Central Administrative Tribunal - Ernakulam
C.Govindan vs Union Of India Represented By The on 6 November, 2015
o;? CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION No.116/2008
FRIDAY, this the 6th day of November, 2015
CORAM :
HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER
C.Govindan, aged 65 years, s/o K.Chathinan
[Retd. Regional Officer, Directorate of Field Publicity
(Ministry of Information & Broadcasting) Kerala Region,
Trivandrum] Residing at TC No. 79/152(6),
Karikkakom, Beach P.O., Trivandrum -7. ..... Applicant
(Advocate Mr.T.C.Govindaswamy)
versus
1 Union of India represented by the
Secretary to the Government of India,
Ministry of Information & Broadcasting,
New Delhi.
2 The Director, Directorate of Field Publicity,
Ministry of Information & Broadcasting,
R.K.Puram, New Delhi
3 The Pay & Accounts Officer,
Pay & Accounts Officer (IRLA)
Ministry of Information & Broadcasting,
AGCR Building, New Delhi.
4 The Joint Director, Directorate of Field Publicity,
Regional Office, Government of India,
Ministry of Information & Broadcasting,
Trivandrum. . . . . Respondents
[By Mr. N.Anil Kumar, Sr.PCGC(R )]
This Original Application having been heard on 07.10.2015, this Tribunal on
06-11-2015 delivered the following:
ORDER
Per HON'BLE MR.U.SARATHCHANDRAN, JUDICIAL MEMBER Applicant was working as a Regional Officer (Group A Sr. Grade) of the Directorate of Field Publicity, Kerala Region, Trivandrum under Respondent No.1. He joined service under the Respondents on 30.11.1970 from the State Service. He was transferred to Press Information Bureau at New Delhi as Press Information Officer and was relieved on 09.07.1990. He was sanctioned earned leave for 116 days from 10.7.1990 to 02.11.1990 suffixing the holidays on 3rd and 4th November, 1990. According to him he had then entered into a series of correspondence with the official respondents against the order of transfer. In the meantime respondents initiated disciplinary proceedings which culminated in the Presidential order dt 19.06.1998 imposing a penalty of compulsory retirement. The order of compulsory retirement was challenged before this Tribunal in OA No. 1077/98. That OA was dismissed by this Tribunal on 21.1.2000 vide A/1 order. Thereafter respondents prepared his pension papers and issued Annexure A/2 communication intimating the grant of pension of Rs.4009/-. Pension as per Annexure A/2 was sanctioned based on the emoluments drawn during the last 10 months as follows:
From 8/90 to 3/91 Rs. 3625/-
From 4/91 to 5/91 Rs. 3750/-
Average emoluments for the purpose of pension was fixed as Rs. 3650/-.
2. Applicant contends that the pension so calculated was based on the pre-revised 4th CPC scale of Rs. 3000-4000. The respondents have not indicated the qualifying service of the applicant also. Since he was ordered for compulsory retirement on 19.6.98, applicant requested respondents for payment of pension and terminal benefits based on pension rules as amended after 01.01.96 in implementation of the recommendation of the 5th CPC. He had sent representations to the respondents copies of which are Annexure nos. A/3, A/4, A/6 & A/7. However, applicant's pension was revised by Annexure A/8 communication dt 8.4.2003 reducing it from Rs.4009 to Rs. 3827/- with effect from 20.06.98. The applicant again sent representation against reduction of pension in Annexure A/8. In the present OA he seeking the following reliefs:
(i) Call for the records leading t the issue of Annexure A8 and quash the same to the extent it fixes the applicant's pension and other retirement benefits as if the applicant had retired from service on a date prior to 1.1.1996;
(ii) Declare that the respondents are bound to recalculate the applicant's pension and other retirement benefits by applying the Pension Rules as on the date of his retirement i.e. 19.6.1998;
(iii) Direct the respondents to recalculate, revise and grant the applicant's pension and other retirement benefits by applying the Pension Rules and also pay, scales of pay etc. as applicable on the date of the applicant's retirement i.e., on 19.6.1998 and direct further to grant all the consequential benefits thereon with arrears calculated for the period from 20.6.1998;
(iv) Direct the respondents to grant interest at the rate of 12% per annum on the arrears of pension and retirement gratuity calculated from such date as this Hon'ble Tribunal may found just and proper;
(v) Award costs of and incidental to this Application
(vi) Pass such other orders or directions as deemed just, fit and necessary in
the facts and circumstances of the case.
3. Applicant has filed MA No.194/2008 for condoning the delay in filing the OA. At the time when the matter was taken into consideration by this Tribunal respondents had not filed any reply statement to the OA. Nevertheless, based on the objection filed by them to the aforesaid miscellaneous application for condoning delay, this Tribunal disposed of the OA vide order dt 17.2.2009 with a direction to respondents to recalculate applicant's pension and retirement benefits by applying the pension rules as applicable on the date of retirement i.e. 19.6.98 and to grant all consequential benefits including arrears.
