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Judgment
Manish Garg, Member (J)
In the instant OA, the applicant had retired from the post of Assistant Engineer (Electrical) after serving for 26 years in North Delhi Municipal Corporation (NDMC) on attaining the age of superannuation on 31.07.2019. His grievance is that respondents have not disbursed him the Commutation of Pension (Capitalised Value of Pension) and Gratuity amount in spite of lapse of more than two years seven months from the date of his retirement for which he is legally entitled as per rules. It is pertinent to mention here that two employees, namely Mr. Prem Singh & Mr. Satender Kumar from the same department, who retired along with him, have been paid the Commutation of Pension (Capitalised Value of Pension) amount and Gratuity and thus he is facing severe discrimination.
In the above background of the facts, the applicant seeks the following relief(s):
“a. Quash and set aside the impugned letter dated 30.09.2021 to the extent that the Respondents have denied to release the retiral dues to the applicant due to acute financial crisis, whereas they have already released the retiral dues of other similarly placed employees who retired after the applicant.
b. Direct the respondents to release the pending retiral dues of the applicant i.e., Gratuity amounting to Rs.10,49,776/- and i.e., Commutation of Pension (Capitalised Value of Pension) by amounting to Rs. 14,17,890/- (as per PPO issued by the Respondents) with interest24 % p.a. from the date it fell due till the actual date of payment.
c. Direct the respondents to pay back the deducted amount with interest 24% p.a. from the date it fell due till the actual date of payment against the Commutation of Pension (Capitalised Value of Pension) which was never paid but deducted from the pension and further direct the respondents to stop making further deductions from the pension till the Commutation of Pension (Capitalised Value of Pension) amount is actually paid to the applicant.
d. Award costs of the proceedings; and
e. Pass any other order/direction which this Hon'ble Tribunal deems fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.”
The impugned order dated 30.09.2021 (Annexure A-1) is reproduced as under:-
“No. Addl Com (FVDCA (HQV2021/ 134
Dated: 30.09.2021
Nauman Alam
B-275, Street No-1/4, Rajiv Nagar
Mandoli, Delhi-110093
Sub:- Regarding Non Payment of Salary & Terminal benefits
Ref-DCAF&GNorth DMC/2021/D-128 dated 24.09.21
Please refer to the representations on the above cited subjects.
In this regard it to inform that in May 2012, MCD was trifurcated into North, South and East Delhi Municipal Corporations. The said trifurcation has been most disadvantageous to the North Delhi Municipal Corporation and East Delhi Municipal Corporation, as the share of expenditure devolving upon these two municipal corporations, was much higher in proportion to the share of revenues they received.
North DMC is facing acute financial crisis since last few years. The difficulties of North DMC have further intensified due to outbreak of Covid-19 pandemic, due to which the internal sources of revenue have dried up.
It is pertinent to mention that due to continuing financial crunch, Salary, Pension. Terminal Benefits. arrears in respect of Regularization of SKs. ACP, MACP, DA, Bonus, Medical Pensioner, 7th CPC to employees and Contractors payments of North DMC have not been paid on time. The payment of Terminal benefits (i.e. Gratuity/Commutation of Pension) has already been made on the basis of demand received upto 03.10.2018.”
The learned counsel relies upon the OM No.3(6)/2021-P&PW(H)-70083 dated 09.03.2021 for release of timely payment of pension and other benefits to its employees.
The learned counsel for the applicant in support of his claim relies upon following decisions:-
(i) Ved Prakash Gupta vs The Commissioner, (North MCD) and ors. OA No. 3263/2018 decided on 26.03.2019, wherein the Principal Bench of this Tribunal has held as under:-
“2. The brief facts of the case are that the applicant retired on 31.08.2017 as Assistant Malaria Inspector. However, his retiral benefits have not been given to him from the due date following which he sent a legal notice to the respondents dated 27.04.2018 to which he has not received any reply. A calculation sheet giving details of payments received, due and the period of delay is enclosed with the OA.
