Central Administrative Tribunal - Chandigarh
B.R. Madan vs Union Of India Through Secretary on 24 November, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.No.060/00023/2015 Orders pronounced on : 24.11.2015
(Orders reserved on: 02.11.2015)
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
B.R. Madan, Executive Engineer (Retd.), Electrical Division No. 3 (In the Electrical Wing of the Engineering Department), U.T. Chandigarh, resident of House No. 273, Sector 21-A, Chandigarh.
Applicant
Versus
1. Union of India through Secretary,
Ministry of Home Affairs, North Block,
New Delhi-110001.
2. Adviser to the Administrator,
Union Territory, Chandigarh Deluxe Building,
Sector 9, Chandigarh.
3. Secretary Engineering,
Chandigarh Administration,
Chandigarh Deluxe Building,
Sector 9,
Chandigarh.
4. Chief Engineer, Engineering Department, Chandigarh Administration, Chandigarh Deluxe Building, Sector 9, Chandigarh.
Respondents
Present: Mr. J.R. Syal, counsel for the applicant.
Mr. Aseem Rai, counsel the respondents.
O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)
1. The applicant has filed this Original Application challenging the order dated 18.11.2014 (A-12) vide which his claim for grant of ACP on the completion of 14 years of service has been rejected and to issue direction to the respondents to re-fix his pay by granting ACP in the pay scale of Rs.14300-18150 w.e.f. 1.1.1996 with arrears and re-fixation of pension etc.
2. The facts which led to filing of the instant Original Application are that the applicant was appointed as SDE (Electrical) on regular basis on 29.12.1976 and was promoted as Executive Engineer on 20.4.1992. His pay on revision of pay scales was fixed on 1.1.1996 in the pay scale of Rs.12000-15500 on Punjab pattern.
3. As per Punjab Civil Services (Revised Pay) (Fist Amendment) Rules, 1998, as amended for U.T. employees, pay of an Executive Engineer after 14 years of service, including service as SDE was required to be fixed in the pay scale of Rs.14300-18150. The applicant was entitled to this pay scale w.e.f. 1.1.1996 which has not been revised till date. As per Instructions of Punjab Government dated 17.4.2000 on Assured Career Progression Scheme including qua posts where direct recruitment was done in the existing pay scales of Rs.2200-4000 as on 31.12.1995. As per this Scheme, the ACP was to be allowed on completion of 4, 9 and 14 years of regular service. This decision has been made effect from 1.1.1996 in case of employees who have opted to get their pay fixed in revised pay scale from a date after 1.1.1996. AS per this scheme, the pay of the employees shall be fixed firstly in the revised pay scale in Col. No. 3 of the First Schedule against pre-revised Scale in Col. No. 2 thereof which he was drawing immediately before 1.1.1996 or the date opted by him in terms of the provisions contained in the Punjab Civil Services (Revised Pay) Rules, 1998. The employees shall then be placed in the higher admissible scale on completion of satisfactory service. The procedure for assessing the work and conduct, for placement in higher scale, was the same, as in promotion. The applicant was eligible for placement in pay scale of Rs.14300-18150 as on 1.1.1996 as nothing was pending against him as on 1.1.1996.
4. He was served with a charge memo dated 10.11.1997 for an act committed by him during 1989-1991 qua supervisory failure in store checking etc. The proceedings were concluded on 9.10.2007 by imposing of 5% cut in pension for one year, which too was quashed and set aside in O.A.No. 670-CH-2010 decided on 7.10.2011 as upheld in CWP No. 22502 of 2012 decided on 11.11.2012. In any case, it has to be taken that as on 1.1.1996 there was nothing against the applicant and as such there was no impediment in grant of relevant benefit to the applicant.
5. The claim of the applicant had been declined vide letter dated 28.7.2011. An identical claim had been allowed by this Tribunal in O.A.No. 405-CH-2004 Sadhu Singh Vs. Union of India & Others decided on 13.2.2006 of pay scale on completion of 14 years of service and revised arrears of pay, pension and retiral dues, thus, the applicant is also entitled to similar benefit. A legal notice served on 6.2.2013 on behalf of the applicant was also rejected vide letter dated 12.4.2013. Again, in pursuance of direction of this Tribunal in O.A.No. 527-CH-2013 to reconsider the case of the applicant, the respondent have passed order dated 18.11.2014 (A-12) rejecting the claim of the applicant. It is stated that an FIR No. 3 dated 26.10.1998 U/S 13 (1)(b)(c)(d) & 12 (2) of PC Act 1988 r/2 420, 120B IPC, was registered against the applicant and the applicant was acquitted of the charge on 12.12.2013. The criminal appeal filed by authorities is pending in the higher Court where there is no stay. The issue of cut in pension in disciplinary proceedings has been given q quietus burial as penalty imposed upon applicant had been quashed by this Tribunal in O.A.No.886-CH-2011 decided on 11.3.2013 and 670-CH-2010 decided on 7.10.2011. His plea is that as on 1.1.1996 there was nothing against the applicant and as such the respondents cannot rely upon cases / instances quoted by them which were initiated after 1.1.1996 and in most of them the applicant has been exonerated or the allegations have not even been enquired into etc. Hence the O.A.
