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PETITIONER: THE GENERAL MANAGER, TELEPHONES, AHMEDABAD & ORS.

       Vs.

RESPONDENT: V.G. DESAI & ANR.

DATE OF JUDGMENT:       01/02/1996

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) NANAVATI G.T. (J)

CITATION:  1996 AIR 2062            1996 SCC  (7) 444  JT 1996 (2)    77        1996 SCALE  (1)668

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. AGRAWAL, J,      Special leave granted.      V.  G.  Desai,  respondent  No.  1,  was  appointed  as Telephone  Operator  in  the  Telephone  Department  of  the Government of  India on  August 30, 1948. He was promoted as Inspector with  effect from  November 12,  1959 in  the said department.  By  order  dated  February  28,  1970,  he  was transferred  from   the  office   of   Divisional   Engineer Telegraphs Baroda  to the  office of    Divisional  Engineer telegraphs Rajkot at Kandla. He did not join at the place of posting and  remained on  leave. Ultimately  he submitted an application dated  September  25,  1971  whereby  he  sought further extension  of leave  for 60  days  and  also  sought retirement on  medical grounds. By application dated October 19, 1971,  he requested the Divisional Engineers Telegraphs, to accept  his resignation  with immediate  effect. Since  a vigilance case  was pending  against him since September 25, 1971, The  said request  of resignation was not accepted. In the departmental  proceedings which  were taken  against him the punishment  of censure  was imposed  on him on March 20, 1972. On  August 1,  1980, he sent another letter requesting that his retirement case be settled and his GPF be released. Since no  action was  taken on  the said  letter, he filed a Writ  Petition   in  the   Gujarat  High  Court.  After  the constitution of Central Administrative Tribunal (hereinafter referred to  as ’the  Tribunal), the  said writ petition was transferred to  the Tribunal and it was registered as TA No. 109 of  1986, The  said application  was disposed  of by the Tribunal by  judgment dated  November 30, 1987. The Tribunal was of  the view  that after  the award of the punishment of censure on  March 20,  1972, there  was no  reason  why  the authorities  could  not  have  decided  on  the  letter  for retirement on  medical grounds  submitted by the respondent. According to  the Tribunal,  if the  question of withholding

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any part of pension or retirement benefits or GPF on account of the  punishment imposed  upon him arise, this should also have been  decided immediately  after 1972.  In view  of the delay on  the part  of the  authorities in dealing with that request  of   the  respondent   to  release  his  pensionary benefits, arrears  of pay,  GPF etc  the Tribunal  gave  the following direction :-      "We,  therefore,  direct  that  the      respondents decide  the question of      releasing  GPF   leave  salary  and      other dues of the petitioner within      a period  of two months and further      direct  that   an  interest  of  9%      should be  payable on  such dues to      the petitioner  from 20.4.1972  one      month after  the date  of the order      of  punishment   of  censure  i.e.,      30.3,1972. Payment  of the  dues of      the petitioner with interest should      be effected  within three months of      the date of this order."      The respondent  filed an application (MA/392/88)  which was disposed  of by  order dated  February 20, 1989 with the following observations :      "The Judgment  in TA/109/86 clearly      states that  the dues  as indicated      in it  are required  to be paid and      further   clarification    is   not      possible     in     this     review      application."      The respondent was paid the dues in accordance with the directions contained in the judgment dated November 30, 1987 including the  amount lying  in his  GPf  account  alongwith interest @  9%  from  April  20,  1972.  The  claim  of  the respondent for  pension was,  however, not  accepted by  the Divisional Engineer  Telegraphs by  his order dated February 26,  1988  on  the  ground  that  he  was  not  entitled  to pensionary benefits as per the rules.      Thereafter the respondent filed another application (OA No. 313  OF 1989)  which has given rise to these appeals. In that application  the respondent  sought the  relief that  a declaration may  be given  that he is entitled to pensionary benefits on  and from  March 20,  1972 or  from the  date of application made by him requesting for retirement on medical grounds, i.e.,  September 25,  1971. In  the alternative  he sought a  declaration that  he  is  entitled  to  pensionary benefits on  voluntary retirement  as per  the  new  pension rules, namely,  Central Civil Services (Pension) Rules, 1972 (for short  ’1972 Rules’)  or, in  the  alternative,  for  a declaration that  he has retired on superannuation on August 27, 1987  and that  he is entitled to pensionary benefits of retirement by superannuation.      The said  application of  the respondent was opposed by the appellants on the ground that as per the decision of the Tribunal dated  November 30,  1987 in TA No. 109 of 1986 the respondent had  already been  paid arrears  of pay alongwith interest as  per the directions of the Tribunal and no cause survives. It  was submitted  that as per the judgment of the Tribunal, the  respondent is  deemed to  have  retired  with effect from  April 20, 1972 and, at that time, entire period of his  qualifying service was 23 years 6 months and 20 days and since  he had  not  completed  30  years  of  qualifying service, he  could not  get pension  under the old rules. It was submitted  that the  1972 Rules had come into force from June 1,  1972 and the respondent could not get pension under

