Sumathi K vs The Regional Director, Employees' State Insurance Corporation & Ors.

Justice K. Haripal, Judicial Member

The applicant has retired as MTS from the service of the ESI Corporation on 31.01.2022 after putting in more than 30 years of service. Even though she was granted all the three financial upgradations, is aggrieved by the last minute deduction made by the respondents in her pay after recalling the 3^rd MACP granted to her in Annexure A-4.

The service profile of the applicant can be stated thus: She had commenced service as seen from Annexure A-2(i) on 27.01.1992. The calculation of qualifying service shows that she has put in 30 years, 0 month and 5 days service. It has been pointed out that the applicant was granted 3^rd MACP, on completion of 30 years of service on 27.01.2021 as seen in Annexure A-4. Following Annexure A-4, she was granted fixation of pay also, raising her pay from Rs.37,200/- in Level 3 to Level 4 at Rs. 38,600/-. She retired from service on superannuation on 31.01.2022. Annexures A-4 and A-5 were issued on the eve of her retirement. As a necessary corollary, upgradation of pay to Rs.38,600/- should naturally reflect in her pension. The grievance of the applicant is that despite issuance of Annexures A-4 and A-5, ultimately when the PPO was issued, she was granted pension as if she had retired at Level 3 @ Rs. 37,200/-only. She has been denied other retiral benefits also in terms of Annexures A-4 and A-5. Aggrieved by this, she gave Annexure A-8 representation, which has been rejected through Annexure A-9 stating that her qualifying service for the purpose of reckoning total service was only 29 years, 11 months and 27.5 days. It is shown that from the total service of 30 years and 5 days 8.5 days has been deducted as seen in Anexure-A2(i) which is said to be the period of absence, treated as dies-non.

Thus the applicant has approached the Tribunal, seeking the following reliefs:-

Respondents filed reply statement along with Annexures R-2 and R-2(A). Through Annexure R-2, it is submitted that grant of 3^rd MACP was reviewed on 22.02.2022 and found that she was not entitled to get 3^rd MACP since she had certain period of unauthorised absence and her service records indicated that the following period are non-qualified period:

Respondents also placed reliance on Annexure R-2(A) order of the Principal Bench in OA 2215/2012. We may hasten to add that the said decision was rendered based on different facts and cannot be applied here.

The applicant filed a rejoinder.

We heard the learned Counsel on both sides at great length. The service profile of the applicant is not very much in dispute. As submitted by the learned counsel for the applicant, she had commenced service on 27.01.1992. After completion of 12 years of service, she was granted 1^st ACP on 27.01.2004. Similarly, on completion of 20 years of service remaining without any promotion she was granted 2^nd MACP on 27.01.2012 without any hesitation by the respondents. Annexure A-4 suggests that there was no hitch while granting 3^rd MACP on 27.01.2022. It was done after due deliberation by the screening committee. Accordingly, fixation was also done. But, ultimately such an upgradation was not reflected in her last pay and pension.

After hearing the learned Counsel on both sides, we are convinced that there is justification in approaching this Tribunal calling in question Annexures A-6, A-7 and A-9 which were issued as a second thought, after the retirement of the applicant. Annexure A-6 says that the Regional Director has reviewed the 3^rd MACP granted to her and that she is not eligible for the same. Similarly, through Annexure A-7, Annexure A-5 has been cancelled. Against this decision, she filed Annexure A-8 representation. Annexure A-9 order has been passed rejecting the request. It is further stated that, 'necessary action for revising the date of ACP/MACP already granted will be taken from this office and excess amount, paid if any, will be recovered, in due course'.

We notice that she was granted 1^st ACP on 27.01.2004 and 2^nd MACP on 27.01.2012 on completion of 12 years and 20 years service respectively. Even though it is pointed out that she had absented from duty without leave and dies non was clamped for the period quoted supra, during the period from 08.08.1994 to 29.03.2001 it is not known whether it were treated as break in service. Whatever it be, dies non was imposed. But non-functional financial upgradations under the first ACP and 2^nd MACP were granted to her on subsequent dates on 27.01.2004 and 27.01.2012. On both the occasions, these materials were available with the respondents and the fact that she remained unauthorisedly absent was never considered as an impediment in giving her financial upgradation. Therefore, such a contention cannot be raised by the respondents at the final leg of service.

Moreover, the MACP scheme makes it clear that an employee is entitled to get 3^rd MACP after spending 10 years continuously in the same Grade Pay. In that way, she had become entitled to get the 3^rd MACP on completion of 10 years from the date of grant of 2^nd MACP.

Again, she was granted 3^rd MACP as recommended by the Screening Committee held on 08.09.2021. The Regional Director has no manner of right to review the decision and say that she is not eligible for the 3^rd MACP. Evidently, she has put in more than 30 years of service in the same cadre, without any promotion. Therefore, the impugned documents cannot stand judicial scrutiny. We quash Annexures A-6, A-7 and A-9 and direct the respondents to grant her arrears of pay, revision of pension and other consequential benefits in terms of Annexures A-4 and A-5 within a period of 60 days from the date of receipt of a copy of the order.

The OA is allowed as above. No costs.