Central Administrative Tribunal - Mumbai
Sunil Kumar vs M/O Railways on 4 July, 2019
CORAM: R. VIIAYKUMAR, MEMBER (A) (ORIGINAL APPLICATION No.629/2015) i. ba Od Ne. Georgi: connected witht GANed PRO 1S CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAL ORIGINAL APPLICATION No.629/2015 Connected with ORIGINAL APPLIC. ATION No A 78/2015 Bated this the ait "day of July, 2019 RN. SINGH, MEMBER (J) Shri Sunil Kumar aged 41 years S/o Shri Mahesh Sharma, working as Senior Passenger Guard, under Station Manager, CSTM. ~-Rfat C-20, Nandavan Complex, Old Panvel, Navi Mumbai ~ 410 206. Shri Rustom Panda, age 40 years, S/o Late Shri Gopal Pande, working ag Senior Passenger Guard, under Station Manager, CSTM. Riat RB-2/O13, Railway Quarters, GTB Nagar, Mumbai 400 037, Applicants (By Advecate:- Shri Vishal Shirke, proxy counsel for Shri SY. & Lad Marre) Versus Union of India, through The Chairman, Railway Board, Rail Bhavan, New Delhi 110011. The General Manager, Central Railway Head Quarters Office, CSTM Office - 400 001. -The Divisional Raibvay Manager be Central Railway Mumbai Division CSTM, Mumbai 400 001, wee Respondents (By Advecate Shri ¥.D, Vadhavkar} ~ Xs Connected with ORIGINAL APPLICATION No. 478/2015 Shantaram Dashrath Gangurde Age: 53 Occ: Passenger Guard (Suburban) Bvat Datta Darshan, Vir Sambhali Nagar, Asangaon, Tq. Shahapur, ist. Thane -- 4231 601. Arun Chintaman Deshmukh Age: 42, Oce, Passenger Guard (Suburban) Réat Fist No.702, Kasturi Lawns, Near Cinemax, Behind Pulse Hospital, Kalyan (W) Dist. Thane ~ 421 301, Ram Sewak Poddar Age: 40 Occ: Passenger Guard (Suburban) Riat Flat No.202, Kanakpushp Co-op Hog. Plot No. 104 & 105 Sectar~ 9, New Panvel Dist. Raigad ~ 410 208. Vishal Asthana Age: 40 Occ: Passenger Guard (Suburban) Ryat Flat No. A-403, Kalpataru Arcade, Plot No.230 Vijay Marg, Sector ~ 4, New Panvel Dist. Raigad ~ 410 208. we Applicants (By Advecate:- Shri Nigel Quraishy with Shri Joe D'souza ) bo Persuy Union of India, threugh The Senior Divisional Personnel Officer, Bombay Division, Chatrapati Shivaji Terminus, Munibai ~ 07, The Chief Personne! Officer, Central Railway Head Quarter Chatrapati Shiva}i Terminus, Mumbai ~ 01. we ett 0 An AP RNA ANA DRIEE IS RES PELEESSL ILEUS Ea a Land. Gd No. 6293043 COMME cted with OANOo d F830 5 3. Director, Pay Commission-Il Railway Boar rd, Min nistry of Rathways Rail Bhavan, Raisina Road, New Delhi--- 110 001, ws Respondents (By Advecate Shri VD. Fadhavkar) Reserved an 2 23.83, 2019, Pronounced on: OY OT}. Us. ORDER
Per : RN Singh, Member (7) Both the OAs have been filed by the respective applicants under Section 19 of the Administrative T ibunals Act, 1985. In the above OAs the applicants are admittedly similarly situated. The impugned orders and reliefs prayed for are almost the same. Facts, circumstances and reliefs prayed for being similar as such both the OAs are disposed of by a common order.
2. This O.A'No.629618 has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:-
"Stai This Fon @. Tribunal midy graciously de Pleased to call for the records af the case from the respondents 'ond after examining fhe same guash and set aside the impugned Reihyav Board letter dared ZUR 2014 to the extent relates to promotion from the post af Senior Guads Guard to Senior Passenger Guard as well wy order dated G3-07- 2078 with all consequential benesits.
