Central Administrative Tribunal - Kolkata
Employees Union Ordnance Factory Dum ... vs M/O Defence on 9 December, 2019
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O. A. No. 350/0 of2019
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IN THE MATTER OF:
I 1. EMPLOYEES UNION ORDNANCE
•V;.' FACTORY DUM DUM, a registered
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Union represented by its General
Secretary namely Shri Swapan Kumar
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Roy, son of Late Santi Ranjan Roy,
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Bhawan, 29, P.K. Guha Road, Kolkata-
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kr years, residing at 218 (375), G.T. Road,
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Raja Bagan Estate, Jessore Road, K.B. •i
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P Sarani, Kolkata- 700028. til
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4. SHRI CHAYAN BHATTACHARJEE,
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residing at 31/9, K. B. Sarani (Mall i•3
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Road), Dum Dum, Kolkata- 700080
and working as Fitter (HS-I) in
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5. SHRIIBED PRAKASH PANDEY, son of ft
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Late Radheshyam Pandey, aged about
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Durga Colony, Jessore Road, Kolkata-
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6. SHRI HAMID SAHA, son of Shri Latip •J
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I 7. SHRI CHRISTRUP KHANDA, son of
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Late Bhuban Mohan Khanda, aged
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Nalta, Kolkata- 700028 and working- as
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8. SHRI DAYA SHANKAR UFADHYAYA,
son of Shri Satish Kumar Upadhyaya,
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aged about 33 years, residing at
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nr Quarter No. G-39, Dum Dum Estate,
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I 9. SHUVENDU GHOSH, son of Late Sisir
Kumar Ghosh, aged about 47 years,
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Bagan Estate, Jessore Road, K.B.
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...APPLICANTS
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1. UNION OF INDIA service through the
Secretary, Ministry of Defence
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(Defence and Production), Government
of India, South Block, New Delhi-
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DEFENCE ACCOUNTS, Ministry of
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" 3. THE CHAIRMAN, Ordnance Factory
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Board, Government of India, Ministry of
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pf... Shaheed Khudiram
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Bose Road,
Calcutta- 700001.
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4. THE PRINCIPAL CONTROLLER OF
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ACCOUNTS (Fys.). Ministry of Defence,
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tt? . 5. THE GENERAL MANAGER, Ordnance
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CL 1 0 A 350.1523.2019 WITH M.A. 350.00893.2019
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/01523/2019 Date of order: 9.12.2019
M.A.350/00893/2019
Present HonTole Ms. Bidisha Baneijee, Judicial-Member
HonTole Dr. Nandita Chatteijee, Administrative Member
EMPLOYEES UNION ORDNANCE FACTORY, DUM DUM & ORS.
VS.
UNION OF INDIA & ORS. (Defence)
For the Applicants Mr. P.C. Das, Counsel
For the Respondents Mr. R. Haidar, Counsel
ORDER (Oral)
Per Dr, Nandita Chatteriee, Administrative Member:
The applicants have approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:-
a) Leave may be granted to the applicants to file this application jointly under Rule 4(5) (b) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because the concerned. Union_is making this original application and their members are the employees of the concerned Ordnance Factory, therefore under Rule 4(5) (b) of the Central Administrative Tribunal (Procedure) Rules, 1987 this original application is permissible;
b) To quash and/or set aside the impugned speaking order No. 01/ 120(135/4)/OA 574/2019/EU/ESTT dated 10* August, 2019 issued by the Works Manager/Administration-for.General Manager, Ordnance Factory, Dum Dum by which the claim of the applicants has been rejected by not following the identical decisions passed by the Central Administrative Tribunal, Principal Bench, New Delhi dated .25.04.2018 in OA No. 650/2016 and also the decision of the Central Administrative Tribunal, Hyderabad Bench dated 04.04.2014 in OA No. 1372/2012 and on that ground the speaking order dated 10.08.2012 may be quashed and/or set aside with imposing heavy costs upon the respondents being Annexure A-13 of this original application;
c) To declare that the office memo dated 26th June, 2009 issued by the Government of India, .Ministry of Defence and on the basis of said office memo, the subsequent office orders dated 27.08.2009 along with CGDA letter dated 27.08.2009 and office order dated 28.10.2009 are nonest and cannot be sustainable in the eye of law as per the judicial pronouncement made by the Hon hie High Court of Judicature at Madras in Writ Petition Nos. 609, 1276, 1466, 1980 to 1982, 9076 and 21035 of 2011 and connected MPs vide order
2 O.A. 350.1523.2019 WITH M.A. 350.00893.2019 V / dated 30.11.2011 because which has been already quashed and/or set aside by the Honble High Court of Judicature at Madras and on the basis of that, the benefit of the applicants has been granted by the Hon hie. High Court of ;/ Judicature at Madras in Writ Petition Nos. 609, 1276, 1466, 1980 to 1982, 9076 and 21035 of 2011 as well as similarly circumstanced employees get benefit by the Learned Central Administrative Tribunal, Hyderabad Bench in OA No. 1372 of 2012 vide order dated 04.04.2014 and also the decision of the Learned Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 650/2016 vide order dated 25.04.2018 cannot be restricted in connection to the present applicants as they are the similarly circumstanced persons and they are entitled to get the same reliefs with effect from 2009 along with all consequential benefits subject to the decision of the Honble Supreme Court, if any;
d) To quash and/or set aside the impugned order of rejection dated 06.04.2019 (being Annexure A-10) against the representation of the applicants;
e) Costs."
