Kerala High Court
The Chairman And Managing Director vs P.K. Madhavan on 21 August, 2015
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939
OP (CAT).No. 291 of 2016 (Z)
-----------------------------
OA 180/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
PETITIONER(S)/RESPONDENTS IN THE OA:
-----------------------------------
1. THE CHAIRMAN AND MANAGING DIRECTOR,
BHARAT SANCHAR NIGAM LTD.,
BHARAT SANCHAR BHAVAN,
HARISH CHAND MATHUR LANE,
JANPATH, NEW DELHI-110 001.
2. THE CHIEF GENERAL MANAGER,
KERALA TELECOMMUNICATIONS, BSNL,
THIRUVANANTHAPURAM-695 033.
BY ADV. SRI.T.SANJAY, SC, BSNL
RESPONDENT(S)/APPLICANTS/RESPONDENT IN THE OA:
----------------------------------------------
1. P.K. MADHAVAN,
65 YEARS, S/O P.K. KUTTAPPAN,
DEPUTY GENERAL MANAGER (RETIRED),
SECONDARY SWITCHING AREA, BSNL, ERNAKULAM,
R/O PALANGAT HOUSE, CHEEPUMPADY,
PERUMPADAVOM POST, ELANJI VIA,
ERNAKULAM DISTRICT-686 665.
2. R.GOPINATHAN,
67 YEARS, S/O R. RAMAN MENON,
DEPUTY GENERAL MANAGER (RETIRED),
SECONDARY SWITCHING AREA, BSNL, PALAKKAD,
R/O 2/45, RENJINI HOUSE, AR NAIR COLONY,
KUNNATHURMEDU, PALAKKAD-678 013.
OP (CAT).No. 291 of 2016 (Z)
-----------------------------
3. T. C. KRISHNA MOORTHY,
68 YEARS, S/O T.R.CHIDAMBARA IYER,
DEPUTY GENERAL MANAGER (RETIRED),
SECONDARY SWITCHING AREA, BSNL, THRISSUR,
R/O G-2, ANUGRAHA APARTMENTS,
SINGLE STREET, OLD KALAPATHY,
PALAKKAD-678 003.
4. P. J. CYRIAC,
67 YEARS, S/O P.K. JOSEPH,
DEPUTY GENERAL MANAGER (RETIRED),
SECONDARY SWITCHING AREA, BSNL, KOTTAYAM,
R/O PARAPALLIL HOUSE, KATTACHIRA P.O.,
KOTTAYAM-686 572.
5. P.J.VARGHESE
70 YEARS, S/O VARGHESE JOHN,
DEPUTY GENERAL MANAGER (RETIRED)
SECONDARY SWITCHING AREA, BSNL,KOTTAYAM,
R/O PATTASSERIL HOUSE, THAZHATHANGADI,
KOTTAYAM-686 005.
6. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF COMMUNICATIONS AND
INFORMATION TECHNOLOGY,
DEPT. OF COMMUNICATIONS,
SANCHAR BHAVAN, 20, ASHOKA ROAD,
NEW DELHI-110 001.
R1 BY ADV. SRI.S.RADHAKRISHNAN
R2-R5 BY ADVS.SRI.S.RAJ MOHAN
SMT.R.ANJALI
SRI.ADITYA THEJUS KRISHNAN
SMT.ASWATHI SUKUMARAN
R6 BY SRI.N.NAGARESH, ASG
SRI.K.SHRI HARI RAO, CGC
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
10-08-2017, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
EL
OP (CAT).No. 291 of 2016 (Z)
-----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1 : TRUE COPY OF THE OA NO.180/00583/2015
FILED BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH DATED 21-8-2015.
EXHIBIT P2 : TRUE COPY OF REPLY STATEMENT DATED
2-2-2015 FILED ON BEHALF OF THE BSNL IN
THE OA.
EXHIBIT P3 : TRUE COPY OF THE REJOINDER DATED 19-7-2015
FILED BY THE APPLICANT IN THE OA.
