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2024 DIGILAW 629 (KER)

Ramkumar R v. Union Of India

2024-06-10

AMIT RAWAL, EASWARAN S.

body2024
JUDGMENT : Easwaran S., J. A classic example where the Central Administrative Tribunal has taken up the administrative function of refixing the salary of an employee, though its function was judicial determination. The thrust of the argument in this present original petition is on the ground that the Tribunal had definitely exceeded in its power conferred on it under the Administrative Tribunals Act, 1985 while rendering its Order. 2. The applicant approached the Tribunal aggrieved by re-fixation of his pay contrary to judicial parlance and also ordering consequential recovery and ended up in getting his pay re-fixed by the Central Administrative Tribunal in a proportion altogether alien to what even his employer had ordered. Such was the extent of excessive exercise of power by the Central Administrative Tribunal. We are not amused as to why the applicant has come with full vigor before this Court in an Original Petition under Article 227 of the Constitution of India. With an atypical order, we are called upon to decide as to whether the order of the Tribunal re-fixing the entire pay structure of the applicant contrary to what his employer had ordered could be sustained, and if not what would be the relief the petitioner/applicant would be entitled to. 3. The facts succinctly stated before us are as follows. The applicant was appointed as an Artificer Class-IV in the Navy on 1.5.1999. Subsequently, the applicant was promoted as Chief Engine Room Artificer on 1.4.2006 and on completion of ten (10) years service on bond, the applicant was relieved from service on 30.4.2009. Subsequently, the applicant returned the original discharge certificate to his present office, namely Naval Aircraft Yard (Kochi), Southern Naval Command as directed by the Principal Controller of Defence Accounts (Pension). On 30.4.2009, the date of discharge, the applicant was drawing his salary in pay band-2 with grade pay of Rs.4,200/-and 22% DA. The last pay drawn certificate is produced as Annexure-A2. It is evident that the applicant was drawing Rs.25,479/-as his total pay in which the basic pay components reckoned for DA were only (Rs.15,630+4,200) totalling to Rs.19,830/-. At the time of discharge, the applicant was getting Rs.4,363/-towards DA, 22% of Rs.19,830/-. Rs.19,830/-, which includes DA, being the total basic pay, it included Grade Pay, Military Service Pay and X-group pay. It is evident that the applicant was drawing Rs.25,479/-as his total pay in which the basic pay components reckoned for DA were only (Rs.15,630+4,200) totalling to Rs.19,830/-. At the time of discharge, the applicant was getting Rs.4,363/-towards DA, 22% of Rs.19,830/-. Rs.19,830/-, which includes DA, being the total basic pay, it included Grade Pay, Military Service Pay and X-group pay. In compliance with Rule 19(2) of CCS (Pension) Rules, 1972, the applicant exercised his option and submitted a representation on 21.1.2010. Thereafter on 11.3.2013, the applicant exercised his second option also. By Annexure-A7, the applicant was directed to refund the retirement gratuity, including the amount received on account of five years exclusive weightage, which would come to Rs.4,23,378/-along with interest at Rs.1,23,295/-totalling to Rs.5,46,673/-. The said amount includes interest @ 8.8% from the date of joining in civil service to the date of payment. On 14.8.2013, the applicant remitted the above amount, which is evident from Annexure-A8. On remittance of entire gratuity, by Annexure-A9, the Principal Controller of Defence (Accounts) issued orders permitting the petitioner to count the military service towards civil pension by letter dated 7.11.2014. In tune with the said order, pay fixation proforma was issued to the applicant as evident from Annexure-A10. While so, the applicant received Annexure-A14 wherein the pay of the applicant was reduced from Rs.15,630/-to 12,230/-. The applicant/petitioner contends that the same was without any opportunity to show cause. Consequent to Annexure-A14, Annexure-A15 was also issued in which the pay of the applicant was reduced on the ground that he was not entitled to calculate the Military Service Pay and X-pay while fixing his last drawn pay as a civilian. Later, by Annexure-A18, he was informed that a further amount of Rs.5,87,505/-has to be refunded by him as excess pay drawn during his tenure. It was impugning these proceedings that the petitioner approached the Central Administrative Tribunal and filed the original application. 