Central Administrative Tribunal - Lucknow
Dr. Rai Umapat Ray vs The Union Of India Through Secretary on 21 April, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. Original Application No. 397 of 2016 Reserved on 5.4.2017 Pronounced on April, 2017 Honble Mr. Justice V.C. Gupta, Member-J Dr. Rai Umapat Ray, aged about 69 years, S/o late Rai Sabhapat Ray, R/o West Wing, 602, Golf Links Apartments, 18 Park Road, Lucknow. .Applicant By Advocate : Sri Asif Hasan Versus. 1. The Union of India through Secretary, Ministry of Home Affairs, Government of India, New Delhi. 2. The State of U.P. through Principal Secretary (Home), U.P. Government, Civil Secretariat, Lucknow. 3. The Principal Secretary (Home), U.P. Government, Civil Secretariat, Lucknow. 4. The Director General of Police, U.P., Lucknow. 5. The U.P. Police Awas Nigam through its Chairman-cum-Managing Director, Lucknow. .Respondents. By Advocate : Sri Sudeep Seth for R-2 to R-4. None for R-1 and R-5. O R D E R
By means of this O.A., the applicant-Dr. Rai Umapat Ray prayed for pay payment of interest @ 12% per annum on the delayed release of pensionary benefits w.e.f. the date the amount of commutation of pension and DCRG fell due till the date of actual payment and to compassionate the applicant, adequately, for harassment and agony underwent by the applicant for about 08 years.
2. The facts, giving rise to this Original Application, are that the applicant is IPS Officer of 1974 batch, has been retired from service on superannuation on 31.12.2007, but the respondents failed to release the applicants post retiral benefits within specified time. The applicant submitted a representation on 12.9.2008 for releasing all admissible dues. The respondent no.2-State of U.P. instead of releasing benefits withheld the dues on the pretext of vague and baseless charges, on the basis of which, an inquiry was initiated under Rule 6(1)(b) of All India (Death cum Retirement) Rules, 1958 ( For short 1958 Rules )against the applicant. After filing the reply by the applicant, the Inquiry officer concluded the inquiry by submitting its report on 27.8.2010 to the disciplinary authority. But almost after six months on submission of inquiry report, explanation was sought from the applicant in regard to inquiry report on 4.3.2011. The applicant submitted explanation on 1.4.2011. But in spite of submitting the explanation, no decision was taken by the respondents. The applicant also issued a notice dated 28.1.2015, but even then no response was given. Due to inaction on the part of respondents, the applicant approached this Tribunal by filing O.A. no. 103 of 2015 (Dr. Rai Umapat Ray Vs. Union of India & Others), which was disposed of at admission stage on 27.3.2015 by issuing directions to the respondents for making payment of admissible dues to the applicant within a period of three months. The operative portion of the order, as contained in para 4, is extracted here-in-below:-
Considering the submissions made by the learned counsel for the parties and also after perusal of the record, since the prayer sought by the applicant is innocuous, as such, I do not feel any hesitation in passing an order upon the respondents to pay the admissible dues if any to the applicant in accordance with law and rules within a period of three months from the date the certified copy of the order is produced. It is made clear that I have not expressed any opinion on the merits of the case.