8h) This Hon'te Tribunal may further ae pleased to restore the promotional increments of th applicants on thelr promotion ta the post Senior Passenger Guard with effect fram 22.30.2009 and 4 SSLGZGL0 respectively and pay to th aerdars. arising ote of grant SLOP RE cotional increment along with iatere per QeUNEN.
Be} Cosis of the avutication be provided fe.
&.d} Any other and further arder ag rity Hon'ble Tribunal deems ft in the nature and srounmstomces of the case be passed."
% 3, This QA No.4?8/2015 has been filed by the ae a applicants under Section 19 of the Administrative Tribunals Act < 1985 seeking for the following reliefs:-
"Sia. fhis HonSle Tritunal be pleased ta quash and set aside the Oice Ordar Raving Reference No. BBY PY S38! GI GDY RECOK. Dated OL OF 2013 passed by the Respondent Nel.
ef} This Hon'ble Tribunal be pleased co tore the pay of the applicants thar was reduced by one fnerement from. the month ef Map 30)3 by respondent Net in wodation of standory as conjained in the Indian Railway & Code Polif Rule 132 3Baie?).
Bie} This Hon'ble Trib mal be pleased to direct the Respondent Noi nev to deduct and reeaver the amount of Rs 3060+ or any amount from the salary of the anplicants in respect af the order No BRPAISGNGD RECOV, 'Dated OF DOF 2013 passed by the Respondent No i.
pi direct the respondent nol te 3 to fellow the Statutory provision and continue the beneft of one increment given by the. statpry provision ay contained in indian Railway Establishment Cor ode Rule [3I3GN) fa) and as per Pramoti fond potioy. oF the. Guards on Bie). This Hon'ble Tribunal Be pleased to 9 3 fo ber Mumbai division dated 28.07.2009.
Rie} fis Hon'ble Tridenal be pleased to desert the xespondant fo pay the cost of ikis application &p us Aen'ble Tribwnal be pleased fa ~ : 2.
direct He selspinci tO Dee compenraiory cost io ihe apeticans, oe | @.....
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aw 2 & eS om wn oO a "o eg uw ce "ry cd rs a & 2 oy Ta SO be fy 4 a 3 vie o ig Vea ha at a wt oh bs £3 at Ma & i ag ' a 3 eet a i ie we 2 +5 o a sc 2 Go wet es i ' eo o c bay ts o fat 'ae? pn = es * 7 ; 44 + x rsh cited Free to G ix ea oa) tt Ci ho WO ay aed oa coy ta '8 tx 'I " s rh id aS ve Seek mt oy 4 os, B 14 Cu Sty as ? cs 4 S ot a ot ny . rt ay oo fA $ Oo I NS Kot me rey o of i Ch wt < ft t ao a £4 ot poe ore BF x a a Oo x» B ch OB & © So 8 (JF «¢ * &€ = Ea o RS cea w g i tt no * Spey Oo a ne so wh rs wk +? a3 a oe "¢ a ey go eg xy og OSD me at ig a os om i Das 465 ne ve o on 4 'A % wet soe" oy ee bes tad mh x meantime, the Railway Board issued fetter dated 16.02.2011 (Annexure A-5} directing that movement from the post of Senior Goods Guards to that of Senior Passenger Guard is treated as promotion for the purposes of grant of financial upgradation under the MACP. The relevant portion of the Railway Board letter dated 10.02.2611 reads as under:
"Further, the categories of Passenge ff S000- &ODU: ) & Sr, Passenger Guard (3300-960 0 ~} Ratve deen merged and allotted Grade Pay of 42008- in PR-2 vide Board's letter ati}. 08 (REE No, POS/2008). fa terms ef Para-& af the Board's letier di 10.60.08 the pramotion from Sr. Goows Guard ta. Passenger Guard should be courted jor ihe purpose af MACPS and in terms of Para-5 of "phe aid letter, the promotion from Passenger Guard to Se Passenger Guard should 68 ignored jor MACRS. Therefore, an emplaves annointed as Goods Guard has garnet for oins ihe promations snancial upgradations GU he reaches MdatiEcoresy Guard, ¥igi~ tp, From Goods Guard te Sr.Goods Guard G0. From Sx Goods Guard to Passenger Guard. G2). - From SrPassenger Guard to Mailexpress Grand (Passenger Guard to Sr. Passenger Guard to be ignared, © &. it is stated thet cilime the aforesaid letter the applicants have represented to the respondents stating therein thet their movement from the post of Senior Goods Guard to Senior Passenger Guard may be treated as promotion and they should be granted promotional increment under Para 1313 of IREC, which was Hnally accepted by the Respondent No.3 and they were granted promotional increment from July, 2011. Meanwhile, the Railway Board issued a letter dated 22.05.2014 clarifying that functional promotion in the same grade pay from the post of a BI os:
nen p eet te renee a eoaraage des, naa nedencededmanaar cies neenrnee nen Senior Goods Guard to the of Passenger Guard, promotional snerement under Rule 13 of Railway Servants (Revised Pay} Rules 2008 would not be admissible, it is clarified that movement froma the post of Senior Goods Guard to Senior Passenger Guard as fanetional promotional but denied the promotional increment on. such promotion.
