Central Administrative Tribunal - Delhi
Sh. Suraj Bhan vs Union Of India & Others Through on 17 September, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2801/2012 This the 17th Day of September, 2012 Honble Shri G. George Paracken, Member (J) Honble Smt. Manjulika Gautam, Member (A) Sh. Suraj Bhan S/o Sh. Ram Dayal, Working as Khallasi, O/o Assistant Engineer (Elect.), Civil Construction Wing (CCW), Door Darshan Bhawan, Phase-I, Mandi House, New Delhi-110001. ..Applicant (By Advocates: Shri A.K. Bhakt) Versus Union of India & Others through The Secretary, Ministry of Information & Broadcasting, 6th Floor, Shastri Bhawan, New Delhi. 2. The Director General, Prasar Bharti Broadcasting Corporation of India, All India Radio, Aakaswani Bhawan, Sansad Marg, New Delhi. 3. The Chief Engineer, Civil Construction Wing, 6th Floor, Soochna Bhawan, New Delhi. 4. The Executive Engineer (E) Project, CCW, AIR, A-2 Block, 1st Floor, Pocket-B, Radio Colony, Kingsway Camp, Delhi 110009. ..Respondents O R D E R(ORAL)
Shri G. George Paracken:
Having been sponsored by the Employment Exchange, the applicant was initially engaged as a Khalasi in All India Radio w.e.f. 02.07.1987 on muster roll. His services were later on terminated w.e.f. 20.03.1989. Aggrieved by the aforesaid termination, he approached the Central Government Industrial Tribunal Cum Labour Court in I.D. No.2/96 which passed an award on 23.09.2005 directing the respondents to regularize his services after three years of his engagement as Khalasi and to pay the arrears to him within one month of its publication. Thereafter, the respondents regularized the applicant w.e.f. 02.07.1990 but did not pay him the arrears as directed by the Labour Court. He has, therefore, made several representations including the one dated 23.09.2005 containing a statement showing the calculation of arrears amounting to Rs.73,795/-. However, the respondents deposited only Rs.29,620/- on 14.10.2009 in the saving bank account of the applicant after four years of the publication of award. They have also not given the detailed calculation of the arrears worked out.
2. Later on, the Respondents granted the first financial upgradation under the ACP Scheme w.e.f. 19.09.1999 in the scale of pay of Rs.3050-75-3950-80-4500 to the applicant and other similarly placed persons. According to the respondents, the said ACP benefits granted to them were not in accordance with the rules and, therefore, decided to withdraw it. Consequently, they have earlier approached this Tribunal vide OA No. 369/2009 and connected cases which has been decided on 20.08.2008. Pursuant to the said order of this Tribunal, the respondents have issued a notice dated 06.10.2009 to the applicant and others to show cause as to why the first financial upgradation wrongly granted to them should not be withdrawn and the over payments made to them as a result thereof should not be recovered from them. The applicant submitted a reply to the aforesaid show cause notice on 23.10.2009. Thereafter, the respondents revised his pay granting him the grade pay of Rs.1,900/- (pre-revised scale of Rs.3050-4590). The applicant again made a representation in 2010 requesting the respondents to grant him Second MACP which became due. However, since the respondents have already withheld his increments for the years 2010 and 2011, he was not granted the second MACP while his juniors have been granted. Accordingly, he was served with the impugned order dated 11.07.2012 reducing his grade pay from Rs.1900 to Rs.1800/- in the scale of Rs.5200-20200. Aggrieved by the aforesaid order dated 11.7.2012, the applicant got the Annexure A-5 legal notice issued to the respondents on 20.7.2012 stating that he was entitled for 2nd MACP benefits on completion of 20 years of service since 2010. He has also relied upon the judgment of the Honble High Court of Delhi in H.S. Dhiman v. N.D.M.C., 145 (2007) DLT 450, wherein it was held as under:
8. Counsel for the respondent also relied on the following judgments to state that notice to show cause in such circumstances was not required to be given:
(i) R.P. Bahri v. Life Insurance Corporation of India 1973 (1) SLR 192
(ii) Madan Gopal Singh v. Union of India and Anr. 1976 (2) SLR 353
(iii) S. Thiruvallavan and Ors. v. Union of India and Ors. 1995 Supp.(3) SCC 436
(iv) State of Karnataka v. Mangalore University Non-teaching Employees Association and Ors.
