Central Administrative Tribunal - Kolkata
Susovan Pan vs Employees State Insurance Corporation ... on 12 September, 2024
1 0.A. 350/00966/2023 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. 0.A. 350/00966/2023 Date of order: 12.09.2024 Present: Hon'ble Ms. Urmita Datta (Sen), Judicial Member Hon'ble Mr. Anindo Majumdar, Administrative Member 1. Susovan Pan, S/o Harisadhan Pan, Aged about 40 years, At present residing at 165, Pailan Park Housing Project (Near Site Office), Pailan, Kolkata-700104. 2. Subhanjan Biswas, S/o Satya Ranjan Biswas, Aged about 41 years, At present residing at 151, Mitrabagan Pankhatuli, P.O. Hooghly, Dist. Hooghly, Pin-712103. 3. Pabitra Das, S/o Kanti Prasad Das, Aged about 42 years, At present residing at 215/1, Pailan Park Housing Project, Pailan, Kolkata - 700104. 4. Saikat Sarkar, S/o Shyamal Krishna Sarkar, Aged about 41 years, At present residing at Dharsa, Brahmin Para, P.O. GIP Colony, Howrah-711112. 5. Debabrata Jana, S/o Rajendra Prasad Jana, Aged about 42 years, 2 0.A. 350/00966/2023 At present residing at 44, Ramkrishna Sarani, Dhalua, Kolkata - 700152. 6. Sajal Mondal, S/o Sambhu Mondal, Aged about 41 years, At present residing at 22/1, Gazi Saheb Tala Road (Jela Para Road), P.O. Sarsuna, Kolkata 700061. 7. Saikat Dey, S/o Prasanta Dey, Aged about 40 years, At present residing at 101/10, Rabindra Nath Tagore Road, P.O, Thakurpukur, Kolkata 700063. Applicants 1 to 4 are working as Jr. Radiographer & Applicant 5-7 working as Radiographer under Medical Superintendent, ESIC Hospital and O.D.C. (EZ) Joka and are Group-C employees. bene Applicants - VERSUS- 1. Union of India, Service through Secretary, Ministry of Labour, Government of India, Shram Shakti Bhavan, Rafi Marg, New Delhi-110001. 2. Medical Commissioner, Employees State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi - 110002. 3 0.A, 350/00966/2023 3. Director General, Employees State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi-110002. 4. Joint Director (MA), Employees State Insurance Corporation, Panchdeep Bhawan, CIG Marg, New Delhi-110002. 5, Medical Superintendent, E.S.LC. Hospital & D.O.C. (EZ), Joka, Diamond Harbour Road, Kolkata 700 104. 6. Secretary, Govt. of India, Ministry of Personnel, Grievances and Pensions, Department of Personnel and Training, Samsad Marg, North Block, New Delhi - 110001. .... Respondents For the Applicants Mr. C. Sinha, Counsel For the Respondents : Mr. S. Chowdhury, Counsel ORDER (Oral)
Per Ms. Urmita Datta (Sen), Judicial Member:
The instant Original Application has been filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
"(a) Liberty may be granted under Rule 4(5)(a) of CAT (Procedure) Rule, 1987 to file and maintain the original application jointly.
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b) To set aside and quash Impugned letters No. 412-T-11/11/123 (OA No. 350/01672 of 16/2017)/Estt dated 17.05.2018 issued by Medical Superintendent, ESIC Hospital, Joka.
c} To set aside and quash impugned order dated 25.07.2022 issued by the Medical Superintendent (IC), ESIC Hospital & ODC (Ez) Joka.
d) To direct the Respondents to cause them to act in accordance with the directions of Coordinate Benches of this Hon'ble Tribunal as highlighted at Para 4.15 of the instant O.A. as applicants are similarly situated and similarly circumstanced as the applicants therein and grant pre-revised pay scale of Rs. 4000-6000/- the revised pay band being Rs. 5200- 20200/- + Grade pay of Rs. 2400/- w.e.f. the date of appointment of the applicants with all consequential benefits.
e) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
2. As per the applicants, they were all appointed in ESIC hospital & ODC (Ez) Joka in the Pay Band of Rs. 5200-20200/-with Grade Pay of Rs. 2000/- to the post of Jr. Radiographer and they are still working in the said post. However, the applicants No. 5, 6 and 7 are working as Radiographer. (Annexure A/1 collectively) Though the post of Jr. Radiographer belongs to Paramedical cadre of Radiology Department it comes under other technician cadre. The recruitment in the said post is only through direct recruitment with proper educational qualification of Matriculation or equivalent from a recognized Board and diploma or certificate in Radiography of a Recognized Institute.
