Central Administrative Tribunal - Delhi
Shri Ram Niwas vs Union Of India on 24 September, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.26/2012 New Delhi, this the 24th day of September, 2012 CORAM: HONBLE DR. VEENA CHHOTRAY, MEMBER (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) 1. Shri Ram Niwas, (Emp. No.6969580), Civilian Motor Driver (OG), TPT Central Ordinance Depot, Delhi Cantt 110 010 2. Shri Bablu Ram (Emp. No.6969578), Civilian Motor Driver (OG), TPT Central Ordinance Depot, Delhi Cantt. 110 010 Applicants (By Advocate: Shri B.K. Barera) Versus 1. Union of India, Through Secretary, Ministry of Defence, South Block, New Delhi 110 001 2. Director General of Ordnance Services (OS-8C (II), Master General of Ordnance Branch, Integrated HQ of MOD (Army), Sena Bhawan, New Delhi 110 011 3. The Chief Record Officer, AOC Records, Pin-900453 C/o 56 APO 4. The Commandant, Central Ordnance Depot, Delhi Cantt.- 110 010 Respondents (By Advocate: Shri Satish Kumar) O R D E R
By Dr. Veena Chhotray:
The applicants are working as Civilian Motor Drivers in the Central Ordinance Depot, Delhi Cantt. under the Ministry of Defence. Through this OA, they are challenging the action of the respondents in withdrawing a higher pay scale granted to them since the year 1999/97 along with orders for recovery of excess amount allegedly paid to them. The impugned order dated 30.11.2011 is under challenge. This is the second round of litigation.
2. The OA seeks the following reliefs:-
a) quash and set aside the impugned Central Ordinance Depot letter No.3531/Docus/CMD/Estt/N1 dated 30-11-2011 (Colly) and directions to Respondents not to reduce the salary.
b) declare the action of the respondents in recovering the amount from the salary of applicants illegal and unsustainable in the eyes of law and directions to refund the amount already deducted.
c) pass such other or further order as this Honble Tribunal may deem fit, proper and necessary in the facts and circumstances of the case and in the interest of justice.
3. Shri B.K. Berara and Shri Satish Kumar would represent respectively the applicants and the respondents.
4. Briefly stated, the facts are that both the applicants had been appointed initially as Industrial Labour in Group D post, the applicant no.1 in the year 1992 and the applicant no.2 in the year 1989. This was in the then prevailing pay scale of Rs.750-970. After passing the Trade Test, they were promoted to the post of Truck Drivers w.e.f. 13.5.1999 and 18.2.1997 respectively. The pay scale for the post of Truck Driver at that time was Rs.800-1150 (4th CPC). However, after the implementation of the 5th CPC, they were allowed the pay scale of Rs.3050-4590. This was with effect from the dates of their promotion as Truck Drivers. It is the common stand that the post of truck driver has been treated as Lister Driver.
4.1 Subsequently, however, the respondents took the view that the aforesaid pay scale had been granted to the applicants erroneously. Accordingly, a show cause notice dated 15.3.2011 was issued, which became the subject of challenge in the OA 1722/2011, filed by the applicants earlier. Vide the Tribunals Order dated 11.5.2011, directions were given to the respondents to consider the reply submitted to the aforesaid show cause notice and take a decision, in the meanwhile no recoveries were to be effected.
4.2 In pursuance, the respondents, after considering the reply to the earlier show cause notice, passed a speaking order dated 12.8.2011 listing the facts justifying the reduction in the pay scale and the consequent recoveries (Annex. A/7). Written replies to these orders were submitted by both the applicants individually. After consideration thereof, the order dated 30.11.2011 has been passed by the respondents, which has been challenged in the instant OA.
