Central Administrative Tribunal - Jodhpur
Shyam Lal Sharma And Anr. vs Union Of India (Uoi) And Ors. on 7 December, 1998
JUDGMENT Gopal Singh, Member (A)
1. In both the applications filed under Section 19 of the Administrative Tribunals Act, 1985, facts and circumstances, as also relief sought is the same and, therefore, these are being disposed of by this single order.
2. Applicants, Shynm Lal Sharma and Prabhu Dayal, have prayed for setting aside the impugned orders dated 15.2.1996 (Annx. A/1), dated 16.8.1996 (Annx. A/2) and dated 13.9.1996 (Annx. A/3) and for issuing a direction to the respondents for refunding the amounts to the applicants of recoveries affected from them in implementation of the impugned orders.
3. Applicants' case is that while functioning as Train Driver Grade 'C', the applicants participated in the strike sponsored by Loco Running Staff Association in February, 1981. The applicants were dismissed from service w.e.f. 9.2.1981 by invoking the provisions of Rule 14 (ii) of the Disciplinary and Appeal Rules, 1968. That the case of dismissal of the applicants has also been vehemently contested before the Administrative Tribunal/High Court and finally the case was decided by Hon'ble the Supreme Court vide its order dated 5.8.1993 in Civil Appeal No. 4681 and 4682 of 1992. The applicant, Prabhu Dayal, retired on superannuation on 30.6.1992, before hecould be reinstated in service in terms of the Order of Hon'ble the Supreme Court. As such he was deemed to have been reinstated before the retirement. In terms of the orders of Hon'ble the Supreme Court dated 5.8.1993, the respondents fixed the pay of the applicants allowing all increments that fell due during the period between their dismissal from service and re-instatement in case of applicant Shyam Lal ,Sharma, and retirement in case of Prabhu Dayal. Accordingly arrears of pay and allowances were paid to the applicants. In respect of applicant Prabhu Dayal pensionary benefits were also calculated and paid to him. The respondents subsequently, on a clarification received from, the Railway Board refixed the pay of the applicants without allowing increments for the period from the date of their dismissal and reinstatement/retirement and accordingly an amount of Rs. 64,201.90/-and Rs. 97,829/- was worked out respectively as over payment made to the applicants and the same was ordered to be recovered from the applicants. The applicants had made several representation to the respondents against the recovery order but to no avail. Feeling aggrieved, the applicants have filed these O.A.
4. Notices were issued to the respondents and they have contested the applications.
5. We have heard the learned counsel for the parties and perused the records of the case.
6. The learned counsel for the respondents first of all raised an objection relating to limitation. He has submitted that both the O. As are hopelessly time barred and have been filed belatedly. He has submitted that in both the cases, the impugned orders which are sought to be quashed were passed as far back as 1994 i.e. January to November, 1994, Consequent recovery orders in respect of pensionary benefits were passed in the year 1996, whereas, the O. As. have been filed in the end of 1997. Thus, both the O.As are time barred. He has further argued that while enforcing the recovery of over-payment from Shyamlal almost half of the amount in thirty instalments has already been recovered from him. During that period he didn't object to the recovery. He only represented his cause by making repeated representations. Likewise, recovery from Prabhu Dayal was also made to some extent. He also didn't object to the recovery of over-employment but only made representations one after another. Thus, the applicants' cannot take advantage of the fact that they were representing the administration in respect of recovery of the over-paid amount. Therefore, in view of the rule propounded in (1996) 32 ATC 148--Administrator of Union Territory of Daman and Diu and Ors. v. R.D. Valand, the applicants are. not entitled to seek condonation of delay.
7. On the other hand, the learned counsel for applicants has argued that in matter of pay, pay fixation and over-payment of pay, the cause of action continues to arise every month and so long the grievance of the applicant is not redressed the cause of action survives. He has cited (1995) 30 ATC 702 and AIR 1996 SC 669 in support of his argument.
