Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 12 February, 2013
1 OA.229/2012 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. Original Application No.229/2012 DATED THIS MONDAY, THE 2ND DAY OF DECEMBER, 2013 Coram : Hon'ble Shri Sudhir Kumar, Member (A) Hon'ble Shri A.J. Rohee, Member (J) Smt. Leelavathi K. Manjeshwar Himangi Maheswar Co-op. HGS Ltd. Room No. 24, 4th Floor, R.T.O. Road, Near 4 Bunglows, Andheri (West) Mumbai 400 058. Employed in the Office of The General Manager Canteen Stores Department ADELPHI 119, M.K. Road Mumbai 400 020. .. Applicant Versus 1. Union of India, through The General Manager Canteen Stores Department ADELPHI 119, M.K. Road Mumbai 400 020. 2. The Controller of Defence Accounts Canteen Stores Department ADELPHI 119, M.K. Road Mumbai 400 020. .. Respondents Appearances: Shri R.P. Saxena, Advocate for the Applicant Shri V.B. Joshi, Advocate for the Respondents. O R D E R PER: Shri A.J. Rohee, Member (J)
By this application under Section 19 of the Administrative Tribunals Act, 1985, the applicant seeks direction that she is entitled 2 OA.229/2012 to grant of the 2nd financial upgradation under the ACP (Assured Career Progression) Scheme of 1999 with effect from 05.07.2006, on completion of 24 years of regular service and to ignore the order passed by the Respondents granting her 2nd financial upgradation under MACP (Modified Assured Career Progression) scheme of 2008 with effect from 01.09.2008.
2. The applicant's case in brief is that on 05.07.1982 she was appointed as Lower Division Clerk in the Canteen Stores Department run by the Respondents. After rendering about 11 years of service, she was removed from service on Departmental Inquiry being conducted for her unauthorized absence from duty. The Administrative appeal filed by the applicant challenging the removal was also dismissed and this led her to approach this Tribunal by way of OA No. 737/1994, which was allowed on 05.08.1988, and the matter was remanded to the Appellate Authority to decide the matter afresh after giving personal hearing to the applicant. Consequent to this order, the Appellate Authority decided the matter afresh by order dated 31.3.1999 thereby once again confirming the order of her removal 3 OA.229/2012 from service.
3. In the 2nd round of litigation before this Tribunal in O.A. No.492/1999 the applicant had successfully challenged the said order and it was directed that she be reinstated in service by passing appropriate order for regularisation of her long absence as per rules as Extra Ordinary Leave without pay. The respondents have unsuccessfully challenged this order before the Hon'ble Bombay High Court in Writ Petition No. 4953/2000 and thereafter, vide order dated 25.09.2000, the applicant was reinstated in service with effect from 15.03.1993, without any back wages, and her absence from 26.03.1991 to 10.10.2000 was regulararised as extra ordinary leave.
4. Subsequently, vide order dated 30.01.2002, the applicant was promoted as Upper Division Clerk, and thereafter, vide order dated 07.03.2002, she was granted first financial upgradation under ACP Scheme in the pay scale of Rs.4000-100-6000, effective from 09.08.1999, the date of inception of the ACP Scheme.
5. On 25.11.2009 the applicant submitted 4 OA.229/2012 a representation to the Respondent No.2 requesting for grant of 2nd financial upgradation to her under ACP Scheme with effect from 05.07.2006, the date she considered herself to have completed 24 years of her service. The applicant was informed that some clarification was sought on this subject from the Head Office. However, vide order dated 07.07.2011, the applicant was granted 2nd financial upgradation with effect from 01.09.2008 under MACP Scheme, raising her grade pay from Rs.2400/-to Rs.2800/-, against her claim for 2nd financial upgradation with effect from 05.07.2006 under the erstwhile ACP Scheme.
6. According to the applicant, the respondents were wrong in denying the 2nd financial upgradation to her under the erstwhile ACP Scheme on completion of 24 years of regular service, since her previous absence was already treated as extra ordinary leave. Hence, according to the applicant, she is entitled to 2nd financial upgradation with effect from 05.07.2006.
