Kerala High Court
P.V.Paul vs Union Of India on 9 July, 2013
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937
OP (CAT).No. 177 of 2015 (Z)
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AGAINST THE ORDER IN OA 72/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
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PETITIONER(S):
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P.V.PAUL
S/O.VARGHESE,
SUPERINTENDENT OF CENTRAL EXCISE (RTD.),
36/1351, POOTHOKARAN HOUSE,
CHAMMANY ROAD, KALOOR, COCHIN-682017.
BY ADVS.SRI.C.S.GOPALAKRISHNAN NAIR
SMT.CHANDINI G.NAIR
RESPONDENT(S):
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE,
MINISTRY OF FINANCE,
NORTH BLOCK, NEW DELHI-110001.
2. CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS
CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-18.
3. COMMISSIONER OF CUSTOMS (PREVENTIVE)
CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-18.
4. COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS
CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-18.
5. PAY AND ACCOUNTS OFFICER
CUSTOMS HOUSE, WILLINGDON ISLAND, COCHIN-682009.
R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27-01-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP (CAT).No. 177 of 2015 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 : TRUE COPY OF THE OA 72/13.
EXT.P2 : TRUE COPY OF THE MA 207/13.
EXT.P3 : TRUE COPY OF THE OBJECTION
EXT.P4 : TRUE COPY OF THE REPLY STATEMENT
EXT.P5 : TRUE COPY OF THE REJOINDER
EXT.P6 : TRUE COPY OF THE ORDER DT.31-8-2015.
PETITIONER(S)' ANNEXURES
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ANNEXURE A1: A TRUE COPY OF THE O.M.NO.38/37/08 P&PW(A)
DT.15.06.2010.
ANNEXURE A2: A TRUE COPY OF THE No.38/3/0/-P7PW(A)dt.29.04.2008
ANNEXURE A3: A TRUE COPY OF THE OM F.NO.38/37/08-P&PW(A) DT.
10.12.2009
ANNEXURE A4: A TRUE COPY OF THE LETTER DATED 9.7.2013.
ANNEXURE A5: A TRUE COPY OF THE FILE NO.CCCPHCR47
DT.16.07.2013.
ANNEXURE A6: A TRUE COPY OF THE FITMENT TABLE ANNEXED TO
THE CCS(RP) RULES 2008.
ANNEXURE A7: A TRUE COPY OF THE SPECIAL SEAL AUTHORITY
ISSUED ON 06.12.2013
ANNEXURE A8: A TRUE COPY OF THE CALCULATION SHEET
RESPONDENT(S)' EXHIBITS: NIL
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//TRUE COPY//
P.A. TO JUDGE
STK
K. SURENDRA MOHAN
&
P.V. ASHA JJ.
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O.P.(CAT) No. 177 of 2015
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Dated this the 27th day of January, 2016
JUDGMENT
K. Surendra Mohan J.
The petitioner is before us challenging Ext.P6 order of the Central Administrative Tribunal (CAT) in O.A.72 of 2013. The petitioner had approached the CAT challenging Annexure A5 proceedings by which the petitioner was compulsorily retired from service with effect from 13.09.2006. It was further ordered in Annexure A5 that, the petitioner shall be entitled to only 2/3rd of the normal pension to which he was entitled on the date of his compulsory retirement, which was on 13.09.2006. It was further ordered that he would not be entitled to any gratuity. Though the petitioner had challenged Annexure A5 before the appellate authority, by Annexure A11, the appellate authority had confirmed Annexure A5. It was contended before the CAT that, the impugned order Annexure A5 was wrong, since it denied to the petitioner the entire gratuity that was payable to him. The said action was in gross violation of Rule 40(1) of the CCS (Pension) Rules 1972 O.P.(CAT) No. 177 of 2015 2 (hereinafter referred to as 'Rules' for short). The CAT considered the claim of the petitioner as well as the contentions of the respondents and found that the impugned proceedings to the extent to which they denied the petitioner's gratuity was bad. Therefore, the OA has been allowed to the extent of setting aside that part of Annexure A5 order by which the petitioner was denied the entire gratuity payable to him. Therefore, it is held that he was entitled to be paid 2/3rd of the gratuity to which he was entitled on the date of his compulsory retirement. The petitioner challenges the said order of the CAT, to the extent to which it is against him.