EXHIBIT P4 : TRUE COPY OF THE ADDITIONAL REPLY
STATEMENT DATED 1-1-2016 FILED BY BSNL IN
THE OA.
EXHIBIT P5 : TRUE COPY OF ORDER IN OA NO.180/00447 OF
2014 DATED 8-4-2014 PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
RESPONDENT(S)' EXHIBITS
-----------------------
EXHIBIT R1(A) A TRUE COPY OF THE LETTER NO.A-
11013/339/2009-ADMN.II/ABS.CELL DATED
14.7.2009 ISSUED BY THE MINISTRY
FORWARDING THE NOTE TO CABINET AND ITS
APPROVAL
TRUE COPY
P.S. TO JUDGE
EL
P.R.RAMACHANDRA MENON & SHIRCY V., JJ
.........................................
O.P.(CAT)NO.291 OF 2016
.................................
Dated this the 10th day of August, 2017
J U D G M E N T
P.R.RAMACHANDRA MENON, J Quantum of 'Special Allowance' payable to the erstwhile employees of the Department of Telecommunications, who came to be absorbed in the service of BSNL pursuant to the formation of the Company in the year 2000 based on Annexures A3 and A4 issued by the Telecom department in respect of Group A officers, is the subject matter of dispute in this Original Petition preferred at the instance of the BSNL, who is stated as aggrieved of Ext.P5 order passed by the Tribunal granting relief to the applicant, allowing the OA.
2. Heard Sri.T.Sanjay, learned Standing Counsel for the BSNL as well as Sri.S.Radhakrishnan, the learned counsel appearing for the respondents at length.
3. The factual matrix revealed is that the applicants in the O.A were working as Senior Time Scale employees in the office of the Department of Telecom, at the time of formation of the BSNL in the year 2000. They were enjoying the CDA(Central Dearness Allowance) pay scale in the department. Pursuant to O.P.(CAT)NO.291 OF 2016 2 the formation of BSNL, their service came to be absorbed in the Company (BSNL) resulting in a changing over from CDA Scale to IDA Scale (Industrial Dearness Allowance). In respect of the former category, there were 16 different stages, whereas only 12 stages were there in the IDA pay scale. That apart, the ratio of increments was also different and as such, by virtue of the change, the benefit payable to the employees pursuant to fixation was the subject matter of agitation at different levels. Ultimately, the Government decided to provide enhancement to a minimum extent of 36% and to satisfy the deficit in the fixation of the IDA scale which did not provide for an enhancement to that extent. It was accordingly, that Annexures A3 & A4 were issued; the latter having been issued in clarification of Annexure A3, with a slight modification to the requisite extent.
4. It was the case of the applicant, that the Ministry had agreed to provide for compensatory allowance to an extent of Rs.2914/- as discernible from Annexure A2, giving the manner in which the payment of the allowance was to be worked out. It was accordingly, that the OA was filed with the following prayers.
"a. Call for the records connected with the case; b. Declare that as per the proposal approved by the Union Cabinet, officers absorbed in BSNL and who were actually working O.P.(CAT)NO.291 OF 2016 3 in Senior Time Scale grade posts as on 1.10.2000 are entitled to get Rs.2914/- per month as Special Allowance.
c. Set aside Annexure A11 communication issued by the BSNL as it is bereft of any merit and substance.
d. Declare that the applicants are entitled to get Rs.2914/- per month as Special Allowance.
e. Direct the respondents to grant and disburse the remaining Special Allowance to the applicants, at the earliest with commercial rate of interest from the date it is actually due to the date of disbursement.
f. Grant such other reliefs as this Honorable Tribunal may deem fit, just and proper in the facts and circumstances of the case."
5. The claim was resisted by the BSNL pointing out that they had implemented Annexures A3 and A4 in strict terms and that there was no reduction in any manner in so far as the applicants were concerned. It was also pointed out that the BSNL was bound to implement only Annexures A3 and A4 and not the 'Cabinet note', copy of which is produced as Annexure A2. It was further contented by the BSNL that the O.A was obviously barred by limitation and further that only the first applicant had preferred the representation, that too, much later after sanctioning the benefit of Special allowance as per Annexure A5 dated 26.07.2011.