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the said  rules. It  was also  submitted that the respondent also could  not  be  granted  invalid  pension  because  the medical certificate  submitted by  him did  not declare  him unfit for ever but for a specific period only.      By judgment  dated August  27, 1992,  the Tribunal  has held that in the earlier judgment dated November 30, 1987 in TA No.  109 of  1986 the Tribunal had not accepted the claim of the  respondent that  he is  deemed to  have  retired  on medical grounds  and that  the said  claim has also not been established by  him in  this  petition.  The  Tribunal  has, therefore, rejected  his  claim  that  he  was  entitled  to pensionary benefits  on and  from March 20, 1972 or from the date  of   his  application,   i.e.,  September   25,  1971, requesting to  retire him  on medical  grounds. The Tribunal has also  held that  the respondent  could  not  be  granted invalid  Pension   under  CSR  441  because  no  documentary evidence  was   produced  by   him  to   show  that  he  was incapacitated from rendering public service due to bodily or mental infirmity and the medical certificate produced by him did not declare him unfit for ever but it declared him unfit for a  specific period  only.  The  Tribunal  has,  however, referred to the 1972 Rules, more particularly Rule 48-A, and has observed  that on  March 20,  1972, the  respondent  had completed 20  years qualifying  service and  he could  claim pension on  the basis  of the said Rule. It was submitted on behalf of the appellants before the Tribunal that 1972 Rules had come  into effect  from June  1, 1972 and the respondent could not  avail the benefit of the said Rules. The Tribunal has  observed  that  the  1972  Rules  were  published  vide notification dated  March 1,1972  and at the time of hearing of TA  No. 109  of 1986  neither party  had brought  to  the notice of  the Tribunal  that the  1972   Rules    had  been notified in the Gazette on March 1, 1972 and if the same had been brought  to the  notice of  the Tribunal  it might have perhaps considered  the respondent  for voluntary retirement finally at that stage considering the said notification. The Tribunal  further   observed  that  if  the  appellants  had rejected the  request of  the respondent  for retirement  on medical grounds  immediately after the order dated March 20, 1972 imposing  punishment of  censure the   respondent could have taken  the advantage of the 1972 Rules as per Rule 48-A and he could have given notice of not less than three months in writing  to the  appellants to retire him from service as he had  completed 20  years qualifying service. The Tribunal directed the appellants to fix the pension of the respondent under Rule  48-A of  the 1972 Rules as if he had  retired on June 1,  1972 on  the basis  of his qualifying  service that may be calculated upto that date.      The appellants submitted a Review application (R.A. No. 43 of  1993) for  the review  of the  said judgment  of  the Tribunal on  the ground  that Rule 48-A was not in operation on June  1, 1972 but had been inserted by notification dated November 28, 1978 with effect from August 26, 1977. The said review application  was, however,  dismissed by the Tribunal by its order dated December 3, 1993 as barred by limitation. The Tribunal  has dealt  with the said review application on merits and  has held that the judgment dated August 27, 1992 did not  suffer from  any error  apparent on the face of the record.      The  appellants   have  filed   these  appeals  against judgment dated August 27, 1992 in OA No. 313 of 1989 as well as judgment dated December 3,1993 in R.A. No. 43 of 1993.      The impugned  direction given by the Tribunal regarding payment of  pension to  the respondent  by treating  him  as having retired  with effect  from June  1, 1972 involves two

