CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
Original Application No.3533 of 2011
Heard & decided on : 17th March, 2012
HON BLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN
HON BLE DR. RAMESH CHANDRA PANDA, MEMBER (A)
Dr. V. T. Prabhakaran S/o T. S. Menon
(Ex. Principal Scientist, IASRI),
346, DDA (SFS) Flats,
Pocket 2, Sector 19, Dwarka,
New Delhi-110075. Applicant
( In person )
Versus
1. Director,
Indian Agricultural Statistics Research Institute.
PUSA, New Delhi-110012.
2. Secretary,
Indian Council of Agricultural Research,
Krishi Bhawan, New Delhi-110001.
3. President,
Indian Council of Agricultural Research,
Krishi Bhawan, New Delhi-110001. Respondents
( By Shri Gagan Mathur, Advocate )
O R D E R
Justice S. C. Sharma, Acting Chairman:
Instant Original Application has been instituted for the following reliefs:
(i) Quash and set aside the IASRI Order dated 29.10.2010 as arbitrary and illegal.
(ii) Direct the respondents to pay the applicant penal interest at the rate of 18 per cent from the date of his retirement to the date of actual payments of leave encashment and GIS.
(iii) Pass such other Order(s) as this Hon ble Tribunal may deem fit and proper in circumstances of the case.
2. The pleadings of the parties may be summarized as follows:
It has been alleged by the applicant that he worked as Principal Scientist at Indian Agricultural Statistics Research Institute (IASRI), New Delhi, and he retired on superannuation on 28.02.2009 after serving the ICAR for nearly 40 years. At the time of his retirement, a disciplinary enquiry was pending against the applicant. It is not necessary to enumerate the charges for which the enquiry was pending against the applicant. However, it has been alleged by the applicant that payment in respect of leave encashment and Group Insurance Scheme (GIS) was delayed beyond 28.02.2009, the date of his retirement. On 03.10.2009 a sum of Rs.7,65,916/- was paid to the applicant towards leave encashment, and a sum of Rs.58,718/- towards payment of GIS was paid on 02.12.2009. There has been a delay of seven months and nine months respectively in the payment of leave encashment and the amount of GIS. In view of the judgments of the Hon ble Supreme Court and in view of the rules, it was required on the part of the respondents to initiate the papers regarding retirement of an employee two years earlier to the date of superannuation, but as the documents were not routed within time, hence there had been delay, which was intentional as the respondents were biased against the applicant, and as the amount was paid belatedly, therefore, the applicant is entitled for interest at the rate of 18 per cent per annum. Hence, this OA.
3. The respondents in their counter reply have alleged that it is correct that the applicant retired on 28.02.2009, but at the time of his retirement a disciplinary case was pending against him under rule 14 of the CCS (CCA) Rules, 1965, and that as per rule 9 of the CCS (Pension) Rules, only provisional pension was payable to the applicant till the disciplinary enquiry remained pending. As the applicant was not clear from disciplinary angle, hence the amount of leave encashment was not immediately paid to him. The payment of leave encashment has to be examined in the context of rule 39(3) of CCS (Leave) Rules, 1972. In view of the said rule, the competent authority to grant leave may withhold whole or part of cash equivalent of earned leave. As the disciplinary proceedings were not concluded against the applicant on the date of superannuation, hence the respondents referred the matter to the ICAR headquarters seeking their advice, and the ICAR headquarters, after examining the whole issue, as per rules directed the Institute vide letter dated 18.08.2009 to release the leave encashment of the applicant. Hence, the amount of leave encashment was released in favour of the applicant on 30.10.2009 after completing the codal formalities, and under the circumstances, there appears no delay having been caused in payment of leave encashment to the applicant.
4. For payment of the GIS amount, as per procedure, an individual has to submit a claim form to get the amount reimbursed. Although the applicant retired from service on 28.02.2009, but he submitted the claim form only on 30.05.2009, and thereafter it was sent to the Life Insurance Corporation of India (LIC) vide letter dated 09.06.2009 for further necessary action at their end, as the amount of GIS is to be released by them, and the cheque for the same is to be sent to the Institute for making payment to the claimant. The LIC vide letter dated 24.10.2009 released the payment by cheque, which was received by the Institute on 07.11.2009, and the amount of Rs.58.718/- was released in favour of the applicant on 02.12.2009. The amount was released in favour of the applicant after fulfillment of all formalities as per rules and there is no intentional delay in the payment of retirement benefits to the applicant in the facts of the case.
