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Judgment
This application has been filed on 02.08.2016 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. This Honble Tribunal be pleased to call for the records of the case of the applicant from the respondents and after perusal consider grant of reliefs as prayed for hereunder on the basis of settled principle of laws and rules.
b. To quash and set aside impugned orders dated 21/22.03.2016 and dated 28.03.2016 issued by Respondents No.2 and 4 and to direct respondents to pay arrears of leave encashment of remaining 252 days Earned Leave duly calculating on the basis of last pay drawn by the applicant and after deducting the amount of leave encashment already paid to the applicant for 252 days calculated on the basis of pay drawn by the applicant at the time of his compulsory retirement, along with the interest at such rate as deem fit by this Hon'ble Tribunal, from 01.07.2015 till the actual date of payment as the order of compulsory retirement has been quashed and set aside by this Hon'ble Tribunal vide order dated 13.06.2003, nullifying the effect of compulsory retirement of the applicant.
c. Cost of the application be provided for.
d. Any other further order as this Hon'ble Tribunal deems fit in nature and circumstances of the case be pleased."
The applicant was compulsorily retired by respondent No. 2 on 13.06.2003 and was reinstated on 08.09.2003 based on orders of this Tribunal in OA No. 432/2001 further directing the respondents: "The respondents will be at liberty to treat the intervening period from the date of compulsory retirement of the applicant to the date of his reinstatement as per rules. The retiral and other benefits including pension actually released to the applicant will be recovered from him and adjusted against the salary payable/to be paid to him."
These orders modified the punishment imposed on the applicant by reduction of pay from Rs. 940/- to Rs. 750/- for five years from 29.04.1997 and an order of compulsory retirement added by the Appellate Authority on 31.03.1998.The orders deleted the punishment of compulsory retirement as disproportionate while retaining the other punishment of reduction of pay. Accordingly, in implementation, the Competent Authority proposed to treat the period from 18.04.1998 to date of actual reinstatement in 2003 as period spent on duty and to pay 50% of pay and allowances to which he would have been entitled had he not been compulsory retired. Following this notice, the applicant was directed to refund the pensionary benefits received by him in letter of respondents No. B-2/PEN/DDM/MM/2003 dt. 30.09.2003 but the applicant failed to remit the amounts within the time prescribed. Therefore, in orders No. 19.12.2003, the Gratuity and CGEGIS, paid to him were ordered to be recovered from the salary of December 2003 over 36 months and a penal interest of 2% in addition to normal interest ordered for recovery. The GPF final payment paid to him upon his compulsory retirement was examined in these orders. These orders also mentioned that the recovery of Leave Encashment of Rs. 24,847/- would be separately ordered. For this aspect, the respondents issued an order in Reference No. B-2/PEN/DDM/MM/2003 dt. 23.12.2003 as follows:-
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" This is in continuation to this office letter of even No. dated 17/19-12-2003 on the above mentioned subject.
The further claim of enchashment of Earned Leave in respect of above official, as and when occasion arises, may be regulated as under:-
(i) The cash equivalent in respect of Earned Leave at his credit on the date of quitting his service due to retirement, resignation, invalidation, death etc. shall be limited to the quantum of earned leave earned by him from the date of his reinstatement in service (i.e. 08-09-2003) onwards subject to a maximum of [300] days including the period for which encashment was allowed at the time of his compulsory retirement.
(ii) The Total period of encashment of Earned Leave already availed of at the time of his compulsory retirement and allowed as above shall not exceed the ceiling on accumulation and encashment of earned leave in respect of Central Government employees.
This is for your information and further necessary action."
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Further, in Order No. B5/CAT/DDM/2005 dt. 13.04.2005, it was decided to drop recovery of interest and penal interest on pensionary benefits for reasons stated therein.
The applicant retired on 31.05.2015 and orders disbursing Leave Encashment were passed by respondents in Reference No. B- 2/PEN/DDM/MTS(MACP-III)/2015-16 dt. 29.06.2015 entitling him to 48 days of unutilized Earned Leave for encashment at the time of his regular superannuation. The applicant then filed a representation on 09.09.2015 seeking Leave Encashment for 252 days Earned Leave that had been paid to him at the time of compulsory retirement in 1998. To this request, he was advised by respondents as follows:
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DEPARTMENT OF POSTS, INDIA. O/o CHIEF POSTMASTER GENERAL, MAHARASHTRA CIRCLE, MUMBAI- 400 001.
TO
The Sr. Superintendent of RMS
Air Mail Sorting Division
Mumbai- 400 099.
