Central Administrative Tribunal - Delhi
Neera Rani Jain vs New Delhi Municipal Council on 15 December, 2023
1
OA 36/2021
C-4/item-67
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A./36/2021
Order reserved on :17.10.2023
Order pronounced on: 15.12.2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
Km. Neera Rani Jain
D/o Late Shri R.C. Jain (Aged about 61 years,
Senior Citizen)
Ex. P.A., NDMC, Group 'C'
(since retired on superannuation)
Emp. Code No.197485,
NDMC, Elect. Deptt.,
Residential Address:
40 F (First Floor), Parasvnath Estate,
Greater NOIDA, Gautam Budh Nagar,
PIN Code 201301 ...Applicants
(Through Mr. S.K. Bhasin, Advocate)
Versus
New Delhi Municipal Council, through
1. Chairman,
New Delhi Municipal Council
3rd Floor, Palika Kendra, Sansad Marg,
New Delhi-110001
2. Secretary,
New Delhi Municipal Council
3rd Floor, Palika Kendra, Sansad Marg,
New Delhi-110001 ...Respondents
(Through Ms. Sriparna Chatterjee, Advocate)
2
OA 36/2021
C-4/item-67
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) The present OA has been filed by the applicant seeking the following reliefs:
"(i) Call for the relevant file(s)/record(s) of the Respondents and peruse the same.
(ii) Respondent be directed after completing the service record of the Applicant, to immediately release the retiral/terminal benefits of the Applicant comprising of D.C.R.G. (Gratuity), Leave Encashment, Commutation of Pension alongwith an interest of 15% (fifteen percent) per annum till these are actually paid to her.
(iii) Award costs of the proceedings to Applicant; and
(iv) Grant such other and further reliefs as deemed fit and proper in the facts and circumstances of the case."
2. The brief facts of the case is that the applicant was appointed as Stenographer with the respondents on 8.10.1982. Subsequently, she was working as Personal Assistant in Maintenance Division (South), Electric Department, NDMC, Kidwai Nagar West, New Delhi. She retired on superannuation on 30.11.2019. Though she retired with effect from 30.11.2019, at the time of filing the OA after lapse of more than a year and one month, the applicant had not received any retirement benefits. Even, 3 OA 36/2021 C-4/item-67 she was not granted provisional pension on the date of her retirement on superannuation.
3. The applicant claims that before her retirement on superannuation, departmental proceedings under rule 14 of CCS (CCA) Rules, 1965 were initiated against her as per memorandum dated 1.02.2019. The basic charge against the applicant was:
"1. In the family dispute for which FIR was lodged against the Applicant under Sections 23/26 of the Juvenile Justice Act and Sections 342/370/374 of IPC, she has failed to intimate the Respondent that a personal bond for a sum of Rs.25000/- with one surety of like amount has been furnished by her, before the Court of Hon'ble Metropolitan Magistrate, Patiala House Court, New Delhi.
The above case is at the preliminary stage of criminal trial and no evidence on behalf of the prosecution have started.
2. Km. Neera Rani Jain has failed to inform NDMC about FIR No.417/14 filed under Sections 186/353/332/34 IPC and U/S 3 of Prevention of Damage to Public Property, 1984 and pending before the Court of Hon'ble Metropolitan Magistrate, Patiala House Court, New Delhi."
4. The Chairperson, NDMC vide his order dated 21.07.2020 imposed the following penalty on the applicant:
"5.I have gone though the IO's report, evidence on record and submission made by the CO and find that the CO has failed to inform the office about the FIRs lodged against her and also failed to inform that she has got bail on 03.08.2016 in respect of FIR No.190/15 which amounts to grave misconduct on her part and warrants stiff action. Therefore, in exercise of powers in terms of Regulation 5 of New Delhi Municipal Council (Condition of Service of Municipal Officer) Regulations 2016, I am of the considered opinion that ends of justices would be met it penalty of "Cut in pension by 20% per month for a period of three years" is imposed upon Km. Neera Rani Jain, Personal Assistant (Retired)."4 OA 36/2021
C-4/item-67
5. The applicant filed an appeal dated 15.09.2020 before the Chairperson, NDMC under regulation against the said punishment order. Subsequently, the applicant submitted representations to the Chairperson, NDMC dated 29.05.2020, 31.07.2020, 17.08.2020 and 11.10.2020 followed by emails on 18.10.2020 and 27.11.2020 seeking to settle her pensionary benefits without any further delay. Even the applicant uploaded her grievance on the website of Public Grievance Monitoring System of Govt. of NCT of Delhi on 18.10.2020 and 26.11.2020. The applicant did not get any satisfactory reply in response to her representations through various forums. Being aggrieved, she has filed the present OA seeking the aforementioned reliefs.
