Central Administrative Tribunal - Jabalpur
L.P. Jaiswal vs Union Of India on 26 July, 2016
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No.653 of 2010
Jabalpur, this Tuesday, the 26th day of July, 2016
Honble Mr. Justice Dinesh Gupta, Judicial Member
Honble Mr. S.K.Pattnaik, Judicial Member
Honble Mr. A.K.Upadhyay, Administrative Member
L.P. Jaiswal, S/o Late Shri D.N. Jaiswal,
Aged about 62 years, R/o C/o Shri S.P. Rai,
House No.406, Behind Maida Mill
Jagdish Mandir, Garha Phatak,
Jabalpur (M.P.) 482002 - Applicant
(By Advocate Shri Gautam Prasad)
V e r s u s
1. Union of India, Through its Secretary,
Ministry of Communication, Department of Posts,
Central Secretariat, North Block, New Delhi-110001
2. Chief Post Master General, MP Circle,
Hoshangabad Road, Bhopal-462012
3. Sr. Superintendent of Post Offices,
Jabalpur Division, Jabalpur 482001
4. Director of Accounts (Postal), Bhopal 462027 -Respondents
(By Advocate Shri S.K. Mishra)
(Date of reserving the order :- 25.07.2016)
ORDER
By Honble Mr. Justice Dinesh Gupta, JM:-
The very short question referred by the Jabalpur Bench to the Principal Bench for constituting Full Bench to hear and decide the issue raised in Original Application No. 653 of 2010, Shri L.P.Jaiswal vs. Union of India and others, was whether in pension fixation there was a statutory bar to verify the correctness of emoluments beyond 24 months preceding the date of superannuation under Rule 59(b)(iii), or whether the Accounts Officer can apply check beyond 24 months under Rule 65 of the Central Civil Services (Pension) Rules,1972 (hereinafter referred to as the Pension Rules). The Principal Bench was pleased to constitute the Full Bench and referred the matter to the Full Bench.
2. The facts culled out from the Original Application No. 653 of 2010 are, in short, that the applicant filed Original Application praying for the following reliefs:-
8(i) Summon the entire relevant record pertaining to the instant controversy from the respondents for its kind perusal.
8(ii) This Honble Tribunal may be pleased to direct the respondents to forthwith refund the amount so recovered from the applicant with interest.
8(iii) This Honble Tribunal may be pleased to direct the respondents to forthwith restore the last pay drawn of the applicant to Rs.7850/- and in consequence thereof the revised payment of all dues including pension calculated on the basis of basic pay of Rs.7,850/- be made to the applicant with interest.
8(iv) Any other order or orders that this Honble Tribunal deems fit and proper in the facts and circumstances of the case may kindly be passed.
8(v) Award the cost of the instant lis to the applicant.
3. The dispute relates to the fixation of pension and recovery of the excess paid amount from the gratuity of the applicant. The applicant while in service was paid Rs. 7850/- as his basic pay when he was on the verge of retirement. The Pension Payment Order issued vide its order dated 29.07.2008 (Annexure A-3) and his superannuation pension has been fixed as Rs. 5595/- by considering his average emoluments as Rs. 7550/- and the gratuity also has been paid to the applicant on the basis of the same basic pay of Rs.7550/-. The applicant was aggrieved by an order dated 12.09.2008, by which Rs. 67,019/- has been ordered to be recovered from his DCRG.
4. During the hearing of this Original Application, the counsel for the applicant referred the provisions of Rule 59(1)(b)(iii) of the Pension Rules and argued that the basic emoluments for calculation of pension are to be fixed in accordance with the above said rule. The Jabalpur Bench which was hearing this case also considered Rule 65 of the above Pension Rules, which provides the authority to Account Officer, before authorization of pension and gratuity, for certain checks. The Jabalpur Bench noted that the Ernakulum Bench of the Tribunal in the matter of K.N. Velukuttam, Divisional Engineer Vs. The Controller of Communication Accounts & others, OA No.316/2011 vide order dated 23.3.2012 held that there was a statutory bar from rectifying mistakes that have occurred more than two years anterior to the date of retirement under Rule 59(1)(b)(iii) of Pension Rules. The same view has also been taken by Ernakulum Bench in some earlier OA as well as Madras and Bangalore Benches of the Tribunal.
