Central Administrative Tribunal - Hyderabad
A. Gopalakrishna Murthy S/O. A. Subba ... vs The Divisional Railway Manager, South ... on 28 March, 2007
ORDER Bharati Ray, Member (J)
1. This application has been filed by the applicant seeking for the following relief:
To declare the action of the respondents in imposing the punishment of reduction of pay from Rs. 9475/- to Rs. 9250/- from 01.03.2005 to 28.02.2006 and accordingly reducing the pension of the applicant to an amount of Rs. 101/- and other pensionary benefits as bad, illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India and direct the respondents to restore the pay of the applicant from Rs. 9250/- to Rs. 9475/- from 01.03.2005 to 28.02.2006 which was imposed by the respondents without any specific order issued by the competent authority, and pay the arrears of pay and allowances with interest and consequently direct the respondents to pay pension to the applicant at the rate of Rs. 7174/- instead of Rs. 7070/- as paid vide Service Certificate/Working Sheet of Terminal benefits dated 03.07.2006 issued by R-1 and other pensionary benefits such as family pension and commutation of pension etc.
2. It is the case of the applicant that while he was working as Station Superintendent at Zangalpalle in Guntakal Division in South Central Railway in scale Rs. 6500-10,500, the respondent No. 2 vide proceedings No. G/P.524/I/ASMs/REST-03 dated 20.08.2004 promoted the applicant to the upgraded post of Station Manager in scale Rs. 7450-11500 with effect from 01.11.2003. The applicant submitted option to fix the pay in scale Rs. 7450-11500 after drawing due increment, which was due to the applicant on 01.03.2004 and the respondents fixed the pay of the applicant at Rs. 9250/- with effect from 01.03.2004 in scale Rs. 7450-11500 vide memorandum No. G/P.524/ I/ASMs/Rest-03 dated 23.11.2004 which is enclosed as Annexure A-3 at page13 of the OA. Accordingly, in the month of October,2004 the respondents drew the pay of the applicant as Rs. 9250/- and upto January 2005. During February 2005 the respondents drawn increment and fixed the pay of the applicant as Rs. 9475/-. But the respondents reduced the pay of the applicant from Rs. 9475/- to Rs. 9250/- from March 2005 to January 2006 which can be seen from the material papers placed along with the OA at page 17. It is further stated by the applicant that thereafter the pay of the applicant was restored to Rs. 9700/- during the month of February,2006 and continued upto June 2006 which can be seen at page 18 of the OA. Since the pay of the applicant was reduced from Rs. 9475/- to Rs. 9250/- with effect from 01.03.2005, the respondents have calculated the average emoluments of the last 10 months before the retirement of the applicant by taking into account as Rs. 9250/- from 01.09.2005 to 28.02.2006 and Rs. 7900/- from 01.03.2006 to 30.06.2006 and arranged less pension and other pensionary benefits to the applicant vide Service Certificate/Working sheet of Terminal benefits dated 03.07.2006 issued by the first respondent which is enclosed as Annexure A-1 at page 7 of the OA.
3. The applicant contended in this OA that the Senior Divisional Operations Manager, Guntakal imposed on the applicant a punishment of withholding of increment, raising pay from Rs. 8700/- to 8900/- in scale Rs. 6500- 10500 normally due on 01.03.2004 for a period of six months vide proceedings No. G/T.386/III/Misc./ZPL/2002/52 dated 17.03.2003 and another one for a further period of 12 months in continuation of the above said punishment was also imposed vide proceedings dated 23.09.2003. However, the earlier punishment of withholding of increment for a period of six months was set aside by the appellate authority vide proceedings dated 21.02.2005 which is enclosed at page 20 of the OA but the second one of withholding of increment for a further period of 12 months was confirmed by the appellate and revising authorities. It is, therefore, the contention of the applicant that since the first punishment of withholding increment for a period of six months was set aside the second one for a further period of 12 months cannot be implemented. The respondents implemented punishment of reduction of pay from Rs. 9475/- to Rs. 9250/- from 01.03.2005 to 28.02.2006 and drawn pay as Rs. 9250/- during that period instead of Rs. 9475/-. The said reduction in pay has affected the average emoluments of last ten months before retirement of the applicant and consequently the respondents arranged less pension (Rs. 101/-) to the applicant on his retirement from service on 01.07.2006 on superannuation. The applicant has approached this Tribunal being aggrieved by the action of the respondents in treating the average emoluments of the last 10 months before retirement of the applicant as Rs. 9430/-, vide Service Certificate/Working Sheet of Terminal benefits dated 03.07.2006 issued by R-1 by taking into account the basic pay of the applicant from 01.09.2005 to 28.02.2006 as Rs. 9250/- and from 01.03.2006 to 30.6.2006 as Rs. 9700/- by imposing a punishment of reduction of pay from Rs. 9475/- to Rs. 9250/- from March 2005 to February,2006 and accordingly denying full pension and other pensionary benefits and has sought for the aforesaid relief.
