Central Administrative Tribunal - Delhi
Dr. Durga Dass, Retd. vs The Chief Secretary Govt. Of Nct Of Delhi ... on 22 March, 2000
JUDGMENT A. Vedavalli, Member (J)
1. The applicant Dr. Durga Dass, a retired employee of the Government of National Capital Territory of Delhi, is aggrieved by the delayed payment of his pension, gratuity, and the non-payment of certain missing credits in GPF. The facts of this case briefly are as under:
2. The applicant, who was working as an Assistant Director in the Department of Animal Husbandry under the Government of National Capital Territory of Delhi, retired on superannuation on 31.7.1997 on attaining the age of 58 years. He received an amount of Rs. 1,26,575 from the respondents which was due to him on account of pension and an amount of Rs. 2,08,786 was also paid to him as gratuity. The pension, which, according to the applicant, was due on 1.8.97, was paid to him on 17.4.99 and the gratuity which was also due on the same date was paid to him on 3.2.99. Certain missing credits in his GPF were not paid to him as on the date of filing of this application. The applicant, who is aggrieved by the delay in payment of the aforesaid retiral benefits and non-payment of a part of his GPF due to certain missing credits, has submitted several representations dated 24.12.97 (Annexure A3), 10.3.98 (Annexure A4) and 2.11.98 (Annexure A5) to the respondents. There was no response to the said representations. He had also submitted another representation to the respondents dated 18.4.99 (Annexure A8), after the delayed payments were made to him, seeking interest at the rate of 18 per cent per annum on the said payments of pension and gratuity mentioned therein. Another representation was submitted by him on 5.12.97 (Annexure A10) to the respondents regarding non-payment of a portion of his GPF due to the missing credits. There was no response from the respondents regarding this representation also and the applicant filed the present OA.
3. The applicant in this OA seeks the issue of the following directions to the respondents :
(i) To pay interest of atleast 18 per cent on the delayed payments of pension and gratuity as detailed in para 4.1; and
(ii) To pay missing credit of GPF of Rs. 5345 alongwith interest from the date it was due till the payment is made,
4. In this connection, learned Counsel for the applicant relied strongly on the provisions of Rules 58 to 65 of the Central Civil Service (Pension) Rules, 1972, in particular, and also the decisions of the Supreme Court in the case of Dr. Uma Agarwal v. State of U.P. and Anr., 1993(3) SLJ 212 (SC) and the case of S.R. Bhanrale v. UOI and Ors., 1997(1) SLJ 14, and also the decision of the Punjab and Haryana High Court in A.S. Randhawa v. State of Punjab and Anr., 1999(1) SLJ 81. Learned Counsel for the applicant has also submitted that the applicant had not been given any provisional pension as per the Rules pending payment of the regular pension to him.
5. Learned Counsel for the applicant Shri Deepak Verma during the hearing submitted that the applicant has a legal right to receive his pension and other retiral benefits on the due date and the delayed payment of pension and gratuity caused a great hardship to his family, He contended that the applicant had submitted all necessary papers well in time before retirement and in spite of that the respondents have paid the said retiral benefits, viz. pension and gratuity, only after a long and inordinate delay and hence they are under a legal obligation to pay interest on the delayed payments at the rate of atleast 18 per cent per annum as claimed in the OA. Regarding payment of GPF, he submitted that the respondents have to take necessary action regarding reconciling the missing credits of GPF and pay the balance amount of GPF due to him also with interest as claimed in the application. He submitted that the respondents have utterly failed in discharging their legal obligations towards the retired Govt. employee namely, the applicant without any justification and prayed for the reliefs as claimed in the OA.
6. In reply, learned Counsel for the respondents, Shri Rajinder Pandita, contended that the pension and gratuity, etc. could not be paid to the applicant because of applicant's own delay and not due to any lapse or negligence on the part of the respondents. He submitted that the service book of the applicant was received from PAO only on 9.8.97 and that the said book was with PAO for leave encashment finalisation etc. He further submitted that because of the delayed submission of the pension papers by the applicant, the respondents are not liable to pay interest on delayed payments as claimed by the applicant in his OA.
He has also stated that the balance amount of GPF could not be paid to the applicant since old records pertaining to the same could not be traced and the GPF pass book was not submitted by him in spite of being asked to submit the same.