6. The rival submissions were considered by the Tribunal and referring to the facts and figures and particularly the entries O.P.(CAT)NO.291 OF 2016 4 given in different tables, it was observed that a wide disparity in giving effect to Annexure A3/A4 was resulted at the hands of the BSNL, providing more benefit to juniors who were placed only in a lower level in the same scale (by virtue of their lesser extent of service) even up to 71%; whereas the enhancement provided to seniors who had already reached the maximum of the pay scale was only about 26%. The disparity/discrepancy in this regard was sought to be explained but the Department failed to explain the same to the satisfaction of the Tribunal. At the same time, they conceded that, it is indebted to provide a 'uniform increase' and that a formula was worked out by the Government ordering to reckon the 'mid stage' of the pay scale and to work out the benefit accordingly.
7. The Government of India, who had issued Annexure A3/A4, virtually did not contest the matter with reference to a specific pleadings raised by the applicant. They filed a reply statement simply stating that a policy decision had been taken by the Department and it was for the BSNL to have it implemented; by virtue of which the Government was an unnecessary party. The said reply statement is not produced by the petitioners while filing the present Original Petition, (though a copy of the same is O.P.(CAT)NO.291 OF 2016 5 submitted for perusal of this Court by the learned counsel for the respondents). After hearing both the sides, the Tribunal arrived at a positive finding that the applicants were entitled to get the benefit and that the calculation effected by the BSNL was certainly wrong. It was accordingly, that the OA was allowed, setting aside Annexure A11 order and other relevant proceedings in this regard, directing to effect recalculation and to disburse the due amount in the manner as specified therein, which in turn is under challenge at the instance of the BSNL before this Court.
8. The learned Standing Counsel for the petitioners point out that the challenge raised by the applicants was only against Annexure A11 order and that they had not chosen to challenge Annexures A3 or A4 under any circumstances. A11 was only a reply rejecting the representation preferred by the first applicant, that too, in the subsequent round and the factual position rejecting the earlier representation is discernible from Annexure A11 itself. This by itself cannot give an independent cause of action to the applicants and that they cannot seek to implement payment of special allowance at the rate of Rs.2,914/- based on any 'Cabinet Note'. BSNL is bound by the Government orders and not by the 'Cabinet Note', is the crux of the contention raised. O.P.(CAT)NO.291 OF 2016 6 The petitioner has also sought to substantiate that the implementation has been effected strictly in conformity with A3 and A4 and that the applicants were entitled only to get an addition of Rs.226/- to make it equivalent to 36% of enhancement, reckoning the same from 'mid stage' of the pay scale (C Grade pay scale). It is also asserted that the Annexures A3 and A4 provided to reckon the 'mid stage' of the pay scale only in respect of 'CDA scale', which cannot be taken for the purpose of working out the deficit with reference to 'mid stage' in the 'IDA pay scale' and as such, the contention put forth by the applicants to the contrary and accepted by the Tribunal is liable to be interfered.
9. The learned counsel appearing for the respondents/applicants submit that there is total wrong application of mind and that even the fundamentals of arithmetics have been ignored in effecting calculation by the BSNL while reckoning 36% enhancement, ordered to be provided as per Annexures A3 and A4. The learned counsel points out that the prayer was never to implement A2 'Cabinet Note' and that the same was produced only to substantiate the version of the applicants as to the scope of Annexures A3/A4 and O.P.(CAT)NO.291 OF 2016 7 how that is to be implemented and nothing more. The learned Counsel submits that as per Annexures A3 and A4, the relevant clause therein, particularly 'clause no.7' was to reckon the 'mid stage' of the pay scale which is equally applicable in respect of CDA scale as well as IDA scale and absolutely there is no rhyme or reason for effecting the calculation confining the application of 'mid scale' only to CDA scale; which will virtually lead to total chaos and it will not reconcile with the scope and intent of the orders passed by the Government as a matter of policy.
