Ashok Kumar vs Union Of India And Ors.

Through the medium of this O.A. the applicant has sought the following reliefs:-

"(a) Direct the respondents to place the relevant records pertaining to the present O.A. before their Lordships for the proper adjudication in the matter, in the interest of justice.

(b) To quash and set aside the impugned order dt. 13.06.14 further directing the respondents to revise the final settlement of dues including the retirement benefits of the applicant on the pay of the applicant Rs. 12500/- in terms of their order dt. 04.09.12 with all other consequential benefits i.e. the arrears of pay differences with interest etc. admissible to the applicant.

(c) Allow the O.A. of the applicants with all other consequential benefits and cost.

(d) Any other fit and proper relief may also be granted to the applicants."

Briefly stated, the facts of the current O.A. are that the applicant was appointed as Khalasi on 20.01.1979. He was getting his due promotions on time as Helper Khalasi, Fitter, Tech-III and was finally promoted as Tech-II vide order dated 12.08.2011.

2.1 The respondents issued an order dated 13.06.2011 (Annexure A/2) extending the benefit of financial upgradation to the applicant under MACP Scheme but it was never put into effect. The same order reads as under:-

Sl.No./Name/F/H

Posting/Stn.

Pay already drawn

Pay fixed under MACP

PB/Pay/Date/Remarks

Name

Pay Band/Pay

01/Lokender Kumar/

DLI

PB-I/GP-1800

PB-I/GP-1900

Onkar Singh

7460+1800

Xxxx

01.07.08

XXXXX

XXXXX

XXXXX

XXXXX

35/Ashok Kumar/

GZB

PB-I/GP-1900

PB-I/GP-2000

Udai Singh

8080-1900

8380+2000

01.09.06

01.07.08

PB-I/GP-2400

8700+2400

21.01.09

8700+2000

01.07.09

9030+2400

01.07.09

Under PS No. 7937

9380+2400

01.07.10

XXXXX

XXXXX

XXXXX

XXXXX

Subsequently, the respondents issued an order dated 12.08.2011 (Annexure A/3) on the subject „Promotion orders for the post of C&W Tech-II Grade Rs.5200-20200+GP 2400/- including the case of the applicant. It was mentioned therein that Technicians, who have been found suitable in the Trade Test and placed on the panel are promoted as Tech-II Grade Rs.5200-20200+GP 2400/-. The name of the applicant figured in the said order as under:-

S.

Name/Father

Cat

Posting

Existing Pay as Tech-

Pay Fixed as Tech-

PF No

No.

Name

Stn.

III in Grade Rs. 5200-

II in

Grade

pay

20200

2400

from

the

date of promotion

1

Man Singh/Ram

UR

SS/DKZ

11590+2400=13990

12010+2400=14410

2209792

Swarrop

X

XXX

XX

XX

XXX

XX

XXX

198

Ashok

UR

GZB

9740+2000=11740

10100+2400=12500

3137533

Kumar/Uday

Singh

X

XXX

XX

XX

XXX

XXX

XXX

This was followed by another order on the "Revision of pay fixation of Sh. Ashok Kumar" (the applicant in OA) vide their order dated 23.07.2012 (Annexure A/4) revising the pay of the applicant.

2.2 The applicant superannuated on 31.07.2012. He has mentioned an internal correspondence regarding revision of pay fixation of Sh. Ashok Kumar dated 04.09.2012 wherein it has been stated that:-

"In reference above you are informed that Sh. Ashok Kumar S/o Shri Uday Singh, Tech-II has been granted MACP Scheme but neither any such order (Ashok Kumar) of MACP has been received in this office nor any such arrear of MACP has been paid to him."

This, he avers, is an admission that he was never granted benefit of MACP. Thereafter, the respondents issued an order dated 30.09.2013 (Annexure A/6), stating that:-

"xxxx Sh. Ashok Kumar S/o Shri Udai Singh retired from services in the year 2012 all the records pertaining to him have been submitted to settlement section for purposes of retirement. It would be ascertained after examining the record that whether Sh. Ashok Kumar S/o Sh. Udai Singh is entitled for the benefits of enhancement of pay for the intervening period from Feb 2006 to June 2006 or not. If Sh. Ashok Kumar is entitled for enhancement of pay for the period from Feb 2006 to June 2006 the necessary correction would be made."

Against the above order, the applicant submitted a representation dt. 04.07.2012 stating that he has not been extended any benefits under the MACP Scheme. The respondents vide order dated 09.10.2013 informed him that benefits of MACP Scheme have been extended to him and his pay has been fixed accordingly.

2.3 The applicant again represented to the respondents on 12.02.2014 and 05.06.2014 requesting for processing his case to revise the anomalies in his pay fixation. In response, the respondents issued an order dated 13.06.2014 (Annexure A/1), which is impugned in the current O.A.

