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Judgment
Mohan Pyare, Member (A)
Shri Dharmendra Tiwari, learned counsel for the applicants and Shri D.S. Shukla, learned counsel for respondent Nos. 1, 3 and 5 and Shri P.R. Pandey, learned counsel for the respondent Nos. 2,4 and 6 are present.
By means of this OA, the applicants have sought the following reliefs :
“(i)To issue order or direction rule or direction for quashing and set-aside the impugned orders passed by the respondents no. 3 vide order dated 26.07.2013 Annexure A-1 in compilation no Part I to this original application.
(ii) To issue order or direction rule or direction for quashing and set aside the impugned orders passed by the respondents no. 4, 5 and 6 vide order dated calculation sheet 27.08.2013, order dated 07.11.2013, order dated 24.02.2014 & order dated 24.02.2014 Annexure no. A-2, A-3 & A-4 in compilation no. Part-I to this original application.
(iii) To issue an order or direction in the nature of mandamus directing the respondents to make the payment for the period of 11.08.2006 to 18.09.2008 quantum of payment being not less than subsistence allowance and other allowances admissible even if the period is held not spent on duty.
(iv) To issue an order or direction in the nature of mandamus directing the respondents to refund the interest recovered vide Annexure No. A-2, A-3, A-4 & A-5 because the payment is delayed due to inaction and dilatory practice of the respondents because the failed to comply with the decision dated 29.08.2008 by the appellate authority.
(v) To issue an order or direction in the nature of mandamus directing the respondents to pay interest on the delayed payment of D.C.R.G. and other retiral benefits in accordance with the Rule 68 of the C.C.S (Pension) Rules 1972.
(vi) To issue an order or direction as this Hon'ble Court may deem fit and proper in this facts and circumstances of the case.
(vii) That the cost of the application may also be awarded in favour of the applicant.”
The brief facts of the case are that the applicant i.e. Hubraj Ram (deceased employee) joined in the Department of Telecommunication on 05.01.1973, was promoted to the cadre of Sub Divisional Engineer on ad-hoc basis since 31.07.2000 and was regularised in the cadre since 21.02.2002 and retired on 30.06.2011. He was sent on deputation to B.S. N.L. and after completion of a pending disciplinary proceeding, he was absorbed in B.S.N.L. since 01.10.2000. A disciplinary proceeding was initiated on 30.01.2007 under Rule 14 of CCS (CCA) rule 1965. The Respondent No.3 vide order dated 24.07.2006 imposed the punishment of compulsory retirement from service. An appeal was preferred to President of India and thereafter vide appellate order dated 29.08.2008, the applicant was ordered to be reinstated with modified punishment of penalty of reduction of pay by two stages in the time scale of Pay for one year with cumulative effect and that the period of absence from duty i.e from the date of effect of compulsory retirement to the date of reinstatement may be regularized. The applicant resumed duty on 19.09.2008. It is submitted that due to failure of Respondent No.4 and 6 the period was left undecided and consequently the amount paid in the intervening period were not adjusted. The applicant retired on 30.06.2011and no payment of retiral dues was paid to him. The respondent No.6 vide letter dated 04.03.2013 asked to apply for leave for intervening period 11.08.2006 to 18.09.2008. He further asked to applicant vide letter dated 10.06.2013 to deposit the terminal benefit paid after compulsory retirement. The respondent No.6 vide his letter dated 12.07.2013 informed that he has sent the pension papers to respondent No.5 treating the period 11.08.2006 to 18.09,.2008 not spent on duty. On 20.07.2013, the applicant made an application to respondent No.4 to decide the matter as per rule keeping in view the reduction of punishment and decide the quantum of payment and difference of arrears but the aforesaid application has not been decided by the respondents. On 07.11.2013, the Respondent No.5 issued P.P.O recovering the amount of over payment and interest, which shows that provisional pension was paid upto August 2013 by Respondent No.5 which is incorrect. The respondent No.5 issued a corrigendum dated 24.02.2014 whereby the pension upto August 2013 have been shown paid but no payment was made and amount was adjusted towards recoverable amount. Hence, this OA.
Heard the rival submissions.