4. Respondents have contested the application by filing a counter reply.
5. I have heard Sri V. Suryanarayana Sastry, learned Counsel for the applicant and Mr. M.C. Jacob learned Counsel for the respondents. I have gone through the pleadings and the material papers available on record.
6. I find from the counter reply filed by the respondents that they have not denied the fact that applicant was issued with minor penalty charge memo by proceedings dated 31.12.2003 and the disciplinary authority vide proceeding dated 23.09.03 imposed punishment of withholding the increment normally due on 01.03.2004 for a period of 12 months. Earlier, vide proceedings dated 17.03.2003, a minor punishment of withholding the increment for a period of 6 months raising the pay from Rs. 8700/- to Rs. 8900/- in the scale of pay of Rs. 6500-10500 due on 01.03.2004 was imposed upon the applicant. However, in the proceedings dated 23.09.2003,the earlier punishment of withholding of increment for six months was also informed. The order dated 23.9.03 is enclosed as Annexure A-8 to the OA. It is the contention of the respondents that as per the said order, the increment due on 01.03.2004 raising his pay to Rs. 8900/- stood postponed for 18 months. In the meanwhile restructuring orders of various cadres have been issued by the Railway Board with effect from 01.11.2003 and the name of the applicant came up for consideration for upgradation to the post of Station Superintendent in the scale of pay of Rs. 7450-11500. By virtue of the said promotion to the higher grade, revision of pay was ordered by the competent authority implementing the order of punishment in the promoted grade by proceedings dated 23.11.2004. As per the revised fixation communicated to the applicant based on his option his increment due on 01.03.2005 was withheld for 6+12 months. It is also seen from the Annexure A-9 at page 20 to the OA that the appellate authority vide proceedings dated 21.2.2005 set aside the punishment imposed by the disciplinary authority vide its proceedings dated 17.03.2003 i.e. withholding the increment for a period of six months. It is the contention of the respondents that in view of the said order, the applicant has to undergo the punishment of withholding his increment for 12 months commencing from 01.03.2005 and the same was ended by 28.02.2006 and his increment was accordingly restored. It is the contention of the respondents that the applicant never challenged the proceedings issued on 23.11.2004 granting the revised fixation based on his option. The increment was withheld following the said orders only. The applicant retired from service on 30.06.2006 and average emoluments of the last 10 months was calculated by taking the pay drawn from 01.09.2005 to 30.06.2006. The respondents, therefore, submitted that applicant was informed vide proceedings dated 23.11.2004 about the revised fixation as per his option and the applicant never made any grievance against the same. Normally when a punishment is imposed, promotion is effected only after the punishment is over. However, the Railway Board by letter dated 08.10.2001 circulated through serial circular No. 240/2001 permitted the authorities to impose penalty in the promoted grade to avoid any hardship to the employees. Hence it is the contention of the respondents that the action of the respondents in imposing the punishment in the higher grade is legal and valid. Therefore, the contention of the applicant against the same has no force more particularly the applicant accepted the fixation and the withholding of the increment and was well aware of the consequence at that time itself as the date of superannuation is definite.