3. The order was communicated by the applicant through application dated 29.4.2015 upon the respondent nos. 2 & 3. Thereafter, the inquiry proceedings were dropped against the applicant as is evident from the letter dated 16.7.2015 issued by the Principal Secretary Home, (Police Services) State of U.P. The relevant portion of the order, by which the proceedings were dropped, is extracted here-in-below:-
8& Mk0 jk; }kjk izLrqr izR;kosnu fnukad 29-04-15 esa mfYyf[kr rF;ksa] miyC/k vfHkys[kkas ,oa mudh lsokfuo`fRr ds n`fVxr rFkk ek0 izkklukf/kdj.k ds fu.kZ; fnukad 27-3-15 ds vuqikyu esa izdj.k esa iwoZ esa fofufpr n.M ij lE;d#i ls lgkuqHkwfriwoZd iqufoZpkj djrs gq, rF;ksa ,oa miyC/k vfHkys[kksa ds iquiZjh{k.k@vuqkhyu ls ik;k x;k gS fd Mk0 jk; dks iqfyl vkokl fuxe esa fu;qfDr;ksa ,oa izksUufr;ksa ds lEcU/k esa izfdz;k dk ikyu u fd;s tkus ,oa kkluknskksa @ fu;eksa dh vogsyuk fd;s tkus ds lEcU/k esa mUgsa ifjfuUnk (Censure) dk n.M fn;s tkus dk vkSfpR; curk gS] fdUrq mudh lsokfuo`fRr <fnukad 31-12-07= ds dkj.k bldk mu ij dksbZ izHkko ugha iMs+xkA vr,o] ek0 izkkukf/kdj.k ds vknsk fnukad 27-03-15 ds n`fVxr miyC/k vfHkys[kksa ,oa mDr of.kZr rF;ksa ij lE;d fopkjksijkUr iwoZ esa fofufpr n.M ij iqufoZpkj djrs gq, Mk0 jk; mekir jk;] vkbZih,l&vkjvkj&74 <lsokfuo`Rr= ds fo#} vf[ky Hkkjrh; lsok;sa <Mhlhvkjch= fu;ekoyh&1958 ds fu;e&6<1=<ch= ds vUrXkZr izpfyr izuxr foHkkxh; dk;Zokgh dks egkefge Jh jkT;iky] ,rn~}kjk lekIr djus ds vknsk iznku djrs gSaA
4. After close of the inquiry by the aforesaid order dated 16.7.2015, a sum of Rs. 14,01,431 was credited in the bank account of the applicant on 11.12.2015 after lapse of more than seven years since it fell due and a sum of Rs. 7,50,900/- towards Gratuity was also paid by crediting the aforesaid amount in the bank account of the applicant on 23.1.2016 and that too after more than 08 years since it fell due. However, no interest was paid on delayed payment. The applicant, then, issued a notice to the respondents on 8.4.2015 for payment of interest, but when no payment was made, the applicant filed the present O.A.
5. No reply has been filed by the respondents in spite of sufficient opportunities granted to them and the matter was heard after closing the opportunity to file Reply. The matter was listed for hearing on 5.4.2017. On the request of learned counsel for the respondents, he was permitted to address the Court.
6. Heard the learned counsel for the parties and perused the records.
7. The only question to be decided is whether the applicant would be entitled to interest on delayed payment of retiral dues?
8. It is not denied that the applicant has been retired from service on 31.12.2007 and at that time, no inquiry was pending against him. This fact is established by order dated 16.7.2015 ,copy of which is placed on record by the applicant by which disciplinary proceedings initiated after retirement of the applicant were dropped. Correctness and contents of the order dated16.07.2015 has not been disputed by the respondents. This order dated 16.07.2015 reveals that the applicant was charged after getting the consent of the Ministry of Home, Union of India, on 19.8.2008 for initiating proceedings under Rule 6(1)(a) of the aforesaid Rules of 1958. The chargesheet was issued to the applicant on 29.9.2008. The proceedings were culminated on 16.7.2015. It shows that no proceedings were pending on the date of retirement.
9. Union of India through DoP&T issued certain instructions with regard to payment of retiral dues by letter no. 25014/30/99-AIS(II) dated 7.8.2000 keeping in view the provisions of Rule 19(a) of 1958 Rules. For ready reference, Rule 19(a)of 1958 Rules and clarification issued by DoPT vide letter no. 25014/30/99-AIS(II) dated 7.8.2000 is extracted here-in-below:-
19A. Interest on delayed payment of Gratuity or Death-cum-Retirement Gratuity:
19A (1) If the payment of gratuity or death-cum-retirement gratuity has been authorised after three months from the date when its payment became due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest at the rate prescribed by the Central Government from time to time shall be paid on the amount of gratuity or death-cum-retirement gratuity in respect of the period beyond three months.
19A(2) If as a result of Governments decision taken subsequent to the retirement of a member of the Service, the amount of gratuity or death-cum-retirement gratuity already paid on his retirement is enhanced on account of:- grant of emoluments higher than the emoluments on which gratuity or death cum retirement gratuity was determined; or
(ii) liberalisation in the provisions of these rules from a date prior to the date of retirement of the member of the Service concerned, no interest on the arrears of the gratuity or death-cum-retirement gratuity shall be paid.
