Shiva Gopal Mishra
Secretary

Ph.: 23382286
National Council (Staff Side)
Joint Consultative Machinery
for Central Government Employees
13-C, Ferozshah Road, New Delhi -110001
E-Mail : nc.jcm.np[at]gmail.com

No.NC-JCM- 2022/CS(PM)

Dated August 18, 2022

The Cabinet Secretary,
(Government of India)
&
Chairman, National Council(JCM)
Rashtrapati Bhawan,
New Delhi.

Dear Sir,

Sub: Payment of Dearness Allowance/Dearness Relief w.e.f. 01.01.2020, 01.07.2020 and 01.01.2021 with the arrears

Ref.: (i) Secretary, National Council (JCM)’s letter No.NC-JCM-2021/CS/PM/(DA) dated 17.07.2021 followed by reminder dated 27.12.2021
(ii) NC-JCM Item No.NC-48/6/2021.

This issue of payment of Dearness Allowance / Dearness Relief, w.e.f 01.01.2020. 01.07.2020 and 01.01.2021, with the arrears, had been discussed in detail, and it was pointed out that the Hon’ble Supreme Court, vide judgment dated 08.02.2021 in Civil Appeal No 399 of 2021 (arising out of SLP(C) No 12553 of 2020), had decided that the Salaries and Pension constitute rightful entitlement of the employees and are payable in accordance with the law.

Legitimate payment of Dearness Allowance arrears for 18 months need to be considered sympathetically as all the Central Government Employees were on duty during the COVID-19 Pandemic and financial situation has also improved post COVID era, hence you are requested to take necessary action and issue necessary instructions for payment of arrears of Dearness Allowance for 18 months.

Staff Side is ready to discuss about the mode of arrears payment.

Thanking you

Yours faithfully

(Shiva Gopal Mishra)

Download Payment of Dearness Allowance/Dearness Relief w.e.f. 01.01.2020, 01.07.2020 and 01.01.2021 with the arrears

The post Central Government Employees Frozen DA arrears for 18 months need to be considered – Staff Side appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

On Friday, the Supreme Court issued an interim order allowing disabled candidates who passed the civil service exam to apply for IPS. The Supreme Court also granted applications to the Indian Railway Protection Force (IRPF), Delhi, Daman and Diu, Dadra and Nagar Haveli, Andaman and Nicobar, and Lakshwadeep Police Force, in addition to the IPS (DANIPS). The Supreme Court’s final decision, however, will influence future proceedings, including nomination.

The interim judgement was delivered by the Supreme Court in response to a petition filed by the non-governmental organisation National Platform for the Rights of the Disabled. The interim order was issued by a Supreme Court bench consisted of Justices A.M. Khanwilkar and Abhay S. Oka.

Thursday was the deadline for those who passed the civil service exam to apply for the service in which they want to work. The Supreme Court, on the other hand, has given the disabled until April 1 at 4 p.m. to file their applications. The application must be sent in person or by courier to the Secretary-General (UPSC).

Previously, disabled people were barred from joining the police force. In response to a petition, the Supreme Court granted an interim order. In response to the case, the Supreme Court allowed the Centre permission to produce a thorough affidavit. The matter will be heard by the Supreme Court on April 15.

In an earlier order issued in 2021, the Centre exempted all categories of posts in the Indian Police Service and Indian Railway Protection Force, among other services, from the provision of 4 percent reservation in employment for persons with benchmark disabilities, citing the nature of the work involved in these services. The Rights of Persons with Disabilities Act of 2016 specifies a 4% quota for persons with disabilities in government jobs.

In a separate notification, the government exempted all combatant personnel posts in Central Armed Police Forces such as Border Security Force, Central Reserve Police Force, Central Industrial Security Force, Indo-Tibetan Border Police, Sashastra Seema Bal, and Assam Rifles from the provisions of the 2016 Act. Earlier in 2018, the administration exempted all combatant personnel positions in the Armed Forces from the regulation.

