Central Administrative Tribunal - Mumbai
Sheo Dayal Gupta vs South East Central Railway on 25 August, 2023
1 OA.2032022 Central Administrative 'Tribunal, Murobai Bench, Camp at Nagpur.
0.4.203/2022 Coram: Justice MG. Sewlikar, Member (J udicial) Dr. Bhagwan Sahai, Member (Administrative).
Sheo Dayal Gupta, Senior Roster Clerk, south East Central Railway, Nagpur, Residing at : 2459/42 Shrawan Bagar, Near Sarju Town, Wathda, Nagpur ~ 440 008, . Applicant.
( By Advocate Shri Rahul Dhande }.
Versus i. The Senior Divisional Personne! Officer, South East Central Rallway, Divisional Office, Personnel Department, Kingsway, Nagpur -- 440 001,
2. The Divisional Personnel Officer, South East Central Railway, Divisional Office, Personnel Department, Rinesway, Nagpur ~ 440 001, » Respondents, ( By Advocate Ms. Renuka Puranik Nalamwar ).
Order (Oral) Per: Justice MUG. Sewlikar, Member (J).
The applicant being agerieved by the order dated 30° March, 2021 has preferred this O.A. fs O.4.203/2022
2. Facts in brief can be adumbrated thus :
In the year 1988, the applicant was appointed as a Porter in Group 'D' with South Bast Central Railway, Nagpur. In the year 2000 the applicant was medically decategorized by the Railways vide letter dated 1° December, 2000 and he was absorbed in alternative post as Roster Clerk with downgraded pay scale of Rs.3050-4 S90/-,
3. On 30° March, 2021 the applicant received a letter fom Divisional Personne! Officer for recovery of an amount of Rs.1,16,008/- on account of over payment fron 27" uly, 2013 to 318 March, 2021, According to the respondents his pay fixation was wrongly done. His grade pay was changed from Rs.2000/- to grade pay of Rs.2800/- without any increment, The over payment happened on account of grant of one increment Which the applicant was not entitled to. On noticing this mistake, his pay was reduced to Rs.49.000/- from Rs.50,500/-. This order is being impugned in this O.A. It is further contended that the applicant's pay has been incorrectly fixed. Because of decategorisation, applicant came to he appointed on a post drawing lesser pay. Being a decategorised employee, he should have been appointed on the same pay. 'Therefore, applicant has fled this application, 3 OA.203/2022
4. Reply has been Aled. The re espandents contended that the recovery is perfectly legal. The applicant is seeking refixation from the year 2000 which is impermissible. The applicant slept over his rights for almest 21 years and when Fecovery was ordered, he woke up from deep slumber and is now see cing refixation from the year 2000, 3, We have heard learned counsel for the applicant and leamed counsel for the respondents, b. Learned counsel for the applicant submits that because of medical devategorization the applicant was reverted to a lower post, 'This action of the respondents is in direct violation of Section 47 of the Persons With Disabilities Act, 1995 (PWD Act) which was amended in the year 2016. Leamed counsel for the applicant submits that after amendment there is ne change in Section 47, His bodily lifled and re- numbered as Section 20 in the Amended Act. He submits that the applicant should have been offered the same pay seale. If that was not possible a supernumerary post ought to have been created but in any case the applicant should not have been posted on 4 post drawing lesser pay. For this purpose he has invited the attention of this Tribunal to the judement of Supreme Court in matter of Kanal Singh Vs. Union of Indla Fepor ted in 2003 DGLS (SC) 173. He also contends that Delhi 4 OA.203/2022 High Court and Allahabad High Cowt have considered this aspect of the matter and have granted the benefit of Section 47 to the concerned employees. He, therefore, seeks the same benefit to be extended to the applicant.
7. Learned counsel for the respondents submits that the applicant did not take any action for almost 21 years. He did not ask for refixation. He woke up from his shumber only when the impugned order was served on him. She submits that in case this Tribunal comes to the conclusion that the applicant is entitled to refixation, arrears should not go beyond three years.