4. The respondents appeared and filed their reply statement in which it was categorically admitted that the applicant being an ex-serviceman without pension, his last drawn pay has been protected and accordingly his pay on re-employment as civilian was fixed, taking into consideration Basic Pay, Grade Pay, Military Service Pay and X-pay with respect to pay fixation proforma issued by the Naval Pay Officer, Mumbai on 27.2.2015. The pay fixation order was produced as Annexure-R1. The pay fixation order was produced as Annexure-R1. However, while defending the application of the applicant, the respondents also filed an additional reply statement in which it was contended that the applicant is not entitled to have the Military Service Pay (MSP) and X-pay accounted for the purpose of pension. Annexure-R4 office memorandum dated 6.11.2010 was relied on by the respondents before the Central Administrative Tribunal. The Tribunal on consideration of the materials on record came to the conclusion that the applicant is a pensioner and therefore, he is not entitled to have the Military Service Pay and X-pay counted for the purpose of pension as a Civilian. The Tribunal accepted the contention of the respondents that the applicant's pay has to be re-fixed in terms of the office memorandum dated 31.7.1986, Annexure-R8, and disposed the original application by issuing several directions which are impugned in toto before us by the applicant in this original petition under Article 227 of the Constitution of India. 5. We have heard Sri.S.Radhakrishnan, learned counsel appearing for the petitioner/applicant, and Sri.T.C.Krishna, learned Senior Central Government Counsel appearing for the respondents. 6. We have considered the rival submissions raised across the bar and have also perused the documents produced along with the original petition. 7. At the outset itself, we are bemused by the approach of the Central Administrative Tribunal. There cannot be any doubt that the Administrative Tribunal is constituted to exercise power of judicial review of an administrative action. However, we are astounded to find that the Tribunal had converted itself into an administrative authority by undertaking the task of re-fixation of pay of an employee. The extent of transgression goes to causing a refixation of pay for which even the employer had no case. Therefore, on that count alone, we are persuaded to interfere with the order of the Tribunal. But, that itself may not be sufficient, since we would be failing in our duty if we do not explain the reasons as to why the Tribunal went wrong in dismissing the Original Application. The reasons are not one, but many. 8. The basic issue before the Tribunal was as to whether the applicant was a pensioner or was entitled to have his pay fixed in terms of Rules 19(1) and (5) of Central Civil Service (Pension) Rules, 1972. The reasons are not one, but many. 8. The basic issue before the Tribunal was as to whether the applicant was a pensioner or was entitled to have his pay fixed in terms of Rules 19(1) and (5) of Central Civil Service (Pension) Rules, 1972. For sake of convenience, Rule 19(1) of the CCS (Pension) Rules, 1972 is extracted below: "19. Counting of military service rendered before civil employment (1) A Government servant who is re-employed in a civil service or post before attaining the age of superannuation and who, before such re-employment, had rendered military service, may, on his confirmation in a civil service or post, opt either (a) to continue to draw the military pension or retain gratuity received on discharge from military service, in which case his former military services shall not count as qualifying service; or (b) to cease to draw his pension and refund - (i) the pension already drawn, and (ii) the value received for the commutation of a part of military pension, and (iii) the amount of [retirement gratuity] including service gratuity, if any, and count previous military service as qualifying service, in which case the service so allowed to count shall be restricted to a service within or outside the employee's unit or department in India or elsewhere which is paid from the Consolidated Fund of India or for which pensionary contribution has been received by the Government: Provided that - (i) the pension drawn prior to the date of re-employment shall not be required to be refunded. (ii) the element of pension which was ignored for fixation of his pay including the element of pension which was not taken into account for fixation of pay on reemployment shall be refunded by him, (iii) the element of pension equivalent of gratuity including the element of commuted part of pension, if any, which was taken into account of fixation of pay shall be set off against the amount of [retirement gratuity] and the commuted value of pension and the balance, if any, shall be refunded by him. EXPLANATION.-1n this clause, the expression `which was taken into account' means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial reemployment, and the expression which was not taken into account' shall be construed accordingly. EXPLANATION.