ORDER
Meera Chhibber, Member (J)
1. By this OA applicant had sought direction to respondents to make entire payment of gratuity amounting to Rs. 3,50,000/- along with interest @ 2% p.a. w.e.f. 01.5.2004 with further direction to make entire payment of pension commutation along with interest @ 2% p.a. w.e.f. 01.5.2004 and to provide all the records sought by him to claim pending dues.
2. It is stated by the applicant that he retired on attaining the age of superannuation from Indian Forest Service w.e.f. 30.4.2004 but his gratuity and pension commutation have been denied vide order dated 14.10.2005. It is stated by the applicant that even though he had approached this Tribunal earlier for this very relief by filing OA No. 859/2006, the same was dismissed by relying on the judgment of Hon’ble Supreme Court in the case of Jarnail Singh v. Secretary, Ministry of Home Affairs and Ors. . It is submitted by applicant that while deciding his earlier OA, this Tribunal had ignored the law laid down by the Hon’ble Supreme Court in the case of State of U.P. v. UP University Colleges Pensioners Association and State of A.P. and Anr. v. A.P. Pensioners Association and Ors. reported in AISLJ 2006 (2) SC 10, wherein Jarnail Singh’s judgment has been overruled, therefore, the earlier judgment in OA 859/2006 is per incurium and does not have any binding force in the eyes of law nor can it be used against applicant as res judicata. He also relied on another judgment of Hon’ble Supreme Court in the case of A.R. Antulay in order to say that he can still file present OA in spite of earlier OA having been dismissed.
3. Respondents, on the other hand, have taken preliminary objection to the maintainability of the OA itself on the ground that his earlier OA had already been dismissed by this Tribunal by a detailed judgment dated 19.10.2006 (page-85) against which applicant had filed Review Application No. 206/2006, which was also dismissed in circulation on 22.12.2006 (page-94). Applicant thereafter filed another Review Application No. 67/2007 in RA 206/2006 in OA 859/2006. Even the same was also rejected on 19.5.2007 (page-95), therefore, it is not open to the applicant to file one after another OA or RA in the same Court as the same is barred by res judicata. Therefore, present OA is liable to be dismissed on this very ground.
4. I have heard both, applicant in person, as well as counsel for respondents and perused the pleadings as well. It is not disputed by the applicant that he had earlier filed OA No. 859/2006 seeking the same relief namely respondents be directed to make entire payment of gratuity and commutation of pension after giving the pay scale of PCCR as was given to Shri S.K. Raha, who was junior to the applicant w.e.f. 01.8.1978 with a further direction to Respondent No. 3 to provide all the records so that he may claim his pending dues after going through the same. In the present OA also he has sought the same relief. The only ground taken by applicant for filing the present OA is that while deciding his earlier OA 859/2006, judgment in the case of State of U.P. v. UP University Colleges Pensioners Association (supra) has not been noticed and the judgment in the case of Jarnail Singh (supra) has already been over-ruled, therefore, the judgment dated 19.10.2006 passed in OA No. 859/2006 is per incurium having no binding force.
5. When applicant had filed his first OA, he had placed reliance on the judgments of D.V. Kapoor v. Union of India and Ors. , N.S. Kain v. Union of India and Ors. OA No. 470/2004 decided on 10.9.2004 and F.R. Jesuratnam v. Union of India and Ors. 1990 SCC 640. He had stated that there is no valid inquiry pending against him relating to the charge of recovery or causing any pecuniary loss to the Government therefore, his gratuity cannot be forfeited. However, after referring to all the judgments, which were quoted by the applicant and the relevant rules including Rule 6 of All India Services (Death-cum-Retirement Benefits) Rules, 1958, it was held that where any departmental or judicial proceeding is instituted against an officer, only provisional pension is required to be paid and gratuity or death-cum-retirement gratuity shall not be paid to him until the conclusion of such proceeding and issue of final orders thereon. It was noted that in the instant case, applicant was served with a charge sheet for major penalty and the enquiry is still pending, therefore, his gratuity or commutation of pension could not have been released. It was specifically observed that the judgments of D.V. Kapoor and F.R. Jesuratnam were already over-ruled by a subsequent judgment of Hon’ble Supreme Court in the case of Jarnail Singh (supra). Reference was also made to Rule 69(1)(c) of CCS (Pension) Rules and Rule 3(1)(o) of CCS (Pension) Rules, wherein the definition clause pension is stated to include gratuity also except when the term pension is used in contradistinction to gratuity, but does not include dearness relief. Reference was also made to Article 366 (17) of the Constitution of India and Rule 9(1) of CCS (Pension) Rules as amended in 1991. It was also observed therein that Rule 6 of All India Services (Death-cum-Retirement benefits) Rules, 1958 is para-materia to para (1) (c) of Rule 69 of CCS (Pension) Rules. Since departmental enquiry was admittedly pending against the applicant, it was held that no direction could be given to release gratuity or commutation of pension. In normal course, in view of the fact that applicant’s OA seeking same relief had already been rejected by a detailed judgment, his RA and even second RA filed in first RA was also rejected, present OA should have been dismissed at the admission stage itself, being barred by res judicata. However, since applicant, who appeared in person, had strenuously urged that the judgments in the case of State of U.P. v. UP University Colleges Pensioners Association and State of A.P. and Anr. v. A.P. Pensioners Association and Ors. AISLJ 2006 (2) SC 10 were relevant in his case and had not been taken note of and both the judgments had already over-ruled the judgment of Jarnail Singh (supra), therefore, it becomes my duty to deal with those judgments also.
