Central Administrative Tribunal - Delhi
Shri Radhey Mohan vs Delhi Transport Corporation on 2 May, 2012
Central Administrative Tribunal Principal Bench New Delhi, TA No.1065/2009 Reserved on 19th April, 2012 Pronounced on May, 2012 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member(J) Shri Radhey Mohan S/o Sh. Kanahya Lal, R/o Village & P.O. Kanjhawala, Delhi 110 081. . Applicant (BY Advocate: Shri N. L. Bareja) versus 1. Delhi Transport Corporation Through its Chairman-cum-Managing Director, I.P. Estate, New Delhi. 2. The Depot Manager, Delhi Transport Corporation, Hari Nagar Depot-III, New Delhi. Respondents (By Advocate: Shri N. K. Singh for Mrs. Avnish Ahlawat) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
The present TA is being considered afresh in view of the order of Honble High Court of Delhi in remanding the case to this Tribunal by quashing the earlier order passed by the Tribunal on 27th July 2009. It is relevant to take the extract of the judgment of Honble High Court passed on 11th August 2011 in WP(C ) No. 1309/2010 which reads thus:
1. Post levy of penalty of dismissal from service issue of payment of gratuity and leave encashment in respect of earned leave lying to the credit of the respondent became a subject matter of dispute.
2. Vide impugned order dated 27.7.2009 the Tribunal has held that leave lying to the credit as also gratuity has to be paid.
3. Rule 9(1) of the CCS Leave Rules 1972 reads as under:-
9. Effect of dismissal, removal of resignation on leave at credit Except as provided in Rule 39 and this rule, any claim to leave to the credit of a Government servant, who is dismissed or removed or who resigns from Government service, ceases from the date of such dismissal or removal or resignation.
4. In respect of the entitlement for gratuity the applicable legal provisions are Section 4 of the Payment of Gratuity Act and the applicable regulations framed by DTC for payment of gratuity being DTC Employees Provident Regulations.
5. We note that in respect of entitlement to gratuity the Supreme Court has opined on the matter and the decision is reported as 2006 (5) SCC 377 Y.P. Sarabhai Vs. Union Bank of India & Anr.
6. We do not intend to express any opinion on the merits of the controversy for the reason we find that the impugned order has totally ignored the leave rule aforenoted. The applicable provision of the Payment of Gratuity Act and the applicable service regulations of DTC as also the decision of the Supreme Court in U.P. Sarabhais case has not been considered.
7. We also note that in what manner the decisions referred in the impugned decision are applicable has not been highlighted.
8. Under the circumstances we dispose of the petition setting aside the impugned order dated 27.7.2009 and as a consequence we restore TA No.1065/2009 for fresh adjudication before the Tribunal.
9. We note that certain amounts have already been received by the respondent which shall be subject to any further orders which may be passed by the Tribunal.
10. Parties are directed to appear before the Registrar Central Administrative Tribunal on 6.9.2010.
2. Pursuant to the above decision, we directed the respondents on 30.9.2010 to furnish to the Tribunal a copy of the Writ Petition; statements of payments made to the applicant; and copy of judgment of Honble Apex Court in case of Y. P. Sarabhai versus Union of India and Another [2006 (5) SCC 377]. During further hearing it was noted on 4.8.2011 that as there was some confusion on the issue as to which rule would be applicable in the case for payment of gratuity and leave encashment we directed the parties to file affidavit indicating therein the facts on the said issues. The parties filed their respective additional affidavits and the TA was finally heard by us on 19. 4. 2012.
