Central Administrative Tribunal - Ernakulam
C V Puurushothaman vs E.S.I.C. on 4 October, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00464/2014
&
Original Application No.180/00962/2015
Wednesday this the 4th day of October 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
Original Application No.180/00464/2014
1 C.V.Purushothaman,
S/o.late C.C.Velayudhan,
Aged 69 years,
Retired Superintendent, Regional Office,
E.S.I.Corporation, Thrissur - 680 020.
Residing at Chithrai Chonkulangara House,
Ayyanthole, Thrissur - 680 003.
2. P.R.Panicker,
S/o.late Ayyappa Panicker,
Aged 78 years,
Retired Superintendent,
Regional Office, E.S.I.Corporation,
Thrissur - 680 020.
Residing at Chitra, 38/1111,
Silent Lane, Thrissur - 680 004.
3. Soumini.K.M.,
W/o.P.R.Panicker,
Aged 70 years,
Retired Superintendent, Regional Office,
E.S.I.Corporation, Thrissur - 680 020.
Residing at Chitra, 38/1111,
Silent Lane, Thrissur - 680 004.
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4. Leela.M.,
W/o.late N.Purushothaman,
Aged 74 years,
Retired Superintendent, Regional Office,
E.S.I.Corporation, Thrissur - 680 020.
Residing at Revathy, 38/1112,
Silent Lane, Poothole P.O.,
Thrissur - 680 004.
5. Achuthan Nair.K.,
S/o.late K.Sankunny Nair,
Aged 75 years,
Retired Superintendent, Regional Office,
E.S.I.Corporation, Thrissur - 680 020.
Residing at Sreeshailam, 21/587,
Aiswarya Nagar, Vennakkara (E),
Nurani P.O., Palakkad - 678 004.
6. P.K.Santhakumari,
W/o.Late P.Balakrishnan Nair,
Aged 75 years,
Retired Manager Grade II,
Local Office (Now Branch Office),
E.S.I.Corporation, Kozhikode.
Residing at Sreevalsam,
South Village, Perinkulam P.O.,
Alathur, Palakkad - 678 542.
7. K.R.Krishnan,
S/o.K.A.Raman,
Aged 70 years,
Retired Superintendent, Regional Office,
E.S.I.Corporation, Thrissur - 680 020.
Residing at Koppully House,
Ambalappad, P.O.Kundukad,
Thrissur - 680 028.
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8. M.Chandran Nair,
S/o.Late Narayana Pillai,
Aged 70 years,
Manager Grade II, Branch Office,
E.S.I.Corporation, Kayamkulam.
Residing at Chandra Bhavan, Podiyadi P.O.,
Thiruvalla - 689 110, Pathanamthitta District. ...Applicants
(By Advocate Mr.R.Sreeraj)
versus
1. The Director General,
Headquarters Office, E.S.I.Corporation,
Panchdeep Bhavan, C.I.G.Road, New Delhi - 110 002.
2. The Financial Commissioner,
Headquarters Office, E.S.I.Corporation,
Panchdeep Bhavan, C.I.G.Road, New Delhi - 110 002.
3. The Regional Director,
Regional Office, E.S.I.Corporation,
Panchdeep Bhavan, North Swaraj Round,
Thrissur - 680 020.
4. The Assistant Director (Finance),
Regional Office, E.S.I.Corporation,
Panchdeep Bhavan, North Swaraj Round,
Thrissur - 680 020.
5. The Joint Regional Director,
Sub Regional Office, E.S.I.Corporation,
Panchdeep Bhavan, Ashramam, Kollam - 691 002.
6. The Deputy Director (Finance),
Sub Regional Office, E.S.I.Corporation,
Panchdeep Bhavan, Ashramam, Kollam - 691 002.
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7. Union of India
represented by its Secretary to Government of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training,
New Delhi - 110 001. ...Respondents
(By Advocate Mr.T.V.Ajayakumar [R1-6])
Original Application No.180/00962/2015
K.Georgekutty,
S/o.Kunjukunju,
Aged 69 years,
Retired Manager Grade II, Branch Office,
E.S.I.Corporation, Adoor, Pathanamthitta.
Residing at G.K.Cottage, Vadakkedathukavu P.O.,
Adoor - 691 526, Pathanamthitta. ...Applicant
(By Advocate Mr.R.Sreeraj)
versus
1. The Director General,
Head Quarters Office,
Employees' State Insurance Corporation,
Panchdeep Bhavan, C.I.G.Road, New Delhi - 110 001.
2. The Regional Director,
Regional Office (Kerala),
Employees' State Insurance Corporation,
Panchdeep Bhavan, N.S.Round,
Thrissur - 682 001. ...Respondents
(By Advocate Mr.T.V.Ajayakumar)
These applications having been heard on 11 th September 2023, the
Tribunal on 4th October 2023 delivered the following :
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ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The applicants in O.A.No.180/464/2014 totaling 8 in number were working in the Employees' State Insurance Corporation (ESIC) in the cadre of Insurance Inspector (since redesignated as Social Security Officer-SSO/Manager Grade II/Superintendent). All of them had retired from service prior to 01.01.2006. At the time of retirement, all the applicants except the 2nd applicant, were in the 5th Central Pay Commission (CPC) scale of pay of Rs.5500-175-9000. The 2 nd applicant who had retired earlier, prior to 01.01.1996, had been in the 4 th CPC scale of pay of Rs.1640-2900. Similarly, in O.A.No.180/962/2015 the applicant is a retired Manager Grade II of the ESIC, who had retired from service prior to 2006, on 30.09.2005.
