Central Administrative Tribunal - Mumbai
Date Of Decision : November 2 vs The Union Of India on 21 November, 2012
1 O.A.650/2007 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. O.A.No.650/2007 Date of decision : November 21, 2012 Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A). Simer Singh, Pensioner, Residing at: House No.45, Near Home Guards, Khadaki, Pune 411 003. .. Applicant. ( By Advocate Shri R.N. Sanghavi ). Versus 1. The Union of India, through Secretary to the Government of India, Ministry of Defence, Raksha Bhavan, New Delhi 110 001. 2. The Engineer-in-Chief, Army Head Quarters, Kashmir House, New Delhi 110 001. 3. The Commandant, Head Quarters Office of the Commandant, Bombay Engineering Group and Centre, Khadaki, Pune 411 003. 4. The Controller of Defence Accounts Office of the P.C.D.A., Southern Command, Pune. ..Respondents. ( By Advocate Shri D.A. Dube ). Order (Oral) Per : R.C. Joshi, Member (A). In this Original Application, the Applicant is aggrieved by denial of proper fixation of pay 2 O.A.650/2007 scale in accordance with the order passed by this Tribunal in O.A.No.865/1989 dated 21.07.1994 in which the present Applicant was a party. The Applicant had represented before the appropriate authorities and had also given a legal notice which was replied to by the Respondents vide dated 20.09.2006 (Annexure A-5). Consequently, the Applicant has preferred the present Original Application. 2. Briefly, the Applicant was employed as Civilian Trade Instructor under the Respondent No.1 on 04.12.1967 in the pay scale of Rs.110-3-131-4-155EB- 4-175-180 which was subsequently revised on the basis of recommendations made by the Central Pay Commission on 01.01.1973. The Applicant was thereafter promoted to the post of Civilian Trade Instructor (Selection Grade) in the pay scale of Rs.338-370-400-EB-480 with effect from 13.07.1983. Subsequently, the Applicant was promoted as Civilian Instructor Foreman on 01.01.1987 and was entitled to the pay scale of Rs.380-640 with effect from 01.01.1987 as per the order passed by this Tribunal in O.A.No.865/1989 in which the Applicant was also a party which was not implemented in the case of the Applicant. Hence, this Original Application. 3. The Applicant has sought the following reliefs: 3 O.A.650/2007 (a) That this Applicant should be given full benefit of the order dated 21.7.1994 passed by this Honourable Tribunal in Original Application No.865 of 1989 w.e.f. 1.1.1987 the date he was promoted to the post of Civilian Instructor Foreman. (b) Direct the Office of Respondent Nos.3 and 4 to refix the pay of this Applicant in the scale of Rs.380-640 w.e.f. 1.1.1987 the day on which he was promoted to the post of Civilian Instructor Foreman and further give the effect to the recommendations of the IVth and Vth Pay Commission in respect of the above said scale without taking any objection or giving any excuse; (c) Direct the Office of Respondent No.3 to work out and re-fix the pay of this Applicant in the scale of Rs.380640 w.e.f. 1.1.1987 and further give implementation to the revised pay scale of Rs.380-640 recommended by the IVth and Vth Pay Commission without any further delay and pay his arrears. (d) Direct the Office of Respondent No.3 to readjust the pension of this Applicant w.e.f. 4.2.2007 in view of the last pay drawn by him; (e) Award cost of this application. (f) pass any other order in the interest of justice. 4. We have gone through the case papers and have perused the documents on record and have also extensively heard Learned Counsel, Shri R.N. Sanghavi on behalf of the Applicant and Shri D.A. Dube, Learned Counsel on behalf of the Respondents. 5. It is seen from the case papers that the scale of pay of Civilian Instructor Foreman was 4 O.A.650/2007 Rs.150-380 in 1971 which was revised to Rs.330-650 with effect from 01.01.1973 prior to the recommendations contained in the report of the IIIrd Pay Commission. The contention on behalf of the Applicant was considered by this Tribunal in O.A.865/1989 which was decided on 21.07.1994. This Tribunal had considered the terms and conditions for the direct recruitment as well as promotees and had also taken into consideration the contentions raised on behalf of the Respondents. However, this Tribunal, considering the order passed by the co-ordinate Bench at Bangalore in O.A.Nos.788/1986 to 795/1986 vide dated 15.10.1986 ordered that the Applicants are entitled to the revised time scale of pay of Rs.380640 from 01.01.1973 as against the time scale of pay of Rs.330-560 granted to them. This Tribunal had also directed the Respondents to re-fix the pay of the Applicants from 01.01.1973 in the time scale of pay of Rs.380-640 and grant all the increments that accrue thereafter in accordance with the Rules that regulate them. 6. The Applicant, however, did not pursue the matter for implementation of the orders passed by this Tribunal in O.A.No.865/1989 dated 21.07.1994 within a reasonable period. The Applicant subsequently issued a legal notice to the Respondents 5 O.A.650/2007 vide dated 07.07.2006 as could be seen at Annexure A4 which was replied to by the Respondents vide letter dated 20.09.2006. 7. It is not disputed that there was delay on the part of the Applicant in pursuing the implementation of an order passed by this Tribunal in O.A.865/1989 dated 21.07.1994. However, the Applicant had preferred an Misc. Application dated 30.10.2007 for the condonation of delay. In this Misc. Application the Applicant has averred that in the normal course the Applicant should have approached this Tribunal on or before one year from the date the re-fixation of pay to be implemented in accordance with the order passed in O.A.865/1989. It is stated therein that the Applicant approached the office of Respondent No.3 in the year 1999 for rectification of the mistake committed by Respondent No.3. It has been further stated that as the Respondent No.3 was in correspondence with the office of Respondent No.4, the Applicant did not want to precipitate the matter and only after the Applicant received a reply to the legal notice vide dated 20.09.2006, the Applicant preferred this Original Application. Hence the Applicant has urged for condonation of delay in preferring this Original Application. 8. It is noted that the order passed in 6 O.A.650/2007 O.A.865/1989 dated 21.07.1994 in the case of the Applicant was not implemented by the Respondents, which is reproduced herein-below for reference: ORDER
1. We declare that the applicants are entitled to the revised time scale of pay of Rs.380-640 from 1.1.1973 as against the time scale of Rs.330-560 granted to them.
