B S Khurana vs East Delhi Municipal Corporation ...
2014 Latest Caselaw 2010 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     W.P.(C) No.2440/2014 & CM No.5094/2014
                                          Date of Decision: 22nd April, 2014


     B S KHURANA                                            ..... PETITIONER
                                Through   Mr.Vikram Saini, Adv. with petitioner
                                          in person.

                                versus

     EAST DELHI MUNICIPAL
     CORPORATION & ORS.                    ...... RESPONDENTS

Through Mr.R.V. Sinha, Adv. for R-1.

Mr.Amrit Pal Singh, Adv. for R-3/UOI.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (Oral)

1. Notice. Mr.R.V. Sinha, Advocate accepts notice on behalf of

respondent no.1 & Mr.Amrit Pal Singh, Advocate on behalf of

respondent no.3. The petitioner has placed the entire record which was

before the Central Administrative Tribunal along with the writ petition.

Therefore, with the consent of parties, we have heard the arguments on

merits of the writ petition.

2. The petitioner superannuated in the year 1991 as a Town Planner

from the East Delhi Municipal Corporation (the then Municipal

Corporation of Delhi). He was initially appointed in the year 1952 as a

Tracer in the Central Water & Power Commission. The petitioner was

aggrieved by the action of the MCD in denying him benefit of his past

service w.e.f. 11th January, 1958 to 22nd June, 1960 towards his

qualifying service. As a result, the petitioner was also denied appropriate

retiral benefits. The salary of the petitioner was wrongly calculated and

the petitioner was denied benefit of the salary.

3. The petitioner, therefore, filed a writ petition in this court which

was transferred to the Central Administrative Tribunal where it was

registered as TA No.368 of 2009. The petitioner had prayed for direction

to the respondents to count his past service rendered in the Central Water

& Power Commission and in the Town & Country Planning Organisation

towards the service rendered by him in the MCD for the purpose of

pension and other retiral benefits. The said TA No.368/2009 was

disposed of by an order dated 22nd October, 2009 by the Central

Administrative Tribunal. Learned counsel for the petitioner has drawn

our attention to the defence of the MCD in the said TA No.368/2009

which is noted in para 2 of the order which reads as follows:-

"2. Respondents have taken an objection that the applicant who had already served in Central Water and Power Commission as well as Town and Counting Planning Organization as a temporary employee is not entitled to pension. It is also stated that when MCD has approached the erstwhile organization, this service rendered by the applicant was not certified. Accordingly, it is stated that applicant is not entitled to count his past service for pension and retiral benefits."

4. After considering the petitioner's claim and the stand of the

respondents in para 3 of the order, the Tribunal noted that in terms of UB

No.542 dated 29th November, 1989 issued by the MCD, the applicant

had a right to count his past service for the purpose of pension as well as

retiral benefits. After so holding, the Tribunal directed the MCD to count

his past service rendered for the period from 6th August, 1952 to 10th

January, 1958 as well as 14th January, 1958 to 22nd June, 1960 which

would be reckoned towards qualifying service for the purpose of the

pension subject to conditions mentioned in OM dated 29th November,

1989. It was directed by the Tribunal that the said direction shall be

complied with within a period of two weeks, after verification of the

service of the applicant/petitioner with his past employer.

5. It is apparent from a reading of the above that the Tribunal had

directed the Municipal Corporation of Delhi to consider the past service

for the entire period from 6th August, 1952 to 22nd June, 1960 (excluding

four days in January, 1958) towards his qualifying service for the

computation of his retiral benefits. The direction to implement the order

was time bound.

6. The order dated 22nd October, 2009 was not assailed by the MCD

and attained finality. Instead, purporting to act in compliance thereof, an

office order dated 8th April, 2010 was issued by the competent authority

of the MCD approving the counting of the past service of the petitioner

for the period from 6th August, 1952 to 11th January, 1958 towards his

pensionary benefits as admissible under the rules. We find that there is

not a whit of explanation as to why the MCD did not comply with the

complete directions of the Tribunal directing that the period from 14th

January, 1958 to 22nd June, 1960 was also to be reckoned towards his

qualifying service for computation of his pension as well as retiral

benefits.