10. It is brought to the notice of this Court that, there is no dispute as to the extent of service of the applicants and that they had almost reached the peak in the existing CDA scale. It is conceded that the attempt was to compensate for the deficiencies/lapse because of switching over from CDA scale to IDA scale, adopting a uniform measure, taking note of the different cadres and also considering the service rendered by juniors as well as seniors. It was decided by the Government as a matter of policy, to reckon the 'mid scale' for effecting the calculation, which otherwise would have resulted in total unjust and mistakes. It was accordingly, that necessary measures were taken in clause 7 as given in Annexure A3 which now stands O.P.(CAT)NO.291 OF 2016 8 substituted as per Annexure A4, which reads as follows:
"7. In supersession of the provision of Special Allowance as indicated in the consolidated general terms and conditions for absorption of Group A officers in MTNL/BSNL issued vide letter No.A-11013/1/2005-Admn.II/Abs.Cell dated 4th October, 2005, where increase in the emoluments (Pay + DA) of an officer on absorption in BSNL/MTNL in the IDA pay scale on 1.10.2000 is less than 36% over and above the emoluments (Pay + DA) in the CDA pay scale as calculated by the mid- stage the difference will be paid as "Special Allowance"(SA) per month with effect from 1.10.2000. This will be subject to a ceiling of Rs.6000/- (Rupees Six Thousand) per month and also subject to the 50% ceiling on perks and allowances prescribed by DPE."
11. The basic question/dispute is whether the words 'as calculated by the mid stage' as it appears in the aforesaid clause should be confined to the CDA scale or should it be made applicable to CDA scale as well as the IDA scale, so as to take it to a logical calculation. During the course of hearing before this Court earlier, the parties were directed to substantiate the facts and figures, particularly in view of the undisputed extent of pleadings. The petitioner BSNL has accordingly filed an affidavit giving an illustration as to the calculation. Similarly, the respondents 1 to 5 have also filed an affidavit dated 27.07.2017 giving out their version. After going through the pleadings and O.P.(CAT)NO.291 OF 2016 9 proceedings and after hearing both the sides, we find it appropriate to extract the admitted or undisputed extent of pleadings raised from the part of the BSNL in the following terms, which have been codified by the respondents in paragraph 5 of the affidavit dated 27.7.2017; as reproduced below:
" 5. The admissions in the reply statement are extracted below:
"5. It is submitted that Annexure A1 general terms and conditions of absorption of Group A officers in BSNL, it is provided that the Industrial Dearness Allowance (IDA) pay fixed on absorption as on 01.10.2000 shall be increased at least by 25% over and above the CDA pay drawn by them which is to be uniform in all cases."(emphasis supplied) In the same paragraph on 7th line it is stated thus: "The Annexure A2 Cabinet decision has approved the enhancement to 36% increase from 25%."
At para 6, 7th line the BSNL admitted as follows:
"It is submitted that the Annexure A4 order of the DoT has been issued in strict conformity with the Cabinet decision dated 24.07.2008."
In para 7 of the reply statement, at line No.5 it is admitted thus:
"In fact, they have only gained. They have a gain of 36% over the CDA benefits. The respondents have only extended the benefit of 36% addition and ensured the same in the case of other similarly situated persons. It is not understood as to how the applicants are claiming the 36% addition as loss and such averments are made to mislead the Honourable Tribunal. The benefit of 36% addition is ensured, irrespective of whether a person is senior or junior. These respondents have not given any undue benefits to any class of people. Everybody was given the O.P.(CAT)NO.291 OF 2016 10 benefit of 36% addition over and above the CDA emoluments they were enjoying taking into account the mid-stage. Special allowance is not granted for giving relief to the officers, but it was done to achieve uniformity in the extension of benefits, that is to achieve the minimum increase of 36%."
In paragraph 9 they have stated thus, at line No.5 "The applicant is claiming Rs.2914/- per month as Special Allowance, which if allowed would exceed the 36% mark approved by the Ministry of Communications... and the amount of Rs.226/- sanctioned in his case is in order."