The Pay Anomaly Committee set up by ESIC in the year 1998 with regard to Vth CPC implementation also recommended the upgradation of ANM and Jr. Radiographer cadre and some other cadres. The ANM cadre was extended the said benefits from 1996 but the Junior Radiographers were left out.
5 0.A. 350/00966/2023 It is submitted by the applicants that the issue regarding grant of Grade Pay of Rs. 2400/- attached with the Pay Band of Rs. 5200- 20200/- with regard to the pre-revised pay scale of Rs. 4000-6000/- has already been decided by different coordinate Benches of this Tribunal and since the applicants are similarly circumstanced with those litigants, they have prayed for extension of said benefits.
In this regard, the Ld. Counsel for the applicant has referred to Order dated 06.12.2016 passed in O.A. No. 645/2015 by the Central Administrative Tribunal, Jaipur Bench. It has been further submitted that the applicants had earlier filed one O.A. being No. 1672 of 2016 which was disposed of vide order dated 10.02.2017 whereby this Tribunal had directed the respondents to consider and decide the representations of the applicants in light of the judgment dated 06.12.2016 passed by the Jaipur Bench in O.A. No. 645/2015 within a period of three months from the date of receipt of a copy of the said order.
However, as the Order dated 10.02.2017 was not complied with by the respondent authorities within the stipulated period of time, the applicants filed CPC being No. 69/2017 before this Tribunal wherein during the pendency of the CPC, the respondent No. 5 issued orders dated 30.10.2017 to all the applicants issuing Speaking Order with the specific observation that the higher Grade Pay may be provisionally paid to the petitioners/Jr. Radiographers subject to the outcome of the Writ Petition pending before the Hon'ble High Court at Delhi and on receipt of proper undertaking regarding refund of payments made in the Writ 6 0.A. 350/00966/2023 Petition if the Writ Petition would be in favour of the ESIC (Annexure A [5 collectively).
Accordingly, the applicants' submitted undertaking with regard to refund of payments as mentioned in the Order dated 30.10.2017 subject to outcome of the Writ Petition before the Hon'ble High Court at Dethi and on the basis of the same the CPC. 69 of 2017 was dropped vide order dated 28.11.2017 whereby this Tribunal had specifically observed that the Tribunal is in hope and trust that the assurance given by the letter dated 30.10.2017 shall be implemented. (Annexure A/6, A/7 & A/8 respectively) However, surprisingly, though there was an assurance by the respondent No. 5 to make actual payment to the applicants if they withdraw the CPC but unfortunately after lapse of six months from the date of order passed in the Contempt Proceedings no steps was taken by respondent No. 5 to make actual payments to the applicants.
Being aggrieved with, the applicants submitted representations dated 11.05.2018 with a prayer to implement the Order dated 30.10.2017 and make actual payments to the applicants but with no effect. (Annexure A/9 to the O.A.) However, the applicants became shocked and surprised to receive the impugned Order dated 17.05.2018 whereby the Speaking Order dated 30.10.2017 was directed to be treated as cancelled and the representations of the applicants were rejected on that ground. (Annexure A/ 10 collectively).
Subsequently, the applicants filed another O.A. No. 1502/2018 which was disposed of vide Order dated 29.04.2022 with an observation 7 0.A. 350/00966/2023 and direction that the respondents shall issue appropriate order a granted to identically circumstanced OTAs, Lab Assistants who are granted the Grade Pay in terms of the Principal Bench's Order. Further, any such benefit shall be subject to outcome of the Writ Petition filed before the Hon'ble High Court at Delhi (Annexure A/12).
In pursuance to the said order, an Order dated 25.07.2022 was issued by the Medical Superintendent (Respondent No. 5) and was rejected. It has been submitted that though this Tribunal had repeatedly directed the respondents to grant the same benefit to the applicants and in compliance to the Order dated 08.05.2018 passed in O.A. No. 350/01172/2017 the said order was complied with by the respondents vide Order dated 20.07.2018 (Annexure A/3). However, the respondents have rejected the claim of the applicant by cancelling the earlier approval. Therefore, being aggrieved with, the applicants have filed the instant application.
3. The respondents have filed their reply wherein they have stated that they did not exert any pressure upon the applicants to withdraw the Contempt Petition. However, they have admitted that they have only implemented the order in just and fair manner.
Further, the Gazette Notification dated 25.02.2021 has only amended the Recruitment Rules for the post of Lap Assistant and nomenclature of Lab Assistant was changed to Junior Medical Laboratory Technologist, thus is not applicable to the post of Jr. Radiographer.
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4. We have heard the Ld. Counsel for the parties and perused the material available on record.