2. The applicants in the two O.As have filed the OA's aggrieved by the denial of scale of pay of Rs.6500-200-10500 to them, which has also resulted in denial of Grade Pay (GP) of Rs.4600/- attached to the cadre of Insurance Inspector (SSO)/Manager Grade II/Superintendent) as well as denial of monthly pension and other pensionary benefits on the basis of emoluments in the pre-revised scale of pay of Rs.7450-11500. Their -6- contention is that the scale of pay of Insurance Inspector (Social Security Officer)/Manager Grade II/Superintendent) had been upgraded to Rs.6500-10500 notionally with effect from 21.04.2004 and with monetary effect from 01.10.2007 by the ESIC vide its letter dated 24.10.2007, which has been produced at Annexure A-1 in O.A.No.180/464/2014. It is submitted that the Government of India initially, while implementing the recommendations of the 6 th CPC, had granted the Pay Band (PB)-2 Rs.9300-34800 plus GP of Rs.4200/- as the replacement of the existing scale of pay of Rs.6500-10500 with effect from 01.01.2006. The ESIC had also extended the same to its employees and, thus, the Insurance Inspector (Social Security Officer)/Manager Grade II/Superintendent) in the ESIC had been placed in the PB-2 with GP Rs.4200/- with effect from 01.01.2006. A letter issued by the ESIC dated 11.09.2008 in this connection is produced at Annexure A-2. It is submitted that the letter of the ESIC at Annexure A-2 had placed the employees in the category of Insurance Inspector (Social Security Officer)/Manager Grade II/Superintendent) in a 'predicament' as Head Clerks, who are their subordinates, also got placement in the same PB with same GP due to the merger of the scales of pay of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500. Since this had happened in the -7- Government of India as well to employees, the well known O.M of 13.11.2009, a copy of which has been produced at Annexure A-3 in O.A.No.180/464/2014, was issued for getting over the anomalous situation. By this O.M, it is submitted that the erstwhile scale of pay of Rs.6500-10500 was upgraded, as per the applicants, to Rs.7450-11500 and the GP of Rs.4600/- in PB-2 was also allowed to those who were drawing Rs.6500-10500 prior to 01.01.2006. Following this it is submitted that the ESIC allowed the GP of Rs.4600/- to the category of Insurance Inspector (Social Security Officer)/Manager Grade II/Superintendent) notionally with effect from 01.01.2006 and with monetary effect with effect from 01.10.2007.
3. It is to be noted that all the above steps taken by the ESIC were in respect of the actual employees serving in the ESIC at the relevant period of time. However, in relation to the pre-2006 pensioners, it is submitted by the applicants that the Government of India by its O.M dated 01.09.2008 had revised the pension of the pre-2006 pensioners at the rate of 150% of existing pension. Pursuant to that, revised PPOs were issued by Pension Disbursing Officers to the pre-2006 pensioners, including the applicants herein. The copies of the revised PPOs received by some of -8- the applicants has been produced in O.A.No.180/464/2014 as the Annexure A-4 series. Later, another O.M was issued by the Government of India on 28.01.2013 attaching a revised concordance table of the pre- 1996, pre-2006 and post-2006 pay scales/pay bands indicating the pension/family pension payable to facilitate payment of revised pension/family pension. The said orders communicated in this O.M were to take effect from 24.09.2012. A copy of the O.M dated 28.01.2013 has been produced at Annexure A-5 in O.A.No.180/464/2014.
4. The applicants submit that on the basis of the above Government of India O.M dated 28.01.2013 at Annexure A-5, the Deputy Director (Finance), Sub Regional Office (SRO), ESIC in Ernakulam apparently revised the pensions of Insurance Inspector (Social Security Officer)/Manager Grade II/Superintendent) who retired prior to 01.01.2006, allowing them a minimum pension as Rs.9230/- and family pension as Rs.5538/-. The payments as per the revised rates were made from May, 2013 onwards and had apparently continued without objection until the filing of the OA. In this connection, to prove this assertion the applicants in O.A.No.180/464/2014 have produced a copy of the revised PPO of one of the retired employees under the Sub -9- Regional Office, Ernakulam, one Shri.K.C.Mathai, at Annexure A-6. The applicants point out that the revised pension being drawn by their retired SRO, Ernakulam colleagues is much higher than them. Hence, as the pension being drawn by the retired colleague vide Annexure A-6 was higher than that being drawn by him, the 1 st applicant requested the Regional Director, ESIC Kerala under whom the Sub Regional Offices at Ernakulam and Kollam are located to revise his pension, accordingly, in a meeting of pensioners conducted on 18.12.2013 at Thrissur. The 1 st applicant also claimed a pension Rs.9230/- as allowed by the Joint Regional Director at Ernakulam Sub Regional Office. It appears that the administration only orally informed the 1 st applicant that the Regional Director was not aware of any such development.
5. Later it appears that the 1st applicant submitted a detailed representation to the Regional Director, Kerala requesting him to act as per the Government of India O.M dated 28.01.2013, vide his representation produced at Annexure A-7. It appears that this representation was forwarded by the Regional Office at Thrissur to the Director General in the Headquarters of the ESIC at New Delhi, but that there was no immediate response. However, later, vide letter dated -10- 07.03.2014, the Regional Office, Thrissur endorsed to the 1 st applicant a copy of the Headquarters Office letter dated 07.03.2014 addressed to the Regional Director, ESIC, Thrissur, Kerala. A copy of this letter is produced at Annexure A-9. The letter directs the Regional Office, Kerala to revise pension if required as per the Government of India O.M dated 28.01.2013 which stipulates that 'the pension of pre-2006 pensioners would be stepped upto 50% of the sum of minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired.' It is submitted that similar representations were given by all the other applicants and some similar replies were received by some of them. Meanwhile, the 8 th applicant in O.A.No.180/464/2014, who was receiving pension from the Sub Regional Office, Kollam was informed that his minimum pension was Rs.8145/-. Since he was drawing more than that, hence no change was contemplated. Initially he had been issued with a revised PPO stating that the minimum pension admissible in his case was Rs.7125/-. In other words, he was told by Annexure A-11 letter that his present rate of pension i.e., Rs.8235/- was 'above the minimum pension' and hence no further revision or re-fixation was applicable.
