Original Application Nos. 254/2009, 261/2009, 275/2009, 276/2009, 277/2009, 278/2009, 279/2009, 280/2009, 281/2009, 285/2009, 286/2009, 287/2009, 288/2009, 289/2009, 290/2009, 291/2009, 292/2009, 293/2009, 294/2009, 295/2009, 301/2009, 302/2009, 303/2009, 304/2009, 305/2009, 306/2009, 307/2009, 308/2009, 309/2009, 310/2009, 327/2009, 329/2009, .... Case: 1. K. Unnikrishna Pillai, Radio Fitter (Highly Skilled), Naval Ship Repair Yard (NSRY), Southern Naval Command (SNC), Kochi, 2. K. K. Raghuram, Radio Fitter (Highly Skilled), NSRY, SNC, Kochi, 3. Kurian K. Kurian, Electrical Fitter (Highly Skilled), NSRY, SNC, Kochi, 4. M. C. Soman, Electrical Fitter (Master Craftsman), NSRY, SNC, Kochi, 5. K. K. Madhu, Machinist (Master Craftsman), NSRY, SNC, Kochi, 6. P. M. Antony Xavier, Sheet Metal Worker (Master Crasftsman), NSRY, SNC, Kochi, 7. A. Aliyar Kunju, Unskilled Labourer, NSRY, SNC, Kochi, 8. T. Suresh Babu, Electrical Fitter (Highly Skilled), NSRY, SNC, Kochi, 9. N. P. Xavier Roy, Radio Fitter (Highly Skilled), NSRY, SNC, Kochi, 10. Antony George, Engine Fitter (Highly Skilled), NSRY, SNC, Kochi, 11. M. T. Sebastian, Sheet Metal Worker (HS-II), NSRY, SNC, Kochi, 12. P. P. Aji, Platter (SK), NSRY, SNC, Kochi, 13. V. Baiju, ICE (Master Craftsman),NSRY, SNC, Kochi, 14. V. J. Paul, Unskilled Labourer, NSRY, SNC, Kochi, (15) M. G. Sebastian, Radio Fitter (.... Central Administrative Tribunal
| Case Number | Original Application Nos. 254/2009, 261/2009, 275/2009, 276/2009, 277/2009, 278/2009, 279/2009, 280/2009, 281/2009, 285/2009, 286/2009, 287/2009, 288/2009, 289/2009, 290/2009, 291/2009, 292/2009, 293/2009, 294/2009, 295/2009, 301/2009, 302/2009, 303/2009, 304/2009, 305/2009, 306/2009, 307/2009, 308/2009, 309/2009, 310/2009, 327/2009, 329/2009, ... |
| Counsel | O. V. Radhakrishnan, C. S. G. Nair, Sunil Jacob Jose, Subhash Syriac, Varghese P. Thomas, Millu Dandapani, C. M. Nazar, M. M. Saidu Muhammed, M. V. S. Namboothiri, Mini R. Menon, A. D. Raveendra Prasad, Aysha Youseff, S. Abhilash, P. S. Biju, Aysha Youseff |
| Judges | Dr. K. B. S. Rajan (Judicial Member) & K. George Joseph (Administrative Member) |
| Issue | Constitution of India, 1950 - Article 226 |
| Judgement Date | January 06, 2010 |
| Court | Central Administrative Tribunal |
Judgment:
Dr. K. B. S. Rajan (Judicial Member), (Ernakulam Bench)
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These O.As, having one common legal point to be decided, have been clubbed together, heard together and a common order is passed. For the purpose of reference, requisite details as contained in O.A. No. 254/2009 have been referred to. It is this O.A. which has also been referred to at the time of final hearing by the senior counsel appearing for the applicants.
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The facts, being admitted, obviate debate. Disciplinary proceedings were initiated against the applicants in these O.As which culminated into the imposition of penalty of reduction of pay by one stage for one year in the relevant scale of pay in respect of all the applicants and with a direction that the applicants will not earn increments of pay during the period of reduction and that on the expiry of that period, reduction will have the effect of postponing the future increments of pay.
