Central Administrative Tribunal - Lucknow
Ashwani Kumar Choudhary vs Union Of India Through Secretary on 15 May, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL, LUCKNOW BENCH, LUCKNOW. Original Application No. 467 of 2012 Reserved on 11.5.2017 Pronounced on 15th May, 2017 Honble Mr. Justice V.C. Gupta, Member-J Ashwani Kumar Choudhary, aged about 62 years, S/o Sri J.C. Choudhary, presently residing at C/o Sri Rahul Kashyap, A Block 201 Priyanka Apartment, Jopling Road, Lucknow, retired while functioning as Assistant Director, Directorate of Enforcement, Sub-Zonal Office, Srinagar (J&K). .Applicant By Advocate : Sri O.P. Srivastava assisted by Sri Rajan Mishra Versus. 1. Union of India through Secretary, Ministry of Finance, Department of Revenue, North Block, New Delhi. 2. Director, Directorate of Enforcement, 6th Floor, Lok Nayak Bhawan, Khan Market, New Delhi. 3. Joint Director (Admn.) Directorate of Enforcement, 6th Floor, Lok Nayak Bhawan, Khan Market, New Delhi. 4. Deputy Director, Directorate of Enforcement, UT Government Press Building, Madhya Marg, Sector 18, Chandigarh, 160018. 5. Pay & Accounts officer, Pay & Accounts office, Department of Revenue, Church Road, Central Secretariat, Hutments, New Delhi. .Respondents. By Advocate : A.K. Pandey O R D E R
By means of this O.A. filed under Section 19 of A.T. Act, 1985, the applicant has sought the following relief(s):-
(i) This Honble Tribunal may kindly be pleased to direct the respondents to refund the illegally deducted amount of Rs. 40,800/- from the Gratuity of the applicant alongwith the interest on market rate within some reasonable time which may be 2 weeks and the respondents be further directed to make the payment of regular pension to the applicant on the basis of the last pay drawn by him in accordance with the pay fixation made under the Modified Assured Career Progression Scheme vide order dated 14.1.2010 as contained in Annexure no.3 to the Original Application and the contrary orders if any passed by the respondents may be summoned and quashed.
(ii) This Honble Tribunal may further be pleased to direct the respondents to make the payment of balance amount towards leave encashment on the basis of the pay fixation order dated 14.1.2010 and accordingly the regular pension of the applicant may also be fixed and the same may be paid to the applicant regularly.
(iii) This Honble Tribunal may further be pleased to direct the respondents to make the payment of interest on the delayed payment of the aforesaid illegally deducted amount as well as the withheld amount from the gratuity and the lesser payment of leave encashment for the period from the date of retirement of the applicant from service i.e. from 15.10.2010 till the date of actual payment at market rate within some reasonable time.
(iv) This Honble Tribunal may also be pleased to pass such other orders which are found just fit and proper under the circumstances of the case.
(v) This Honble Tribunal may be pleased to allow the cost of the original application in favour of the applicant.
2. The facts giving rise to this Original Application in nutshell are that the applicant as a direct recruit, joined as Assistant Enforcement officer in the Directorate of Enforcement on 28.1.1976. He got his first promotion on 2.1.1989 as Enforcement Officer. Thereafter, he got the benefit of financial up-gradation under Assured Career Progression (ACP) scheme on 29.1.2000 and his pay was fixed at Rs. 9000/- and next increment becomes payable in the month of January, 2001. Later-on, he was given financial up-gradation on completion of four years and was granted the next higher pay scale of Rs. 8000-13500/- w.e.f. 4.10.2005 and his pay was fixed at Rs. 10,475/-. He was, then, promoted to the next higher post of Chief Enforcement Officer/Assistant Director-II on 15.5.2007 in the same pay scale of Rs. 8000-13500/- on adhoc basis. His adhoc promotion was regularized on the post of Chief Enforcement Officer/Assistant Director-II on 6.5.2008. His salary remained unaffected. The applicant was, thereafter, given financial up-gradation under Modified Assured Career Progression (MACP) scheme by granting the benefit of Grade Pay of Rs. 6600/- in PB-3 w.e.f. 1.9.2008 on completion of 30 years of service and he was placed in the higher Grade Pay, as stated hereinabove from 17.11.2009 giving effect from 1.7.2008. Thereafter, the applicant applied for voluntary retirement and his request was accepted and retired from service on 15.10.2010 after rendering about 34 years of qualifying service. After retirement, his post retiral benefits were withheld and were not paid in spite of repeated requests made by the applicant. The applicant was asked by the department that the final settlement will take some time; hence applicant was orally informed that the department has decided to give provisional pension to the applicant till finalization of post retiral benefits. An internal correspondence was made in this regard, a copy of which was also addressed to the applicant. It was contended that no disciplinary proceedings or any adverse action was pending against the applicant and settlement dues were illegally withheld. Later-on, it was found that the post retiral benefits were stopped on the ground that there is some excess payment. However, he was not informed that under what head the excess payment was made. As the applicant was facing financial crisis after retirement, he informed that excess payment, if any, may be deducted from the settlement dues and release his pension and other retiral dues. Only thereafter, the applicant was allowed regular pension from the month of December, 2011. He was also paid Gratuity and other retiral benefits simultaneously after a lapse of about 14 months from the date of his retirement. A chart of payment made has been disclosed in Annexure no.6 to the O.A., which is extracted here-in-below for ready reference:-
Sl. No. Particulars Amount Received on credit to the account.