5. As per the applicants they are entitled to get the Grade Pay of Rs. 2400/~- in the Pay Band of Rs. 5200-20200/- (pre-revised pay scale of Rs. 4000-6000/-). According to the applicants they are Jr. Radiographers and Radiographers posted at ESIC and some similarly circumstanced persons had initially filed one O.A. being No. 291/00091/2014 before Jaipur Bench which was disposed of vide Order dated 27.11.2015 holding, inter alia, as under:-
"7. Accordingly the O.A. is disposed of with the directions to the respondents to fix the pay of applicants as per the recommendation of 6 CPC in pay band Rs. 5200-20200 with Grade Pay Rs. 2400 (Pre-revised scale Rs. 4000-6000) with respective date of their entitlement provisionally and subject to the outcome of Writ Petition pending before the Hon'ble High Court, Delhi after taking proper undertaking regarding refund of payments made in the judgment in the aforesaid Writ Petition is in favour of the ESIC. This direction shall be complied with within a period of 3 months from the date of receipt of order. The applicants shall furnish the copy of this order to respondents No. 5 and 6 within a period of 2 weeks from today."
Which was followed by the Principal Bench in O.A. No. 645/2015 (Annexure A/3) which was implemented vide Order dated 27.02.2017 by the Medical Superintendent inter alia holding as under:
"3 In his representation Sh. Yogesh Kumar has demanded higher Grade Pay of Rs. 2400/- on the ground that the same has been given to other Junior Radiographer employees working with him in same Hospital. The Hon'ble CAT Jaipur Bench in O.A. No. 291 /00091/2014 with the direction Junior Radiographer be fixed the pay of applicant as per recommendation of 6t CPC in Pay Band 5200-20200 with Grade Pay 2400/- (Pre Revised 4000-6000) with respective date of their entitlement provisionally and subject to the outcome of Writ Petition pending before Hon'ble Court of Delhi after taking proper undertaking regarding refunds of payment made, if the judgment in the aforesaid Writ Petition comes in favour of the ESIC.
4. I have gone through the relevant records. Perusal reveals that the higher grade pay of Rs. 2400/- has been given only to the petitioner Junior Radiographer on the specific directions of Hon'ble Court in the aforesaid cases. Higher Grade Pay may be paid provisionally to the petitioner Junior Radiographer, subject to the outcome WP pending before Hon'ble Court of Delhi.
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3. In view of aforesaid, the representation of Sh. Yogesh Kumar has merit and accepted for the higher Grade Pay Rs. 2400/- provisionally subject to the outcome of WP pending before Hon'ble Court of Delhi, in Hon'ble Court of Delhi.
The Speaking Order is issued in compliance of directions of Hon'ble CAT, Jaipur Bench O.A. 291/00645/2015."
In the meantime, different Benches of the Tribunal had directed the respondents to fix the pay of the applicants as per the recommendation of the VIth CPC in the Pay Band of Rs. 5200-20200/- with Grade Pay of Rs. 2400/- with respective date of their entitlement provisionally subject to the outcome of Writ Petition pending before the Hon'ble High Court of Delhi after taking proper undertaking regarding refund of payment made in the judgment vide their Order dated 27.11.2015 passed in O.A. No. 91/2014, Order dated 17.12.2014 passed in O.A. No. 791/2014 which was subsequently implemented vide Office Order No. 412-C- 18/15/87(CA 350/00791/2014)/2014-Esit. dated 13.02.2015 by fixing the pay of the similarly circumstanced applicants after granting the Grade Pay of Rs. 2400/- (Annexure A/3) with an undertaking. Further, the Order passed by this Bench dated 08.05.2018 in O.A. No. 350/01172/2017 was also implemented vide Order dated 20.07 /2018. In the meantime, the applicants had approached tnis Tribunal in O.A. No. 350/01672/ 2016 which was disposed of by this Tribunal vide Order dated 10.02.2017 being similarly circumstanced (Annexure A/4 to the O.A.) with a direction to the respondents to consider and decide the representation of the applicants in the light of judgment dated 06.12.2016 passed by the Jaipur Bench in O.A. No. 645/2015 and in pursuance to that though initially the Medical Superintendent, ESIC 10 0.A. 350/00966/2023 Hospital, Joka, Dr. Samir Kumar Choudhury vide his Order dated 30.10.2017 had passed the following order, "4, I have gone through the relevant records. Perusal reveals that the higher grade pay of Rs. 2400/- has been given only to the petitioner Junior Radiographer on the specific directions of Hon'ble Court in the aforesaid cases.
Higher grade may be paid provisionally to the petitioner Junior Radiographer, subject to the outcome WP pending before Hon'ble Court of Delhi.
5. In the view of above, the representation of Sri Susovan Pan has merit
- and is accepted for the higher Grade Pay of Rs. 2400/- provisionally w.e.f. the date of his entitlement and subject to the outcome of WP pending before Hon'ble High Court of Delhi and on receipt of proper undertaking regarding refund of payments made in the judgment if the aforesaid WP is in the favour of the ESIC."