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questions  :   (i)  whether   the  direction  to  treat  the respondent as  having retired from service from June 1, 1972 is in  consonance with  the earlier  judgment dated November 30, 1987;  and (ii)  whether under the 1972 Rules pension is payable even  if the respondent is treated as having retired on June 1, 1972.      In the  earlier judgment  dated November  30, 1987, the Tribunal has observed :      "The punishment  of censure awarded      after  the  inquiry  following  the      C.B.I.   report   came   about   on      20/3/1972. There  is no  reason why      the respondents  authorities  could      not have  decided on the letter for      retirement   on   medical   grounds      thereafter, even  if there  was any      genuine  reason   for   withholding      consideration of  his letter before      that    date.     The    respondent      authorities, therefore,  have  also      in  a   sense  acquiesced   in  the      position    brought    about    the      applicant treating himself as if he      had retired.  If  the  question  of      withholding any part of pension  or      retirement benefits  or  G.P.F.  on      account of  the punishment  imposed      upon him  arises, this should  also      have been decided immediately after      1972."      This would  show that  having regard  to the conduct of the respondent  as well  as the  appellants,  the  Tribunal, while deciding  TA No.  109 of  1986, had  proceeded on  the basis that  the respondent  should be deemed to have retired on April 20, 1972 and gave the direction regarding releasing GPF, leave  salary and  other dues to the respondent and for payment of  interest @  9% on such dues from April 20, 1972. The direction  that interest  should be  paid  on  GPF  with effect from  April 20,  1972, can  be justified  only on the ground that  GPF was  payable on  April 20, 1972 which means that the  deemed date  of retirement  of the  respondent was April 20,  1972. The  view expressed  by the Tribunal in the later judgment  dated August  27, 1992 in OA No. 313 of 1989 that in  its earlier judgment dated November 30, 1987 it had not held  that the  respondent  should  be  deemed  to  have retired on  April 20,  1972 cannot, therefore, be upheld. In the later  judgment dated  August 27,  1992 in OA No. 313 of 1989, the  Tribunal has  directed that the respondent should be treated  to have  retired  on  June  1,  1972.  The  said direction cannot  be reconciled  with the direction given by the Tribunal in its earlier judgment dated November 30, 1987 in T.A.No.  109 of  1986. The  Tribunal has  not  given  any cogent reason for arriving at this date, i.e., June 1, 1972. Merely because  the 1972  Rules came  into force  on June 1, 1972 cannot be the basis for altering the date of retirement of the respondent from April 20, 1972 to June 1, 1972.      There is  another serious  infirmity in  the  direction given by the Tribunal in its later judgment dated August 27, 1992 regarding  payment of  pension to the respondent on the basis that  he should  be treated to have retired on June 1, 1972. The  said direction  appears to have been given by the Tribunal on  the basis  that the  respondent was entitled to invoke Rule  48-A of the 1972 Rules and since the said rules came into  force on  June 1,  1972, he was entitled to claim pension on  the basis  of the  reduced period of 20 years of