7. In view of the above facts and circumstances I find that the orders of two punishment of withholding increments for six months and 12 months as mentioned above are not the subject matter in this OA. It is only implementation of the said order and fixation that has been made in accordance with the said order.
8. Therefore, the question that arises for consideration is whether the respondents have made any mistake in fixing the pay and pension of the applicant in terms of the punishment imposed upon the applicant.
9. It is not in dispute that the punishment imposed upon the applicant was withholding of increment raising pay from Rs. 8700 to Rs. 8900 in scale Rs. 6500- 10500 normally due on 01.03.04 for a period of six months imposed vide proceedings dated 17.03.03, and the same was set aside subsequently by the appellate authority order dated 21.02.05. It is also not in dispute that prior to the order passed by the appellate authority on 21.02.05, the applicant was promoted to the post of Station Superintendent in the scale of pay of Rs. 7450-11500 and the respondents have ordered revision of pay by implementing the order of punishment in the promoted grade vide proceedings dated 23.11.2004 which is enclosed as Annexure A-3 at page 13 and 14 of the OA. I find that pursuant to the order of the appellate authority setting aside the punishment of withholding of increments for six months due on 01.03.2004, the respondents took a view that in view of the said order of the appellate authority the applicant has to undergo th punishment of withholding his increment for 12 months commencing from 01.03.2005 and the same was ended by 28.02.2006. Accordingly they have restored the increment and calculated the average emoluments for the last 10 months by taking the pay drawn from 01.09.2005 to 30.06.2006. I find that the applicant has enclosed along with the rejoinder the order of the revising authority dated 13.07.2005 against the order of the punishment of withholding of annual increment of the applicant raising his pay from Rs. 8700 to Rs. 8900 in scale Rs. 6500-10500 normally due on 01.03.04 for a period of 12 months imposed by Sr. DOM/GTL as confirmed by the appellate authority. In page 2 of the said order I find that the revising authority confirmed the order of the disciplinary authority as upheld by the appellate authority as under:
Accordingly, the penalty of withholding of annual increment raising pay from Rs. 8700/- to Rs. 8900/- in scale Rs. 6500-10500 RS(RP) normally due on 01.03.04 for a period of 12 months without cumulative effect imposed on Shri A. Gopalakrishna Murthy, SS/ZPL by the Sr. DOM/GTL and upheld on appeal by the ADRM/GTL is hereby confirmed.
10. A perusal of the above order clearly shows that the applicant's increment was withheld for a period of 12 months with effect from 01.03.04 and that was ended on 01.03.2005. The contention of the respondents that since the applicant has not raised any objection against the order dated 23.11.2004, he cannot raise any objection against the fixation, cannot therefore be accepted. On account of restructuring orders of various cadres issued by the Railway Board with effect from 01.11.2003 the applicant was considered for upgradation and was promoted to the post of Station Superintendent in the scale of pay of Rs. 7450-11500 before the order of the appellate authority was passed and the revising authority passed its order on 13.07.05 confirming the order. I, therefore, find no reason to postpone the punishment from 1.3.2004 to 1.3.2005 causing reduction of pension. Therefore, the respondents are not right in withholding the increment for a period of 12 months w.e.f. 1.3.2005. In view of the order of punishment of withholding of increment which was due on 1.3.04 which was confirmed by the appellate authority and revising authority and in view of the fact that earlier punishment of withholding of increment for six months was set aside by the appellate authority and in view of the fact that revising authority passed the order in the year 13.07.2005 I am of the view that the punishment imposed on the applicant ended 28.2.2005. The respondents are, therefore, directed to re calculate the emoluments for the last ten months accordingly.
11. I, therefore, direct the respondents to revise his fixation by restoring his increment on completion of 12 months from 01.03.05 and accordingly re calculate the average emoluments for the last 10 months i.e. from 01.09.2005 to 30.6.2006 and pass appropriate order duly extending the benefits that flows from such fixation. The respondents shall pay the arrears to the applicant within a period of two months from the date of communication of this order, failing which the respondents shall pay interest @ 12% p.a. on the amount from the date of filing of the OA till the date of actual payment.
12. The OA is allowed to the extent indicated above. No order as to costs.