4. The order of this Tribunal was challenged by the respondents in WP(C) No. 18797/2010 before the Hon'ble High Court. The High Court in its judgment dt 15.1.15 remanded the case to this Tribunal stating:
'. . . . . . Unfortunately, though the establishment had filed counter affidavit to the miscellaneous application seeking condonation of delay in institution of the original application before the Tribunal, it did not file any reply to the original application. This may be one of the reasons why, in our view, the Tribunal had not adjudicated the matter on the real issues arising for decision. We say this because, the presidential order of compulsory retirement was available before this Court only after an earlier interlocutory direction. We see that the said order was confirmed in an earlier round of litigation by the Tribunal. The necessary consequence is that the effect of the direction in the presidential order that the respondent herein may be allowed full compensation pension/ gratuity has not been examined by the Tribunal, in accordance with the relevant statutory rules. When statutory rules directly govern a situation, it is not necessary for the parties to scout around on the basis of clarifications and other Government Orders, unless of course those clarifications are relevant to decide any particular fact situation. In the case in hand, we say so because, Rule 40 of the Central Civil Services (Pension) Rules, 1972 deals with compulsory retirement pension. Full compensation pension or gratuity is the maximum limit that can be granted as compulsory retirement pension. Compensation pension is governed by Rule 39, and when it comes to Rule 40, compulsory retirement pension is that which would be admissible to the employee on the date of his compulsory retirement. The nice distinction, if any, between what is admissible and the concept of last pay drawn, etc. may also have to be considered. We are of the view that pointed attention of the Tribunal ought to have been obtained by the parties by placing appropriate pleadings and the relevant rules.
In the aforesaid view of the matter, this case needs to be remitted for re- consideration by the Tribunal giving an opportunity to the establishment and the applicant to place appropriate further pleadings ad materials and we do so. The establishment will place their reply to the original application before the Tribunal within a period of 45 days from today. We are sure that the Tribunal will make an earnest effort to expedite final disposal of the original application, having particular regard to the fact that the applicant is stated to be now more than 70 years old. To pave way for that, the impugned order of the Tribunal is vacated without expressing anything finally on the merits of the claims of the applicant or the defence of the establishment, however that, the condonation of delay by the Tribunal is not re-opened. Parties are directed to mark appearance before the Ernakulam Bench of the Tribunal on 03.02.2015.' (Italics supplied)
5. It is seen from the records that after remand respondents have not filed any further reply statement, though MA/75/2010 was filed seeking extension of time. Nevertheless this Tribunal was not inclined to grant further time in view of the direction of the High Court in the aforesaid judgement that they should file a reply statement within 45 days from the date of that judgment (15.1.15).
6. In the original reply statement respondents contend that on the expiry of the leave granted to the applicant up to 4.11.1990 he neither reported for duty at New Delhi nor did he apply for any further leave. According to them, he remained absent unauthorised from 3.11.1990 till the date of his compulsory retirement from service. It is also contended by the respondents that the last salary of the applicant was disbursed by the PAO up to October1990 and that his pension was calculated on the average pay of 10 months he was drawing. Respondents further state that as per rules and regulations pension benefits are calculated as per the pay scales applicable at the time of retirement and therefore he cannot be granted pension based on the revised pay applicable from 1.10.96 based on the recommendations of the 5th CPC. His pension was fixed based on the pay and allowances of the 4th CPC. He is not entitled to the benefit of the 5 th CPC as he was on unauthorised absence from duty.
7. Heard Shri T.C.Govindaswamy, learned counsel for the applicant and Shri N.Anil Kumar, Senior PCGC (R ) for the respondents. It is not in dispute that applicant was imposed with a penalty of compulsory retirement. The pension for government servants compulsorily retired is dealt with in the CCS (Pension) Rules, 1972 (hereinafter it is referred as Pension Rules):
' 40. Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement.
(2) Whenever in the case of a Government servant the President passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these rules, the Union Public Service Commission shall be consulted before such order is passed.
EXPLANATION- In this sub-rule, the expression 'pension' includes gratuity. (3) A pension granted or awarded under sub-rule (1) or, as the case may be, under sub-rule (2), shall not be less than the amount of [ Rupees three hundred and seventy-five] Rupees three thousand five hundred from 1-1-2006.
8. A reading of Rule 40 quoted above makes it clear that the pension awardable to a person who has been compulsorily retired is dependent upon the quantum of pension, i.e whether such pension is full compensation pension admissible under the Rules or less than that ( but not less than two- third of the full compensation pension) as specified in the order imposing penalty. MA/1 is a copy of the presidential order dt 19.6.98 (produced along as along MA 96/15) whereby applicant has been imposed with a penalty of compulsory retirement. The relevant portion of the MA/1 presidential order dt 19.6.98 reads:
'. . . . AND WHEREAS the disciplinary authority i.e. President after careful consideration of the facts and circumstances of the case, relevant records and the advice rendered by the UPSC, has observed that in view of the fact that despite directions issued to Shri Govindan, he has not reported for duties so far and is absenting from his duties for more than seven years from the date of relinguishing his charge as Regional officer, DFP, Trivandrum i.e. on 9.7.90 till date, the penalty of 'Compulsory Retirement' seems to be appropriate.