2. According to Sri.C.S.Gopalakrishnan Nair, the learned counsel for the petitioner, the impugned order Annexure A5 since it has committed the error of denying to the petitioner the entire gratuity which was payable to him was bad. For the above reason, it is contended that the entire order has to be set aside. Reliance is placed on the dictum of the apex court in Vijay Singh V. State of U.P. (2012) 5 SCC 242 in para 11. According to the counsel, the authority had not been empowered by the Rules to impose the punishment or to deny the entire gratuity. Therefore, since a power not vested on the authority has been exercised, the entire order is O.P.(CAT) No. 177 of 2015 3 bad. In view of the fact that the impugned order suffered from fundamental mistakes, according to the counsel, the entire order has to be set aside. It is further contended that, the petitioner ought to have been granted the retirement benefits computed on the basis of his revised pay as per CCS (Revised Pay) Rules, 2008.
3. The Assistant Solicitor General of India (ASGI) Sri.N.Nagarash opposes the contentions of the petitioner and points out that the impugned order to the extent it was erroneous has been set aside by the CAT. The said action cannot be found fault with. With respect to the claim of the petitioner, for computation of his retirement benefits, as per the CCS (Revised Pay) Rules, 2008, it is contended that the petitioner was not in service when the said Rules came into force. His last drawn salary is in the year 2004 and therefore, the retirement benefits could not be computed under the CCS (Revised Pay) Rules, 2008.
4. Heard.
5. A perusal of Annexure A5, the impugned order shows that as per the operative portion, the punishments have been numbered seriatum. In the first place it is ordered that, the petitioner would be compulsorily retired on 13.09.2006 in O.P.(CAT) No. 177 of 2015 4 terms of Rules 11(vii) of the CCS(CCA) Rules, 1965. In the second place, it has been ordered that the petitioner shall be entitled only to 2/3rd of the normal pension for which he was entitled on the date of his compulsory retirement, 13.09.2006 in terms of Rule 40(1) of CCS (Pension) Rules, 1972. It is the second part of the order that was under challenge before the CAT. It was under the second portion, it has been ordered that he shall not be entitled for any gratuity. The said error has been corrected by the order of the CAT. It has been ordered that, the petitioner shall also be entitled to claim 2/3rd of the gratuity. The contention that, for the mistake committed in denying gratuity to the petitioner the entire order was liable to be set aside is unsustainable and is therefore rejected. In the first place, the earlier part of the order was issued under Rules 11(vii) of the CCS(CCA) Rules, 1965. No contention has been raised before us against the sustainability of the said order. Therefore, the said portion remains unimpeached. The second portion of the order has been passed in terms of Rule 40(1) of CCS (Pension) Rules, 1972. The said error has been rectified. We are not satisfied that the error committed was so fundamental as to vitiate the entire proceedings.
O.P.(CAT) No. 177 of 2015 5
6. With respect to the other contention of the counsel for the petitioner that the petitioner shall be entitled to have his retirement benefits computed in accordance with the CCS (Revised Pay) Rules, 2008, we notice that though a relief had been sought for in Ext.P11 O.A., the same does not appear to have been pressed before the Tribunal at the time of final hearing. This is for the reason that, the impugned order of the Tribunal does not even refer to any such contention having been raised. According to the counsel for the petitioner, though the contention had been raised, the same has not been considered by the Tribunal. If so, the proper course to have been adopted by the petitioner was to have sought for a review of the order of the tribunal for the reason that, a contention specifically urged before it had not been referred to or considered in the impugned order. The said course not having been adopted, the only conclusion possible is that the same was not pressed before the Tribunal.
7. The contention of the counsel for the petitioner is that, though the petitioner was a person who was in service as on 1.1.2006, his pay has been fixed as though, he was a person who was not in service in 2006. An answer to the above contention, the learned Asst. Solicitor General of India O.P.(CAT) No. 177 of 2015 6 (ASGI) has placed reliance on an office memorandum dated 15.06.2010, a copy of which has been handed over to us across the bar, as per the terms of which, it is contended that in such cases, it is the last pay drawn by the incumbent that has to be taken into consideration. However, we notice that, Annexure A7 which is the order sanctioning pension to the petitioner had not been produced before the CAT. Therefore, we are not entering into a consideration of the correctness thereof. If the petitioner is aggrieved by Annexure A7 it shall be open for him to move the authorities concerned with a suitable representation seeking correction thereof. If any such representation is made, needless to observe that the concerned authority shall consider the same in accordance with law and pass appropriate orders, thereon without delay.
Reserving the above liberty to the petitioner, this Original Petition is dismissed.
Sd/-
K. SURENDRA MOHAN, JUDGE Sd/-
P.V. ASHA JUDGE STK //TRUE COPY// //P.A. TO JUDGE//