7. In view of the failure to correctly reckon the complete past service,

the petitioner became entitled also to payment of arrears of salary

between 31st July, 1990 and 1st July, 2010. The petitioner was also

entitled to interest thereon. The petitioner filed OA No.2952 of 2011 in

this regard before the Central Administrative Tribunal which was

disposed of by an order dated 24th April, 2012. This application was

disposed of with directions contained in para 7 which reads as follows:-

"7. As regards his other prayer for grant of interest on the delayed payment on the arrears of pay w.e.f. 31.07.1990 to 01.07.2010, admittedly the applicant has retired from service on superannuation on 31.12.1991. If the respondent had counted his service from 06.08.1952 to 10.01.1958 for the pensionary purposes at the time of his superannuation, the applicant would have got higher pensionary benefits. But the respondents have revised the pension only after the applicant had first approached this Tribunal vide TA No. 368/2009. The respondents are, therefore, liable to pay interest at the rate applicable to GPF. on the

arrears of pension and gratuity paid to the applicant after revising those terminal benefits on counting the said period as qualifying service. Accordingly, they should work out the interest payable to the applicant and pay the same within a period of two months from the date of receipt of a copy of this order. They should also furnish statement of calculations of the amount of interest which they arrive w.e.f. 01.01.1992 till the same is paid. As regards the applicant's prayer for grant of interest on the delayed payment of arrears on account of pay w.e.f. 31.07.1990 to 01.07.2010 is concerned, the applicant has not made any averments in this O.A. Hence I refrain from passing any order on that account."

8. It is submitted before us that the Tribunal had erroneously noted

that the petitioner had not made averments with regard to delay in

payments w.e.f. 31st July, 1990 to 1st July, 2010 and, therefore, the

petitioner filed review application no.250/2012 which was dismissed by

an order dated 29th August, 2012. The petitioner assailed the said orders

dated 24th April, 2012 as well as 29th August, 2012 before this court by

way of WP (C) No.6884/2012. These orders were set aside by this court

by its order dated 2nd November, 2012 remanding the matter to the

Tribunal for consideration afresh on the issue of interest on delayed

payment of arrears for the afore-said period on merits.

Upon remand, the application has been considered afresh and

disposed of by the order dated 16th July, 2013 which is assailed before us.

9. In para 4 of the order, the Tribunal accepted the petitioner's

grievance that there was inaction on the part of the respondents in not

releasing interest on the delayed payment of arrears w.e.f. 31 st July, 1990

to 1st July, 2010 which action was both arbitrary as well as illegal. The

Tribunal allowed RA No.250/2012 directing deletion of the portion of the

order dated 24th April, 2012 whereby this prayer had been rejected.

10. The petitioner is aggrieved by the observations contained in para 6

of the order on the prayer for grant of interest on the delayed payment of

arrears on account of pay w.e.f. 31st July, 1990 to 1st July, 2010 is

concerned, that the applicant/petitioner has not made any averments in

the OA and therefore, no orders in this regard were passed. The

Tribunal has noted that the applicant/petitioner was not entitled to get this

period counted for pension or any other purpose as claimed by him.

11. The above narration would show that these observations are

contrary to the specific findings recorded in the order with regard to the

entitlements of the petitioner between the period between 11th -14th

January, 1958 to 22nd June, 1960.

12. It is noteworthy that the order dated 22nd October, 2009 was passed

by a Division Bench of the Central Administrative Tribunal and as such,

was not open to review by a single Member who has passed the order

dated 16th July, 2013. The contrary finding in the order dated 16th July,

2013 to the effect that the petitioner was not entitled to get the period

from 11th/14th January, 1958 to 22nd June, 1960 counted for pension or

any other purpose is, therefore not sustainable and is hereby set aside and

quashed.

13. We also find that in the order dated 24th April, 2012 passed in OA

No.2952 of 2011, the Tribunal had directed payment of interest at GPF

rates between 8.5% to 12%. In order to balance equity and to avoid any

further delay, we deem it to be in the interest of justice to award simple

interest at the rate of 9% per annum on the amounts which are found due

and payable.

14. In view of the above discussion, the following position emerges

from the record and it is held as follows:-

(i) The petitioner is entitled to his service for the period 6 th

August, 1952 to 10th January, 1958 as well as 14th January,

1958 to 22nd June, 1960, to be reckoned towards his qualifying

service for the purposes of seniority as well as retiral benefits

including pension.

(ii) The petitioner is entitled to award of interest on the

arrears of his terminal benefits including his pension with effect

from the date of his retirement on 31st December, 1991 till such

date the payments have been actually made to him. It is

directed that the petitioner shall be paid simple interest at the

rate of 9% per annum.

(iii) The respondent shall furnish a statement of calculations

based on the above directions to the petitioner within a period

of six weeks from today.

(iv) In case the petitioner is aggrieved by the same, it shall be

open for him to represent the same to the concerned

Commissioner of the East Delhi Municipal Corporation who

shall carefully examine the representation of the petitioner and

if possible, grant him personal hearing and pass a reasoned

order which shall be communicated to the petitioner forthwith.

(v) Payment in terms of the computation effected by the

MCD shall be made within a further period of four weeks

thereafter.

(vi) In case the petitioner is still aggrieved by any action of the

respondents, it shall be open to him to invoke legal remedy with

regard thereto.

15. This writ petition and application are allowed in the above terms.

Copy of this order be given dasti to parties.

(GITA MITTAL) JUDGE

(DEEPA SHARMA) JUDGE APRIL 22, 2014 aa