In the counter affidavit, the respondents submit that there is no illegality in the impugned order dated 13.06.2014. The applicant was given the third MACP benefit in Grade Pay of Rs. 2400/- w.e.f. 21.01.2009 and the benefit of increment of 3% and difference of GP Rs. 400/-. However, at the time of actual promotion, if it happens to be in a post carrying higher GP than what is available under MACP, no pay fixation would be available and only difference of Grade Pay would be made available. Thus, it follows that availing financial upgradation under MACPs, if the railway servant gets his regular promotion in the hierarchy of his cadre, which is to the Grade Pay of Rs. 2400/- on regular promotion, he will only be granted the difference of Grade Pay between Rs. 2000 and Rs. 2400, and no additional increment will be granted. The applicant"s pay was accordingly revised vide order dated 23.07.2012 (Annexure R-II).

3.1 The applicant, who retired on 31.07.2012, from the post of Tech.II C&W in Grade Pay of Rs.2400 was given the MACP benefit in GP Rs.2000/- w.e.f. 01.09.2008 and MACP benefit in GP Rs. 2400/-w.e.f. 21.01.2009 vide order dated 13.06.2011 and his pay was fixed accordingly.

3.2 The respondents further contend that as per Instructions contained in Railway Board letter dated 10.06.2009 regarding grant of MACP benefits, the benefit of pay fixation available at the time of regular promotion shall also be allowed at the time of financial upgradation under the Scheme. Therefore, the pay shall be raised by 3% of the total pay in the pay band and the grade pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same grade pay as granted under MACP. However, at the time of actual promotion, if the post carries higher grade pay than what is available under MACP, no pay fixation would be available under MACP and only difference of grade pay would be made available. For example, in case a railway servant joins as a direct recruit in the Grade Pay of Rs. 1900 in PB-1 and gets no promotion till completion of 10 years of service, he will be granted financial upgradation under MACP Scheme in the next higher Grade Pay of Rs. 2000/- and his pay will be fixed by granting him one increment plus difference of grade pay (i.e. Rs.100/-). If the railway servant gets his regular promotion in the hierarchy of his cadre, which is Grade Pay of Rs. 2400/- in regular promotion, he will be granted the difference of Grade Pay between Rs. 2000/- and Rs. 2400/-.

3.3 It is emphasized that the benefit of 3% increment at the time of applicant"s regularization as Tech-II in Grade Pay Rs. 2400/- on 12.08.2011, was not admissible to him. Hence his pay was revised and the benefit of 3% increment was withdrawn on 23.07.2012. This fact was also informed to the applicant on 09.10.2013 and 13.06.2014.

During the course of hearing, the learned counsel for the applicant Sh. U. Srivastava strongly argued that the applicant was visited with civil consequences when his pay was reduced without issuing him a notice and adhering to principles of natural justice. He relied upon various citations of Hon"ble Supreme Court including the case of Bhagwan Shukla Vs. UOI and Ors., JT 1994(5)SC 253. He tried to drive home the point that the alleged benefit granted to the applicant was neither received nor implemented by the respondents, as can be seen from their internal correspondence dated 04.09.2012 at Annexure A-5, hence the revision of pay was bad in law.

4.1 Per contra, the learned counsel for the respondents Sh. Satpal Singh emphasized that respondents had inadvertently granted the benefit of 3% increment to the applicant to which he was not entitled, and revision of pay, withdrawing benefit of 3% increment was just and as per rules on the subject.

I have gone through the facts of the case and heard both sides. The entire case somehow presents a very muddled picture with the respondents doing a flip flop by issuing various contradictory orders on the same subject. While there are orders (dated 13.06.2011-A/2, 12.08.2011-A/3) showing that MACP benefit was extended to the applicant, the internal correspondence of the respondents dated 04.09.2012 (Annexure A/5) reveals that the benefits remained confined to papers only and actual benefit was never extended to the applicant.

5.1 The anomalies in pay fixation of the applicant, as pointed out by the applicant through various representations have to be addressed specifically, a mere statement to the contrary is neither appropriate nor judicious.

It is also a fact that no show cause notice was given to the applicant while revising his pay. It has been held by the Hon"ble Supreme Court in the case of Bhagwan Shukla (supra) that:-

"The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus, been a fagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the concerned to notice and giving him a hearing in the matter. "

6.1 I feel that the ratio of the aforesaid decision is squarely applicable to the facts of the present case. The O.A. is, therefore, remanded back to the respondents with a direction to follow the principles of natural justice by hearing out the applicant as per the laid down procedure, to ensure fair play. The O.A. is disposed of with these directions. No costs.