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2009 DIGILAW 4630 (MAD)

P. Silas Vijayakumar v. Hemanthkumar & Another

2009-11-02

FAKKIR MOHAMED IBRAHIM KALIFULLA, R.BANUMATHI

body2009
Judgment :- R. Banumathi, J. Alleging disobedience of Courts order in W.P.No.31172 of 2005 dated 06.09.2007, the petitioner has filed this Contempt Petition. .2. For proper appreciation of the contentious points raised by the petitioner factual background of the matter has to be briefly referred. The petitioner was appointed as Ticket Examiner w.e.f. 111. 1950 and retired on superannuation on 30.06.1986 as Chief Traveling Ticket Inspector on basic pay of Rs.760/- in pay scale Rs.700-900. Based on his pay at the time of his retirement and also taking into account the officiating period, the pension of the petitioner was fixed at Rs.1035/-. The petitioner was insisting that his pension was to be fixed at Rs.1078/-. The petitioner filed O.A.No.901/1997 for fixation of his pension at Rs.1078/-. The Tribunal directed to rework the pension in accordance with law. Aggrieved by the orders of the Tribunal in O.A.No.901 of 1997, respondents filed W.P.No.1409 of 2000, which was dismissed by this Court observing that the difference between the amount sanctioned as pension ie., Rs.1035/-and the amount sought by the petitioner as his due pension ie., Rs.1078/-is trivial and directed the respondents to grant the same. Based on the orders of this Court, the respondents issued a revised pension payment order sanctioning the petitioner Rs.1078/-as his pension. .3. The petitioner has filed another O.A.No.644 of 2002 which was allowed by the Tribunal. Thereafter, the petitioner filed a Contempt Petition No.90 of 2003 in O.A.No.644 of 2002 and the Contempt Petition was closed by the Tribunal on 09.06.2004. Subsequently, the petitioner filed another O.A.No.677 of 2004 raising the issue of stepping up of pay on par with a sports person and the Tribunal dismissed his claim for stepping up of pay on the ground that the petitioner cannot compare himself with a sports person who has been granted out of turn promotion and also advance increments for his sporting excellence. .3A. Aggrieved by dismissal of petition in O.A.No.677 of 2004, the petitioner filed W.P.No.31172 of 2005, which was allowed by order dated 06.09.2007. In the Writ Petition respondents did not appear. According to the respondents, their non appearance was due to inadvertence, and therefore factual position with regard to the petitioners seniority position and pay drawn by him from time to time could not be placed before the Court. In the Writ Petition respondents did not appear. According to the respondents, their non appearance was due to inadvertence, and therefore factual position with regard to the petitioners seniority position and pay drawn by him from time to time could not be placed before the Court. The said Writ Petition was allowed directing the respondents 1 and 2 to refix the petitioners pension on par with pay of his immediate junior Mr.K.Natarajan as per law. The petitioner is now seeking stepping up of pay/pension on par with the said K.Natarajan and alleges disobedience of the order in W.P.No.31172 of 2005 dated 06.09.2007. .4. W.P.No.31172 of 2005 was allowed and the respondents 1 and 2 were directed to refix the petitioners pension on par with the pay of his immediate junior Mr.K.Natarajan as per law. Alleging that the respondents have not taken steps to implement the order of the Court even after lapse of 36 years, the petitioner has filed the Contempt Petition. According to the petitioner, seniority list of Rs.425-640 grade indicates that Natarajan was promoted on 26.06.1974 and placed in Sl.No.7, whereas the petitioner being the senior, placed in Sl.No.32 is irregular, contrary to Railway Board order dated 16.02.1962. 5. We have heard the petitioner -Party in person and the learned counsel for the respondents Railways. 6. In the counter affidavit filed by the respondents (dated 30.09.2009), it is averred that the petitioner was allowed a pay of Rs.760/-from 25.06.1985 and his pay was fixed at Rs.795/- w.e.f. 01.01.1986 on par with Mr.K.Natarajan and accordingly his pension was fixed at Rs.1122/- as per the calculation shown below. "4 months pay at Rs.760/- was taken for the period from 01.09.1985 to 312. 1985 and 6 months pay at Rs.795/- (Rs.2375/-in the revised scale) was taken for the period from 01.01.1986 to 30.06.1986 (date of retirement of the petitioner). As per pension rules, 50% of the average of the last 10 months of pay drawn by the pensioner has to be taken for fixing his pension. The pensioner is entitled to the inclusion of his 2 Additional Dearness Allowances and the interim relief granted to him prior to 01.01.1986 in addition to his pay for calculation of the 10 months average and from 01.01.1986 his revised pay was taken in to account for calculation of the 10 months average. The pensioner is entitled to the inclusion of his 2 Additional Dearness Allowances and the interim relief granted to him prior to 01.01.1986 in addition to his pay for calculation of the 10 months average and from 01.01.1986 his revised pay was taken in to account for calculation of the 10 months average. Rs.760+202.50(ADA I)+938.60(ADA II)+146(IR)= 2047.10 For Four months 2047.10 X 4 = 8188.40 For Six months 2375 X 6 = 14250.00 Total = 22438.40 The average is 22438.40/10 = 2243.84 Pension calculated at 50% = 1121.42 " As indicated in the calculation, pension payable to the petitioner was fixed at Rs.1122/-which is stated to be on par with Mr.Natarajan. 