Saturday, November 3, 2012

TA No. 314 OF 2010 on 6 APRIL, 2011





HON'BLE SHRI V. AJAY KUMAR           ..        MEMBER (J)

Sri R.S. Naik – II,
aged about 54 years,
S/o Subbaiah Naik,
Working as Telephone Mechanic,
Telephone Exchange, Kumta.                         ...                                 Applicant

(By Advocate Shri M.S. Bhagwat)


1. The General Manager,
   Bharat Sanchar Nigam Limited,

2. The Chief General Manager (Telephones),
   Bharat Sanchar Nigam Limited,
   No.1, Swami Vivekananda Road,
   Ulsoor, Bangalore-560 008.                         ...                                 Respondents

(By Advocate Shri Vishnu Bhat)


Hon'ble Smt. Leena Mehendale, Member (A) :

            This Transferred Application dated 3.4.2010 was originally filed with the Hon'ble High Court of Karnataka in Writ Petition No.485/2008 on 8.1.2008. 

2.         The applicant prays for quashing the order at Annexure-A ordering refixation of pay scale of the applicant with effect from 1.12.2007 by the Bharat Sanchar Nigam Limited. 

3.                 Some historical  facts of the case are  required for understanding the issue in the
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OA. The  applicant joined the department as a Lineman.  As per Annexure-A/7, he was drawing Rs.4050/- in the pay scale of Rs.3200-85-4900/- as on 1-1-2000 as SIO.  He was promoted as TM (Telephone Mechanic) on 22-1-2000 and his pay was fixed at Rs.4100/- with effect from 22-1-2000 and the date of next increment was 1-1-2001.  Things were smooth so far. 
4.                   Thereafter, from 1-10-2000 BSNL became a new entity separate from DOT and the pay scales were revised from earlier CDA scale to new IDA scale.  On 25.2.2002, the respondents issued notification which allowed the employees to give a revised option for pay fixation within a month (Annexure-E).  The applicant gave his option on 28.8.2003 (Annexure-F) and the BSNL rejected his option by the endorsement order dated  30.09.2003.   So the applicant approached the High Court of Karnataka in W.P. No.800/2004.  The High Court allowed the same (Annexure-K) and directed the BSNL to consider the case for fixation of pay as per the option given by him.  BSNL  once again obtained fresh option from him on 15.02.2006 and carried out the pay fixation.  The new pay fixation order was passed on 5-12-2006 (Annexure-A/18).  Thus, the things became satisfactory for the applicant once again.   We must mention here that he did not challenge this order even though it contained two errors as will be seen later.  One of them heavily favoured the applicant.

5.         It is the contention of the applicant that nearly one year later, the BSNL issued a letter dated 7.12.2007 (Annexure/A-1) which is impugned and which would have the effect of reducing his pay.  The said letter gave an opportunity to the applicant to submit his representation within 15 days failing which it would be presumed that the suggested change would be accepted by him.  On 18.12.2007, the applicant represented that the new refixation of pay was opposed to the direction of the Hon'ble High Court issued in earlier WP No.800/2004.  However, without passing any order on the representation, the BSNL
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proceeded straightaway to reduce this pay allegedly from Rs.7845/- to Rs.7290/- with effect from 1.12.2007.  This is borne out from the salary slip issued to him in January,2008 pertaining to his salary for December,2007.  Hence, the applicant filed the second Writ Petition No.485/2008 challenging the reduction of  pay, being opposed to Article 14 of the Constitution.  The same Writ Petition  was transferred to this Tribunal as T.A. No.314/2010 and is now under consideration.

            6.         It is seen from Annexure–'A' - an order from BSNL No.E-31-2/Anomaly/94 dated 07.12.2007 which is the impugned order for reduction in pay that the reasons assigned therein are as below::-
….”as per Govt. Of India, M O C & IT, DOT New Delhi Letter No.1-1(1)/06-PAT dated 12-09-2006 endorsed under Corporate Office letter No.1-5/2004-/PAT(BSNL) dated 11-10-2006 received under CGMT Bangalore Letter No.A&P/1-1/Rlgs/2006-07 dated 25.11.2006 your pay should have been fixed from CDA Scale to IDA scale on point to point basis (Copies are enlosed herewith)”

7.                   By examining this point-to-point correspondence the pay which was fixed earlier at Rs.6660/- with effect from 01.01.2001  was brought down to  Rs.6180/-. The department did not point out any recovery for the period from 01.01.2001 to 30.11.2007.  The department implemented the new pay only with effect from 01.12.2007. Thus, while the applicant drew the salary of Rs.7845/- in Novermber, 2007, the salary paid in December, 2007 and thereafter was at the rate of  Rs.7290/-.