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6. It is submitted by the applicants in O.A.No.180/464/2014 that the same Government of India O.M dated 28.01.2013 at Annexure A-5 were thus interpreted in three different ways, within the Kerala Region, which is as follows :
(a) A minimum pension Rs.9230/- paid by SRO, Ernakulam.
(b) A minimum pension Rs.8145/- paid by SRO, Kollam.
(c) A minimum pension Rs.7215/- paid by RO, Thrissur.
In these circumstances the applicants have now come before this Tribunal to get their pension revised to a minimum of Rs.9230/- and family pension to Rs.5538/-. According to them, this is due to them in the light of the Government of India's O.M dated 28.01.2013 from 01.01.2006 onwards with arrears from 24.09.2012. At this stage, this Tribunal observes, in passing, that three different amounts of pension being paid by three different sub-regional offices of the ESIC within the same Regional Office located at Thrissur to similar classes of pre-2006 pensioners in the ESIC is not very surprising in the light of our observations in OA 180/174/2015 and connected matter dated 08.03.2023, details regarding which will be presented later. To an extent it gives a general impression that the ESIC functions like an independent -12- functional entity with further devolution of powers to even a lower level offices to illogically and arbitrarily fix pay/pension at will. We are not pressing this point any further at this stage except for noting that this phenomenon was taken note of in our earlier orders as well.
7. The respondents have filed a reply statement in OA 180/464/2014 submitting that the O.A is not maintainable either in law or on facts. It is noted by them that the applicants had filed the O.A praying that the refusal on the part of the respondents to enhance the basic pension of the applicants to Rs.9230/- and family pension to Rs.5538/- from 01.01.2006 with arrears from 24.09.2012 onwards as mandated by the Annexure A-5 O.M dated 28.01.2013, and as was done by the Sub Regional Office, Ernakulam is illegal, arbitrary, unjust, unreasonable and irrational. The prayer in the OA is to direct the respondents to reconsider the matter and revise the PPO orders of the applicants and grant them the minimum basic pension of Rs.9230/- and family pension of Rs.5538/- from 01.01.2006 with arrears from 24.09.2012. It is submitted by the respondents, that the contentions raised are misleading and unsustainable in law. It is submitted that all the applicants are pensioners of the ESIC who had retired from the cadre of Insurance Inspector (Social Security -13- Officer)/Manager Grade II/Superintendent) on different dates prior to 01.01.2006. They were drawing pay and allowances as per the relevant scale of pay in force in that period, as indicated at paragraph 6 of the reply statement. From the information provided at paragraph 6 in the reply statement all the applicants, except for the 2 nd applicant, were drawing the scale of pay of Rs.5500-175-9000 at the time of retirement. The 2nd applicant had been drawing the scale of pay of Rs.1640-2900/- at the time of his retirement. The corresponding scale of pay/Pay Band as on 01.01.2006 for the scale of pay drawn by the pre-2006 pensioners was PB2 Rs.9300-34800 under the 6 th CPC. As per this the minimum pension payable as on 01.01.2006 as per the fitment table came to Rs.7215/- in the cases of all the applicants. The actual existing pension drawn by the applicants would vary as per the length of service and other factors. This was between Rs.7244/- in the case of the 8 th applicant to Rs.8729/- in the case of the 6th applicant.
8. It is evident according to the respondents that the pension of the pre-2006 pensioners as revised with effect from 01.01.2006 in terms of paragraph 4.1 or paragraph 4.2 of the O.M of the Department of Pensions & Pensioners' Welfare dated 01.09.2008 had been further -14- stepped up as per the Annexure A-5 O.M dated 28.01.2013, which had revised the pension of the pre-2006 pensioners with effect from 01.01.2006. As per this O.M their pension was stepped up to 50% of the sum of minimum of the pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which the pensioners had retired as arrived at with reference to the fitment table annexed to the O.M dated 30.08.2008 mentioned therein. From the details provided it is clear that the minimum pension payable to these applicants as on 01.01.2006 as per the fitment table was Rs.7215/- and the existing pension being paid to them was varying from Rs.7244/- to Rs.8729/- as per length of service and other factors. Further, it was evident from the details that all the applicants were drawing an amount of pension more than 50% of the sum of the minimum pay in the pay band and the grade pay corresponding to the pre-revised pay scale from which they had retired, as stipulated in the Annexure A-5 O.M dated 28.01.2013. The revised concordance table attached with the Memorandum of the pre- 1996, pre-2006 and post-2006 pay scales/pay bands had indicated the pension/family pension payable under these provisions to facilitate payment of revised pension/family pension. Based on this table, the respondents had calculated the pension of all pre-2006 pensioners and -15- have found that the applicants are drawing more than the pension payable as per the fitment table and had, thus, decided that the revision was not required in their cases.
