M J Prasad v. Garrison Engineer Central & Ors.

1. 17 Apr 12 to (14 days) 9340 1900 7306 3372 10228 65% 2 May 12 9340 1900 7306 3372 21918

3. Jun 12 ` 9340 1900 ` 7306 3372 21918

4. Jun 12 9340 1900 7306 3372 21918 72%

5. Aug 12 10770 1900 9122 3801 25593 72%

6. Sep 12 10770 1900 9122 3801 25593

7. Oct 12 10770 1990 9122 3801 25593

8. Nov 12 10770 1900 9122 3801 25593

9. Dec 12 10770 1900 ` 9122 3801 25593

10. Jan 13 10770 1900 10136 3801 26607 80%

11. Feb 13 10770 1900 10136 3801 26607

12. Mar 13 10770 1900 10136 3801 26607

13. Apr 13 10770 1900 10136 3801 26607

14. May 13 10770 1900 10136 3801 26607 Digitaaly

15. Jun 13 10770 1900 10136 3801 26607

16. Jul 13 11150 1900 11745 3915 28710 90%

17. Aug 13 11150 1900 11745 3915 28710

18. Sep 13 11150 1900 11745 3915 28710

19. Oct 13 11150 1900 11745 3915 28710

20. Nov 13 11150 1900 11745 3915 28710

21. Dec 13 11150 1900 11745 3915 28710

22. Jan 14 11150 1900 13050 3815 30015 100%

23. Feb 14 11150 1900 13050 3815 30015

24. Mar 14 11150 1900 13050 3815 30015

25. Apr 14 11150 1900 13050 3815 30015 26.. May 14 11150 1900 13050 3815 30015

27. Jun 14 11150 1900 13050 3815 30015

28. Jul 14 11150 1900 14392 4035 31877 107%

29. Aug 14 11150 1900 14392 4035 31877

30. Sep 14 11150 1900 14392 4035 31877

31. Oct 14 11150 1900 14392 4035 31877

32. Nov 14 11150 1900 14392 4035 31877

33. Dec 14 11150 1900 14392 4035 31877

34. Jan 15 11150 1900 15199 4035 32684 113%

35. Feb 15 11150 1900 15199 4035 32684

36. Mar 15 11150 1900 15199 4035 32684

37. Apr 15 up to 21 Apr days 11150 1900 15199 4035 22879 Total 1028132.00 50% of Total Amount Already paid 514066.00 50% of Total Amount to be paid 514066.00 (AK Thakur AEE EM For GE (Central) Delhi Cannt. Digitaaly

14. The Appellant Workman not being satisfied with the payments made to him in the matter, which was done strictly in consonance with the order passed by the High Court, served a demand notice upon the Respondents on 18.05.2016 claiming financial benefits under the ACP/MACP Scheme and claimed an amount of Rs.7,10,046/- on account of ACP/MACP for the year 1999, and 100% backwages for the period with effect from 18.04.2012 to 21.04.2015. The Appellant Workman also filed a complaint seeking recovery of the amount due to him by taking recourse to Section 33 C (1) of the I.D. Act before the RLC, Central.

15. A notice was issued to the Garrison Engineer, Military Engineer Service to attend the proceeding on 24.04.2017 and a detailed and exhaustive reply was filed in the matter informing the RLC, Central about the payments made in the matter and the reasons for not granting the benefits under the ACP/MACP to the Appellant Workman. The RLC, Central issued a show-cause notice dated 11.07.2019 seeking explanation for non-payment of Rs. 1,95,980/-, and a reply was filed by the Garrison Engineer, Military Engineer Service on 29.07.2019. The RLC, Central directed the Garrison Engineer to appear in person before him and the RLC, Central finally issued an order dated 30.10.2019 directing the payment of Rs. 1,95,980/- to the Appellant Workman.

16. The RLC, Central also took steps for recovery of the said amount and the recovery certificate was forwarded to the SDM, Delhi Cantt. for recovering the amount by taking recourse to Section 146 of the DLR Act. It Digitaaly is in those circumstances that the underlying Writ Petition was preferred before this Court.