8.         So, the pertinent question here is whether the respondent is justified in issuing Annexure-'A'.  In the TA as well as in the expanded version filed before the Tribunal and during arguments, only two points were agitated to suggest that this was not justified.  Firstly, the learned counsel vehemently claimed that this was against the first order of the High court in WP No.800/2004. No calculation is submitted to support how it was so. 
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The second argument was that the respondent department proceeded to give effect to the impugned order at Annexure-'A' by ignoring and not answering the representation dated 18-12-2007.
9.                   It is seen from the reply statement at paras – 8 and 9 that the department has justified the impugned order date 7-12-2007. The department has taken into account the order issued by the Hon'ble High Court of Karnataka in the first Writ Petition No.800/2004  and gave one more opportunity to the applicant to give his revised option for pay fixation.  Then, accepting his revised option they refixed the pay at Rs, 4100/- (CDA scale) with effect from 22.01.2000 up to 30.09.2000 and with effect from 01.10.2000, i.e., the date of BSNL coming in existence, the CDA scale became due for conversion into IDA scale.  The old IDA scale was Rs.4000 – 100 – 6000 and equivalent new IDA scale became 5700 – 160 – 8100.  Thus his old CDA pay of Rs.4100/- with effect from 22.01.2000 became Rs.5860/- in IDA scale from 1-10-2000 to 31-12-2000. Considering him as eligible for one regular and one added increment, as per option and considering his next date of increment as 01-01-2001 he was given benefit of not one but two increments with effect from 1-1-2001.  This is in accordance with the instructions given by the Hon'ble High Court in the first WP No.800/2004.  Thus his pay on              01-01-2001 would become Rs.5860/- + Rs.320/- = Rs.6180/-.  Had he not been given one additional increment as directed by the High Court and as per  option, his salary on 01.01.2001 would be limited to Rs.5860/- + Rs.160/- which would be equal to Rs.6020/- only.
10.       Therefore, at reply statement para-8 it is correctly argued that the office has complied with the orders of the Hon'ble High Court and refixed his salary after accepting his revised option.  It was however, erroneously calculated  as Rs.6660/- with effect from 01.01.2001 while it should have been only Rs.6180/-. This is the error we have mentioned
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at para 4 (supra).  This error continued without notice till 30.11.2007 and hence, the same needs to be corrected..  The department has revised it only with prospective effect i.e. from 01.12.2007 and not from  01.01.2001, i.e., not with retrospective effect.
11.               Coming back to the application filed by the applicant in Writ Petition No.485/08 now T.A.314/10, it is seen that up to para-2.3 the applicant has mentioned privious history till the decision of the High Court in first Writ Petition.  The effect of the order passed in Writ Petition 800/2004 has been written down by way of a chart at para – 2.4.  It is seen therefrom that upto December, 1999 he was in a junior post having pay scale Rs.3200 – 85 – 4900 and was then drawing pay of Rs.4050/-. His date of promotion as T.M. was    22-01-2000 on which day his CDA pay became Rs.4100/- in the scale Rs.4000-100-6000/- and on 1-10-2000, corresponding IDA pay became Rs.5860/- in the  scale Rs.5700–160–8000/-.  Thus, it appears that F.R.22(1)(a)(ii) has been applied when the salary became Rs.4100/- with effect from 22.01.2000.  The equivalent Rs.5860/- in the IDA scale, continued till 31-12-2000.

12.               Upto this point the Chart at para – 2.4 is in agreement with Annexure-A/18 as well as with what is stated in the impugned order dated 07.12.2007.  Next line of para – 2.4 goes to state that the salary which was Rs.5860/- upto 31.12.2000 would become Rs.6660/-, and this also tallies with what was actually mentioned in order at Annexure-A/18.