7. Learned Counsel for the applicant vehmently opposed the arguments advanced by the learned Counsel for the respondents. He submitted that the respondents did not even supply the necessary forms, i.e. Form 4 and Form 5, to the applicant to enable him to submit the same from open market as is evident from the receipt for purchase of the required forms given in Annexure A2 dated 6.397 and in spite of submitting the same forms duly filled in, pension and gratuity were not paid to him on the due date. This, he contended, shows utter negligence, callousness and lethargy on the part of the respondents and in particular it is the duty of the Head of the Department to do the needful and ensure that the retiral benefits are paid to the retired Govt. servant on the due date.
8. Learned Counsel for the respondents raised an objection that the OA is barred by limitation under Sections 19, 20 & 21 of the Administrative Tribunals Act, 1985 and is liable to be dismissed with costs in favour of the respondents.
9. Learned Counsel for the applicant in his reply submitted that the OA is perfectly within time as is evident from the rejoinder. The cause of action, he submitted, accrued on 3.2.99 when the applicant received his payment but without interest and the present application was filed in August, 1999, i.e. within the limitation period of one year as prescribed under the provisions of the aforesaid Act. He further submitted that when the respondents themselves have delayed the payment, which is squarely their fault, and they cannot stand on the plea of limitation, as held by the Hon'ble Supreme Court in S.R. Bhanrale's case (supra), and contended that the objection raised by the respondents regarding limitation is absolutely baseless and deserves to be rejected.
10. Learned Counsel for both the parties have been heard at length. Pleadings and all the relevant materials and documents placed on record have been perused. The matter has been considered carefully.
11. The relevant Rule 58 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Rules") which are applicable to Government employees of Union Territories also, deals with preparation of pension papers. The said Rule is as under:-
"Every Head of Office shall undertake the work of preparation of pension papers in Form 7 two years before the date on which a Government servant is due to retire on superannuation, or on the date on which he proceeds on leave preparatory retirement whichever is earlier." (Emphasis supplied).
12. The stages for completion of pension paper given in Rule 59 of the said Rules, which runs thus:
(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 entire 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 pay bills, acquittance rolls or other relevant records and record necessary certificates in the service book.
(iii) Tf 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 Govt. 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 produced 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 Govt. servant.
(b) Second stage.-Making good omission in the service book,
(i) The Head of Office while scrutinising 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 employments 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.
(c) Third Stage.- Obtaining Form 5 by the Head of Office.- Eight months prior to the date of retirement of the Government servant, the Head of Office shall obtain Form 5 from the Government servant duly completed.
(2) Action under Clauses (a), (b) and (c) and Sub-rule (1) shall be completed eight months prior to the date of retirement of the Government servant."
(Emphasis supplied)
13. The duty of the Head of the Office regarding the completion of pension papers is dealt with under Rule 60 of the said Rules, which is as under;-
"The Head of Office shall complete Part 1 of Form 7 not later than six months of the date of retirement (the expression "not later than six months of the date of retirement" should be interpreted to mean "not later than six months before the date of retirement of the Government servant as per note 1 under the said provision - Swamy's Pension Compilation at page 134, 13th Edn. reprint).
(Emphasis supplied).
14. The provisions relating to forwarding of pension papers to Accounts Officer is given in Rule 61 of the said Rules, which is as follows:
"61. Forwarding of pension papers to Accounts Officer :
(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.
(3) Where the payment is desired in another circle of accounting unit, the Head of Office shall send For 7 in duplicate to the Accounts Officer.
