The Income Tax Appellate Tribunal v. R.n. Mishra

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 18908/2022 1. The Union Of India, Through Its Secretary, Department OfPension And Pensioners Welfare Ministry Of Personnel, PgAnd Pension, 3Rd Floor, Lok Nayak Bhawan, New Delhi.Pension And Pensioners Welfare Ministry Of Personnel, PgAnd Pension, 3Rd Floor, Lok Nayak Bhawan, New Delhi. 2. The Secretary, Department Of Legal Affair, Ministry OfLaw And Justice, 4Th Floor, Shastri Bhawan, New Delhi.Law And Justice, 4Th Floor, Shastri Bhawan, New Delhi. 3. The Income Tax Appellate Tribunal, Through Its President,4Th Floor, Old Cgo Building, 101 Maharshi Karve Marg,Mumbai.4Th Floor, Old Cgo Building, 101 Maharshi Karve Marg,Mumbai. ----Petitioners Versus R.N. Mishra S/o Late Shri G.n. Mishra, Aged About 67 Years, R/oRail Vihar 1, Vidhyadhar Nagar, Sector 9, Jaipur (Raj.). EarlierWorking As Senior Private Secretary, Income Tax AppellateTribunal, Jaipur. ----Respondent For Petitioner(s) For Respondent(s) : Mr. Ashish Kumar with Mr. Shubankit Bhatnagar : Mr. Amit Mathur HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANIL KUMAR UPMAN J U D G M E N T 06/04/2023 1.Challenge in this writ petition is laid to the judgment dated02.09.2022 passed by Central Administrative Tribunal, (for brevity"Tribunal") whereby Original Application ('OA') filed by therespondent-applicant has been allowed and the petitioners weredirected to treat the qualifying service rendered by therespondent-applicant from 18.11.2002 to 31.05.2015 for thepurpose of pension. It was also directed that the respondent shall be allowed pension and other pension related benefits includingcommutation of pension, gratuity, leave encashment etc. Theentire exercise was directed to be carried out by the petitionerswithin a period of eight weeks from the date of receipt of certifiedcopy of the order. 2.Factual matrix of the case is that the respondent-applicantwas initially appointed in UPTRON India Ltd. (A UP Govt.Undertaking) and was posted as Executive Officer (Personal &Administration), Lucknow. He performed his duties there from15.09.1983 to 17.11.2002 and during the said period,Contributory Provident Fund ('CPF') was deducted from his salary.He was relieved to join as Private Secretary in Income TaxAppellate Tribunal (for short 'ITAT'), Jaipur on deputation basisvide order dated 15.11.2002. He joined ITAT, Jaipur w.e.f.18.11.2002 for three years on deputation. As per his last paycertificate of UPTRON dated 16.11.2002, his pay was protectedand he was allowed the same pay scale in ITAT, which he wasdrawing at UPTRON. He was permanently absorbed w.e.f.18.11.2005 in ITAT vide order dated 26.10.2005 and was allowedrevised pay scale of Rs.6500-200-10500/-, which was thecorresponding pay scale that he was drawing earlier. He was alsopromoted to the post of Senior Private Secretary from PrivateSecretary vide order dated 07.09.2006. The UPTRON did not paybenefits like CPF, earned leave and gratuity to respondent. Hesubmitted representations to the ITAT to either pay or transfer hisleave, salary, contribution & CPF contribution (employer share) butno efforts for the same were done by ITAT to contact UPTRON for transfer of his dues. He was also not paid any deputationallowances by the ITAT. He attained the age of superannuationfrom ITAT on 31.05.2015. During his service, UPTRON India Ltd.had informed ITAT that all employees of UPTRON have beenallowed benefits of 5th Pay Commission who were on deputation inother bodies of State Government. Before attaining age ofsuperannuation, the respondent had submitted a detailedrepresentation to the petitioner Department regarding his lengthof qualifying service for the purpose of pension and pay fixation. Itis the case of the respondent that when an employee is sent ondeputation in a department and subsequently his services areabsorbed on permanent basis then he is entitled for the benefit ofthose services. 3.The services of ITAT are governed by CCS (Pension) Rules,1972 and as per Rule 13, qualifying service of a governmentservant shall commence from the date he takes the charge of thepost to which he was first appointed either substantially or in anofficiating or temporary capacity. Thus, the services rendered bythe applicant before his permanent absorption from 2002 to 2005shall be counted as qualifying services for the pension purpose.Since on the representation filed by the petitioners, no action hasbeen taken, the respondent approached the Tribunal by way offiling OA No.545/2016 and the same was disposed of by theTribunal vide order dated 19.07.2016 directing the petitioners todecide such representation(s). Thereafter, the petitioners videorder dated 24.10.2016 rejected the representations of theapplicant relying upon OMs dated 13.09.1996 and 04.07.2016. 