The post Supreme Court issued an interim order to permit disabled candidates who passed the civil service exam to apply for IPS appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

MACP for the Central Government Employees

The Supreme Court has rejected a Delhi High Court order requiring the Delhi Development Authority implement the Modified Assured Career Progression (MACP) Scheme on January 1, 2006, rather than the Assured Career Progression (ACP) granted to the employee.

Justices UU Lalit, SR Bhat, and Bela M Trivedi were deliberating on an SLP challenging the Delhi High Court’s judgement requiring the extension of MACP benefits to Delhi Development Authority employees on January 1, 2006.

Starting January 3, 1985, DDA has assigned the respondent workers as regular work charged Malis. On January 3, 1997, he obtained his first financial upgrade under the Assured Career Progression (ACP) Scheme after 12 years of regular service. He was eligible for a second financial upgrade after 24 years of service, which DDA did not give. Employees claimed they should have been granted a second ACP benefit because DDA implemented the MACP scheme on September 1, 2008, by an order dated October 6, 2009, because the claim for the second ACP benefit had accrued earlier.

According to the Supreme Court, employees cannot claim a vested right in the Assured Career Progression (ACP) Scheme. Employees asked for a second upgrade under the prior ACP programme, stating it was better than the MACP scheme. The court found this plea to be inadmissible.

The MACP Scheme was implemented by the Central Government in May 2019 in substitute of the ACP Scheme by an office memorandum. The MACP was made applicable earlier, on September 1, 2008, due to a specific condition in that scheme.

The Court stated that a group of employees who may have benefited from the then-current regime or policy cannot argue a right to the advantages under the superseded policy in the absence of strong and unequivocal indications in the subsequent policy.

The appeal would be allowed, according to the bench in The Vice-Chairman, Delhi Development Authority V. Narender Kumar & Ors.

“The fact that some employees would have benefited more from the ACP benefits if the MACP scheme had not been implemented at a later date is no reason to believe so and compel an executive agency to grant the claimed benefits.”

The Court stated that the second ACP upgrade was not an automatic right because it was dependent on a number of external factors and that the employee could not assert a vested right to it.

Inputs from livelaw.in

The post Employees are unable to claim the ACP scheme over the MACP scheme since it is superior – Supreme Court appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

Most Urgent / Contempt Petition Matter

No.C-18013/25/2009-Ad.IIIB
Government of India
Central Board of Indirect Taxes & Customs
***

New Delhi, Dated February 24th 2021

To
Cadre Controlling Authorities under CBIC.
(Kind Attention: In Charge PCC/CC of the CCAs)

Subject: Madras High Court’s Order dated 19.07.2011 in respect of Rita Mary and others-Reg.

Undersigned has been directed to refer to the subject mentioned above and state as follows:

1. It may be recalled that as part of the Government policy to govern and then impose a ban on the engagement of casual workers on daily wages, DoPT vide it’s OMs issued in 1993 and 2006 issued guidelines for regularisation of existing Casual Labourers. The exercise of regularisation in terms of these OMs was effected by formations CBIC from time to time, while also emphasizing strict adherence by field formations to Government’s policy in this regard. A copy of Board’s letter No.A-12034/1/2005-Ad.IIIB 02.05.2005, is herein enclosed for ready reference.

2. However, Madras High court, vide common order dated 19.07.2011, directed CBIC to frame a similar scheme like that of DoPT OM dated 10.09.93, to provide an opportunity to regularise certain Part Time Casual Labourers (PT CLs) subject to eligibility. Having implemented the orders, yet in view of the dismissal of further appeals in Supreme Court, a scheme titled “Part-Time Casual Labourers (Regularisation) Scheme of CBIC 2020” dated 01.01.2020 with partial modifications dated 06.02.2020 (copy enclosed) was framed and extended to respondents / petitioners covered under 5 WPs (WP No. 16733/2009, 16889 / 2009, 11492/2006, 18969 / 2006 and 20664/2011). This was framed as a one-time scheme limited only to the respondents / petitioners covered under above mentioned 5 WPs.

MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

3. Now in view of court directions in another set of 18 WPs filed in Madras High court and contempt petitions filed on the issue, information is urgently required (in the enclosed proforma) regarding Part Time CLs, who have claimed regularization and who fulfil conditions as prescribed. The data in the proforma enclosed should be furnished after duly verifying the eligibility of the claimants, along with certificate regarding correctness of details /documents relied upon and copies of supporting documents.

4. For any eligible Part Time CLs left out, after this exercise, the concerned CCA, will be held responsible for consequential action.

5. Information / data in enclosed proforma is required to be sent to Board within 15 days from the issuance of this letter, including a nil report in case there are no such part time CLs under the CCA.

6. This issues with the approval of Member (Admin)

Encl: As above

Yours faithfully,

(RK Jha)
Deputy Secretary to Government

The post Madras High Court’s Order dated 19.07.2011 in respect of Rita Mary and others appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

Reimbursement cannot be denied to a central government employee either during service or after retirement if he/she does not seek treatment from a hospital that is not on the list of CGHS empanelled hospitals, the SC said.

In its judgement, a two-judge bench of the apex court clearly says that an employee of the central government cannot be denied reimbursement of medical bills on the grounds that the employee opted for treatment from a private hospital during an emergency.

Reimbursement cannot be denied either during service or after retirement if the employee does not seek treatment from a hospital that is not in the government panel or in the list of the Central Government Health Scheme (CGHS) empanelled hospitals, the SC said.

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the government order,” the bench of Justice RK Agrawal and Justice Ashok Bhushan said.

Speaking for the bench, Justice RK Agrawal stated, “Can it be said that taking treatment in speciality hospital by itself would deprive a person to claim reimbursement solely on the ground that the said hospital is not included in the Government Order?”

“The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned.”

“Once, it is established, the claim cannot be denied on technical grounds,” the Supreme Court said.

‘No fetters can be placed on rights of Central govt employee’

The apex court went on to add that it is a settled legal position that the employee during his lifetime in service or after his retirement is “entitled to get the benefit of the medical facilities and no fetters can be placed on his rights”.

It further said that speciality hospitals are established for treatment of specified ailments and services of doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment.

The court also took note of “slow and tardy pace of disposal of MRC by the CGHS in case of pensioner beneficiaries and the unnecessary harassment meted out to pensioners who are senior citizens, affecting them mentally, physically and financially…”

SC orders formation of high powered committee

Directing that all such claims “shall be attended by a Secretary-level High Powered Committee in the concerned Ministry which shall meet every month for quick disposal of such cases”, the court said: “We are of the opinion that after submitting the relevant papers for claim by a pensioner, the same shall be reimbursed within a period of one month.”

It also directed the setting up of “Committee for grievance redressal of the retired pensioners consisting of Special Directorate General, Directorate General, 2 (two) Additional Directors and a specialist in the field which shall ensure timely and hassle-free disposal of the claims within a period of seven days.”

MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved

“We further direct the concerned Ministry to take steps to form the Committee as expeditiously as possible,” the court said.

CGHS approach ‘very inhuman’

The court order was issued on a petition by a retired central government official who had sought treatment from two private hospitals and demanded the reimbursement of medical bills. The government had initially refused to reimburse the bill saying that implant of CRT-D device was not required.

The court said: “It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated.”

Holding that the CGHS approach in the instant case was “very inhuman”, the court said: “This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement.”

The Central Government Health Scheme (CGHS), the court said was propounded with the purpose of providing a health facility scheme to the central government employees so that they are not left without medical care after retirement.

Source: India Today

The post Reimbursement cannot be denied to a central government employee either during service or after retirement if he/she does not seek treatment from a hospital that is not on the list of CGHS empanelled hospitals, the Supreme Court said. appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

PIL Filed for Central Government Employees Freezing DA in Supreme Court

IN THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI.

