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2012 DIGILAW 1635 (BOM)

Union of India v. Venkatram Rajagopalan

2012-08-29

A.P.BHANGALE, B.P.DHARMADHIKARI

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Judgment : (A.P. Bhangale, J.) 1. These petitions were filed by the petitioners being aggrieved by the impugned order dated 15/10/1999 passed by the Full Bench of the Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur (hereinafter referred to as “the CAT”) in Original application nos. 459 of 1997 and 460 of 1997, wherein it is held that a government servant completing the age of Superannuation on 31/03/1995 and relinquishing charge of his Office in the afternoon of that day is deemed to have effectively retired from service with effect from 01/04/1995. Thus, the Tribunal directed the petitioners herein to give benefit of O. M. no 7/1/95-P & PW(F), dated 14/07/1995 of the Government of India , Ministry of Personnel, Public Grievances and Pensions (Department of Pension and Pensioner's Welfare) within a period of three months from the date of receipt of a copy of the order. 2. The facts, briefly stated, are as under:- The respondents/Government Servants from the Postal Department retired on superannuation with effect from 31/03/1995 afternoon. They applied for getting gratuity benefits on retirement arising from the aforesaid O.M. Their claim was rejected on the ground that they were retired on superannuation on 31/03/1995 and not on or after 01/04/1995. The respondent had, therefore, approached the CAT against the petitioners herein seeking a direction to give them the benefit of the aforesaid O.M. The respondents contended that they were deemed to be in service till the midnight of 31/03/1995 and were deemed to have retired with effect from 01/04/1995. The CAT had allowed the Claim as above, after rejecting the contention of the petitioners that the last working day of the respondents was 31/03/1995 and the benefit of amendment made on and with effect from 01/04/1995 cannot be made available to them as they got retired on 31/03/1995. 3. Heard the submissions at the Bar. 4. The CAT had allowed the Claim as above, after rejecting the contention of the petitioners that the last working day of the respondents was 31/03/1995 and the benefit of amendment made on and with effect from 01/04/1995 cannot be made available to them as they got retired on 31/03/1995. 3. Heard the submissions at the Bar. 4. Learned Senior Advocate for the petitioners Shri R.S.Sundaram placed reliance upon the decision in Writ petition No. 18186 of 2003, Union of India vs. Shri Y.N.R. Rao, decided on 8th December 2003 by the Division Bench of the Karnataka High Court, wherein the Full Bench decision of Mumbai Bench of CAT was also considered and the view taken therein that the Government Servant retiring in the afternoon of 31st March is to be treated as retiring with effect from 1st April i. e. in the forenoon of first of April is held as not a good law. The Karnataka High Court, after considering the Pension Rules, held that the date of retirement is the last date of the month in which the Government Servant retires and the retirement gratuity is to be calculated as per Rules in force as on that date. Shri Sundaram submitted that this ruling which considered the impugned Judgment and Order passed by the CAT was not challenged in the Supreme Court and it has, therefore, attained finality. 5. Learned Advocate for the respondents Shri Agasti placed reliance upon the ruling in the case of PrabhuDayal Sesma vs. State of Rajasthan reported in AIR 1986 SC 1948 , wherein it was held that, in the absence of any express provision, while calculating a person’s age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding the anniversary of his birthday. One of the well accepted rules for computation of time is that fractions of a day will be omitted in computing a period of time in years or months in the sense that a fraction of a day will be treated as a full day. A legal day commences at 12 O’clock midnight and continues until the same hour the following night. This principle is in conformity with Section 4 of the Indian Majority Act. 6. A legal day commences at 12 O’clock midnight and continues until the same hour the following night. This principle is in conformity with Section 4 of the Indian Majority Act. 6. Another ruling in the case of Union of India vs. George reported in 2004 (1) Administrative Total Judgments 150 (Kerala High Court) is also pressed into service before us, wherein, in a case of an employee retiring on 31/12/1995, it was held that he was in the service till the midnight of 31/12/1995 and he became pensioner with effect from 1/1/1996 and was entitled to the revised pension and other benefits accordingly. 