3. We may briefly refer to the facts of the case and the relief(s) claimed by the applicant in the instant TA. The applicant who joined his service as DR under the Respondents on 6.5.1961 rose to the Assistant grade and in 1994 he was involved in a criminal case not connected in any manner with his duties in the organization of the respondents and was charged under Section 302, 321 and 34 of IPC in FIR No.129/1994 registered on 11.12.1994. As he was taken to custody on 08.01.1995 he was placed under suspension. The applicant was convicted in the criminal case and was sentenced to undergo rigorous imprisonment for life and fine of Rs.1000 vide judgment dated 31.7.1998. Being aggrieved, the Applicant appealed against the said order in Criminal Appeal No.387/98 which was considered by the Honble High Court. As the sentence was suspended, the applicant was enlarged on bail on 8.12.1998. It was his case that despite suspension of sentence and the appeal pending against the conviction, the respondents instead of allowing him to join duty, he was dismissed from service w.e.f. 31.07.1998 vide order dated 25.9.1998, against which his appeal filed before the Honble High Court in CWP No.2223/2000 culminated in the dismissal of the Writ on 8.5.2000. In the mean time he represented to the Respondents for releasing him the benefits like Contributory Provident Fund (CPF in short), Leave Encashment, Pay / Salary due to him as on 1.8.1998. In 2002, his pay and allowances up to end of July 1998 were released. He was also released amount of CPF but there was no response from the respondents about the payment of Gratuity and Leave Encashment as prayed in his application dated 4.10.2001 and legal notice dated 10.01.2002. However, vide letter dated 24.12.2001 he was intimated that he was not entitled for the benefit of gratuity. Being aggrieved by the said order and having assailed the same, he moved to the Honble High Court in Civil Writ Petition No.1395/2002 on 26.2.2002. The said Writ Petition was transferred to this Tribunal and the TA No.1065/2009 was decided on 27.7.2009 by allowing the same in favour of the applicant. The respondent DTC challenged the Tribunal order in WP(C ) No.1309/2010 which was decided by the Honble High Court in remanding the TA for fresh adjudication.
4. We may briefly state what relif(s) the applicant has prayed in the TA. He prays to quash the letter dated 24.12.2001 whereby he has been deprived of his rights to get the gratuity for his 37 years service rendered under the respondents; to issue directions to release the payment of gratuity and leave encashment of about 30 days saved by him during his period of service and to direct the respondent to pay him interest at 18% per annum on the amount of the said gratuity and leave encashment
5. We heard Shri N. L. Bareja, learned counsel for the applicant and Shri N K Singh appearing on behalf of Mrs. Avnish Ahlawat, learned counsel for respondents, and with their assistance we perused the pleadings and relied on judgments. We may, at this stage, identify the following issues for our consideration and determination:
Whether the applicant is entitled to (a) gratuity and (b) leave encashment or not?
6. The issue raised by the applicant is whether he, having been dismissed from service due to his conviction in a criminal offence committed by him in his village due to the rivalries which is not related to his services with respondent- DTC, as per law, entitled to gratuity and leave encashment? The learned counsel for the applicant would contend that the applicant was not convicted for any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the employer-DTC, nor he had caused any loss to the DTC. He, on the other hand, has been convicted of a criminal offence alleged to have been committed in his village due to individual rivalries. He contends that the applicant has put in more than 37 years of service. He has faced the criminal charge not on account of his misconduct in the respondent-DTC but it was a quarrel in the village, as a result of which, he has been falsely involved in the criminal case and convicted in the Trial Court against which the applicant has moved the Honble High Court where the sentence has been suspended and the appeal against conviction is pending. The said conviction had no direct or indirect linkage with his official duties. It was further contended that the applicant was dismissed from service as per the DTC Rules and he was not dismissed on the ground of his riotous or disorderly conduct or any act of violence on his part, nor he had been dismissed for the offence involving moral turpitude committed during the discharge of his official duties. Though he was dismissed from service w.e.f. 31.7.1998, the applicant has been approaching the Respondent-DTC to get gratuity and leave encashment. But the respondents instead of applying their mind have dismissed his representation by stating that the applicant is not entitled for the leave encashment and gratuity. He contends that the Regulations, being part of the subordinate legislation cannot have the overriding authority over the statutory provisions of an Act. His contention, therefore, is that the applicant is eligible to get gratuity as per the payment of Gratuity Act 1972 and the Proviso to the Regulation 5A of the Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953, relied on by the respondent DTC to deny the applicant his due under the Gratuity Act 1972, is not applicable to the applicants case. His contention is that the applicants case for gratuity is not covered by the facts of the judgment in Y. P. Sarabhais case (supra) as in the said case the appellant was involved in the financial irregularities in the Bank for which he was dismissed from service and was denied gratuity but in the instant TA, the applicants dismissal was due to conviction. Shri Bareja cited two decisions of Honble High Court of Delhi in support of applicants claim for leave encashment. We will deal this aspect in the later part of this order.