2. We direct the respondents to re-fix the pay of the applicants from 1.1.1973 in the time scale of pay Rs.380-640 and grant all the increments that accrue thereafter in accordance with the rules that regulate them.
3. We direct the respondents to pay all the arrears of salary on such re-fixation to the applicants with effect from 9th October, 1988 and onwards denying all arrears that had accrued prior to that date, we make it clear that the applicants will not be entitled to the arrears prior to 9.10.1988 as their claim would be barred by S.21 of the Administrative Tribunals Act, 1985.
4. We direct the Respondents No.1 to examine the cases of the applicants for the revision of their scales of pay from 1.1.1986 and pass such orders as the facts and circumstances justify.
5. These direction shall be implemented within a period of two months from the date of receipt of a copy of this order by the respondents.
6. In the case of those persons who have retired, their pensionery benefits shall be calculated and paid to them within the limit set out above.
7. In the case of Applicant No.3 Smt.Renukana Sitalchandra Mukhergee her family pension also shall be calculated, fixed and paid on that basis.
8. No order as to costs. 7 O.A.650/2007 A reading of the order (supra) would reveal that the present Applicant was in the array of parties in O.A.865/1989 and was eligible for grant of pay scale of Rs.380-640 with effect from 1.1.1987 as directed by this Tribunal. Further, the Respondents had, at no point of time challenged the directions given by this Tribunal before the appropriate forum. Hence, the order passed in O.A.865/1989 had attained finality and ought to have been implemented as was done in the case of other Applicants. It is also seen that all contentions raised by the Respondents in the present O.A. were also similarly raised in O.A.865/1989 and in O.A.Nos.788/1986 to 795/1986 which were decided by a coordinate Bench at Bangalore and after due consideration, orders were accordingly issued by this Tribunal. We are, therefore, convinced that there was no justification for non- implementation of the order passed by this Tribunal in O.A.865/1989 in the case of the Applicant.
9. Turning to the issue of limitation raised by Respondents, Hon'ble Supreme Court in the case of M.R. Gupta vs. Union of India [1995(5) Scale 29 (SC)] have held that The Tribunal misdirected itself when it treated the appellant's claim as one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid correct salary computed on the 8 O.A.650/2007 basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary, computed correctly in accordance with the rule.
Right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind.
The only question for decision is:
Whether the impugned judgement of the Tribunal dismissing as time barred the application made by the appellant for proper fixation of his pay is contrary of law?
10. In the case of S.R. Bhanrale Vs. Union of India and Ors. [1996 SCC (L&S) 1384 the Hon'ble Supreme Court has held that Limitation-Generally-Where the retiral benefits and other claims of a retired employee (encashment of earned leave, increment arrears, special pay due, LTC etc. in this case) were wrongfully withheld despite numerous representations, raising the plea of limitation by the Government against such claims, held improper Retiral benefits Wrongfully withholding and subsequently opposing the claim on the ground of limitation- Propriety-Limitation-Generally Impugned order set aside.
The amounts now paid to the appellant admittedly fell due to him much before his retirement. The same was wrongfully withheld. It was, to say the least, improper on the part of the Union of India 9 O.A.650/2007 to plead the bar of limitation against such claims of its employees, when it had defaulted in making the payments promptly when the same fell due. It is not as if the appellant had woken up after a decade to claim his dues. He has been asking the Department to pay him his dues both while in service and after superannuation also but to no avail. In these circumstances, it ill behoved the Union of India to plead bar of limitation against the dues of the appellant. We need say no more about it because better sense has prevailed and claim of the appellant has now been settled and payment made to him.
11. In view of this, therefore, having perused the application for condonation of delay, we are convinced that there is considerable force in the arguments advanced by the learned counsel for the Applicant and, therefore, we hereby condone the delay in preferring this Original Application.
12. In the result, the Original Application is allowed. The Respondents are directed to re-fix the Applicant's pay in the scale of Rs.380-640 from the date he was promoted as Civilian Instructor Foreman from 01.01.1987 and calculate the pensionary benefits and arrears etc. and pay the same within a period of three months from the receipt of a copy of this order. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.