8. We have considered the rival arguments. In our opinion, the O.As are hopelessly time barred. In the cases in hand, the impugned order re-fixing the pay of the applicants was passed as far back as July 1994 and consequent recovery was also affected thereafter in instalments, If the applicants were aggrieved of refixing of their pay, they should have challenged the order of refixation of their pay on the lower side at the time when the impugned orders were made or soon thereafter but the applicants preferred to represent repeatedly against the pay fixation orders. When their first representation was not decided within six months by the administration there was no point in repeatedly making representation to the administration. The applicants could have filed the O.A. soon after expiry of six months after making the representation or atleast when the recovery was started against them. The rulings cited by the learned counsel for the applicants are not applicable in the instant case because of difference of facts. When certain rule is propounded in view of a particular fact then that rule can be made applicable in a case which is similar on facts. The case reported in (1995) 30 ATC 702--Haralaldas v. UOI and Ors. is in respect of a scheduled caste candidate seeking an appointment and the case reported in AIR 1996 SC 669 - M.R. Gupta v. UOI and Ors. is in respect of proper fixation of initial pay in accordance with rules. In present O.As the matter of fixation of pay is not involved as claimed by the applicant. In the instant case re-fixation of pay has been done on the reduced side in 1994 which had immediate effect in respect of the pay of the applicants and subsequent recoveries. Thus, the rulings are not applicable. In our opinion, making successive representation cannot stop the limitation.
9. In our opinion, both the cases of the applicants are time barred and deserves to be dismissed on this count alone.
10. Before going through the merits of the case is would be relevant here to go through the judgments dated 5.8.1993 of Hon'ble Supreme Court, relevant extract of which is reproduced below:--
"(i) Employees who are dismissed under Rule 14 (2) for having participated in the Loco Staff Strike of 1981 shall be restored to their respective post within a period of three months from today (5.8.93).
(ii)(a) Since more than three years have elapsed from the date the orders were found to be bad on merits by one of the Tribunals, it is just and fair to direct the appellate to pay the employees compensation equivalent to three years salary inclusive of dearness allowance calculated on the scales of pay prevalent in the year, the judgment was delivered i.e. in 1990.
(b) The benefit shall be available even to those employees who have retired from service. In those cases, where the employees are dead, the compensation shall be paid to their dependents. The compensation shall be calculated on the scale prevalent three years immediately before the date of retirement or death.
(iii) Although the employees shall not be entitled to any promotional benefit they shall be given Notional Continuity from the date of termination till the date of restoration for purpose of calculation of pensionary benefits. This benefit shall be available to the retired employees as well as those who are dead by calculating the period till the date of retirement or death."
11. It would be seen from the above judgment that Hon'ble the Supreme Court has ordered that such employees shall be given notional continuity from the date of termination till the date of restoration for purpose of calculation of pensionary benefits. In normal circumstances period of unauthorised absence due to strike etc. constitute a break in service. Further Hon'ble the Supreme Court taking a lenient view in the matter has given the benefit of notional continuity implying thereby that the period of absence from the date of termination to the date of restoration would not constitute a break in service and the affected persons would be entitled to pensionary benefits for the service rendered prior to the date of termination. The Hon'ble Supreme Court has also directed the respondents to pay the employees compensation equal to three years salary inclusive the dearness allowances on the scale of the pay prevalent in the year 1990 and that the benefit shall be available even to those employees who have retired from service or died.
12. It may be mentioned that the IVth Pay Commission Recommendations were implemented w.e.f. 1.1.1986, the date on which the applicants services stood terminated. As per the Recommendations of the IVth Pay Commission, new pay scales were introduced from 1.1.1986. The applicants were drawing salary in the pre-revised scale on the date when their services were terminated. Before their restoration or deemed restoration to their respective post, the pay scales were changed. Seen in this view, the order of Hon'ble the Supreme Court implies that the compensation is to be paid in the revised scales made effective from 1.1.1986. The respondents have also revised the pay scales of the applicants and made payment accordingly. Initially, of course, the pay scales of the applicants were revised giving the benefits of the increments in the pre-revised scales and further allowed the benefit of the increments in the revised scale after due fixation for the period between the date of termination of service and the date of restoration. This was, however, corrected later on by withdrawing the increments afforded to the applicants for the period between termination of their services and their restoration. In the order of Hon'ble the Supreme Court, it is nowhere mentioned that the period between termination of service and re-instatement would be treated as duty and as such it cannot be inferred that the applicants are entitled to annual increments for the period in question. As a matter of fact increment is earned by discharging the duties for full 12 months. In the instant case when the applicants were not on duty nor Hon'ble the Supreme Court had ordered for the period to be treated as duty, the claim of the applicants for increments for the period in question is not tenable. It was a mistake on the part of the respondents to have allowed the increments initially which gave rise to over payment, consequent upon the fixation of the pay of the applicants.