6. In the case of State of U.P. v. UP University Colleges Pensioners Association (supra), the issue was absolutely different and it was not a case where gratuity or commutation of pension was withheld on the ground of pendency of a departmental enquiry, as is the case of applicant. In fact, in said case, the facts of the case were that the State of U.P. had formulated a new scheme of pension and provident fund for the employees of Aided Degree Colleges of the State, which was made effective by Government Order dated 24.8.1980. Said Government Order had made available two packages leaving it to the teacher concerned to opt for one of those. One option was to retire at the age of 60 years, in which case pension as available to Government Colleges teacher would be available so also general provident fund. However, they would not be entitled to get gratuity. Those, who would opt to retire at the age of 58 years, were to get death-cum-retirement gratuity also along with aforesaid two benefits, so too family pension. The members of UP University Colleges Pensioners Association had opted for the first package. They were aggrieved by the denial of gratuity and also with commutation of pension by taking the last pay drawn on completion of 58 years of age even though they were allowed to continue in service till completion of 60 years. It was in those circumstances that the said Association had challenged the aforesaid Government Order before the Hon’ble High Court of Allahabad.
7. Hon’ble High Court of Allahabad had directed the State to give benefit of pension on the last emoluments drawn at the age of 60 years and also to make available the benefit of gratuity. They were also directed to give benefit of commutation to the teachers who had retired prior to 14.8.1988.
8. Being aggrieved by these directions, State of UP had approached the Hon’ble Supreme Court. The contention raised by State of UP before the Hon’ble Supreme Court was that since two packages were allowed by the Government Order, High Court could not have formulated a third package by giving best of the terms from both the packages to the teachers of the Association. Hon’ble Supreme Court found force in the submissions made by the counsel for State of UP. It was in these facts, that counsel for Association submitted, gratuity is to be taken as part of pension and cannot be deviated by Government Order. It was in those circumstances, Hon’ble Supreme Court observed that in Jarnail Singh case (supra) gratuity was taken to be a part of pension because of the definition of pension as given in Clause (o) of sub-rule (1) of Rule 3 of Central Civil Services (Pension) Rules, 1972, therefore, it was on the basis of this Rule that the findings given in D.V. Kapoor (supra) were not followed. It was specifically held that both in D.V. Kapoor as well as F.R. Jesuratnam, Rule 3(1)(o) of CCS (Pension) Rules, 1972 was not taken note of. It nowhere states that the judgment of Jarnail Singh is not correct or is overruled. In fact, the operative part of the judgments ultimately shows that the case was decided in view of the Government Order dated 24.8.1980, wherein two different situations were stipulated for different set of teachers. After reading the entire judgment, I am satisfied that the case of State of U.P. v. UP University Colleges Pensioners Association (supra) was never dealing with the situation where gratuity and commutation of pension was to be withheld on account of pendency of departmental enquiry. In one set, they were to get higher age along with pension at par with Government teachers while in the other set if they opted for the age of 58 years, they were to become entitled for gratuity with other benefits and family pension. From above, it is clear that it was absolutely in a different set of facts that the said judgment was given, therefore, by no stretch of imagination can it be said that either the views expressed in Jarnail Singh’s judgment have been overruled or they have been set aside. In