1.
CGEGIS (Insurance) payment received through draft under letter no. G-9/1 CHD/2010/318 dated 4.2.2011 from the office of Dy. Director Chandigarh Rs.53,252 11.2.2011
2. GPF Payment received through draft under letter No. G-9/1 CHD/2010/509 dated 22.2.2011 from the office of Dy. Director, Chandigarh Rs.10,04523/ 7.3.2011
3. Pension from 15.10.2010 to Nov, 2011 from PNB through Pension Payment order at reduced rate Rs. 3,13,545/ 9.12.2011
4. Commuted Value of pension paid from PNB through Pension Payment order at reduced rate Rs.6,03824/ 9.12.2011
5. Gratuity payment received through draft under letter No. G-9/1/CHD/2010/12040 dated 7.12.2011 from the office of Dy. Director, Chandigarh Rs.6,11,821/-
10.12.2011
6. Leave Salary Payment received through draft under letter no. G-9/1/ CHD/2010/12040 dated 7.12.2011 from the office of Dy. Director, Chandigarh Rs. 4,35,084/-
10.12.2011
7. 10% withheld Gratuity payment received through draft under letter no. G-9/1/CHD/2010/839 dated 9.4.2012 from the office of Dy. Director, Chandigarh 72,636/-
18.4.2012 Later-on, it was came to the knowledge of the applicant that the amount of Rs. 40,880/- has been deducted from the Gratuity on the basis of alleged excess payment on the basis of wrong fixation of pay at the stage of grant of 3rd MACP. It was contended that the grant of Grade Pay of Rs. 6600/- was in accordance with Recruitment Rules and MACP scheme of 6th Central Pay Commission and on the basis thereof, it was contended that the amount was illegally deducted.
3. Counter Affidavit has been field by the respondents. The factual matrix, as stated in the Original application, was not disputed, but contended therein that grant of benefit of Grade Pay of Rs. 6600/- was not correct because the pension papers which were sent by the applicant to Pay & Accounts Office, (PAO) Chandigarh on 26.11.2010 were returned back with a remark that the Grade Pay of Rs. 6600/- granted to the applicant under MACP scheme seems to be incorrect and he may be given the Grade Pay of Rs. 5400/- in PB-3. The objection of PAO was based on para 8.1 of Annexure -1 of O.M. dated 19.5.2009 issued by the DoP&T. Reference was made in this regard to the department of Revenue, Ministry of Finance for clarification. In the meanwhile, Chief Controller of Accounts, Ministry of Finance, Department of Economic Affairs, Internal data wing, New Delhi was approached for vetting of pay fixation in respect of Sri C.R.V. Nair wherein Sri Nair was granted the Grade Pay of Rs. 5400/- in PB-3 instead of Rs. 6600/- after reviewing its earlier decision. The department vide letter dated 5.9.2011 was informed and department by letter dated 13.10.2011 conveyed the revision of fixation and accordingly fresh fixation was made on 5.9.2011 by issuing corrigendum dated 27.12.2011 fixing the pay of the applicant and his counterparts including Sri C.R.V. Nair in Grade Pay of Rs. 5400/- in PB-3 instead of Rs. 6600/- in PB-3.
4. Rejoinder affidavit has been filed by the applicant reiterating the earlier pleadings and substantiating the fixation of Grade Pay of Rs. 6600/- as correct.
5. During the course of hearing, it was brought to the notice of this Tribunal by filing additional documents in the form of judgment in O.A. no. 280 of 2012 (S. Balakrishnan & Others Vs. Union of India & Others) passed by Madras Bench of the Tribunal on 26.7.2013, judgment and order dated 16.10.2014 passed by Honble High Court at Madras in Writ petition No. 11535 of 2014 and in SLP filed by the respondents before Honble Supreme Court having SLP no. 15396/15 dismissed on 31.8.2015. The judgment delivered by Madras Bench of the Tribunal in O.A. no. 280 of 2012 was complied with by the department vide order dated 19.1.2017. On the basis of these judgments, it has been contended that the counterparts of the applicant including Sri C.R.V. Nair challenged the orders of re-fixation of pay at the stage of 3rd MACP by reducing the Grade Pay of Rs. 6600/- to Rs. 5400/-. The relief(s) claimed in O.A. no. 280 of 2012 by three applicants S/Sri S. Balakrishnan, C.R.V. Nair and P. Ganesan reads as under:-
1. to call for the records pertaining to the impugned corrigendum orders in File No. G-2/1/2011 dated 5.9.2011 and file no. A.361/1/2009 dated 27.12.2011 of the 2nd and 3rd respondent and quash the same.