13. The learned counsel for the applicants has argued that in the instant case the action of the respondents visited the applicants with civil consequences and no pre-decisional hearing was afforded to them, therefore, the impugned orders passed by the respondents deserve to be set aside. He has cited following rulings in support of his arguments:--
1. Sahib Ram v. State of Haryana and Ors., (1994) 28 ATC 747.
2. P.S. Jain v. Union of India, (1996) 34 ATC 579.
3. Shyam Babu Verma and Ors. v. Union of India and Ors., 1994 SCC (L&S) 683.
4. Bhagwan Shukla v. UOI and Ors., AIR 1994 SC 2480.
5. Divisional Superintendent E.R. Dinapur and Ors. v. L.N. Kashri and Ors., AIR 1974 SC 1889.
14. On the other hand, the learned counsel for the respondents submitted that as per the direction of the Hon'ble Supreme Court only notional continuity of service was required to be counted in respect of both the applicants but due to administrative mistake while working out the notional pay increment for the period the applicants remained terminated were inadvertantly added to the pay. Now re-fixation of the pay has been done keeping in view the principles laid down by the Hon'ble Supreme Court, therefore, affording pre-decisional hearing was of no avail to the applicants, In the instant case the mistake was of clerical nature which on discovery has been set-right by the re-fixation orders. Therefore, prior notice to the proposed action or pre-decisional hearing as claimed by the applicant was not at all required. The rulings cited by the learned counsel for the applicant are not applicable in the instant case.
15. We have considered the rival arguments. The rule propounded by the Hon'ble Supreme Court, in compliance of which the applicants were reinstated or deemed to have been reinstated to their posts has been quoted above. Hon'ble the Supreme Court has only directed for the notional continuity of service with no promotional benefits to any of the applicants. Therefore, it amounts to reading between the lines if arguments relating to adding annual increments in the pay is advanced in respect of period of notional continuity of service. When the applicants had not rendered any service to the department concerned and when they were even not paid for the intervening period, it is un-believable that they have earned increments during that period. Therefore, during the period of notional continuity of service increments cannot be taken into account and if by mistake in earlier order increments were added that can only be termed as clerical mistake subject to correction of discovery, therefore, in the instant case there was no need to give a pre-decisional hearing to any of the applicants.
16. We have also considered the argument relating to recovery of over payment and the rulings. In (1994) 28 ATC 747, on appointment on the post of Librarian pay of the incumbent was wrongly fixed and in these circumstances subsequent re-fixation of pay and recovery was held to be bad in law. In (1996) 34 ATC 579, orders of recovery in respect of excess payment after ten years were held to be bad in law. In 1994 SCC (L and S) 683, fixation of pay in the year 1973 was sought to be revised and reduced in the year 1984 w.e.f. 1973 was held bad in the eye of law. But in the instant case re-fixation of pay was done within months from the date of earlier pay fixation as per the clarification by the Railway Board. Likewise in AIR 1994 SC 2480, retrospective reduction of basic pay was held to be bad in law when the pay on promotion was fixed in 1970 and the pay was sought to be reduced retrospectively by way of fixation in the year 1991. In AIR 1974 SC 1889, reduction of pay of the applicant without notice was held illegal because the applicant was confirmed in the pay scale earlier. But in the instant case no such facts are involved. Thejudgment of the Jabalpur Bench of CAT rendered in CP No. 265/90 is not at all applicable in the instant case due to difference of facts.
17. In the instant case the pay fixation order was passed in October, 1993 and on clarification having been received from the Railway Board in the year 1994 re-fixation of pay orders were passed, therefore, there was neither any abnormal delay in passing the re-fixation order not the applicants had enjoyed the enhanced pay and other benefits thereof for a long number of years. Therefore, on the basis of above facts and rulings the applicants cannot claim a pre-decisional hearing or a prior notice to the proposed action. Arguments in this respect do not carry any force and are hereby rejected. In our view, in terms of the clarification given by the Railway Board, there is no bar to rectify a mistake committed by the Administration earlier.
18. In view of the above discussion, we do not find Annexures A/1, A/4 and A/5 of the O.A. No. 268 and Annexures A/1, A/2 and A/3 of O.A. No, 357/97 as illegal. The applications are thus devoid of any merit and deserves to be dismissed and arc hereby dismissed. Both the M.As. relating to condonation of delay and M.A. relating to vacation of slay order are disposed of accordingly. Orders granting interim stay arc hereby vacated.
19. The O.As. are accordingly disposed of with no order as to costs.