PIL DATED 24th APRIL 2020 via Email regarding payment of DA or PIL DATED 24th APRIL 2020 via email regarding payment of DA or Dearness allowance with effect from 1st January 2020 atleast to veterans and to all employees if possible

Major Onkar Singh Guleria Retired, a Senior Citizen and CANCER PATIENT, aged 69 years, son of Late Shri Kikar Singh Guleria resident of village Jachh PO Jassur Tehsil Nurpur Distt Kangra Himachal Pradesh 176201.

VERSUS

1. Union of India through Secretary Finance Govt of India New Delhi 110011.
2. Union of India through Secretary Home Govt of India New Delhi 110011.

BEFORE CHIEF JUSTICE AND ALL HIS COMPANION JUSTICES OF SUPREME COURT OF INDIA TO DIRECT UNION OF INDIA TO PRACTICE WHAT PRIME MINISTER OF INDIA PREACHES TO 130 CRORES DESHWASI AND DEFREEZE DA or dearness allownce by paying with effect from 01st January 2020 to Veterans atleast if not to employees.

MOST RESPECTFULLY SHOWETH,

1. That the applicant a CANCER PATIENT, disabled of right foot and also suffering from hypertension and a Senior Citizen with no home but living in a rented building in my last span of life and also to take care of wife a senior citizen suffering from various ailments and my only source of income is my monthly military pension of the rank of Major that too on reduced scale. I and lakhs of Veterans are aggrieved by arbitrary act of Union of India through Secretary Finance Govt of India New Delhi who were committed to pay arrears of DA or dearness allowance in first week of April 2020 but purposely not payed and on 20th April 2020 has FREEZED “DA or dearness allowance” retrospectively with effect from 01st January 2020 to cause us Veterans an irreparable loss that too at a time when Pandemic of COVID 19 VIRUS (China Originated Virus in December 19) has been commiting genocide in entire world and we to survive honourably need every paisa due to us from Govt of India. I attache arbitrary orders of freezing of DA or dearness Allowances dated 20th April 2020 of Secretary Finance Govt of India as ready referance for the Hon’ble Court.

2. That DA or dearness allowance can be basically understood as a component of salary, aimed at hedging the impact of inflation. The DA or dearness allowance is calculated as a specific percentage of the basic salary which is then added to the basic salary. PENSION received by a retired individual is considered as salary and taxed as, income from salary. Generally whatever is received from the employer in cash including DA or dearness allowance is treated as salary.

3. That the Union of India itself after studying the impact of inflation had announced increased instalment of DA or dearness allowance with effect from 01st January 2020 and promised to pay its employees and Veterans receiving pension in first week of April 2020 which was illegally and arbitrarily withheld and as a afterthought issued malafied orders dated 20th April 2020 ordering of freez of DA or dearness allowance retrospectively from 01st January 2020. It has come as a big blow especially to pensioners at a time when all veterans are more vunerable to catching COVID 19 VIRUS (China Originated Virus in December 19 ) as being daily advocated by Prime Minister of India and all functionaries of Union of India and Doctors through media and advisory letters in black and white. When Union of India is doling out financial package after package from announced budget of 2020-21 in Parliament and later various stimulous financual packages gìven and planning to give to business houses for whom at drop of hat the Political and Administrative Governments of whom many are directly or indirectly associated with industry then huge financial stimulous is being passed even during this national rather international calamity of COVID 19 ( CHINA ORIGINATED VIRUS IN DECEMBER 19), Whereas, petty amount for Union of India but it is a large amount for its employees and Retired personnels who in last span of life are undergoing various hardships is being denied by freezing “DA or dearness allowance” that too retrospectively wef 01st January 2020. This arbitrary and illegal mechanical step of Union of India without applying mind must be struck down immediately and all beneficairies paid their legitmate authorised “DA or dearness allowance” wef 01st January 2020 and continued to be paid. Even Union of India has taken care of other classes of India but subjected the “MIDDLE CLASS” to this horible torture by freezing its “DA or dearness Allowances”at a time when we need every paisa in our last span of life. We by cutting our legitimate expenses have even made small contribution to “PM CARES FUND” which so far is not transparent.

