R.s. Jindal v. Union Of India & Another

Vijender Jain, J.

1. Writ petition has been filed for appropriate directions directing the respondent/DDA to determine and pay petitioners entitlement of pension and other retiral benefits as per pension rules. The case of the petitioner is that the petitioner was compulsorily retired from service as Chief Engineer of DDA on 23rd December, 1985. Aggrieved by the said action of the respondent, the petitioner filed a writ petition bearing No. 168/86 before Division Bench of this Court and the Division Bench allowed the said writ petition vide order dated 15th December, 1986.

2. Delhi Development Authority (DDA) filed an SLP in the Supreme Court and the following order was passed by the Supreme Court:

Special leave granted. Preparation of record dispensed with. Appeal will be heard on present papers with such additional papers as parties may file within six weeks from today.

There will be stay on the condition that the respondent is paid his full salary and allowances pending disposal of the appeal.

3. The petitioner was re-instated in service as Chief Engineer pursuant to the order passed by the Supreme Court and superannuated on 3rd December, 1993. Supreme Court on 8th December, 1994 in view of the decision of Baikunthanath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., 1992 (2) SCC 299 [LQ/SC/1992/182] , allowed the petitioner to withdraw the petition filed by the petitioner in the High Court of Delhi with the direction to the petitioner to approach the DDA for getting an appropriate order on his entitlement to the pension. However, keeping in view the fact that the respondent (petitioner herein) has worked from 1985 to 1993 with the respondent/DDA, salary paid to the petitioner during that period was not to be recovered as per the direction of the Supreme Court. A further direction was also issued that it would be open for the petitioner to make an application to the authorities for fixing his pension with the direction to the DDA to fix such pension according to rules.

4. Pursuant to that order the respondent passed an order on 29.8.1995 which is at page 127 of the paper-book and granted arrears of pension to the petitioner from 1st January, 1994 to 31st July, 1995. The respondent, inter alia, in the said letter also informed the petitioner that with regard to the service rendered by the petitioner in the Municipal Corporation of Delhi prior to 22nd May, 1975, the matter was taken up with the MCD for payment of pro rata pensionary benefits. The petitioner was also given some amount of retirement gratuity and the rest of the amount was withheld till finalisation of pending disciplinary proceedings against the petitioner. Thereafter by an order dated 15th December, 1995, the Lt. Governor of Delhi ordered that the service rendered by the petitioner from 23rd December, 1985 as Chief Engineer be treated and regularised as re-employment period and the period of re-employment will not be counted for computing pension or any other retirement benefits. Aggrieved by the said order, the petitioner preferred the present writ petition.

5. Mr. G.D. Gupta, learned Senior Counsel for the petitioner has contended that during the pendency of the writ petition, the respondent paid to the petitioner provisional pension on account of arrears of pension w.e.f. 23rd December, 1995 to 30th December, 1997. It has been contended by Mr. Gupta that the respondent released the pension of the petitioner from 1985 to 1997 even for the period 1985-1993 but has not paid Dearness Relief on Pension from 23.12.1985 to 31.12.1993 Rs. 57,410/- [under Pension Rule 55-A(i)], Retirement Gratuity Rs. 47,375/- (under Pension Rule 50), Commutation of Pension Rs. 1,00,129/- (under CCS Commutation of Pension Rules, 1981) and Leave Encashment Rs. 30,320/- (CCS Leave Rules), thereby making a total of Rs. 2,35,234/-.

6. Mr. Gupta has contended that amount paid to the petitioner on arrears of pension as well as aforesaid heads which is yet to be paid, the petitioner is entitled to interest at the rate of 18% p.a. in view of the recent judgment of the Supreme Court in the case Vijay L. Mehrotra v. State of U.P. and Ors., JT 2000 (5) SC 171 [LQ/SC/2000/207 ;] ">JT 2000 (5) SC 171 [LQ/SC/2000/207 ;] [LQ/SC/2000/207 ;] and R. Kapur v. Director of Inspection (Painting and Publication), 1994 (6) SCC 591 [LQ/SC/1994/827] .