-1n this clause, the expression `which was taken into account' means the amount of pension including the pension equivalent of gratuity by which the pay of the Government servant was reduced on initial reemployment, and the expression which was not taken into account' shall be construed accordingly. xxx xxx xxx (5) When an order is passed under this rule allowing previous military service to count as part of the service qualifying for civil pension, the order shall be deemed to include the condonation of interruption in service, if any, in the military service and between the military and civil services." 9. On a perusal of Rule 19(1) of the CCS (Pension) Rules, 1972, it is evidently clear that a Government servant, who retired on compensation pension or invalid pension or compensation gratuity or invalid gratuity was re-employed after 31.12.2003 cannot opt under the CCS (Pension) Rules, 1972, unless he agrees to refund the pension already drawn, the value received for commutation of a part of pension and the amount of retirement gratuity, including service gratuity, if any. In the present case, indisputably, the petitioner had refunded the gratuity to the Department as evident from AnnexureA8. We are mindful of the fact that the said amount was inclusive of interest. On receipt of the said payment from the petitioner, his pay was fixed as that of a Civilian by Annexure-A9. It is evident that in Annexure-A9 due care was taken to include all components and accordingly, pay fixation proforma was issued as evident from Annexure-A10. Therefore, the respondents, having fully conscious about the entitlement of the petitioner to have the pay fixed, counting the period of service as an Artificer, had issued the pay fixation order. Now, the question before us would be, as to whether having fixed such pay as early as in the year 2013, can such fixation of pay could be revisited without following basic tenets of natural justice. The answer cannot be in affirmative, especially when the same would visit with adverse civil consequences on the petitioner. Unfortunately, the Tribunal has not even chosen to address the said issue in its entire order. What weighed the minds of the Tribunal itself is unclear. The answer cannot be in affirmative, especially when the same would visit with adverse civil consequences on the petitioner. Unfortunately, the Tribunal has not even chosen to address the said issue in its entire order. What weighed the minds of the Tribunal itself is unclear. When we scan the order which is running to nearly 120 pages we find that the tribunal extended its power of judicial review to review a pay fixation of an employee and directed the employer to re fix in a particular manner. Suffice to say, order certainly lacks clarity, precision and has failed to address numerous legal points raised by the petitioner/applicant. 10. It is pertinent to note that the respondents after filing of the reply statement introduced an altogether different case in their additional reply statement. The petitioner on filing the additional reply statement filed additional rejoinder and had demonstrated the difference which he is visited with on account of this wrong fixation done by the respondents. For sake of brevity, the tabular column, which the petitioner has extracted in his additional rejoinder, is extracted below: Description Basic Pay GP Annexure Gross Salary The last pay drawn from Indian Navy 12,230 + 2000 (MSP)+ 1400(X pay) 15,630/- 4,2 00 A2 Pay fixed on re-appointment as a Civilian in Navy 9300 420 0 A3 Pay fixed after exercising option under Rule 19 and remitting Rs.5,46,673/- 15,630/- 4200 A8 and A11 Pay fixed after Annexure-A12 and A13 12,230/- 420 0 A14 Pay slip for April 2016 (including increments for 7 years from 2009) 19,500/- 420 0 A17 62,065/- Pay slip for May 2016 (after deducting MSP and X pay) 15,450/- 420 0 A17(2) 52,143/- Difference in monthly pay 62,065- 52,143 A17 9922 11. Curiously enough, the respondents for the first time in an additional reply statement, which the petitioner submits has been filed after the hearing of the OA was completed, raised an ingenious argument that the pay of the petitioner should have been fixed in terms of Annexure-R8 order dated 31.7.1986. The opening portion of the office memorandum dated 31.7.1986 is extracted below:- “At present the orders relating to fixation of pay of reemployed pensioners are scattered in a number of office memoranda issued form time to time. The opening portion of the office memorandum dated 31.7.1986 is extracted below:- “At present the orders relating to fixation of pay of reemployed pensioners are scattered in a number of office memoranda issued form time to time. The question of consolidation of the existing orders in a simple body of orders and the rationalization and simplification of the procedure governing the initial fixation of pay has been under consideration of the Government from time to time. The President is now pleased to decide that in supersession of all the previous orders on the subject, the initial fixation of pay and other benefits on reemployment of ex-servicemen pensioners as also civilian pensioners will be governed by the Central Civil Services (Fixation of Pay of Reemployed Pensioners) Orders, 1986 as detailed in the Annexure. With reference to all the appointments made on or after the 1st July, 1986 the pay of the reemployed pensioners may be fixed as per the enclosed orders. 