7. On 03.07.2015, Respondent Nod issued orders intimating the applicants that fixation benefit cannot be given and exoess payment towards provisional fixation of pay would be recovered in installments of Rs.5000/- wed July, 2013. They have algo represented to the respondents vide their representations dated 05.16.2015 and 10.09.2015 respectiv aly. Hence this OA.
8. The facts of the case as contended by the Applicants of OANoA78/2015 are that they were initially working 4 = oR Passenger Guard suburban in Central Railway, Bombay Division.
Te is stated that the respondents have issued order dated co) to 3.07.2015 intimating the applicants that fixation benefit cannat cH : ke given and excess payment tow ards provisional fixation of pay fats would be recovered in installments of Rs.S000/- wed July, 201 and the respondents have reduced the pay of the applicants from. May, 2015 without any notice. [t is stated that they are entitled for one increment as per the provisions of IREC Vol-ll Rule 1313 @) (aX(L) which reads as nndert-
'F ED ok ep deed o3f3. OFR-22) () ~The intial pay of a raiheay s Gad No @i03Gs 5 comiecied yd, OA No g78 oie os bee Woo Servant whe is appodued fo a past on & Hine scale of pay is regulated gx Foe loess fal CU) Where a raiheay servant holdiig a past, other than a tenure posh, Jf @ sudstantive or femparary or afficiating capacity iy promoted or appointed in a substantive, temporary ar afficiating capacity gs the cave may he, subject fo the fuifbnent of the eligibilies conditions as prescribed in the relevant Recruitmant Rules, to mother post carrying duties and responsibilities f greater importance than thase attaching to th he st held by him, his initial pay in the dime seals of the higher Bost shal! be flxed at the sage next above the national pay arrived a? dy Merec sine: Ais pay in espect of the lower post held hy him regularly & by an increment! at the stage ar which such pay has cerued Or Fupees twenty ve ond whiehever is mre,' 4, Therefore, in terms of the ahove Statutory provision an employee, who is promoted from the post of senior Goods Guard to Passenger Guard is entitled for one increment and other incidental benefits attached thereto since 'this provision is termed as Fundamental Rule.
9, Opposing the claim of the applicants, the respondents have filed reply. They have not di sputed the facts stated by the applicants. They have contended that the applicants in O.A.No.629/2015 were promoted from the post of Senior Goods Guard Rs.9300-34800-+4200 GP to the post of Passenger Guard in Grade Rs.9300-34800+4200 GP vide Ovo No.S6/2006 dated 08.06.2006 and 148/2010 dated 06.12.2010 whereas the applicants af O.A.No.478/2015 were promoted from the post of Senior Goods Guard grade Rs.5600-8000 to the post of Passenger Gua ard in grade 5000-8000 vide Ovo No.36/2006 dated 08. 06.2006, After a thnnennete Sandbentetin ae PORE AAA R TREND LALO bbe votes cce nen 9 OF No. genes oaracerad with ONe s7hOOT 8 ith CPC, the post of Goods Guard, Senior Gouds Guard and Passenger Guard were merged in a single grade pay of Rs.42 wef 01.01.2006. Due to same doubt the matter was referred to HQ. Thereafter, the HO in consultation with FAaCAO instructed the division to allow one additional increment provisionally subject to clarification from the Railway Board, However, the Railway Board vide order dated 22.05.2014, clarified that "Functional promotion in same Pay Band/Grade Pay foll lowing non-finctional placement, the promotional increment under Rule 13 of RSCRP) Rules, 2008 would not be admissible. Therefore, it was decided to withdraw the benefit of incraments granted to the applicants in Heu of their promotion and to recover the exsess Salary pald to the applicants. Thereafter, the impugned order date 03.07.2015 has been issued for recovery of the excess payrnents made to the applicants.