7. On the contrary, Shri N K Singh, learned counsel for the respondents, submits that the learned Trial Court of Shri D. K. Saini, Additional Session Judge, Delhi convicted the applicant and sentenced him to life imprisonment and fine of Rs.1000/- vide judgment dated 31.7.1998, on the basis of which the applicant was dismissed from service w.e.f. 31.7.1998 as per the Clause 15 (2) VII of DRTA [Condition of Appointment & Service] Rules. He further contends that applicants appeal against the order of dismissal having been dismissed in limine by the Honble High Court he is not agitating before this Tribunal against the order of dismissal. He is only agitating that he should be paid gratuity and leave encashment. The main contention of the respondents is that since the applicant is a dismissed employee of the DTC, as per the DTC [Employees Provident Fund] Regulations, he is not entitled to get the gratuity. It was informed that he had already been paid his own as well as the Corporation contribution towards the C.P.F. He was informed vide letter dated 24.12.2001 that gratuity were not to be paid to the dismissed employee. In support of his contention he drew our attention to the Regulation 5A of the Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953 and placed his reliance on the judgment of Honble Apex Court in Y P Sarabhais case [supra] to strongly urge that a dismissed employee was not entitled to any gratuity and leave encashment.
8. We have considered the above contentions of the parties. Admitted position is that the applicant is a dismissed employee of DTC. His Writ against the said dismissal order has been rejected in limine. The applicant has been allowed admissible CPF amount and salary for the relevant period. The only dispute continues on the non-payment of gratuity and amount of leave encashment.
9. At this stage, we may examine the controversy on gratuity. The respondent DTC declined his entitlement for gratuity on the ground that the applicant was dismissed from service under Regulation 15 (2) (vii) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, as he was convicted in a criminal case. The Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953 takes cognizance and specifically prohibits payment of gratuity to a dismissed employee. We may, therefore, refer to the said provision which reads as follows:
5-A Special Contribution by the Authority (GRATUITY):-
The Authority shall also contribute to the Provident Fund of an employee at the time of his leaving the service of the Authority after completing a minimum service of 15 years including periods of leave with pay but excluding the periods of leave without pay but excluding the periods of probation, at the rate of half a months basic pay for each completed year of service subject to the maximum of 15 months basic pay to be calculated on the terminal basic pay drawn at the time of leaving the service, if the Authority is satisfied that the service rendered by the employee has been good, faithful, and efficient.
Provided that the special contribution shall not be payable if an employee is removed or dismissed from the service of the Authority as a disciplinary measure in pursuance of clause 15 of the Delhi Road Transport Authority (Conditions of Appointment and Service Regulations, 1952.
10. The above regulation is basically a non statutory one and cannot be said to be in conflict with the provisions of statute namely the Payment of Gratuity Act, 1972. Issue was raised whether the above regulation was in conformity with or contradictory to the statutory provisions of the said Act. We may take the extract of the relevant Section of the Gratuity Act, 1972. The sub section 6 of Section 4 of the Payment of Gratuity Act 1972 prescribes the grounds under which gratuity can be withheld or forfeited partly or fully. This Rule reads as follows:-
Section 4 (6). Notwithstanding anything contained in sub-section The gratuity of an employee, whose services have been terminated for any act, willful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
The gratuity payable to an employee [may be wholly or partially forfeited] If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or If the services of such employee have been terminated for any act, which constitutes an offence involving moral turpitude provided that such offence is committed by him in the course of his employment. In the instant case, there is no dispute about the applicants involvement in a criminal case under Section 302, 321 and 34 of IPC. His offence in the said criminal case is covered under Section 4 (6) (i) and the relevant clause is any other act of violence. There is no conflict between the said provisions of the Act and DTC Regulations.