(4) The papers referred to in Sub-rule (1) shall be forwarded to the Accounts Officer not later than six months before the date of retirement of Government servant." (Emphasis supplied)
15. Very clear and detailed provisions are made regarding the cases in which or the circumstances under which provisional pension and gratuity are to be paid to the retired Government employee under Rule 64 of the said Rules. The relevant portion of the said Rule is extracted below :
"64. Provisional Pension :
(1) The various stages of action laid down in Rule 59 shall be strictly followed by the Head of Office. There may be an isolated case where, in spite of following the procedure laid down in Rule 59, it may not be possible for the Head of Office to forward the pension papers referred to in Rule 61 to the Accounts Officer within the period prescribed in Sub-rule (4) of that rule or where the pension papers have been forwarded to the Accounts Officer within the prescribed period but the Accounts Officer may have returned the pension papers to the Head of Office for eliciting further information before issue of pension payment order and order for the payment of gratuity. If the Head of Office in such a case is of the opinion that the Government servant is likely to retire before his pension and gratuity or both can be finally assessed and settled in accordance with the provisions of these rules, he shall without delay, take steps to determine the qualifying years of service and the emoluments qualifying for pension after the most careful summary investigations that may be made. For this purpose, he shall-
(i) rely upon such information as may be available in the official records, and
(ii) ask the retiring Government servant to file a written statement on plain paper stating the total length of qualifying service including details of emoluments drawn during the last ten months of service but excluding the breaks and other non-qualifying periods of service.
(2) The Government servant while furnishing the statement as in Clause (ii) of Sub-rule (1) shall, at the foot of the statement make and subscribe to a declaration as to the truth of the statement.
(3) The Head of Office shall thereafter determine the qualifying years of service and the emoluments qualifying for pension in accordance with the information available in the official records and the information obtained from the retiring Government servant under Sub-rule (1). He shall, then determine the amount of provisional pension and the amount of provisional retirement gratuity, (substituted by G.I, Deptt. of P.& P.W., Notification No.2/18/87-P.&P.W. (PIC), dated 20th July, 1988, published in the Gazette of India as S.O. No. 2388, dated the 6th August, 1988- published in Swamy's CCS Pension Rules, 1965 Ed) (4) After the amount of pension and gratuity have been determined under Sub-rule (3), the Head of Office shall take further action as follows :
(a) He shall issue a sanction letter addressed to the Government servant endorsing a copy thereof to the Accounts Officer authorising :
(i) 100 per cent of pension as determined under Sub-rule (3) of provisional pension for a period not exceeding six months to be reckoned from the date of retirement of the Government servant; and
(ii) 100 per cent of the gratuity as provisional gratuity as determined under Sub-rule (3) withholding ten per cent of gratuity or one thousand rupees, whichever is less.
(b) He shall indicate in the sanction letter the amount recoverable from the gratuity under Sub-rule (1) of Rule 63. After issue of the sanction letter he shall draw-
(i) the amount of provisional pension; and
(ii) the amount of provisional gratuity after deducting therefrom the amount mentioned in Sub-clause (ii) of Clause (a) and the dues, if any, mentioned in Rule 71, in the same manner as pay and allowances of the establishment are drawn by him.
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16. The rules relating to the authorisation of pension and gratuity by the Accounts Officer are given under Rule 65 of the said Rules which is as under:-
"(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 and gratuity and issue the pension payment order not later than one month in advance of the date of retirement of the Government servant if the pension is payable in his circle of account unit.
(b) If the pension is payable in another circle of accounting unit the Accounts Officer shall send 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.
(2) The amount of gratuity as determined by the Accounts Officer under Clause (a) of Sub-rule (1) shall be intimated to the Head of Office with the remarks that the amount of the gratuity may be drawn and disbursed by the Head of Office to the retired Government servant after adjusting the Government dues, if any, referred to in Rule 71.
(3) The amount of gratuity withheld under Sub-rule (5) of Rule 72 shall be adjusted by the Head of Office against the outstanding licence fee intimated by the Directorate of Estates and the balance, if any, refunded to the retired Government servant." (Emphasis supplied)
17. Rule 68 of the aforesaid Rules deals with payment of interest on delayed payment of gratuity. The relevant clauses of the said Rule are as under :
"68. Interest on delayed payment of gratuity :
(1) If the payment of gratuity has been authorised later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with the instructions issued from time to time:
Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers.
(2) Every case of delayed payment of gratuity shall be considered by the Secretary of the Administrative Ministry or the Department in respect of its employees and the employees of its attached and subordinate offices and where the Secretary of the Ministry or the Department is satisfied that the delay in the payment of gratuity was caused on account of administrative lapse, the Secretary of the Ministry or the Department shall sanction payment of interest.
(3) The Administrative Ministry or the Department shall issue Presidential sanction for the payment of interest after the Secretary has sanctioned the payment of interest under Sub-rule (2).