17. The Learned Single Judge after hearing the parties at length has dismissed the Writ Petition. Paragraphs 30 to 45 of the order dated 15.03.2022 passed by the Learned Single Judge read as under:

32. In the present case, the office memorandum of the Management dated 9th August, 1999, which provided for MACP/ACP benefits reads as under: “The Fifth Central Pay Commission in its Report has made certain recommendations relating to the Assured Career Progression (ACP) Scheme for the Central Government civilian employees in all Ministries/Departments. The ACP Scheme needs to be viewed as a „Safety Net‟ to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. Accordingly, after careful consideration it has been decided by the Government to introduce the ACP Scheme recommended by the Fifth Central Pay Commission with certain modifications as indicated hereunder:xxx xxx xxx

3. GROUP „B‟, „C‟ AND „D‟ SERVICES/POSTS AND ISOLATED POSTS IN GROUP „A‟, „B‟, „C‟ AND „D‟ CATEGORIES Digitaaly 3.[1] While in respect of these categories also promotion shall continue to be duly earned, it is proposed to adopt the ACP Scheme in a modified form to mitigate hardship in cases of acute stagnation either in a cadre or in an isolated post. Keeping in view all relevant factors, it has, therefore, been decided to grant two financial upgradations [as recommended by the Fifth Central Pay Commission and also in accordance with the Agreed Settlement dated September 11, 1997 (in relation to Group „C‟ and „D‟ employees) entered into with the Staff Side of the National Council (JCM)] under the ACP Scheme to Group „B‟, „C‟ and „D‟ employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure-I) of regular service respectively. Isolated posts in Group „A‟, „B‟, „C‟ and „D‟ categories which have no promotional avenues shall also qualify for similar benefits on the pattern indicated above. Certain categories of employees such as casual employees (including those with temporary status), ad-hoc and contract employees shall not qualify for benefits under the aforesaid Scheme. Grant of financial upgradations under the ACP Scheme shall, however, be subject to the conditions mentioned in Annexure-I.

4. Introduction of the ACP Scheme should, however, in no case affect the normal (regular) promotional avenues available on the basis of vacancies. Attempts needed to improve promotion prospects in organisations/cadres on functional grounds by way of organizational study, cadre reviews, etc as per prescribed norms should not be given up on the ground that the ACP Scheme has been introduced.

6. SCREENING COMMITTEE Digitaaly 6.[1] A departmental Screening Committee shall be constituted for the purpose of processing the cases for grant of benefits under the ACP Scheme.

8. The ACP Scheme shall become operational from the date of issue of this Office Memorandum.”

33. A perusal of the said OM dated 9th August, 1999 shows that there are separate requirements for each of the group of employees to avail of ACP/MACP benefits. The same has various conditions as to which kind of employees are entitled to these benefits. It also contemplates the setting up of a Screening Committee for the purpose of processing the cases for grant of benefits under the ACP scheme. The OM is quite detailed and clear and, therefore, it would not be apposite to argue or hold that grant of MACP/ACP benefits by the Management qua employees governed by this OM is automatic. The requirements, the eligibility conditions, and the procedure for such grant having been prescribed, the same cannot be granted by merely reading it as part of „consequential benefits‟ or „continuity of service‟. As per the clarifications issued on 21st December, 2000, and 10th December, 2007, the grant of MACP/ACP benefits requires that a trade test would have to be passed by the workmen in order to be entitled for upgradation. This clarification was on the record of the RLC but does not find any mention in the impugned orders. Scope of proceedings under Section 33C(1)

34. Lastly, in so far as the arguments of the parties concerning the RLC‟s powers to grant MACP/ACP benefits at all is concerned, it is to be noticed that the application which was being dealt with by the RLC who was acting as the Recovery Officer, was under Section 33C(1) of the ID Act, which deals with money due to a Workman. Such an application does not contemplate an adjudication or an enquiry being held as to whether the Workman is entitled to the said benefits or not. Digitaaly

35. Section 33C (1) of the ID Act reads as under: “33C. Recovery of money due from an employer.- (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter VA or Chapter VB, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government; within a period not exceeding three months: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he Digitaaly may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.”

