Central Administrative Tribunal - Delhi
Jawahar Lal vs Govt. Of Nctd on 1 August, 2018
Central Administrative Tribunal
Principal Bench
OA No.1307/2017
MA NO. 1438/2017
Order Reserved on: 30.07.2018
Order Pronounced on: 01.08.2018
Hon'ble Ms. Nita Chowdhury, Member (A)
1. Sh. Jawahar Lal, aged about 62 years (Group C)
S/o Sh. Ram Chander,
Retired as Pharmacist from the
Delhi Govt. Dispensary - Punjabi Colony,
Narela-Delhi-110040
R/o 152/12, Sikka Colony,
Near Hanuman Mandir,
Sonipat, Haryana,
PIN-131001
2. Sh. Dharam Pal Narang,
Aged about 62 years (Group C)
S/o Sh. Chhakkan Lal,
Retired as Pharmacist from the
Delhi Govt. Dispensary - Daryapur - Bawana,
Delhi-110040
R/o 168/13, 4 Marla Road, Anand Nagar,
(Behind Paras Jim)
Sonipat - Haryana
PIN-131001
3. Sh. Raj Kumar Parashar,
Aged about 62 years (Group C)
S/o Sh. Ram Kumar,
Retired as Pharmacist from the
Delhi Govt. Dispensary - Bhoregarh-Narela,
Delhi
R/o H.No.734, Sector-23,
Sonipat, Haryana,
PIN-131001 - Applicants
(By Advocate: Shri SN Pandey)
Versus
1. Chief Secretary,
GNCT, Delhi, Delhi Govt. Secretariat,
IP Estate, New Delhi
2. Principal Secretary,
Health & Family Welfare,
9th Floor, Delhi Govt. Secretariat,
IP Estate, New Delhi
2
3. Finance Secretary,
Delhi Govt. 4th Level, A-Wing,
Delhi Govt. Secretariat,
IP Estate, New Delhi
4. Director, Health Services,
GNCT, Delhi,
FC-17, Karkardooma,
Delhi-110032
5. CDMO (North)/
Assistant Regional Director,
DHS (GNCTD)
Delhi Govt. Dispensary Building,
Complex-1st Floor, Gulabi Bagh,
Dehli-110007 - Respondents
(By Advocate: Mr. Amit Anand)
ORDER
MA NO. 1438/2017
For the reasons mentioned therein, the MA for joining together in a single Application is allowed.
2. This Original Application (OA) has been filed by the applicants claiming the following reliefs:-
"1. To set aside/quash the impugned order dated 09.03.2017 passed by the Respondent No.5 by which the representation of applicants was illegally and arbitrarily rejected.
2. To direct the respondents to make the payment amount illegally and arbitrarily deducted from the gratuity of the applicants.
3. Briefly stated, the facts of the case are that the applicants were appointed as Pharmacist (Group C) in the Directorate of Health Services, Govt. of NCT Delhi. They retired from a Group 'C' post on 31.07.2014, 31.10.2014 and 30.04.2015 respectively.
4. It is submitted that after two years of regular service, the applicants were given the Grade Pay from Rs.28,00/- to Rs.42,00 vide order dated 01.06.2011 issued by the Directorate of Health Services, GNCT of Delhi. After completion of 10,20 and 30 years of 3 regular service, the Grade Pay of the applicants were fixed as Rs.46,00/- (1st ACP/MACP), Rs.48,00/- (2nd ACP/MACP) and Rs.54,00- (3rd MACP) respectively.
5. Vide order dated 31.07.2013, the respondents issued a fresh order to modify the MACP and thereby reduced the Grade Pays of applicants from 54,00/- to Rs.48,00/-.
6. The respondents, vide order dated 20.09.2013, changed the Grade Pay of applicants from 28,00/- to Rs.42,00/- which was given after completion of two years of service, has been treated as 1st MACP and hence the affected Pharmacists - applicants herein would be entitled to only up-gradation of Rs.46,00/- and 48,00/- in IInd and IIIrd MACP respectively, as a result of which, the respondents ordered for deduction of difference of Grade Pays (i.e. from Rs.54,00/- to Rs.48,00/-) of retired employees from their gratuity.
