Central Administrative Tribunal - Hyderabad
Shri G. Kumaraswamy vs Union Of India & Others Reported In 1994 ... on 21 November, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.A No. 589 OF 2007 DATE OF ORDER: THE 21ST NOVEMBER, 2008 Between:
1. Shri G. Kumaraswamy S/o Ramachary GDS MC/ DA Nandi Wanaparthy B.O. A/w Yacharam S.O. Under Stn. Kachiguda H.O.
2. Shri J. Narasimha S/o Jangaiah GDS MC, Kurmidda B.O. A/w Yacharam S.O.
3. Shri A. Narasimha S/o Sharpanje GDS MC, Mirkhanpet BO.
A/w Yacharam S.O.
4. Shri S. Devender S/o Shankarrao GDS MC, Narkhoda B.O. A/w Shamshabad S.O. Under Hyderabad Jubilee H.O.
5. Shri M. Achary S/o Rajaiah GDS DA, Yacharam S.O.
6. Shri Mohd. Rafiuddin S/o Md. Sharfuddin GDS MC/ Packer Survey of India S.O. Under Stn. Kachiguda H.O.
7. Shri G. Eswaraiah S/o Jangaiah GDS MC, Kongarakalan B.O. A/w Rangnnaguda `X' Roads S.O. Under Stn. Kachiguda H.O.
8. Shri K. Krishna S/o K. Sathaiah GDS MC/ Packer 1 Ragannaguda `X' Roads S.O. Under Stn. Kachiguda H.O. ... Applicants And
1. The Senior Superintendent of Post Offices, Hyderabad South East Station, Hyderabad 500 027.
2. The Chief Post Master General A.P. Circle, Hyderabad 500001.
3. The Union of India rep. By the Director General Department of Posts Dak Bhavan, New Delhi-1.
4. The Postmaster Stn. Kachiguda H.O. Hyderabad - 500 027.
5. The Postmaster Hyderabad Jubilee H.O. - 500 002. ... Respondents Counsel for Applicants : Mr. TVVS Murthy, Advocate Counsel for Respondents : Mr. G. Jayaprakash Babu, Sr.CGSC Coram :
The Hon'ble Mr. Justice P. Lakshmana Reddy, Vice Chairman The Hon'ble Mr. R. Santhanam, Member (Admn.) (Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC) This is an application filed by 8 Gramin Dak Sevak Mail Carriers (GDS MC) working in Hyderabad South East Division. They are aggrieved of reduction of their pay and allowances with retrospective effect and also recovery of the alleged excess payment made towards their pay and allowances.
2. The facts as set out in the application in brief are as follows:
All the applicants were appointed as GDS/ MC in Hyderabad South East Division under the control of R-1 prior to 1.11.87. In pursuance of the recommendations made by Justice Talwar committee on Extra Departmental Agents (EDAs) the Director General of Posts (R-3) issued OM dated 17.12.98 and also clarificatory circular No. 14-8/99/PAP dated 23.7.99 and also Oms dated 5.3.99 and 10.8.99. In pursuance of those orders of the Director General, R-1 vide his Memo No. A1/ EDAs/ Rlgs dated 13.3.2001 (Annexure A-III) fixed the pay scale of EDAs appointed prior to 1.11.87 as per their work load based on foot beat with effect from 1.3.98 and arrears due to them were paid accordingly. Similar action was taken in respect of EDAs of other divisions in A.P. Circle. While so, R-3 issued impugned letter dated 6/11.9.2002 (Annexure A-I) following an order dated 22.7.2002 by the Hon'ble CAT, Madras Bench in OA 1011/2001 (Annexure A-IV), directing fixation of remuneration/ Time Related Continuity Allowance (TRCA) to EDAs on the basis of actual work load as per cycle beat to maintain uniformity except for those in hilly areas where beats are not cycleable. The applicants pleaded that the Hon'ble CAT, Madras Bench took a view that the challenge to the instructions of the PMG, Coimbatore (R-3 therein) stating that the protection given by R-1 related only to the quantum of basic allowances and not to TRCA scale and therefore the TRCA should be fixed depending on the work load expressed in terms of cycle beat alone, fails and upheld the purported instructions of the PMG, Coimbatore. While taking such a view, it appears that the specific clarification of R-3 in his office letter dated 23.7.99 (Annexure A-V) with specific reference to the CPMG, Hyderabad (R-3) letter dated 8.7.99 stating that the allowances of EDAs should be calculated on the basis of allowances as actually paid on 1.1.96 based on foot beat and not cycle beat, multiplied by the factors 3.25 and paid based on Directorate's instructions on protection of EDA allowances, does not appear to have been brought to the notice of the Hon'ble CAT, Madras Bench and therefore its orders should be