Lalmani Balmiki Son Of Late Nanhe Lal vs Union Of India & Ors

Mohan Pyare, Member (A)

Shri Ashok Kumar, learned counsel for the applicant and Shri Anoop Tiwari, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

“(i) to quash the impugned orders dated 15.12.2012, 12.7.2013 and 9.1.2014 (Annexure No.1, 2 & 3 respectively) passed by respondent no.2.

(ii to issue, a direction in the nature of mandamus commanding the respondents to decide the representation/notice dated 4.1.2014 with reasoned and speaking order in a time bound manner.

(iii) to issue, a direction in the nature of mandamus commanding the respondents to implement the order dated 30.12.1990 issued by PTO No.53/10/90 vide respondent no.3 and to make the payment of arrears of salary as well as payment of arrears of pension after calculating the same on the basis of re-fixation of pay accordingly.

(iv) to issue, a direction in the nature of mandamus commanding the respondents to grant benefit of ACP/MACP on due dates to the applicant.

(v) to issue, any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(vi) to award the cost of the application to the applicant..”

The brief facts of the case as narrated by the applicant are that the applicant was appointed as Chawkidar on 20.12.1972 and was further promoted to the post of Motor Pump Attendant (MPA) on 06.03.1984 in the pay scale of Rs.260-400/-. After 07 years, the pay of the applicant was reduced to Rs.210-290/- without any notice or opportunity of hearing. In the revised pay scale, the pay of the applicant was fixed in the pay scale of Rs.800-1150/- w.e.f. 01.01.1986. The pay of the applicant in the above scale was fixed at Rs. 905 in PTO No.53/10/90 dated 30.12.1990. It was ordered that the pay of the applicant be fixed in the pay scale of Rs.950-1500/- w.e.f. 06.03.1987, which was although recorded in the Service Book of the applicant but not given effect.

The applicant was trade tested for Fitter Grade Mechanic (HS-II) in September, 1995 and declared successful on 08.01.1996 but PTO was issued granting the promotion on 14.05.2007 w.e.f. 20.05.2003 to the post of Fitter Grade Mechanic (HS-II). The applicant continued to work on Motor Pump Attendant from 1984 to 2007, even though, he was promoted w.e.f. 20.05.2003. The applicant was eligible for getting second ACP on 20.12.1996 and 3rd MACP on 01.01.2006 but he was granted 3rd MACP belatedly w.e.f. 01.09.2008. Aggrieved by the above act of the respondents, he represented by an application dated 30.10.2012, which was answered by the respondents vide letter dated 15.12.2012 without taking the relevant facts into consideration. He again represented by letter dated 19.06.2013, which was replied by a letter dated 12.07.2013 without redressing the grievance of the applicant. The applicant also sent legal notice on 04.01.2014, which was replied by a letter dated 09.01.2014 without taking into consideration the relevant facts. The reply in that legal notice is evasive.

The applicant has been suffering monetary loss on account of illegal and unjustified action of the respondents, the representation dated 30.12.2012, 19.06.2013 and legal notice dated 09.01.2014 has been decided by an evasive reply and without extending the due benefit, the order passed by the respondents is unreasoned and non speaking, hence this OA.

The respondents have refuted the claim of the applicant by filing a counter affidavit and have submitted that the applicant was promoted as Mate MPA w.e.f. 06.03.1984 and was entitled to get salary in the pay scale of Rs.210-290/- but was erroneously granted pay scale of 260-400/-. This fact came into the knowledge of the competent authority and necessary amendment order was passed by the competent authority by a letter dated 15.08.1988. The applicant was erroneously promoted as MPA w.e.f. 06.03.1988 in the pay scale of Rs.260-400/- vide PTO No.13/13/87, which was later amended as Mate MPA in the pay scale of Rs.210-290/- by revised PTO No.33/78/88. The pay scale of the applicant was correctly fixed as Rs. 905 w.e.f. 01.01.1986 in the revised pay scale. This is not the case of reduction in the pay and allowances to the applicant as a result of punishment and so there was no need for giving any show cause notice/opportunity of hearing to the applicant prior to rectifying the clerical mistake committed in pay fixation of the applicant. The order dated 30.12.1990 vide PTO No.53/10/90 has not been implemented and the applicant has not given benefit of above referred order.

The applicant has been already granted 02 regular promotions before 09.08.1999 i.e. before the date of commencement of ACP Scheme and he was not entitled to get benefit of financial up-gradation under the ACP Scheme. The 3rd financial up-gradation under MACP Scheme was given to the applicant w.e.f. 01.09.2008 i.e. from the date of notification of the Scheme, on the date when the applicant became entitled. The applicant is getting full pension and it is not correct that he is getting reduced pension as his pay was wrongly fixed and so it was corrected. The applicant has challenged this order of re-fixation of pay dated 15.08.1988 after a long delay and hence it should be dismissed on delay as well as on merit.

We have heard the rival submissions and verified the documents available on record.

The respondents have raised the issue of delay in filing this OA for re- fixation of his pay after much delay. Here, it is necessary to point out that OA was heard and admitted on 17.07.2014 itself directing the respondents to file the counter affidavit after hearing the parties. Once the OA has been admitted and counter affidavit has been called for, it can be presumed that delay has been condoned in filing the OA. Secondly, it is a case of wrong fixation of pay which is a continuing cause and on that point also, the OA cannot be treated as suffering from delay.

The main issue here is whether the applicant was promoted to Motor Pump Attendant or Motor Pump Attendant Mate. Even we presume that he was wrongly promoted as Motor Pump Attendant and his pay was fixed wrongly, before correcting that promotion order in favour of applicant from the Motor Pump Attendant to Motor Pump Attendant Mate and re-fixing his pay from Rs.260-400/- to 210 -290/- , it is an admitted fact by the respondents that no show cause notice was given to the applicant and he was not heard. In many judgments, the Hon’ble Supreme Court has issued direction that reducing the rank of an employee and re-fixing or reducing his pay has civil consequences and it should be necessary for respondents to give show cause notice and give him opportunity of hearing to satisfy the requirement of natural justice.

The Hon’ble Supreme Court in 2007 (1) SCC-331, Shekhar Ghosh Vs. UOI & Ors held as under:-

"22. Requirements to comply with the principles of natural justice would, therefore, vary from case to case. If upon giving an opportunity of hearing to an affected employee, it is possible to arrive at a different finding, the principles of natural justice must be complied with. We may notice that recently in Union of India v. Bikash Kuanar a Division Bench of this Court opined: (SCC p. 195, para 12) "It is now trite that if a mistake is committed in passing an administrative order, the same may be rectified. Rectification of a mistake, however, may in a given situation require compliance with the principles of natural justice. It is only in a case where the mistake is apparent on the face of the record, a rectification thereof is permissible without giving any hearing to the aggrieved party."

On the basis of above discussions, it is very evident that the applicant has made a successful case in his favour as his earlier promotion and pay fixed was modified without providing any opportunity of hearing. It may be possible to arrive at a different decision after hearing the applicant and hence, he should have been given the such opportunity. The OA is liable to be allowed. Accordingly, the OA is allowed. The order dated 15.12.2012, 12.7.2013 and 9.1.2014 is quashed and set aside. The respondents are directed to revise the pay of the applicant as per extant rules. Respondents are at liberty, if they feel so and rule so permit at this stage to issue show cause notice to applicant to get his reply and decide the issue on merit. This exercise should be completed within a period of three months from the date of receipt of certified copy of this order. No order as to costs.

All MAs pending in this O.A. also stand disposed off.