4.Being aggrieved of the order dated 24.10.2016, therespondent-applicant again approached the Tribunal for redressalof his grievances by way of filing OA No.800/2016 (R.N. Mishra vsThe UOI & Ors.). Reply to the OA was filed by the petitioner No.3 -ITAT wherein it was averred that the respondent was appointed asPrivate Secretary (PS) on deputation basis for a period of threeyears w.e.f. 18.11.2002 in ITAT, Jaipur Bench, Jaipur. Onsuccessful completion of deputation, he was absorbed in ITAT asPS w.e.f. 18.11.2005 and he retired at the age of superannuationon 31.05.2015. It was averred in the reply that the pending duesof the respondent like CPF, EL Encashment and Gratuity amountsfor the services rendered with the previous employer i.e, UPTRONIndia Ltd. from 18.09.1983 to 17.11.2002 were neither demandedby ITAT nor transferred by UPTRON India Ltd. to ITAT. It wasfurther averred that the Under Secretary to Government of India,Ministry of Pensions, Department of Pension & Pensioners vide OMdated 04.07.2016 considered the representations of the applicantalong with such similarly situated officers and did not consider therequest of the respondent and rejected the same. The respondent-applicant was informed about the same vide order dated24.10.2016. In the reply, reliance was placed upon the orderdated 30.07.2016 passed by CAT, Ernakulam Bench in the caseof K.Pushparajan vs. The President, ITAT & Ors. (OANo.180/0153/2017). 5.On the basis of the pleadings and documents placed onrecord and after hearing the arguments advanced by the counsel representing the UOI, the Tribunal vide order dated 02.09.2022allowed the Original Application filed by the respondent-applicantin the above terms, against which the petitioner UOI has filed theinstant writ petition. 5.On the basis of the pleadings and documents placed onrecord and after hearing the arguments advanced by the counsel representing the UOI, the Tribunal vide order dated 02.09.2022allowed the Original Application filed by the respondent-applicantin the above terms, against which the petitioner UOI has filed theinstant writ petition. 6.Learned counsel for the petitioners submits that the Tribunalhas committed serious error of law and facts while allowing the OAfiled by the respondent-applicant. He further submits that in termsof the Office Memorandum dated 04.07.2016, the servicesrendered by the employees of PSU on deputation in ITAT cannotbe counted as qualifying service for the purpose of pensionbenefits. He further submits that the Central Civil Services(Pension) Rules, 1972 (hereinafter referred to as "the Old PensionScheme") was in force till 31.12.2003 and the respondent was notappointed in the ITAT on regular basis till that time and he wasworking on deputation. The National Pension System (hereinafterreferred to as "NPS or New Pension Scheme" came into forcew.e.f. 01.01.2004. The respondent-applicant came to be absorbedpermanently in ITAT as PS w.e.f. 18.11.2005 and retired at theage of superannuation on 31.05.2015. Thus, the respondent didnot complete minimum qualifying service for pension. Therespondent was not absorbed till 31.12.2003 therefore, oldpension scheme is not applicable on him and from absorption tothe retirement he did not complete qualifying service and more somade no contribution for pension and therefore, he is not entitledto pension. He further contends that the Tribunal has committederror in relying upon the judgment passed by Division Bench ofthis Court in the case of UOI & Ors. vs Sushil Kumar Tiwari & Ors. (D.B. Civil Writ Petition No.4799/2013, decided on20.03.2014) as the same was passed in different factual matrixand does not cover up the controversy involved in the case. Tobuttress his contentions, learned counsel for the petitioners hasrelied upon the judgment passed by Hon'ble Supreme Court inthe case of the State of Bihar & Ors. vs Rajmati Devi & Ors. :[2022] 3 SCR 284 and Delhi High Court's judgment in the caseof Rakesh Kumar Verma vs Jawahar Lal Nehru University &Anr. (LPA No.159/2018), decided on 03.05.2019. 7.Per contra, learned counsel for the respondent-applicantsupported the impugned judgment and submitted that theTribunal has considered each and every aspect of the matter andrightly held that the services rendered on deputation by therespondent in the petitioner Department should be counted asqualifying service for the purpose of pension benefits. He furtherargued that the pension is property within the meaning of Article300-A of the Constitution of India and such right cannot be takenaway merely on the basis of administrative instructions. It wasalso submitted by him that the respondent-applicant who ispresently aged about 67 years has been deprived from fruits ofsuccessful litigation and has been unnecessarily dragged in furtherround of litigation for which, appropriate cost should be imposedupon the petitioner. 8.We have given our thoughtful consideration to thesubmissions advanced by counsel for both the parties and gonethrough the material available on record. 8.We have given our thoughtful consideration to thesubmissions advanced by counsel for both the parties and gonethrough the material available on record. 