6. Notices were issued to the respondents. In response thereto, they have filed their counter affidavit and thereafter the applicant has filed her rejoinder.
7. The learned counsel for the applicant has tendered the following arguments in favour of the reliefs sought by the applicant.
7.1 During the pendency of the present OA, the respondents have taken the following steps in respect of retirement benefits of the present applicant. To be specific, para 7, 9, 10 and 11 of the counter affidavit filed by the respondents are reproduced below:
5OA 36/2021
C-4/item-67 "7. That final settlement of GPF No. 5135, amounting to Rs.
13,45,534/- (Thirteen Lakh Forty Five Thousand Five Hundred Thirty Four Only) was released-vide Vr. No. 59/8PF dated 28.11.2019 in respect of Ms. Neera Rani Jain. True copy of computation of final statement of GPF dated 28.11.2019 is annexed herewith and marked as ANNEXURE R/4.
xxxx xxxx xxxx xxxx
9. That the Secretary, NDMC vide noting dated 03.12.2019. had granted approval that she may be granted provisional pension on her present Basic Pay of Rs 27820 + 5000 (Grade Pay) till final outcome in Vigilance Case GPF payment may be released. However, the amount of Leave Encashment was withheld in full as 'absent period' w.e.f. 2001 to 2018 in different spells were not regularized. The amount of Gratuity was also withheld.
10. That in compliance of the Order dated 27.01.2021, the respondent as per Note of A.O. (CBS) dated 25.02.2021 computed the total leave encashment amount which is Rs.2,08.384/- The total recoverable amount of (pay fixation & TA) from the applicant is Rs 8.30.979/-, in terms of the same an amount of Rs.2,08,384/- has been recovered from leave encashment. Pursuant to this, the balance recoverable amount is Rs. 6,22,595/-
11. That vigilance status report has been obtained vide No. Vig. NOC205688 dated 26.02.2021 in respect of Ms. Neera Rani Jain, PA wherein Vigilance Clearance not accorded to her, in view of the FIR pending against her under Section 342, 370, 374 and Section 23/26 of JJ Act and matter is under trial. True Copy of the Vigilance Status Report dated 26.02 2021 is annexed as ANNEXURE R/5."
7.2 From the above, it is clear that the retirement dues of the present applicant have not been completely decided by the respondents nor given to the applicant. It has been mentioned that an amount of Rs.8,30,979/- is recoverable from the applicant because of wrong fixation of pay. Similarly, because of pendency of the criminal case, no vigilance clearance has been given to the applicant for release of retirement benefits.
6OA 36/2021 C-4/item-67 7.3 Learned counsel for the applicant refers to the rejoinder filed by the applicant in response to counter affidavit filed by the respondents. He avers that refixation of pay of the applicant vide order dated 1.04.2019 is illegal and arbitrary and recovery which has been ordered on the basis of refixation of pay, should not have been issued in view of the judgment of the Hon'ble Apex Court in State of Punjab and ors. Vs. Rafiq Masih (White Washer) etc., Civil Appeal No. 11527/2014 decided on 18.12.2014. According to the said judgment, it is impermissible in law to make recovery from a retired employee or employees who are due to retire within one year for any wrong fixation of pay or anything which has been mistakenly granted to an employee. In view of this, the learned counsel for the applicant states that the recovery shown as Rs.8,30,979/- is not correct. As regards withholding of gratuity, learned counsel for the applicant cites the judgment of Deokinandan Prasad Vs. The State of Bihar and others, (1971) 2 SCC 330 vide which a Constitution Bench of the Hon'ble Apex Court held that the right to get pension is a right to private property and by withholding the same, petitioner's fundamental right is violated. Para 33 of the said judgment reads as follows:
"33. Having due regard to the above decision, we are of the opinion that the right of the petitioner to receive pension is property under Article 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19 (1) (f) and it is not saved by Sub-article (5) of Article 19. Therefore, it 7 OA 36/2021 C-4/item-67 follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19 (1) (f) and 31 (1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law. However, vide Forty-Fourth Constitutional Amendment Act, 1978, Clause (f) of Article 19 (1) and Article 31 (1) being deleted and the validity of the same having been approved, it is no longer a Fundamental Right, yet it is a Constitutional Right in view of insertion of Article 300A in the Constitution under Chapter-IV (Right to Property) whereby no person can be deprived of his property save by authority of law."
He further cites the judgment of the Hon'ble Apex Court in D.S. Nakara and others Vs. Union of India, (1983) 1 SCC
305. Paragraph 20 of the said judgment states as follows:
"20. The antiquated notion of pension being a bounty a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules, that this view was reaffirmed in State of Punjab v. Iqbal Singh (1976) IILLJ 377 SC."