10. The respondents have also placed reliance on the three judges bench judgment of Hon'ble Apex Court in the case of OK, Udayasankaran vs. Union of India & Others reported in £996 (2) SC SLJ -S wherein it has been observed that "there is no Ulegality fn rectification of erroneous pay fixation given te = x employees and excess pay can be recover in easy installment'. They have stated that since the revision of salary was only rectification of increment granted provisiona Hy hence no show cause motice was required. Further, the impugned letter date 1 Od Nogaeeols cormecied W eh OANG #780075 03.07.2015 is the repetition of the decision taken and circulated vides letter dated 20.03.2015 wherein applicants along with other Guards were informed that the recovery shall commence from July, 2015. Moreover, the representations of the applicants has already been disposed of in compliance of this Tribunal's order dated 31.08.2015, il. The applicants have filed Rejoinder denying an disputing the averments made by the respondents in ther Reply and reiterating the averments made in their respective OA,
42. We have gone through the O.A. along with Annexures A-I to A-7 in O.A.No.629/2015 and Annexures A-1 to A-3 in O.ANo.A78/201Sand Reply filed by the respondents in both the OAs. We have also perused the written synopsis filed on behalf of the parties in aforesaid OA No.478/2015, In such written synopsis the applicants argues as under :-
} natural justice, aa. The promotion of the applicants to the past of Senior og a ssenger Guards involves pre-promotional training, road learning and passin ng of examination.
Quip. The respondents in their letter dated 10.02.2011 (Annexure -4) have envisaged three financial up gradations in the categery of guards i.e. Goads Guard to Sr. Goods Guard, Senior o~ Goods Guards: to Pa: assenger Guards, Senior Passenger Guard to G). the impugned order is In violation of principles of e sep aden tbd AERC RPIS TELE CIISSELEGE RAD D CDE Scbtdd 29.65.2005 changing the very terms of the respondents policy ty C4 No 6222013 connected with OA No, dra7e0l3 Main express guard (Passenger guard to Sr, Passenger guard to be
(iv). Subsequent clarification of the Railway Board dated Sanh eannet be treated to be a clarification in view ofthe principle laid down by the Hon'ble Apex Court in orderjudgment dated 2P.LL2012 in Civil Appeal No. 7514-7515 of 2005, Linon of om yt fedig' & tvkers vs. NUR. Purnnir & Others and the appheants have queted such principle as 'one of the essential ingredients ofa clarification is that it clarifies an unclear, doubtful, in explicit or ambiguous agpect of an instrument. A clarification cannot be in conflict with the Instrurnent sought to be clarified,
iv). if the said promotional increment is sllowed to be withdrawn no financial benefit would accrue to the applicants on their promotion from Sr-Gooda guard to the post of Passenger guard. The respondents cannot act contrary to the promotional policy contained in letter dated 28.07.2009 (Annexure -3), vara A and B Ovi). In cases of promotions as stated in "4 shove the fixation of pay on promotion is governed by the siatutary provision of Para 1313 (PR-22) } of TREC volume-Iil and Wyag VISOR AL ot, OF a { 7 owt esety PSPSNER-22) ike int 'tial } Bee ae r verdbwety . ¢ 2 eh A x = oy 7 .
