K. Baby vs The Principal General Manager

Antony Dominic, J.—This writ petition is filed seeking to quash Exhibit P6 order passed by the Central Administrative Tribunal, Ernakulam Bench in T.A. No. 23/2008 filed by the petitioner, a retired Telephone Operator. The dispute that was raised by him for consideration of the Tribunal was in relation to his liability to refund the terminal benefits received on exercising the option as contemplated under Rule 19 of the Central Civil Services (Pension) Rules, 1972. By the impugned order, the Tribunal held that though amounts were due from him to the department, since the amount quantified by the respondents have already been paid, no further amount can be recovered from the petitioner. As a result of this, the claim of the petitioner that the amount realised from him was far in excess of what was due was rejected by the Tribunal. It is in these circumstances, this writ petition has been filed.

We heard learned senior counsel for the petitioner and learned standing counsel for the respondents.

The petitioner is an Ex-service man having rendered service in Indian Air Force from 08.10.1963 to 04.07.1974. From Exhibit R1(a), it is seen that he was absorbed in the Department of Telecommunications with effect from 01.03.1983. By this order, he was called upon to exercise option under Rule 19(1) of the CCS (Pension) Rules within three months of the date of the order. Exhibit R1(b) shows that his option dated 12.01.1988 was received by the respondents only on 18.01.1988 and that, same was not accepted for being belated. Subsequently, on 06.01.1993, Exhibit R1(c) letter was issued by the Chief General Manager (Telecom), Kerala Circle conveying the approval of Member (Services), to condone the delay in exercising the option. It was informed that condonation of delay is subject to refund of the amount of pension/DCRG. Based on the above, Exhibit P4 communication was issued on 29.07.1993, informing the petitioner that an amount of Rs. 5,522.90 has been paid to him as service gratuity/DCRG and he was requested to credit this amount in one lump immediately. Petitioner replied to this letter by Exhibit P5 dated 25.08.1993 stating that the actual amount received by him was only Rs. 3,312.55 and that he was willing to refund the actual amount received. This was replied to by Exhibit P6 dated 23.03.1994, confirming that total amount due from him is Rs. 5,522.90. This was followed by Exhibit P7 dated 26.04.1994 informing him that including interest the total amount he has to pay was Rs. 10,209.10. Petitioner replied to this letter by Exhibit P8 dated 18.07.1997 requesting that he be permitted to remit the amount in instalments of Rs. 500/- per month. Subsequently, respondents issued Exhibit P9 letter dated 07.04.1998 informing him that the rate of interest payable on due amount has been revised from 6% simple to 12% compound by order dated 25.08.1994 and that he has to remit a sum of Rs. 82,334/-. This was challenged by the petitioner in W.P. (C) No. 2328/2004 and that writ petition was disposed of by Exhibit P10 judgment, where this Court held thus:

"In view of the proximity of date of retirement, I direct that the amount as referred to by the Department as Rs. 69,195/-, which represents the principal with compound interest are to be paid over by the petitioner in a lump sum. This is agreed to by the petitioner. By such payment, the petitioner''s full liability for making such payments is to be taken as satisfied. Consequential retirement benefits due to the petitioner taking notice of his full service reckonable for the purpose of pension are to be extended to him without any delay. However, it is made clear that the petitioner has remitted the aforesaid amount under protest. Respondents will be bound to give him the work sheet of calculation and petitioner will have the right to object to the demands if there is error in calculation. If petitioner makes up a case for refund, the respondents will be liable to make a refund as there is no justification in making any illegal gain because of the difficult situation of the petitioner."

Accordingly, the petitioner paid Rs. 69,195/- on 30.01.2004 and that is confirmed in Exhibit P11 letter of the respondents dated 19.02.2004. However, in Exhibit P11, the petitioner was called upon to remit a further amount of Rs. 49,017/-. On its receipt, objecting to the liability, as quantified by the respondents, the petitioner submitted Exhibit P12 representation, where he contended that the principal amount due from him was only Rs. 5,522.90 and that, including interest, his total liability was Rs. 18,471/-. On that basis, he claimed refund of the balance amount paid by him pursuant to Exhibit P10 judgment of this Court. The respondents rejected his claim and demanded remittance of Rs. 49,017/- as per Exhibit P13 communication issued on 02.04.2004. This was challenged in W.P. (C) No. 20329/2004 and that was transferred to the Tribunal, which re-numbered the case as T.A. No. 23/2008. It is in that T.A. the Tribunal has passed Exhibit P6 order, which is impugned in this writ petition. It is also relevant to state that in the meanwhile, on 31.01.2004, petitioner retired from service on attaining the age of superannuation.

The liability for refund of the amount is as provided in Rule 19 of the CCS (Pension) Rules. Rule 19(3) (a) provides that a Government servant, who exercise the option under clause 1(b), as done by the petitioner, shall be required to refund the pension, bonus or gratuity received in respect of his earlier military service, in monthly instalments not exceeding thirty six in number, the first instalment beginning from the month following the month in which he exercised the option. Therefore, though the petitioner had the liability to refund the amount received towards DCRG, he had the right to refund the same in instalments as provided in Rule 19(3)(a) of the CCS (Pension) Rules.

As we have already seen, the liability of the petitioner was quantified at Rs. 5,522.90 and in Exhibit P4 dated 29.07.1993, he was called upon to remit the same in one lump. Although it is the case of the learned counsel for the petitioner that when petitioner was absorbed into service with effect from 01.03.1983, he cannot be saddled with interest for any period subsequent thereto, we are unable to accept the said contention for the reason that though his absorption was with effect from 01.03.1983, it was only by Exhibit R1(c) dated 06.01.1993 that the delay in exercising the option was condoned, subject to refund of the amount of pension/DCRG as provided in Rule 19 of the CCS (Pension) Rules. Therefore, Exhibit P4 communication issued on 29.07.1993 quantifying the amount due from the petitioner cannot be said to be a belated exercise by the respondents, disentitling themselves for the interest that is payable by the petitioner. However, the fact remains that in Exhibit P4, petitioner was not afforded an opportunity to pay the amount due in instalments, as provided in Rule 19 (3) of the CCS (Pension) Rules. This, therefore, means that the liability as quantified and intimated by the respondents, when Exhibit P10 judgment was rendered, cannot be sustained and petitioner''s liability to refund the amount, as provided in Rule 19, as on 29.07.1993, when Exhibit P4 was issued, should be re-quantified by the respondents applying the rate of interest and penalty, as the case may be, that was prevailing then. Such being the case, we are unable to sustain the order passed by the Tribunal.

Accordingly, Exhibit P6 order passed by the Tribunal in T.A. No. 23/2008 will stand set aside and the O.A. will stand disposed of directing the respondents to issue a revised calculation, quantifying the liability of the petitioner, as indicated above. It is also directed that if the amount remitted by the petitioner on 30.01.2004 pursuant to Exhibit P10 judgment is in excess of the amount as re-quantified, same shall be refunded to him. This exercise shall be completed as expeditiously as possible, at any rate within four months from the date of receipt of a copy of this judgment.

The writ petition is disposed of accordingly.