(4) In all cases where the payment of interest has been sanctioned by the Secretary of the Administrative Ministry or the Department, such Ministry or the Department shall fix the responsibility and take disciplinary action against the Government servant or servants who are found responsible for the delay in the payment of gratuity."
18. It is quite evident on perusal of the provisions of the aforesaid Rules that the Head of the Department is under a duty to ensure that pension, gratuity and other retiral benefits are paid to the retired employee on the due date. The process for making the aforesaid payments is clearly laid down in those Rules and at least two years before the date of retirement of a Government employee things should be set in motion and necessary actions on the part of the concerned authorities should be taken with due care and diligence and in time to see that the retiring employee is not put to any difficulty, problem or harassment regarding the payments to be given to him on his retirement as per the rules.
19. In the State of Kerala and Ors. v. M. Padmanabhan Nair, (1985) 1 SCC 429-1985( 1) SLJ 106 (SC), it was observed by the Supreme Court that as the date of retirement of every Government servant was very much known in advance it is difficult to appreciate why the process of collecting the information and issuance of the documents like the LPC (Last Pay Certificate) and the NLC (No Liability Certificate) should not be completed at least a week before the date of retirement so that the payment of gratuity amount could be made on the date of retirement or on the following day and the pension at the expiry of the following month. The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement could not be over-emphasised as per the judgment in the said case.
20. In the case of Dr. Uma Agrawal v. State of U.P. and Anr. (supra), the Supreme Court has observed thus:-
"We have referred in sufficient detail to the Rules and instructions which prescribed the time-schedule for the various steps to be taken in regard to the payment of pension and other retiral benefits. This we have done to remind the various government departments of their duties in initiating various steps atleast two years in advance of the date of retirement. If the rules/instructions are followed strictly much of the litigation can be avoided and retired government servants will not feel harassed because after all, grant of pension is not a bounty but a right of the government servant. Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment. The Court can certainly keep in mind the time-schedule prescribed in the rules/ instructions apart from other relevant factors applicable to each case.
The case before us is a clear example of department delay which is not excusable. The, petitioner retired on 30.4.1993 and it was only after 12.2.1996 when an interim order was passed in this writ petition that the respondents woke up and started work by sending a special messenger to various places where the petitioner had worked. Such exercise should have been started atleast in 1991, two years before retirement. The amounts due to the petitioner were computed and the payments were made only during 1997-98. The petitioner was a cancer patient and was indeed put to great hardship. Even assuming that some letters were sent to the petitioner after her retirement on 30.3.1993 seeking information from her, an allegation which is denied by the petitioner, that cannot be an excuse for the lethargy of the department inasmuch as the rules and instructions require these actions to be taken long before retirement. The exercise which was to be completed long before retirement was in fact started long after the petitioner's retirement."
(Emphasis supplied)
21. In the case of S.R. Bhanrale v. UOI and Ors. (supra), it was observed by the Supreme Court that though the applicant in that case served the Department for at least 40 years before his superannuation, he was made to run from pillar to post to get his legitimate dues and had suffered a lot. Had the amount which has been found due but not paid had been paid to him at the appropriate time when he retired, the appellant would have been saved from a lot of unnecessary harassment and besides he would have earned interest on the amount also. He could have utilised the amount for other purpose and he was denied the same on account of default on the part the Department. The Court directed the respondent Union of India to pay certain amount towards interest compensation, litigation expenses, etc. for the amounts wrongfully withheld from the appellant for more that 12 years, in addition to the claim amount already paid to the appellant.
22. It was also held by the Supreme Court in the aforesaid case that the amounts now paid to the appellant admittedly fell due to him much before his retirement and the same was wrongfully withheld and that "it was, to say the least, improper on the part of the Union of India to plead the bar of limitation against such claims of its employees, when it had defaulted in making the payments promptly when the same fell due. It is not as if the appellant had woken up after a decade to claim his dues. He had been asking the department to pay him his dues both while in service and after superannuation also but to no avail. In these circumstances it ill behoved the Union of India to plead bar of limitation against the dues of the appellant."
