Than Singh vs Municipal Corporation Of Delhi
1997 Latest Caselaw 460 Del

JUDGMENT

Devinder Gupta, J.

1. The petitioner was a Vaccinator Inspector in Municipal Corporation of Delhi. He has approached this Court against the impugned act of the respondent in withholding retiral benefits including Pension, Provident Fund, Leave, Salary, Group Insurance and C.D.S. Amount.

2. The facts in brief are that on October 27, 1990 the petitioner was appointed as Vaccinator and was promoted on September 26, 1972 as Vaccinator Inspector. On July 27, 1990 an application, Annexure A, was submitted by him seeking voluntary retirement with effect from October 27, 1990. It is the petitioner's case that during the period of July 27, 1990 to October 27, 1990, the respondent did not communicate to him refusal of his request for voluntary retirement from service. As such, in terms of the provisions of the C.C.S. (Pension) Rules, 1972, the notice for voluntary retirement will be deemed to have been accepted by the respondent-Corporation and the petitioner will be deemed to have retired with effect from October 27, 1990 from the service of respondent. On retirement with effect from October 27, 1990 he became entitled to retiral benefits including Pension, Provident Fund, Leave Salary, Group 5 Insurance, C.D.S., and Gratuity amount. On March 20, 1991 an application was presented by him to the respondent for payment of pension etc. and, for that purpose necessary forms in triplicate were also submitted but with no response from the respondent-Corporation.

3. The petitioner thereafter filed an application before the Controlling Authority under the Payment of Gratuity Act, 1972 claiming direction against the respondent for releasing gratuity amount. The petitioner's claim was contested by the respondent-Corporation before the Controlling Authority, who through its order, annexure C, dated March 18, 1993 held that the petitioner stood retired from the service of the respondent with effect from October 27, 1990 and, thus, was entitled to gratuity amount. The Controlling Authority computed the amount of gratuity and directed the respondent to pay an amount of Rs. 41,850/- with 10% interest from the date of retirement till payment. The respondent preferred an appeal against the said order of the Controlling Authority before the Appellate Authority under the provisions of Payment of Gratuity Act, 1972. The appeal was dismissed vide order, annexure D, dated January 17, 1994. Civil Writ Petition No. 3906/94 preferred by the respondent challenging the order of the Controlling Authority and that of the Appellate Authority was also dismissed by a Division Bench of this Court on August 25, 1995.

4. The petitioner has alleged that after retirement from service, he received an officer order dated August 26, 1992 from the respondent Corporation imposing upon him penalty of removal from service and it is his case that the said order is null and void and is of no legal consequence since he stood retired in accordance with law on October 27, 1990. The respondents otherwise are estopped from treating the petitioner to be in service after October 27, 1990 and in relying upon the order dated August 26, 1992 in order to deprive him of the legitimate dues. In this background the petitioner has sought the aforementioned direction for payment of the amount of pension etc. and a declaration that respondent's action in withholding the retiral benefits is illegal, arbitrary and without jurisdiction.

5. The respondents in their reply filed on the affidavit of Dr. C. P. Singh, Zonal Health Officer, M.C.D., New Delhi admitted that the petitioner submitted an application for voluntary retirement on July 27, 1990. But it is stated that on September 18, 1990 through letter No. HD/NDH/90/1990 he was informed of the rejection of his request on the ground that regular departmental action was pending against him for major penalty with Vigilance Department. The petitioner as such did not retire from service. He was duly charge sheeted by the Competent Authority and on August 26, 1992 an order was passed removing him from service. On this basis it is stated that the petitioner is not entitled to retiral benefits as provided under Section 24 of the C.C.S. (Pension) Rules, 1972.

