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2017 DIGILAW 541 (CAL)

Martha Xalxo v. Union of India

2017-06-14

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. The writ petition being WPCT 259 of 2016 (Martha Xalxo & Ors. Vs. Union of India & Ors.) has been preferred challenging an order dated 13th May, 2016 passed by the learned Tribunal in OA 350/00699 of 2015. In the said original application the appellants challenged an order dated 25th March, 2015 passed by the respondent no.4 pertaining to withdrawal of the benefit of bunching facilities. The writ petition being WPCT 302 of 2016 (Mitali Ghosh Vs. Union of India & Ors.) has been preferred challenging an order dated 13th May, 2016 passed by the learned Tribunal in OA 350/01020 of 2015. In the said original application the appellant challenged office orders dated 19th June, 2014 and 16th October, 2014. The writ petition being WPCT 17 of 2017 (Chitra Sarkar & Ors. Vs. Union of India & Ors) has been preferred challenging an order dated 13th May, 2016 passed by the learned Tribunal in OA 350/01475 of 2014. In the said original application the appellants challenged an order dated 16th October, 2014 passed by the respondent no.3. The writ petition being WPCT 18 of 2017 (Sikha Lahiri & Anr. Vs. Union of India & Ors.) has been preferred challenging an order dated 13th May, 2016 passed by the learned Tribunal in OA 350/01020 of 2015. In the said original application the appellants challenged orders dated 19th June, 2014 and 16th October, 2014 passed by the respondent no.3. All the orders challenged in the original applications relate to denial of bunching facilities claimed by the appellants in terms of the provisions of the Railway Services (Revised Pay) Rules, 2008 (hereinafter referred to as the said Rules of 2008) notified vide R.B.E. No.103/2008. 2. Heard the learned advocates appearing for the respective parties and considered the materials on record. 3. The pay of Chief Matron/Matron was initially fixed taking in to account the benefit of bunching i.e. to say, get fixed in the revised pay structure at the same stage in the pay band, then for every two stages so bunched, benefit of one increment @ 3% was given, so as to avoid bunching of more than two stages in the revised running pay bands and for such purpose the increment was calculated on the pay in the Pay Band, without taking into account the Grade pay. The bunching facilities were extended to the Chief Matrons in PB-III after due approval and necessary vetting in the year 2008 on provisional basis in scale Rs.15600-39100/- + 5400/- since 1st January, 2006. Almost six years thereafter the appellants were intimated by a memorandum dated 16th October, 2014 that they would not be eligible for getting the bunching facilities in view of the provision of Rule 7(i) (A) (ii) of the said Rules of 2008. 4. Grant of benefits under the Modified Assured Career Progression Scheme (hereinafter referred to as MACP) and the grant of bunching facilities are two different and distinct issues. The precept and object of MACP is to grant incentives to those employees who have been stagnated in one particular post for a period of 10 years whereas bunching pertains to fixation of pay. The said Rules of 2008, inter alia, provides that where, in the fixation of pay, the pay of Railway servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say, gets fixed in the revised pay structure at the same stage in the pay band, then, for every two stages so bunched, benefit of one increment shall be given so as to avoid bunching of more than two stages in the revised running pay bands and that for such purpose, the increment will be calculated on the pay in the pay band and that the Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching. The learned Tribunal thus erred in law in clubbing the MACPS matters with those relating to bunching facilities. 5. A perusal of paragraph 6 of the learned Tribunal’s order dated 13th May, 2016 would reveal that no issue was framed as to whether the appellants would be entitled to the bunching facilities. In the entire judgment there is no reasoning as to why the respondents have sought to withdraw the bunching facilities as awarded to the appellants. In paragraph 14 of the impugned order the learned Tribunal has only referred to a memorandum dated 29th August, 2014 and has stated that the earlier pay fixation upon awarding the bunching facilities was only a mistake on the part of the respondents. 6. In paragraph 14 of the impugned order the learned Tribunal has only referred to a memorandum dated 29th August, 2014 and has stated that the earlier pay fixation upon awarding the bunching facilities was only a mistake on the part of the respondents. 6. On behalf of the appellants reliance has been placed upon a memorandum dated 30th September, 2015 issued by the Deputy Director, Pay Commission-VI, Railway Board to the General Manager (P), Eastern Railway, which runs as follows: “Please connect Eastern Railway’s letter under reference on the above cited subject. In this connection, it is informed that the requisite clarification/fixation tables in favour of Chief Matron and Matron is still awaited from the nodal Ministry on the above issue i.e. Ministry of Finance. Eastern Railway would be accordingly advised on receipt of the same from Ministry of Finance. However, methodology for fixation of pay in cases of upgradation/bunching is already available in Rule 7 of RS(RP) Rules, 2008.” 7. On the basis of the said memorandum it has been argued that when a final decision as regards fixation of pay of Chief Matron and Matron is still awaited from the nodal Ministry, the respondents could not have initiated steps towards stoppage and recovery of bunching facilities. The said memorandum was specifically referred to in paragraph 18 of the writ petition being WPCT 259 of 2016. Dealing with the said averments the respondent nos.1, 2 and 4 in paragraph 18 of the affidavit-in-opposition has stated that “the letter issued the Railway Board, did not attain finality as the issue is still under consideration of nodal ministry and as such it is an immature policy which cannot be taken as a guideline”. 8. There is no discussion in the impugned order as regards the memorandum dated 30th September, 2015. The controversy involved in the present writ petitions requiring resolution centers around the issue as to whether the appellants would be entitled to the bunching facilities. The said issue though specifically agitated has not been considered and decided by the learned Tribunal and as such prior thereto, the bunching facilities cannot be withdrawn. Such non consideration amounts to avoidance of constitutional duties and functions to decide disputes which are exclusively entrusted to the Tribunals by law [See the judgment delivered in the case of State of West Bengal Vs. Subhas Kumar Chatterjee & Ors., reported in AIR 2010 SC 2927 ]. Such non consideration amounts to avoidance of constitutional duties and functions to decide disputes which are exclusively entrusted to the Tribunals by law [See the judgment delivered in the case of State of West Bengal Vs. Subhas Kumar Chatterjee & Ors., reported in AIR 2010 SC 2927 ]. 9. The Administrative Tribunals are conferred with the jurisdiction to hear matters where even the vires of statutory provisions are in question. Their function, however, in this regard is only supplementary inasmuch as such decisions are subject to scrutiny of the High Courts. Such is the extent of awesome powers and jurisdiction conferred upon the Tribunals. The learned Tribunal has glossed over and has not returned a finding on the issue as to whether the appellants would be entitled to the bunching facilities under the said Rules of 2008 though the said issue was specifically addressed and argued by the appellants. Such practice is fraught with undesirable consequences destroying the very purpose and scheme under which the Tribunals are created and constituted to adjudicate disputes in specified areas. 10. For the reasons discussed above, we set aside the order dated 13th May, 2016 passed by the learned Tribunal in OA 350/01475 of 2014, OA 350/00699 of 2015 and OA 350/01020 of 2015 and remand the original applications to the learned Tribunal for hearing afresh on merits and till such decision, the respondents are restrained from withdrawing the bunching facilities from the petitioners. 11. The W.P.C.T. 259 of 2016, W.P.C.T. 302 of 2016, W.P.C.T. 17 of 2017 and W.P.C.T. 18 of 2017 are, accordingly, disposed of. 12. There shall, however, be no order as to costs. 13. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.