The Hon'ble Apex Court in State of Jharkhand and ors. Vs. Jitendra Kumar Srivastava and anr., Civil Appeal No.6770/2013 has reiterated the judgments in Deokinandan Prasad (supra) and D.S. Nakara (supra) case. 8 OA 36/2021 C-4/item-67 7.4 In view of the judgments by the Apex Court, learned counsel for the applicant states that it is settled law that right to receive pension is recognized as a right to property and the respondents cannot deprive of the applicant to get his pensionary benefits without following due procedure of law. In the instant case, they have not followed any due procedure while withholding gratuity as well as leave encashment of the applicant. Similarly, they have not finalized the pension of the applicant though they have taken a decision to grant provisional pension. 7.5 As regards the claim of interest for delayed payment of gratuity and other retirement benefits, learned counsel for the applicant refers to rule 68 of CCS (Pension) Rules, 1972 which provides for payment of interest on delayed payment of gratuity if delay is attributable to administrative reasons and not due to the fault of government servant. In the instant case, the respondents themselves have withheld payment of gratuity wrongly. He cites the judgment of the Hon'ble Apex Court in S.K. Dua Vs. State of Haryana and another, (2008) 3 SCC 44. The relevant portion of the judgment reads as follows:
"11- 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 9 OA 36/2021 C-4/item-67 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 that retiral benefits are not in the nature of "bounty' is, in our opinion, well founded and needs no authority in support thereof."
7.6 In view of the above, learned counsel for the applicant avers that the OA should be allowed and respondents should be directed to pay gratuity, finalize pension, release leave encashment in full and waive of the recovery of Rs.8,30,979/- because of refixation of his pay/ commutation of pension and pay interest on delayed payment of retirement benefits.
8. Per contra, learned counsel for the respondents avers that rule 3 (1) (o) of the CCS (Pension) Rules, 1972 makes it clear that the term 'pension' is defined to include gratuity and rule 69 (1) (c) of the CCS Pension Rules 1972 provides that no gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings. In the instant case, FIR No.190/15 under Sections 23/26 of the Juvenile Justice Act and under Sections 342/370/374 of IPC has been filed against the present applicant. The criminal proceedings are pending before the Metropolitan Magistrate, Patiala House. In view of the pendency of the judicial proceedings, the pension and 10 OA 36/2021 C-4/item-67 gratuity cases of the applicant could not be finalized. Moreover, the vigilance wing of the respondents has not given vigilance clearance. Accordingly, the respondents are within their right to deny gratuity to the present applicant. As per refixation of pay of the applicant, she was paid excessively an amount of Rs. 8,30,979/- which needs to be recovered from the applicant. Her leave encashment amount is only Rs.2,08,384/-. All these things need to be settled after the vigilance clearance and the applicant needs to pay Rs.6,22,595/- to the respondents as excess amount received towards pay and salary.
9. I have heard the arguments by both the counsels and perused the record.
9.1 In the matter regarding payment of pension and other pensionary benefits, there are two contrasting rights which need to be balanced. The right of individual retired employee to have a decent livelihood and dignity of life. This has been ensured by the Constitution of India through directive principles, particularly Articles 38, 39, 39A, 43 and 46 contained in part 4 of the Constitution, which deal with directive principles of the State Policy. These Articles of the Constitution of India contain a mandate to the State requiring to assure a social order providing justice by minimizing monetary distress as well as by securing right to 11 OA 36/2021 C-4/item-67 adequate means of livelihood and providing adequate resources to ensure an appropriate standard of life by each citizen including the weaker sections of the society. The right to decent livelihood for the retired employees is ensured through providing pension. If the retired employee does not have other resources for his livelihood, depriving his pension will amount to depriving him right to adequate means of livelihood and dignity of life. It has been rightly held by the Hon'ble Apex Court in several cases that pension is not a bounty to be gifted by the State to its employees. Pension and earned leave are like private property and hence the right to such pension including gratuity and leave encashment has been equated with the right to private property by the Apex Court in a catena of judgments. Particularly, the Apex Court is of the view that the State cannot dispossess an employee of his right to enjoy the benefit of pension and leave encashment without following the provisions as per any Statute and also without following the principles of natural justice while depriving the individual of such right as per any statutory provision. 9.2 This right has been recognized by the Union of India while framing the CCS (Pension) Rules, 1972 and CCS (CCA) Rules, 1965. While an employee is suspended from service, he is also entitled to subsistence allowance which is minimum 50% of the gross emoluments at the time of 12 OA 36/2021 C-4/item-67 suspension, which may be enhanced to a maximum of 75% of the gross emoluments. Secondly, rule 9 (5) of CCS (Pension) Rules, 1972 states that when the President decides to recover a pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of the government servant. However, the statutory provision under rule 9 of the aforesaid Rules has given the right to the President to withhold partly or fully pension which includes gratuity in full or in part whether permanently or for a specified period when the government servant has been found guilty of grave misconduct or negligence for the period of service in departmental or judicial proceedings. 