A-1 order is quashed and set aside to the extent it rejects the applicant's claim for interest on reduced pension as well as commutation of pension. The respondents shall pay interest on the reduced pension and the commuted value of pension from the due date till the date of payment at the rate applicable to the GPF deposits. The respondents shall comply with this order within two months from the date of receipt of a copy of this order.
14. The Original Application is allowed to the extent as ordered above. No order as to costs.
( U. SARATHCHANDRAN) JUDICIAL MEMBER sv