8. We have considered the submissions of the counsel for the respective parties.
9. To appreciate the submissions it would be worthwhile to consider Section 47 of PWD Act Section 47 reads thus, "No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during service:
Provided that if an employes, after acquiring disability is not suitable for the post he was holding, could be shified to some other post with the same Day scale and service benefiis. ° This Section clearly mandates that because of medical disability if a person is not in a position to discharge the duties, he should be given » some other post of the same pay scale. H it is not possible supernumerary past nee tat Union of India (supra) in Para 9 Supreme Court mad following observations :
oe Ch apter iV a the det deals with eho are per' io secu re employ WOE Se Sction 47, which falls in Char apler VILE deals with an employees, who is already In service and ACPUIFES a disability during his service. it must be porne in Mind that Section 3 of the Act has eiven dixtine: and different definitions of "dixability" ie "person with disability". It is well settled that in the same enactment if hea distinct definitions are given defining a we ordlexpression, they simet be understood acc cordingly in terms «¢ oF the definition, it wrest be ener ed that person does not aequire or suffer dsabifi iv by ehoice An employees, WHO ae oak FES disability during fs Service, iy sought to be protected under Section 4 of the Act specifically. Such emplovee, acouiri ne disability, f net protected would not only suffer Aimself "but posstaly all those who depend on him would also suffer The very frame and contents of Section 47 clearly indicate tte andatory mature the very apeniy ne part of Seetion reads "20 establishment shall dispense with, or reduce in rank, an employee who ¢ aeguires a disability during his services." The Section Jurther provides [tie ~ that if an employee afler acquiring disability is hol suttable for the post he was heal ding, could be shifted to some ather post with the E Same Pey scale and service benefits: if it is nos possible to aeliusi the employee against ¢ any post Re will be kept on a Supermumerar, 2 Post until a suitable post is available ar he attains the a ge of Superannuation, whichever is earlier Adeled to tris HO promolon shall be denied to Person merely on the graund OA203/2022 ds to be ereated. In the case of Kunal Singh é the 6 OA205/2022 af his disability as is evident fram sub-section ( 2} of Section 47. Seetion 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In COMSIFUUIO a provision of social beneficial enactment that toc dealing with disabled + a ersons tended to give them equal oppartunities, Protectan of rights and full participation, the view that aly ances the abject of the Ae? and s erves its purpose must be preferred to the one which obstructs the abject and paralyses ihe purpose of the Act. Language of Section 47 is plain and ceriain CASTE statutory opea HOR OF. nee employer to protect an enyplove acquirtig disability during service."
10, From these observations it is evident that a person having disability shall not be offered a post drawing lesser pay than the pay scale which he was getting at the time w hen he acquired disability, In the case at hand, the applicant acquired the disability in the year 2000 which is not in dispute. It is also not in dispute that the applicant was offered a post drawing lesser pay than the pay he was getting at the time when he acquired disability. | Therefore, this action of the respondents WAS not In-consonance with Section 47 of the PW Act. We are, therefore, in agreement with the submissions advanced hy learned counsel for the applicant that the applicant should not have been offered a past drawing lesser pay. It is not the case of the respondents that the same post drawing the same pay scale was not available in the 7 OA.203/2022 department. Therefore, the action of the respondents in this respect cannot be sustained, il. In the case of Rajinder Singh Rana Vs, Union of India considered this aspect of the matter, Tt also considered the question of delay. Delhi High Court held that the employee was entitled to re- fixation, but the arrears should be restricted only for a period of three Pad years from the date of Aung g of the petition, Learned counsel for the applicant relies on the case of Issak Abbas Hawaldar vs, Block Education Officer and athers, reported in 2017 DGLS(Bom,.) 1448 in which it has been held that if y recovery is illepal, interest ought to be awarded. We do not feel that the recovery in. the instant case was ilegal, The applicant was granted one inerement which he was not entitled to get, Therefore, the recovery is not ile egal. Therefore, the applicant is not entitled to the interest on this count.
i. In view of the above, we deem it appropriate to direct refixation of the applicant's pay from the year 2000, but he will be entitled to the arrears only for preceding 3 years from the date of filing ad ya . > of this application, Le. from January, 2019 with interest 9% p.a. till ten realization of the entire amount. This exercise shall be done within a 8 OA,203/2092 period of four months from the date of receipt of certified copy of this order, 13, With these directions, the O.A. stands disposed of. No order as to costs, (DrBhagWan Safaiy (Tustite M.G. Sewlikar) Member (A) Member (J),