23. It is seen from the facts and circumstances of this case, as given in the counter filed by the respondents, briefly, that the service book of the applicant was received by the department on 9.8.97 from the PAO, i.e. after the retirement of the applicant and his calculation sheet was prepared and put up for signatures on 17.9.97, His N.O.C. with regard to disciplinary/vigilance clearance was issued on 7.10.97 and only thereafter the pension papers were submitted to the PAO with certain objections and it is stated by the respondents that most of the objections were removed except one objection regarding service verification for the period 31st March, 1973 to 31st March, 1974 and 1st April, 1988 to 31 st March, 1989. To trace the old records concerning these two service periods, it took some time and in the meantime, revised pay Rules of 1999 were notified by the Government of India and after receiving the endorsement from the NCT of Delhi, the entire calculations were recalculated and after receiving the option from the applicant on 16.12.97 to fix the revised pay under the Revised Pay Rules, the pay was fixed during December, 1997 itself and the applicant was requested to submit pension nomination forms, i.e. Form A under Rule 5, as desired by the PAO, which the applicant submitted on 5.3.98. Finally, after clearing of the objections raised by the PAO, the payments were made on 3.2.99 to the applicant. The authority regarding payment of pension was issued by the PAO on 17.2.99. Part payment of GPF amount excluding missing credits was made to the applicant on 19.8.97. On 23.9.97 GPF Cell informed about missing credits of GPF pertaining to the period May, 1972 to March, 1983. The respondents have also stated that because old records pertaining to GPF subscription could not be traced in the office to verify GPF subscriptions pertaining to the missing credits period, the applicant was requested to submit the relevant GPF pass book so that matter can be finalised on collateral evidence but the applicant has been unable to submit his pass book. Accordingly, the case of missing credits of GPF amounting to Rs. 5345/- is still pending.
24. The above facts and circumstances of the case as given by the respondents themselves only indicate that necessary action which should have been taken by the respondents much before the date of retirement of the employee, namely the applicant, was taken after retirement of the applicant in total disregard of the provisions of the aforesaid rules and the well settled legal provision as given supra. The absolute lethargy, unconcern and the delay on the part of the respondents in making payment of the concerned dues to the applicant which ought to have been paid to him on the due date, is shocking to say the least. Moreover nothing is stated by the respondents either in their counter or during the arguments advanced by the learned Counsel during the hearing as to why provisional pension and provisional gratuity were not paid to the applicant, if regular pension and gratuity could not be given to the applicant on the due date as per the relevant rules discussed supra. It was the duty of the respondents to pay the regular pension and gratuity to the applicant on the due date as per the aforesaid Rules and the well settled legal position. The failure to discharge the said duty on the part of the respondents is without any valid and tenable explanation from their side. This is an unfortunate state of affairs and in my view the applicant has been put to a long period of mental torture and harassment due to the inordinate delay of the respondents in releasing the payments due to him and also the non-payment of a part of his GPF due to the missing credits.
25. The contention of the respondents regarding the OA being barred by limitation under Sections 19, 20 and 21 of the Administrative Tribunals Act, 1985 is very vague. The respondents have not been able to indicate as to how the OA is barred by limitation under the said provisions and in the facts and circumstances of this case. In view of the decision of the Supreme Court in S.R. Bhanrale's case (supra) and the applicant's submission in his rejoinder that the cause of action accrued on 3.2.99 when he received his payment but without interest and the application is filed in August, 1999, i.e. within the stipulated period of one year under the provisions of the aforesaid Act, which is not denied by the learned Counsel for the respondents, I am of the opinion in the facts and circumstances of this case that the said plea about limitation raised by the respondents is untenable. The said contention is therefore rejected.
26. In view of the above discussion, this OA is disposed of with the following directions :
(1) The respondents are directed to pay to the applicant interest at the rate of 18 per cent per annum on the delayed payment of pension from 1.9.97 till 17.4.99, and on gratuity from 1.8.97 till 3.2.99 within three months from the date of receipt of a copy of this order.
(2) The respondents immediately on receipt of a copy of this order should take vigorous and intensive steps to verify the position of the missing credits of GPF on top priority and ensure that any amount which is due to the applicant towards the said GPF is paid to him within two months together with interest at the rate of 18 per cent per annum from 1.8.97 till the date of actual payment.
(3) The applicant is also directed to submit his GPF pass book, if any, together with other material documents or papers which may be available with him to the respondents within two weeks from the date of receipt of a copy of this order.
No costs.