Central Administrative Tribunal - Mumbai
Ordnance Employees Union Ambarnath vs Department Of Defence Production on 6 May, 2025
1 OA No. 573/2022
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.573/2022
This the 06th day of May, 2025
Hon'ble Mr. Justice M.G. Sewlikar, Member (J)
1. ORDNANCE EMPLOYEES UNION AMBARNATH
A Labour Union duly registered and recognized by Ministry
of Defence, Government of India having its registered
address at Yeshwant Koli Bhavan, Estate Market,
Ordnance Estate P. O., Ambarnath West, Dist. Thane-
421502.
2. SHRI. BABU YELLAPPA EMGADDI
Age: 56 years, Occ: Service, Designation: fitter
Electric/MCM, Personal No. 4266, the President of
Ordnance Employees Union Ambarnath, having address at
Flat No. 103, B Wing, Patel Pride, Krishna Nagar,
Ambarnath East. Dist. Thane- 421501, Email:
[email protected]
3. SHRI. SHARAD VITTHAL SHEDGE
Age: 48 years, Occ: Service, Designation: Machinist/MCM,
Personal No. 4410, the Joint Secretary of Ordnance
Employees Union Ambarnath, having address Shri Ganesh
Paradise, B/406, Golewadi, Badlapur East, Dist. Thane-
421503, Email ID: [email protected]
4. AYUDH NIRMANI MAZDOOR SANGH
A Labour Union duly registered and recognized by Ministry
of Defence, Government of India having its registered
address at having address at Near CGS Dispensary,
Ordnance Estate, Ambarnath West, Dist. Thane 421502,
Email: [email protected]
5. SHRI. DURWAS NARAYAN DHULE
Age 54 years, Occ Service; Designation: Jamadar, Personal
No. 100785, the President of Ayudh Nirmani Mazdoor
Sangh, having his address at Shri Samarth Krupa
2 OA No. 573/2022
Bunglow, Joveligaon, Post Kulgaon, Badlapur East, Dist.
Thane- 421503, Email ID: [email protected]
6. SHRI. VIJAY LAXMAN DHOBLE
Age: 47 years, Occ: Service, Designation: Grinder/MCM,
Personal No. 4509, the General Secretary of Ayush Nirmani
Mazdoor Sangh, having his address at MH B Colony, 15/B,
Room No. 369, Ambarnath West, Dist. Thane- 421502,
Email ID: [email protected]
... Applicants
(By Advocate Mr. Bharat Thorat)
Versus
1. UNION OF INDIA
Through the Secretary Defence
Production of Ministry of Defence,
South Block, Delhi-110001,
Email. [email protected]
2. DIRECTORATE OF ORDNANCE
(COORDINATION AND SERVICES),
Through Director General,
having address at Ayush Bhavan,
10-A, Shaheed Khudiram Bose Road,
Kolkata 700001
Email: [email protected]
3. YANTRA INDIA LIMITED,
A Government Undertaking duly registered
under the provisions of Companies Act, 2013 through
its Managing Director and Chairman and having
address at Ordnance Factory Ambarjhari, Amravati
Road, Wadi, Nagpur - 440021, Email:
[email protected] - Respondents
(By Advocate Ms. N.V. Masurkar)
3 OA No. 573/2022
ORAL ORDER
Per: Justice M.G. Sewlikar, Member (J)
Applicants in this OA are seeking the relief of setting aside the order of exclusion of compensatory allowance from the pay of the applicants.
2. Facts in brief are that the wages of the applicant included compensatory allowance. However, vide Office Memorandum dated 26th June, 2009, the Ministry without there being any decision issued a Memorandum on the basis of advice tendered by a legal advisor and discontinued the compensatory allowance. The applicants are claiming the restoration of the compensatory allowance along with arrears.
