The Union Of India vs K.Simhadri Rao
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      THE HON'BLE SRI JUSTICE GHULAM MOHAMMED
                         AND
         THE HON'BLE SRI JUSTICE K.G.SHANKAR

                     W.P.No.21824 of 2010
% 21.07.2011
Between:
The Union of India, rep. by the Secretary to Government of India,
Ministry of Personnel, Public Grievances & Pensions Department
of Pension & Pension Welare Lok Nayak Bhawan, Khan Market,
New Delhi and another.
                                                   ... Petitioners
       AND

K. Simhadri Rao and another.
                                                  ...Respondents

Counsel for petitioners: Sri Ponnam Ashok Goud, Assistant
Solicitor

                        General of India.

Counsel for Respondents: Sri P.V.Sundara Rajan and

                          Sri V. Venkateswar Rao.




< Gist:
> Head Note:
? CITATIONS:
1 2000(4) SCC 469
2(1994) Suppl.3 SCC 204
3(2004) 4 ALD 66
4(1996) 2 SCC 187
       THE HON'BLE SRI JUSTICE GHULAM MOHAMMED
                         AND
         THE HON'BLE SRI JUSTICE K.G.SHANKAR

                      W.P.No.21824 of 2010

ORDER (per Sri Justice K.G.Shankar)

The Union of India represented by the Ministry of Personnel, Public Grievances and Pensions laid the present writ petition impugning the order dated 05.02.2010, of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short 'the Tribunal') in O.A.No.242 of 2009, wherein the Tribunal held that the applicant in the O.A. was entitled to receive dearness relief, interim relief and the like on full basic pension from 01.01.1988 since he retired from the service of HCL on 31.12.1987 on attaining superannuation and that the entitlement to receive the relief is even during the period of commutation period of 15 years.

2. The facts of the case, in brief, are:

The applicant joined in the postal department in 1948. He was permitted to retire from service in 1982 facilitating him for absorption in Hindustan Cables Limited (HCL), which is a Government of India undertaking.

The applicant was absorbed in HCL with effect from 01.01.1983. He commuted his 100% basic pension with effect from 01.01.1983 and received all the terminal benefits. He retired from service from HCL on 31.12.1987 on attaining superannuation.

Subsequently, the applicant claimed that he was entitled to dearness relief on full pension with effect from 01.01.1988 in accordance with the judgment of the Supreme Court in P.V.SUNDARA RAJAN v. UNION OF INDIA[1]. Since the dearness relief on full pension to which he was entitled to with effect from 01.01.1988 till 30.09.1998 was not paid to a tune of Rs.1,02,852/-, the applicant claimed the same through a representation to the second respondent in the O.A., but the same was rejected by respondent Nos.1 and 2 through letters dated 22.10.2008 and 18.11.2008. The applicant/pensioner assailed the two orders in O.A.No.242 of 2009 before the Tribunal. Through the impugned order dated 05.02.2010, the Tribunal held that the pensioner would be entitled to the benefits of dearness relief, interim relief and the like. However, the Tribunal directed the pensioner to make a representation to the second respondent together with a calculation of the amount due to him.

3. Sri Ponnam Ashok Goud, learned Assistant Solicitor General, representing the writ petitioners, contended that the pensioner is not entitled to pension or dearness allowance and other allowances on the pension during the period of commutation of 100% pension by him. He placed reliance upon the judgment of the Supreme Court in STATE OF TAMILNADU v.

V.S.BALAKRISHNAN[2] and contended that the Supreme Court observed that those who commuted 100% pension would not be entitled to the benefit of dearness relief on full pension or other benefits.

4. Sri P.V.Sundara Rajan, learned counsel representing Sri V. Venkateshwar Rao, learned counsel for the first respondent- pensioner, on the other hand, contended that in view of the decision of the Supreme Court in P.V.SUNDARA RAJAN's case cited 1 supra and the High Court of Andhra Pradesh in SECRETARY, MINISTRY OF PERSONNEL, PUBLIC

GRIEVANCES AND PENSIONS v. R. RAMA MURTHY[3], the pensioner is entitled to all the benefits towards dearness relief on the original full pension.