2. In their application to the employees serving in the Indian Audit and Accounts Department these orders issue in consultation with the Comptroller and Auditor General of India.” 12. The Central Civil Service (Fixation of Pay of Re-employed Pensioners) Orders, 1986 which is annexed to Annexure-R8 order has to be dealt with by us in order to find out whether the petitioner can succeed in the present original petition de hors the violation of principles of natural justice in passing the order impugned before the Tribunal. Clause 2 of the Central Civil Service (Fixation of Pay of Re employed Pensioners) Orders, 1986 is extracted as above : “2. Application (1) Save as otherwise provided in these orders, these orders shall apply to all persons who are reemployed in Civil Services aid posts in connection with the affairs of the Union Government after retirement on pension,(emphasis supplied) gratuity, and/or Contributory Provident Fund benefits from the services of; (a) Union Government including Railways, Defence and posts and Telegraphers; (b)State Governments and Union Territory Administrations and; (c) Public Sector Undertakings, Local Bodies, Autonomous Bodies like Universities or Semi-Government Organisations like Posts and Telegraphers.” 13. Clause 2(1) axiomatically shows the inapplicability of the said Rules to the facts of the present case. Clause 2(1) axiomatically shows the inapplicability of the said Rules to the facts of the present case. A mere glance of the said Rules will reveal that it applies to the case of a person who was re-employed in civil service and the post in connection with the affairs of the Union of India after retirement on pension. The extent of opaque consideration that weighed the minds of the Tribunal in passing the order impugned in the Original petition is evident from the fact of its inability to appreciate the extent of the applicability of the said Order to the petitioner. Admittedly, the petitioner is not a pensioner from the Naval Service. Though he was discharged and re-employed as a Civilian, and had refunded the entire gratuity which enabling him to opt under Rule 19(1) of the CCS (Pension) Rules, 1972 as amended in the year 2021. 14. Added to the above, the Tribunal in its order impugned has specifically noticed the objection of the respondents which prima facie appears to be is calculating the Military Service Pay, grade pay and X-pay while fixing the pay of the petitioner. The relevant portion of the Tribunal’s observations are extracted below:- “28. Consequent to the reply statement filed on 10.02.2017 a rejoinder was filed by the applicant on 22.05.2017. The applicant once again reiterated his contention that all the orders of the DoP&T, such as the Annexure R-4 order dated 08.11.2010 produced by him at Annexure A-13 in the O.A, in their very subject deal with “fixation of pay of re-employed pensioners treatment of Military Service Pay". He reiterated that, being a non pensioner, these DoP&T O.Ms are not applicable as far as he is concerned. Further, in his option certificate at Annexure A-6, he had clearly scored off the word 'pension' to indicate that he was not receiving any pension. Hence, by Annexure A-6 it is established that he is a non pensioner. This was further reaffirmed by the Annexure A-9 letter of the Principal Controller of Defence Accounts dated 07.11.2014, which had verified his military service and classified him as non pensioner. Thus, there can be no doubt to his status as a non pensioner. It was also submitted that an understanding of the true purpose for deduction of Military Service Pay indicated in Annexure R-4 would clarify the issue. Thus, there can be no doubt to his status as a non pensioner. It was also submitted that an understanding of the true purpose for deduction of Military Service Pay indicated in Annexure R-4 would clarify the issue. The applicant submitted that as far as Ex-Servicemen pensioners are concerned, the Military Service Pay is being already included as part of their basic pay for calculation of pension. Thus for these pensioners (if they are reemployed) a further inclusion of Military Service Pay in the re-employed pay would result in duplication or a double counting of the military benefit and would amount to unjust enrichment. Hence, what Annexure R-4/Annexure A-13 does is to simply avoid such a situation. However, this situation is not applicable to his case because he is a re-employed Ex-Serviceman without pension. Since he does not receive any pension, he has not received any amount as an element of Military Service Pay in violation of Annexure R-4. It is thus ridiculous to suggest that he is not eligible for his previous Military Service Pay to be taken into account for his pay fixation.” 