9. It is submitted that the Annexure A-5 O.M dated 28.01.2013 of the Government of India is applicable to all the pre-2006 pensioners of the ESIC. The pension of Shri.K.C.Mathai, as indicated by the Annexure A-6 revised pension payment order, has thus to be examined according to the fitment table in case a wrong fixation has been done. The respondents point out that in sum the applicants are demanding fixation of pension with reference to the minimum pension corresponding to the pre-revised scale of pay of Rs.7450-11500 ie., PB2 Rs.9300-34800 with GP of Rs.4600/-. This is a pay of Rs.13860/- + Grade Pay Rs.4600/- = Rs.18460/- divided by 50% which equals to Rs.9230/- as the pension. In the case of family pension it will be (Rs.13860/- + Rs.4600/-) x 30% = Rs.5538/-. However, they are not entitled to the same. It is submitted by the respondents in their reply statement that pension is to be revised taking into account the scale of pay in which the applicants had retired, corresponding to the 6th CPC Pay Band/Scales. Sl.No.11 of the concordance table shows that Rs.5500-175-9000 corresponds to PB-2 -16- Rs.9300-34800 with Grade Pay Rs.4200/-. In other words, as revealed earlier, the minimum pension of Rs.9230/- which is being sought for by the applicants is applicable to those retirees in the pre-revised pay scale of Rs.7450-225-11500, which corresponds to PB-2 Rs.9300-34800 with Grade Pay Rs.4600/- at Sl.No.14 of the concordance table. Further, the pension granted by the SRO, Kollam of Rs.8145/- is applicable to those retirees in the pre-revised scale of Rs.6500-200-10500, which is at Sl.No.12 & 13 of the table.
10. It is clarified by the respondents that all the applicants, except the applicant at No.2, had been drawing the scale of pay of Rs.5500-175- 9000 at the time of their retirement. The 2 nd applicant retired from service prior to 01.01.1996 while drawing the scale of pay of Rs.1640- 2900, which in turn corresponds to the scale of Rs.5500-175-9000. Therefore, they are all only entitled to the minimum pension of Rs.7215/- family pension of Rs.4329/- in terms of the Annexure A-5 memorandum. In other words, the respondents have practically admitted that some of their own Sub Regional Offices under the R.O., Trichur had made mistakes in fixing the pension of the pre-2006 pensioners working under them. They are in no way entitled to revise the pension to minimum of -17- Rs.9230/- family pension to Rs.5538/- with reference to the concordance table which is linked to the pre-revised pay scale of Rs.7450-11500, as they were not drawing this pre-revised pay scale.
11. It is submitted by the respondents that the wrong revision done in other cases would have to be rectified and the pension would have to be re-fixed. The aforesaid pension of Rs.9230/- paid by the SRO Ernakulam to similarly situated pensioners has thus been done erroneously. It is submitted that when the ESIC Headquarters had found this fixation of pension of the pensioners attached to SRO, Ernakulam to be not in accordance with the instructions of the relevant O.M of the Government of India, a direction had been issued to the Joint Director In- charge, ESIC SRO, Ernakulam, vide letter dated 20.10.2014, to ensure that the pension of pre-2006 pensioners was fixed in accordance with the Annexure A-5 O.M dated 28.01.2013 and the O.M dated 13.02.2013 of the Department of Pension and Pensioners' Welfare of the Government of India. It was also directed to submit the action taken report to the Headquarters within one month from the date of receipt of the letter under intimation to the Regional Office, Thrissur. Accordingly, the Assistant Director (Finance) of the ESIC Sub Regional Office, -18- Ernakulam has since issued appropriate orders revising the pension of the pensioners who were granted the higher pension erroneously. Pursuant to the letter issued by the Headquarters, the Assistant Director (Finance) of the SRO Ernakulam issued a letter on 23.03.2014 to the aforementioned pensioner Shri.K.C.Mathai, informing him that the pension revised by the Sub Regional Office was erroneous and was to be revised. Accordingly, the revised pension order dted 20.11.2014 has since been issued. This has also been produced along with the reply statement at Annexure R-1(b) and Annexure R-1(c) respectively. As per the Annexure R-1(c), revised pension payment order, the revised basic pension is shown as Rs.8393/- and as per the Annexure R-1(b) it has been further intimated that due to the later correction of the revision of pension an amount of Rs.40210/- has been identified as being paid to Shri.K.C.Mathai in excess. Further, Shri K.C. Mathai had been directed to refund the amount immediately. Similar steps have been taken in respect of other employees under the SRO, Ernakulam.
12. In the above circumstances, it is contended by the respondents that the main contentions of the applicants about the fixation of pension by the SRO, Ernakulam at a higher rate of Rs.9230/- and refusal by the -19- respondents to give the same rate to them is no longer sustainable, since the pension has since been revised, as is evident from the details produced at Annexure R-1(a) to (e) in the reply statement. In other words the recommendations made in Annexure A-5 O.M have now been implemented in the correct manner in letter and spirit and pension revision has been done considering the pre-revised scale of pay drawn by the applicants at Rs.5500-175-9000 at the time of retirement. The revised minimum pension of Rs.8145/- or Rs.9230/- which is applicable to pre-revised scale of Rs.6500-200-10500 and Rs.7450-225-11500 (Sl.No.12, 13 & 14 of concordance table) respectively, is not applicable in the case of applicants as they were not in those pre-revised scales at the time of retirement. In case any revision has been done on the basis of the said scales, the same is incorrect and is liable to be reviewed or cancelled. Thus their claim of revision of pension corresponding to Rs.7450-225-11500, taking into account a pay scale which was not applicable in their case in the pre-revised pay structure, is unfounded and unsustainable for all these reasons detailed above. Hence it is submitted that there is no merit in the O.A and it deserves to be dismissed.