2. to set-aside the 2nd respondents order dated 5.9.2011 in File G-2/1/2011 and order dated 27.11.2011 in File no. A-36/1/2009 ordering recovery of overpayment made to the applicants due to the earlier fixation of pay vide orders no. 22/2009 dated 17.11.2009 and No. 51/2010 dated 21.1.2010 respectively.
3. to direct the respondents to restore the earlier orders No. 22/2009 dated 17.11.2009 and No. 51/2010 dated 21.1.2010 issued vide F. No. A-36/1/2009 granting 3rd financial upgradation under MACP with Grade Pay of Rs. 6600/- in PB-3 (Rs.15600-39100) to the applicants and consequently refix their pension on the basis of the said order and release all other terminal benefits with interest and costs. Madras Bench of the Tribunal while deciding the aforesaid O.A. vide judgment and order dated 22.7.2013 observed as under:-
9. For the reasons stated above, the impugned orders dated 5.9.2011 and 27.12.2011 of the second and third respondents are quashed and there will be a consequential direction to the respondents to restore the earlier orders dated 17.11.2009 and 21.1.2010 granting the 3rd financial upgradation under MACP with Grade Pay of Rs. 6600/- in PB-3 (Rs. 15600-39100/-) to the applicants and consequently their pension should be re-fixed and to disburse all the terminal benefits arising there from in addition to the repayment of the amount already recovered.
10. The above exercise shall be completed within a period of four weeks from the date of receipt of copy of this order. The application is allowed in the above terms. However, there will be no order as to costs.
6. The Honble Madras High Court after examining the factual matrix of the case dismissed the Writ petition filed by the respondents. The order of Honble High Court was affirmed by Honble Supreme Court. It is not in dispute that the order passed by Madras Bench of the Tribunal has been complied with. Learned counsel for the respondents has fairly admitted this situation and fairly conceded that the matter of O.A. no. 280 of 2012 decided by Madras Bench of the Tribunal is covering the controversy involved in the present case.
7. After hearing the learned counsel for the parties at length and going through the records of this case and in view of undisputed factual matrix of the case, the question remains to be answered is whether the action of the respondents reducing the Grade pay of the applicant from Rs. 6600/- in PB-3 at the stage of grant of 3rd financial up-gradation under MACP to Rs. 5400/-, is justified?
8. The question has already been answered, in detail, in O.A. no. 280 of 2012 decided by Madras Bench of the Tribunal vide its order dated 22.7.2013, which was affirmed by Honble Madras High Court. Against which, SLP filed by the respondents was dismissed and the department has also restored the benefits to all the applicants by granting Grade Pay of Rs. 6600/-. On facts, there is no dispute that there is a parity of the applicants case with the applicants of O.A. no. 280 of 2012 decided by Madras Bench of the Tribunal. The order dated 17.11.2009 by which Grade Pay of Rs. 6600/- was granted by Additional Director (Admn.) at the stage of grant of benefit of 3rd MACP also include the name of C.R.V. Nair along with the applicant. The order dated 17.11.2009 by which third financial up-gradation under MACP has been granted to the applicant and others reads as follows:-
In pursuance of Government of India, Department of Personnel and Training O.M. no. 35034/3/2008-Estt. (D) dated 19.5.2009, the following Assistant Director Gr.II in the Directorate of Enforcement on completion of their 30 years service have been given financial upgradation under the Modified Assured Career Progression Scheme to the next Grade Pay of Rs. 6600/- in PB-3 (Rs. 15600-39100) with effect from the date mentioned against each:-
Sl. No. Name, Designation & Station Posted S/Sri Date from which financial up-gradation admissible Whether Ist, 2nd or 3rd up-gradation.