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qualifying service.  As indicated  earlier, Rule  48(A)  was inserted in  the 1972  Rules by  notification dated November 28, 1978  with effect  from August  26, 1977.  Even  if  the respondent is  treated to  have retired  on June 1, 1972, as directed by  the Tribunal  in its  judgment dated August 27, 1992, he  cannot claim  pension on  the basis  of Rule  48-A because the  said provision was not in force on June 1, 1972 and came  into force  much later  on August  26, 1977.  This error in the approach of the Tribunal was pointed out in the review application  filed by  the appellants.  The Tribunal, however did  not  consider  it  necessary  to  correct  this apparent error in the judgment on the ground that the review application was  barred by  limitation as  well  as  on  the ground that  the judgment  dated August  27,  1992  did  not suffer From an error apparent on the face of the record.      Shri Narayan  B. Shetye,  the  learned  senior  counsel appearing  for  the  respondent,  has  laid  stress  or  the observations in the earlier judgment dated November 30, 1987 in TA  No. 109  of 1986  that the respondent could not claim that he must be deemed to have retired merely because letter dated May  29, 1971  had not  been replied  to and until the competent authority  decided and  communicated the  reply to the respondent’s  request for retirement on e cal grounds it cannot be  deemed that  the  respondent  is  retired  merely because his  letter had not been replied to. It is submitted that  since  the  offer  of  the  respondent  for  voluntary retirement was  not accepted  by the  competent authority he should be  treated to  have continued  in  service  till  he attained the  age  of  superannuation  in  1987  and  he  is entitled to  pension. We  are unable  to agree. As indicated earlier,   the only possible construction that can be placed on the  direction that  was given  by the  Tribunal  in  its judgment   dated November 30, 1987 in TA No. 109 of 1986 can be that  the   respondent was  treated to  have retired with effect from  April 20,  1972. The  appellants as well as the respondents also  proceeded on  this interpretation  of  the said judgment  and the  dues payable  to the respondent were paid to  him on  that basis and GPf amount was also released with interest  @ 9%  from April  20, 1972.  The   respondent having obtained  the said  benefit under  the Judgment dated November 30,  1987 cannot  now be  permitted to  say that he could not be treated as having retired on April 20, 1972 and that in  continued in  service till  he attained  the age of superannuation as per rules in  August, 1987.      Shri Shetye has urged that the present case involves an individual employee  and since  substantial justice has been done by  the Tribunal  by directing payment of pension it is not a  case which calls for interference by this Court under Article 136 of the Constitution. Reliance has been placed on the decision  of this  Court in  Council of  Scientific  and Industrial Research  & Anr.  v. K.G.S.  Bhatt  &  Anr.  1989 (4)SCC 635,  wherein  this  Court  has  emphasized  that  in exercise of  its  jurisdiction  under  Article  136  of  the Constitution this  Court will  not interfere with the orders of the  Tribunal  unless  there  is  manifest  injustice  or substantial question  of public  importance, It  is no doubt true that  the power  of this Court under Article 136 of the Constitution is to be exercised sparingly and the Court does not ordinarily  interfere with the orders of the Tribunal on individual  disputes,  But  since  the  possibility  of  the impugned judgment  being used  as  a  precedent  in  future, cannot be  ignored we feel that the impugned judgment of the Tribunal dated April 27, 1992 cannot be allowed to stand and the matter  calls  for  interference  of  this  Court  under Article 136  of the  Constitution, We  are not  inclined  to

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agree  with   the  submission  of  Shri  Shetye  that  since substantial justice  has been rendered this Court should not interfere with the impugned judgment of the Tribunal. In our opinion  under   the  impugned  judgment  the  Tribunal  has extended pensionary  benefits to  the respondent  which were not available to him in law.      The appeal filed against judgment dated August 27, 1992 in OA  No. 313  of 1989  is, therefore,  allowed,  the  said judgment of the Tribunal is set aside and OA No. 313 of 1989 filed by  the respondent  is dismissed.  Since the  judgment dated August  27,1992 in  O.A.No. 313  of 1989  has been set aside the  Review Application  No. 43  of 1993  vied by  the appellants for  the review  of the judgment dated August 27, 1992 does not survive and the appeal filed against the order dated  December   3,  1993  on  the  review  application  is dismissed   as infructuous.  There will  be no  order as  to costs.