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Details of reduction of pay, the pay scale etc., in respect of the applicant in O.A. No. 254 of 2009 go as hereinafter. The applicant's pay was reduced from Rs.5000 to 4900 in the time scale of pay of Rs.4000 100 6000 w.e.f. 01-01-2007 with a direction that the applicant will not earn increments of pay during the period of reduction and that on expiry of that period, the reduction will have the effect of postponing the future increments of pay vide Annexure A-1 Order dated 18-12-2006. Appeal preferred was not successful as the same was rejected, vide order dated 16th April, 2007 at Annexure A-2. Implementation of the penalty order was carried out vide Annexure A-3 Civilian Establishment List dated 01-01-2007. Vide Annexure-4 Civilian Establishment List dated 17th January 2008, pay of the applicant was placed after the currency of penalty at Rs.5100/- w.e.f. 01-01-2008. A slight modification to Annexure A-4 was issued vide Annexure A-5, which however, did not affect the above stipulation of fixation of pay at Rs.5100/- w.e.f. 01-01-2008. As the revised pay Rules came into existence in 2008, effective, however, from 01-01-2006, the pay of the applicant was revised at the revised pay, and option exercised by the applicant was also considered and taken into account. Accordingly, fitment table was followed, and the pay scale corresponding to the erstwhile scale of pay of Rs.4000 100 6000 was revised to PB-1 Rs.5200 20200 with grade pay of Rs.2400/-. The table of concordance reflected that the erstwhile basic pay of Rs.4900/- was Rs.9,120/- which, together with the Grade pay of Rs.2400/- resulted in the revised basic pay of Rs.11,330/-. Likewise, replacement pay for Rs.5000/- was Rs.11,700/- and that for Rs.5100/- it was Rs.11,890/-. (It could be seen that in contra distinction to the earlier fixed increment, the increment as per the revised scale differed, as the same was worked at 3% of the basic pay). The pay bill of the applicant in O.A. No. 254/2009 for the month of January 2009 reflected the basic pay of Rs.12,810/- but that of February, 2009 it was brought down to Rs.12,430/-. Annexure A-8 refers. The applicant therefore, penned a representation dated 12-03-2009 stating that the pay worked out had taken into account the penalty suffered by the applicant earlier which has resulted in reduction of the pay, whereas, the said penalty being reduction of a fixed amount of Rs.100/- and having already been suffered, the revised pay cannot be affected by such earlier penalty. In response to the above, the respondents have issued Annexure A-10 order stating that since the pay scale was revised with retrospective effect, the reduction imposed under the penalty order was reckoned with in the revised pay structure w.e.f. the date of penalty. Hence, the pay would be reduced by one stage from the date of imposition of punishment. This would be effected from the salary prospectively and the excess amount paid to the applicant due to non implementation of penalty while fixing the pay in the revised pay structure will be recovered from the 60% of arrears of pay and Allowances as and when the payment is made in the next financial year.
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The applicant has filed this OA against the aforesaid Annexure A-5 and A-10 order and at the time of admission, the Tribunal granted stay of recovery as contemplated in Annexure A-10 order.
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The following are the main grounds of the said O.A:-
(a) That the decision by the respondents vide Annexure A-10 that the order imposing penalty would be applicable to the revised pay structure also with effect from the date of penalty order is patently illegal, arbitrary and wholly unsustainable.
(b) Annexure A-1 order, passed by the disciplinary authority, imposing penalty, gets merged with the appellate order vide Annexure A-2 whereby, the disciplinary authority cannot enjoy any powers, to make modifications to the Annexure A-1 order.
(c) Annexure A-1 order was current only upto 31st December, 2007 and cannot be treated as subsisting when on the basis of option exercised, the revised pay rules were made applicable. The penalty order depriving the applicants of only one increment of Rs 100/- for one year only and which has been given effect to, cannot be said to be operative after the suffering of the penalty.
(d) Reduction in the pay of the applicants without notice is again illegal and violative of principles of natural justice.
(e) The action of the respondents amounts to revision of the penalty order, for which there is no provision in the CCS(CC&A) Rules, 1965.
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Respondents have contested the O.A. According to them, the applicants were afforded the revised Pay Scale w.e.f. 01-01-2006 and while working out the same, the fact of reduction of pay from 01-01-2007 to 31st January 2007 due to imposition of penalty was not taken into account purely by oversight. The over payment so made is sought to be recovered from the applicants on the strength of the undertaking given by all the applicants. (Annexure R-1 refers). Such a recovery of excess payment made by way of oversight or mistake can well be resorted to as per the Apex Court judgment in the case of Videsh Sanchar Nigam Limited and another vs Ajit Kumar and others (2008 SCC (L&S) 1047 ). Decision by the High Court of Kerala in regard to a similar nature of case exists...
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