7. It was also contended before me by Mr. Gupta that the charge sheets which were issued to the petitioner pertained to the period prior to 1985. It was contended that departmental proceedings were initiated against petitioner seven years after his deemed date of retirement i.e. 23.12.1985 and for events that took place more than 11 to 22 years before such institution. It was also contended that the petitioner could not have been re-employed vide impugned letter dated 15th December, 1995 issued by the respondent. If the petitioner was superannuated on 23.12.1985 then from that date the petitioner could not have been re-employed. It was contended that said order has no sanctity in the eyes of law same being illegal and to bring the petitioner with his altered status of re-employed person under the ambit of those pension rulers which were otherwise not applicable to the petitioner as he was a retired person.

8. On the other hand, Mr. Mohan Rao, learned Counsel for the respondent/DDA has contended that the petitioners writ petition was dismissed and petitioner cannot claim benefit even though his writ petition was dismissed. Mr. Rao has further contended that the petitioner cannot claim salary as well as pension for the same period. He has contended that the petitioner has been paid salary from 1985 till the date of superannuation in December, 1993 and, therefore, benefit of pension cannot be given to the petitioner. Mr. Rao has further contended that the pension which has been paid from 1985 to 1993 to the petitioner was on account of order passed by this Court on 2nd September, 1997. Mr. Rao has argued that the order of aforesaid date be read as an order subject to the outcome of the writ petition and this is how the same was understood by the respondent and, therefore, the amount was released in favour of the petitioner.

9. It has been further contended by Counsel for the respondent/DDA that memos of charges were given to the petitioner subsequently as the petitioner has challenged the initial compulsory retirement and the matter was pending in this Court as well as Supreme Court and, therefore, there was no legal bar as the petitioner has been working after 1985 till 1993 being re-employed in the service of the respondent.

10. I have given my careful consideration to the arguments advanced by learned Counsels for the parties. The principle of commutation of pension is well established. It is the total period of service rendered by an employee which has to be taken into consideration for commuting the pension. In the instant case petitioner was compulsorily retired in the year 1985. Petitioner preferred a writ petition before the Division Bench of this Court. The Division Bench allowed the writ petition. Petitioner was re-instated in service under the orders of the Supreme Court. He performed his duties as Chief Engineer. Respondent DDA preferred an SLP before the Supreme Court and Supreme Court directed that the judgment of the High Court would be stayed on the condition that the petitioner should be paid his full salary and allowances. Unfortunately, the matter came up for final hearing before Supreme Court on 8th September, 1994 whereas petitioner superannuated on 3rd December, 1993. Mere fact that eight years of regular service which petitioner rendered with the DDA has not been counted for the purposes of commutation of the pension of the petitioner but petitioner cannot be denied pension on the ground that he has worked and drawn salary during the said period. If respondent had interpreted in other manner how the respondent has released arrears of pensions from 1985 till 1995 to the petitioner. It is too late for the respondent to take shelter under the order of 2nd September, 1997 as nowhere in the said order it has been mentioned that the payment of pension or arrears of pension was subject to further order in the writ petition. The order dated 2nd September, 1997 is to the following effect:

Counsel for respondents seek time to file counter affidavit and reply. Let them do so within four weeks, with advance copy to Counsel for petitioner, who may file rejoinder, if any, within four weeks thereafter.

Matter be listed on 26th February, 1998.

Mr. Apurb Lal states that for the period from 6th January, 1961 to 21st May, 1975 petitioner worked with the MCD, therefore, letter has been written to the MCD to pay pro-rata pension to the petitioner. Counsel for the petitioner states that since the petitioner was absorbed by the DDA subsequently, therefore, pension has to be paid by the DDA and rest is an internal matter of the respondent with MCD.

In this view of the matter let the DDA pay pension from the day he was inducted in service till he retired from the service as per judgment of the Supreme Court. With regard to pro-rata pension, DDA can settle the matter with MCD. Pension be paid within a period of six weeks. Dasti.