5. We have heard the applicant Dr. V. T. Prabhakaran in person, and Shri Gagan Mathur, learned counsel for the respondents, and perused the entire record of the case. In the present case, the controversy involved for adjudication is very narrow. It has been contended on behalf of the applicant that he superannuated after attaining the age of retirement on 28.02.2009 after serving the respondent department for a period of 40 years, and that all his retiral dues were payable to him on the date of retirement. It will be material to state that the applicant has not claimed interest on the delayed payment of retiral benefits like pension, commutation etc. It has been alleged by the applicant that there was delay of about seven months in the payment of leave encashment, and nine months in the payment of the amount of GIS, and that this delayed payment was intentional on the part of the respondents in order to harass the applicant. On behalf of the respondents, it has mainly been alleged that as the disciplinary proceedings were pending against the applicant, and hence the amount on this count was not paid to the applicant immediately after retirement. It has also been alleged by the respondents that the matter of payment of leave encashment was referred to the ICAR headquarters for their advice, because the payment had to be made to the applicant as per rule 39(3) of the CCS (Leave) Rules, 1972, and when the direction was received from the headquarters of ICAR in order to release the amount of leave encashment, the same was paid to the applicant immediately after fulfillment of the formalities. The direction of the ICAR headquarters was received on 18.08.2009 and the amount of Rs.7,65,916/- towards leave encashment was released to the applicant on 30.10.2009 after completion of the formalities.
6. As we have stated above, the applicant in the OA itself has alleged that on the date of retirement, i.e., 28.02.2009, a disciplinary enquiry was pending against him. It has also been alleged by the applicant at this stage that the charges leveled against him were not related to pecuniary loss. We are not concerned with the merits of the charge memo which was pending against the applicant, but it is a fact that the disciplinary enquiry was pending against the applicant on the date of his superannuation. The respondents have alleged that as disciplinary proceedings were pending against the applicant, hence they were required to make the payment of the leave encashment as per rule 39(3) of the CCS (Leave) Rules, 1972. It will be material to reproduce rule 39(3) of the said Rules:
(3) The authority competent to grant leave may withhold whole or part of cash equivalent of earned leave in the case of a Government servant who retires from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any.
To this extent, the respondents can be said to be justified that when disciplinary proceedings were pending against the applicant, then they had to adopt the procedure as provided in rule 39(3) of the CCS (Leave) Rules, 1972. It has not been provided in the said rule as to whether the charge is related to pecuniary loss or not. The nature of the disciplinary enquiry has not been mentioned in the rule. It has been alleged by the respondents that immediately after retirement of the applicant on 28.02.2009, the matter was referred to the ICAR headquarters for payment of leave encashment to the applicant. It has been alleged by the applicant that there was no reason and occasion for the respondents to refer the matter of payment of leave encashment to ICAR headquarters, and it was with a view to cause harassment to the applicant. We have perused the relevant rule 39(3) of the Rules of 1972, which provides for fulfillment of certain formalities for payment of leave encashment, and it has also been provided that the competent authority may withhold whole amount of the leave encashment or part thereof. It cannot be said that the respondents were not justified in referring the matter to the ICAR headquarters vide letter dated 18.08.2009 to release the leave encashment of the applicant. In response to the communication of the headquarters, the respondent No.1 acted immediately for release of the amount. After all, the respondent is a Government organization and it cannot be expected to act like a private company. Certain formalities are required to be fulfilled for payment of the amount from Government organizations. It has been alleged by the respondents that as per directions of the ICAR headquarters, the respondent No.1 released the payment of leave encashment to the tune of Rs.7,65,916/- on 30.10.2009, after completing the codal formalities, and hence there was no delay. We are convinced that the respondents were justified in referring the matter to the ICAR headquarters. It has not been provided in any law that immediately on the date of retirement, the entire amount is to be paid to the retired employee. After all, some time is to be consumed in fulfilling the formalities. The Hon ble Supreme Court in a case has laid down that at least two months time is required to fulfill the formalities, but the present case is entirely different from a normal case of retirement. The applicant has himself admitted that disciplinary proceedings were pending against him, and due to pendency of the disciplinary proceedings, as a matter of abundant precaution, the matter of payment of leave encashment was referred to ICAR headquarters, and it is only on the response of the headquarters that after fulfillment of formalities, the amount was released in favour of the applicant. The applicant could be said to be entitled to penal interest on the amount of leave encashment if there was intentional long delay on the part of the respondents. Considering the facts of the case, whatever may be the delay on the part of the respondents, that is due to pendency of the disciplinary proceedings against the applicant, and it cannot be attributed to the respondents that because they wanted to harass the applicant, hence the payment has been delayed. Hence, we are of the opinion that there is a delay of only seven months in the payment of amount of leave encashment, and it cannot be said that the delay is extraordinary, which caused harassment to the applicant. As we have commented above, we are not concerned with the pendency of the disciplinary enquiry and its facts, and we are only concerned as to whether there is intentional delay on the part of the respondents, and we are convinced that there is no intentional delay in payment of the amount of leave encashment, and whatever delay may be there, the same was due to pendency of the disciplinary proceedings against the applicant.
