Central Administrative Tribunal - Allahabad
Shiv Dev Kulshrestha vs General Manager N C Rly on 24 December, 2018
1 CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH This is the 24th .day of December 2018 ORIGINAL APPLICATION NO. 330/1434/2014 HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A) HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J) Shiv Dev Kulshrestha, S/o Badri Prasad, R/o Behind Anamika Takig Gulab Nagar Tundla, District - Firozabad.
........Applicant VERSUS
1. Union of India through its General manger, North Central Railway, Allahabad.
2. The Divisional Railway Manager, North Central Railway, Allahabad.
3. Senior Divisional finance Manager, North Central Ra ilway, Allahabad.
4. Senior Divisional Commercial Officer, North Central Railway, Allahabad.
......Respondents.
For the applicant : Shri B.N.Singh
For the respondents : Shri Sanjeev Kumar Srivastava
O R D E R
Per Mr.Gokul Chandra Pati, Administrative Member The Original Application (in short OA) hs been filed with the following reliefs :
"i) to issue a suitable order or direction to the respondents to fix the pension in last pay drawn Rs.30690/- pay band 9300-34800 in Grade Pay 4200/- and pay accordingly with arrears with interest.
ii) to issue a suitable order or direction to the respondents to pay the gratuity and other retiral benefits on the basis of last pay drawn Rs.30690/- with arrears with interest.
iii) to issue any other suitable order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the present case.
iv) to award cost of the petition in favour of the applicant."
2. The facts of this case in brief are that the applicant was initially appointed on 23.7.1974 as Loco Cleaner on regular basis and he was promoted on the post of Loco Electric Pilot on 15.5.1995 under Traction Foreman Running, Tundla. The applicant was declared medically unfit on 22.10.1999 2 and then he was allowed duty in the office of Traction Foreman Running, Tundla. He was retired from service on 30.9.2013 (Annexure A/3 to the OA) from the post of Loco Pilot in last pay Rs.30690/- and Grade pay Rs.4200/- (Annexure A/2 to the OA). The grievance of the applicant is that his pension was wrongly fixed showing his last pay drawn to be Rs.25300/- in place of Rs.30690/-. The respondent No.3 issued Pension payment Order (in short PPO) dated 30.9.2013 showing that the applicant had retired from service from the post of Crew Controller (Annexure A/4 to the OA). The applicant made detailed representations dated 4.10.2013 and 9.10.2013 with a request for fixation of his pension on the basis of his gross pay at Rs.30690/- and to pay gratuity and other payments accordingly but the same was not considered by the respondents. The applicant again sent a reminder dated 15.5.2014 (Annexure A/7 to the OA) for fixation of his pension and other retiral dues, but no action was taken by the respondents.
3. The respondents have filed their Counter Reply stating that at the time of retirement, the applicant was working as a Crew Controller after being medically decategorized and his pay was fixed at Rs.7670/- on 20.10.1999. It is further submitted that the pay of the employee being in the category of non- running staff was fixed as Rs.25,300/-on 1.7.2013 and the settlement dues were also calculated according to the same drawn payments of the applicant. The applicant was posted as Crew Controller, Tundla after being medically decategorized on 20.10.1999 from the post of Electric Driver (Goods). It is further submitted that the representation of the applicant had been replied timely by the respondents whereas the applicant's payment was fixed according to non-running staff at Rs.7670/- from the date of 20.10.1999 when he was medically decategorized by adding 30% of running allowance in his salary, which is as per rules.
4. The applicant has filed his rejoinder reply bringing no additional fact or ground on record.
5. We have heard learned counsel for the parties. The applicant's counsel has also filed a copy of the judgment in the case of Kunal Singh -vs- Union of 3 India [2003 (TLS) 37634] as well as the para 1307 of the Indian Railway Establishment Manual (in short IREM) in support of his case. Broadly the learned counsel reiterated the pleas taken in the respective pleadings.
6. We have considered the submissions as well as the pleadings on record.
7. The respondents in para 16 of the counter reply have stated that the claim of the applicant was rejected and the details have been informed to the applicant vide letter dated 3.5.2014, a copy of which has been enclosed with the counter reply. Contentions of this para have not been contradicted with specific documents in the rejoinder filed by the applicant except for a bald denial vide para 12 of the rejoinder. Under the rules, the Running Staff after medical decategorisation are to be adjusted in a suitable alternate posting protecting the pay which will include the Running Allowance that the staff was getting earlier. Accordingly, as stated in the letter dated 3.5.2014, that on 20.10.1999 when the applicant was decategorized, his pay was fixed as non- Running Staff by adding Running Allowance of Rs.1770/- to his basic pay, the total amounting to Rs.7670/- as on 20.10.1999. Thereafter, the pay has been fixed on different dates which shows as on 1.7.2013 his basic pay would be Rs.25,300/-.
8. Learned counsel for the applicant has cited Para 1307 of IREM which states as under :
"1307. Reckoning of element of Running Allowance for the purpose of fixation of pay of disabled/medically unfit running staff: While determining pay for the purpose of fixation of pay of medically unfit running staff in an alternative (stationary) post, an amount equal to such percentage of basic pay representing the pay element of running allowance as may be in force from time to time, may be added to the existing pay in Pay Band and the resultant figure (ignoring the fraction of rupee, if any) rounded off to the next multiple of 10 would be the pay in the Pay Band in the alternative post with no change in the Grade Pay of substantive post, in suitable alternative post."
It is clear from above provisions that the running allowance will be taken into consideration while fixing the pay of the employee after medical decategorisation. This has been complied with by the respondents while fixing the applicant's pay as on 20.10.1999 as averred in para 16 of the counter reply. The circumstances under which the applicant was paid higher pay over and above the basic pay after merger of the running allowance are not clear from the pleadings of the parties.
9. From the copy of the pay slips attached by the applicant, it would appear that the applicant was being paid an additional amount over and above the 4 basic pay fixed for him after adding running allowance with his basic pay as per the provisions of the IREM. even when he was working against non- running post after medical decategorisation. Based on the materials available on record, we are of the opinion that the pay of the applicant as reflected in the PPO has been correctly fixed and there is no rule or instructions of Railway Board cited by the applicant to justify the additional amount being paid to him as reflected in the pay slips. On the other hand, the respondents have fixed the pay of the applicant which is as per the provisions in the IREM for fixation of pay of the medically decategorized staff.
10. Learned counsel has cited the judgment in the case of Kunal Singh (supra) in which it was held as under:-
"(9) ............An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of section 47 clearly indicate its mandatory nature. The very opening part of section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service." The section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits....."
From above, it is mandatory on the part of the respondents not to discriminate a physically handicapped government employee. In this case, the pay of the applicant has been correctly fixed after protecting his pay as stated in the letter dated 3.5.2014 and para 16 of the counter reply, which has not been contradicted by the applicant. Hence, there is nothing on record to establish that the pay of the applicant has not been fixed as per the existing rules or there has been any discrimination.
11. In view of above, we are not inclined to interfere in the matter. The OA is accordingly dismissed. No costs.
(RAKESH SAGAR JAIN) (GOKUL CHANDRA PATI)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
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