7. On notice the respondents appeared and resisted the claim by way of common 5 OA.229/2012 written statement dated 12.07.2012, denying all the adverse allegations and averments made in the application, although, it is not disputed that after rendering service for a few years, the applicant was removed from her services, and this removal order was finally set aside by this Tribunal and the said order was confirmed by the Hon'ble High Court. According to the respondents, although the applicant completed 12 years of service in the year 1994, her first financial upgradation itself was delayed upto 11.10.2000, on account of departmental proceedings initiated against her, and till regularisation of her absence as extra ordinary leave without pay as per Court's order. After getting the 1st ACP, the applicant was promoted to the post of UDC in the pay scale of Rs. 4000-100-6000, and since as per ACP Rules she was already granted one increment in the said pay scale, and as such there was no separate pay fixation on her substantive promotion. Since the period of her absence was regularised against extra ordinary leave, and the applicant was not entitled to any salary during the said period as per Court's order, and therefore, she was 6 OA.229/2012 not eligible for 2nd ACP under the previous scheme. However, she was granted financial upgradation under the MACP Scheme on completion of 10 years in the same cadre without any further promotion.
8. According to the ACP scheme dated 09.08.1999, all employees were eligible for first ACP and 2nd ACP on completion of 12 and 24 years of regular service respectively, and since the applicant had completed 12 years of regular service on 11.10.2000 (excluding the period of her unauthorized absence) she was given first ACP from that date. Since first upgradation was postponed on account of the period of her unauthorized absence, and initiation of departmental proceedings, the 2nd upgradation was not granted under the ACP scheme, and thereafter, first upgradation was granted under MACP scheme to the applicant with effect from 01.09.2008.
9. According to the Respondents since the applicant has not completed 24 years of regular service on 05.07.2006 as the period of her unauthorized absence from 26.03.1991 to 10.10.2000 was treated as extra ordinary leave without pay, she was not eligible for 2nd ACP 7 OA.229/2012 under the previous scheme, and was entitled to 2nd financial upgradation only under MACP scheme. Considering the above factual position on record, it is prayed to dismiss the application.
10. The applicant on 06.08.2012 filed a rejoinder denying all the adverse allegations and averments made in the written statement and contending that the she is entitled to 2nd ACP under the previous scheme on completion of 24 years of service, and since she was reinstated in service on 15.03.1993, and her previous unauthorized absence for the period from 26.3.1991 to 10.10.2000 was treated as extra ordinary leave without pay, as such it can safely be said that she was in regular service for the purpose of getting the 2nd ACP on completion of 24 years of her service in the year 2006. The applicant also relied on clarification no. 54 of Office Memorandum No. 35034/1/97-Estt(D)(VOL-IV) dated 18.07.2001, according to which all kinds of leave, including extra ordinary leave other than that on medical ground, normally counts as regular service for promotion, and also for the purpose of grant of financial upgradation 8 OA.229/2012 under ACP scheme. This being the position the applicant claimed that she is entitled to get benefit of 2nd financial upgradation with effect from 05.07.2006, on completion of 24 years of her regular service. It was therefore prayed to allow the application and to grant necessary relief to the applicant.
11. On 18.11.2013, we have heard the oral submissions of Shri R.P. Saxena, learned Advocate for the applicant, and of Shri V.B Joshi, learned Advocate for the Respondents quite at length. We have carefully gone through the pleadings of the parties, material produced on record in support of their contentions and have given thoughtful consideration to the submissions made before us.
12. The only point that arises for our consideration is whether the applicant is entitled to the relief of declaration as sought. We record our finding in the negative for the following reasons:-
REASONS
13. It is obvious from record that this is the third round of litigation before this Tribunal, although on different cause of 9 OA.229/2012 action. It is not disputed that on account of her unauthorized absence from duty, the applicant was removed from service, which she challenged before this Tribunal. Her contention was accepted and vide order dated 05.08.1998, Annexure A-1 the matter was however remanded to the Competent Authority to re-consider her claim after giving personal hearing to her. Competent Authority however stuck to the earlier decision of removal of applicant from service, which was again challenged before this Tribunal, and applicant succeeded in getting the said order of removal set aside on 13.06.2000 vide Annexure A-2. Dis-satisfied with the said order of this Tribunal, the Respondents made an unsuccessful challenge of the Tribunal's order before the Hon'ble High Court vide order dated 18.09.2000 vide Annexure A-3.
