Bombay High Court
Union Of India, New Delhi Through ... vs Smt. Helen Elphic Joseph on 17 September, 2018
Author: M.G. Giratkar
Bench: B.P. Dharmadhikari, M.G. Giratkar
1709wp3620.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3620 OF 2017
(Union of India thr. Secretary, Ministry of Defence & Ors. vs. Smt. Helen Elphic Joseph)
_____________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders or directions Court's or Judge's orders.
and Registrar's Orders.
CORAM : B.P. DHARMADHIKARI &
M.G. GIRATKAR, JJ.
SEPTEMBER 17, 2018.
Heard Mrs. M.R. Chandurkar, learned counsel for the petitioners and Shri B. Lahiri, learned counsel for the respondent.
2. The judgment delivered on 23.09.2016 by the Central Administrative Tribunal (CAT) in O.A. No. 211/00119/2015 is assailed by the employer - Union of India and its officers before this Court. The contentions of Mrs. Chandurkar, learned counsel are, undertaking given by the respondent while accepting benefit of first M.A.C.P. and second M.A.C.P. have been ignored.
3. She argues that the error in fixation at that juncture is apparent and in this situation, could have been corrected. The finding that the pension is being reduced after superannuation is without looking at actual figure. She contends that when error at the stage of M.A.C.P. is corrected and thereafter benefits of A.C.P. are released, reduction in quantum is not that material. She further adds ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 01:37:15 ::: 1709wp3620.17 2 that law that in such situation pension cannot be reduced, is not properly applied. She is relying upon the judgment of the Hon'ble Apex Court in the case of High Court of Punjab & Haryana vs. Jagdev Singh, reported at (2016) 14 SCC 267. She points out that earlier judgment in the case of State of Punjab & Ors. vs. Rafiq Masih, reported at (2015) 4 SCC 334, is explained and applied by the Hon'ble Apex Court in this judgment.
4. Shri Lahiri, learned counsel does not dispute the judgment delivered by the Hon'ble Apex Court. He, however, states that facts before this Court are not same and CAT was not required to apply mind to it. According to him, alleged undertaking pressed into service before this Court is not an undertaking of the respondent at all. He further submits that after superannuation, when the petitioner sought benefit of ACP because it has been given to others, injustice done to the petitioner is accepted by the employer. The fixation after release of ACP will, therefore, automatically result in increase in pension, gratuity and other retirement dues. There cannot be any reduction in it.
5. After hearing the respective counsel, we find that the attention of the CAT was not invited to the aspect of undertaking. Generally undertaking is obtained at the time of each pay revision/ fixation. The effort of the respondent is to urge that the alleged document does not bear his signature at all. As the said undertaking was not produced before the CAT and the CAT had no occasion to look into ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 01:37:15 ::: 1709wp3620.17 3 that document or other admitted documents, we in this jurisdiction refrain ourselves from recording any finding in this respect. The scrutiny of the relevant provision is also essential to find out whether in the absence of such an undertaking, pay revision can be granted.
6. However, we find substance in the contention of both learned counsel that even if there is some error at M.A.C.P. stage and when thereafter ACP is released, the ACP may add and increase last pay drawn and, therefore, result in increase in the pension amount and other retiral dues. Again, this conclusion cannot be drawn finally as relevant pay-scales and exercise of fixation is not looked into in detail by the CAT. The CAT has found that after ACP is released, the pension of the respondent is reduced. We may also note here all effort of the learned counsel for the petitioners is to demonstrate that even if there be such reduction, it will not be relevant. She has also added that in suitable cases, to do complete justice, pension amount can also be reduced.
7. We find that all these cardinal aspects which may have bearing on the controversy are not looked into by the CAT. The judgment delivered by the Hon'ble Apex Court in the case of High Court of Punjab & Haryana vs. Jagdev Singh, (supra), could not be looked into by it.
8. We, therefore, quash and set aside the said order and restore the matter back to the CAT. The parties to ::: Uploaded on - 18/09/2018 ::: Downloaded on - 19/09/2018 01:37:15 ::: 1709wp3620.17 4 appear before CAT in the sitting commencing from 22.10.2018. The CAT shall permit the parties to amend their pleadings, to place necessary details on record and after hearing the parties, pass suitable orders.
9. Writ Petition is thus partly allowed and disposed of. However, in the circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
*GS.
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