7. Full Bench of Central Administrative Tribunal (CAT) had answered the question referred to it as under:- “A Government Servant completing the age of superannuation on 31.3.1995 & relinquishing the charge of his office in the afternoon of that day is deemed to have effectively retired from service with effect from 1.4.1995.” Because of this answer, the O.M. dated 14.7.1995 issued by the Government of India,Ministry of Personnel, Public Grievances & Pensions (Department of Pension & Pensioner's Welfare) regarding “treatment of dearness allowance as dearness pay for the purpose of death gratuity & retirement gratuity and raising the maximum limit of gratuity from Rs. 1.00 Lakh to Rs. 2.50 Lakhs” in the case of Central Government employees who retire or die on or after 1st April 1995, was held applicable to them. 8. In the present proceedings, the Order passed by the Division bench of CAT referring this issue before the Full Bench is not placed before us. Similarly, the challenge to the prescription of 1.4.1995 as “cut-off date” is also not raised by the employees before us. Both these Writ Petitions are by the employer assailing the above answer. But we may mention that selection of said date was found vitiated by another Full Bench of CAT at Bombay on 21.9.2001 & challenge thereto in High Court was transferred to itself by the Hon'ble Apex Court due to pendency of similar issue before it & that view has been upset by it in (2005) 6 SCC 754 , State of Punjab vs. Amar Nath Goyal. Thus, the Hon'ble Apex Court has already found that date to be valid. Thus, the Hon'ble Apex Court has already found that date to be valid. Hence, the only question to be considered here is as to whether the employees have been rightly found to be retiring on 1.4.1995 & whether they are entitled to the revised Scheme introduced as per O.M. Dated 14.7.1995. 9. Full Bench of CAT noted that employees approaching it were retired on 31.3.1995 afternoon. It also found that Fundamental Rule 56 provided for retirement from the service on the afternoon of the last day of the month in which the employee attained the age of 58 years. Rule 35 of the Central Civil Services (Pension) Rules, 1972 – (Pension Rules, for short) vested right in an employee to superannuation pension & then Rule 83 (1) stated that a pension other than family pension shall become payable from the date on which a government servant ceases to be borne on establishment. The relationship with the Government is found coming to an end in the evening of last day of the month. It follows, therefore, that, on such last day, relationship subsists between 1.00 A.M. till 5.00 P.M. for 17 hours and does not continue only for 7 hours i.e. for very short period. Government servant is paid salary for such last day & not pension. It holds that he can not be deemed to be in service for part of the day & superannuated for its remaining part. Inference raised was that such employee continued in service till mid-night of the last day (which is 31.3.1995 in the present matter). The employee is, therefore, deemed to have retired on next day ie 1.4.1995. Some support is also drawn from dictionary meaning of the word “afternoon” for said purpose. In paragraph 7, the Full Bench held erroneously that afternoon of 31.3.1995 & forenoon of 1.4.1995 meant one & same thing. It, therefore, recorded its conclusion that the effective date of retirement in the facts before it was 1.4.1995. 10. Division Bench of Karnataka High Court (supra), while deciding Writ Petition No.18186 of 2003, dt. 8.12.2003 filed by Union of India against adjudication dated 30.10.2002 by Bangalore bench of the CAT in O.A. No. 816 of 2001 noted various legal provisions and held that the view of Full Bench of CAT at Bombay was unacceptable. 10. Division Bench of Karnataka High Court (supra), while deciding Writ Petition No.18186 of 2003, dt. 8.12.2003 filed by Union of India against adjudication dated 30.10.2002 by Bangalore bench of the CAT in O.A. No. 816 of 2001 noted various legal provisions and held that the view of Full Bench of CAT at Bombay was unacceptable. It has observed that as the said verdict leads to an inconsistent situation inasmuch as a person born on 1.4.1937 would then retire on 31.3.1995 and a person born on 9.3.1937 would retire with effect from 1.4.1995. 11. In our view, the interpretative exercise is called for only when the provisions of law are not clear. Assistance of settled principles for the said purpose including that of external aids like dictionary is then resorted to. F.R. 56 unambiguously stipulates that a Government Servant retires from service on afternoon of last date of month in which he had attained the age of 58 years. Rule 5(2) of Pension Rules treats the day on which the employee retires as his last working day. There is proviso to this sub-rule & Rule 83 (1) also includes some exceptions but then, we are not called upon by the parties to consider the logic behind the same. As per Rule 5(1) Pension Rules in force on such last day regulate the pension. As seen from the notice of retirement dated 31.3.1995, Respondent namely V. Rajagopalan was born on 10.3.1937 while Respondent Mukund in W.P. No. 516 of 2005 was born on 29.3.1937. Both of them have retired on 31.3.1995. Thus, law clearly lays down that their date of retirement & last working day has to be the same. Thus, due to F.R. 56 & Rule 5(2) of Pension Rules, they could continue till 31.3.1995; which day in reality was beyond their actual completion of the age of superannuation. It follows, therefore, that, only