In their counter reply the respondents have submitted that the applicant is entitled to a sum of Rs. 44,12,881/-, out of which a sum of Rs, 18,35,089/-has been paid and the demand for remaining amount of Rs. 25,77,792/- is being processed. It is contended that the respondents are making all efforts to pay the dues but due to the tight financial position in the department sometimes there is delay.
Heard Shri J.S. Mann, learned counsel for the applicant and Ms. Anupma Bansal, learned counsel for the respondents.
The facts of the present case are not in dispute. During the course of arguments, learned counsel for the applicant cited the judgment of the Hon’ble Supreme Court in D.D. Tiwari (D) Thr. LRs vs. Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. Civil Appeal No. 7113/2014 [Arising out of SLP (C) No. 25015/2011] decided on 01.08.2014 in which it has been held as under:-
“3..........The High Court has adverted to the judgments of this Court particularly, in the case of State of Kerala & Ors. Vs. M. Padmanabhan Nair[1], wherein this Court reiterated its earlier view holding that the pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement, but, have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be dealt with the penalty of payment of interest at the current market rate till actual payment to the employees. The said legal principle laid down by this Court still holds good in so far as awarding the interest on the delayed payments to the appellant is concerned.......”
4 & 5. xxx xxx xxx
For the reasons stated above, we award interest at the rate of 9% on the delayed payment of pension and gratuity amount from the date of entitlement till the date of the actual payment. If this amount is not paid within six weeks from the date of receipt of a copy of this order, the same shall carry interest at the rate of 18% per annum from the date of amount falls due to the deceased employee. With the above directions, this appeal is allowed.”
He has also referred to the judgment of the Hon’ble High Court of Delhi in W.P. (C) No. 1227/2012-Delhi Police vs. Balwant Singh decided on 13.03.2012, wherein it has been held as follows:-
“4. The first issue that we have to consider is whether any interest, at all, is payable on the delayed payment of the leave encashment amount. This question need not detain us any longer inasmuch as recently, in the case of Government of NCT of Delhi v. S.K. Srivastava: WP(C) No. 1186/2012 which was decided on 29.02.2012, we had decided that interest would be payable on delayed payment of the leave encashment amount where the delay is on account of no fault on the part of the employee. In that decision, we had observed as under:-
"The learned counsel for the petitioner states that all other dues had been paid to the respondent along with interest at the GPF rate, but since there was no provision in the leave rules for grant of interest, that is why the present petition has been filed. We do not agree with the submission made by the learned counsel for the petitioner that because there are no rules providing for grant of interest, the respondent would not be entitled to the same. There is also no bar to the grant of interest whenever the leave encashment amount is delayed for no fault on the part of the employee. The Government has retained the money from the year 2000 till 2011, which, in any event, was due to the respondent in the year 2000 itself, particularly in view of the fact that even the conditions specified in Rule 39(3) had not been complied with. Consequently, grant of interest on the said amount at the GPF rate by the Tribunal cannot be faulted. In any event, we may also point out that between 2000 and 2011, because of inflation, the real value of the amount that was due to the respondent had substantially eroded, the payment of interest at the GPF rate would only be a kind of balm applied to the injury suffered by the respondent. It may, in fact, actually turn out that the petitioner would not be paying anything more in real terms than what it was liable to pay in the year 2000.
"Thus following the said decision, interest would be payable by the petitioner even on the leave encashment amount and, therefore, the Tribunal's decision in this regard cannot be faulted. In the case of S.K. Srivastava (supra), we had also directed that the rate of interest be granted at the GPF rate. The learned counsel for the respondent has placed before us a decision of the Supreme Court in the case of Vijay L. Mehrotra v. State of U.P. & Ors: JT 2000 (5) SC 171, where the Supreme Court had granted interest on, inter alia, the delayed payment of the leave encashment amount at the rate of 18% per annum. The relevant portion of the said Supreme Court decision is as under:-
"2. The appellant retired from service on 31st August, 1997. From the response, filed by the respondent, it is clear that most of the payments of the retiral benefits to her were made long after she retired on 31st August, 1997. The details of the payments so made are as under:
S.No.