NOW, THEREFORE, the President hereby orders that :-
(i) The penalty of 'Compulsory Retirement' be imposed on Shri C.Govindan.
(ii) Shri C.Govindan may be allowed full compensation pension/ gratuity.
(BY ORDER AND IN THE NAME OF THE PRESIDENT ) '. [bold fonts supplied]
9. It can be seen that in the Presidential order imposing penalty the applicant has been allowed full compensation pension / gratuity. Compensation pension is dealt with in Rule 39 of the Pension rules. It reads:
'39. Compensation pension (1) If a Government servant is selected for discharge owing to the abolition of his permanent post, he shall, unless he is appointed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option-
(a) of taking compensation pension to which he may be entitled for the service he had rendered , or
(b) of accepting another appointment on such pay as may be offered and continuing to count his previous service for pension.
(2) (a) Notice of at least three months shall be given to Government servant in permanent employment before his services are dispensed with on the abolition of his permanent post.
(b) Where notice of at least three months is not given and the Government servant has not been provided with other employment on the date on which his services are dispensed with, the authority competent to dispense with his services may sanction the payment of a sum not exceeding the pay and allowances for the period by which the notice actually given to him falls short of three months.
(c) No compensation pension shall be payable for the period in respect of which he receives pay and allowances in lieu8 of notice.
(3) In case a Government servant is granted pay and allowances for the period by which the notice given to him falls short of three months and he is re-employed before the expiry of the period for which he has received pay and allowances, he shall refund the pay and allowances so received for the period following his re-
employment.
(4) if a Government servant who is entitled to compensation pension accepts instead another appointment under the Government and subsequently becomes entitled to receive a pension of any class, the amount of such pension shall not be less than the compensation pension which he could have claim if he had not accepted the appointment.
It can be seen that compensation pension is a pension granted to the Government servant who is discharged owing to the abolition of his permanent post and that such pension is for the service he had rendered. In other words, compensation pension is the same type of pension which is applicable to a person who is granted retirement pension on superannuation. Retirement pension is calculated on the basis of the qualifying service rendered by the government servant, his emoluments and average emoluments. Chapter IV of the Pension Rules deals with the mode of calculating the emoluments and average emoluments. The amount of compensation pension is therefore calculated based on the qualifying service and average emoluments. [At present full pension is granted to a government servant who has rendered 20 years (earlier it was 33 years) and the amount of pension is calculated at 50% of the average emoluments. In the case of a government servant with less than 20 years, the amount of pension shall be proportionate to the pension admissible in the case of full pension.]
10. In the case of a government servant compulsorily retired, discretion is given to the authority competent to impose penalty to fix the quantum of pension either at the reduced rate or at the full rate of the compensation pension. In the instant case no such reduction has been ordered in the MA/1 order of punishment. It merely mentions that the applicant may be allowed full compensation pension/ gratuity. That means he is entitled to the normal retirement pension admissible to him on the date of his compulsory retirement.
11. Mr.T.C.Govindaswamy learned counsel for the applicant referring to the OM NO.F.45/86/97-P.&P.W.(A)-Part-I dated 27.10.1997 issued by Department of Pension & Pensioners' Welfare, Govt. of India submitted that the term 'pay' for the purpose of revised scales provided under the CCS (Revised Pay) Rules, 1997 is applicable to the applicant because at the time of his compulsory retirement CCS (Revised Pay) Rules1997 had come into force. Respondents on the other hand contend that at the time when the Revised Pay Rules, 1997 (which is a sequel to the5 th CPC recommendations) was brought into force from 1.1.1996, applicant was absent without authorisation and that the last pay drawn by him was prior to 4.11.1990. Nevertheless, Applicant contends that his pay should be reckoned as the pay applicable on 1.1.1996.
12. It has to be noted that applicant was compulsorily retired by way of penalty for the continuous unauthorised absence from 4-11-1990. Such absence from duty continued for more than 7 years. It is true that Presidential order of compulsory retirement was passed only on 19.6.98. However he cannot take advantage of the position that he is entitled to the rate of pay applicable as per the CCS (Revised Pay) Rules, 1997 because at time of commencement said rules he was absent from the duty. Since the applicant was punished in the disciplinary proceedings ensued for unauthorised absence, his last emolument for the purpose of calculating the average emoluments has to be based on the pay he had drawn when he last attended duty. Therefore this Tribunal is of the view that applicant's average emoluments can be reckoned based on the actual pay he had drawn while he was in service just prior to his unauthorised absence. This Tribunal has one more reason to take this view: During the period from 5.11.1990 to the date of his compulsory retirement (on 19.6.96) applicant had never worked in the establishment. Therefore the principle of 'no work no pay' comes into play. Hence a fortiori his pay for calculating average emoluments for fixing pension should be based on the 'average emoluments' he had drawn while he was in service. Therefore the claim made by the applicant in this OA is only to be dismissed. Accordingly, the OA is dismissed. Parties shall suffer their own costs.
(U.SARATHCHANDRAN) JUDICIAL MEMBER Jm.