36. A perusal of the above provision shows that it relates to proceedings which are initiated where “any money is due” to any Workman from an employer under an award or a settlement. Thus, the question as to whether the amount is due or not, is not expected to be gone into in the said proceedings. The interpretation of Section 33C was clarified by a Constitution Bench of the Supreme Court in Central Bank of India v. P. S. Rajagopalan, AIR 1964 SC 743, as under: “It is remarkable that similar words of limitation have been used in s. 33C (1) because s. 33 C (1) deals with cases where any money is due under a settlement or an award or under the provisions of Chapter VA. It is thus clear that claims made under s. 33C (1), by itself can be only claims referable to the settlement, award, or the relevant provisions of Chapter VA. These words of limitations are not to be found in s. 33C (2) and to that extent, the scope of s. 33C (2) is undoubtedly wider than that of s. 33C (1). It is true that even in respect of the larger class. of cases which fail under s. 33C (2), after the determination is made by the Labour Court the execution goes back again to s. 33C (1). That is why s. 33C (2) expressly provides that the amount so determined may be recovered as provided for in subsection (1).”

37. In Punjab National Bank Ltd., AIR 1963 SC 487, the Supreme Court held that: “It is clear therefore that s. 33-C is a provision in the nature of executing and where the amount to be executed is worked out (for example in an award) or where it may be worked out without any dispute, s. 33-C(1) will apply. But where the amount due to workman is not stated in the award itself and there is a dispute as to its calculation, sub-s. (2) will apply and the workman would be entitled to apply thereunder to have the amount Digitaaly computed provided he is entitled to a benefit, whether monetary or non-monetary which is capable of being computed in terms of money.”

38. Subsequently, in Fabril Gasosa & Ors. v. Labour Commissioner & Ors., 1997 (1) SCALE 544, the Supreme Court elaborated upon the powers under Section 33C(1) of the ID Act, being restricted to the extent of calculation of a predetermined amount. The relevant observations of the Court are set out below:

39. This position was reiterated in M/s. Hamdard (Wakf) Laboratories v. Deputy Labour Commr. & Ors., AIR 2008 SC 968, which held as under: “An application under Section 33C(1) of the Industrial Disputes Act, 1947 must be for enforcement of a right. If existence of right, thus, is disputed, the provisions may not be held to have any application.”

40. Therefore, the settled position of law, is that in proceedings under Section 33C (1) of the ID Act, the RLC has limited powers and cannot exercise adjudicatory powers to ascertain whether the benefits claimed were due in the first place or not.

41. The RLC in this case, as the Recovery Officer, was only dealing with the implementation of the award as granted by the ld. Single Judge on 17th April, 2012, and was not adjudicating the question as to whether the Workman was entitled to MACP/ACP benefits. Conclusions

42. Clearly, therefore, in the background as set out above, the MACP/ACP benefits could not have been directly held to be money due to the Workman, especially in the light of the following factors: i) The Workman had sought continuity of service and consequential benefits in the statement of claim but not in the writ petition. In any case, the Court had merely granted reinstatement with only 50% of back wages and no other relief; Digitaaly ii) The judgment in Deepali Gundu (supra) clearly lays down in paragraph 33.[1] and 33.[2] that reinstatement with continuity of service and back wages is the normal rule but the Court awarding the back wages can exercise its discretion by considering the length of service of the Workman. By applying this rule, the ld. Single Judge in the order dated 17th April, 2012 had only granted 50% back wages; iii) In Mahabir Prasad (supra), as per the award, the workman was granted reinstatement with „continuity of service‟ but without back wages. In Jagdish Chander (supra), the management had assured the Court that it would provide continuity of service and pensionary benefits and then refused the same later. Since „continuity of service‟ was granted in these cases in the awards under challenge, the facts are distinguishable from the present case; iv) In any event, as per the Management‟s policies, various conditions have to be satisfied for grant of MACP/ACP benefits, including a trade test which has to be passed. Thus, these benefits could not have been granted as a matter of right, without the workman having undergone the said test/satisfied the prescribed criteria; v) The RLC could not have gone into such complex issues while passing the impugned orders under Section 33C(1) of the ID Act, as the jurisdiction of the RLC is limited to awarding „amounts due‟. The ACP/MACP benefits would not constitute „amounts due‟ in the facts and circumstances of the present case, especially in view of the order of the ld. Single Judge dated 17th April,