At para 10 in line No.4, it is stated thus:
"The decision of the government was to ensure a minimum of 36% increase on absorption into BSNL and the same has been ensured in the case of the applicants."
12. Separate illustrations have been given taking the actual pay, both in the CDA scale and the IDA scale and the enhancement now ordered by the BSNL as per Annexure A5 granting only a sum of Rs.226/- in addition, will come to the actual percentage of enhancement as 26.23 %. Similarly, if the 'mid stage' of the CDA scale alone is reckoned and the actual pay in the IDA scale is taken, the extent of enhancement would be only 20.87%. However, 'illustration 3' gives the calculation reckoning the mid stage of CDA scale ad IDA scale which is reproduced below.
ILLUSTRATION-III (STS GRADE)
The scale in CDA : 10,000-325-15,200
O.P.(CAT)NO.291 OF 2016 11
Mid stage of this scale : 12,600
The CDA emoluments
pay + DA (12,600 + 41%) : 17,766/-
Scale in IDA : 14,500-350-18,700
Mid stage of this scale : 16,600
The emoluments in IDA
Pay (16,600 + DA 28%) : 21,248/-
Increase in emoluments without
special allowance-as per mid stage
principle : 21248-17766= 3482
Special Allowance approved
by the Cabinet : 2914
Hence total enhancement intended : 3482+2914= 6396 The percentage of enhancement : 6,396 x 100 17,766 = 36% The above calculation reveals that, only if Rs.2914/- is taken as the compensatory allowance to be paid, will it result in 36% of enhancement as ensured to be effected in all cases on a uniform basis pursuant to Annexures A3 and A4. This exactly is the calculation shown in the 'note' put up to the 'Cabinet', as borne by Annexure A2.
13. Now, let us come to the calculation effected by the BSNL as shown in their affidavit. Para 8 of the said affidavit dated 27.7.2017 gives the illustration in the case of the first respondent herein, in the following manner:
"8. CDA Scale of Sri.P.K.Madhavan in 10000-15200" O.P.(CAT)NO.291 OF 2016 12
Mid scale, A = 10000+15200 2 = 12600 41% of 12600, B = 12600 x 41 100 = 5166 (A+B) = 17766 36% of (A+B), C = 17766 x 36 100 = 6395.76 P1 = (A+B+C) = 24161.76 = 24162
Corresponding IDA Scale for the applicant is 14500-18700 His IDA Pay is Rs 18700/-
28% of 18700 is the DA = 18700x 28 = 5236
100
IDA emolument P2 = IDA Pay + DA = 18700+5236
= 23936
P1-P2 = 24162-23936
= Rs.226 is the special allowance
eligible to him.
14. From the above, it is quite clear that the BSNL has reckoned the 'mid stage of the CDA scale' of the applicants and compared the same with the 'actuals in the IDA scale' and arrived at the deficit to be paid. Admittedly, the mid stage of IDA scale was not taken, stating that such a course is not provided in Annexure A3/ A4. But if the calculation adopted by the BSNL is accepted, the said exercise will result in wide disparity as to the extent of benefits payable to the juniors and seniors pursuant to O.P.(CAT)NO.291 OF 2016 13 the 'policy decision' taken by the Government to provide special allowance to meet the requirements. Since there is no dispute from the part of the Government as to the circumstances under which the special allowance was ordered to be given and as to the extent mode of calculation, the burden was heavy upon BSNL to have ensured 36% of increase on a uniform basis. Absolutely no explanation is forthcoming from the part of the BSNL in this regard or as to the circumstances under which the juniors with lesser service were getting an enhancement even upto 71% as worked out in the table and shown to the satisfaction of the Tribunal from the part of the applicants. Similarly, the 'policy decision' taken by the Government could not have been wrongly implemented to the disadvantage of the applicants, who were already drawing the maximum in the CDA pay scale by taking the 'mid stage' and at the same time, without pursuing such a step in the case of 'IDA scale' but for the actual pay as done by the BSNL. By virtue of the mid stage taken in the CDA scale in respect of juniors, the persons who were drawing only much lesser pay got a boost while considering the actuals in the IDA scale, whereby the deficit appeared to be wider and they became the beneficiaries in getting enhancement of special allowance O.P.(CAT)NO.291 OF 2016 14 even upto an extent of 71%, which was never the intention of the Government, while introducing the 'policy decision' to provide for payment of special allowance by considering the disparities and providing a uniform measure of increase, for which the formula of reckoning of 'mid stage' was introduced. The relevant clause, that is clause 7 of Annexure A3/A4 referring to the 'mid stage calculation' has to be considered and analysed under such circumstances.