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13. In O.A.No.180/464/2014 the respondents have submitted the reply statement as detailed above. However, it should be noted that in O.A.No.180/962/2015 there has been no reply statement filed nor any further pleadings furnished by the respondents. Presumably however, they would go by the same contentions given above in O.A.No.180/464/2014 with respect to the prayer of the applicant in the said O.A.No.180/962/2015. Further, as indicated earlier, a linked matter in relation to the fixation of pay of serving employees of the ESIC who had claimed the higher pay scales and Grade Pay based on the pay scale of Rs.7450-225-11500 had been examined by this Tribunal and this very Bench in O.A.No.180/174/2015 along with O.A.No.180/1058/2013, O.A.No.180/291/2015, O.A.No.180/312/2017, O.A.No.180/337/2018, O.A.No.180/349/2018, O.A.No.180/325/2018, O.A.No.180/520/2018 & O.A.No.180/518/2018. The Tribunal had passed an order dated 08.03.2023 in these matters. The applicants in the above O.As were employees of the Corporation posted at the same level of Insurance Inspector (Social Security Officer)/Manager Grade II/Superintendent), similar to the posts of the retired applicants herein. They had filed the said O.As against the Memorandum issued by the Director General, ESIC which had declared that the fixation of pay in the pre-revised scale -21- of pay of Rs.7450-225-11500 in respect of Social Security Officers (SSOs') promoted between 01.01.2006 and 31.08.2008 was invalid. This Memorandum had also stated that the fixation of pay by certain offices of ESIC in respect of SSOs' in the pre-revised scale of Rs.7450-11500/- had not been duly considered and approved. Instead, it was indicated that the ESIC (HQ) had upgraded the pay scale of SSO's from Rs.5500-9000/- only to the scale of Rs.6500-10500/- and not to the Rs.7450-11500/- scale.
14. The above decision of the ESIC had been hotly contested by the applicants in the above O.As. After examining the matter in some detail this Tribunal had dismissed the O.As finding that the fixation of the pay of the employees of the ESIC in the posts of Insurance Inspectors (SSO)/Branch Manager Grade II/Office Superintendent in the pre-revised scale of pay of Rs.7450-11500/- was not correct. The Corporation was allowed to continue its steps to cancel the same wherever it has been so given, as well as to recover the excess payment from the employees concerned. However, this recovery was made subject to the provisions of law laid down by the Hon'ble Supreme Court in State of Punjab & Ors. vs. Rafiq Masih (White Washer) etc. & Ors., 2015 (4) SCC 334 -22- read with concerned O.M of DoP&T in this regard. While arriving at this conclusion the Tribunal had relied on certain considerations which have been outlined in detail at paragraph 26 and 27 of its Order in O.A.No.180/174/2015 and connected cases as below :
"26. We have carefully considered all the contentions and have also seen the documents provided. The stand taken by respondents is clear. They maintain that the issue of Annexure A-1 dated 21.03.2018 is only a correction of a mistake done by them earlier. In so doing this they are backed by the O.M's of the Government of India as well as the observations of the CAG. After due consideration this Tribunal is also of a similar opinion. We too find that there was a mistake done in the fixation of pay of the applicants in the scale of pay of Rs.7450-11500/- which is now sought to be corrected through the issuance of Annexure A-1 O.M. The only remaining issue in this connection is for the respondents to consider how the directions of the Hon'ble Supreme Court in the matter of Rafiq Masih (supra) are properly implemented. Though the learned counsel for the Corporation submitted that the provisions of Rafiq Masih (supra) are not attracted as the recovery notice vide Annexure A-1 had been issued within the five years period prescribed under condition at Paragraph 12(iii) of the Hon'ble Supreme Court's judgment, we are not entering into this aspect at this stage. We would only broadly confine our direction to the extent that the ESIC may examine the matter relating to recovery in terms of the directions of the Hon'ble Supreme Court in Rafiq Masih (supra) as well as the concerned O.M of the DoP&T in this regard. The condition at Paragraph 12 (iii) of Rafiq Masih (supra) has certain provisions regarding recovery from employees when the excess payment has been made for a period in excess of five years before the order of recovery is issued. We also note the assurance of the ESIC that the -23- applicants will not get any amount which is less than that which is being given to the direct recruits appointed on or after 01.01.2006.
27. While issuing the above directions we have certain additional observations in this regard about the issue in general. It may be noted that O.A.No.180/325/2018 along with O.A.No.180/337/2018 and O.A.No.349/2018 relate to ESIC employees who had been promoted between 01.01.2006 and 31.08.2008. O.A.No.180/174/2015 relates to a retired employee/(since dead) who had been promoted prior to 01.01.2006. O.A.No.180/291/2015 and O.A.No.180/312/2017 also pertains to those ESIC employees/retirees promoted between 01.01.2006 and 31.08.2008. The O.A.No.180/1058/2013 is filed by employees/retired pensioners who had been promoted prior to 01.01.2006. The O.A.No.180/518/2018 also related to employees etc., who had been promoted between 01.01.2006 and 31.08.2008. We have also delinked two other O.As on the request of the learned counsel for the applicant therein as they relate to pre-2006 retired employees/pensioners. However, the basic issue in all the cases is the same as to whether SSO's (Insurance Inspectors)/Managers Grade II/Office Superintendents of ESIC are entitled to get their pay upgraded from the pre- revised scale of pay of Rs.6500-10500/- to the pre-revised scale of pay of Rs.7450-11500/- as on 01.01.2006 in Pay Band PB-2 (Rs.9300-34800/- with Grade Pay Rs.4600/-) or not? We have concluded that they are not entitled to this fixation. We have relied on the O.M's of the Ministry of Personnel, P.G And Pensions as well as the Ministry of Finance while arriving at this conclusion. In addition, the Comptroller & Auditor General (CAG) has also pointed out the mistakes in these cases. We had noted that the Annexure A-5 O.M was issued by the Regional Office granting the upgraded pre-revised pay scale without a reference in the order to any representation or any instructions except the last instruction issued more than three years prior to the O.M produced at Annexure A-3. To -24- us it is quite clear that the ESIC, therefore, has been changing its stand at its Regional as well as Headquarters level in relation to who can be granted the enhanced pay scales at different points of time. Thus the respondents have created much of the confusion which could have been avoided. "