& * 3 = SS "inet a 8 tty 1 Bay ny & %, = a eb S a & tes 2 Ss ion ae ayy Where a Rothway servant holding a post, offer Sum a tenure post a a substaniive, temporary or officiating capacity i y promoted or anpointed #2 a substantive, temporary or 0 officiating capacly as the case may be 3 subject fe the "falfillmont of the eligibility conditions as prescribed in the velevand Recrutinveu. Rules, to another post carrying chutes and responsiblittes ar greater duportance than those att aehing fa ihe post hel id by Alm, Bis initial pay in the ame scale of the higher post shall be fixed af the stage next above the notional pay an rived at by increasing his pay in respective of the lower post held By him regularly by an increment ar the stage af which such p pay has accrued oF rupees swentyefive onlp, whichever Is (vil). Recovery is not permissible in wiew ¢ of the law bed down in State of Punjab & Others vs. Rafly Maish & Others (supra).
On behalf of the respondents written synopsis has been filed in O.A-No.478/2015,
(i). 'The respondents also relying upon the Indian Railway Establishment Code Vol-Il, particularly Rule 1513 (FR-22) (1) Nae and submits thet the statutory provisions under Rule 1313(FR-22 (1) of the IREC itself provides in sub rule Git) which reads as under:-
"EE For the purpose af dus rude, the appointment shail net "be deemed to involve the assumption of duties and responsibil ltles or greater anportance if the pest te which i ig made is on the same scale of pay as the post, other ihan a tenure past, which the rail ray servant holds on a reguiar basis af time fone of his pramioiien or appobument or ona scale of pay identical therew TA"
The leamed counse! for the respondents further contends that the applicants have attempte ed to claim the benefits by showing a part of the rule and Hiding the aforesaid sub rule (11).
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(i). The respondents have corrary to the G dated 28.07.2009 relied by the applicanss are delegation of powers in terms of Rule 123 and 124 of India Railway Establishment Code Vol-l and accordingly needs to be created ag non-est to the extent the same aré contrary (01 the policy letter dated 12.00.2013 and 2 23014 (Annexure A-2).
In O.A.No.629/2015 the applicants have filed a Hat of inyportant dates and events which are not found very material to be reproduced herein as the precise facts have already been noted therein above. On behalf for the respondents 4 further written submissions has been placed on record on 11.09.2018 wherein they have invited our attention to the fixation done ander 6" CPC, It is contended herein further that clarification issued with regard to MACP Scheme cannot be made applicable in case of normal promotion. It has also been contended that by quoting the case of Loco Pilots the ground of discrimination is not sustainable mmasmuch as the duties of Guards and Drivers are different. It is farther contended that the ground taken by the applicants that effect of RBE-54/2014 should be prospective and not retrospective '3 nat tenable in view of the fact that the ben: efit was not earlier allowed by the competent suthority and later withdrawn thr eugh clarification and the benefit was granted provisionally by Zonal > Railway, subject to clarification from Re siiway Board.
Oh 1 ee the learned counsels for the respondents and carefully asidered the facts and circumstances, law points and rival contentions in the case.
Findings 4 The basic facta of the case are not disputed by either of the parties. For sake of brevity, we consider it not necessary to repeat the facts, and the law laid down in the cases, referred to and relied upon on behalf of the parties and noted hereinabove. It has not been disputed by the respondents that the pay of the applicants was tevised by the concerned Zonal Railways and the respondents are not misrepresented by the applicants in any manner resulting into such pay fixation. Thas, if at all any excess payment has been made to the applicants, no fanit can be altributable to the applicants. It is also not the case of the respondents that the some authority under them has unduly favoured the applicants. Besides it is also not their case that if the authority under Railways who has issued the fet dated 28.07.2009 without having the | i delegation of power and jurisdiction thereupon has been proceeded against under the service rules. Th erefore, the judgment + relied by the respondents in support of their arguments in support ef the order for recovery of the excess payment made to the applicant is not applicable in the facts of the present case, In this regard the reliance of the respondents on Chand! Prasad Unival & Others Vs. State of Utiarkhand & Others (2012) 8 Suppl?