2012.

43. For the above-mentioned reasons, the impugned recovery certificates and attachment orders are not sustainable and the same are accordingly set aside. Digitaaly

44. However, in view of the protracted litigation, litigation expenses of Rs.50,000/- shall be paid by the Management to the Workman, within a period of two weeks, directly into the Workman‟s bank account. Details of the bank account of the Workman be furnished by the ld. Counsel for the Workman to the ld. Counsel for the Management.

45. The writ petition is allowed in these terms. All pending applications are disposed of.”

18. Heard Learned Counsels for the parties at length and perused the record, the matter is being disposed of at the motion hearing stage itself with the consent of the Parties.

19. The undisputed facts of the case reveal that the Workman in question was appointed as a muster roll employee with effect from 17.09.1982, and he was regularized with effect from 12.11.1984. His services were terminated on 15.11.1985, and the Workman raised an industrial dispute which was referred to the CGIT for adjudication.

20. The Appellant Workman alleged non-compliance of Section 25F of the I.D. Act, and also alleged violation of Section 25G and 25H of the I.D. Act. The CGIT did not grant any relief to the Appellant Workman and the Award passed by the CGIT was subjected to judicial scrutiny before this Court.

21. A Writ Petition was preferred by the Workman i.e. W.P.(C.) NO. 6796/2001 and was decided on 17.04.2012. The operative paragraphs i.e. Paragraphs 10 and 11 of the said order passed by the Learned Single Judge read as under: Digitaaly

22. An Appeal was preferred by the Respondent Management against the order passed by the Learned Single Judge however the Appeal was barred by a delay of 164 days. A Division Bench of this Court dismissed the Appeal by an order dated 04.01.2013 passed in LPA 764/2012, and the operative Paragraphs i.e. Paragraphs 3 and 4 of the order passed by the Division Bench read as under:

23. Thereafter, an SLP being SLP (C) No. 14018/2013 was preferred by the Respondent Management in the matter and the Hon’ble Supreme Court has dismissed the SLP by an order dated 13.11.2014. The said order passed by the Hon’ble Supreme Court is reproduced as under: “The special leave petition is dismissed.”

24. The Appellant Workman was paid all dues as per the order dated 17.04.2012 passed by this Court in W.P.(C.) No. 6796/2001. However, the Appellant Workman started claiming benefits on account of ACP/MACP, and filed a complaint before the RLC, Central under Section 33 C(1) of the