(under lining added)
15. It may be noted that at paragraph 27 of the above order reference was made to the two O.As (presently being considered herein) which have been delinked on request of the learned counsel for the applicants as they related to pre-2006 retired employees/pensioners. In addition to this, in paragraph 28, this Tribunal noted that the ESIC always had a hierarchy of posts in the three pre-revised pay scales of Rs.5000-8000/-, Rs.5500-9000/- and Rs.6500-10500/-. There had been no merger of these posts which had existed separately in these pay scales, as was pointed out in the table furnished by the respondents in their reply statement in those OAs'. Hence, in ESIC, it was noted in our common order that the functional hierarchy of feeder and promotional cadres were always kept separate. Thus, no justification for grant of the higher pay scales of Rs.7450-11500/- had been given at any stage. We should also note that in the common order dated 08.03.2023, reference was also made by this Tribunal to the direction of the Hon'ble Apex Court in Chandi Prasad Uniyal & Ors. vs. State of Uttarakhand & Ors., (2012) 8 SCC 417, -25- wherein, the Hon'ble Supreme Court at paragraph 14 had expressed its concern with the excess payment of public money which is often described as "taxpayers' money" which belongs neither to the officers who have effected overpayment nor to the recipients. It was observed by the Hon'ble Apex Court that payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Such payments can always be recovered, it was held. Further, it was held in Union of India & Ors. vs. Hiranmoy Sen & Ors., 2007 (8) Supreme 23, that it was entirely on the Government and the authorities to fix the pay scales and to decide whether the pay scale of post B should be increased or not. It was further held that pay fixation being purely executive function, Court cannot fix pay scales.
16. We are detailing the above common order of this Tribunal and the findings of the Hon'ble Supreme Court as we feel that they are relevant in this case, especially in the context of how different Sub Regional Offices within the same Kerala Region, had fixed the pension of pre-2006 employees in different ways. As was noted in our common order dated 08.03.2023 in the O.A.No.180/174/2015 and connected cases, neither the -26- Regional Office nor the Headquarters Office produced any document in the said O.As' to show whether any effort was made to sort out the confusion created by different authorities in these issues. It was also noted that apparently no clarification was sought from the concerned nodal departments like the Department of Personnel & Training (DoP&T) or the Ministry of Finance (Department of Expenditure) in relation to the applicability and interpretation of the O.M dated 13.11.2009 which has also been produced in the present O.A.No.180/464/2014 at Annexure A-3. Hence, we must here too take very adverse notice of the system that exists within the ESIC which allows even lower entities such as SROs to arbitrarily fix pensions of the pre-2006 employees. In fact, even now a this stage, the ESIC should examine whether action can be taken in the light of the Hon'ble Supreme Court orders in Chandi Prasad Uniyal (supra) to adequately penalise those who had taken this decision and fixed the wrong pension without reference to the higher authorities and without approval. Further, it is hoped that the ESIC systems have since improved so that such errors are not repeated in future.
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17. In sum, therefore, drawing from our findings in O.A.No.180/174/2015 and connected cases which had turned down the grant of the pay scale of Rs.7450-11500 even to the existing employees post 01.01.2006, there is no case that the pre-2006 retired employees like the applicants in these two O.As can also claim the same or be entitled to the fixation of their pension at the rate of Rs.9230/- with effect from 01.01.2006. We have also considered the points made by the respondents which are also backing this conclusion by us. Further, the conclusion is further underlined by another aspect which we had considered in our orders in O.A.No.180/174/2015 and connected cases. This is the fact that the Department of Pension and Pensioners' Welfare of the Ministry of Personnel, Public Grievances and Pensions had issued an O.M dated 04.01.2019 in relation to the revision of pension with effect from 01.01.2006 of pre-2006 pensioners who had retired from the 5th CPC scale of pay of Rs.6500-10500. This O.M had been produced in one of the cases under consideration in O.A.No.180/174/2015 and connected cases in O.A.No.180/325/2018. In the reply statement filed by the respondents therein, at Annexure R-1(c), a copy of the said O.M.No.38/33/12-P&PW(A) dated 04.01.2019 of the Ministry of Personnel, Public Grievances & Pension, Department of Pension & -28- Pensioners' Welfare had been produced. As per this O.M., that the Grade Pay of Rs.4600/- can be considered as Grade Pay corresponding to pre- revised pay scale of Rs.6500-10500 and it may be considered as the Grade Pay in the case of pre-2006 pensioners, who have retired/died in the 5th CPC scale of Rs.6500-10500 or equivalent pay scale in the earlier Pay Commission periods (paragraphs 5 & 6). This OM also seems to go against the case of the applicants, herein, who had all retired in the pay scale of Rs.5500-9000 and, hence, are entitled to the Grade Pay of Rs.4200/-. Hence, in the light of this O.M., it is clear, especially from paragraphs 5, 6 & 7, that these applicants- pensioners are neither entitled to the Grade Pay of Rs.4600/- as is being claimed by them with effect from 01.01.2006 in the pre-revised pay scale of Rs.7450-11500 and nor for minimum basic pension of Rs.9230/- and family pension of Rs.5538/-. Hence, on these grounds, too the claim of the applicants herein is liable to be rejected.