Particulars
Amount Paid
Date
(i)
GPF 90%
Rs.1,80,899.00
27.11.1997
(ii)
GPF 10%
Rs 20,751.00
25.04.1998
(iii)
GIS
Rs 13,379.00
27.02.1998
(iv)
Encashment of Leave
Rs 41,358.00
27.09.1998
(v)
Arrears of pay
Arrears of pay
27.09.1998
(vi)
Gratuity
Rs 1,09,753.00
05.12.1998
(vii)
Commuted pension
Rs 20,484.00
05.12.1998
(viii)
Detained amount
Rs 45,000.00
05.11.1999
In case of an employee retiring after having rendered service, it is expected that all the payment of the retiral benefits should be paid on the date of retirement or soon thereafter if for some unforeseen circumstances the payments could not be made on the date of retirement.
In this case, there is absolutely no reason or justification for not making the payments for months together. We, therefore, direct the respondent to pay the appellant within 12 weeks from today simple interest at the rate of 18% per cent with effect from the date of her retirement i.e. 31st August, 1997 till the date of payment."
Since in the aforementioned case, the Supreme Court had directed that interest be paid at as high a rate as 18% per annum on both gratuity as well as the leave encashment amount, we see no reason to interfere with the directions of the Tribunal granting interest at the rate of 9% per annum.”
Learned counsel also referred to the judgment of this Tribunal in OA No.2545/2016-Balbir Singh Rana vs. The Commissioner North DMC & Ors. decided on 05.02.2018. However, as the provision in law regarding payment of interest on retiral benefits is sufficiently settled by the judgments of the Hon’ble Supreme Court in D.D. Tiwari
(D) Thr. LRs (supra) and the Hon’ble High Court of Delhi in Delhi Police vs. Balwant Singh (supra), there is no need for any further discussion on this judgment.
In view of the settled position of law as explained above, the OA is allowed with a direction to the respondents to release all retiral benefits due to the applicant along with interest at the prevailing GPF rate for the period between the date of retirement and the actual payment of dues. While doing so, the respondents shall provide to the applicant the calculation sheet which shall be itemwise. This shall be done within a period of two months from the date of receipt of a certified copy of this order. No costs.”
(ii) Jeet Singh Vs The Commissioner and anr. - OA No. 4306/2019 decided on 24.07.2019.
(iii) East Delhi Municipal Corporation Vs Jeet Singh -WP ( C) No.9947/2021 , decided by the Hon’ble High of Delhi.
(iv) Ramvir Singh Vs The Commissioner , ( East MCD) and ors - OA No. 4218/2017 decided on 31.10.2018.
(v) Narvir Singh Vs The Commissioner, ( North MCD) and ors - OA No. 2535/2016 decided on 05.02.2018
(vi) Balbir Singh Vs The Commissioner , ( North MCD) and ors - OA No. 2545/2016 decided on 05.02.2018
(vii) Ram Kishan Vs The Commissioner, ( North MCD) and ors - OA No. 4495/2017 decided on 18.12.2018.
Per contra, the learned counsel for the respondents does not dispute the factum of delay and submitted that the payment of legitimate dues of the applicant was delayed due to the fact that in May, 2012, MCD was trifurcated into North, South and East Delhi Municipal Corporations. The said trifurcation has been most disadvantageous to the North Delhi Municipal Corporation and East Delhi Municipal Corporation, as the share of expenditure devolving upon these two Municipal Corporations, was much higher in proportion to the share of revenues they received. North Delhi Municipal Corporation is facing acute financial crisis since last few years. The difficulties of North DMC have further intensified due to outbreak of Covid-19 pandemic due to which the internal sources of revenue have dried up. It is pertinent to mention that due to continuing financial crunch, salary, pension, terminal benefits, arrears in respect of regularisation of SKs, ACP, MACP, DA, Bonus, Medical Pensioner, 7th CPC to employees and contractors' payment of North DMC have not been paid on time. The payment of terminal benefits (i.e., Gratuity/ Commutation of Pension) has already been made on the basis of demand received upto 03.10.2018.