10. The DoP&T issued letter dated 7.8.2000 by which certain clarifications have been issued. The relevant portion of the letter reads as under:-
4. The admissibility of interest on the gratuity allowed after the conclusion of judicial/departmental proceedings: - I am directed to state that the Central Government has been receiving references from the State Governments about the admissibility of interest on the withheld amount of gratuity and commutation of pension during the pendency of judicial/departmental proceedings against the retired All India Services Officers. The question of grant of interest in such cases has been examined in this Department in consultation with the Department of Pension & Pensioners Welfare.
2. It has been decided to follow the provision contained in the Government of India Decision No. (1) below Rule 68 of CCS(Pension) Rules, 1972, as reproduced below, regarding the admissibility of interest on the gratuity allowed after the conclusion of judicial/departmental proceedings as there is no such provision under the All India Services (Death-cum-Retirement Benefits) Rules, 1958:-
Where disciplinary or judicial proceedings against a Government servant are pending on the date of his retirement, no gratuity is paid until the conclusion of the proceedings and the issue of the final orders thereon. The gratuity if allowed to be drawn by the competent authority on the conclusion of the proceedings will be deemed to have fallen due on the date of issue of orders by the competent authority. In order to mitigate the hardship to the Government servants who, on the conclusion of the proceedings are fully exonerated, it has been decided that the interest on delayed payment of retirement gratuity may also be allowed in their cases in accordance with aforesaid instructions. In other words, in such cases, the gratuity will be deemed to have fallen due on the date following the date of retirement for the purpose of payment of interest on delayed payment of gratuity. The benefit of these instructions will, however, not be available to such of the Government servants who die during the pendency of judicial/disciplinary proceedings against them and against whom proceedings are consequently dropped.
3. The decision in this respect shall be applicable in those cases only which have not been decided so far and future cases. Past cases are not to be re-opened.
4. In its 44th Report, the Parliamentary Standing Committee on the Ministry of Home Affairs had observed that timely payment of pension and retirement dues is not being made to the retiring Government employees and the Committee had recommended certain steps to ensure timely payment of pension and retirement dues to the retiring employees of the Union Government. The Government has decided to implement the recommendations vide Department of Pension & Pensioners Welfare O.M.No.38/64/98-P&PW(F) dated the 5th October, 1999 and it has been further decided to extend the same to AIS officials with suitable changes as follows:
(a) All pensioners dues are to be settled by strictly following the procedures laid down in the All India Services(Death-cum-Retirement Benefits) Rules, 1958.
(b) Wherever delays are anticipated, provisional pension should be sanctioned immediately.
(c) Any delay in processing of pension resulting in pension not being authorized on the last working day of retirement of the Government servant should be reported by the Head of the Office to the next higher authority who would watch the settlement of delayed cases.
(d) In respect of payment of gratuity, Rule 19A of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 may be referred to. As per this Rule, if the payment of gratuity has been delayed because of administrative lapse by more than three months from the date when its payment became due, interest at the rate prescribed by the Central Government from time to time shall be paid on the amount of gratuity in respect of the period beyond three months. In case of any such eventuality, the Chief Secretary of the State Government concerned would initiate action to fix responsibility to recover the amount from the concerned dealing official, Supervisor or Head of Office in proportion to their salary by following the prescribed procedure for the purpose.
(e) Once it has been decided to pay gratuity, the amount should be paid immediately pending a decision regarding payment of interest. This would reduce the interest liability, if any, on delayed payment of gratuity.
(f) In the matter of delayed payment of leave encashment, it is noted that there is no provision for payment of interest or for fixing responsibility. Moreover, encashment of leave is a benefit granted under the Leave Rules and not a pensionary benefit.
(g) In the matter of CGEGIS, the Department of Expenditure, Ministry of Finance in their U.O.No.709/EV/99 dated the 6th August, 1999 has clarified that payments under CGEGIS cannot be termed as terminal benefit. As payments under this Scheme are made in accordance with a Table of benefit which takes into account the interest upto the date of cessation of service, no interest is payable on account of delayed payment in the Scheme. They have also clarified that CGEGIS payment cannot be withheld and no Government dues can be recovered from the accumulation except the amount claimed by the financial institution as due from the employee on account of loans taken for House building purpose.