treated a per incurium. The applicants further pleaded that DG (Post) in his letters No. 14.46/89/PAP-(pt) dated 22.3.96 ( Annexure A-VI) and 13.3.97 (Annexure A-VII) reiterated that the allowances of EDAs should not be reduced under any circumstances. PMGs of Visakhapatnam and Vijayawada also issued specific instructions in their letters dated 18.9.2000 and 5/8.10.99 (Annexures A-VIII and A-IX) respectively stating that TRCA of ED Agents who entered the service on or before 31.10.87 should be fixed on the basis of their work load computed on foot basis. It is further pleaded that EDAs were given pay scales after repeated struggles and strikes including strike notice dated 24.3.2000 as a part of package deal devised in consultation with the Unions as stated in DG's (Post) letter dated 3.8.2000 (Annexure A-X). The earlier clarification issued by the DG should prevail over the retrograde interpretation of the PMG, Coimbatore. Therefore, the DG (P) is estopped to resort to such retrograde measures by taking advantage of the decision of Hon'ble CAT, Madras by issuing the letter dated 6/11.9.2002 on the plea of maintenance of uniformity. The earlier assurances given by the Director General that the work load of EDAs who entered service prior to 31.10.87 should be protected and computed based on the foot-beat should be honoured by it. The respondents are precluded from reopening the issue and reducing the TRCA already fixed on the basis of foot-beat and resorting to recoveries of alleged over payments. It is further pleaded that though the Hon'ble CAT, Madras Bench following several Supreme Court decisions directed that amounts already paid should not be recovered and although DG did not direct recoveries of alleged excess payments, the SSP, Hyderabad South East Division issued impugned memo dated 14.6.2005 (Annexure A-II) in pursuance of the instructions of R-2 and reduced the TRCA scales of all the applicants and consequently the postmasters started recovery of the alleged excess payments at the rate of Rs.500/- per month with effect from August 2006. The yearly increments due are not being drawn to the applicants 2,4 & 5 from 1.3.99. The additional allowance payable to applicant No.4 for performing the additional work of Shri A. Narayana, retired EDMC, Nanachpur from 1.1.2004 is not sanctioned to applicant No.4 by R-1 and recoveries are being made from June 2005 at the rate of Rs.1,000/- per month by the Post Master, Jubilee H.O. (R-5). The applicants pleaded that the reduction of pay scale without notice and ordering recoveries is against the well settled principles of natural justice and impugned orders of R-1 are liable to the quashed on that ground alone. It is further pleaded that in an identical case, this Tribunal by its order dated 29.4.2004 in OA 1329/ 2002 and the batch (Annexure A-XI) relating to EDAs of Secunderabad Postal Division directed the respondents not to recover the alleged excess payments already made. The department filed a writ petition against the said order in Writ Petition No. 18478/2004 and it is still pending in the High Court. By way of an amendment the applicants further pleaded that R-1 issued a corrigendum by its memo dated 9.10.2007 (Annexure A-XV) to its earlier impugned memo dated 14.6.2005 (Annexure A-II) resulting in further reduction of their TRCA with effect from 1.3.98 instead of 1.6.2005. The applicants prayed for calling for the records relating to the impugned orders, Annexures A-I, A-II and A-XV and quash the same as illegal, arbitrary, unjust and in violation of Articles 14 & 16 of the Constitution of India and against the doctrines of legitimate expectation, promissory estoppel and principles of natural justice and settled law. The applicants further prayed for a direction to the respondents to pay the applicants the TRCA already fixed to them depending on their work load based on foot beat as per DG's letter dated 23.7.99 (Annexure A-V) and to pay the arrears due to them and to refund the amounts already recovered from them. The applicants sought further direction to respondents 1, 4 & 5 to draw the increments due to the applicants from 1.3.98 and pay the arrears due to them.