3. I have heard learned counsel for the applicants and learned counsel for the respondents.
4. This issue is no longer res integra. In the case of Heavy Vehicles Factory Employees' Union and Another versus Union of India and Others, 2011 SCC OnLine Mad 2575, Madras High Court has held thus:- 4 OA No. 573/2022
"16. It is also seen from the perusal of the records that when the Ministry of Finance, through their official memorandum, dated 14.11.2002, has requested the Ministry of Labour to reconsider the matter in consultation with the Ministry of Law (Department of Legal Affairs), but after consulting with the legal advisor of the Ministry, the Ministry of Labour and Employment has issued the above memorandum, which in our considered opinion, is not legal, since consulting the Ministry of Law is different from consulting the legal advisor of the Ministry. We are unable to understand as to what is the legal sanctity attached to the advise given by the legal advisor of the Ministry to exclude the abovesaid allowances to calculate the basic rate of wages. In the absence of any rule to exclude the aforesaid allowances from the definition of the basic wage, when the section excludes only two items, viz., bonus and wages for overtime work, the action of the first respondent in excluding the said allowances without any authority, but only based on the opinion expressed by the legal advisor of the concerned Department, which cannot be considered to be the power given to exclude those allowances, and also the order passed by the Tribunal in rejecting the claim made by the petitioners based on the aforesaid memorandum, are considered to be illegal and unsustainable in law. For the foregoing reasons, the order passed by the Tribunal is liable to be set aside and it is, accordingly, set aside. The writ petitions are allowed. Connected M.Ps. are closed. However, there will be no order as to costs."
5. On the basis of this judgment, various Benches of this Tribunal have granted the relief to the applicants.
6. From the observations of the Madras High Court, it is clear that the compensatory allowance cannot be denied to the employees simply on the ground of legal opinion. 5 OA No. 573/2022
7. Learned counsel for the respondents made two fold submissions, first, that the matter is pending before the Supreme Court and second, the applicants are not entitled to arrears from the date it is discontinued because they are taking the benefit of the judgment of the Madras High Court.
8. The question in this OA has already been settled by the Madras High Court. The amount has been released to the employees on the basis of the undertaking given by them that in case, the Supreme Court decision goes against them, the respondents will be entitled to recover the amount from them. The applicants are ready to give the same undertaking. Another submission of learned counsel for the respondents is that the applicants are not entitled to get the amount from the date it has been recovered because there is delay of more than 13 years. She submits that the applicants are the fence-sitters.
9. In case of fence-sitters, they are not allowed to take the benefit of the judgment rendered in some other litigations. However, if the judgment of the Madras High Court on which the applicants are relying is the judgment 6 OA No. 573/2022 in rem, then the question of limitation will not arise as per judgment of State of Uttar Pradesh & Ors.Vs. Arvind Kumar Shrivastava & Ors, (2015) 1 SCC 347 decided on 17th October, 2014. The judgment of Madras High Court is in rem and, therefore, question of limitation will not arise. However, in view of Union of India & Anr. vs Tarsem Singh, (2008) 8 SCC 648, the recovery shall be restricted to three years from the date preceding the date of application. In this view of the matter, following order is passed:-
(i) OA is allowed. (ii) The applicants are entitled to restoration of
compensatory allowance from three years preceding the date of application on furnishing the undertaking that in case, the judgment of the Supreme Court in SLP (C) Diary No. 58516/2024 goes against them, they will deposit the amount.
(iii) Pending MAs, if any, stand closed. No costs.
(Justice M.G.Sewlikar) Member (J) 'nk' Digitally signed by Nicky Kumari Nicky DN: C=IN, O=Personal, OID.2.5.4.65= 5701472963214eacaf7214eb1c705990, Phone= 319c15ca9eb1feefdf068e6ccd39ee2956895f6f91a3b 405297e23829af5a475, PostalCode=823002, S= Bihar, SERIALNUMBER= 78a0e5fc01b6b3d12eabec40e7f8c4bf366c1f4f6f5bd9 Kumari 3fc66bbdd397444faa, CN=Nicky Kumari Reason: I am the author of this document Location:
Date: 2025.05.27 16:05:23+05'30' Foxit PDF Reader Version: 2024.3.0