5. There is no provision either under the All India Services(Commutation of Pension) Regulations, 1959 or CCS(Commutation of Pension) Rules, 1981 for payment of interest on commutation value of pension. There is no prescribed date for payment of commutation value. A pensioner continues to draw full pension till the payment of commutation value. As such, payment of interest on commutation value does not arise. Further, it may be stated that as per Rule 3 of AIS(Commutation of Pension) Regulations, 1959, a pensioner is not eligible to apply for commutation if any departmental/judicial proceedings is pending against him at the time of his retirement. He becomes eligible only after the departmental/judicial proceeding is over.
6. The State Governments are requested to deal with the matters for payment of gratuity or DCRG and other pensionary benefits to the retiring Members of the All India Services in accordance with the provisions enumerated above. These orders shall be applicable on those cases only which have not been decided so far and future cases. Past cases are not to be re-opened.
11. Perusal of Rule 19(A) reveals that the Gratuity will become due on the date of retirement of the officer and if payment has been delayed and Gratuity has been authorized within a period of three months from the date of accrual of Gratuity, interest, for administrative lapses, would be payable to the officer as such rate as prescribed by the Central Government from time to time. Therefore, it is to be seen in this case whether the applicant was entitled the Gratuity as on the date of his retirement i.e. 31.12.2007. Rule 6 of the aforesaid Rules of 1958 categorically provides that if the departmental proceedings were not instituted while the pensioner was in service, shall not be instituted save with the sanction of the Central Government. The explanation reveals that the departmental proceedings shall be deemed to be instituted when the charges framed against the pensioner are issued to him if he is not suspended from an earlier date. Rule 6(2) further deals with withholding of Gratuity and pension on account of pendency of judicial/departmental proceedings. It makes clear that if departmental proceedings are instituted against the pensioner before retirement or he was placed under suspension before retirement, the officer would not be entitled to any Gratuity until conclusion of such proceedings and the issue of final order thereon. The proviso attached to this Rule clearly says that if any proceedings have been initiated under Rule 10 of All India (Discipline & Appeal)Rules, 1969 for imposition of any penalties under clause (i), (ii) and (iv) of Sub-Rule 1 of Rule 6, payment of Gratuity shall not be withheld. But no rule has been shown to this Tribunal, which debars to make the payment of Gratuity on retirement against whom departmental proceedings were not instituted or who has not been suspended from an earlier date from the date of his retirement.
12. The applicant neither under suspension on the date of retirement nor any departmental proceedings were initiated against him. Hence, this Tribunal is of the view that the applicant was entitled to Gratuity and other pensionary benefits on the date of his retirement and subsequent institution of departmental proceedings will not be a ground for withholding of payment of Gratuity and other benefits of service. If departmental proceedings were instituted after retirement and final order is passed in such inquiry shall be implemented by cut in pension to the permissible extent as contained in the final order.
13. Therefore, in this case, so far as the entitlement is concerned, the applicant is entitled to get the amount of Gratuity and other benefits including pension, etc. on the date of retirement. The reasons for withholding the payment of Gratuity and other dues are not sustainable in law on account of initiation of departmental proceedings after retirement and that too after lapse of more than three months as such, on the ground of delay, the applicant would be entitled for payment of Gratuity with interest payable under the rules.
14. My attention has been drawn by the learned counsel for the respondents towards the judgment rendered by Honble Supreme Court in the case of State Bank of India Vs. Ram Chandra Dubey & Others reported in (2001) 1 SCC 733 wherein it has been held that the relief(s) claimed in the earlier proceedings, if not granted, may be deemed rejected. It was further contended that the judgment reveals that the Tribunal did not express its opinion on any issue and keep silence, even then it will be presumed that the relief has been rejected. Para 6 of the Report has been relied upon by the respondents, which is extracted here-in-below:-
However, Shri Pramod Swarup, learned counsel for the respondents, strongly supported the views taken by the Labour Court and the High Court and contended that award of reinstatement from a particular date would include in it impliedly award of back wages as well and placed reliance upon the decision of this Court in Hindustan Tin Works Pvt. Ltd. vs. Employees of Hindustan Tin Works Pvt. Ltd., 1979 (1) SCR 563 and The Central Bank of India Ltd. vs. P.S. Rajagopalan etc., 1964 (3) SCR 140. He contended that the Labour Court is competent to interpret the award on which the workman bases his claim under Section 33C(2) of the Act and in doing so, it would certainly be open to the Labour Court to expound the exact meaning and content of the award as to whether it impliedly awards back wages or not and not merely determine the quantum of the same. The learned counsel also referred to the decision in P. Kasilingam vs. P.S.G.College of Technology, 1981 (1) SCC 405, to contend that ordinarily reinstatement would be followed by award of back wages and, therefore, when there was no reason to deny the same, the award must be deemed to have included the award of back wages. He also placed reliance in this regard on the decision of this Court in Managing Director, Uttar Pradesh Warehousing Corporation & Anr. vs. Vijay Narayan Vajpayee, 1980(3) SCC 459.