Learned counsel for the applicant has submitted that the Appellate Authority has directed to decide the period of absence in accordance with Chapter 5 and 6 of Swamy’s CCS (CCA) Rules, which relates to fundamental rules 54 (4) read with 54 (5), 54 (6) and 54(7). As per FR 54
(4) in case where compulsory retirement is set aside and there is no complete exoneration of a Govt. servant, the authority may determine after giving notice to the Govt. servant and the period should be dealt accordingly. The amount so determined shall not be less than subsistence allowance. As per FR 54 (5), the above period should not be treated as dies-non. The respondents have not worked in accordance with the direction issued by Appellate Authority and wrongfully treated the period between his removal and reinstatement as dies-non. On the date of retirement i.e. 30.06.2011 no DP case was pending or contemplated and no civil or criminal case was pending against the applicant so it is wrong on the part of respondents to withhold the sanction of pension and DCRG. There has been undue delay by the competent authority amongst the respondents in sanction of pension and so in accordance with the Rule 68 of CCS (Pension) Rules, 1972 respondents are liable to pay interest on delayed payment of pension. It was the duty of the respondents to inform the pension paying authority to stop pension of the applicant on his reinstatement, failure to do that has been the reason for continued payment of pension and hence it was not the fault of the applicant to pay interest on the pension amount received. The recovery of interest on pension is contrary to rule and on the basis of above discussions, he has requested to allow this OA.
The respondents have refuted strongly the contention of the applicant by filing a detailed counter affidavit and have submitted that the order of "compulsory retirement from service" has been awarded vide letter dated 24.07.2006 after detailed and proper investigation and findings that Non metered calls were made by the racket using an illegal code created by manipulating the programming in the exchange prove that applicant failed to maintain the secrecy of the password. The applicant filed an appeal against the order dated 24.07.2006 before the competent authority and the same was decided vide letter dated 17.07.2008. The appeal of the applicant regarding treating the period from the date of compulsory retirement to the date of reinstatement i.e. 11.08.2006 to 11.09.2008 as period spent on duty for all purpose had been rejected. The applicant availed the pension and salary together from 19.09.2008 to January 2010 without any intimation to the department, the recovery should have been made with penal interest. It is submitted that the several letters were written by the department to the applicant to apply leave for the period 11.08.2006 to 18.09.2008 but no leave had been applied by the applicant. It is submitted that due to non submission of any leave by the applicant, the period between 11.08.2006 to 18.09.2008 was treated as dies-non as per the relevant rules and regulations. It is also submitted that as per Appx.v (B) (iv) "where the period prior to reinstatement is neither treated as duty nor leave but dies-non, pension already drawn shall be allowed to be retained by the employee" and as such no recovery was done for said amount. The applicant received salary as well as pension from the department from 19.09.2008 to January 2010 for which the recovery has been made with simple interest as per CCS pension rules. On the basis of above discussions, learned counsel for the respondents has requested to dismiss the OA.
In rejoinder affidavit, the applicant has reiterated the same facts as given in the OA and added that the respondents are unable to distinguish between reinstatement on appellate decision altering the punishment (FR 54) and restoration of service on retirement under FR 56 (j). During currency of the earlier punishment the applicant was paid pension in Pension Account through Allahabad Bank. As the respondent No. 4 and 6 failed to inform the respondent No.5 about reinstatement, the Allahabad Bank automatically credited the pension to pension account. On coming to know the superfluous credited due to negligence of respondents, the applicant withdrew the amount and refunded the same. It is submitted that Ch 5 and Ch 6 of Swamy's CCS (CCA) Rules deals with suspension according to which the period intervening date of compulsory retirement and reinstatement had to be treated as suspension and to be decided under provisions of CCS (CCA) Rules, 1965. Provisions for such decision are accordingly given in FR 54. While M.O.S. (C & IT) deciding the appeal directed to decide the treatment of the impugned period under Ch 5 and Ch 6 of Swamy's CCS (CCA) Rules, But respondent No. 4, 5 and 6 decided to treat the period under appendix 5 of CCS (Pension) Rules 1972 and the period to be treated deemed suspension under FR 53(2) and decided under ER 54, has wrongfully been treated as per appendix 5 of CCS (Pension) Rules 1972 (Appendix) dealing with retirement and FR 56 (J). The period intervening compulsory retirement and reinstatement had to be treated deemed suspension and decided under FR 54. The period of deemed suspension could be treated as suspension limited to suspension allowance. It could not be treated dies non.
Learned counsel for respondent Nos. 1,3 and 5 also filed their additional counter affidavit, in which they have submitted that the amount of DCRG and CV were paid at the time of compulsory retirement. The applicant joined duties after order of reinstatement on 19-9-2008 without giving any information to the office of the respondents. Moreover, the applicant had received pension and pay (both) during the period from 19-9-2008 to 31-1-2010. Recovery on account of pension and interest was made for the said period only. It is submitted that the interest on pensionary benefits paid at the time of compulsory retirement is admissible as per G.I.M.F. OM No.F4(12)-EV(B)/76 dated 30-3-1978. It is also submitted that the treatment of period between the date of reinstatement and date of retirement (i.e. 11-8-2006 to 18-8-2013) could not be decided up to 25-7-2013 due to non cooperation of the applicant. After decision of this period on 26-7-2013 the pension case was settled on 24-9-2013. Therefore, the applicant is not entitled for relief claimed in the OA and the same is liable to be dismissed.