9. Counsel for the petitioner, on his part, stated that the aforesaid action of the respondent was grossly illegal, arbitrary and unjustified, more so when the same was done behind the back of the petitioner and without issuing a notice to show cause to the petitioner before issuing the impugned Office Order. In support of his contention that it was not permissible for the respondent to take a unilateral decision where the vested rights of the petitioner were being affected, without following the principles of natural justice and without affording an opportunity of being heard by the respondent, the said action could not be sustainable in law, he referred to the following judgments:
(i) U. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. .
(ii) Munna Ram v. Union of India 2004 (5) AD (Delhi) 580.
10. Reliance was also placed on a Circular dated 5th September, 1973 issued by the Directorate of Education, Delhi to state that the selection grade once given cannot be withdrawn by the department.
11. I have heard the counsels for the parties and have also perused the judgments referred to and relied upon by them.
12. It is settled law that wherever an order resulting in depriving an employee of a vested right is passed, principles of natural justice demand that an employee be granted an opportunity of hearing and be given a notice to show cause. In this regard, reference has been rightly made by the counsel for the petitioner to the judgment rendered by a Division Bench of this Court in the case of Munna Ram (supra) wherein it was held as under:
That re-designation of the petitioners and adjusting them in the pay-scale of Rs. 4000-Rs. 6000 after re-designating them as Assistant Sub-Inspectors, created vested right in favor of the petitioners and if such vested right is sought to be taken away from the petitioners, the same can be done after following the rules of principles of natural justice. The petitioners were entitled to a show cause notice whereupon the petitioners could have represented and shown to the respondents that the adjustment of the petitioners in the pay-scale of Rs. 4000- Rs. 6000 and re-designating them as Assistant Sub-Inspectors, was legal and valid. They have admittedly been deprived of such right without giving them an opportunity of hearing. Their vested rights are being sought to be taken away vide the impugned order dated 27th December, 2001. In our considered opinion, taking a unilateral decision on a subject as the present one whereby the vested right of the petitioners is being affected is not permissible without following the principles of natural justice and without affording an opportunity to represent and being heard to the petitioners. The said action cannot be sustained....
13. Also, it is now settled position of law that the old distinction between a judicial act and an administrative act has withered away and now even an administrative order, if involves civil consequences, must comply with the rules of natural justice. The term 'civil consequences' in its comprehensive connotation would include everything that affects a citizen in his civil life. Since reduction of pay also involves civil consequences, the petitioner deserved an opportunity to show cause before his basic pay was reduced. Reliance in this context may be placed on the judgment of the Supreme Court in the case of Bhagwan Shukla v. UOI reported at wherein it was held as under:
Para 3: We have heard learned Counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs. 190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs. 181 p.m. from Rs. 190 p.m. in 1991 retrospectively w.e.f. 18-12-1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter....
14. It is not disputed that at the time of recalling the earlier Office Order dated 29th November, 1984 and before passing the impugned Office Order dated 16th December, 1988, the petitioner was not issued any notice to show cause or afforded an opportunity of hearing by the respondent. It is also undisputed that by visiting the petitioner with the impugned Office Order, the respondent proposed to implement the same by making it retrospective in operation with effect from 1984, thus causing great prejudice to the petitioner not only by refixing his pay but also by making deductions from the emoluments received by him in the past four years.
15. While the judgment referred to by the counsel for the respondent in the case of S. Thiruvalluvan (supra) has no applicability to the facts of the present case, the judgment in the cases of R.P. Bahri (supra) is peculiar to the facts of the said case and no law has been laid down therein for being cited as a precedent by the counsel for the respondent.
16. In the case of State of Karnataka (supra), the Supreme Court while considering the question as to whether the Government orders impugned in the writ petition are liable to be quashed on account of infraction of principles of natural justice, observed that though the employees therein were not afforded an opportunity of hearing by the Government, the university authorities themselves espoused the cause of the employees while corresponding with the Government. Therefore, it was concluded that no real prejudice was caused to employees on account of non-affording the opportunity to make a representation. This is not so in the present case as admittedly, the petitioner was not afforded any opportunity of hearing whatsoever by the respondent before passing the impugned Office Order. The case of Madan Gopal Singh (supra) is also distinguishable for the reason that in the said case it was observed by the court that the pay scales of the petitioner therein had not been reduced with retrospective effect and the amendment order passed by the Government substituting one pay scale with the other was to operate prospectively only, unlike the present case, where reduction has been done with retrospective effect and recoveries are sought from the petitioner.