14. It is thus obvious that the order of her removal from service was set aside, and same has now attained finality. It is also obvious that while setting aside applicant's removal order, it was observed in para 8 of Annexure A-2 by this Tribunal that she has been out of employment for more than 07 years, 10 OA.229/2012 and that long period of her absence can be regularised by the respondents as per rules, or as extra ordinary leave without pay, as they have done in the impugned order of her removal for the earlier period of her unauthorized absence. In the light of the above observations, it was directed that applicant shall be reinstated in service within 03 months from the date of communication of the said order, and appropriate order be issued by the respondents for regularisation of her long absence as per rules, or as extra ordinary leave. This finding has been confirmed by the Hon'ble High Court. Subsequently the respondents issued order dated 25.09.2000 vide Annexure A-4, reinstating the applicant with effect from 15.03.1993 without back wages. About 02 years later, the applicant was promoted to the post of UDC vide order dated 30.01.2002, Annexure A-6, and then, considering her length of service, she was granted first ACP under previous scheme vide order dated 07.03.2002 with effect from 09.08.1999 vide Annexure A-5 on record.
15. It is obvious that the applicant 11 OA.229/2012 completed 24 years' period from the date of her initial appointment on 05.07.2006. As such for taking benefit of ACP scheme on second occasion, she submitted a representation dated 25.11.2009, Annexure A-7 to respondent no.2. However it is obvious that by that time the Modified ACP scheme had been introduced, which requires different criteria to be fulfilled, apart from qualifying period of service of 10 years only instead of 12 years for claiming monetary benefits under the financial upgradations allowed under the said scheme. It is obvious that her request was not favourably considered by the respondents, although vide order dated 07.07.2011, Annexure A-10, she was granted 2nd MACP with effect from 10.09.2008.
16. In the light of the above factual position on record the learned Advocate for the applicant vehemently submitted by referring to the provisions of the old scheme of ACP, that after completing 24 years of regular service, the employee is entitled to the benefits of 2nd ACP, by following other prescribed formalities. According to the learned Advocate for the applicant since by 12 OA.229/2012 virtue of the Court order the unauthorized absence of the applicant for the period from 26.03.1991 to 10.10.2000 was regularised, although treating it as extra ordinary leave without pay, she is entitled to be considered for grant of 2nd ACP under the old ACP scheme of 1999, with effect from 05.07.2006. According to the learned counsel for the applicant the respondents have, however, deliberately avoided to grant the said benefit to the applicant, although in the meantime she was promoted to the post of Upper Division Clerk.
17. As against this, learned Advocate for the respondents invited our attention to condition no. 4 for grant of benefit under old ACP scheme annexed with the memorandum Annexure R-1, which reads as under: The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the 13 OA.229/2012 employee not found fit or due to departmental proceedings, etc this would have consequential effect on the second upgradation which would also get deferred accordingly.
18. The learned Advocate for the respondents is therefore justified in saying that since Departmental proceeding was initiated against the applicant, in which she was initially removed from service, but was subsequently reinstated by virtue of Court order by treating her unauthorized absence as extra ordinary leave, the grant of 2nd ACP under the old scheme would automatically get postponed. In the meantime, since the Modified ACP scheme was introduced, its benefit was granted to the applicant, and as such it is contended that there is no question of granting 2nd ACP under the old ACP scheme to her.
19. It is obvious from record that on account of Departmental proceeding and subsequent court cases, grant of first benefit of ACP under old scheme was postponed, and the same was granted to the applicant only after she was reinstated vide Annexure A-5. This benefit was granted to her from the date of 14 OA.229/2012 introduction of the old ACP scheme, that is from 09.08.1999. However, the crucial question for consideration before us is that although the period of unauthorized absence of the applicant was regularized, by treating it as extra ordinary leave without pay, whether it can be said that she was in regular service during that whole period, for claiming the benefit of ACP. This is so because under the ACP scheme, 12 years of regular service alone is one of the criteria for grant of the financial upgradation benefit. In order to resolve this controversy the learned counsel for the applicant brought to our notice the queries raised by different establishments while implementing the old scheme, query 54 of the Office Memorandum dated 18.07.2001 relied upon by the applicant vide Annexure A-11 is material which reads as under:
15 OA.229/2012Whether EOL with medical certificate will count for computingregularservice under ACPs?
Unless counting of such leave or any other kind of leave isspecifically excluded under relevant rules governingpromotions for being counted towards regular service for promotion (e.g. in some cases of promotions under Flexible Complementing Scheme), all kinds of leave including EOL without medical groundsnormally counts towards regularservice for promotion. EOL without medical grounds will besimilarly treated while computing regular service for purposes of grant of financialupgradation under ACPs.