5. The relevant extracts from the order dated 30.11.2011 are reproduced as under:
2. It is intimated that your reply to the Speaking order dt 12 Aug 2011 has been examined by Army HQ in the light of relevant instructions issued by Govt of India Min of Def from time to time. It is pointed out by Army HQ that you are mainly relying on Min of def letter dt. 20 May 2003 justifying grant of skilled pay scale of rs.3050-4590 from 13 May 99/18 Feb 1997. It is pointed out that Min of Def letter dated 20 May 2003 has to be read in conjunction with MoD letter No.1(2)/80/D(FCC/IC) dt 11 May 1983 notifying fitment of industrial workers of AOC in the pay scale recommended by 3rd pay commission. A perusal of Ser No 16 of Annexure 1 of MoD letter dt 11 May 1983 would reveal that classification of Lister Driver which carried the pay scale of Rs.210-290 (Pay scale admissible to semi skilled workers) has not been recommended for encashment. Further, Para 2 and 3 of Min. of Def letter dt 20 May 2003 clearly state that the Grade structure introduced shall be applicable only where posts are already in the skilled pay scale. Since the post of Lister driver continued to remain in Semi Skilled pay scale in the Min of Def letter dt 11 May 1983, the cadre restructuring introduced vide Min of Def letter dt 29 May 2003 would not be applicable to you. It is thus, evidently clear that you were allowed the pay scale of Rs 3050-4590 wef 13 May 99/18 Feb 97 prior to the date of your actual promotion as CMD (OG) due to wrong interpretation of Govt instruction which are required to be recovered from you.
6. The controversy in the present case has a very narrow compass i.e whether the grant of the pay scale of Rs.3050-4590 to the applicants as Truck Drivers, after the 5th CPC, has been correctly given or not? The Ministry of Defence Circulars dated 11.5.1983 and 20.5.2003 are relevant to the issue. As would be clear from a perusal of the aforesaid extracts, the applicants contention is that the grant of the pay scale in question is justified to them in accordance with the 2003 circular. However, the respondents have rebutted this claim and submitted that the 2003 Circular has to be read together with the 1983 Circular. Further, it is submitted by them that the former was applicable only for the skilled categories; whereas the Truck Drivers were semi-skilled category and hence were not covered under the benefits of 2003 Circulars.
7. The Circular dated 20.5.2003 (Annex. A/2) is on the subject of restructuring of cadre of Artisan Staff in the Defence Establishment. This is in partial modification of the recommendations of the 5th CPC. Under the restructuring, grade structure in the industrial as well as non-industrial trades of the Defence Artisan Staff was modified in three categories i.e. Skilled, Highly Skilled and Master Craftsman. In the lowest grade, a pay scale of Rs.3050-4590 was prescribed. This was made effective from 1.1.1996.
The applicants have been given the benefit of this pay scale as Skilled Artisan Staff. It is their claim that they fall in this category and had been given the scale justifiedly.
8. In support of their contention that the 20.5.2003 Circular is not applicable to the applicants, the respondents have relied upon the earlier Circular of 11.5.1983 (Annex R/1 to the additional affidavit filed by the respondents on 17.9.2012). By this Circular, the fitment of industrial workers was done in five scales of pay. For the Semi-Skilled category, the pay scale of Rs.210-290 was prescribed and for the Skilled category, the pay scale of Rs.260-400 was prescribed. Further in the Annexure enclosed along with the Circular, the various Job Groups had also been listed. At serial No.16 was the Job Group Truck Drivers with the post of Lister Driver. This was in the pay scale of Rs.210-290. Thus, on the basis of this Circular, the Respondents stand is that as Truck Drivers/Lister Drivers, the applicants were in the Semi-Skilled category, and hence they were not entitled for the higher pay scales granted by the 2003 Circular which was meant only for those in the Skilled category.
9. It would also be the submission of the learned counsel that the 5th CPC replacement scale for Truck Drivers/Lister Drivers would be 2650-4000 instead Rs.3050-4590. According to the learned counsel, the applicants had been granted the benefit of a higher scale erroneously by the Department, which now they could justifiedly correct.
10. It is also the stand of the respondents that the scale of Rs.3050-4590 would be entitled to the applicants on their promotion as CMD (OG) which falls in the Skilled category and which had taken place only in 2006.
11. After considering the averments on both sides and the material on record, we do not find the claim of the applicants about their entitlement to the higher pay scale of Rs.3050-4590 prescribed for the Skilled category posts as per 2003 Circular is a valid one and hence the respondents would be very much within their right to correct the mistake and fix the pay correctly. However, since the erroneous pay fixation in this case had admittedly be done due to wrong interpretation of the Circular on the part of the respondents themselves, without any misrepresentation or fraud on the part of the applicants, as per the settled law on the subject, the recovery of the amount already paid would not be permitted in law. This has been reiterated by the Honble Apex Court and the Honble High Courts in a catena of judgments.
12. Accordingly, we dispose this OA by partly allowing the prayer as per 8 (b) of the OA by directing the respondents not to recover any amount from the salary of the applicants and also to refund the amount already recovered. This is to be done within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray)
Member (J) Member (A)
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