I. D. Act. An order was passed on 26.04.2013 by the RLC, Central directing the Respondent to pay a sum of Rs. 1,95,980/- to the Appellant on account of ACP/MACP dues. A translated copy of the note dated 26.04.2019 passed by the RLC, Central, as placed on record, is reproduced as under: “GOVERNMENT OF INDIA MINISTRY OF LABOUR AND EMPLOYMENT Digitaaly OFFICE OF THE DEPUTY CHIEF COMMISSIONER OF LABOUR (CENTRAL) FOURTH FLOOR, JEEVANDEEP BUILDING, PARLIAMENT STREET, NEW DELHI – 110001 Letter No.:- N.D./17/M.14/2015-8 Dated: 26.04.2019 NOTE In the present matter worker had joined the job as wireman in M.E.S. on 10/11/1984 but since 15/11/1985 his services were terminated. He raised this matter at the appropriate forum. Afterwards, Central Industrial Tribunal while deciding the case passed an award on 16/06/2000 according to which the termination of worker was judicial. The Worker challenged the award given by CGIT before the Hon'ble High Court of Delhi and Hon'ble High Court by its order dated 17/04/2012 cancelled the award dated 16/06/2000 of Industrial Tribunal. According to Hon'ble High Court the termination of worker was unfair and illegal from the very beginning (Void-ab-initio). At this stage the management again challenged judgment dated 17/04/2012 of Hon'ble High Court before the Division Bench where Division Bench quashed the petition filed vide its order dated 04/01/2013. Management again challenged the matter before the Hon'ble Supreme Court where the petition was quashed by the Hon'ble Supreme Court by order dated 03/11/2014.. It is clear from the above position that the Hon'ble High Court of Delhi's order dated 17/04/2012 has obtained finality in the said case which is enforceable. According to the applicant because his termination was wrong from the very beginning therefore his reinstatement should be treated in a way that he was never terminated. If reinstatement here is considered to be an uninterrupted (continuous) employment, which is fair and just, then the applicant will get all the facilities which are available to his counterpart at that time. Digitaaly After issuing the notice in this regard, the management raised an objection that the said applicant cannot be given all the same and equal facilities which are being given to similarly situated workers because in this ACP and M.A.C.P is also included for which the worker is required to pass an examination. A copy of any policy or rule was sought from the management of the compulsion of such qualification or to present any such example from which it would have proved that on the, basis of not passing it any worker had been deprived from A.C.P. and M.A.C.P. The management was also asked to submit the present documentary evidence of any staff immediately junior to the applicant so that the actual position could be ascertained but the management was found unable to provide any such document. In the above facts and circumstances, it would not be proper in my view to deprive the applicant of his statutory rights without any ground. Therefore, if approval is: received, then one R.C. for Rs 1,95,980/- will be issued in his favour because out of the amount payable 7,10,046/-, the management has paid Rs.5,14,066/-. Sd/- 29.04.2019 Signed (Tej Bahadur) Regional Commissioner of Labour (Central) New Delhi”

25. Thereafter, a show-cause notice was issued on 29.07.2019, and finally the RLC took steps for recovery of the amount by forwarding the recovery certificate to the SDM, Delhi Cantt. by taking recourse to Section 146 of the DLR Act.

26. The Learned Single Judge after careful consideration of the ACP Scheme has set aside the order passed by the RLC, Central as well as the proceedings before the SDM, Delhi Cantt. Digitaaly

27. This Court has carefully gone through the order passed in W.P.(C.) No. 6796/2001, and the order reveals that the Learned Single Judges as ordered reinstatement in service of the Appellant and has granted 50% of backwages to the Appellant Workman. The order does not reflect that the Learned Single Judge has granted all other consequential benefits also, and inspite of the fact that all other consequential benefits have not been granted to the Workman, the RLC, Central has certainly erred in law and facts in directing payment of amount on account of ACP/MACP.

28. The moot question before this Court is whether the Workman in question is entitled to financial upgradation under the ACP/MACP Scheme automatically on account of reinstatement or the terms and conditions of the ACP/MACP are to be fulfilled for Award of financial upgradation to an Employee in order to avoid stagnation.