15. With the above factual in the data in mind and on considering the scope of the Clause, particularly the term 'mid stage' used by the Government in Annexure A3/A4, it clearly means that such 'mid stage' has to be taken both in respect of CDA scale as well as the IDA scale. It could not have been confined to the CDA scale alone as done by the BSNL. The attempt made by the BSNL, who is supposed to be a role model employer should have been to extend the benefits flowing from A3 and A4 in the manner as desired by the Government, who issued Annexures A3 and A4, the scope of which is discernible from the 'Cabinet Note'- Annexure A2 and the calculation shown therein.
16. The learned counsel for the respondents submits that a O.P.(CAT)NO.291 OF 2016 15 contention has been put forth from the part of the petitioner BSNL that the 'Cabinet note' produced by the applicant before the Tribunal was a secret document and that the same could not have been procured or produced or relied on to sustain the cause. It is pointed out that the relevant document produced by the applicants was part of a public document and that copy of the same was served to different persons pursuant to steps taken under the RTI Act. A full text of the 'Cabinet Note', also containing the relevant tables and the manner of working out the benefit is also placed for perusal of this Court and this Court has perused the same. On going through the contents of the table given therein, it is seen that the Table produced by the applicant before the Tribunal is perfectly the same and there is no discrepancy in this regard. The calculation discernible from the same is to extend Rs.2914/- as special allowance, which is necessary to make it '36%' on a uniform basis, taking the 'mid stage' of both the scales, which otherwise will lead to unintended results. In the said circumstances, we find that the contention raised by the BSNL to interfere with the verdict passed by the Tribunal does not contain any pith or substance. This is more so, when the pleadings raised by the applicants with regard to the O.P.(CAT)NO.291 OF 2016 16 benefit flowing from the orders passed by the Ministry vide Annexure A3/A4 and the scope of 'Cabinet note' was never sought to be disputed by the Government, by filing any reply statement by them. They have never filed any counter affidavit before this Court as well. As such, the pleadings raised by the applicant go uncontroverted and the limited extent of application sought to be given by the BSNL as per the defective course pursued by them, by applying the term 'mid stage' to CDA scale alone, is not in conformity with the scope and intent of Annexure A3/A4. It is declared accordingly.
17. During the course of hearing, reliance was sought to be placed on various judgments rendered by the Apex Court, both from the part of the petitioner BSNL and from the part of the respondents/applicants. Reliance was sought to be placed on the verdicts passed by the Apex Court including in Pu Myllai Hlychho & Others v. State of Mizoram and others (AIR 2005 SC 1537) with regard to the role of 'Cabinet' and such other relevant aspects. Para 88 of the decision in Samsher Singh v. State of Punjab (1974(2) SCC 831) was sought to be relied on, also from the part of the respondents in this regard.
"88. For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of O.P.(CAT)NO.291 OF 2016 17 Ministers in Executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the Executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor."
18. There is no dispute with regard to the law laid down by the Apex Court. The discussion made by us is in no way affected by the above rulings. Reference to the above decisions is not at all necessary to have effective adjudication of the issue in hand. More so, when the scope of A3 and A4 is not disputed by the issuing authorities ie, the Government, either in the reply statement, already stated to have filed before the Tribunal and also by virtue of the fact that no such pleading is raised before this Court, but for stating that BSNL is the implementing agency to give effect to the 'policy decisions' taken by the Government. In so far as there is no dispute as to the policy result which is sought to be achieved, the BSNL cannot wriggle out of the liability by giving a restricted narrow interpretation as to the effect of Annexure A3/A4 orders.