7. It has also been alleged by the applicant that the amount of GIS was also payable to the applicant on the date of retirement on 28.02.2009 and that there has been delay of about nine months in the payment of GIS amount. It is a fact that the amount of GIS was paid after about nine months from the date of retirement of the applicant, but we have to ascertain as to which is the competent authority to ensure the payment of GIS amount. It has been alleged by the respondents that the payment of GIS is to be made as per procedure, and according to the rules, an employee is required to fill up a claim form in order to get the amount of GIS. It is a fact that the applicant retired on 28.02.2009, but the claim form was not submitted by him on the same day. Rather the claim form was submitted by the applicant on 30.05.2009. There had been some delay on the part of the applicant also. Moreover, it is a fact that the amount under the GIS does not remain with the respondents, but it is a scheme run by the LIC, and the amount is to be paid by the LIC. After submission of the claim form by the applicant, the matter was sent to LIC vide letter dated 09.06.2009 for payment of the amount to the applicant. The matter is to be finalized and processed at the end of the LIC. It has been alleged by the respondents that the cheque was sent by LCI for payment to the applicant, and a letter in this connection was received from LIC on 24.10.2009 releasing the payment by cheque which was received in the Institute on 07.11.2009, and after fulfillment of formalities, the amount was finally paid to the applicant by cheque on 02.12.2009. The respondents have elaborately laid down the procedure provided under rules for payment of the amount of GIS. If there is any delay in payment of the amount of GIS, then this delay cannot be attributed to the respondents. We have ascertained the procedure, as has been alleged by the respondents in para 4.2(f), and it cannot be said that the respondents at any stage delayed the payment intentionally. If the payment had to be made by the respondents and they delayed the payment, then only the respondents can be held responsible for the delayed payment and penal interest can be levied on the respondents.
8. Certain judgments have been produced by the applicant of the Hon ble Supreme Court. It will be appropriate to cite the judgments. He has first relied upon State of kerala & others v M. Padmanabhan Nair [(1985) 1 SCC 429]. It has been held by the Hon ble Supreme Court, The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over-emphasised and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement . Hence, in view of the judgment of the Hon ble Supreme Court, the amount of the dues to a Government servant of his retiral dues cannot be over-emphasized, and all circumstances are to be taken into consideration and if the payment is made after two months from the date of retirement, penal interest at the current market rate would be justified. The applicant has also cited the judgment of the Hon ble Supreme Court in Dr. Uma Agrawal v State of U.P. & others [(1999) 3 SCC 438]. It has been held by the Hon ble Supreme Court in para 5, 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 indeed is 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 Hon ble Apex Court in the judgment emphasized that payment of retiral dues must be made to the retired employee at the earliest and within a time-frame. There is no dispute regarding delayed payment of pension, commutation of pension etc. The dispute is regarding delayed payment of leave encashment and GIS amount. We have dealt with the reasons for delayed payment and in our opinion, whatever delay has occurred, that appears normal. As the disciplinary proceeding was pending against the applicant, hence the delayed payment of leave encashment. Moreover, as the claim form was submitted by the applicant himself belatedly, and thereafter the matter was processed by the LIC, hence there was delayed payment. By no stretch of reasoning it can be said that the delay was intentional, or that it was with a view to harass the applicant. Moreover, the applicant also produced the judgment of the Hon ble Supreme Court in S. K. dua v State of Haryana & another [(2008) 3 SCC 44]. The Hon ble Apex Court in para 14 held as follows:
14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well-founded that he would be entitled to interest on such benefits. If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such Rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of bounty is, in our opinion, well-founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents.
9. We have considered the judgments of the Hon ble Supreme Court, and we are of the opinion that if there is intentional inordinate delay, then only the retired government servant would be entitled for penal interest. However, if the delay is due to certain circumstances, and if the delay is due to adopting the procedure, then it cannot be said that the delay is intentional and deliberate. We have stated above that the payment of the leave encashment was delayed as the disciplinary proceedings were pending against the applicant, and the respondents for justified reasons obtained the advice of the ICAR headquarters. In response to the advice of the headquarters, the respondent acted expeditiously to ensure payment of the leave encashment to the applicant, and only after expiry of seven months the amount was paid to the applicant. Moreover, as the amount of GIS is to be processed by the LIC, a different agency, and it was not within the control of the respondents to make the payment of GIS, whatever formalities were required on the part of the respondents, they had fulfilled the same after submission of the claim form by the applicant on 30.05.2009, and the amount was paid to the applicant on 02.12.2009, as the LIC took some time in order to process the matter.
10. For the reasons mentioned above, we are of the opinion that there appears no mala fide on the part of the respondents for the delayed payment of the amount of leave encashment as well the GIS amount to the applicant. The payment of leave encashment was delayed due to pendency of disciplinary proceedings against the applicant, and the respondents preferred to obtain advice from the ICAR headquarters in the matter. Moreover, the matter of GIS is to be processed by LIC and the time has been consumed by the LIC in processing the matter. We are of the opinion that there appears no deliberate and intentional delay and the applicant is not entitled for the relief claimed. The impugned order dated 29.10.2010 is thus upheld.
11. The OA lacks merit. Dismissed. There shall be no order as to costs.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/
OA-3533/2011
17.03.2012
Present: Applicant in person
Shri Gagan Mathur, counsel for the respondents.
We have heard the applicant Dr. V. T. Prabahkaran in person, and Shri Gagan Mathur, counsel for the respondents. Arguments concluded. Orders passed on separate sheets.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/