3. The respondents contested the application and filed reply statement submitting that the applicants were appointed as Gramin Dak Sevaks prior to 1.11.87. The respondents pleaded that prior implementation of TRCA which came into existence with effect from 1.3.98, the first applicant used to draw Rs.360/- plus DA, second applicant Rs.410/- plus DA, third applicant Rs.420/- plus DA, fourth applicant Rs.295/- plus DA, fifth applicant Rs.420/- plus DA, sixth applicant Rs.355/- plus DA, seventh applicant Rs.385/- plus DA and eighth applicant Rs.420/- plus DA as on 1.1.96. While so on the advice of Justice Talwar Committee Report, the Postal Directorate issued instructions dated 17.12.98 (Annexure R-1) according to which the basic monthly allowance will be increased to GDS by multiplying the allowance as on 1.1.96 with a factor of 3.25. Accordingly, TRCA was fixed vide memo dated 18.1.99 and memo dated 21.1.99 (Annexures R-2 & R-3). It is further pleaded that there are two TRCAs based on the workload viz. first TRCA of Rs.1220-1600 for the workload upto 3 hrs 45 mts and the second TRCA of Rs.1545-2020 for the workload of more than 3 hrs 45 mts. This is for GDSMCs/ GDS PKRs. For GDSDAs the first TRCA of Rs.1375-2125 and the second TRCA of Rs.1740-2640. The workload of GDS is calculated on two formulae viz. 1. Foot beat and 2. Cycle beat. The time factor applicable for crossing 1km on foot beat is 12 mts whereas it is 6 mts on cycle beat. The applicants at Sl. 1, 2, 3, 4, 6, 7 & 8 were entitled for 1st TRCA i.e. Rs.1200 1600 and the applicant at Sl.5 was entitled for 1st TRCA of Rs.1375 2125. Accordingly, their TRCA was fixed w.e.f. 1.3.98. In the subsequent Directorate lr No. 14-2/95/PCC/ PAP dt. 5.3.99 (Annexure R-4) it was clarified against the point No.3 that where two TRCA are applicable the 1st or the 2nd TRCA will be determined on the basis of actual work load. From this it is clear that the actual workload of the applicant as on 1.1.96 is the criteria for fixing TRCA which came into existence from 1.3.98. Calculation of the workload basing on foot beat formula cannot be made applicable to the applicants as the area in which they were working was cycleable. The foot beat formula would be applicable to those who are working in hilly desert/ tribal areas. While things stand so, the Directorate issued instructions vide lr No.14-2/2001-PAP dated 2.2.2001 (Annexure R-5) that the GDS who were appointed prior to 1.11.87 would get protection of their allowances determined on foot beat. The allowances of the applicants were again revised w.e.f. 1.3.98 from Rs.1220 1600 to Rs.1545 2020 vide memo No. A1/ EDAs/ Rlgs dt 13.3.2001 (Annexure R-6). In this connection it is to submit that the TRCA in r/o applicant at sl 5 was already revised from the scale of Rs.1375 2125 to the scale of Rs.1740 2640 w.e.f. 1.7.99 vide memo No.A 165 dt 5.7.99 according to his workload (Annexure R-7). The Directorate vide lr No.14-16/ 2001-PAP dt 11.9.02 (Annexure R-8) in para 2, keeping in view of Hon'ble CAT, Madras Bench judgement in OA No. 1011/ 2001 dt 29.7.02 (Annexure R-9) clarified that the TRCA to GDS should be calculated on the basis of actual workload as per cycle beat except for those in hilly areas and areas where they are not cycleable. It is a fact that the area where the applicants are working is totally cycleable and hence they are not entitled for calculation of the workload on foot beat and they have also been rendering the service on cycle. Assessment of their workload on cycle beat is therefore correct and hence their TRCA