Rajasthan High Court - Jodhpur
Union Of India & Anr vs Kanti Ballab Joshi & Ors on 5 March, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
DBCWP No.8637/2011
Union of India & Anr. Vs. Kanti Ballab Joshi & Ors.
2
D.B. Civil Writ Petition No.8637/2011
Union of India & Anr.
vs
Kanti Ballabh Joshi & Ors.
DATE OF ORDER: 5th March 2012
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE C.M. TOTLA Mr. Ravi Bhansali, for the petitioners <><><> By way of this writ petition, the petitioners seek to question the order dated 26.05.2011 as passed in OA No.245/2010 whereby the Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the Tribunal') has allowed the claim as made by the claimants- employees, all working as Fitter General Mechanic in the office of Garrison Engineer, Abohar, District Firozepur, for Night Duty Allowance ('NDA') on the basis of their actual salary.
The Tribunal has allowed the OA aforesaid with reference to its earlier decision in OA No.34/2008: Ram Kumar & Ors. Vs. Union of India & Anr, decided on 05.11.2009. The Tribunal was of the opinion that the same yardstick was required to be adopted in this case as well and passed the following orders:
"(i) The Night Duty Allowance shall be paid to the applicants on the basis of the actual salary after taking out the pay structure determinants like HRA etc. which have no actual relation to the work performed and on the basis of this pay, thus arrived at, Night Duty Allowance is payable to the applicants also.
(ii) The applicants shall also be entitled to such arrears as is applicable from the date(s) it is due on the basis of actual pay thus arrived at, as also directed in the said earlier case as a principle."2 DBCWP No.8637/2011
Union of India & Anr. Vs. Kanti Ballab Joshi & Ors. Though the learned counsel for the petitioners frankly pointed out that the decision in Ram Kumar's case (supra), that has been followed and applied in the present case, was challenged in this Court in DBCWP No.9927/2010 but the said writ petition was dismissed by a Co-ordinate Bench of this Court on 01.08.2011 and has placed for perusal the said order dated 01.08.2011; however, the learned counsel attempted to argue that the direction as given by the Tribunal is contrary to the circular dated 25.06.1992 whereby the calculation of NDA in such matters was to be made on the basis of basic salary of the incumbent upto the maximum of Rs.2200/-; and such an aspect has not been considered in the earlier decision.
The petitioners cannot be permitted to seek re-opening of the issue by attempting to submit some additional ground or arguments, which ought to have been made in the previous petition and, in any case, shall be deemed to have been considered and decided because the orders earlier passed essentially related to the question of basis on which NDA was to be calculated. In fact, the attempt on the part of the petitioner-Union of India to challenge such kind of order was itself adversely commented upon by the Co-ordinate Bench of this Court in the aforesaid order dated 01.08.2011, the relevant portion whereof is reproduced hereunder:-
6. In our opinion too, the applicants are entitled to receive Night Duty Allowance. Indeed apart from the legal rights of the applicants to claim such Night Duty Allowance, which was rightly awarded by the Tribunal, it does not stand to any reason that an employee would work in the night by rending his valuable services and yet would not be paid any incentive in the form of special allowance for such services. It will be a mockery of the system that they take extra work or additional work from an employee and do not pay when it comes to payment on one pretext or other. It is really a matter of concern that 3 DBCWP No.8637/2011 Union of India & Anr. Vs. Kanti Ballab Joshi & Ors.
such order is being challenged by none other than the Government of India. In all fairness, the Government should have accepted the order of the Tribunal having once contested on merit before the Tribunal instead of challenging it in the writ petition. It is much more so when the order is neither illegal nor perverse.
7. Apart from the morality and basic human norms, in our opinion, the Tribunal very rightly examined the case of applicants' entitlement on the basis of the system prevailing in the department and the norms prescribed for such payment and then impugned directions were issued for such payment. We concur with such reasoning and conclusion and finding absolutely no merit in the writ petition, dismiss the same in limine."
In the aforesaid view of the matter and following this Court's decision in Ram Kumar's case (supra), this writ petition stands dismissed.
(C.M. TOTLA),J. (DINESH MAHESHWARI), J. cpgoyal/-