Central Administrative Tribunal - Allahabad
Shivaji Mishra Aged About 55 Years vs Union Of India Through General Manager on 31 May, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD ***** Orders reserved on : 10.05.2016 Orders Pronounced on : 31.05.2016 Honble Mr. Justice Dinesh Gupta, Member (J) Honble Ms. Nita Chowdhury, Member (A) O. A. No.330/00070/2016 Shivaji Mishra aged about 55 years, Son of Shri R.N. Mishra, Resident of 165 Sector A Vishwa Bank Colony, Barra Kanpur. Applicant (By Advocate : Shri A.K. Srivastava) Versus 1. Union of India through General Manager North Central Railway, Subedarganj, Allahabad. 2. Divisional Railway Manager, North Central Railway, Allahabad Division, Allahabad. 3. Senior Divisional Personnel Officer, North Central Railway, Allahabad Division, Allahabad. Respondents (By Advocate : Shri K.P. Singh) O R D E R
Delivered by Honble Mr. Justice Dinesh Gupta, J. M.:
The Applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
8.1 to issue a writ, order or direction in nature of mandamus commanding the respondents to provide the applicant the proper fixation of pay through the prior giving the Pay Scale and Grade Pay before the dates of the juniors are granted.
8.2 to issue any order suitable writ, order or direction as this Honble Tribunal may deem fit and proper under the facts and circumstances of the case.
8.3 to award the costs of the application in favour of the applicant.
2. Brief facts as stated by the applicant are as follows:-
2.1 The applicant was initially appointed as Mobile Booking Clerk (MBC) on 13.6.1983. Even after completion of 120 days sof service attending the temporary status, the respondents have never care for regularisation of service of the applicant.
2.2 Then 26 similarly situated persons have filed the Original Application No.532 of 2003 (Ram Prasad Gupta and 25 others vs. Union of India and others) in which the applicant was at serial no.2.
2.3 The said Original Application was decided on 26.8.2008 and thereafter the respondents have regularised the persons, by which the applicant was regularised with effect from 13.6.1986 as Booking Clerk in the pay scale of Rs.975-25-1150-30-1540 and Rs.975-25-1150-30-1660 which was Rs.3200-85-4900 in the revised pay of Vth Pay Commission w.e.f. 1.1.1996, whereas the applicant was provided next higher grade of Rs.4000-6000 and the post of Senior Booking Clerk with effect from 26.12.1996, which too is being taken as Rs.4500-7000 which again made revised by Pay Band Rs.5200-20,200 + Grade Pay Rs.2800/-, as per the 6th Pay Commission.
2.4 The applicant was placed in the revised seniority list dated 11.02.2015 made by the Personnel Branch in compliance of the Order dated 24.09.2012 in OA No.1324/2012 (Alok Kumar Mishra and 69 others vs. Union of India and others) in which the applicant was placed at serial No.40. Even then the respondents have not given effect for payment of Grade Pay of Rs.2800/- and the Pay Scale which is applicable for Senior Booking Clerk w.e.f. 1.1.1996 in terms of recommendations of Vth CPC. Thereafter the Grade Pay of Rs.2800/- was given to the applicant but the same was not given from 26.12.1996 whereas this pay scale now Rs.5200-20,200 is given from the month of August salary paid in September 2014. Thereafter the payment of Grade Pay of Rs.4200 is being paid for the month of October 2015 in November 2015. Thereafter again the respondents are paying Rs.2800 as Grade Pay till date. Because of this irregularity of respondents clearly indicating their malafide, arbitrary and the same is bad in law.
2.5 Feeling aggrieved by the aforesaid action of the respondents, the applicant has approached this Tribunal for redressal of his grievances.
3. Notices were issued to the respondents, who, in turn, filed their counter affidavit in which it is contended that before giving parawise reply, it is necessary to give brief history of the case so that the case may be properly adjudicated before this Court and stated that the pay of applicant was charged in Grade Pay Rs.4200/- erroneously as he was under punishment of withholding of increment temporarily for seven years with effect from 1.7.2010. Since the applicant was under punishment as per Rules, he cannot be promoted. As such the benefit which was allowed due to oversight, is rectified and accordingly the pay of the applicant was revised in Grade Pay of Rs.2800/- in place of Grade Pay of Rs.4200/-.