5. The Jabalpur Bench was of the view that under Rule 65 of the Pension Rules which empowers the Accounts Officer to apply requisite checks and then authorize pension and gratuity, there is no such bar or restriction of period for which the mistakes could be rectified.
6. Considering the Rule 59 and Rule 65 of the Pension Rules, the Jabalpur Bench was not in agreement with the views expressed by the Ernakulum, Madras and Bangalore Benches of the Tribunal. The Jabalpur Bench was of the view that before deciding the controversy involved in the matter, the following issues need to be decided by a larger Bench.:-
(i) Whether the Accounts Officer is vested with the powers to go beyond the payment record of an employee beyond two years anterior to the date of retirement for applying the requisite checks and assess the amount of pension and gratuity in terms of Rule 65(1)(a) of the Pension Rules? &
(ii) Whether Rule 59(1)(a)(iii) of the Pension Rules prescribing for 24 months limit in regard to verification of correctness of emoluments for the purpose of working out the average emoluments of a government servant makes the provisions of Rule 65(1) (a) nugatory?
7. Accordingly, the matter was referred to the Principal Bench which constituted Larger Bench and, thus, the matter was heard by us.
8. Heard Shri Gautam Prasad, learned counsel for the applicant and Shri S.K.Mishra, learned counsel for the respondents.
9. The counsel for the applicant submitted that Rule 59(i)(b)(iii) of the Pension Rules provides the procedure for calculating the average emoluments and the power given to the Head of the Office to verify from the service book the correctness of the emoluments drawn or be drawn during the last 10 months and in order to ensure that the emoluments during the last 10 months have been correctly shown, the head of the office may verify the correctness of the emoluments for the period of twenty-four months only preceding the date of retirement of the Government servant and not for any period prior to that date. The counsel for the applicant emphasized on and not for any period prior to that.
10. The counsel further submitted that the Ernakulam Benchs judgment also supported this contention that the Head of the Office has powers to go beyond the twenty- four months for fixing the average emoluments and not any period further to that. The counsel further referred to Rule 61 of the Pension Rules and submitted that thisRule provides that the pension papers shall be forwarded to the account officer only after compliance of the requirement of Rule 58 & 59. The counsel further submitted that the power given to the account officer under Rule 65 are only to correct the clerical mistakes or to ensure that the average emoluments of pay has been correctly fixed by the Head of the Office under the provision of Rule 59 (1)(b)(iii). The counsel further submitted that the power given to the Head of the Office under Rule 59 is restricted to twenty-four months from the date of the retirement and the account officer is authorized only to ensure that the Head of the Office has rightly calculated the average emoluments. He has no authority to go beyond a period of 24 months. The counsel for the applicant also placed reliance on the judgment of Honble Apex Court in the matters of State of Punjab & others vs. Rafiq Masih (White Washer), (2015) 4 SCC 334. The counsel also referred to the case of Chandi Prasad Uniyal Vs. State of Uttarakhand,(2012) 8 SCC 417 and lastly submitted that the power of the account officer is restricted to the period of two years as emphasized in the Rule 59 of the Pension Rules.
11. The counsel for the respondents submitted before us that although the Head of the Office has been given power to go back to twenty four months prior to the date of retirement for ascertaining the average emoluments, under Rule 65 of the Pension Rules the account officer has the authority to apply requisite checks, record the account enfacement in Part II of Form 7 and assess the amount of pension and gratuity and issue the pension payment order. The title of this Rule is Authorization of pension and gratuity by the Accounts Officer. The Accounts Officer is empowered to apply the requisite checks which implies not only checking the calculation sent by the Head of Office, but also verifying the correctness of the emoluments. The power of accounts officer can not be restricted to a period of two years as enumerated under Rule 59 (i)(b)(iii) of the Pension Rules.