7. In the additional affidavit filed by the petitioner, the petitioner averred that Mr.Natarajan joined the cadre on 26.06.1974 and confirmed on 010. 1974 and the General Manager approved the maximum pay of Rs.640/-on 20.11.1980 and therefore the petitioners pay should be stepped up from the date of his promotion on 26.06.1974 as per Board order dated 16.05.1983. Further case of the petitioner is that in the Review Petition, respondents stated that pay of Mr.Natarajan was fixed at Rs.640/-from 20.11.1980, whereas in the counter affidavit filed on 30.09.2009, it was indicated that pay of Mr.Natarjan was fixed at Rs.640/-from 01.07.1983. According to the petitioner, both are false and incorrect. Claiming parity with Mr.Natarjan, the petitioner/party in person contended that his pay should be stepped up w.e.f. the date of promotion of his junior employee Mr.Natarajan on 26.06.1974. 8. The grievance of the petitioner is that Railway Board orders and Pension Rules were violated by the respondents and the direction in W.P.No.31172 of 2005 was not complied with by the respondents 1 and 2 and therefore the respondents are guilty of contempt of Court. The petitioner is seeking stepping up of pay on par with Mr.Natarajan. From the averments in the counter affidavit, it is seen that Natarajan won gold medal in Asian Games in 100 meters cadre in the year 1973 for which Railway Board ordered out of turn promotion in his favour as Senior Ticket Inspector in scale of Rs.425-640 w.e.f. 24.06.1974. Mr.Natarajan is said to have become senior to the petitioner from 24.06.1974. The averment of the petitioner that Mr.Natarajan was granted Rs.640/- from 26.06.1974 is not correct. Mr.Natarajan is said to have become senior to the petitioner from 24.06.1974. The averment of the petitioner that Mr.Natarajan was granted Rs.640/- from 26.06.1974 is not correct. Mr.Natarajan was promoted to the scale of Rs.425-640 w.e.f. 24.06.1974 and his pay was fixed at Rs.640/- of the said scale w.e.f. 20.11.1980. 9. The petitioner also claims Rs.1122/-as personal pension from 01.07.1986 along with his normal pension. The grievance of the petitioner is that payment of personal pension being paid from 01.07.1986 to 312. 1987 was stopped from 01.01.1988 without adducing any reason, prior notice or proper enquiry, which is against Railway Service Pension Rules, 1950 and CCS Pension Rules 1972. The contention of the petitioner is that Court order was disobeyed since the payment of personal pension was not continued from 01.01.1988. 10. The contention of the petitioner that stopping of payment of personal pension would amount to disobedience of the Courts order cannot be countenanced. From the submissions of the respondents, it is seen that personal pension granted to some of the pensioners like the petitioner was stopped from 01.01.1986 for those who had opted to come over to IV CPC Scale of Pay. The petitioner had opted for his fixation of pay in IV CPC Scale of Pay and the letter No.PC-IV/87/PN dated 1987 was produced. It is clearly given in sub para (iii) of Para 12.1 of the said letter that those who have retired or will be retiring between 01.01.1986 and 30.06.1987 will have an option to retain the pre-revised scales of pay and have their pension and death-cum-retirement gratuity calculated under the rules in force immediately before coming into effect of these orders. Railway employees who have already exercised their option in favour of the revised 01.01.1986, provided they refund to the Government the excess pay and allowances drawn by them as a result of coming over to the revised scales of pay. It is seen from the above that only in such cases where the retired employees who had exercise their option to continue in the pre-revised scales of pay and who have opted to the pre-revised scale of pay by repaying the excess pay and allowance, the personal pension will be allowed. The petitioner having opted for IV CPC Scale of Pay, as such is not entitled for payment of personal pension. 11. The petitioner having opted for IV CPC Scale of Pay, as such is not entitled for payment of personal pension. 11. We find the direction of the Court in W.P.No.31772 of 2005 dated 06.09.2007 has been substantially complied with and we do not find any disobedience of the order of the Court, much less, willful disobedience to proceed against the respondents for contempt of Court. 12. In the result, the Contempt Petition is dismissed giving liberty to the petitioner to challenge the order fixing revised pension in accordance with law. No costs.