fact, after the head-note against the judgment of Jarnail Singh, the word used is distinguished, therefore, at best it can be said that in the given facts of the case, the judgment of Jarnail Singh was distinguished (page-54). It is, therefore, not correct to say that Jarnail Singh’s judgment had been overruled by the Hon’ble Supreme Court in the above said case. In fact, in nutshell, if one can conclude it was held in the case of State of U.P. v. UP University Colleges Pensioners Association (supra) that gratuity in the absence of any express provision in the statute cannot be a part of pension as has also been mentioned in the judgment of State of A.P. and Anr. v. A.P. Pensioners Association and Ors. reported in AISLJ 2006 (2) SC 10 at Para-31. Coming to the second judgment, once again, it seems that applicant has only seen the head-note without going through the facts of the case. Even this case was decided in the given facts of the case because here again Hon’ble Supreme Court was dealing with Government Order No. 114. In this case, State of A.P. constituted a Pay Revision Commission (for short PRC) for the purpose of considering the question of revision of scale of pay of the employees working with it. Meetings were held wherein it was agreed that the cash benefit of the Revised Pay Scales will be allowed with the salary for the month of July, 1999 payable in August, 1999. The arrears of emoluments arising from the Revised Pay Scales for the months of April, May and June, 1999 will be credited to the General Provident Fund Accounts of the employees. Thereafter another Government Order dated 11.8.1999 was issued bearing No. 114 wherein the mode and manner for implementing the recommendations of the PRC on pension and other terminal benefits were specified. In this Government Order No. 114, it was held as under:
9. Persons who retired between 1.7.1998 and 31.3.1999 shall also be eligible for the Revised Pay Scales, 1999. The notional pay fixed in the Revised Pay Scales, 1999 in accordance with these orders, shall in such cases count towards pensionary benefits.
16. Separate orders are also being issued in regard to the recommendations of the Pay Revision Commission on Pension and other terminal benefits.
9. The State then issued another Government Order No. 156 on 16.9.1999 wherein it was categorically stated that the revised consolidated pension shall come into force with effect from 01.7.1998 with monetary benefits payable from 01.4.1999. Para-5 of said G.O. reads as under:
5. The employee retired between 01-07-1998 and 1-4-1999 are eligible to revision of their pay in the Revised Pay Scales, 1999 notionally as per the orders issued in G.O. 7th read above. As such, the pensions of these employees may be revised notionally as per the revised pay in Revised Pay Scales, 1999 and monetary benefit should be allowed from 01-04-1999. No difference on Retirement Gratuity and Commutation shall be allowed in the pension notionally fixed as above.
Another notification was issued on 16.9.1999 being Government Order No. 157 in terms whereof maximum limit of retirement gratuity under Rule 46 of the A.P. Revised Pension Rules, 1980 was raised from Rs. 1,75.000/- to Rs. 2,50,000/- and by another Government Order No. 158 issued on 16.9.1999, the limit of commutation of pension under A.P. Civil Pensions (Commutation) Rules, 1944 was enhanced to 40% of the pension sanctioned to the pensioners with effect from 01.4.1999. This was applicable only to the persons who had retired or died on or after 01.4.1999. Another clarification was issued on 23.12.1999 vide Government Order No. 206 whereby Government Order No. 114 was clarified as follows:
Persons who retired between 1-7-1998 and 31-3-1999 shall also be eligible for the Revised Pay Scales, 1999. The notional pay fixed in the Revised Pay Scales, 1999 in accordance with these orders shall, in such cases count towards pension notionally and the monetary benefit of the revised pension shall be allowed with effect from 1-4-1999.