2. The applicants have preferred an M.A. bearing No.
350/00893/2019 praying for liberty to jointly pursue this Original f Application. On being satisfied that the applicants share common interest and are pursuing a common cause of action, they are permitted to jointly move this matter. M.A. No. 893 of 2019 is hence allowed under Rule 4(5)(a) Central Administrative Tribunal (Procedure) Rules, 1987.
3. Heard both Ld. Counsel, examined documents on record. The matter is taken up at the admission stage for disposal.
4. The moot issue on account of which the applicants are aggrieved relates to inclusion of HRA, TA and SFA for the purpose of calculating overtime allowance under Factories Act. The applicants had approached this Tribunal earlier in O.A. No. 574 of 2019 which was disposed of on 10.6.2019 with the following operative orders:-
"5. It is no doubt true that relief was granted by the Madras High Court and the Principal Bench in the proceedings. However, the question as to whether the orders passed by the High Court and the Tribunal have been assailed before a superior forum or whether the applicants stand on the same footing as do the applicants in the writ petition and the O.A., needs to be examined. Representation dated 28.3.2019, made in this behalf is pending.
6. We therefore dispose of this O.A. directing to examine the representation of the applicant dated 28.3.2019 with reference to the provisions of law and pronouncement of courts on the subject and pass appropriate orders within a period of 2 months from the date of receipt of this order. There shall be no order as to costs."
3 O.A. 350.1523.2019 WITH M.A. 350.00893.2019 The respondent authorities, in compliance with the said orders, issued a speaking order dated 10.8.2019 (Annexure A-13 to the O.A.) but concluded as follows:-
"5. Therefore, keeping in view of the aforesaid position, admissibility of inclusion of various allowances i.e. HRA/TA/SFA while calculating OTA may not be accepted at this stage as the entire issue is pending before Honble Supreme Court. This disposes of representations dated 28.3.2019 preferred by the applicants."
Ld. Counsel for the applicant would agitate that this Tribunal in its Hyderabad Bench had directed that all allowances such as HRA, TA and SFA be included in calculation of OTA from 1.1.2006 and that the Principal Bench of this Tribunal had accorded the benefits to the (iIs Ifllil i\!) applicants therein provisionally subject to the final outcome of HonTile Apex Court in SLP No. 12845 to 12852 of 2012. The respondent authorities, on the other hand, while complying with the decision of the Kolkata Bench in earlier O.A. No. 574 of 2019 had declined to consider the prayer of the applicants on the grounds of pendency of the entire issue before the Honhle Apex Court. As the applicants before the Kolkata Bench have been subjected to discriminatory treatment, they have approached this Tribunal in second round litigation challenging the speaking order of the respondent authorities.
Ld, Counsel for the applicants would therefore submit that the respondent authorities be directed to grant the inclusion of such allowances in the OTA provisionally, subject to the outcome of the SLP as directed by the Principal Bench of this Tribunal.
Ld. Counsel for the applicant would further submit that the applicants are prepared to furnish an undertaking to the effect that they understand that such benefits are payable to them only provisionally, subject to the outcome of the decision of the Honhle Apex Court in SLP No. 12845 to 12852 of 2012, and, in the event that the decision of the y 4 O.A. 350.1523.2019 WITH M.A. 350.00893.2019 said SLP rules that HRA, TA & SFA are not to be included in overtime allowance, the applicants would undertake (through an affidavit) to refund the entire payment received in this regard and would also agree to recovery from their salaries/pension of the excess amount so paid.
5. Ld. Counsel for the respondents does not object to issue of further directions on the respondent authorities, subject to furnishing of such undertaking by the applicants concerned.
6. Accordingly, without entering into the merits of the matter, and, with the consent of the parties, we would direct the applicants to prefer a comprehensive representation to the respondent authorities citing :SS*"wSi r 3 \ relevant judicial decisions in support and also that they are willing to i furnish a clear undertaking (through an affidavit), that any amount payable to them provisionally on ground of inclusion of HRA, TA and SFA in overtime allowance is subject to the outcome of the decision in SLP No. 12845 to 12852 of 2012 and, in the event that the decisions in SLP ! do not permit inclusion of HRA, TA and SFA in overtime allowance, the applicants would either undertake to agree to recovery of the excess amount from their salary/pension, as applicable.
Upon receipt of such complete representations, the competent respondent authority shall reconsider the scope of according the benefits to the applicants in light of the decision arrived at by the Principal Bench of the Tribunal in O.A. No. 574 of 2019 and issue an appropriate order in modification to their speaking order dated 6.4.2019 to such effect within a period of 12 weeks from the date of receipt of a copy of this order.
7. With these directions, the O.A. is disposed of. No costs.
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(Dr. Nandita Chatterjee) (Bidisha Banerjee)
l Administrative Member Judicial Member
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