7. The applicants have relied upon the judgment of the Tribunal dated 26.11.2015 passed in OA No. 98/2015 (Som Prakash Vs. GNCT Delhi & Ors.) filed by one similarly situated Pharmacist. The Tribunal, while relying upon of the Hon'ble Supreme Court in State of Punjab & Ors. v. Rafiq Masih etc. reported as 2014(8) SCALE 613, held that any recovery from Class three and Class four (Group-C & D service) from retired employees or the employees due to retire within one year, would be impermissible. Therefore, the respondents were directed not to recover any amount from the applicant therein and in case they have recovered some amount, that should be refunded within 15 days. The applicant has also relied upon the order of Tribunal in OA No. 2083/2015 (Jai Singh Jain Vs. GNCT of Delhi & Ors.). In this case also, the Tribunal, while relying upon its earlier order in OA No. 98/2015, held any recovery from the 4 gratuity of applicant as impermissible and directed the respondents therein to refund the amount of Rs.3,69,587/- which was already deducted from the gratuity of the applicant therein. Taking note of the various judgments of the Hon'ble Supreme Court and of this Hon'ble Tribunal, the Govt. of India, DoPT issued office memorandum dated 02.03.2016 to the effect that no such deduction or recovery can be made from the pension and gratuity of the retired or retiring employees belonging to Group C & D services. It is submitted that the applicants have preferred representation dated 28.10.2016 against illegal deduction of the amount of gratuity but to no avail, as the same was rejected by the respondents by passing a common order dated 09.03.2017.
8. The applicants have also placed reliance on the orders of this Tribunal dated 26.04.2018 in OA No. 2158/2017 (Om Prakash Chopra v. GNCT of Delhi & Ors.) and 08.05.2018 in OA No.856/2017 (Ranvir Singh Kadyan Vs Govt. of NCT of Delhi & Ors.).
9. In reply, the respondents have stated that this OA is liable to be dismissed on the ground of limitation and that the law down in. Rafiq Masih's case (supra) is not applicable in this case as the judgment was pronounced on 18.1.2014 and accordingly DoPT issued OM dated 02.03.2016 regarding recovery of wrongful/excess payments made to Government servants. Prior to this, the ratio laid down in Chandi Prasad Uniyal Vs. State of Uttarakhand, (2012)8 SCC 417 prevailed.
10. The respondents further submit that the recovery from the applicant is legal and valid as per then OM of DoPT dated 5 06.02.2014, as the applicants retired during 2014-15. The respondents have also relied upon the following judgments:-
(i) Narayan Nair Vs. State of Kerala (ii) Golaknath Vs. State of Punjab (iii) UOI Vs. SR Dhingra, (2008)2SCC 229. (iv) Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer, (2013)14 SCC 811.
11. The respondents have submitted that the applicants retired from service on 31.07.2014, 31.10.2014 and 30.04.2015 and deduced the differing amounts from the gratuity of the applicant nos. 1 to 3 which was just and valid as per the prevailing OM dated 06.02.2014. The order has attained finality and any disruption of settled matter is against the doctrine of prospective overruling.
12. The respondents also submitted that the benefit of 3rd MACP are not withdrawn but it has been re-fixed as per the order of the competent authority.
13. I have heard the learned counsel for the parties and perused the pleadings available on record and have also gone through the judgments relied upon by the parties.
14. It is found that the issue raised in the present OA is squarely covered by the recent order of this Tribunal dated 26.04.2018 in OA Nos.2158/2017. The said OA was allowed by this Tribunal relying, inter alia, on the judgment of the Rafiq Masih (supra) and held that 'in view of the aforementioned facts, the OA is allowed. The impugned order dated 13.10.2015 is quashed and set side. The respondents are directed to refund the amount recovered from the gratuity of the applicant within a period of three months from the date of receipt of a certified copy of this order. The respondents will, however, fix the pay and pension of the applicant, keeping in view the clarification dated 20.09.2013 and the revised pay fixation order 6 dated 23.07.2015.' Therefore, for the parity of reasons, the present OA is also allowed. The impugned order dated 09.03.2015 is quashed and set aside. The respondents are directed to refund the amount recovered from the gratuity of the applicants within a period of three months from the date of receipt of a copy of this order. No interest would be payable on the refunded amount. The respondents will, however, fix the pay and revise pension of the applicants keeping in view the clarification dated 20.09.2013.
(NITA CHOWDHURY) MEMBER (A) /lg/