10. It was in those circumstances that number of applications were filed by the employees, who had retired between 01.7.1998 and 01.4.1999 praying for payment of pensionary benefits including commutation, pension, gratuity and encashment of leave in terms of Paragraph-9 of G.O. No. 114. Therefore, the whole judgment is based on these Government Orders. Once again it is relevant to mention that this was not a case where gratuity or commutation was withheld on the ground of pendency of a departmental enquiry, as is the case of applicant, therefore, said case is also decided in absolutely different set of facts. It was held in the said case that notification read as a whole does not suggest that the State of Andhra Pradesh thereby intended to pay before 1.4.1999 retirement gratuity reckoned on the basis of the revised scale of pay as recommended by the PRC. It was also held that matter relating to payment of pension and gratuity is governed by A.P. Revised Pension Rules, 1980. Retirement gratuity was mentioned under Rule 46 thereof, therefore, it was held that computation of retirement gratuity payable to a government service is required to be done on the basis of formula laid down in the Rules. Emphasis was laid that in construing the rule, this Court cannot lose sight of the fact that the same did not provide for payment of gratuity. It is thus clear that while deciding this case even Hon’ble Supreme Court referred to the relevant statutory rules available in State of A.P. In Para-31, it was observed as follows:
31. In State of U.P. v. U.P. University Colleges Pensioners’ Association , this Court held that gratuity, in absence of any express provision in a statute, cannot be a part of pension.
After referring to all Government Orders and relevant Rules, the Hon’ble Supreme Court held as under:
37. Clause (4) does not make any exception so far as payment of actual monetary benefit is concerned for the purpose of payment of gratuity or otherwise. Had that been so, the rule would have stated expressly. On the other hand, GO No. 157 dated 16.9.1999 fixed the maximum limit of gratuity under rule 46 of the A.P. Revised Pension Rules with effect from 1.4.1999 only.
38. We, therefore, are of the opinion that the intention of the State was not to grant any benefit towards payment of gratuity even in relation to those employees who had retired in between 1.7.1998 and 31.3.1999.
11. From the perusal of above, it is absolutely clear that even this judgment was given in the facts of the case dealing with various Government Orders and the statutory Rules thereof. It neither overruled the judgment in the case of Jarnail Singh (supra) nor had any occasion to deal with it because it was not a case where gratuity and commutation of pension were being withheld on account of pendency of departmental enquiry. On the contrary, in para-31 of this judgment it was clearly held that in State of U.P. v. U.P. University Colleges Pensioners’ Association, Hon’ble Supreme Court had held that gratuity, in absence of any express provision in a statute, cannot be a part of pension. Those observations in fact support the view taken by me in my earlier judgment dated 19.10.2006 because in CCS (Pension) Rules, it was clearly mentioned that pension would include gratuity also except when the term pension is used in contradistinction to gratuity, which is not the case before us.
12. In view of above discussion, it can safely be concluded that both the judgments relied upon by the applicant are not applicable in the present case as they were decided in a different set of facts and on the basis of different Government Orders read with relevant rules in the respective States. At this juncture, it would be relevant to quote relevant excerpts from the judgment of Collector of Central Excise, Calcutta v. Alnoori Tobacco Products and Anr. , wherein it was held as under:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid’s theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark on lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
13. In view of above, it has to be concluded that reliance placed by applicant on judgments explained above is absolutely misplaced. They are not applicable in applicant’s case.
14. Applicant also submitted that the only charge against him is of unauthorized absence, therefore, there is no justification to withhold his gratuity or commutation of pension. However, counsel for respondents has produced memorandum dated 15.11.1993, which shows that there are as many as eleven charges levelled against the applicant, which are as follows:
Unauthorized absence from duty;
Irregular drawal of pay advance and other Financial irregularities;
Irregular drawal of House Rent Allowance;
Irregular sanction of advance of transfer T.A.;
Mis-use and exceeding the limits of financial powers and the terms of contract;
Mis-use of financial powers for the purchase of stores for building material;
Misappropriation in the purchase of sawn timber from a private saw mill for construction of a building;
Unauthorized demolition of residential Government building;
Disposal of the seized red corals;
Illegal felling of trees and misappropriation of timber out of it;
Leaving the Headquarter, Port Blair during suspension without permission.
Perusal of It shows that there are serious allegations against the applicant and the enquiry is still pending, therefore, it cannot be said that the departmental enquiry is only with regard to unauthorized absence as stated by the applicant.
15. In view of above discussion, the contention of applicant that judgment dated 19.10.2006 in OA No. 859/2006 is per incurium is without any substance, therefore, the same is rejected. Since points raised by applicant were already decided by a detailed judgment in his earlier OA No. 859/2006, he cannot be allowed to re-agitate the same points again by filing a fresh OA, especially when his RA and another RA in the same OA were also rejected. Accordingly, the OA is dismissed. No order as to costs.