12. The counsel further referred to the Rule 71 of the Pension Rules, which provides adjustment and recovery of dues other than dues pertaining to Government accommodation and also the Form 7 of part II and excess the exact amount of pension. The counsel lastly submitted that a bare reading of the Rule 65 clearly suggests that the authority of the Accounts Officer is not restricted to any period.
13. The counsel also relied upon the judgment of Chandi Prasad Uniyal (Supra) and submitted that the Honble Apex Court was also of the view that if in tax payers money any wrong has been done,, the authority has the powers to correct it.
14. The counsel for the respondents lastly submitted that the Rule 59 of the Pension Rules provides the calculation of the average emoluments and when the pension papers are received by the Accounts Officer, the Accounts Officer has authority to check the correctness of the said amount and for that his powers are not restricted to the twenty-four months or any period.
15. Before considering the issue raised by the Division Bench, it is necessary to go through the legal provisions in this regard as referred by the counsel for the parties.
Rule 32 (i) provides Verification of qualifying service after 25 years service, or 5 years before retirement, which reads under:
(i)On a Government servant completing twenty-five years of service or on his being left with five years of service before the date of retirement, whichever is earlier, the Head of Office in consultation with the Accounts Officer shall, in accordance with the rules for the time being in force, verify the service rendered by such a Government servant, determine the qualifying service and communicate to him, in Form 24, the period of qualifying service so determined.
16. Then the Rule 33 dealt with the expression Emolument. The Expression emoluments means the basic pay as defined under Rule 9 (21)(a)(i) of the Fundamental Rules which a Government Servant was receiving immediately before his retirement or on the date of his death.
17. Then comes the Chapter 7 which deals with the Determination and Authorization of amount of Pension and Gratuity.
18. Rule 56 provides for Preparation of list of Government servants due for retirement. Rule 57 provides for Intimation to the Directorate of Estate regarding issue of No Demand Certificate. 19. Rule 58 deals with the Preparation of Pension Papers and provides that every Head of the office shall undertake the work of preparation of pension papers in Form 7 two years before the date of which the government servant is due to retire on superannuation, or on the date on which he proceeds on leave preparatory to retirement which ever is earlier. The Section 59 provides for Stages for completion of pension papers. The first stage provided under Rule 59 in respect of verification of service is as follows:
59 Stages for the completion of pension papers.
(1)The Head of Office shall divide the period of preparatory work of two years referred to in Rule 58 in the following three stages:-
(a) First Stage. Verification of service.
(i) The Head of Office shall go through the service book of the Government servant and satisfy himself as to whether the certificates of verification for the service are recorded therein.
(ii) In respect of the unverified portion or portions of service, he shall arrange to verify the portion or portions of such service, as the case may be, with reference to such pay bills, acquittance rolls or other relevant records and record necessary certificates in the service book.
(iii) If the service for any period is not capable of being verified in the manner specified in sub-clause (i) and sub-clause (ii), that period of service having been rendered by the Government servant in another office or Department a reference shall be made to, the Head of Office in which the Government servant is shown to have served during that period for the purpose of verification.
(iv) If any portion of service rendered by a Government servant is not capable of being verified in the manner specified in sub-clause (i) or sub-clause (ii) or sub-clause (iii), the Government servant shall be asked to file a written statement on plain paper, stating that he had in fact rendered that period of service, and shall, at the foot of the statement, make and subscribe to a declaration as to the truth of that statement and shall in support of such declaration produce all documentary evidence and furnish all information which is in his power to produce or furnish..
(v) The Head of Office shall, after taking into consideration the facts in the written statement and the evidence produce and the information furnished by that Government servant in support of the said period of service admit that portion of service as having been rendered for the purpose of calculating the pension of that Government servant.
Rule 59 (b) provides second stage for making good omission in the service book which is as follows:
(b) Second Stage. - Making good omission in the service book.
(i) The Head of Office while scrutinizing the certificates of verification of service, shall also identify if there are any other omissions, imperfections or deficiencies which have a direct bearing on the determination of emoluments and the service qualifying for pension.