It is further submitted that the retirement benefits of the applicant towards GPF amounting to Rs.18,82,155/- and towards GIS amounting to Rs.11,491/- have already been paid on 12.09.2019 and 06.09.2019 respectively. Further, pension of the applicant amounting to Rs.9,69,402/- upto May, 2022 has been paid on 02.08.2022. The applicant has made North Delhi Municipal Corporation as main respondent, which is not in existence after unification or merger of three corporations viz. North Delhi Municipal Corporation, South Delhi Municipal Corporation and East Delhi Municipal Corporation on 22.05.2022. The applicant worked as Assistant Engineer in Municipal Corporation of Delhi (erstwhile North Delhi Municipal Corporation of Delhi) and he was well aware of financial crunch in the department and procedures for priority payment towards 40% DCRG amounting to Rs.10,49,776/- and towards 40% commutation of pension amounting to Rs.14,17,890/- remain to be paid to the applicant. The applicant has never applied as per circular DCA (HQ)/2018/236 dated 01.03.2018 (Annexure-I) issued by Additional Commissioner (F, A&P). The claim of the applicant is misconceived and is irrelevant.
The learned counsel for respondents further relies upon decision of the Hon’ble Apex Court in the case of State of Andhra Pradesh and anr vs Dinavahi Lakshmi Kameshwari, (2021) 11 SCC 543 more specifically para 13 and 14, which reads as under :-
“13. The direction for the payment of the deferred portions of the salaries and pensions is unexceptionable. Salaries are due to the employees of the State for services rendered. Salaries in other words constitute the rightful entitlement of the employees and are payable in accordance with law. Likewise, it is well settled that the payment of pension is for years of past service rendered by the pensioners to the State. Pensions are hence a matter of a rightful entitlement recognised by the applicable rules and regulations which govern the service of the employees of the State. The State Government has complied with the directions of this Court for the payment of the outstanding dues in two tranches. Insofar as the interest is concerned, we are of the view that the rate of 12% per annum which has been fixed by the High Court should be suitably scaled down. While learned counsel for the respondents submits that the award of interest was on account of the action of the Government which was contrary to law, we are of the view that the payment of interest cannot be used as a means to penalize the State Government. There can be no gainsaying the fact that the Government which has delayed the payment of salaries and pensions should be directed to pay interest at an appropriate rate.
We accordingly order and direct that in substitution of the interest rate of 12% per annum which has been awarded by the High Court, the Government of Andhra Pradesh shall pay simple interest computed at the rate of 6% per annum on account of deferred salaries and pensions within a period of thirty days from today. This direction shall, however in the facts and circumstances, be confined to categories 3, 4, 5 and 6 of GOMs No 26 dated 31 March 2020. We clarify that interest shall be paid to all pensioners of the State at the rate of 6% per annum on the deferred portion, for the period of delay. Having regard to the prevailing bank interest, the rate of 12% per annum which has been fixed by the High Court, would need to be and is accordingly reduced.”
In the light of the above facts and circumstances of the case, it is an undisputed fact that there has been delay in releasing the retiral dues to the applicant. Therefore, on the basis of well settled law, as enumerated herein above, the OA is allowed with a direction to the respondents to release all remaining retiral benefits due to the applicant along with interest at the prevailing GPF rate from the date of his retirement till the amount is actually paid. While doing so, the respondents shall provide to the applicant the due and drawn statement. This exercise shall be done within a period of two months from the date of receipt of a certified copy of this order, failing which the applicant shall be entitled to further interest @ 12 % from the date of expiry of period of two months as stated herein above.
There shall be no order as to costs.