18. Before parting there is another issue which needs to be also clarified. The orders of this Bench of this Tribunal in O.A.No.180/174/2015 and connected cases were sought to be reviewed by the applicants, therein, who had filed Review Applications (R.A) in -29- each of the said O.As. This was disposed of by orders of this Tribunal dated 17.07.2023 in the R.A.No.180/10/2023, R.A.No.180/11/2023, R.A.No.180/12/2023, R.A.No.180/13/2023, R.A.No.180/14/2023, R.A.No.180/15/2023, R.A.No.180/16/2023, R.A.No.180/17/2023 and R.A.No.180/22/2023 arising from the O.As indicated above. The R.As were primarily dismissed by this Tribunal holding that none of the grounds mentioned in the R.As can be considered in the light of the decision of the Hon'ble Supreme Court, in relation to the scope of review permissible under the Administrative Tribunals Act, 1985. In this connection as a further explanation we note that the basic ground for filing the R.As was that this Tribunal in its orders dismissing the O.A.No.180/174/2015 and connected cases, had basically put reliance on materials produced at Annexure R-1(a) and Annexure R-1(c) of the O.A.No.180/325/2018 by the respondents along with their reply statement. As was noted earlier in the paragraph 17, the said Annexure R-1 (c) referred to by the Review Applicants is the O.M of the Department of Pension & Pensioners' Welfare (DoPPW) dated 04.01.2019 we wish to clarify once again a reference to this OM was made only in general terms in our orders in O.A.No.180/174/2015 and connected cases. We also wish to clarify that our common order was -30- passed based on a full appreciation of the situation in the ESIC especially the hierarchical nature of the posts that existed in relation to the three pre-revised pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500- 10500. Thus, unlike what was averred in the R.A, no reliance was placed on the said DoPPW O.M while arriving at the findings in our common order in O.A.No.180/174/2015 and connected cases. The order was passed purely on merit of the facts that were existing in the ESIC, which did not allow an upgradation to the higher scale of pay of Rs.7450- 11500, as claimed by the applicants therein. Further this Bench also had not 'banked' on the O.M produced at Annexure R-1(a) of the Government of India, as was stated in the R.A. That O.M dated 28.09.2018 No.8- 23/2017-E.IIIA of the Department of Expenditure, Ministry of Finance was only in reference to the fixation of entry level pay for direct recruit appointees on or after 01.01.2006 and the pay fixation in the case of persons other than direct recruits. We reiterate that these observations are only being made by us here in passing, as we have already dismissed the R.A, albeit mainly on the ground that the Hon'ble Supreme Court directions in the matter of scope of review under the Administrative Tribunals Act, 1985 had not been fulfilled therein. -31-
19. Hence, with the above observations and considerations, we conclude that there is no case made out by the applicants for any of the reliefs sought for by them in the two O.As'. Their pensions have been properly revised and wherever there had been a mistake committed by the ESIC, presumably further steps have been taken in order to correct the same in line with the correct interpretation of the office memorandums. Accordingly, we reiterate that the respondents have now correctly fixed/ revised the pension of the applicants, considering that they were drawing the pre-revised scale of pay of Rs.5500-9000 at their time of retirement. The revised minimum pension of Rs.8145/- or Rs.9230/- which is linked to the pre-revised scale of Rs.6500-10500 and Rs.7450-11500 (Sl.No.12, 13 & 14 of the concordance table) is not applicable to them in their cases, as they were not in these pre-revised scales at the time of retirement. Again, it is presumed that in case any revision has been done contrary to this, the same has since been cancelled. Further, as we had observed earlier, the ESIC needs to improve its system in order to see that such errors are not repeated in future.
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20. We dismiss the two O.As with the above observations. We make no order as to costs.
(Dated this the 4th day of October, 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00464/2014
1. Annexure A-1 - A copy of the letter dated 24.10.2007 issued by the respondent corporation.
2. Annexure A-2 - A copy of the letter No.A-27(17)1/VIth/08.E.III dated 11.09.2008 issued by the respondent Corporation.
3. Annexure A-3 - A copy of the OM dated 13.11.2009 issued by the 7th respondent.
4. Annexure A-4 - A copy of the revised P.P.Os received by some of the applicants.
5. Annexure A-5 - A copy of the OM dated 28.01.2013 issued by the Government of India.
6. Annexure A-6 - A copy of the revised PPO of one Shri. K. C. Mathai.
7. Annexure A-7 - A copy of the detailed representation dated 20.01.2014 submitted by the 1st applicant to the Regional Director, ESIC, Kerala.
8. Annexure A-8 - A copy of the reminder dated 15.03.2014 sent by the 1st applicant to the ESIC Headquarters Office, New Delhi.
9. Annexure A-9 - A copy of the HQ Office Letter No.A40/11/2/2013/E.III dated 07.03.2014 addressed to RD, ESIC, Kerala.
10. Annexure A-10(A) - A copy of the representation dated 28.01.2014 submitted by the 2nd applicant to the 3rd respondent.
11. Annexure A-10(B) - A copy of the representation dated 28.01.2014 submitted by the 3rd applicant to the 3rd respondent.
12. Annexure A-10(C) - A copy of the reply No.54.A.40.15.5.2013.A/Cs dated 19.03.2014 received by the 2 and 3rd nd applicants from the office of the 3rd respondent.
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13. Annexure A-10(D) - A copy of the joint representation dated 27.03.2014 submitted by the 2nd and 3rd applicants to the 1st respondent.
14. Annexure A-10(E) - A copy of the representation dated 30.01.2014 submitted by the 4th applicant to the 3rd respondent.
15. Annexure A-10(F) - A copy of the reply No.54.A.40.15.5.2013.A/Cs dated 19.03.2014 received by the 4th applicant from the Office of the 3rd respondent.
16. Annexure A-10(G) - A copy of the representation dated 28.03.2014 submitted by the 4th applicant to the 1st respondent.
17. Annexure A-10(H) - A copy of the representation dated 21.02.2014 submitted by the 5th applicant to the 3rd respondent.