(ii) Every effort shall be made to complete the verification of service, as in clause (a) and to make good omissions, imperfections or deficiencies referred to in sub-clause (i) of this clause. Any omissions, imperfections or deficiencies including the portion of service shown as unverified in the service book which it has not been possible to verify in accordance with the procedure laid down in clause (a) shall be ignored and service qualifying for pension shall be determined on the basis of the entries in the service book.
(iii) Calculation of average emoluments.- For the purpose of calculation of average emoluments, the Head of Office shall verify from the service book the correctness of the emoluments drawn or to be drawn during the last ten months of service. In order to ensure that the emoluments during the last ten months of service, have been correctly shown in the service book, the Head of Office may verify the correctness of emoluments for the period of twenty-four months only preceding the date of retirement of a Government servant, and not for any period prior to that date.
As soon as the second stage is completed and in any case not later than 10 months prior to the date of retirement of the government servant, the Head of the Office shall take the following actions:-
(c) Third Stage. - As soon as the second stage is completed, and in any case not later than ten months prior to the date of retirement of the Government servant, the Head of Office shall take the following action
(i)He shall furnish to the retiring Government servant a certificate regarding the length of qualifying service proposed to be admitted for the purpose of pension and gratuity as also the emoluments and the average emoluments proposed to be reckoned with for retirement gratuity and pension. In case the certified service and emoluments as indicated by the Head of Office are not acceptable to him he shall furnish to the Head of Office the reasons for non-acceptance inter alia supported by the relevant documents in support of his claim.
(ii)....
(iii).....
[Extract taken from the Swamys Pension Compilation Nineteenth Edition -2009] Section 61 of the Pension Rules regarding the forwarding of pension papers to Account Officer reads thus:
(1)After complying with the requirement of Rules 59 and 60, the Head of Office shall forward to the Accounts Officer Form 5 and Form 7 duly completed with a covering letter in Form 8 along with Service Book of the Government servant duly completed, up-to-date, and any other documents relied upon for the verification of service. (2) The Head of Office shall retain a copy of each of the Forms referred to in sub-rule (1) for his records. Rules 65 of the Pension Rules provides for Authorization of pension and gratuity by the Accounts Officer.-
(1)(a) On receipt of pension papers referred to in Rule 61, the Accounts Officer shall apply the requisite checks, record the account enfacement in Part II of Form 7 and assess the amount of pension, family pension and gratuity and issue the pension payment order not later than one month in advance of the date of the retirement of a Government servant on attaining the age of superannuation.
(b) If the pension is payable in another circle of accounting unit, the Accounts Officer shall sent the pension payment order along with a copy of Form 7 and the accounts enfacement to the Accounts Officer of that unit for arranging payment.
19. While hearing this Original Application the Bench also considered the judgment passed in Original Application No. 316 of 2011 decided on 23.03.2012 by Ernakulam Bench of this Tribunal in the matters of K.N.Velukuttan, Divisional Engineer vs. The Controller of Communication Accounts & others. While deciding this Original Application No. 316 of 2011 the Bench also referred to two earlier decision of the Single Bench of Ernakulam Bench in Original application No. 05 of 2009 and another of Madras Bench of the Tribunal in Original Application No. 700/2009. A similar view was also taken by Bangalore Bench of the Tribunal in the matters of V.N.Habbu Vs. Chief Postmaster General, Bangalore and others. In the background of the statutory provisions and the legal decision, we have to consider the issues referred to this Bench.
20. The issue number (1) referred to the Larger Bench is in respect of the power of the Accounts Officer in terms of Rule 65 (i)(a) of the Pension Rules. The Rule 65 of the Pension Rules clearly gives the power of authorization of pension and gratuity to the Accounts Officers and he has been vested with the power to apply the requisite checks, record the accounts enfacement and assess the amount of pension and gratuity. This power of the account officer has not been restricted under this Rule to any period.
21. The contention of the applicants counsel that the Accounts Officers power has been restricted to the period as mentioned in Rule 59 (i)(b)(iii) of the Pension Rules cannot be accepted. The Jabalpur Bench has rightly held while referring the matter that if the Accounts Officer has not been given any authority to check the complete record, it will only make him just like a post office, to receive the pension paper and to issue the pension payment order. That is not the intention of the rule makers.