15. On the strength of this judgment, it has been contended that in earlier proceedings, relief of interest has not been granted to the applicant, therefore, in subsequent petition, i.e. present one, the claim of interest cannot be allowed.
16. Contrary to it, learned counsel for the applicant relied upon the judgment rendered by Honble Surpeme Court in the case of Dr. Uma Agarwal Vs. State of U.P. & Others reported in (1999) 3 SCC 438. On the strength of this judgment, it is contended that a retired government servant would be entitled to penal interest on the retirement benefits @ 12% per annum.
17. So far as the Gratuity is concerned, the applicant was paid full Gratuity amount on 23.1.2016 as stated here-in-above and other benefits has been paid on 16.7.2015. The applicant has not disclosed that the amount of Rs. 14,01,431/- is under what heads. The clarification issued in the light of Rule 19(A) by DoPT makes it clear that no interest would be payable on commuted value of pension as contained in para 5 of the aforesaid clarification dated 7.8.2000. The reason for which has also been given. As per the reason given, pension was paid in full to the applicant until it is commuted.
18. Therefore, I am of the view that the applicant would not be entitled to any interest on commuted value of pension.
19. So far as the Gratuity amount is specific and of Rs. 7,50,900/-, which became due on 1.1.2008, the day next the date of retirement of applicant, and was paid on 23.1.2016. Rule 19(A) prescribes that incase delay has occurred of more than three months, pensioner would be entitled the interest at the rates prescribed by the Central Government from time to time. No notification has been placed by either of the parties to demonstrate that what rate of interest would be payable on the delayed payment of Gratuity.
20. So far as the plea of the respondents is concerned that no relief has been granted as interest in the earlier petition has been denied, I am of the view that the argument is misconceived. Perusal of order passed in earlier case reveals that on earlier occasion this Tribunal vide order dated 27.3.2015 (extracted here-in-above) clearly reveals that the respondents to pay admissible dues, if any, to the applicant in accordance with law and rules. Admissible dues, as per rule means payable as per rule 19(A). Rule 19(A) says that incase of delay for more than three months in payment of Gratuity on account of administrative lapses on the part of the respondents (employer), interest would automatically become payable as per rates declared by Central Government from time to time. Therefore, I am of the view that on the basis of earlier judgment, it cannot be said that the applicant would not be entitled to get any interest on the amount of Gratuity. The respondents are under obligation to make payment of Gratuity with interest accrued thereon, which admittedly has not been paid by the respondent to the applicant. Therefore, this Tribunal is of the view that the applicant would be entitled to interest payable on the amount of Gratuity of Rs. 7,50,900/- w.e.f. 1.1.2008 till the date of payment at the rate prescribed by the Central Government. within a period of two months.
21. So far as the interest on commuted value of pension is concerned, the applicant would not be entitled to any interest thereon because it does not include interest on the delayed payment as per clarification and will not come within the ambit of admissible dues as mentioned in the earlier judgment of this Tribunal. As details of other payment has not been disclosed by the applicant, therefore, it would not be proper to award interest without specified payment under specified heads.
22. With the aforesaid observations, the O.A. is partly allowed. The respondents will make payment of interest as prescribed under Rule 19(A) of All India Services (Death-cum-Retirement Benefits) Rules, 1958 for the period commencing from the date of accrual i.e. 01.01.2008 till 23.01.2016, the actual date of payment, at the rates determined by the Central Government from time to time within a period of two months from the date of production of certified copy of this order. There shall be no order as to costs.
(Justice V.C. Gupta) Member(J) Girish/-
14