Monday, July 3, 2017

Issue of Dearness Relief, Gratuity, Commutation i.r.o. CG Servants having DoB on 1st Jan & 1st July and retiring/retired on 30th June & 31st December:-


Following are the issues for those Central Govt Servants retired on 31st Dec. 2015, and having DOB 01/01/1956.

Dearness Allowance & Dearness Relief:


As per the prevailing conditions, Govt of India sanctioning DA once in 6 months i.e. 1st Jan. & 1st July. Based on consumer price index, due to raise in the inflation for the period of once in 6 months i.e. 1st Jan. to 30th June & 1st July to 31st December respectively DA being sanctioned to those Central Govt. employees and as DR to the Central Govt. Pensioners. This DA/DR is cumulatively added every month, for administrative convenience, it was being sanctioned once in 6 months. For those Central Govt. employees who were having DOB 1st of any month are being forcibly superannuated on the last working day of the preceding month. Particularly, those who were having DOB 1st Jan. & 1st July, though they have completed 6 months, sanctioned DA was not considered for calculating Retirements viz. Gratuity & Leave encashment purpose.

Whether a retired Government servant is entitled for revised rate of D.A., which comes into force after such Government servant retires from service on attaining the age of superannuation.

As per the Honble. CAT judgement, DA was allowed for calculation of retirement benefits; to those retired on 30th June (DA was sanctioned next to their retirement date. The said case was appealed in Honble. High Court of A.P. the WP was dismissed, further, Govt. of India appealed as SLP in Honble. Supreme Court of India, there also it was dismissed. 

Orders were issued for implementation of DA to the Central Govt. Servants, who were working in Accountant General Office, Hyderabad. 

The same was implemented.

Since, it is a common issue, individuals who were worked in various Departments of Central Govt. should not insisted that who ever will proceed litigation, it will be implemented. It shall be implemented across the board to all the employees to save the money & man power of Govt. of India to avoid litigations.

References: a) CAT Hyderabad Bench OA No.552 of 2003;

b) High Court , Andhra Pradesh WRIT PETITION NO.26506 OF 2012 dt.11/9/2012

c) Supreme Court SLP No.16237/2013 dt.27.10.2014

d) Through Lr No.PAG(G&SSA)/Legal Cell/RTI/F.No.118/2016-17/D.No.45 dt.02/11/2016 intimated that Supreme Court order was implemented for payment of Retirement Gratuity & cash equivalent to leave salary.

Gratuity:

According to Rule 83(1) of the Pension Rules, Pension becomes payable from the date on which Government servant ceases to be borne on the establishment (emphasis given). A Government servant continues to be borne on the establishment till midnight of the date of superannuation. The decision of the Hyderabad Bench of this Tribunal in T. Krishna Murthy 's case (supra) cannot be brushed aside out by the learned Counsel for the respondents. Retirement may be by voluntary or on superannuation. The principles for payment of pension will not vary on the basis of these distinctions. According to us, "afternoon of 31st March or forenoon of 1st of April means one and the same thing and on this balance also we see no reason to hold that the said case is not applicable to the present cases. In short, we are of the view that in the present cases the effective date of retirement would be 01.04.1995 and not 31.03.1995. 

The decision of the Supreme Court in UOI v. P.N. Menon and Ors. CA No. 417 of 1987 and several other cases relied on by the learned Counsel for the respondents in support of his contention need no attention, because they are not exactly or remotedly on the point under consideration. The OM dated 14.7.1995 is not challenged in these cases and, therefore, the argument tried to be made with reference to cut off date or financial, implications in these cases, is misplaced. 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 a retired from service with effect from 01.04.1995." 

As per law laid down by the Full Bench supra we hold that the applicant has effectively retired from service with effect from 1.4.95. In view of the fact that the applicant is deemed to have retired on 1.4.95, the benefit of OM dated 14.7.95 (supra) would be made applicable to him for all purposes. We hold so accordingly. 

In the result we allow this OA and direct the respondents to treat the applicant to have retired with effect from 1.4.95 and pay him the benefits as enumerated in the OM dated 14.7.95. This exercise must be carried out within a period of three months from the date of receipt of a copy of this order. No costs. 

References:

1. Central Administrative Tribunal – Delhi OA No.1151/2000Mrs. Kamla Gupta vs Commissioner, Kendriya ... on 2 January, 2001 & 

2. WP(C)No.5376/2001 filed by the KVS, The said WP has been dismissed for non-prosecution vide Honble. High Court Order dated 01/08/2012 and 

3. SLP was not filed in the Supreme Court of India.

4. Vide Lr No.18(1701)1602/94-KVS(HQ)/P&I/3175-78 dated 10/03/2017, the said letter received thru RTI stating that revised Gratuity was implemented.

Similarly in the case of Govt Servants who were having DOB 01/01/1956 and forced to retire on 31st Dec. 2015, since Gratuity amount was enhanced from Rs.10 lacks to Rs.20 lacks, and orders effective from 01/01/2016, the same shall be made applicable in our case also like one Mrs. Kamal Gupta of KVS.

Commutation Factor:

1. At the age of 61 years commutation factor is 8.194.

2. An individual Govt Servant having DOB 2nd of the month onwards, the next birthday will fall on from 2nd onwards.

3. An individual Govt Servant having DOB 1st, his next birthday will be only on 1st.

4. As per FR 56(a), if the individual Govt Servant having DOB 1st, he is forced to retire on last working day of preceding month.

5. At that time, he is not completing 60 years on that day, his next birthday will be fall on 1st of next month only. (If is having DOB 1st Jan. retiring on 31st Dec. his next birthday will be only on 1st Jan.)

6. Then commutation factor shall be 8.287 and cannot be 8.194

Doctors retirement extension wef 31st May, 2016.

Based on 3 Doctors representation who were retiring on 31st May, requested to the Secretary, Ministry of Health & Family Welfare to extend the benefit extension of retirement from 31st May, Government considered the same and extended the Doctors retirement for 5 years made effective from 31st May 2016. Because of 31st May, those are having DOB 2nd May and to 1st June all are covered. Otherwise, if it is from 1st June, those are having DOB 2nd May to 1st June onwards are not entitled the benefit..

Those who were having DOB 1st Jan. 1956 and are forced to retire on 31st Dec. 2015. Since, 7th CPC made applicable from 01/01/2016, Govt. Servants who were retired on 31st Dec.2015 and 31st Dec. is the working day, Pay & Allowances are drawn for that day also, retirement is effected after midnight 12 o’clock only. However, now Govt. considered to revise the Pension at par with those who are in service as on 01/01/2016.

As such there is vast difference in retirement benefits nearly Rs.15 lacs. Hence, Govt. shall consider to get eligibility for revised Gratuity, encashment of Leave & Commutation value as per 7th CPC for those Govt. Servants having DOB 01/01/1956 and retired on 31/12/2015.

JVSR KRISHNA

jvsrkrishna@gmail.com

9441903448

(Disclaimer: Received via Email sent Shri JVSR Krishna and posted as received).  Comments will reply by the author. 

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