22. Rule 59 of the Pension Rules provides the power to the Head of the Office to prepare the pension papers by ascertaining the average emoluments and also prepare pension paper accordingly. The power is also given to the Head of the Office to ensure that the emoluments during the last 10 months have been correctly shown. He has been vested with the power to verify the correctness of emoluments for the period of twenty-four months and not for any period prior to that date. The emphasis of the power of the Head of the Office for not traveling any period prior to that date was only restricted to the Head of the Office. Thus this rule simply provides the Head of the Office to ascertain the average emoluments.
23. After receiving the pension papers under Rule 61 of the Pension Rules and while scrutinizing the pension papers under Rules 65 of the Pension Rules, the power of the account officer has not been restricted to any period. Had the intention of the rule makers been merely to empower the Accounts Officer to check the correctness of the pension papers for certain period, it would have been clearly mentioned under Rule 65 of the Pension rules.
24. The joint reading of the Rule 59 & 65 of the Pension Rules clearly provides that the restriction of not traveling beyond 24 months is confined to the Head of the Office only. The judgment of the Ernakulum Bench referred by the counsel for the applicant and reliance of other decisions of the above said Bench only dealt with the Rule 59 of the Pension Rules and there was no reference of Rule 65 in those decisions. The judgment only pertains to the power of the Head of the Office in calculation of average emoluments.
25. So far as the case of Rafiq Masih (Supra) is concerned, primarily the Honble Apex Court considered the aspect of recovery of the amount excessively paid to the employee. The matter was referred to the Larger Bench and they answered the question in respect of recovery of the excess paid amount and then send back the matter to the Bench who referred the matter and inturn the Bench delivered its judgment on 18.12.2014, in which the Bench summarized certain situations wherein the recovery from the employee is impermissible in law.
26. We may here mention that the Larger Bench of the Honble Supreme Court while considering the Rafiq Masih case on reference also considered Chandi Prasad Uniyal (Supra) case and the Larger Bench upheld the ratio of this case that neither the employer nor the employee has any right to tax payers money if it was erroneously paid to an employee. In all cases the employers right to correct a wrong fixation has been recognized. In some cases in which the Supreme Court had waved recovery of excess money already paid, it was on the ground of equity or extreme hardships which was held as an order under Article 142 of the Constitution under which the Honble Supreme Court has special power to pass any order for substantive justice. We are not concerned here with the issue of recovery. This is left with the wisdom of the Jabalpur Bench while deciding the matter. We are confining ourselves to two legal issues referred to us.
27. Considering the law laid down by the Rafiq Masih(Supra) and Chandi Prasad Uniyal (Supra), in our considered view if at any stage it has come to the notice of the person who is authorizing the pension that there was a wrong fixation in the past, that authority has the right to correct it. This authority has been vested upon the Accounts Officer under Rule 65 of the Pension Rules.
28. The counsel for the applicant emphasized Rule 61 of the Pension Rules also, but in our view it is simply a procedural rule, which provides that the pension papers shall be forwarded to the accounts officer after completion of the formalities under Rule 58 & 59 of the Pension Rules.
29. Thus considering the Rule 59 and 65 of the Pension Rules together in the light of the judgment and the ratio laid down by the Honble Supreme Court we answer the following issues as under:-
29(a) We are of the view that the Accounts Officer is vested with power to go beyond the payment record of employee beyond two years prior to the date of retirement for applying the requisite checks and assess the amount of pension and gratuity under Rule 65(1)(a) of the Pension Rules.
29(b) So far as the issue number two is concerned, we are of the view that Rule 59(1)(b)(iii) of the Pension Rules does not restrict the powers of the Accounts Officer under Rule 65(1)(a).
30. The matter is returned back to the Bench for decision of the Original Application.
(A.K.Upadhyay) (S.K.Pattnaik) (Dinesh Gupta)
Administrative Member Judicial Member Judicial Member
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Sub: reduction of pension OA No. 653/2010
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