And the applicants had submitted their undertakings before the authority. The Contempt Petition filed before this Tribunal was disposed of with the following observations vide order dated 28.11.2017 which reads as under:-
«3, We hope and trust that the assurance given by the letter dated 30.10.2017 shall be implemented."
Even then since the respondents did not implement their own Order, being aggrieved, they have again filed representations. However, the said representations were rejected vide Order dated 17.05.2018 (Annexure A/10) with the following observation:
"5. In the view of above, this office was issued a Speaking Order dated 30.10.2017 and accepted the representation of Sri Debabrata Jana for granting of Grade Pay of Rs. 2400/- provisionally w.e.f. the date of his entitlement and subject to the outcome of WP pending before Hon'ble High Court of Delhi and on receipt of proper undertaking regarding refund of payments made in the judgment if the aforesaid WP is in the favour of the ESIC.
6. Further, this office has also represented to Hars. Office regarding above matter and Hars. Office has directed for revoke the higher pay fixation order issued by this office vide their letter No. C-18/11/30/2008-MedVI-Part-V{int.) and Sh. Debabrata Jana is not eligible for higher Grade Pay of Rs. 2400/-.
7. Hence, the Speaking Order dated 30.10.20 17, which was issued to Sh. Debabrata Jana from this Office may be treated cancelled and representation of Sh. Debabrata Jana lacks of merit and cannot be acceded to."
11 0.A. 350/00966/2023 Being aggrieved with, the applicants had again approached this Tribunal and vide Order dated 29.04.2022 passed in O.A. No. 350/01502/2018 the said O.A. was disposed of with the following observation:-
"6, Due to parity of reasons, respondents shall issue appropriate order as granted to identically circumstanced OTA/Lab Assistant who were granted the Grade Pay in terms of the Principal Bench's order. Any such benefits shall be subject to outcome of the restrictions before the Hon'ble High Court of Delhi. Let appropriate order be issued within a period of 3 months from the date of receipt of a copy of this order.
7. O.A. accordingly stands disposed of. No costs."
In pursuance to that, however, the respondents again rejected the claim of the applicants on the following grounds:-
6.
"11. As per provision stated in point no. 10 Employees State Insurance Corporation has amended the existing Recruitment Regulation for the post of Lab Assistant in ESI Corporation with prior approval of the Central Govt. and change the nomenclature of Lab. Assistant to Junior Medical Laboratory Technologist and subsequently revised the pay level from existing Level-3 to Level-5 granting them the Grade pay of Rs. 2800/- in the pay matrix recommended by 7 CPC. The same has been published in Part-II, Section-IV of the Gazette of India (Weekly), January 08-January 14, 2022 and is in force with effect from 09% January, 2022.
MXXENKEE
13. As already stated at Para 3 that on the specific directions of the Hon'ble CAT in the related case, (including that of O.A. No. 100/2995/2014, 100/2996/2014, O.A. No. 350/00832/2015, O.A. No. 350/01172/2017 & O.A. No. 350/01009/2017), the benefit of higher pay scale of Rs. 5200-20200 + GP Rs. 2400/- has been granted to the Court, which are still pending. Further, the case of Lab Assistant has been resolved and subsequent changes in Recruitment Regulations have been amended and implemented by ESI Corporation. However, no such amendment has taken place in the RR of Junior Radiographer in ESI Corporation."
From perusal of the above, it is crystal clear that all the similarly circumstanced Jr. Radiographers were granted the benefit of Grade Pay of Rs. 2400/- with stipulation that they should file one undertaking before the respondent authority which would abide by the result of the Writ Petition filed before the Hon'ble High Court of Delhi. Moreover, in the case of the instant petitioners, on the basis of Order dated 12 0.A. 350/00966/2023 28.11.2017 this Court had drepped the CPC with a clear observation that the Court hope and trust that the assurance given by the letter dated 30.10.2017 shall be implemented. It is noted that in the reply the respondents have never denied that they have implemented the various Orders of this Tribunal. In the instant case, they have themselves acceded to the contention of the applicants by following the orders of the Tribunal. However, when the CPC was dropped, the respondents without implementing the said Order have again passed a contrary Order which is not only barred by the principles of estoppel but also contemptuous OTle.
7. Therefore, we direct the respondents to give effect to the Order dated 30.10.2017 & 28.11.2017 positively within the period of two months from the date of receipt of a copy of this order.
8. The O.A. is disposed of accordingly. There shall be no order as to casts.
(Anindo Majumdar} rmita Datta (Senj] Administrative Member Judicial Member Sp