11. In view of the above statutory provisions, we may refer to the relevant judgments of Honble Apex Court in Management of Tournamulla Estate Versus Workmen [AIR1973SC2344] three member bench of the Hon'ble Apex Court considered the issue of whether the workmen dismissed for misconduct, the gratuity could be forfeited under Section 4(6)(b) of the Gratuity Act 1972? Referring to the decision of in the Delhi Cloth Mills case (supra) (AIR 1970 SC 919)and Remington Rand of India Ltd. v. The Workmen (AIR 1970 SC 1421) the Hon'ble Supreme Court categorised misconduct into three kinds, (1) technical misconduct which leaves no trial of indiscipline; (2) misconduct resulting in damage to the employer's property which might be compensated by forfeiture of gratuity or a part thereof, and (3) serious misconduct such as acts of violence against the management or other employees or disorderly behaviour in or near the place of the employment, which though not directly causing damage is conducive to grave indiscipline. The first should involve no forfeiture, the second may involve forfeiture of an amount equal to the loss directly suffered by the employer in consequence of the misconduct, and the third will entail forfeiture of the gratuity payable to the workman. According to this decision, if a workman is guilty of a serious misconduct of the third category his gratuity can be forfeited in its entirety, and in case of the first type no forfeiture of gratuity is admissible.
12. We also referred to the judgment of Honble Supreme Court in Y. P. Sarabhais case (supra). Though facts in the said case are different from the facts in the instant TA but the law laid by Honble Apex Court that the dismissed employee is not entitled to gratuity. The pertinent part of the judgment is as follows:-
11. We have considered the submissions made by both sides. Irrespective of order of dismissal of the appeal filed by the appellant, we feel that the request fervently made by the counsel for the appellant should be sympathetically considered to meet the ends of justice. The appellant was dismissed from service on 4.9.1998. He is without pay for all these years in view of the order of dismissal. According to the appellant, his wife also died of cancer. It is settled law that a person who is dismissed from service is entitled to get only the provident fund but no gratuity.
13. There is no dispute about the fact that the offence committed by him was not in the course of his employment but it was outside his normal call off duty. But the competent authority has already considered the nature of offence for which the applicant was convicted and decided that the said conviction is sufficient to dismiss him from service. Gratuity is earned by an employee by virtue of his service over a period with his employer and his good conduct is a condition precedent for continuance in service. It is noted that the DTC has adopted the Payment of Gratuity Act 1972 in 1975 and has been implementing. The Provisions of Section 4 (6) (a) does come into operation when there is a termination or dismissal on the grounds set out in that sub section. The statutory provision for forfeiture must be construed strictly. In case the termination / dismissal (in case of the present TA), if the grounds of such termination does come within the ambit of Section 4 (6), the forfeiture of gratuity is admissible irrespective of the fact whether applicant has spent long years of service or not. Just because of his dismissal, his past service is washed away and does not entitle to him the benefit like gratuity admissible to a normally superannuated employee.
14. We note that the Regulation was framed much before the Gratuity Act came into force and the vires of the said provision of the Regulation is not under challenge. However, we do not find any conflict between the two. In respect of the present case dismissal of the applicant though was not the result of any misconduct committed in discharge of his duties but due to his conviction in a criminal case, it must be noted that his involvement in the act of violence which resulted in his conviction, he was dismissed from service on that count. This act for which he was convicted constitutes an offence involving moral turpitude. In our considered opinion the penalty of dismissal from service on the count of his conviction is sufficient ground to deny him the gratuity. We do not find any conflict between the Gratuity Act and the relevant provisions of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 and the Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953.
15. In view of the above, we are of the considered opinion that the applicant is not entitled to the gratuity.
16. We may refer to the next issue pertaining to the applicants claim of leave encashment. We find from the averment that the applicant has accrued leave to his account over 37 years of service. As per rules, the periodic leave encashment was permitted to him when he was in service. At the time of his dismissal he avers that he has accumulated about 30 days of leave, which he has not availed as per the normal rule. The leave accrues to the employee during his service, which he is entitled to avail. In the alternative, he can realize the same through leave encashment as may be admissible to him as per the Rules. Dismissal due to his conviction in a case though not directly or indirectly related to his employment deprived him to encash the balance leave standing to his credit.