11. Even otherwise the letter which clinches the issue is the letter written by the DDA to the petitioner which is at page 170 of the paper-book:

Please find enclosed a cheque bearing No. 251360 dated 16.12.1997 amounting to Rs. 4,03,699/- on account of arrears of pension with effect from 23.12.1985 to 30.11.1997. The payment of pension is subject to furnishing the certificate as per enclosures.

It is requested that the said certificate only signed by you may please be sent to this office immediately.

12. Nowhere in the said letter it has been mentioned that the payment of arrears of pension w.e.f. 23rd December, 1985 to 30th November, 1997 was dependent on the outcome of the present writ petition. As a matter of fact, if the respondent was aggrieved by the order passed by this Court on 2nd September, 1997 the respondent ought to have preferred an appeal against the said order. No appeal was preferred by the respondent, thereby allowing the order to become final.

13. I also find no force in the arguments of the respondent/DDA that as the petitioner had worked from 1985 to 1993, they could have issued charge-sheets for the periods pertaining to the period prior to 1985 when on their own the respondent has not completed any disciplinary proceedings or have not taken any action against the petitioner subsequent to the earlier charges which were raised in the charge-sheet. Even otherwise, there is a considerable force in the argument of the petitioner that departmental proceedings instituted by the respondents in 1993 pertained to the events which took place more than 11 to 22 years before such institution and they are directly violative of the Pension Rule 9(2)(b)(ii). Pension Rule 19(2)(b)(ii) is reproduced below:

The departmental proceedings if not instituted while the Government servant was in service, whether before his retirement or during his re-employment shall not be instituted in respect of any event which took place more than four years before such institution.

14. All these cases were enquired into by the Competent Authorities/Central Vigilance Commission and have been found to be wrong and ordered to be closed. Therefore, I quash the charge-sheet issued by the petitioner on account of inordinate delay in instituting the disciplinary proceedings after the occurrence of the events. There is also force in the arguments of the petitioner that the petitioner could not have been re-employed by the respondents unilaterally and without his consent. As a matter of fact, there was no occasion for the petitioner to be re-employed as the petitioner has performed his duties as Chief Engineer after compulsory retirement from 23rd December, 1985 till the date he superannuated on 3rd December, 1993 in view of the order passed by the Supreme Court. The respondent could not alter the status of the petitioner i.e. of a retired person to re-employed person for the period 23rd December, 1985 to 31st December, 1993. As a matter of fact, when the petitioner withdrew the writ petition originally filed before the Division Bench of this Court, he stood compulsorily retired on 23rd December, 1985. By the impugned order dated 15th December, 1995 giving re-employment to the petitioner, the petitioner cannot be brought within the ambit of non-applicable pension rules. On this ground also I quash the impugned order dated 15th December, 1995.

15. Taking the totality of the circumstances into consideration and in view of the fact that there is nothing on record to contradict the calculation filed by the petitioner regarding pensionary benefits w.e.f. 23rd December, 1985. I direct the respondent to reconcile the amount paid to the petitioner vis-a-vis the different heads as are given in para 3 of the said application. The petitioner has not been paid retiral benefits which he was entitled. In the application, the petitioner has claimed interest @ 15% p.a. on delayed payments, while at the time of argument Mr. Gupta has contended that in Vijay L. Mehrotras case (supra), and R. Kapurs case (supra), Supreme Court has awarded interest @ 18% p.a. and, therefore, petitioner is entitled to interest @ 18% p.a. To my mind the petitioner cannot exceed his prayer to what he has not prayed in the application. Even otherwise in view of the fact that the interest rate has come down, I direct the respondent to pay arrears of retiral benefits as detailed above with 9% interest p.a. As amount of retiral benefits has been paid in 1997 after lapse of considerable time, petitioner shall be entitled to interest at the rate of 9% p.a. on the delayed payment from December, 1985 to December, 1997 till the payment is made.

16. Writ petition stands disposed of in terms of the above order.