Also check: Second National Judicial Pay Commission has filed the subject of Pay, Pension and Allowances, in Supreme Court on 29.01.2020

4. Then why does Prime Minister of India preaches to look after Senior citizens, not to cut salary when his own Govt is doing it. Atleast the Union of India must practice what its Prime Minster preaches.

5. Copy if this P.I.L., is being sent to all concerned by mail and all Chief Ministers are also requested to pay “DA or dearness Allowances” wef 01st January 2020 to their employees and Retired personnels.”HAVES”Political and Administrative class and affluent families are nit in touch with reality. A prominent singer is heard on TV asking 130 Crore Deshwasi to donate atleast Rs.100 Per person to make it Rs13000Crores donations. Madam there are many who have not seen or handled Rs.100 note in their entire life. Then if five of family members donate then amount comes to Rs.500/- which is equivalent to one month amount given to BPL Families by Govt of India. Madam have a heart and producers allowing her to speak this in print media has never applied mind to these ground realities. Sad, how insensitive are our “HAVES”Class!

RELIEFS SOUGHT WITH SPEAKING ORDERS.

5. In the given premises it is respectfully prayed that the Hon’ble Court be pleased to direct Union of India through Secretary Finance Govt of India New Delhi and Secretary Home Govt of India to:

(A) Pay immediately “DA or dearness Allowances” to all employees and Retired personnels and same be done by respective States and Union Territories of India.

(B) Union of India be directed to immediately stop various financial stimulous package being given or are being planned to be given in near future to business houses as after freezing “DA or dearness Allowances” Union of India admits that financial health of the Nation is not sound and healthy. More over these business houses are directly or indirectly related to all Political class who like to enjoy all benefits even in national calamities. Some are seen distributing Govt or public donations of food etc to poor to ensure their own stamp on it. India with Lockdown has gone back to “SATJUG” in many ways and air and water is purified and need of the hour is purification of “HAVES”, i.e., the Political cum business class. Union of India must practice what Prime Minister of India preaches to look after senior citizens and not to cut salary.

Also read: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

6. Kindly direct registry to confirm receipt and action taken via revert Email.

NAMASTE INDIA! JAI HIND!

(MAJOR ONKAR SINGH GULERIA RETD)
(A CANCER PATIENT)
Mob: 7018748978, 9418009991.
Email: maj.onkarsinghguleria@gmail.com

The post PIL Filed for Central Government Employees Freezing DA in Supreme Court appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

Ministry of Labour & Employment
Second National Judicial Pay Commission submits its Report

06 FEB 2020

The Second National Judicial Pay Commission has filed the main part of the Report in 4 volumes covering the subject of Pay, Pension and Allowances, in the Registry of the Supreme Court on 29.01.2020. The Commission has been constituted pursuant to the Order of the Supreme Court in All India Judges Association case and the Government of India, Ministry of Law & Justice issued a Notification dated 16.11.2017 in this regard. Shri Justice P.V. Reddi, former Judge of the Supreme Court is the Chairman, Shri Justice R. Basant, former Judge of Kerala High Court is the Member and Shri Vinay Kumar Gupta, District Judge of Delhi Higher Judicial Service is the Member-Secretary of the Commission.

Also check: 7th Pay Commission Latest News 2020

The Interim Report was submitted by the Commission in 2018.

The salient recommendations are:

PAY: The Commission having considered various alternative methodologies has recommended the adoption of Pay Matrix which has been drawn up by applying the multiplier of 2.81 to the existing pay, commensurate with the percentage of increase of pay of High Court Judges. @ 3% cumulative has been applied.

