Delhi High Court
Union Of India vs M.L.Punshi & Anr. on 19 July, 2010
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2885/2000
19th July, 2010
UNION OF INDIA ...... Petitioner
Through: Mr. Ravi Sikri and Mr.
Ayushya Kumar, Advocates
VERSUS
M.L.PUNSHI & ANR. ....Respondents
Through: Respondent No.1 in person.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
% JUDGMENT
SANJAY KISHAN KAUL, J. (ORAL)
CM No. 5565/2009 (Restoration) and CM No. 5566/2009 (Condonation of
delay) W.P.(C) No.2885/2000
The petitioner seeks recall of the order dated 22.9.2008 dismissing the
petition for non-prosecution and also condonation of delay of 162 days in filing
the application.
In our considered view, the petitioner should have been cautious and
keep a watch on the matter, as it is a Union of India. There is also a
considerable delay in filing the application.
However, keeping in view the facts and circumstances of the case, we
allow these applications subject to payment of costs of Rs.5000/- to the
respondent no.1 who appears in person.
Cost be paid within 15 days.
Applications stand disposed of.
W.P.(C).2885/2000
1. The petitioner is aggrieved by the impugned order of Central
Administrative Tribunal („CAT‟ for short) dated 11.2.2000 in terms whereof,
the respondent no.1 who superannuated on 31.3.1995 has been held entitled to
the benefit of OM dated 14.7.1995. It is the case of the petitioner that the OM
applies only to such persons who retired from service w.e.f. 1.4.1995 while
respondent no.1 retired on 31.3.1995.
2. The impugned order dated 11.2.2000 has allowed the OA of respondent
no.1 on the ground that the matter in issue is covered by judgment of the Full
Bench of the Central Administrative Tribunal, Nagpur Bench in OA No. 459
and 460/1997 decided on 15.10.1999.
3. A perusal of that order dated 15.10.1999 shows the reasoning of the
Central Administrative Tribunal. In order to appreciate whether the OM
applies or not, it would be appropriate to refer to the office memorandum dated
14.7.1995 itself. It is not necessary to reproduce the whole OM but the
relevant portion is being reproduced as under:-
" OFFICE MEMORANDUM
Subject: Treatment of Dearness Allowance as Dearness Pay
for the purpose of death gratuity and retirement gratuity and raising
the maximum limit of gratuity from Rs.1.90 lakhs to Rs.2.50 lakhs
............
The Fifth Central Pay Commission in its interim report, has
recommended the dearness allowance as admissible to the average
All India Consumer Price Index (AICPI) 120 1 66 may be treated
as dearness pay for reckoning emoluments for the purpose of
retirement gratuity and death gratuity under the Central Civil
Services (Pension) Rules, 1972 and the ceiling on gratuity be
enhanced to Rs.2.50 lakhs. Accordingly, the President is pleased to
decide that dearness allowance linked to AICPI 120 1 66 as
indicated below shall be treated as dearness pay for reckoning
emoluments for the purpose of retirement gratuity/death gratuity
under the Central Civil Services (Pension) Rules, 1972 in the case
of Central Government employees who retire or die on or after 1st
April, 1995."
We have to thus to interpret and understand the import of the expression "who
retire or die" on or after 1st April, 1995.
4. The plea of the petitioner as canvassed before the CAT and also
before us is that the respondent no.1 retired in the afternoon of the last
date of the month of his working which was 31st March, 1995 on attaining
the age of superannuation and thus he already stood retired on 31st March,
1995 and did not retire on or after 1.4.1995.
5. We are unable to persuade ourselves to agree with the submission
of the petitioner for the reason that the respondent no.1 continued to work
and is entitled to the benefits for the whole of the last working day i.e.
31.3.1995. It is only at midnight of 31.3.1995 that he completes his tenure
of employment and thus superannuates the moment he crosses 12 noon i.e.
on 1.4.1995. The OM itself showing that the same is applicable to every
person who retires on or after 1.4.1995 would thus apply to respondent
no.1. It cannot be said that respondent no.1 retired in any part of the day
of 31.3.1995. We find ourselves in complete agreement with the reasoning
of the CAT as reflected in the Full Bench judgment and thus consider it
appropriate to reproduce the relevant portions which are as under:
"5. At the relevant time, F.R. 56 provided that every
Government servant would retire from service "on the afternoon
of the last day of the month" in which he attained the age of 58
years. Rule 35 of the Central Civil Services (Pension) Rules
1972, (in short "Pension Rules)".
