Op (Cat)/21/2018 Of The President, Income -Tax Appellate Tribunal v. K. Pushparajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939 OP (CAT).No. 21 of 2018 (AGAINST THE ORDER IN OA 153/2017 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, DATED 06-03-2017) PETITIONERS/PETITIONERS/RESPONDENTS 1 TO 4 & 6 1 THE PRESIDENT, INCOME -TAX APPELLATE TRIBUNAL, CENTRAL GOVERNMENT OFFICES BUILDING, 4TH FLOOR, MAHARSHI KARVE MARG, MUMBAI - 400 020. CENTRAL GOVERNMENT OFFICES BUILDING, 4TH FLOOR, MAHARSHI KARVE MARG, MUMBAI - 400 020. 2 THE REGISTRAR, CENTRAL GOVERNMENT OFFICES BUILDING, 4TH FLOOR, MAHARSHI KARVE MARG, MUMBAI - 400 020. 3 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF LAW AND JUSTICE, 'B' WING, 1V FLOOR, JANPATH BHAVAN, NEW DELHI - 110 001. REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF LAW AND JUSTICE, 'B' WING, 1V FLOOR, JANPATH BHAVAN, NEW DELHI - 110 001. 4 THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY TO PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI - 110 001. DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI - 110 001. 5 THE ASSISTANT REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, FIRST FLOOR, BLOCK C, KENDRIYA SADAN, KAKKANAD, KOCHI - 682 037. INCOME-TAX APPELLATE TRIBUNAL, FIRST FLOOR, BLOCK C, KENDRIYA SADAN, KAKKANAD, KOCHI - 682 037. BY ADV.SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA RESPONDENT(S)/RESPONDENTS/APPLICANTS & R5: 1. K. PUSHPARAJAN, S/O. (LATE) P.K KUTTIKRISHNA MENON, (RETIRED SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL(ITAT), ERNAKULAM, KOCHI - 682 037 PERMANENT ADDRESS: "NANDANAM", THUNJAN ROAD, ANNARA, OPPOSITE: THUNJAN PARAMBU, TIRUR- 676 101, MALAPPURAM DISTRICT. S/O. (LATE) P.K KUTTIKRISHNA MENON, (RETIRED SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL(ITAT), ERNAKULAM, KOCHI - 682 037 PERMANENT ADDRESS: "NANDANAM", THUNJAN ROAD, ANNARA, OPPOSITE: THUNJAN PARAMBU, TIRUR- 676 101, MALAPPURAM DISTRICT. 2. THE DIVISIONAL IN CHARGE(PERSONNEL) UPTRON INDIA LTD, GOMTINAGAR 10, ASHOK MARG, LUCKNOW - 226 001. UPTRON INDIA LTD, GOMTINAGAR 10, ASHOK MARG, LUCKNOW - 226 001. BY SRI. T.C.GOVINDA SWAMY THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 31-01-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS EXHIBITS:EXHIBIT P1 TRUE COPY OF THE OA NO. 180/00369/2017 DATED 15.02.2017 FILED BY THE RESPONDENTS BEFORE THE CAT, ERNAKULAM BENCH.EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER IN OA NO.180/00153/2017 DATED 06.03.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.EXHIBIT P3 TRUE COPY OF THE MA NO.180/00369/2017 DATED 27.03.2017 FILED BY THE PETITIONERS.EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER IN MA NO.180/00369/2017 DATED 05.07.2017 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS EXHIBITS:NIL// True Copy// P.A. To Judge P.R.RAMACHANDRA MENON, J & R.NARAYANA PISHARADI, J ------------------------------------------------------------ O.P. (CAT) No.21 of 2018 -------------------------------------------------------- Dated this the 31[st] day of January, 2018 JUDGMENT P.R. Ramachandra Menon, J The petitioners, who are the respondents 1 to 4 and 6 in theO.A., are challenging the correctness and sustainability of Ext.P2interim order passed by the Central Administrative Tribunal in the O.A.and Ext.P4 order passed in M.A.No.180/00369/2017 seeking to vacatethe said order. RESPONDENTS EXHIBITS:NIL// True Copy// P.A. To Judge P.R.RAMACHANDRA MENON, J & R.NARAYANA PISHARADI, J ------------------------------------------------------------ O.P. (CAT) No.21 of 2018 -------------------------------------------------------- Dated this the 31[st] day of January, 2018 JUDGMENT P.R. Ramachandra Menon, J The petitioners, who are the respondents 1 to 4 and 6 in theO.A., are challenging the correctness and sustainability of Ext.P2interim order passed by the Central Administrative Tribunal in the O.A.and Ext.P4 order passed in M.A.No.180/00369/2017 seeking to vacatethe said order. 2.The respondent was an employee of the Uptorn IndiaLimited, a Corporation fully owned by Government of Uttar Pradesh,where it was a non-pensionable service. The respondent, who enteredin service on 27.10.1978, later obtained deputation to the CentralGovernment service on 24.02.2003 and he joined as the PersonalSecretary to the Income Tax Appellate Tribunal at Goa. On satisfactorycompletion of probation, the respondent was absorbed in regularservice with effect from 18.11.2005 and he retired from the service on 31.12.2015. The claim put forth by the respondent for granting thepensionary benefits was not entertained, pointing out that he wasnot entitled to get pension as per the CCS (Pension) Rules, 1972which came to be in applicable with effect from 01.01.2004 in viewof the new pension scheme in fact, the respondent/applicant wasregularized only with effect from 31.05.2015. The applicantapproached