As per the revised pay structure evolved by the Commission, the Junior Civil Judge / First Class Magistrate whose staring pay is Rs.27,700/- will now get Rs.77,840/-. The next higher post of Senior Civil Judge starts with the pay of Rs.1,11,000/- and that of the District Judge Rs.1,44,840/-. The highest pay which a District Judge (STS) will get, is Rs.2,24,100/-.

The percentage of Selection Grade and Super Time Scale District Judges proposed to be increased by 10% and 5% respectively.

The revised pay and pension will be effective from 01.01.2016. Arrears will be paid during the Calendar year 2020 after adjusting the interim relief.

PENSION: Pension at 50% of last drawn pay worked out on the basis of proposed revised pay scales is recommended w. e. f. 1-1-2016. The family pension will be 30% of the last drawn pay. Additional quantum of pension will commence on completing the age of 75 years (instead of 80 years) and percentages at various stages thereafter are increased. The existing ceiling of retirement gratuity and death gratuity will be increased by 25% when the DA reaches 50%.

Nodal officers will be nominated by the District Judges to assist the pensioners / family pensioners.

Recommendation has been made to discontinue the New Pension Scheme (NPS) which is being applied to those entering service during or after 2004. The old pension system, which is more beneficial, will be revived.

ALLOWANCES: The existing allowances have been suitably increased and certain new features have been added. However, the CCA is proposed to be discontinued.

Recommendations are made to improve the medical facilities and to simplify the reimbursement procedure. Medical facilities will be granted to pensioners and family pensioners also.

Certain new allowances viz. children education allowance, home orderly allowances, transport allowance in lieu of pool car facility, have been proposed. HRA proposed to be increased uniformly in all States. Steps to ensure proper maintenance of official quarters recommended.

The recommendations made by the Commission are applicable to the Judicial officers throughout the country.

Supreme Court will have to issue directions regarding the implementation of recommendations after hearing the stakeholders.

PIB

The post Second National Judicial Pay Commission has filed the subject of Pay, Pension and Allowances, in Supreme Court on 29.01.2020 appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

The Supreme Court Friday decided to examine the Centre’s decision to grant 10 percent reservation in jobs and education to poor candidates belonging to general category.

A bench comprising Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna issued notice to the central government on various petitions challenging the validity of the Constitution (103 Amendment) Act, 2019, which paved the way for grant of quota to poor belonging to general category.

“We are examining the matter and hence issuing notice returnable within four weeks,” the bench said.

The bench, however, did not stay the operation of the Centre’s decision granting quota to the poor in the general category.

In poll year, the Narendra Modi government had come out with the constitutional amendment bill giving quota benefits to the poor among general category candidates.

The petitions were filed by parties including organisations like Janhit Abhiyan and Youth For Equality challenging the Centre’s decision.

The petition, filed by Youth For Equality, has sought the quashing of the bill saying that the economic criterion cannot be the sole basis for reservation.

The plea has said the bill violates basic feature of the Constitution as reservation on economic grounds cannot be limited to the general categories and the 50 per cent ceiling limit cannot be breached.

A similar plea has been filed by businessman Tehseen Poonawalla seeking to quash the bill, saying that backwardness for the purpose of reservation cannot be defined by “economic status alone”.

The quota will be over and above the existing 50 per cent reservation to SCs, STs and Other Backward Classes (OBCs).

Lok Sabha and Rajya Sabha cleared the Bill on January 8 and 9 respectively and it has also been signed by President Ram Nath Kovind.

Source: PTINews

The post Supreme Court agrees to examine Centre’s decision to grant 10 pc quota to poor in general category appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6770 OF 2013
(Arising out of Special Leave Petition (Civil) No. 1427 of 2009)

State of Jharkhand & Ors. —- Appellant(s)

Vs.

Jitendra Kumar Srivastava & Anr. — Respondent(s)

WITH

C.A. No. 6771/2013

(arising out of SLP(C) No. 1428 of 2009)

J U D G M E N T

A.K. Sikri, J

1. Leave granted. pensionary

2. Crisp and short question which arises for consideration in these cases is as to whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? The High Court has – answered this question, vide the impugned judgment, in the negative and hence directed the appellant to release the withheld dues to the respondent. Not happy with this outcome, the State of Jharkhand has preferred this appeal.