The applicant has filed the rejoinder affidavit to the additional counter affidavit filed by respondent Nos. 1,3 and 5 and submitted that the respondent No. 5 and 6 took no action to stop credit of Pension to applicant's Pension Bank Account and credit was made to the account by the Bank automatically and it was further got stopped by the applicant. It is submitted that the responsibility to adjust dues from pay immediately was on the respondents while the applicant was drawing pay since 19.09.2008 to 30.06.2011. To undo their lack of devotion to duty they evaded to decide the Period between Compulsory Retirement and Reinstatement immediately after reinstatement. It is further submitted that annexure CR-2 relates to retirement under F.R. 56(J) that is as a consequence of review after 50 years age or 30 years service. The instant case is not under F.R. 56 (J).
Learned counsel for respondents also filed their further additional counter affidavit, in which they have submitted that the applicant received the pay and pension both during the period September 2008 to January 2010 being a government employee, therefore, it is his duty not to receive any government money which is not due to him. Thus, it is his duty to inform to pension disbursing authority to stop disbursement of his pension for the aforesaid period but he has not informed and continued to receive the pay and pension both during the aforesaid period. It is further submitted that the pension has been paid by the office of CCA UP (E) Circle, Lucknow up to August, 2013. It is also submitted that the treatment of period between date of compulsory retirement and reinstatement could not be decided up to 25-7-2013 due to non cooperation of applicant and after decision of treatment of the said period on 26-7-2013 the pension case was settled on 24-9-2013 by the competent authority.
Considered the rival submissions and verified the documents available on record.
The fundamental Rule 54 (1) and 54 (4) , 54 (5) 54 (7) is quoted below :-
“F.R. 54 (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(4) In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject to the provisions of subrules (5) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving, notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be treated so for any specified purpose: Provided that, if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
(7) The amount determined under the proviso to sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.”
In the instant case, although the applicant was provided opportunity to submit his representation, which he has failed to do so, we feel that action of the competent authority amongst the respondents to treat the period between his removal and reinstatement as dies-non is contrary to the provisions of fundamental rules. As per rule 68 of CCS (Pension) Rules, 1972 and the decision of the Supreme Court in the case of Vijay L. Mehrotra vs. State of U.P. & Ors; JT 2000 (5) SC 171 whose relevant portion is reproduced as below :-
“2. The appellant retired from service on 31st August, 1997. From the response, filed by the respondent, it is clear that most of the payments of the retiral benefits to her were made long after she retired on 31st August, 1997. The details of the payments so made are as under:
S.No. Particulars
Amount Paid
Date
(i)
GPF 90%
Rs 1,80,899.00
27.11.1997
(ii)
GPF 10%
Rs 20,751.00
25.04.1998
(iii)
GIS
Rs 13,379.00
27.02.1998
(iv)
Enchashment of leave
Rs 41,358.00
27.09.1998
(v)
Arrears of pay
Rs 15,495.00
27.09.1998
(vi)
Gratuity
Rs 1,09,753.00
05.12.1998
(vii)
Commuted pension
Rs 20,484.00
05.12.1998
(viii)
Detained amount
Rs 45,000.00
05.11.1999
In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay the appellant within 12 weeks from today simple interest at the rate of 18% per cent with effect from the date of her retirement i.e. 31st August, 1997 till the date of payment."
As simultaneous receipt of pay as well as pension after reinstatement is not only the fault of the applicant, the respondents are equally responsible for that as they have failed to take proper action to intimate the pension disbursing authority to stop disbursement of pension to applicant. The OA is liable to be allowed and accordingly is allowed. The order dated 26.07.2013 is quashed and set aside. Once the above order is set aside, the order dated 27.08.2013, 07.11.2013 and 24.02.2014 is also set aside. The competent authority amongst the respondents is directed to re-decide the period between his removal and reinstatement afresh in the light of FR discussed above in paragraph 12. Similarly, the order dated 27.08.2013, 07.11.2013 and 24.02.2014 are also directed to be revised and consequent to such revision, due benefits, if any, should be paid to applicant in the light of discussion at paragraph 13. The above exercise should be completed within three months from the date of receipt of certified copy of this order. No order as to costs.
All MAs pending in this O.A. also stand disposed off. No costs.