17. The applicants counsel argued that CCS (Pension) Rules and CCS (Leave) Rules permit the payment of leave encashment amount to the dismissed employees. These provisions will cover the applicants case. The counsel for the DTC submitted that those Rules would not be applicable to the applicant as specific provision in the DRTA (Conditions of appointment & service) Regulations 1952 provided the leave encashment aspects.
18. There has been reference to the Regulation 14(13) to state that the leave standing in the name of the employee lapses if the employee is dismissed from the service. The stand of the respondents is that applicant has been dismissed from service and as per the said Regulation the applicant is not entitled to the leave encashment. We may take below extract of the said Regulations:-
(13) All leave at the credit of an employee shall lapse on the date of retirement or termination of service but earned leave applied for in writing during service and refused in writing by the Authority competent to grant leave in the interest of the Organisation may be granted subject to a maximum 6 months on retirement or termination of service except in the case of dismissal or removal from service.
19. The counsel for the applicant referring to two judgments of Honble High Court of Delhi would contend that despite the provisions in the Regulations the law laid by the Honble High Court of Delhi would prevail. The learned counsel for the applicant placed his reliance on the decisions in LAC R Bhaskaran versus Union of India and Others (CWP No. 3545 of 2002 decided on 11.9.2002) and Ex. Lt Col. S. S. Panglia versus Union of India ( WP [ C ]No. 6955 of 2008 decided on 23.9.2008). The Honble High Court followed its decision in Bhaskarans case (supra) in Panglias case(supra). We may, therefore, briefly state the facts of Bhaskarans case (supra) . The petitioner who requested to be discharged from the post of Sergent was court martialed and dismissed from service for unauthorized and over stay vide order dated 2.4.2000 and he approached the High Court in the aforesaid Writ inter alia praying for pension, gratuity and leave encashment. While holding the claim of pension and gratuity inadmissible to the petitioner, the Honble High Court decided in favour of the petitioner in so far as the leave encashment is concerned. We may take the extract of the pertinent para of the judgment in Bhaskarans case (supra) which reads thus:
21. The Central Government hving adopted a scheme for grant of leave encashment, if leave is not availed of by an employee, in our opinion, the same would be paid to a personnel, dispute the fact that he was dismissed from Government service. Once a provision is made for payment of certain amount by way of leave encashment, it becomes akin to a right of property in terms of Article 300A of the Constitution of India. Such a right can neither be taken away nor curtailed by reason of a mere circular. We, therefore, are of the opinion that the petitioner herein will be entitled to leave encashment.
Question No.2 is answered accordingly.
22. This writ petition is, thus, disposed of directing the respondents to pay leave encashment benefit to the petitioner at an early date and preferably within a period of twelve weeks from the date of communication of this order. No order as to costs. The above judgments are qua the petitioners. Honble High Court took cognizance of the enabling provisions for payment of leave encashment and a circular cannot take away the right. In the instant case facts are different. The Regulation 1952 provides for both payment of leave encashment and denial on certain conditions. Regulations 14 (13) extracted above excludes the removed/dismissed employees for the entitlement of leave encashment. Hence, we are of the considered view that both judgments are not applicable for the present TA.
20. We are of the considered view that the applicant being not eligible for the leave encashment, the respondents are not duty bound to pay him the same.
21. In view of the statutory provisions of the Payment of Gratuity Act, 1972, the Regulation 15 (2) (vii) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 and the Delhi Road Transport Authority (Employees Provident Fund) Regulations, 1953 and the settled legal position, we come to the considered conclusion that the applicant has no right to gratuity and there are no grounds admissible under the Regulations to allow the applicants right to claim leave salary.
22. Taking into account the totality of the facts and circumstances of the case and extant Regulations on the subject of gratuity and leave encashment, we are of the considered opinion that the applicant has not made a case in support of his claims. In the result, the TA being devoid of merits is dismissed. There shall, however, be no order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member(J) Member (A) /pj/