3. For the sake of convenience we will gather the facts from Civil Appeal arising out of SLP(Civil) No. 1427 of 2009. Only facts which need to be noted, giving rise to the aforesaid questions of law, are the following:

The respondent was working in the Department of Animal Husbandry and Fisheries. He joined the said Department in the Government of Bihar on 2.11.1966. On 16.4.1996, two cases were registered against him under various Sections of the Indian Penal Code as well as Prevention of Corruption Act, alleging serious financial irregularities during the years 1990-1991, 1991-1992 when he was posted as Artificial Insemination Officer, Ranchi. On promulgation of the Bihar Reorganisation Act, 2000, State of Jharkhand (Appellant herein) came into existence and the Respondent became the employee of the appellant State. Prosecution, in respect of the aforesaid two criminal cases against the respondent is pending. On 30th January, 2002, the appellant also ordered initiation of disciplinary action against him. While these proceedings were still pending, on attaining the age of superannuation, the respondent retired from the post of Artificial Insemination Officer, Ranchi on 31.08.2002. The appellant sanctioned the release and payment of General Provident Fund on 25.5.2003. Thereafter, on 18.3.2004, the Appellant sanctioned 90 percent provisional pension to the respondent. Remaining 10 percent pension and salary of his suspension period (30.1.2002 to 30.8.2002) was withheld pending outcome of the criminal cases/ departmental inquiry against him. He was also not paid leave encashment and gratuity.

4. Feeling aggrieved with this action of the withholding of his 10 percent of the pension and non-release of the other aforesaid dues, the respondent preferred the Writ Petition before the High Court of Jharkhand. This Writ Petition was disposed of by the High Court by remitting the case back to the Department to decide the claim of the petitioner for payment of provisional pension, gratuity etc. in terms of Resolution No. 3014 dated 31.7.1980. The appellant, thereafter, considered the representation of the respondent but rejected the same vide orders dated 16.3.2006. The respondent challenged the rejection by filing another Writ Petition before the High Court. The said petition was dismissed by the learned Single Judge. The respondent filed C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009 Intra Court Appeal which has been allowed by the Division Bench vide the – impugned orders dated 31.10.2007. The Division Bench has held that the question is squarely covered by the full Bench decision of that Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Ors. 2007 (4) JCR 1. In the said full Bench Judgment dated 28.8.2007, after detailed discussions on the various nuances of the subject matter, the High Court has held:

” To sum up the answer for the two questions are as follows:

(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the Proceeding.

(ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law”.

5. Mr. Amarendra Sharan, the learned Senior Counsel appearing for the petitioner accepted the fact that in so far as the Pension Rules are concerned, there is no provision for withholding a part of pension or gratuity. He, however, submitted that there are administrative instructions which permit withholding of a part of pension and gratuity. His submission was that when the rules are silent on a particular aspect, gap can be filled by the – administrative instructions which was well settled legal position, laid down way back in the year 1968 by the Constitution Bench Judgment of this Court in Sant Ram Sharma vs. Union of India 1968 (1) SCR 111. He, thus, argued that the High Court has committed an error in holding that there was no power with the Government to withhold the part of pension or gratuity, pending disciplinary/criminal proceedings.

6. The aforesaid arguments of the learned Senior Counsel based on the judgment in Sant Ram Sharma would not cut any ice in so far as present case is concerned, because of the reason this case has no applicability in the given case. Sant Ram judgment governs the field of administrative law wherein the Constitution Bench laid down the principle that the rules framed by the authority in exercise of powers contained in an enactment, would also have statutory force. Though the administration can issue administrative instructions for the smooth administrative function, such administrative instructions cannot supplant the rules. However, these administrative instructions can supplement the statutory rules by taking care of those situations where the statutory rules are silent. This ratio of that judgment is narrated in the following manner:

“It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade – officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions and inconsistent with the rules already framed”.

