Central Administrative Tribunal - Bangalore
P. Shivakumar And Ors. vs Union Of India (Uoi) And Ors. on 14 January, 2003
Equivalent citations: 2004(2)SLJ353(CAT)
JUDGMENT S.K. Hajra, Member (A)
1. The applicants filed these O.As. see king direction to the respondents to grant them incentive bonus/incentive allowance in pursuance of Circular No. PC-V/98/1/7/4/1 dated 21.6.99 issued by the Railway Board, Ministry of Railways, Government of India (Annexure A-4) and to pay them arrears with effect from the date the benefit was payable to them and to continue to pay the said benefit in accordance with the Circular.
2. The contentions advanced by the learned Counsel for the applicants are as follows:
The applicants are working in the Railway Workshop of Southern Railways in Mysore as Junior Engineers Gr. I, Grade II, Supervisors, Progressmen, Adremo Operators in Production Control Organisation (PCO). Incentive bonus is payable for extra-production and is admissible to all the Railway Workshops. Justice Pandian, a retired Judge of the Hon'ble Supreme Court recommended payment of incentive bonus to indirect employees like the applicants who contribute to production. The applicants are entitled to incentive bonus for their extra work. Despite the circular issued by the Railway Board on payment of incentive bonus, the applicants were denied this benefit. The non-payment of the incentive bonus to the applicants while paying it to employees of other Workshops whose service conditions are same amounts to hostile and invidious discrimination and is ultra vires the provisions of Articles 14, 16 and 21 of the Constitution of India. The denial of incentive bonus to the applicants for their contribution to increased production with extra work is not only arbitrary but also verges on "begar" which is violative of Article 23 of the Constitution of India. The learned Counsel for the applicants cited the following judgments of the Hon'ble Supreme Court in support of his contentions: -
(1) Titaghur Paper Mills Co. Ltd. v. Their Workmen etc., AIR 1959 SC 1095. (2) National Iron and Steel Co. Ltd., Belur, Howrah v. The Workmen and Anr., AIR 1963 SC 325. (3) M.P. Singh v. U.O.I., AIR 1987 SC 485.
(4) Jaipal v. State of Haryana, 1988(2) SLR 710 (SC).
(5) R.D. Gupta v. Lt. Governor, Delhi Administration, 1987(4) SLR 711 (SC).
3. The learned Counsel for the respondents argued as follows:
In order to boost productivity, the scheme of 'pavement by results' was introduced in the form of Incentive Bonus Scheme. In PCO, Mysore Railway Workshop, persons manning ex cadre posts, with a fixed tenure of 5 years and bereft of the benefit of career progression are entitled to incentive bonus. The applicants, on the other hand, hold cadre posts with prospects of career progression, monetary benefit, improved status and greater stability. In consultation with the recognised. Unions namely Southern Railway Employees Sangh (SRES) and Southern Railway Mazdoor Union (SRMU), the posts in three wings of PCO had been declared cadre posts. The applicants, the holders of cadre posts, unlike the holders of ex-cadre posts in PCO, Railway Workshop, Mysore, are not entitled to incentive bonus. The plea of the applicants that they are entitled to incentive bonus by virtue of the recommendation of the Pay Commission is untenable. As they were not in receipt of incentive bonus prior to the implementation of the Fifth Pay Commission recommendations, they are entitled to it. Incentive bonus is payable only to its recipients prior to recommendations of Fifth Pay Commission.
4. We heard both sides and perused the pleadings and records. The applicants joined the cadre posts of PCO Railway Workshop, Mysore, exercising options consequent on the decision arrived at in the meeting between the Railway Authorities and Unions (SRES and SRMU) on 3.11.79 (Annexure R-3) and/or as direct recruits to the cadre posts in PCO, Railway Workshop, Mysore. The applicants joined cadre posts in PCO either voluntarily or by direct recruitment, fully aware of the service conditions, career prospects and financial benefits admissible to the holders of cadre posts. Since the incentive bonus scheme was in operation prior to the applicants' entry to the cadre posts in PCO, Mysore Railway Workshop and as the applicants must have been aware that they were not entitled to incentive bonus by virtue of holding cadre posts, they have no reason to feel aggrieved for not getting incentive bonus. They joined cadre posts in PCO, Mysore Railway Workshop, knowing full well that incentive bonus was not admissible to them.
5. The applicants relied on recommendation of the Pay Commission for grant of incentive bonus to them. The Railway Board in Circular No. E(P&A) 1-99/SP-1/WS-1 dated 10.8.99 (Annexure A-8) which was issued in the context of the recommendation of the 5th Central Pay Commission and decision to grant PCO allowance (known as Special Pay prior to IV CPC recommendation) to staff of PCO stated categorically as follows:
After careful consideration of the matter, it has been decided that the rates of special allowance to the staff of PCO who have been enjoying this benefit hither to, may be kept at 15% of the basic pay in the revised scales of pay as contained in Railway Service (Revised Pay) Rules, 1997." (Emphasis added)
6. It is indisputable that the applicants were not enjoying this benefit before issue of the aforesaid circular. Therefore, the plea of the applicants for grant of incentive bonus to them based on the recommendation of the 5th Pay Commission is misconceived.
7. The fixation of pay and allowances and financial benefits admissible to Government employees admittedly falls within the domain of executive policy of the Government. The Hon'ble Supreme Court in Shiba Kumar Dutta and Ors. v. Union of India and Ors. 1997(1) SLJ 463 (SC), held as follows:
"Nomenclature and fitment is one of the executive policy of the Government. Unless the action is arbitrary or there is invidious discrimination between persons similarly situated doing same type of work, as is pointed out, it would be difficult for the Courts to go into the question or equation of posts or fitment into particular scale of pay. They must be left to be decided by the Expert Committee and Government. Under those circumstances, the Tribunal is justified in refusing to go into the question."