was again revised from Rs.1545 2020 to Rs.1220 1600 on their actual workload which was computed on cycle beat formula vide memo No. A1/ EDA/ Rlgs/ 05.06 dt 14.6.2005 (Annexure R-10). The date of memo was erroneously noted as 1.6.2005 instead of 1.3.98. Corrigendum was issued to the memo No.A1/ EDA/ Rlgs/ 05.06 dt 14.6.05. The Audit Party which carried out Internal Check Inspection has also critically reviewed the wrong revision of TRCA of the applicants and objected for fixation of TRCA which was arrived at, as per the workload basing on foot beat. Accordingly orders were issued vide lr No. A1/ EDA/ Rlgs/06.07 dt 13.6.06 (Annexure R-11) to the Postmaster, Stn. Kachiguda HO and Hyd. Jubilee HO to recover the excess paid allowances from the pay of the applicants. The respondents further pleaded in their reply that the Hon'ble Supreme Court in the judgement dated 7.4.2000 in Civil Appeal No. 6423/ 1998 and also in the judgement dated 25.4.97 in Civil Appeal No. 3297/ 1997 held that the recovery of excess paid amounts due to wrong fixation of pay is valid and the said decisions are reported in 2000 SCC (L&S) 882 and 1997 (6) SCC 139. Therefore, recovery is permissible and the interim stay of recovery is to be vacated. The respondents further pleaded that the instructions issued vide memo dated 11.9.2002 (Annexure R-8) prevail for fixation of allowances on the basis of actual workload calculated as per cycle beat formula. The Internal Check Audit adversely commented upon allowing second scale of TRCA as the workload of the applicants is less than 3 hours 45 minutes justifying the first scale of TRCA only. Since the Audit raised objections (Annexure R-12) against wrong fixation of TRCA, it is obligatory on the part of the DDO to recover the excess paid amount from the pay and allowances of the applicants and no proceedings need be given in that regard. The respondents denied having stopped the increments of the applicants with effect from 1.3.99. The increment of applicant No.2 with effect from 1.3.2007 was not drawn as he worked as BPM from 1.3.2006 to 30.11.2006. The Postmaster, Kacheguda has been directed to draw the increment with effect from 1.3.2007 after obtaining necessary certificate from ASPOs concerned. The work hours of applicant No.4 before entrusting the additional work of conveyance of BO bag of Nanajpur is 2 hours 7 minutes and after entrusting the BO bag, the work hours increased to 3 hours 37 minutes and as such there is no difference in the TRCA which is applicable to the workload upto 3 hrs 45 minutes. The respondents pleaded that as per Rule 86 of FHB Volume-I, the amount was regularly paid from the Government can be recovered at any time. As such, the order of recovery is not illegal. The respondents prayed for dismissal of the OA and also for vacation of interim order passed by this Tribunal ordering stay of further recovery.
4. The applicants filed rejoinder reiterating the contentions raised in their application. Regarding the judgements cited in paras 2 and 7 of the reply, the applicants pleaded that those judgements are to be treated as per incurium in view of the law laid down earlier by a three judge Bench of the Supreme Court in Shyam Babu Verma & Others Vs. Union of India & others reported in 1994 (1) SLR (SC) 827 and in Sahib Ram Vs. State of Haryana & others reported in 1995 SCC (L&S) 248 which still hold the field. It is further pleaded that the present case is covered by order dated 29.4.2004 in OA 1329/ 2002 and batch and clarificatory order dated 12.10.2004 in OA 1048/ 2002.