17. In view of the aforesaid facts and circumstances, it is held that the respondent has violated the principles of natural justice by seeking to take away the vested rights that had accrued in favor of the petitioner at the time of passing the Office Order dated 29th November, 1984 and before passing the earlier impugned Office Order dated 16th December, 1988. Refixing the pay scale of the petitioner with retrospective effect amounted to depriving the petitioner of his valuable rights. Before visiting the petitioner with such civil consequences, he was entitled to a notice to show cause. Thereupon the petitioner could have represented and shown to the respondent as to how and why the earlier Office Order dated 29th November, 1984 ought not to have been recalled. Such an opportunity, however, was never afforded to the petitioner in view of the unilateral decision taken by the respondent in the present case and thrust on the petitioner. It is also pertinent to note that there is no explanation offered in the impugned Office Order with regard to the purported error in calculation that finds reference in the averments made in the counter affidavit on behalf of the respondent. In fact a perusal of the impugned Office Order shows that the same is completely silent on the said aspect.
18. Support is sought to be drawn by the counsel for the respondent on the note which occurs at the bottom of the earlier Office Order dated 29th November, 1984 to the effect that the pay fixation done in terms of the aforesaid Office Order was subject to the condition that the individual concerned will have to refund to the respondent any amount that may on subsequent check or audit be found to have been paid to him in excess, is of no assistance in the present case as the said note is more in the nature of standard error or omission note which could have at best entitled the respondent to rectify/correct any error or omission in the nature of calculation error or typographical error in disbursement of amounts on the basis of the pay fixation in terms of the Office Order dated 29th November, 1984. The impugned Office Order dated 16th December, 1988 can certainly not be termed as an order in the nature of rectification of any error or omission so as to permit the respondent to invoke the said note. Refixation of pay of the petitioner can be of no stretch of imagination be called an 'error or omission' so as to attract the aforesaid note. Lastly, the clarificatory Circular dated 5th September, 1973 issued by the Directorate of Education, Delhi with regard to implementation of selection grades of teachers also advances the case of the petitioner, as the said Circular stipulates that selection grades once given cannot be withdrawn.
19. For the aforesaid reasons, and primarily for the reason that the respondent/NDMC has violated the principles of natural justice while passing the impugned Office Order dated 16th December, 1988, the same is set aside and the writ petition is allowed. In view of the fact that the petitioner has already retired from service during the pendency of the present petition, he shall be entitled to all the monetary benefits in respect of his salary and consequential reliefs, emoluments including pension, that shall follow on implementation of the earlier Office Order dated 29th November, 1984, along with costs quantified at Rs. 5,000/-.
3. Since there was inaction on the part of the respondents again in not granting him the second MACP benefits, he has approached this Tribunal under this OA seeking the following reliefs.
(I) To quash and set aside the impugned reduction order dated 11.07.2012 and direct the respondents to consider the applicants in grade pay 1900/-, (II) To direct the respondents to consider the applicant for 2nd financial up-gradation under MACP Scheme.
(III) Direct the respondents to dispose the representations and legal notice as per law.
(IV) To award exemplary cost on the respondents for causing undue harassment.
(V) To pass any other order or orders which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
4. We have heard the learned counsel for the applicant, Sh. A.K. Bhakta. In our considered view, the respondents ought to have considered the representation of the applicant. When an employee seeks the redressal of his grievance through the departmental mechanism, the respondents should consider them and as far as possible redress them. Only in case where the grievance of the applicants is not redressed, they need to approach this Tribunal.
5. We in the above facts and circumstances of the case, dispose of this is OA and direct the respondents to consider the aforesaid legal notice on behalf of the applicant and dispose of the same by passing a reasoned and speaking order within a period of two months from the date of receipt of a copy of this order. While doing so, they shall also consider a copy of this OA itself as a supplementary representation. Till such time, they shall not make any recovery of the alleged over payments made to the applicant. There shall be no order as to costs.
( Manjulika Gautam ) ( G. George Paracken )
Member (A) Member (J)
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