29. The Government of India took a policy decision to grant financial upgradation to employees by introducing ACP/MACP in order to ensure that the employees who were stagnating on a particular Pay-Scale are granted financial upgradation in order to avoid stagnation and the grant of MACP was subject to certain terms and conditions. The Office Memorandum dated 19.08.1999, which has been considered by the Learned Single Judge and has been reproduced in Paragraph 32, makes it very clear that two financial upgradationa are granted on completion of certain number of years to service, to the employees who are stagnating on a particular Pay-Scale especially in cases where there were no promotional avenues or the employees were continuing without any promotion on the feeder post. The Office Memorandum dated 09.08.1999 also provided that the grant of Digitaaly ACP/MACP was not automatic and the requirements of eligibility conditions in the procedure for such grant was also mentioned in the MACP as well as ACP. Various clarifications were issued from time to time and the first clarification was issued on 10.12.2000, and a second clarification was issued on 21.12.2007. The clarifications issued on 21.12.2000 and 10.12.2007 are reproduced as under: “Appar Mahanidesh jaya Janshakti adjutant General Bhakti Addl. Illegible… Gen. of..illegible. Adjutant General of. Army Headquarter DHO PO New Delhi – 110011 21 Dec 2000 CLARIFICATION OF ACP SCHEME Following doubts..illegible.. connection with..illegible progressal in (ACP) Scheme clarified as under:- Point of Doubt Clarification

1. In Case of certain..illegible.. of employees provision of transport is stipulated for promotion of higher grade. Illegible…. Trade taxt. are taken by..illegible in the eligibility of promotion. As such passing of..illegible… its trade up gradate under ACP Scheme. There are employees who have completed 12/24 year of regular..illegible as on 09 Aug or an a later….. but they The issue has been examined in consultation with Min of Defence and Defence (Fin). They have clarified that financial upgradation with be granted from the date of eligibility. If he cleared the trade test in first attempt after 09 Aug 99. But if he fail in his first attempt and clear it subsequently, the effective date for grant of Digitaaly have passed the trade test later the due date for..illegible.. of ACP as and which trade test is conducted by the authority. What would be the affective date for grade of financial upgradation an employee illegible.. regulate trade test subsequently.

2. Grant of financial upgradation under ACP scheme to the employees in HS..illegible are in the payscale Rs. 4000-6000.

3. validity of undertaking taken from the employees an grant of second financial upgradation to accept the regular promotion subsequently, if not accepted, ACP will be withdrawn. financial upgradation would be from the date of trade test. For example, if an employee complete 24 years service in Dec 99 but in given trade test in Apr 2000, he will get his first upgradation from 09 Aug 99 and second upgradation from Dec 99. The DOP&T has clarified that the grade of master Craftsman may not be treated as part of hierarchy for the purpose of grant of financial upgradation under the ACP Scheme. Consequent to DOP&T clarification conveyed under MOD ID NO. 11(9)/99/D(Giv-I) dated 11 Dec 2000, such undertaking obtained, if any, he cancelled. (SM Sharma) DAAG/NP & Civ(a) For Adjutant General)” “Dte Gen of Personnel/CSCC Engineer-in-Chief‟s Branch Army Headquarters Kashmir House, New Delhi – 110011 85610/47/ACP/IND/Scheme/CSCC

10 Dec 2007 Digitaaly CE, Southern Command CE, Eastern Command CE, Western Command CE, Central Command CE, Norther Command CE, South Wester Command ACP SCHEME CLARIFICATION ON CONDITION 4 OF

ANNEXURE OF DOPT OM DT 09 AUG 1999

1. The issue pertains applicability of condition 4 of annexure-I of Govt. of India department papers and trg OM No 35034/1/97-estt (D) dated 09 Aug 1999, which stipulates that “if the 1st upgradation gets postponed on account passing trade test, this would have consequential effect on 2nd upgradation which would also get deffered accordingly.

2. All India Defence Employees Federation has represented that the only criteria for granting ACP regarding eligibility service should be 24 years of regular service counted from the Date of entry into service. According to them as..illegible 4 of DoPT OM NO. 35014/1/2003-Estt(D) dt 29 Jun 04, while a …illegible…. Has to be eligible in all aspect to hold higher post, insofar as..illegible.. of “eligibility service” is concerned, he should have complete prescribed 24 years of regular service.

3. MoD was request to clarify whether the first upgradation gets postponed on account on passing the Trade Test, the 2nd ACP can be given after completion of years of service or after 12 years of regular service from the date of joining 1st ACP.