(Emphasis added)
8. The payment of incentive bonus, its rate and the category of persons to whom it is to be paid are to be decided by Government on consideration of all relevant financial administrative and managerial aspects. The respondent-department framed the policy on payment of incentive bonus taking relevant factors into consideration.
9. It may be relevant to point out here that the Hon'ble Supreme Court on the question of policy decision of the Government held as follows in the case of State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors., (1998) 4 SCC 117=1998(2) SLJ 35 (SC) :
"It it not normally within the domain of any Court to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belong to the executive."
(Emphasis added)
10. The Hon'ble Supreme Court in Asif Hameed v. State of J and K, 1989 Supp (2) SCC 364, held as follows:
"The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers".
11. The Government in this case decided that the applicants are not entitled to incentive bonus. There is no ground for overturning the policy decision of the Railway Board on the question of admissibility of incentive bonus arrived at on consideration of relevant aspects of this benefit.
12. The applicants assailed the denial of incentive bonus on the ground of invidious discrimination. Admittedly, the applicants who do not get incentive bonus being cadre post holders in PCO, Railway Workshop, Mysore and non-cadre post holders getting incentive bonus do not do the same type of work nor are they similarly placed. (emphasis added). The applicants themselves admitted in the O.As. that they were not direct workers. Moreover, they enjoy a plethora of benefits like career progression, improved status, tenurial stability which are not admissible to non-cadre post holders to whom incentive bonus had been granted. Thus, the applicants have been amply compensated for working in cadre posts. The applicants cannot claim the best of both words namely the career progression, improved status, tenurial stability of cadre posts as well as incentive bonus of non-cadre posts. Thus the payment of bonus to the applicants on top of the other benefits admissible to them would result in undue enrichment.
13. The contention of the applicants that the non-payment of incentive bonus to them is violative of Articles 14, 16, 21 and 23 of the Constitution of India is insubstantial. The applicants enjoying adequate pay, allowances, career progression, respectable status, protection of the law and security of tenure in public employment are beneficiaries of the rights enshrined in these Articles of the Constitution. They are not helpless, poor and exploited sections of society living on its periphery. The applicants who are adequately remunerated for their work cannot be described as victims of forced labour. The applicants and the non-cadre post holders who get bonus are not similarly placed nor do they perform same type of work. The non-payment of bonus to the applicants, who have adequate pay and allowances, good career prospects and enjoy security of service with all its benefits cannot by wildest exaggeration be considered victims of violation of Articles 14; 16, 21 and 23 of the Constitution of India. The decision of the authorities not to consider their persistent demand for payment of incentive bonus cannot be termed as violation of the aforesaid Articles of the Constitution of India.
14. The applicants cited 5 judgments of the Hon'ble Supreme Court as mentioned above. We perused the judgments and are of the respectful view that they have no bearing on the applicants' plea for payment of incentive bonus to them.
15. The Hon'ble Supreme Court Titaghur Paper Mills Co. Ltd. v Their Workmen etc., (supra) dealt with the raising of minimum basic wage from Rs. 35, payment of attendance bonus scheme to clerical as well as budli workers and admissibility of profit bonus. Admittedly, incentive bonus claimed by the applicants is different from the profit bonus and attendance bonus which were the points decided by the Hon'ble Supreme Court in this case.
16. The point at issue National Iron and Steel Co. Ltd., Belur, Howrah v. The Workmen and Anr., (supra) was the award of the Tribunal on incentive bonus without obtaining proper materials and matters to be considered by the Tribunals in revising the incentive bonus scheme. The non-payment of bonus to the applicants cannot be equated with the issues dealt with in the aforesaid case by the Hon'ble Supreme Court.
17. M.P. Singh and Ors. v. Union of India and Ors., (supra) focuses on grant of special pay in the cadre of police officers for arduous nature of their duties and the classifications of officers in two groups. The applicants' case does not come within the ambit of the judgment in this case.
18. In Jaipal v. State of Haryana, (supra), the Hon'ble Supreme Court laid down the law on nature of duties performed by teachers employed in non-formal education scheme and the doctrine for equal pay for equal work. The doctrine for equal pay for equal work does not come within the purview of these O.As. nor is it a relief prayed for in the O.As. The bone of contention in these O.As. is non-payment of bonus to the applicants and not demand for equal pay for equal work.
19. As regards R.D. Gupta v. Lt. Governor, Delhi Administration, (supra) the Hon 'ble Supreme Court held on enhanced pay and ex gratia payment to ministerial staff working in other wings. The questions relating to enhanced pay and ex gratia were not raised in the present O.As. nor have they been projected as a relief.
20. To sum up, the applicants were found ineligible for incentive bonus as they work in cadre posts in PCO Mysore Railway Workshop, enjoy career progression, better status and stable tenure which are not available to the recipients of incentive bonus in non-cadre posts. The applicants and the recipients of incentive bonus are not similarly situated nor these two categories of employees do the same type of work and nor enjoy the same financial and other benefits. This apart, the question which category of employees should be paid incentive bonus at what rate is a policy matter to be decided by the Government taking all relevant aspects, financial, administrative and managerial. Consequent on the non-admissibility of incentive bonus to the applicants on valid administrative grounds, no invidious discrimination was done them nor were any constitutional limits or statutory powers violated. Such being the case, we are of the view that there is no ground for giving relief to the applicants as prayed for in the O.As.
21. Accordingly, the O.As. are dismissed. No costs.