5. The Tribunal agreed with the contention of the pensioner and held that the pensioner was entitled to all the benefits on the pension. Reliance was placed upon Rules 37 and 37-A of CCS (Pension) Rules, 1972 ( for short 'the Rules').

Rules 37 and 37-A of the Rules read:

37. Pension on absorption in or under a corporation, company or body:

(1) a Government servant who has been permitted to be absorbed to a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to sub- rule (3) he shall be eligible to receive retirement benefits if any, from such date as may be determined, in accordance with the orders of the Central Government applicable to him. Explanation-Date of absorption shall be-

(i) in case a Government employee joins a corporation or company or body on immediate absorption basis, the date on which he actually joins the corporation or company or body.

(ii) in case a Government employee initially joins a corporation or company or body on foreign service terms by retaining alien under the Government, the date from which his unqualified resignation is accepted by the Government (2) The provisions of sub-rule(i) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Governments/Union Territory Administrations or under the joint control of two or more State Governments/Union Territory Administration. (3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.

Explanation-Body means Autonomous Body or Statutory body.

37-A Payment of lump sum amount to persons on absorption in or under corporation or body:

(1) where a government servant referred to in Rule 37 elects the alternative of receiving the (retirement gratuity) and a lump amount in lieu of pension, he shall, in addition to the (retirement gratuity), be granted:

(a) on an application made in this behalf, a lump sum amount nor exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Civil Pensions (Commutation) Rules; and

(b) terminal benefits equal to the commuted value of the balance amount of pension left after commuting one-third of pension to be worked out with reference to the commutation tables obtaining on the date from which the commuted value becomes payable subject to the condition that the government servant surrenders his right of drawing two-thirds of his pension'.

6. Learned counsel for the pensioner contended that Rule 37-A of the Rules has been omitted with effect from 1995 and that the commutation of pension does not disentitled the pensioner from receiving the benefits of dearness allowance and the like over the full basic pension. He pointed out that the decision of the Supreme Court in WELFARE ASSOCIATION OF ABSORBED CENTRAL GOVERNMENT EMPLOYEES IN PUBLIC

ENTERPRISES v. UNION OF INDIA[4] that those who commuted 100% pension are not entitled to benefit of dearness relief on full pension and other benefits, would not be applicable to civil servants and would be applicable to service personnel only. He pointed out that Rule 37 of the Rules entitles a civil servant to receive pension and that when a pensioner is entitled to pension, he would automatically be entitled to all the benefits accruing towards dearness relief, interim relief and other reliefs arising from such basic pension.

7. We are unable to agree with the contention of the learned Assistant Solicitor General that when the pensioner commuted 100% pension, he had foregone the opportunity of receiving the benefits of dearness relief, interim relief and other benefits with effect from the date of revision of the benefits. This Court held in R. RAMA MURTHY's case, cited 2 supra, relying upon the judgment of the Supreme Court in P.V.SUNDARA RAJAN's case cited 1 supra, that even if a pensioner commutes 100% pension, such pensioners would be entitled to dearness allowance at pre- restoration stage as in the case of other Central Government pensioners.

8. In this background, the pensioner certainly is entitled to benefits like dearness allowance and interim relief on the full basic pension with effect from 01.01.1988 as claimed by him. The Tribunal was perfectly justified in allowing the O.A. There is no error or infirmity in the order of the Tribunal. We, therefore, see no merits in this writ petition and the writ petition is accordingly dismissed without costs.

______________________ GHULAM MOHAMMED, J

_______________ K.G.SHANKAR, J

Date:21.07.2011 sj

L.R.copy to be marked.

[1] 2000(4) SCC 469 [2] (1994) Suppl.3 SCC 204 [3] (2004) 4 ALD 66 [4] (1996) 2 SCC 187