4. MoD has clarified 1st upgradation under ACP is delayed due to not fulfilling the requirement of promotion, the 2nd financial upgradation would be given only a completion of 12 years after grant of 1st”

30. The aforesaid clarifications makes it very clear that an Employee is entitled for grant of ACP/MACP benefits subject to his clearing/ qualifying the trade trade test. The clarification makes it very clear that the conditions Digitaaly required for promotion to the next higher grade are also required to be fulfilled for grant of upgradation after completion of 12/24 years of service.

31. In the present case, it is an undisputed fact that the Appellant Employee never qualified the trade test and wants the ACP/MACP Scheme to be implemented in his case without fulfilling the eligibility criteria prescribed under the Scheme dated 09.08.1999 read with clarifications dated 21.12.2000 and 10.12.2007, and therefore, in the considered opinion of this Court, the Learned Single Judge was justified in setting aside the order passed by the RLC, Central and the proceedings pending before the SDM, Delhi Cantt.

32. The Division Bench of this Court in W.P.(C.) No. 8056/2015 titled Rajiv Sinha & Ors Vs. Ministry of Personnel, Public Grievances & Pensions & Ors while dealing with a matter regarding grant of higher pay on non-functional basis in view of Office Memorandum dated 24.04.2009 issued by Ministry of Personnel, Public Grievances and Pensions has dealt with a similar controversy.

33. In the aforesaid case also the IAS Officers were granted higher Pay- Scale without fulfilling the terms and conditions of the Office Memorandum and in those circumstances, this Court in the case of Rajiv Sinha (Supra) in Paragraph 9 to 12 has held as under:

10. In the facts and circumstances of the said case, the Hon‟ble Supreme Court proceeded to hold the following:-

11. Thereafter, in Punjab State Power Corporation Limited and Anr. vs. Bal Krishan, (2022) 1 SCC 322, the Hon‟ble Supreme Digitaaly Court reiterated its stance in Bhakra Beas (Supra). The operative Paragraphs of the Judgment read as under:

20. In view of the above, it was made clear by this Court in Bhakra Beas Management Board case [Bhakra Beas Management Board v. Krishan Kumar Vij, (2010) 8 SCC 701: (2010) 2 SCC (L&S) 694] that an employee could be said to be suffering from stagnation as per the office order dated 23-4- 1990 only if he possessed the requisite qualification for the next higher post and was unable to get the higher post on account of non-availability of such post.”

12. The executive instructions (Office Memorandum dated 24.04.2009) issued by Respondent No. 1 makes it very clear that an employee shall be entitled for financial upgradation subject to fulfillment of all prescribed eligibility criteria and promotional norms including bench-mark upgradation to a particular Grade Pay, and it also provides for screening. In terms of the OM dated 24.04.2009, the Petitioners cannot be granted upgradation in the manner desired by them. Since the manner in which the Petitioners have been granted upgradation on a non-functional basis is correct, no basis for interference with the Impugned Order is made out. The petition is, accordingly, dismissed.” Digitaaly

34. In light of the aforesaid judgment passed by a Division Bench of this Court and also keeping in view the ACP/MACP Scheme, this Court is of the considered opinion that an employee cannot be granted benefit under the ACP/MACP Scheme on completion of 12/24 years in case he does not fulfill the conditions mentioned therein regarding the passing in the trade test, by the said employee.

35. The Appellant Employee has not cleared the trade test, and, therefore, by no stretch of imagination, is he entitled for grant of financial upgradation under the ACP/MACP Scheme merely because he has been directed to be reinstated a service with 50% backwages.

36. This Court is of the considered opinion that the Learned Single Judge was justified in allowing the writ Petition preferred by the Garrison Engineer, Military Engineer Service.