9.From bare perusal of the record, it appears that the OfficeMemorandum dated 13.09.1996 does not cover the servicesrendered by Central Government employee in public sectorundertaking or services rendered by an employee in public sectorundertaking under the Government for the purpose of pension.Further this office memorandum is not related to counting ofservices rendered on deputation basis and subsequent absorption.In the present case, the respondent-applicant has not claimed thatthe services rendered by him prior to his deputation in ITAT shouldbe taken into consideration for the purpose of pension. Thesubsequent Office Memorandum dated 04.07.2016 is basicallybased upon Office Memorandum dated 13.09.1996, so thepetitioners were not justified in rejecting the claim of therespondent-applicant on the premise that the services rendered byhim were prior to the date of absorption i.e, 18.11.2005.Therefore, the Tribunal has not committed any error in quashingthe Office Memorandum dated 04.07.2016. Same view was takenby Coordinate Bench of this Court in case of UOI & Ors. vsSushil Kumar Tiwari & Ors. (supra) wherein it was held asbelow:- "In our opinion, the learned Tribunal considered theprayer of applicant for granting relief of absorption w.e.f.initial date of appointment in accordance with the aforesaidOfficial memo dated 27.03.2001 and said memo applies tothe case of the applicant for the purpose of absorption in theIncome Tax Department. In our opinion, the finding given bythe Tribunal for granting relief of absorption to therespondent employee w.e.f. initial entry into the service withall consequential benefits does not suffer from any perversityor illegality..." 10.As per Rule 3(q) of Central Civil Services (Pension) Rules,1972, 'Qualifying Service' means service rendered while on dutyor otherwise which shall be taken into account for the purpose ofpensions and gratuities admissible. Rule 13 of the said Rules alsoprovide that qualifying service of a Government servant shallcommence from the date he takes charge of the post to which heis first appointed either subsequently or in an officiating ortemporary services is followed without interruption by substantiveappointment in the name or another service or post. Rule 14(1) ofthe said Rules, provides that the service of a Government servantshall not qualify unless his duties and pay are regulated by theGovernment, or under condition determined by the Government.Rule 14(2) of the said Rules, provides that for the purpose of sub-rule (1), the expression "Service" means service under theGovernment and paid by that Government from the ConsolidatedFund of India or a Local Fund administered by that Governmentbut does not include service in a non-pensionable establishmentunless such service is treated as qualifying service by thatGovernment. The aforementioned provisions of Central CivilServices (Pension) Rules 1972 apply in the case of therespondent-applicant also. The services rendered by therespondent-applicant while on duty i.e., from 18.11.2002 in ITATshall be taken into account for the purpose of pensions andgratuities. The qualifying service of the respondent-applicant shallcommence from the date he takes charge of the post to which heis first appointed i.e, 18.11.2002 in ITAT. The respondent-applicantwas being paid by the Government from the Consolidated Fund ofIndia. Therefore, the Tribunal rightly held that the qualifying services of the respondent-applicant will commence from the datehe took charge of the post to which he was first appointed i.e,18.11.2002 on the post of Private Secretary (PS) on deputationbasis in the ITAT and the said date is earlier then 01.01.2004which is the cut off date of New Pension Scheme. services of the respondent-applicant will commence from the datehe took charge of the post to which he was first appointed i.e,18.11.2002 on the post of Private Secretary (PS) on deputationbasis in the ITAT and the said date is earlier then 01.01.2004which is the cut off date of New Pension Scheme. 11.So far as the judgment relied upon by counsel for thepetitioners are concerned, we are of the view that thesejudgments do not cover the controversy involved in the presentcase. In the case of State of Bihar & Ors. vs Rajmati Devi &Ors (supra), the issue was related to entitlement of new pensionscheme but in the present case, the controversy is related toabsolute denial of pension on the premise of non-fulfillment ofqualifying service. Further, in the case of Rakesh Kumar Mehra(supra), the issue was related to premature repatriation to parentdepartment which was found logically sound and did not sufferfrom malafide. In our considered view, these judgments are nothelpful to the petitioners in any manner. While allowing theOriginal Application, the learned Tribunal has considered each andevery aspect of the controversy involved in this case and we alsodo not find any good ground to take a different view. 12.Vide Constitution (44[th] Amendment) Act, 1978, the Right toProperty no longer remained a fundamental right but it is still aconstitutional right as provided under Article 300-A of theConstitution of India. Right to receive pension has been treated asRight to Property