No-STA/43-1(07)(47) DDM/2015 at Mumbai-400 001 the 21.03.2016
Sub:- Representation dated 31/08/2014 preferred by Shri D.D. Mane, Ex. Mailman(Air Mail Sorting Division).
Ref:- Your office letter No. B-5/Non-Stat.Rep/DDM/2015 dated 17/02/2016.
With reference to the above cited subject, the case has been examined by this office & I am directed to inform you that above representation has been rejected as it is submitted after a lapse of 7 & ½ year.
In accordance with Rule No. 27 of FHB Volume-I, claim for arrears of pay & allowances can not be considered after a Period of 6 years.
At the time of retirement of Ex. Official, he was having only 48 days of EL at credit & accordingly sanction was issued to the Ex. Official. Now, no arrears is to be drawn.
This may be intimated to the Ex-Official accordingly under intimation to this office.
Sd/-
(S B Vyavahare)
Asstt. Postmaster General(Staff)
O/o the Chief Postmaster General
Maharashtra Circle, Mumbai- 400 001.
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The applicant argues that it was the responsibility of the respondents as per the orders of this Tribunal to recover the Leave Encashment from his salary along with other retiral benefits and it was the respondents who failed to do so. He states that he is entitled to cash equivalent of leave salary after superannuation up to a maximum period of 300 days and now 252 days out of this entitlement has been denied to him on the basis that it was paid previously to him. He claims that since leave encashment amount was due to him only after superannuation, reference to Rule No. 27 of FHB Volume-I cited in the impugned orders is irrelevant. The respondents have referred to their orders regulating the Leave Encashment issued on 23.12.2003 for which the applicant had submitted a letter on 02.04.2007 after nearly 3 ½ years raising, interalia, this issue. Respondents had also replied to the applicant on 19.07.2007 referring to this letter and the applicant failed to make any representation until 31.08.2014 and then preferred this non-statutory representation after 7 ½ years which has been rejected by the respondents. They argue that the applicant had been given the opportunity after orders of this Tribunal and reinstatement to repay the leave salary paid to him but he did not do so and has enjoyed the benefit. Therefore, until the balance amount of leave encashment could be provided to him at the time of superannuation, such benefit is subject to a maximum of 300 days, of which he had already availed 252 days. Prior to the final hearing, an MA No. 444/2018 was filed on 10.08.2018 reporting that the applicant had deceased and seeking to replace him with his surviving spouse and son. Considering the circumstances, MA was allowed at the time of final hearing.
We have heard the learned counsel for the applicant and learned counsel for the respondents and have carefully considered the facts and circumstances, law points and rival contentions in this case.
From the chronological details stated above, it is apparent that this Tribunal when passing orders on 13.06.2003, placed a responsibility on the respondents to regularise the period of compulsory retirement as per rules and to recover the retiral and other benefits paid to him or adjust these amounts against the salary payable or to be paid to him. The applicants, thereafter issued notice including for repayment of all these amounts and when the applicant failed to comply, they passed orders for recovery of the pension and terminal benefits and, in respect of leave salary paid to him, they directed, in their letter dated 23.12.2003, that this would be treated as having been availed by him and would be deducted from his entitlement at the time of retirement.
The applicant had the option of appealing against these orders or taking legal recourse. He did neither and instead, by the submission of respondents, which remains without rebuttal, he filed a representation on 02.04.2007 which was also replied by respondents on 19.07.2007. Thereafter, the applicant remained silent till 31.08.2014 and still thereafter, after receipt of the impugned orders in reply, he has filed this OA.
The respondents have referred to the provisions of their FHB Manual, Volume-I under Rule No. 27 that arrears of pay and allowances cannot be considered after a period of six years. This aspect was considered by the respondents in three to four years till 2007 and their earlier orders were reiterated. In these circumstances, the applicant could only have taken up the matter in a further appeal or else, have taken legal steps in the matter. The period of six years as per Manual would then count from December 2003 when the orders regulating Leave Encashment were issued and therefore, when the applicant made his request in 2014, he was actually eleven years late.
The applicant argues that Leave Encashment entitlement arises only at the time of superannuation. However, in the peculiar case of the applicant, he had already availed of this concession perhaps initially under duress at the time of compulsory retirement, but when he failed to return the money, he exercised a final option in this matter. The applicant cannot have his cake and eat it too and will have to be subject to the ceiling fixed of 300 days for his period of employment. In the circumstances, this OA has no merits and is accordingly dismissed. Further, in the peculiar circumstances of the case, since the applicant has deceased, there shall be no order as to costs.