3.1 The respondents have further stated that the promotion order was issued vide letter No.T55E/EC-6/CBC/2011-15 dated 17.09.2015 with the condition that if any DAR/SPE/VIG case and punishment is pending of any employee, the benefit of promotion is not to be allowed. The applicant was also promoted vide letter dated 17.09.2015 with the above condition. Later on it came into the notice of the administration that the applicant is undergoing punishment of withholding of increment temporarily for a period of seven years with effect from 01.07.2010. Thus, the applicant was not entitled for promotion as per extant rules. Due to the erroneous promotion his pay was inadvertently charged in promotional Grade Pay of Rs.4200/- and later on it has been rectified correctly.
4. By way of supplementary affidavit, the applicant filed his pay slip for the month of March 2016 in compliance of the Order passed by this Tribunal dated 3.5.2016.
5. Heard Shri A.K. Srivastava, learned counsel for the applicant and Shri K.P. Singh, learned counsel for the respondents.
6. Learned counsel for the applicant submitted that after the promotion, he was charged under Grade Pay of Rs.4200/- and was paid salary upto the month of October, 2015 in the same Grade Pay. Thereafter, the respondents started charging him the Grade Pay of Rs.2800/-. Then he filed this OA. However, in the month of March 2016 payable in April, he was charged the Grade Pay of Rs.4200/-. Hence, the contention of the respondents that he was wrongly given the Grade Pay of Rs.4200/- and this mistake was rectified by them by charging Grade Pay of Rs.2800/- is false.
6.1 Learned counsel for the applicant further submitted that even if the respondents want to reduce the Grade Pay of the applicant on the ground that the same was erroneously given to him, they should have given show cause notice before rectifying the error and according to the principles of natural justice, the applicant should have been given an opportunity to submit his response to the same.
7. Learned counsel for the respondents submitted that though the applicant was promoted vide letter dated 17.5.2015, however, since he was undergoing the punishment of withholding of one increment temporarily for a period of seven years which was imposed upon him in the year 2010 and as per the order of promotion wherein it has specifically mentioned that if any DAR/SPE/VIG case and punishment is pending of any employee, the benefit of promotion is not to be allowed, later on this fact was came to the notice of the respondents that the applicant had erroneously been promoted which they have rectified and again started charging the applicant Grade Pay of Rs.2800/-. He further submitted that there is nothing illegal in the action of the respondents and the present OA is liable to be dismissed by this Tribunal.
8. After careful consideration of rival contention of the counsel for the parties, we are unable to accept the contention of learned counsel for the respondents. It is admitted by the respondents that till the month of October 2015, the applicant was being charged in Grade Pay of Rs.4200/- and as per the respondents contention that the applicant was wrongly given promotion and Grade Pay of Rs.4200/- and after realizing their mistake, this mistake was rectified and the applicant had been charged in the Grade Pay of Rs.2800/-. However, the respondents counsel could not satisfy this Court as to why in the pay slip of the applicant for the month of March, 2016, again the Grade Pay of Rs.4200/- has been charged. Learned counsel for the respondents tried to explain that it may be due to some clerical or computer programming mistake but we are not satisfied with such explanation. Even if the respondents have realised their mistake in granting promotion to the applicant and charging the Grade Pay of Rs.4200/- and they wanted to rectify the same, they should have given an opportunity of being heard to the applicant by way of show cause notice before rectifying the error by passing any such order. Even the respondents have not passed any order rectifying their mistake and hence, the aforesaid action of the respondents is not sustainable in the eyes of law, being violative of principles of natural justice.
9. In view of the above, for the foregoing reasons, the present OA is disposed of with the direction to the respondents to issue show cause notice to the applicant explaining the reasons for rectifying their mistake and after obtaining the reply from the applicant, pass a reasoned and detailed order in this regard in respect of fixation of pay of the applicant. The above exercise shall be completed within a period of three months from the date of receipt of certified copy of this Order. There shall be no order as to costs.
(Nita Chowdhury) (Justice Dinesh Gupta)
Member (A) Member (J)
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