5. The points that arise for consideration in this application are:
(i) Whether the applicants are entitled for TRCA based on workload
calculated as per foot beat and not cycle beat?
(ii) Whether the impugned orders (Annexure A-I) and consequential
order (Annexure A-II) are sustainable in law?
(iii) If so, whether the respondents are not entitled for recovery of the
over payments made?
(iv) To what result?
6. Points (i) to (iii):
During the course of hearing the learned counsel for the applicants invited our attention to a decision of this Tribunal dated 31.1.2008 in OA 398/ 2007 wherein similar issues were considered and decided by this Tribunal relying upon the earlier decision of this Tribunal in batch of OAs 1329/ 2002, 502/2004, 1048/ 2002, 328/ 2003, 1515/ 2003, 424/ 2004 and 263/ 2003. The learned counsel submitted that this Tribunal disposed of OA 398/ 2007 as a covered case holding that the Government have no right to recover the excess payments made and also is liable to refund the amounts recovered towards excess payment from the applicants and similar orders may be passed in this case also. The learned counsel furnished a copy of the orders of this Tribunal dated 31.1.2008 passed in OA 398/ 2007. We have perused the said orders. In the said application also, the orders passed by the Director General of Posts, New Delhi in order No. 14-16/2001-PAP dated 6/11.9.2002 and also the order passed by Superintendent of Post Offices, Gudur Division dated 29.10.2002 were challenged and sought for a consequential direction to refund the recovery of alleged excess payments and also seeking direction to pay the applicants TRCA already fixed to them depending upon their workload based on foot beat as per DG (P) letter dated 23.7.1999 and for payment of arrears due to them. The reliefs prayed for in this application are also similar to the reliefs prayed for therein. OA 398/ 2007 was filed not only on behalf of 21 GDS employees but also All India Postal Extra Departmental Employees Union, A.P. Circle represented by its Circle Secretary. When the said OA came up for hearing before this Tribunal, learned standing counsel for the respondents submitted that the Association of All India Postal ED Employees Union, A.P. Circle along with some other employees had filed batch of OAs 1329/ 2002, 502/2004, 1048/2002, 328/ 2003, 1515/2003, 424/ 2004 and 263/ 2003 seeking the same reliefs, this Tribunal passed a common order holding that the protection given by Government to the GDS employees related only to the quantum of basic allowance which they were getting prior to 1.11.87 and not TRCA scale and the allowances given by the Government to the employees who joined before 1.11.87 cannot therefore be withdrawn and the same may be continued in respect of basic allowances drawn by them as per foot beat formula. But, however, this Tribunal held in the said batch cases that the Government is not entitled to recover those excess payments and the amounts recovered towards alleged excess payments shall be refunded to the employees on the ground that there was no misrepresentation on the part of the employees. It is further submitted by the standing counsel therein that the respondents challenged the decision of this Tribunal in the said batch of cases regarding the denial of recovery of excess payments by way of Writ Petition No. 18478/ 2004 and obtained stay of the directions relating to the refund of the amount already recovered and therefore this Tribunal cannot grant the relief prayed for in OA 398/ 2007. But the counsel for the applicants therein submitted that the judgement of this Tribunal in OA 1329/ 2002 and batch is not suspended and therefore the common order passed in the said batch is binding on this Tribunal and that the Government is not entitled to recover the alleged excess payments and also is liable to refund the amounts already recovered towards excess payments and hence this Tribunal may pass similar order as passed in OA 1329/ 2002 and batch. After perusing the orders passed in WP MP No. 24304/ 2004 dated 13.12.2004, we found that the Hon'ble High Court refused to suspend the common order passed by this Tribunal in OA 1329/ 2002 and batch, but the directions relating to the refund of the amount already recovered was stayed pending further orders. As the said writ petition