20. It is thus obvious from the answer given by the department to the query no. 54 that even extra ordinary leave without medical ground will have to be considered as regular service for promotion purposes, as well as for grant of financial upgradation under ACP scheme. Since, the previous scheme was substituted by a new scheme, the answer to the above query can be considered for the cases under previous scheme also.
21. For the purposes of this submission learned Advocate for the applicant placed his reliance on a decision of Co-ordinate Bench of this Tribunal in OA No.636/2004, Hiramam Papu Wankhede V/s Union of India, decided on 05.01.2006 and contended that the applicant was entitled to get the benefit of 2nd ACP 16 OA.229/2012 under old scheme. It was a case under Railway Services (Pension) Rules 1997 involving the Provisions of Rule 36 and 39(2) thereof. In that case applicant was removed from service on account of absence from duty. On appeal the Appellate Authority reinstated him with a specific direction to treat the period of removal from service till reinstatement as on leave due. However, since there was no balance leave to the credit of the applicant in that case, the said period was not counted towards qualifying service for pension. When this was challenged before this Tribunal, it was held that the period of removal from service till reinstatement should be treated as extra ordinary leave, that is leave without pay, and direction was given to count the said period towards qualifying service for the purpose of Pension.
22. In the present case, since no issue of calculating the period of qualifying service for pension on account of unauthorized absence of the applicant is involved, the ratio laid down will have no application in the present case, although long absence of applicant was regularised by treating it as 17 OA.229/2012 extra ordinary leave.
23. It is obvious from record that although unauthorised absence of the applicant was regularized by treating it as extra ordinary leave it implies that the past service rendered by her was thereby continued. The fact, however, remains that during the period from 26.03.1991 to 10.10.2000 the applicant did not render her services. This being so there is no question of grant of any salary to her during that period. As stated earlier, the term regular service is explained in the ACP Scheme. It pre-supposes actual service rendered by the employee for the purpose of grant of the benefit under the said Scheme. This being the position on record the view taken by the Respondents in rejecting benefit to her and not to treat her absence from duty as regular service seems to be correct one.
24. In similar cases involving absence from duty if the employee is charged with criminal prosecution and is convicted and if subsequently reinstated by the order of the Court on setting aside his conviction, for the period for which he did not render service the 18 OA.229/2012 same cannot be counted for grant of salary since he was prevented from rendering service and attending the duty on account of his conviction. This view has been taken by the Hon'ble Supreme Court in a case of Union of India and others Vs. Jaipal Singh, 2004(1) AWC 748 SC.
25. In another case of Krishnakant B. Parmar Vs. Union of India and another, Civil Appeal No.2106/2012 the Hon'ble Supreme Court has specifically held that on departmental inquiry the employee if found guilty of misconduct and is removed from service, there is no question of considering his unauthorized absence as duty period, unless he is absolved of the charge by the Appellate Authority or the Court on appeal. The same analogy will be applicable in this case also.
26. From the above discussion it is obvious that the respondents were right in refusing to grant benefit of 2nd ACP under old scheme to the applicant on completion of 24 years of service with effect from 05.07.2006, and instead granting the same under new scheme with effect from 01.09.2008. By this time the applicant must have received the benefits of 19 OA.229/2012 the second MACP. It is therefore not permissible to revoke this order. It cannot be said that the view taken by the respondents in rejecting the claim of the applicant is arbitrary exercise of power vested in them.
27. In the result, the applicant is not entitled to any relief. The Original Application is therefore dismissed.
28. In the peculiar facts and circumstance of the case, the parties are directed to bear their respective cost of this proceeding.
(A.J. Rohee) (Sudhir Kumar) Member (J) Member (A) n*