There cannot be any quarrel on this exposition of law which is well grounded in a series of judgments pronounced post Sant Ram Sharma case as well. However, the question which is posed in the present case is altogether different.

7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words:

“The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service?

What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.

The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors.[1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377SC”.

8. It is thus hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India.

9. Having explained the legal position, let us first discuss the rules relating to release of Pension. The present case is admittedly governed by –

Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under:

“43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty to grave misconduct, or to have caused pecuniary loss to Government misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement”.

From the reading of the aforesaid Rule 43(b), following position emerges:-

(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.

(ii) This provision does not empower the State to invoke the said power while the department proceeding or judicial proceeding are pending.

(iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings.

(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.

10. There is also a Proviso to Rule 43(b), which provides that:-

“A. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment.

i. Shall not be instituted save with the sanction of the State Government.

ii Shall be in respect of an event which took place not more than four years before the institution of such proceedings.

iii Shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made:-

B. Judicial proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment shall have been instated in accordance with sub clause (ii) of clause (a) and

C. The Bihar Public Service Commission, shall be consulted before final orders are passed.

It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b) puts some conditions, i.e, Department proceeding as indicated in Rule 43(b), if not instituted while the Government Servant was on duty, then it shall not be instituted except:-

(a) With the sanction of the Government,

(b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings.

(c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made.

Thus, in so far as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated.

11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending.

12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:

“29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same.

30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner’s right regarding property so as to attract Articles 19(1) (f) and 31(1) of the Constitution.

31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein.

32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes ‘property’ and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is ‘property’ within the meaning of Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as ‘property’ cannot possibly undergo such mutation at the whim of a particular person or authority.

33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009 Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.

34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question whether a ‘cash grant’ is ‘property’ within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing ‘it is obvious that a right to sum of money is property’.

35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1) (f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law”.

13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty- Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum– Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”.

14. Article 300 A of the Constitution of India reads as under:

“300A Persons not to be deprived of property save by authority of law. – No person shall be deprived of his property save by authority of law.”

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold – even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.

16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.

……………………….J.

[K.S. Radhakrishnan]

………………………….J.

[A.K. Sikri]

New Delhi
August 14, 2013

The post Government has no power to withhold Pensionary Benefits if departmental or judicial proceeding are pending: Supreme Court appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

In civil appeal number 213 of 2013 the issue for consideration of the Hon’ble Supreme Court was as under:

“whether temporarily engaged employees (daily-wage employees, ad- appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, along-with dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts”.

The Hon’ble Supreme Court held that:

“There can be no doubt, that the principle of ‘equal pay for equal work’ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post”.

In so far as the contract labour is concerned, the Contract Labour (Regulation & Abolition) Act, 1970 and the rules framed thereunder regulate the employment of contract labour. Rule 25(2)(v)(a) of the Contract Labour (Regulation & Abolition) Central Rules, 1971 provides for parity as mentioned below:

in cases where the workmen employed by the contractor perform the same or similar kind of work as the workmen directly employed by the principal employer of the establishment, the wage rates, holidays, hours of work and other conditions of service of the workmen of the contractor shall be the same as applicable to the workmen directly employed by the principal employer of the establishment on the same or similar kind of work.

A well-established Central Industrial Relations Machinery (CIRM) is in place to enforce the Contract Labour (Regulation & Abolition) Act, 1970. The country-wide network of Deputy Chief Labour Commissioners (Central) and Regional Labour Commissioners (Central) under the control of Chief Labour Commissioner (Central) is mandated to settle the complaints/claims of the contract workers in terms of the provisions of the said Act and the Rules framed thereunder.

The above information given by the Minister of State for Labour and Employment Shri Bandaru Dattatreya in Parliament on 12.4.2017.

The post Equal pay for equal work appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.