18. Annexure A-10(I) - A copy of the reply No.54.A.40.15.5.2013.A/Cs dated 19.03.2014 received by the 5th applicant from the office of the 3rd respondent.
19. Annexure A-10(J) - A copy of the representation dated 27.03.2014 submitted by the 5th applicant to the 1st respondent.
20. Annexure A-10(K) - A copy of the representation dated 05.04.2014 submitted by the 6th applicant to the 3rd respondent.
21. Annexure A-10(L) - A copy of the representation dated 31.01.2014 submitted by the 7th applicant to the 3rd respondent.
22. Annexure A-10(M) - A copy of the reply No.54.A.40.15.5.2013.A/Cs dated 19.03.2014 received by the 7th applicant from the office of the 3rd respondent.
23. Annexure A-10(N) - A copy of the representation dated 28.01.2014 submitted by the 8th applicant to the Director (ADM Br), Sub Regional Office, ESIC, Kollam.
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24. Annexure A-10(O) - A copy of the representation dated 10.03.2014 submitted by the 8th applicant to the Director (ADM Br), Sub Regional Office, ESIC, Kollam.
25. Annexure A-10(P) - A copy of the representation dated 08.04.2014 submitted by the 8th applicant to the 1st respondent.
26. Annexure A-11 - A copy of the reply dated 26.03.2014 received by the 8th applicant from the Deputy Director (ADM Br), Sub Regional Office, ESIC, Kollam.
27. Annexure R-1(a) - A copy of the true copy of the letter dated 20.10.2014 of the Assistant Director, ESI Headquarters to the Joint Director (I/C), ESI Corporation, S.R.O, Ernakulam.
28. Annexure R-1(b) - A copy of the letter dated 21.11.2014 of the Assistant Director (Finance) of the S.R.O, Ernakulam to Shri.Mathai.K.C.
29. Annexure R-1(c) - A copy of the revised pension payment order dated 20.11.2014 enclosed with Annexure R1(b) letter.
30. Annexure R-1(d) - A copy of the letter dated 21.11.2014 of the Assistant Director (Finance) of the S.R.O., Ernakulam to Shri.Mukundan.A.C.
31. Annexure R-1(e) - A copy of the revised pension Payment Order dated 20.11.2014 enclosed with Annexure R1(d).
List of Annexures in O.A.No.180/00962/2015
1. Annexure A-1 - A copy of the Letter No.PF/B-11/14/1/05.E.III dated 24.10.2007 issued on behalf of the 1st respondent.
2. Annexure A-2 - A copy of the letter No.PF/B-11/14/1/05.E.III dated 15.11.2007 issued on behalf of the 1st respondent.
3. Annexure A-3 - A copy of the OO No.347/2008(No.54A.II.14.1.07.Adm-1) dated 02.06.2008 issued by the Assistant Director (Administration), O/o.the 2nd respondent. -36-
4. Annexure A-4 - A copy of the letter No.PF/B-11/14/1/05-E.III dated 07.05.2008 issued by the Joint Director III, Head Quarters Office, Employees' State Insurance Corporation, 'Panchdeep Bhavan', CIG Road, New Delhi.
5. Annexure A-5 - A copy of the Office Order No.429 of 2008 (No.54.A.11.14.1.07.Adm-I) dated 01.07.2008 issued by the Assistant Director (Adm), Regional Office, Employees State Insurance Corporation, Thrissur.
6. Annexure A-6 - A copy of the Memoranum No.A-
27(17)1/VIth/08-E.III dated 11.09.2008 issued on behalf of the 1 st respondent and circulated by the Regional Office (Kerala) as per their Memorandum No.54.A.27.11.3.2008.Adm-I dated 15.09.2008 along with the relevant portions of Annexure-I appended thereto.
7. Annexure A-7 - A copy of the Memorandum No.A-
27/17/1/6thCPC/2008-E-III dated 03.03.2009 issued by the Head Quarters Office, Employees' State Insurance Corporation, 'Panchdeep Bhavan', CIG Road, New Delhi and circulated by the Regional Office (Kerala) as per their Memorandum No.54.A.27/11/3/2008-Adm-I dated 16.03.2009.
8. Annexure A-8 - A copy of the Government of India, Ministry of Finance, Department of Expenditure, Implementation Cell Office Memorandum F.No.1/1/2008-IC dated 13.11.2009.
9. Annexure A-9 - A copy of the Memorandum th No.A.27/17/1/5 /98E.III dated 08.12.2009 issued by the Head Quarters Office, Employees' State Insurance Corporation, 'Panchdeep Bhavan', CIG Road, New Delhi.
10. Annexure A-10 - A copy of the final order in O.A 1105/2011 on the file of this Tribunal.
11. Annexure A-11 - A copy of the judgment of the Hon'ble High Court in OP(CAT) 2524/2013.
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12. Annexure A-12 - A copy of the representation dated 22.10.2018 submitted by the applicant to the 1st respondent.
13. Annexure A-13 - A copy of the representation dated 05.03.2015 submitted by the applicant to the Director (Administration), ESI Corporation, SRO, Kollam - 2.
14. Annexure A-14 - A copy of the Government of India, Department of Pension & Pensioners' Welfare O.M No.F.No.38/37/08 P&PW(A) dated 28.01.2013.
15. Annexure A-15 - A copy of the letter No.48.A.12.1.2008.A/C.dated 10.06.2015 issued by the Deputy Director (Fin), SRO(Kollam).
16. Annexure A-16 - A copy of the representation dated 26.06.2015 submitted by the applicant to the 1st respondent.
17. Annexure A-17 - A copy of the letter No.A-27/17/PG/12/2009-E- III dated 04.08.2015 issued by the Assistant Director, Office of the 1 st respondent.
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