" A superannuation pension shall be granted to a
Government servant who is retired on his attaining the age of
compulsory retirement".
Rule 63(1) of the Pension Rules says:-
"Except in the case of a Government servant to whom the
provisions of Rule 37 apply and subject to the provisions of Rule
9 and 69, a pension other than family pension shall become
payable from the date on which Government servant ceases to be
borne on the establishment."
According to the Learned counsel for the respondents, retirement
from service "on the afternoon of the last day of the month" would
mean severance of relationship of master and servant after office
hours of the last day of the month itself. That means a person
remains in Government service for about 17 hours (i.e. from 1.00
a.m. to 5 p.m.) on the date of his superannuation and ceases to be
in such service for the remaining 7 hours of the day. Why then
such an employee does not get retirement pension for the last day
of superannuation, the Learned Counsel says, because he was paid
salary for that day. The reasoning appears to be falicious. A
person cannot be deemed to be in service for one part of a day and
out of service for the other part of the day. In other words, we are
of the view that such an employee retiring from service "on the
afternoon of the last day of the month" is deemed to be continuing
in service till the midnight of that day and accordingly for all
practical and technical purposes, he must be deemed to have
ceased from service or to have actually retired from service on and
from the next date of attaining the age of superannuation, i.e., with
effect from 1st of the month following the last day of the month of
superannuation.
6. Meaning of the word "afternoon" given on page 109
in Prem‟s judicial Dictionary, Vol.1 1992 Edition, published by
Bharat Law Publication, Jaipur is as follows:-
"Afternoon- This word has two senses. It may mean the
whole time from noon to midnight; or it may mean the earlier part
of the time, as distinguished from the event. When used in a
statute its meaning must be determined by the context and the
circumstances of the subject matter (Reg. v. Knapp. 3 E1, & B1
451) (1853) 2 B 447 (451). In 9 Geo. 4c 61, sch. C. the
expression "afternoon divine service" means, the earlier part of
the time from noon to midnight as distinguished from the
evening".
7. According to Rule 83 (1) of the Pension Rules,
Pension becomes payable from the date on which Government
servant ceases to be born on the establishment, (emphasis given).
A Government servant continues to be born on the establishment
till midnight of the date of superannuation. The decision of the
Hyderabad Bench of this Tribunal in T. Krishna Murthy‟s case
(supra) cannot be brushed aside out by the Learned Counsel for
the respondents. Retirement may be voluntary or on
superannuation. The principles for payment of pension will not
vary on the basis of these distinctions. According to us,
"afternoon of 31st of March: or "forenoon of 1st of April" means
one and the same thing and on this basis also we see no reason to
hold that the said case is not applicable to the present cases. - In
short, we are of the view that in the present cases the effective
date of retirement would be 01.04.1995 and not 31.03.1995."
6. The aforesaid reasoning is thus a complete answer to the plea of the
petitioner and which reasoning we adopt.
7. Learned counsel for the petitioner sought to rely upon the judgment of
the Supreme Court in Achhaibar Maurya Vs. State of Uttar Pradesh and
others (2008) 2 SCC 639. We find the facts of the said case are quite different.
The petitioner was retiring on 30.6.2003. If he retired thereafter, i.e., 1.7.2003
or any date subsequent to that, he would have been entitled to continue in
service for the remaining academic session as the rule provided for continuous
service for the academic session in such a case. The Supreme Court held
against the petitioner herein because he already stood retired on the midnight of
30.6.2003. These facts no way show that the respondent no.1 herein can be
held to be disentitled to the benefit of the OM which applies to a person who
retires on or after 1.4.1995, when respondent no.1 was in service right till
midnight of 31.3.1995 and retired only on 1.4.1995.
8. We thus find no merit in the writ petition and the same is accordingly
dismissed leaving the parties to bear their own costs.
9. The enhanced amount of gratuity be remitted to the respondent no.1
within one month from today.
Dasti to learned counsel for the parties.
SANJAY KISHAN KAUL, J.
JULY 19, 2010 VALMIKI J. MEHTA, J.
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