6. The respondents have filed a reply. They have reiterated the facts relating to initiation of departmental proceedings vide charge sheet dated 30.5.1994 and 27.5.1994 which were clubbed on 10.11.1997 and exoneration of the applicant. The fact of criminal case is also mentioned by the respondents. They submit that benefit could be extended to only those whose entire service record was upto mark and as per them the entire service record has to be seen from the date of entry into service to the date of retirement. Since as on 1.1.1996, criminal as well as departmental proceedings were pending against the applicant and as such he cannot be granted the benefit.
7. The applicant has filed a rejoinder reiterating the submissions made in the Original Application.
8. We have heard learned counsel for the parties at length and examined the pleadings and submissions made at the bar by them.
9. The short issue involved in this case is as to whether the proceedings initiated against the applicant after 1.1.1996 can have any adverse effect on his promotion/grant of ACP benefit w.e.f. 1.1.1996, answer to which obviously is No in view of law on the subject and discussion made hereinafter.
10. The learned counsel for the applicant has placed reliance on Rule 2.2 (b) of the Punjab Civil Services Rules, Volume-II. The same provides that the departmental proceedings are deemed to have been instituted on the date on which the state of charges is issued to the officer or pensioner. The provisions reads as under: -
"2.2(b) The Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings, to have been guilty of grave misconduct or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement.
Provided that-
(1) such departmental proceedings, if instituted while the officer was in service whether before his retirement or during his re-employment shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner and as if the officer had continued in service. (2) Such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment,-
(i) shall not be instituted save with the sanction of the Government;
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings: and
(iii) shall be conducted by such authority and at such place or places as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal service could be made:
(3) such judicial proceedings, if not instituted while the officer was on duty either before his retirement or during his employment, shall be instituted in respect of an event as is mentioned in clause (ii) of proviso (2): and (4) The Public Service Commission shall be consulted before final orders are passed. Explanation: For the purpose of this rule-
(1) Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him or, if the officer has been placed under suspension from an earlier date, on such date; and (2) Judicial proceedings shall be deemed to have been instituted.-
(i) in the case of criminal proceedings, on the date on which the complaint is made or a challan is submitted to a criminal court;
and
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made to civil court.
None 1.- As soon as proceedings of the nature referred to in the above rule are instituted, the authority which institutes such proceedings should without delay intimate the fact to the Accountant General.
It is, thus, apparent that case of a person can be kept in sealed cover only when (i) Government servant is under suspension; (ii) When Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending. It is not in dispute at all that as on 1.1.1996 there was nothing against the applicant and the fitness or otherwise of the applicant was to be seen as on 1.1.1996 only by the DPC. The entire history of departmental as well as criminal case would show that all hell broke loose only after 1.1.1996. Thus, the applicant could not be denied promotion on the basis of incidents which took after 1.1.1996. In any case in two departmental proceedings he stands exonerated and in one criminal case only an appeal is pending. In the case of Union of India Vs. K.V.Jankiraman 1991 AIR 2010, it was held that the record on the date the DPC consideration comes about, determines the issue and anything adverse against the employee concerned surfacing thereafter cannot validly impede the implementation of the DPC consideration. A similar view was taken by their Lordships of Apex Court in Central Board of Direct Taxes Vs. Dr. O.N. Tripathi & Others (1991(1) SC 637).
11. An identical issue was thrashed out by a coordinate Bench of this Tribunal in O.A.No. 405-CHs-2004 Sadhu Singh Vs. Advisor to the Administrator on 13.2.2006 (A-8) in which the identical plea taken by applicant that prior to 1.1.1996 there was nothing against the applicant and as such he was entitled to relevant pay scale was allowed, holding inter-alia, as under :-
17. Moreover, the applicant cannot be discriminated as the respondents have already granted this benefit to Sh. Jagdish Mitter while granting him the pay scale of Rs.14,300-18,150 w.e.f. 1.1.1996 on his completion of fourteen years of service despite the fact that he has also been put under suspension for the same offence the applicant is facing charge-sheet therefore. Therefore, denial of said benefit to the applicant without assigning sufficient reasons would violate articles 14 & 15 of the Constitution of India. No other ground for such rejection has been taken by respondents.
18. In view of our detailed discussion of the matter as above, we hold the view that the applicant is entitled for actual placement for re-fixation of his pay in the scale of Rs.14,300-18,150 w.e.f. 1.1.1996, which has wrongly been denied to him by the respondents by misconstruing the provisions of clause 7 of the instructions issued by the respondents for grant of ACP Scheme (Annexure A-5) to be implemented on the basis of the recommendations of Fourth Punjab Pay Commission.
19. Having said so, the concerned respondents are hereby directed to re-fix the pay of the applicant accordingly and work out the details of the arrears to be paid to the applicant while passing appropriate orders to that effect. They are also directed to fix the pension of the applicant in view of the re-fixation of his pay scale accordingly with all consequential benefits. This entire exercise be carried out by the respondents within four months from the date of the production of a certified copy of this order.
12. We find that the case of the applicant is covered by the view taken in the case of Sadhu Singh (supra) and is disposed of in the same terms. The impugned order, Annexure A-12 dated 18.11.2014 is quashed and set aside. The respondents are directed to re-consider the case of the applicant and pass necessary orders granting relevant benefit to him in terms of the aforesaid decision within 4 months from the date of receipt of a certified copy of this order.
13. The parties are left to bear their costs.
(SANJEEV KAUSHIK) MEMBER (J) (UDAY KUMAR VARMA) MEMBER (A) Place: Chandigarh Dated: 24.11.2015 HC* 1 (O.A.No.060/00023/2015- B.R. Madan Vs. UOI)