by fiction, that date or day of retirement has been constituted as their last working day. Legally, respondents retired on the last working day. Entire exercise by the Full Bench of CAT militates against this legal position and wipes out it by artificially making distinction between the last working day & date of retirement. Rule 83(1) of Pension Rules is positioned in Chapter XI dealing with payment of pensions and prescribes the date from which pension becomes payable or is to be computed. Entire exercise by the Full Bench of CAT militates against this legal position and wipes out it by artificially making distinction between the last working day & date of retirement. Rule 83(1) of Pension Rules is positioned in Chapter XI dealing with payment of pensions and prescribes the date from which pension becomes payable or is to be computed. Rule 5 is located in Chapter II which lays down General Conditions and determines law/scheme relevant to determine the entitlement of an employee to pension with reference to the date of retirement. In our view, the CAT erred in importing the date which is relevant under Rule 83(1) for the purposes of Rule 5(2) by overlooking the absence of need to invoke any interpretative exercise. 12. Hon'ble Apex Court in AIR 1986 SC 1948 – Prabhu Dayal Sesma vs. State Of Rajasthan & another, considers the meaning of “day” in all together different context of deciding the issue of age-limit for recruitment & hence, that meaning or interpretation is not relevant here. The Division Bench judgment of Hon'ble Kerala High Court in Union of India vs. George reported at 2004(1) ATJ 150 has considered the scheme which applied to all those who were drawing pension on 1.1.1996. Logic as applied by the Full Bench of CAT also has been used by the Hon'ble Kerala High High Court Bench. For reasons, already noted above, we are not in position to subscribe to it. 13. We have perused the rulings cited. In Hon'ble Kerala High Court’s ruling, the Tribunal’s order granting benefit of the revision was affirmed under the peculiar circumstances of that case as the Bench expressed that it was unable to find merit in the Petition. The petition by the Union of India was dismissed as no other point was urged. While, in Prabhu Dayal’s Case (cited supra) the Apex Court was considering the concept of legal day commencing from 12 O’ clock midnight to the end on the same hour of the following night in order to calculate the Age of the candidate. The petition by the Union of India was dismissed as no other point was urged. While, in Prabhu Dayal’s Case (cited supra) the Apex Court was considering the concept of legal day commencing from 12 O’ clock midnight to the end on the same hour of the following night in order to calculate the Age of the candidate. The rulings afore-stated are not supportive to the case of the respondents, particularly when the controversy before us is fully covered by the decision given by the Division Bench of the Karnataka High Court in W. P. No.18186 of 2003, decided on 08/12/2003 and the decision which considered the impugned Judgment and Order is on all fours of the case in hand and has also attained the finality as there was no challenge in the Apex Court to the validity and legality of the decision of the Hon'ble Division Bench of the Karnataka High Court. It, therefore, follows that the Government Servant retiring on superannuation on the last day of the month i. e. as on 31/03/1995 can claim death gratuity or retirement gratuity as was available and operative on 31/03/1995 i. e. as on the date of retirement and not with effect from the subsequent date. In other words, when the Office Memorandum was made applicable to the government servants who retire on or after 01/04/1995, the Government Servants who retired on 31/03/1995 were not entitled to the enhanced benefits as they were made available with effect from the subsequent or later date i. e. with effect from 01/04/1995. Such benefits which were available with effect from the later operative date i. e. 01/04/1995, but wrongly granted by the Tribunal to the respondents who retired on and with effect from the previous date i.e. 31/03/1995 in the present case, were not only undeserved and unwarranted, but also were detrimental to the State Exchequer/Revenue. The retired employees, on the basis of their meritless, unreasonable and excessive claim, cannot be allowed to make money and enrich themselves unjustly by causing undue financial loss to the State Exchequer. 14. We, therefore, allow both these petitions and set aside the impugned order dated 15/10/1999 passed by the Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur in O.A. Nos. 459 of 1997 and 460 of 1997 and consequently dismiss the said Original Applications. The parties are left to bear their own Costs. 14. We, therefore, allow both these petitions and set aside the impugned order dated 15/10/1999 passed by the Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur in O.A. Nos. 459 of 1997 and 460 of 1997 and consequently dismiss the said Original Applications. The parties are left to bear their own Costs. Rule is made absolute in the above terms.