6. We have heard learned counsel for the parties and been taken through the entire record. The respondents have not disputed the fact of receipt of the application preferred by the petitioner seeking voluntary retirement. The respondents have not placed on record any notice as regards delivery of the alleged letter dated September 18, 1990 on the petitioner by which his application seeking voluntary retirement is alleged to have been rejected. The respondents have not denied the fact that the petitioner did approach the Controlling Authority for payment of gratuity and against the order of the Controlling Authority, an appeal was preferred, which was dismissed, against which writ petition was filed by the respondents, which was also dismissed. Before the Controlling Authority, the respondents had raised an objection as regards the petitioner's voluntary retirement alleging that the petitioner did not retire from Municipal Service since his application seeking voluntary retirement was rejected. The respondents plea in those proceedings is noticed as under :

"Management also submitted in his reply that neither the applicant has retired nor his application is admitted and departmental enquiry against the applicant under M.C.D. (Control & Appeal) Rules, 1959 is going on. The Management stated that the applicant's claim and service particulars in annexures are wrong. Management has also taken this plea that Controlling Authority has no jurisdiction in this matter.

7. On the pleadings of the parties, the Controlling Authority framed four issues, one of which was that whether the application of the petitioner for voluntary retirement was legal and valid. Parties were allowed to lead evidence. The Controlling Authority on the basis of evidence recorded a finding of fact that the petitioner in his application had sought voluntary retirement, which was to become effective on October 27, 1990 and the respondents' witness had expressly admitted the fact that no information or intimation regarding rejection of petitioner's application had been communicated to him. As such it was held that the petitioner's application stood accepted and that the respondents had no objection to voluntary retirement of the petitioner. The Controlling Authority also held that since the petitioner stood voluntarily retired from service with effect from October 27, 1990, therefore, he was entitled to gratuity on that date. Consequently, the gratuity was also worked out for the period upto October 27, 1990. The respondent was also held liable to pay interest on the amount of gratuity at the rate of 10% p.a. from October 27, 1990 till payment. This finding of fact recorded by the Controlling Authority was duly affirmed by the Appellate Authority in its order (annexure B). The respondent's writ petition was also dismissed by Division Bench observing :

"In the order of the Controlling Authority dated March 18, 1993 and of the Appellate Authority dated January 17, 1994, it has been held that intimation as regards the rejection of the request of respondent No. 3 for voluntary retirement was not communicated to him. It is also not shown on the material placed on record of this petition that the findings are contrary to the material placed before the Competent Authority. We find no ground to interfere. Dismissed."

8. Thus, the question that whether the petitioner stood voluntarily retired on October 27, 1990 or not was duly agitated by the parties on which findings of fact were duly recorded by the Controlling Authority, which were duly affirmed in appeal. The order became final and it is also not disputed that pursuant to the said order gratuity has since been paid by the respondent to the petitioner. The amount of gratuity was worked out on the basis that he stood retired on October 27, 1990. He was also paid interest on the amount of gratuity also from October 27, 1990 till the date of payment. The Controlling Authority exercising power under Payment of Gratuity Act was competent to decide the issue that whether the petitioner stood retired or was still in service. A decision on that issue now cannot be permitted to be re-opened. The respondent is not only estopped from questioning the same or to treat the petitioner still to be in service thereafter. The plea that the petitioner did not retire on October 27, 1990 now sought to be raised by the respondent is also barred on the principle of res-judicata. The question whether the petitioner stood retired on October 27, 1990 or not having become final and conclusive amongst the parties. A decision, right or wrong on a particular issue having become final cannot be allowed to be re-opened. Till the date of the petitioner's retirement disciplinary proceedings had not commenced. The respondent thereafter ought not to have taken any disciplinary action against the petitioner. Even charge sheet was served after more than one year of the petitioner's retirement. We may also observe that the petitioner did not participate in the disciplinary proceedings, which culminated in order Annexure F dated August 26, 1992. Thus, the respondents cannot take shelter behind the order stated to have been passed after two years of the petitioner's retirement on the assumption that the petitioner still continued to be in respondent's service. The same is non-est.

9. In view of the above the respondents were not justified in denying to the petitioner his legitimate dues. Consequently, the writ petition is allowed. The respondent is directed to work out and pay the amount of retiral benefits, including pension, provident fund, leave salary, group insurance, C.D.S. amount to the petitioner within a period of two months from the date of receipt of the writ order, failing which the respondents will be liable to pay interest on the amounts due from the date of retirement till payment at the rate of 12% p.a.