1. K.V. Anatha Krishna, Calicut 1.9.2008 3rd
2. R.C. Singh, Ahmedabad 1.9.2008 3rd
3. V.P.Gogia, Lucknow 1.9.2008 3rd
4. P. Ganesan, Chennai 1.9.2008 3rd
5. Smt. G.S. Ghandini, Cochin 1.9.2008 3rd
6. K. Mani Madurai 1.9.2008 3rd
7. Surender Singh Hqrs. Office 1.9.2008 3rd
8. S.K.Gupta Delhi zone 1.9.2008 3rd
9. A.K. Mathur 1.9.2008 3rd
10. A.K. Bhutyal, Jalandhar 1.9.2008 3rd
11. Prakash Joseph 1.9.2008 3rd
12. D.N. Poddar, Patna 1.9.2008 3rd
13. A.K. Chaudhary, Hdqrs.
1.9.2008 3rd
14. C.Ramkrishna, Hyderabad 1.9.2008 3rd
15. Anup Chatropadhyay 1.9.2008 3rd
16. C.R.V. Nair 1.9.2008 3rd
17. K.C. Babu 1.9.2008 3rd
18. K.C. Abraham, Hdqrs.
1.9.2008 3rd
9. The order dated 14.1.2010 by which the pay was fixed in Grade Pay of Rs. 6600/- at the time of grant of 3rd financial up-gradation under MACP Scheme is extracted here-in-below:-
In pursuance of Government of India, Department of Personnel & Training .M. no. 35034/3/2008 Extt. (D) dated 19.5.2009, the following officers (Assistant Director, Gr.II having Grade Pay of Rs. 5400/-) in this Directorate have been given 3rd financial upgradation in the MACP Scheme vide Establishment Order No. 22/2009 (F. No. A-36/1/2009) dated 17.11.2009 to the next Grade Pay of Rs. 6600/- in PB-3 (Rs. 15600-39100). Subsequent to financial up-gradation to the next grade pay of Rs. 6600/- their pay is fixed as per details given below:-
Sl. No. Name & Designation Last Pay in PB-2 (Rs.9300-34800) & Present Grade Pay Date from which drawn Pay now fixed and date from which fixed Next Grade Pay admissible under MACP Scheme Total Rs.
1.
Surender Singh AD-II Rs. 22920/- Rs. 5400/-
1.7.2008 1.9.2008 Rs. 23770/- 1.7.2009 Rs. 24690/-
Rs.6600 30370* 31290**
2. A.K. Chaudhary AD-II Rs. 22370/-
Rs. 5400/-
1.7.2008 1.9.2008 Rs. 23210 1.7.2009 Rs. 24110 Rs. 6600 29810* 30170**
3. C.R.V. Nair Rs.21810 Rs. 5400 1.7.2008 1.9.2008 Rs. 22630 1.7.2009 Rs. 23510 Rs. 6600 29230* 30130**
4. K.C. Abhraham AD-II Rs. 21260 Rs. 5400 1.7.2008 1.9.2008 Rs. 22060 1.7.2009 Rs. 22920/-
Rs. 6600 28660* 29520** The case having No. OA 280 of 2012, in which one of the applicant was C.R.V Nair, has been decided, as stated hereinbefore. The order has been implemented by the respondents. Hence, there is no occasion to defer with the decision rendered by Madras Bench of the Tribunal in O.A. no. 280 of 2012.
10. It is well settled preposition of law that once the judgment has attained finality and benefit of it has been extended to the beneficiaries other similarly situated persons cannot be denied the benefits granted to the similarly situated persons as held by Honble Supreme Court in the case of Maharaj Kishan Bhatt Vs. State of J&K, (2008) 9 SCC 24.
11. In view of the above, this O.A. is allowed.
Following directions are issued to the respondents:-
11.1. The Order dated 5.09.2011 and its corrigendum dated 27.12.2011 as mentioned in counter affidavit cannot be given effect to. The respondents are directed to restore the benefit under the order dated 17.11.2009 and fixation dated 14.01.2010 granting benefit of 3rd financial up-gradation under MACP Scheme.
11.2 The respondents are further directed to refund/return the amount of 40800/- to the applicant with simple interest @ 9% per annum from the date of deduction till the date of actual payment.
11.3. The respondents are further directed to re-fix the pension and calculate all other terminal benefits of the applicant after adding the benefit of 3rd financial up-gradation under MACP scheme by granting Grade Pay of Rs. 6600/- on the basis of order of fixation of pay vide order dated 14.1.2010.
11.4. The entire exercise of making refund of amount and re-fixation of pension and other dues on the basis of fixation dated 14.01.2010 be completed within a period of four weeks from the date of receipt of copy of this order.
11.5. The applicant would be entitled to simple interest @ 9% per annum on the delayed payment of final pension and other dues, which has been paid to the applicant on the dates given and quoted in this judgment.
11.6. The respondents are further directed that the revised amount of pension and its arrears and arrears of other revised settlement dues be also paid to the applicant within a period of four weeks from the date of production of certified copy of this order alongwith simple interest @ 9% per annum from the date it becomes due till the date of actual payment.
12. There shall be no order as to costs.
(Justice V.C. Gupta) Member(J) Girish/-
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