37. Learned Counsel for the Appellant has placed heavy reliance upon a judgment dated 22.08.2022 delivered by the Hon’ble Supreme Court in the case of Union of India and Others Vs. Ex. HC/GD Virender Singh, 2022 SCC OnLine SC 1058, and his contention is that in spite of the fact that the Appellant has not cleared the trade test, he is entitled for the benefit under the MACP Scheme. Paragraphs 2, 3 and 14 of the said judgment read as under:

38. In Paragraph 3 of the aforesaid judgment, the Hon’ble Supreme Court has observed that the financial upgradation is granted to only those employees who have not received actual or functional promotion even after completion of the requisite service period though, otherwise, they have fulfilled the prescribed conditions for promotion. The Hon’ble Supreme Court in Paragraph 14 of the aforesaid judgment has allowed the benefit of financial upgradation even though the norms laid down for promotion were not fulfilled, only on the ground that the Central Armed Forces Personnel who were before the Hon’ble Supreme Court for administrative or other reasons could not undergo the pre-promotional course. Digitaaly

39. In the present case, the reason for non-grant of financial upgradation, if any, cannot be attributed to the Employer and the Employee at no point of time, even after he was reinstated back in service has cleared the trade test, and, therefore, the aforesaid judgment is distinguishable on facts.

40. Learned Counsel for the Appellant has also placed heavy reliance upon a judgment dated 14.10.2022 delivered by the Division Bench of the Rajasthan High Court in D.B. Civil Writ Petition No. 14070/2022 titled Union of India and Others Vs. Ram Chandra.

41. In the aforesaid case, financial upgradation was granted without passing of the trade test and later on the same was withdrawn. In the aforesaid case, even other identically placed persons who could not clear the trade test were granted upgradation under the ACP/MACP Scheme.

42. Paragraph 7 of the aforesaid judgment delivered by the Division Bench of the Rajasthan High Court is reproduced as under:

43. In light of the aforesaid, as the Employees therein were discriminated against other persons who have been granted promotion without passing the trade test, the High Court has passed the order in favour of Employees therein, and therefore, the judgment is again distinguishable on facts and no relief can be granted on the basis of the aforesaid judgment.

44. The fact remains that the Employee in question has not cleared the trade test and, therefore, the condition laid down under the ACP/MACP Scheme are not fulfilled, therefore, the question of holding him entitled under the ACP/MACP Scheme for grant of financial upgradation does not arise. This Court does not find any reason to interfere with the order passed by the Learned Single Judge.

45. The Learned Single Judge in the impugned judgment has also dealt with the scope of the proceedings under Section 33 (C) (1) of the I. D. Act. Section 33 (C) (1) of the I.D. Act reads as under: “Section 33 (C) (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, Digitaaly make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period.”

46. The aforesaid statutory provision of law makes it very clear that where any money is due to a Workman from an Employer under a settlement or an Award, the Workman can claim it by filing an Application under Section 33 (C) (1) of the I. D. ACT.

47. In the present case, the Award of financial upgradation under the ACP/MACP Scheme was at no point of time decided in favour of the Workman and the Workman was certainly not entitled for grant of financial upgradation as he did not clear the trade test which is a pre-requisite for grant of such upgradation. It is unfortunate that the RLC, Central had adjudicated a dispute by holding that the Workman is entitled for MACP.

48. The Application under Section 33 (C) (2) of the I. D. Act is restricted to the extent of calculation of pre-determined amount/ any money due to any Workman from the Employer under an Award. (See: Central Bank of India v. P. S. Rajagopalan, AIR 1964 SC 743, Punjab National Bank Ltd. v. K.L. Digitaaly Kharbanda, AIR 1963 SC 487 and M/s. Hamdard (Wakf) Laboratories v. Deputy Labour Commr. & Ors., AIR 2008 SC 968).

49. The RLC, Central in the present case has transgressed his jurisdiction by adjudicating a dispute relating to grant of ACP/MACP, and, therefore, the order passed by the RLC, Central is certainly contrary to the statutory provisions as contained under Section 33 (C) (1) of the I. D. Act. Resultantly, this Court is of the firm opinion that the order passed by the Learned Single Judge does not warrant any interference.

50. With the aforesaid, the present LPA stands disposed of. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

JUDGE MAY 15, 2023 aks Digitaaly