            13.       A mere comparison of the pay due upto 31.12.2000 and the pay  that would become due on getting two increments wef 01.01.2001 reveals the incorrectness of pay fixation in Annexure -A/18.  The pay of Rs.5860/- upto 31-12-2000 must, on two increments become Rs.6120/- and not Rs.6660/-.  Further just as the respondents have not
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noticed it, so also the applicant has not noticed or mentioned it and continuned to enjoy the benefit of the mathematical error committed in pay fixation.  It is for this reason that in subsequent paras of the OA he  has not given any justification as to why the salary could be Rs.6660/- with effect from  01.01.2001.  He only agitated that the show cause notice given to him was dated 07.12.2007 and received by him on 18.12.2007 giving him 15 days period for representation.  Then, even before the period of 15 days was over the department had proceeded to draw the salary for December, 2007 on the basis of the corrected pay fixation statement.  The applicant also refuses to call it a corrected pay fixation statement but chooses to call it only refixation statement.  His second ground is that such a reduction is against the High Court order in W.P. No.800/2004 but without elaborating how.  In his expanded application before Tribunal he has raised a third ground which very interestingly argues the issue of FR 2291)(a)(i) and FR 22(1)(a)(ii).  This needs a mention despite being a minor issue.  At para 4.5 of the expanded application, the applicant has stated that he had requested his revised option under FR 22(1)(a)(i) after getting promotion as TM on 22-1-2000.  However, the pay revision granted to him from 22-1-2000 is as under FR 22(1)(a)(ii) which is against his option as well as the direction given by the High Court.  However, beyond this one sentence, he has not proceeded to elaborate the matter. 

            We have examined the above two rules as well as the pay fixation given to him by order dated 5-12-2006.  We find that he was drawing a pay of Rs.4050/- as on 1-1-2000 in the earlier grade of SIO.  On his promotion on 22-1-2000, his pay was fixed at Rs.4100/- which comes to the next stage of the scale of  Rs.4000-100-6000/-.  This is as per FR 22(1)(a)(ii).  This seemingly wrong situation continued upto 39-09-2000 and upto 31-12-2000 in the equivalent IDA scale.  However, it did not continue from 1-1-2001 onwards. From that date, the department gave him the benefit of one additional increment, thus
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giving him two increments between 22-1-2000 and 1-1-2001 and bringing his pay to Rs.4300/- in CDA scale.  Had the department scrupulously followed FR 22(1)(a)(i), the effect would have been to give him one added increment on 22-1-2000 and the regular increment on 1-1-2001 which would again bring him to the same level of Rs.4300/- of the CDA scale.  Had they continued with FR 22(1)(a)(ii) he would get only one increment and his CDA pay would remain at Rs.4200/- on 1-1-2001.  Thus, the discrepancy is only for the period from 22-1-2000 to 31-12-2000 but corrected with effect from 1-1-2001. This order was issued to the applicant on 5-12-2006 (Annexure-A/18).  Had he wanted to raise an objection regarding his pay fixation from 22-1-2000 to 31-12-2000, he should have done so within one year (Annexure-A/18).   However, the applicant did not choose to raise the objection for the  very obvious reason that by the same order, his slary from   1-1-2001 became Rs.4300/- in CDA scale whose equivalent in the IDA scale was Rs.6180/- but was erroneously mentioned as Rs.6660/-.  Thus, giving a benefit of about Rs.500/- p.m.  He continued to enjoy this extra benefit upto 30-11-2007.  Therefore, we feel that if he wants to claim the benefit of FR 22(1)(a)(i) for the period from 22-1-2000 to 31-12-2000, then he also must forego the erroneous benefit that he received for the period from 1-1-2001 to 30-11-2007 which is almost seven years.  In any case, the claim for the period 22-1-2000 to 31-12-2000 is also barred by limitation considering that he received pay fixation order on 5-12-2006, but he filed the writ petition only on 8-1-2008 and that too not for challenging his pay fixation for the period from 22-1-2000 to 31-12-2000. We would therefore, not say more about those 11 months, but reiterate that the benefit which he received from 1-1-2001 was as per FR 22(1)(a)(i) and the error for the eleven months of the year 2000 can be ignored at this late stage.
14.              In the conclusion we see that no injustice has been done to the applicant as far as his revised option is concerned.  The revised option was duly considered and he was
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given the benefit of two increments from 01-01-2001.  The pay fixation order in Annexure-A/18 dated 05-12-2006 gives this effect and goes on to fix the pay as per High Court direction.  However effect of two increments would be to increase the pay from 5860/- to Rs.5860/- + Rs.320/- = Rs.6180/-.  It was an error to order it as Rs.6660/- .  The department has acted judiciously in not ordering any recovery for the extra salary paid from 1-1-2001 upto 30-11-2007 and have ordered the reduction of pay only from 01.12.2007.   There is no need to interfere with that order.
15.       The TA is therefore, dismissed.  No order as to costs.

                                    (V. AJAY KUMAR)                                       (LEENA MEHENDLE)
                                          MEMBER (J)                                                        MEMBER (A)


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