was pending and as the common order passed by this Tribunal in the batch cases are not suspended, this Tribunal came to the conclusion in OA 398/ 2007 that the common orders passed by this Tribunal in the said batch of cases is binding on this Tribunal and this Tribunal is required to pass similar orders as passed in OA 1329/ 2002 and batch as a covered case but subject to the final decision that may be rendered by the Hon'ble High Court of A.P. In Writ Petition No. 18478/ 2004. This Tribunal further observed in the said OA 398/ 2007 that mere obtaining stay in respect of refund in the case of certain employees who are applicants in OA 1329/ 2002, this Tribunal is not barred from passing similar orders as in OA 1329/ 2002 and batch. With the said observation, this Tribunal disposed of OA 398/ 2007 as a covered case holding that the Government has no right to recover the excess payment made and also is liable to refund the amounts recovered towards excess payment from the applicants therein. Regarding the other reliefs prayed for in that application, this Tribunal negatived the same as in the batch of cases, this Tribunal negatived those reliefs following the judgement of CAT, Madras Bench in the case of All India Postal Extra Departmental Employees Union, Namakkal Division Vs. Union of India and others in OA 1011/ 2001 dated 22.7.2002.
7. As the reliefs prayed for in the instant case are also similar to reliefs prayed for in OA 398/ 2007, and also in the batch of OAs 1329/ 2002 and batch, the earlier orders of this Tribunal are binding on this Tribunal. As per the earlier view taken by this tribunal, the impugned orders dated 11.9.2002 are not liable to be set aside and the applicants are not entitled for TRCA allowance to be calculated on the basis of actual workload as per foot beat and they are entitled for TRCA worked out on the basis of actual workload as per cycle beat as the applicants are admittedly not working in hilly areas or the areas where beats are not cycleable. As the impugned orders were issued following the orders of CAT, Madras Bench in OA 1011/ 2001, the same was upheld by the Division Bench of this Tribunal as long back as in the year 2004 in a batch of cases. Therefore, the impugned orders passed under Annexure A-I and A-II are not liable to be set aside. The impugned orders do not contain any direction for recovery of the excess payments made already. Admittedly, there was no fault on the part of the GDS employees as there was no misrepresentation on their behalf. It is only on account of erroneous interpretation of the instructions by the employees of the department excess payments were made and the GDS employees have consumed the said payments. Therefore, the GDS employees cannot be penalised by way of recovering the amounts after a long time. This Tribunal relied on the three bench decision of the Hon'ble Supreme Court and held in the above said batch of OAs that the Government is not entitled to recover the said amounts and on the other hand, the Government is liable to refund the amounts already recovered from them. We are entirely in agreement with the said findings of this Tribunal. However, the findings of this Tribunal in the above said batch of OAs are challenged by respondents before the Hon'ble A.P. High Court and the said writ petition is still pending, it is needless to say that in case the Hon'ble A.P. High Court takes a different view, the said decision of the Hon'ble A.P. High Court will prevail over the consistent view taken by this Tribunal in the batch of cases and thereafter. Thus, these three points are found accordingly.
8. Point No. (iv):
In the result, the OA is partly allowed holding that the respondents are enot entitled to recover the excess payments made to the applicants and the amounts already recovered shall be refunded to the applicants, but subject to the decision of the Hon'ble A.P. High Court that may be rendered in the Writ Petition No. 18478/ 2004. The OA is partly dismissed upholding the impugned orders at Annexures A-I & A-II and holding that the respondents are entitled to fix the TRCA on the workload as per cycle beat, even in respect of those who are employed prior to 31.10.87. There shall be no order as to costs.
( R. Santhanam) (P. Lakshmana Reddy)
Member (A) Vice-Chairman
Dated: 21st November, 2008