and no one can be deprived of property save byauthority of law. The Hon'ble Supreme Court in the case of State of Jharkhand & Ors vs Jitendra Kumar Srivastava & Anr. :2013 (0) AIR (SCW) 4749, while dealing with a questionwhether the State Government can withdraw a part of pensionand/or gratuity during pendency of departmental enquiry/criminalproceedings in absence of any provisions under the pension Rules,held as under:- "-14. Article 300A of the Constitution of India reads asunder: “300-A Persons not to be deprived of property save byauthority of law. - No person shall be deprived of hisproperty save by authority of law.” Once we proceed on thatpremise, the answer to the question posed by us in thebeginning of this judgment becomes too obvious. A personcannot be deprived of this pension without the authority oflaw, which is the Constitutional mandate enshrined in Article300 A of the Constitution. It follows that attempt of theappellant to take away a part of pension or gratuity or evenleave encashment without any statutory provision and underthe umbrage of administrative instruction cannot becountenanced. 15. It hardly needs to be emphasized that the executiveinstructions are not having statutory character and,therefore, cannot be termed as “law” within the meaning ofaforesaid Article 300A. On the basis of such a circular, whichis not having force of law, the appellant cannot withholdeven a part of pension or gratuity. As we noticed above, sofar as statutory rules are concerned, there is no provision forwithholding pension or gratuity in the given situation. Hadthere been any such provision in these rules, the positionwould have been different." 13. In case of Prabhu Narain v. State of U.P. reported in (2004) 13 SCC 662, the Hon'ble Apex Court has held as under:- "No doubt pension is not a bounty, it is a valuable rightgiven to an employee, but in the first place it must be shown that the employee is entitled to pension under a particularrule or the scheme, as the case may be." 14.In case of U.P. Raghvendra Acharya v. State ofKarnataka reported in (2006) 9 SCC 630, the Hon'ble ApexCourt held as under:- "25.- Pension, as is well known, is not a bounty. It istreated to be a deferred salary. It is akin to right of property.It is correlated and has a nexus with the salary payable tothe employees as on the date of retirement." 13. In case of Prabhu Narain v. State of U.P. reported in (2004) 13 SCC 662, the Hon'ble Apex Court has held as under:- "No doubt pension is not a bounty, it is a valuable rightgiven to an employee, but in the first place it must be shown that the employee is entitled to pension under a particularrule or the scheme, as the case may be." 14.In case of U.P. Raghvendra Acharya v. State ofKarnataka reported in (2006) 9 SCC 630, the Hon'ble ApexCourt held as under:- "25.- Pension, as is well known, is not a bounty. It istreated to be a deferred salary. It is akin to right of property.It is correlated and has a nexus with the salary payable tothe employees as on the date of retirement." 15.In Pepsu Road Transport Corporation v. Mangal Singh& Ors. reported in (2011) 11 SCC 702, the Hon'ble ApexCourt has held as below:- "To sum up, we state that the concept of pension has beenconsidered by this Court time and again and in a catena ofcases it has been observed that the pension is not a charityor bounty nor is it a conditional payment a solely dependenton the sweet will of the employer. It is earned for rendering along and satisfactory service. It is in the nature of deferredpayment for the past services. It is a social security planconsistent with the socio-economic requirements of theConstitution when the employer is State within the meaningof Article 12 of the Constitution rendering social justice to asuperannuated Government servant. It is a right attached tothe office and cannot be arbitrarily denied." 16.The respondent-applicant is running from pillar to post and isin corridors of the Court for redressal of his grievances for the lastseven years. He has won the legal battle but still he is deprived ofthe fruit of successful litigation. While allowing the OriginalApplication filed by the respondent-applicant, the Tribunal directedthe petitioners to grant pension and other related benefits within a period of eight weeks but instead of granting such benefits to therespondent-applicant, he has been unnecessarily dragged infurther litigation by filing this merit-less writ petition. The writpetition is sans merit. Consequently, this writ petition standsdismissed with a cost of Rs.1,00,000/- which shall be payable tothe respondent-applicant by way of demand draft. The petitionersare directed to grant all benefits as allowed by the Tribunal videorder dated 02.09.2022 and the cost of Rs.1,00,000/- imposed bythis Court to the respondent-applicant on or before 31.05.2023. Incase, the petitioners fail to comply with the aforesaid directions,the respondent-applicant would be at liberty to file appropriateapplication before this Court. (ANIL KUMAR UPMAN),J(PANKAJ BHANDARI),J Sudhir Asopa