15. Therefore, the Tribunal was quite aware of the objection of the respondents which was confined to the inclusion of Military Service Pay (MSP) and X-pay as a component while fixing the last drawn pay as a Civilian with the respondents. Therefore, in our considered view, it was not open for the Tribunal to have embarked upon a roving enquiry as to what was the exact fitment of pay which the petitioner was entitled to and should not have undertaken the exercise of an ordinary administrative authority. We refrain ourselves from commenting further on this issue. 16. Coming back to the issue as to whether the respondents are justified in contending that the MSP and x-pay has to be excluded from the pay band of the petitioner, we have no doubt in our mind to conclude that the said contention has no justiciable legs to stand. It is pertinent to note that the petitioner’s option under Rule 19(1) of the CCS (Pension) Rules was accepted and accordingly, the pay was refixed. The component of MSP and X-pay could have been excluded by the respondents only if the petitioner was drawing pension for the erstwhile service rendered in the Navy as Artificer-IV. It is pertinent to note that the petitioner’s option under Rule 19(1) of the CCS (Pension) Rules was accepted and accordingly, the pay was refixed. The component of MSP and X-pay could have been excluded by the respondents only if the petitioner was drawing pension for the erstwhile service rendered in the Navy as Artificer-IV. The purpose behind excluding the MSP and X-pay from the last pay drawn by the ex-servicemen is that the pension granted on account of their service before discharge would certainly contain the component of MSP and X-pay. Therefore, it is with the intention of avoiding a double benefit for the ex-servicemen while getting discharge from the military service that the Government of India had come up with the relevant orders to exclude the MSP and X-pay while fixing the last drawn pay of the discharged ex-servicemen. We have no iota of doubt in holding that the respondents are not entitled to re-fix the pay of the petitioner by excluding the MSP and X-pay from the pay band. This is precisely for the reason that the petitioner was never a pensioner in the Navy while his services were discharged as Artificer-IV and then thereafter he was re-employed as a Civilian in the Navy. Therefore, the Tribunal had certainly misappreciated the entire issue and could not have embarked upon the task of issuing certain directions, which were completely outside the scope of the original application. 17. There is yet another reason as to why the Tribunal’s orders cannot be sustained. We have already observed that the respondents came up with a case that the petitioner’s pay ought to have been refixed in terms of the office memorandum issued in the year 1986 only in the additional written statement. It is pertinent to note that there is a clear admission in the first reply statement filed on behalf of the respondents that the petitioner was not a pensioner . However it was further added that the petitioner was not entitled to have his pay fixed by including the component of the MSP and X-pay etc. based on Office memorandum No.3/19/2009 dated 5.4.2010. However later when the additional reply statement was filed, the respondents resiled from the above contention and raised a new point that the pay of the petitioner ought to have been fixed in terms of 1986 order. based on Office memorandum No.3/19/2009 dated 5.4.2010. However later when the additional reply statement was filed, the respondents resiled from the above contention and raised a new point that the pay of the petitioner ought to have been fixed in terms of 1986 order. In our view the dichotomous approach should not have been permitted by the Central Administrative Tribunal and it certainly erred egregiously in accepting the additional reply statement. It is pertinent to note that the applicability of AnnexureR5 office memorandum was never considered by the Tribunal. In our view, even it was considered, it could not have been applied to the case of petitioner since he had refunded the amount as required by the respondents with interest and hence he was certainly entitled to the benefit of Rule 19(1) (b) of the CCS (Pension) Rules, 1972. It is pertinent to note that during the pendency of these proceedings, the respondents themselves did not embark upon refixing the pay of the petitioner in terms of the office memorandum issued in 1986. In view of the matter, the Tribunal clearly exceeded its jurisdiction in issuing the impugned directions, which are per se unsustainable in the eyes of law. Accordingly, we allow the original petition and set aside Ext.P10 order dated 22.1.2024 in O.A.No.523/2016. The original application would stand allowed as prayed for. Resultantly, the respondents are directed to grant all consequential benefits, flowing out of the same within a period of three months from the date of receipt of a copy of this judgment. No order as to costs.