9.3 The right of the President to withhold or recover from pension is to ensure discipline in the workforce employed by the government. For that specific reason, the right to institute departmental or judicial proceedings has also been incorporated in rule 9 2 (b) within four years from the date of retirement. Similarly, rule 8 authorizes the employer, particularly the appointing authority, by order in writing, to withhold or withdraw pension or part thereof if the pensioner is convicted of a serious crime or found guilty of grave misconduct. However, the grave misconduct has been defined under rule 5 (b) and in no other cases such pension can be withheld or part or full of it can be recovered. Hence, 13 OA 36/2021 C-4/item-67 rule 8 states that payment of pension is subject to future good conduct. Rule 9 (1) empowers the President to do so. Rule 9 (2) (b) empowers the President to chargesheet an employee or initiate departmental proceedings within a period of four years from the date of retirement. 9.4 In the instant case, there was a criminal proceeding pending against the applicant. These criminal proceedings related to a dispute between the applicant and his family members. This has no nexus with her role as an employee of the respondents during the period of his service with the respondents. Rule 69 of CCS (Pension) Rules, 1972 states that provisional pension can be paid where departmental/judicial proceedings are pending. Particularly, Rule 9 (4) states as follows:
"9.(4) In the case of Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional pension as provided in Rule 69 shall be sanctioned."
9.5 This has reference to rule 69 where the manner of granting provisional pension has been mentioned, particularly Rule 69 (b) states as follows:
"69.(b) The provisional pension shall be authorized by the Accounts Officer during the period commencing from the date of retirement up to and including the date on which, after the conclusion of departmental or judicial proceedings, final orders are passed by the Competent Authority."14 OA 36/2021
C-4/item-67 9.6 However, plain reading of the provisions of Rule 9 (1) states that the President has the power to withhold payment of pension and gratuity and granting provisional pension when judicial or departmental proceedings are pending. In the instant case, the applicant has been given provisional pension as per rule 9 (4) read with rule 69 (b). However, there is no order regarding payment of gratuity. Whether the President has withheld payment of gratuity and decision regarding final pension, requires a proper speaking order as per these statutory provisions.
9.7 In the instant case, the respondents have sanctioned provisional pension but there is no proper order regarding withholding payment of final pension and gratuity as well as commuted pension.
10. In the instant case, the applicant has challenged order dated 28.07.2020 vide which the Chairperson, NDMC has imposed the penalty of "cut in pension by 20% per month for a period of three years". But there is no order as such regarding withholding pension thereafter. It has also been admitted that proceedings in respect of challenge to the said order are still pending in the appropriate judicial forum. However, the present applicant is entitled for payment of final pension and gratuity along with commuted value of pension. Similarly, rule 39 (3) of the CCS (Leave) Rules 15 OA 36/2021 C-4/item-67 states that unless there is any departmental or criminal proceeding pending which involves the likelihood of recovery of any pecuniary loss to the government, the leave encashment cannot be withheld. In the instant case, there is no such imputation in the criminal proceeding which are pending against the applicant which would say that there will be any pecuniary loss to the government which could be recovered from the applicant at the conclusion of the criminal proceedings. In view of this, the applicant is also entitled for payment of leave encashment.
11. I agree with the contention of the learned counsel for the applicant that the recovery of Rs.8,30,979/- which has been shown because of wrong pay fixation and TA is impermissible in law in view of the judgment of the Hon'ble Apex Court in Rafiq Masih (supra). Accordingly, the respondents are liable to pay the leave encashment to the applicant forthwith and no recovery regarding wrong fixation of pay should be affected.
12. In view of the above, the following orders are passed:
(i) The respondents are directed to pay gratuity to the applicant.
(ii) The respondents are further directed to release leave encashment to the applicant.16 OA 36/2021
C-4/item-67
(iii) There will be no recovery of amount in respect of wrong fixation of pay/TA in the light of the judgment of the Hon'ble Apex Court in Rafiq Masih (supra). The respondents are also directed to finalize the commutation of pay. They are directed to pay interest to the applicant at applicable GPF rates for delayed payment of aforementioned retirement benefits to the applicant.
13. This exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order. No order as to costs.
14. All pending MAs are disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /dkm/