we sa nh ebOAt UPS OD te Bn ssesncnee ites pesbeceove nae tay ta Oa A Mo.£ 20 COMBE ca OA Na fF 2015 x t é fi a G12) SCC-417 are not of any help to them Moreover, the judgment in Chandi Prasad Uniyal (Supra) and other similar judgments were considered in the case of Rafig Masih (Supra). In view of an apparent difference of views expressed on the one hand in Shyer Babu Verma (Supra) and Sahib Rant Verma fSupra}) and in Chandi Prasad Uniyal (Supra) on the other hand, the Court held ww that the matter should be placed before Bench of Three axe b +e rh a os ce Judges for taking instructions and obtaining an authoritative pronouncement. The Three Judges bench on 08.07. 2014 conchided as follows:
"13. In wWew of the above, we are of tre considered opinion that reference = was unnecessary. Therefore, without answering Wie reference, we send back the matiers fo the Division Bench for ifs appropriate dispasa is. Aecordingly, the Hon'ble Supreme Court in Rafig Masts (Supra) concluded in the operative part of the Judgment in x.
we, ia our opinion, iP e Court hased on different scale i368 and Article a2 of the : of India cannot be best weighed on adts.of reasaning and thus in view u 3 ds aa cold discussion, there is mo earfuct zo = expressed in the first two judgments agINERt cH Recovery rom employers belonging fo Coup" and Class-IV service. (or Group 'Cand G. 'DY service). Oy Recovery front retired employees, or employees who are due fo retire wil thin one is Od No. 62 29) onrerect]e GANS. a8. ' pear, of the arder of recovery Gi) Recovery jrom em ployee, wher. the excess payment has been made for a period in excess of five pears, before the order uf recovery is isswed.
{iv} Recovery fi cases where an employee has wrongfidly been required io. discharge duties of a higher post, an 1d has been paid accordingly, even though he should have vighifidly been required ta work against ant inferior POSE fy y other case, where the Court arrives af the ¢ ee oh nsion, that recovery if puide from the emplove yee, would be igultaus or harsh ;? a oF arbifrary fo such GN: extent, as would oP wt outweigh the equitable balance of the employer's right fo recover,
16. So far applicanta challenge to RBE No.54/2014 dated 22.05.2014 is concerned, we find force in the contention made on behalf of the respondents that the same has been issued by the Railway Board keeping in view the provisions of Rule 1313 (FR-
22) and other relevant facts, rules and instructions issued from time to time as policy decisions. Moreover, what is provided in the clarification pertaining to MACP cannot be invoked by the applicants in the matter of fixation of their pay on their regular promotion which is governed by specific rules and instructions. Accordingly, the relrance of the applicants on the judgment of Hon'ble Apex Court in AiR. Parntar's case (supra) is not applicable in the present cases keeping in view the letter dat 28.07.2009 stated to have been issued by the authority concerned without having jurisdiction and delegation of power. It can also not be construed that the impugned RBE letter dated 22.05.2014 Medrapasanenbocnne ben tne in vcien pee lnt bas oy AAbasnrreete tbe DPD net taiee Ie i? Gd No G2S2ulS CONME cheat w ith € applicants have met been able to establish that such right has been yp oO co ie pS 09ts jee A % 4 i.
& ms as ot th 3 a v4 we wat ree wy @ 5 ont o a eH £%:
os £0 "4 £8 pees mh rt oS vt a S Ay, In view of the facts and clroumstances as discussed « decisions rendered by the Hon'ble iy f.
pot £% above, and covisidering tf ad to herein above, the GA ts allowed with the
a), The impugned letter dated 03.07.2015 (Annexure A-1} IN O.A.No.4 78/2015 and (Annexure in O.A.No. 6252018 are quashed and set aside to the extent it orders recovery from the applicants.
Gi). The respondents, however, at liberty Mo to fix the pay of the applicants in acco sidan ce with the relevant rules and iyistructions on the subject.
cat}. The aforesaid exercise shall be completed by the responder ents within four months from the date of receipt ef a certified copy of this TS. The Gide are disposed af with the above directions.
MTR mete Pa DOMES } (R. VEIAY KUMAR) a MEMBER (4)