19. The next question is with regard to the plea of limitation. It is true that the petitioner BSNL had filed Ext.P2 reply O.P.(CAT)NO.291 OF 2016 18 statement before the Tribunal and paragraph 2 specifically deals with the limitation. According to the learned Standing Counsel for the petitioner BSNL, the outcome was communicated to the applicants whereby the benefit of Special allowance was given to the applicants as per Annexure A5 in the year 2011. The order under challenge before the Tribunal ie., Annexure A11 was in respect of rejection of a representation, referring to the earlier proceedings including rejection of representation preferred then. It is true that A6, A7 and A8 are the representations preferred by the 1st petitioner. Annexures A6 and A7 dated 24.11.2011 & 27.02.2012 respectively are addressed to the Secretary to Governemnt and forwarded through proper channel. Ext.A8 representation stands addressed to both the Secretary to Government and also to the BSNL, simultaneously. The fact remains that the petitioner was intimated by the Ministry as to registration of the grievances and also as to forwarding of the proceedings to the BSNL as per Annexure A10 dated 8/10/2013. The version of the BSNL received to the Ministry was also enclosed therewith. The said communication dated 5/10/2013 issued by the BSNL to the 1st petitioner refers to the earlier communication issued to the 1st applicant on 19/8/2013, in response to the representation dated 7/12/2012. A copy of the said communication ie., the reply O.P.(CAT)NO.291 OF 2016 19 dated 19/08/2013 was also enclosed herewith as part of Annexure A10, whereby the representations preferred by the 1st applicant was confirmed stating that he was entitled to get only a sum of Rs.226/- as the Special allowance payable pursuant to Annexure A3/A4. It is true that the Annexure A5 was issued on 26.07.2011. The reply dated 19.08.2013 is stated as the first reply given by the BSNL to the 1st applicant, intimating the position pursuant to the earliest representation preferred by the 1st applicant. As a matter of fact, the OA was filed before the Tribunal on 29.07.2014, ie, well within one year from 19.08.2013 and as such, it cannot be said that the 1st applicant had approached the Tribunal after the expiry of one year, to take him outside the purview of jurisdiction. Even otherwise, by virtue of the mandate under Sec.21(2)(a) of the Administrative Tribunals Act, the period for filing the O.A is extendable by 6 more months, where any representation is preferred and the same is rejected. That apart, the Tribunal is having power to condone the delay under Sec.21(2) of the Act, on offering sufficient reason to the satisfaction of the Tribunal, as to the delay involved. In the instant case, since the Tribunal though has not adverted to or rendered a separate finding as to the delay, it has to be presumed that this aspect, ie., as to the giving of the reply for the first time on 19.08.2013 in response of the representation preferred by the 1st O.P.(CAT)NO.291 OF 2016 20 applicant and approaching the Tribunal before the expiry of one year, is taken note of and the merit was entertained accordingly. The other applicants had also preferred similar representations produced as Annexure A11, the receipt of which is not disputed as discernible from Annexure A14(a) dated 31.10.2013 referring to as many as 16 representations from all the applicants. On going through the replies stated as issued by the BSNL to some other persons named therein, such replies having been issued on 20th August, 2013, the OA preferred by the other applicants joining hands with the 1st applicant in July, 2017 is well within time. The question of limitation is answered against the petitioner BSNL and in favour of the applicants.
20. In the above circumstances, this Court finds that this is not a fit case to invoke the supervisory jurisdiction of this Court interdicting Ext.P5 verdict passed by the Tribunal. In such circumstances, we find that the petitioners cannot succeed. Interference is declined and OP is dismissed accordingly.
Sd/-
P.R.RAMACHANDRA MENON JUDGE Sd/-
SHIRCY V. JUDGE IAP