the Tribunal by filing O.A. with the following prayers: i) Call for the records leading to the issue of Annexure-A1 and quash the same; ii) Declare that the applicant is entitled to be grantedpension and other retirement benefits under the CCS(Pension) Rules, 1972 for the entire service from 27.10.1978to 31.12.2015 or at least for the service from 24.02.2003 to31.12.2015 and direct the respondents accordingly; iii) Direct the respondents to release the applicant'spension and other retirement benefits in the light of thedeclaration in 8(ii) above and direct further to grant all theconsequential benefits arising there from with interestcalculated @ 9% per annum on the arrears thereof; iv) Award costs of and incidental to this application; v) Pass such other orders or directions as deemed justfit and necessary in the facts and circumstances of the case. 3.When the matter came up for consideration before theTribunal, particularly with regard to the interim relief sought for,Ext.P2 order was passed by the Tribunal on 06.03.2017, which reads as follows: “HeardMrs.Kala,AdvocaterepresentingMr.T.C.Govindaswamy, learned counsel for the applicant andlearned Senior PCGC for the respondents for sometime. Learned Senior PCGC submitted that he has not beengiven detailed instructions. Nevertheless, it appears to thisTribunal that the applicant has worked in ITAT for more than12 years. He is entitled to the pension payable at least for thatperiod and hence by way of interim order respondents aredirected to grant provisional pension to the applicant for theservice rendered from 24.02.2003 to 31.12.2015 underRespondents 1 to 5 subject to the final outcome of the O.A. List the matter in the Registrar's Court on 27.03.2017for completing the pleadings and post thereafter for finalhearing. Issue a copy of the order to the learned counsel for bothsides”. Learned Senior PCGC submitted that he has not beengiven detailed instructions. Nevertheless, it appears to thisTribunal that the applicant has worked in ITAT for more than12 years. He is entitled to the pension payable at least for thatperiod and hence by way of interim order respondents aredirected to grant provisional pension to the applicant for theservice rendered from 24.02.2003 to 31.12.2015 underRespondents 1 to 5 subject to the final outcome of the O.A. List the matter in the Registrar's Court on 27.03.2017for completing the pleadings and post thereafter for finalhearing. Issue a copy of the order to the learned counsel for bothsides”. 4.The said order was sought to be varied by filing Ext.P3M.A. by the petitioners herein. This led to Ext.P4 order passed on05.07.2017. The Tribunal observed that there was no dispute as tothe factual points asserted by the applicant and that he was havingservice under the ITAT with effect from 24.02.2003 onwards, in turnrendering an undisputed service of 'twelve years' till the date ofretirement. There is also an observation in Ext.P4, to the effect thatno reply statement was filed by the respondents till date(Para 4).It was in the said circumstance, that a finding was rendered that Ext.P2 order passed by the Tribunal did not warrant anymodification and that the same was only to the effect thatprovisional pension had to be granted to the applicant in respect ofthe undisputed service rendered by him in ITAT from 24.02.2003 to31.12.2015, subject to the final outcome of the O.A. The Tribunalfurther observed, that, to protect the interest of the Department, itwould be appropriate to direct the applicant who was the firstrespondent in the M.A. to execute a 'bond' in favour of theGovernment of India, undertaking that in the event of the case notbeing allowed by the Tribunal and such other higher judicial forum,to refund the provisional pension received by him, which wasordered accordingly. After going through the materials on record and after hearingthe learned Central Government counsel, we find that the orderspassed by the Tribunal are based on the undisputed materialsavailable before the Tribunal as on the relevant date. The Tribunalhas ordered to grant only the provisional pension, based on the saidundisputed extent of service from 24.02.2003 to 31.12.2015,subject to the result of the Original Application. As per Ext.P4, theTribunal added a rider as well in favour of thepetitioner/Department, by directing the applicant to execute a 'Bond' in favour of the Government of India, as mentioned before.In the said circumstance, we find that absolutely no prejudice iscaused to the Department. This is not a fit case to interfere underArticle 227 of the Constitution of India. O.P. stands dismissed. In view of the fact that the time stipulated by the Tribunal isalready over, we find it appropriate to grant a further period of onemonth to comply with the directions. Sd/- (P.R.RAMACHANDRA MENON, Judge) Sd/- (R.NARAYANA PISHARADI, Judge) // True Copy// P.A. To Judge