Onkar Nath Dubey vs Union Of India & Ors

Om Prakash-VII, Member (J)

The present O.A. has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-

i) direct the respondents to provide the upgradation to the applicant under MACP in the grade pay of Rs. 2400/- on completion of 30 years of service and revised the pension according to the said pay and to make the payment of arrears of MACP and arrears of pension from the date of entitlement to the date of actual payment is being made with 18% interest per annum.

ii) direct the respondents to make the payment of 9 days salary and also pay the gratuity amount of Rs. 5,267/- which has been sanctioned and enhance the medical allowance as Rs 1000/-instead of Rs. 500/- along with arrears of medical allowance with interest.

iii) direct the respondents to make the payment of interest @ 18% on the total amount of Rs. 8,92,661/- of the settlement dues of retiral benefits paid to the applicant.

iv) grant such other relief, as the applicant might be found entitled to, in the facts and circumstances of the case.

v) allow the original application with cost of the proceeding in favour of the applicant.

The facts in brief giving rise to the present O.A. are that applicant was initially appointed as Waterman/Farras on 22.4.1976 in the Income Tax Office, Raibareily and his services was regularized on 31.12.1982 and he was promoted as notice server on 29.8.2001 and transferred from Allahabad to Fatehpur in the year 2006 and has completed 35 years of service. The applicant was removed vide order dated 22.7.2011 before 9 days of superannuation and appeal was also rejected vide order dated 29.7.2011. O.A. No. 1323/2011 was filed by the applicant which was allowed with all consequential benefits vide order dated 6.8.2015 as such the position of the applicant remain in service till the date of his superannuation and is entitled for all the benefits like regular employees. Applicant was compulsory retired from service w.e.f. 22.7.2011 by the respondent No. 3 vide order dated 18.12.2015 with consequential benefits including pension and pensionary benefits. The applicant has completed 35 years of service in the pay scale of Rs. 3050-4590 G.P. 1900/- and while issuing the PPO, the applicant was upgraded in the pay scale of Rs. 5200-20200 + G.P.Rs. 2000/- and fixing the pension while issuing the PPO dated 7.1.2016. Respondent No. 4 issued a letter dated 10.5.2016 whereby ordered for payment of settlement dues of retirement total amount of Rs. 8,92,661/- without interest as such applicant is entitled for 18% interest on the total amount. In addition. Respondent No. 4 has sanctioned the total gratuity amount of Rs. 2,43,162/- vide letter dated 30.12.2015 but illegally deducted the amount of Rs. 5267/- from the whole amount and only paid Rs. 2,37,895/- to the applicant, as such applicant is entitled for payment of Rs. 5267/- . Applicant while in service had submitted two applications dated 20.3.2007 and 23.8.2008 for granting the ACP and MACP which was not provided to the applicant but no action has been taken till date. Vide letter dated 1.3.2016 MACP was provided to the juniors of the applicant but applicant has been ignored. Vide order dated 5.10.2018, this Tribunal dismissed the Contempt petition No. 132/2015 filed by the applicant.

Counter Affidavit has been filed by respondents, stating therein that all the pensionary benefits have been given to the applicant in accordance with the order dated 6.8.2015 passed by this Tribunal in O.A. No. 1323/2011. It is further submitted that deduction of Rs. 5267/- from gratuity has been made as recovery of excess salary drawn in past. Photo copy of calculation sheet made by ZAO is annexed as CA-1. It is further submitted that applicant joined as Peon on 31.12.1982 in the pay scale of Rs. 196-3-220-EB-3-232. Thereafter, he was promoted as Daftari on 12.2.1997 in the pay scale of Rs. 775-12-871-14-995-1030-20-1150. The ACP scheme was applicable from 9.8.1999. The applicant was promoted as Notice Server on 3.10.2001 in the pay scale of Rs. 3050-75-399950-4590 and was compulsorily retired on 22.7.2011. The MACP was applicable from 1.9.2008. The applicant has not completed 10 years of service as Notice Server. Since the applicant has compulsorily retired on 22.7.2011, so he is not entitled to get salary from 23.7.2011 to 31.7.2011 for 9 days. Pension of the applicant has already been revised by the ZAO, CBDT, Allahabad on 15.9.2017. Medical allowance has been paid to the tune of Rs. 500/- by pension disbursing Bank according to order dated 19.11.2014 issued by Ministry of Personnel, Public Grievances and Pensions (Department of Pension and Pensoners’ Welfare).

Heard the learned counsel for the parties.

Submission of the learned counsel for the applicant is that applicant has submitted application dated 20.4.2007 for granting ACP and application dated 23.8.2008 for granting 3rd MACP to the applicant. Earlier, applicant had filed O.A. No. 1323/2011 before this Tribunal for quashing of the removal order dated 22.7.2011 which was disposed off with direction to award any other punishment except dismissal and removal from service of the applicant and applicant shall also be entitled for all the consequential benefits including pension and pensionary benefits. Meaning thereby the applicant remained in service on the date of removal from service and he is entitled for all consequential benefits. Applicant has initially joined as Peon on 31.12.1982 in the pay scale of Rs. 196-3-220-EB-3-232. Thereafter, he was promoted as Daftari on 12.2.1997 in the pay scale of Rs. 775-12-871-14-995-1030-20-1150 and again promoted as Notice Server on 3.10.2001 in the pay scale of Rs. 3050-75-399950-4590. Since the removal order dated 22.7.2011 was quashed by the Tribunal with all consequential benefits, meaning thereby applicant has completed 10 years of service on 3.10.2011. Compulsory retirement order was not in existence on 3.10.2011 and was passed on 18.12.2015, compulsorily retiring the applicant w.e.f. 22.7.2011. Hence he is entitled for 3rd MACP.

Learned counsel for respondents submitted that applicant has got two promotions, first in the grade of Daftari on 12.2.1997 and second in the grade of Notice server on 3.10.2001. His 3rd MACP was due on 3.10.2011 but without completing 10 years service in the grade of Notice server, applicant was compulsorily retired w.e.f. 22.7.2011 hence he is not entitled for 3rd MACP.

We have considered the rival submission of the parties and have gone through the entire record.

From perusal of record, it is evident that applicant was removed from service vide order dated 22.7.2011, which was challenged before this Tribunal and vide order dated 6th August, 2015, this Tribunal quashed the removal order and directed the respondents to pass any other punishment order. In compliance of the direction issued by this Tribunal, respondents have passed the order dated 18.12.2015 by which retired the applicant compulsorily w.e.f. 22.7.2011. Meaning thereby applicant has been retired compulsorily on the date when he has not completed 10 years of service (29.8.2011) from promotion of Notice Server. Hence, the court is of the view when applicant has already been retired compulsorily w.e.f. 22.7.2011, hence he is not entitled for 3rd MACP which was due to him on 29.8.2011.

Accordingly, O.A. is dismissed.

As a sequel, Misc. Applications pending if any, in this case, shall also stands disposed off.

There shall be no order as to costs.