Central Administrative Tribunal - Madras
H A P F Enmployees Union vs M/O Defence on 21 August, 2023
I OA 1032/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAT BENCH
OA NO.1032/ 2621
Dated Monday the 21" day of August Two Thousand Twenty Three
CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
1. H.A.P.F. Employees Union,
{Read. No. 1000/TRI)
Rep. by Its General}. Secretary,
Na.6/538, NehrusNagar,
Poolangudi Colony;
HAPP Post,
Trichy 620 025.
2. Alohn Tnbaraj,
S/o S. Atulsamy,
Aged '5 55 years,
(Staff No.,082 1}
Magter Craftsman,
Heavy Energy Projectile Factory,
Trichy~- 620 025,
By Advocate M/s R.Pandian
Vs
1, Union of India, rep. By
Secretary to Government of India,
Department of Defence Production,
Ministry of Defence,
Sauth Block,
New Delhi - 110 001.
2. General Manager,
Heavy Energy Projectile Factory,
Trichy- 620 025
3. Works Manager/ P & A,
Heavy Energy Projectile Factory,
Trichy -620 025.
4, Secretary to Government of India,
Department of Personnel and Training,
Apgiicants
Ministry of Personnel, Public Grievance & Pension,
North Block,
New Delhi - 110 001
Respondents
By Advocate Mr.Su.Srinivasan SCGSC
re
2 OA 1032/2021
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) Heard learned counsel MrR.Pandlan for the applicants and Mr.Su.Srinivasan, SCGSC for the respondents,
2. The applicants have filed the present OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:
"To call for all the records leading to the issue of Orders bearing
1) DoPT OM No,A-27016/02/2017-Estt. (AL} dated 13.07.2020 passed by 4" Respondent
2) No.658/NDA/Per/Policy dated 28-09-2020, passed by the 1° Respondent through Ordnance Factory Board: and
3)No.12048/HEPF/LB/2021 dated 28-10-2021, passed by the 2nd Respondent; denying the entitlement of Night Duty Allowance to the employees who are. drawing Basic Pay more than Rs.43600/- and for the recovery of the alleged excess NDA amount paid for the period from July 2017. Consequently;
> To set aside DoPT OM No.A-2701 6/02/2017-Est. (AL) dated 13-07-2020, issued by the 4th Respondent & Order No.658/NDAPer/Policy dated 28-09- 2020, issued by the Ist Respondent, through Ordnance Factory Board, to the extent of their condition fixing a ceiling of Basic Pay for entitlement of Night Duty Allowance (NDA) as Rs.43600:
> To set aside Order No.12048/HEPF/LB/2021 dated 28-10-2021, passed by the 2nd Respondent >To direct the 2nd & 3rd Respondents to withdraw any recovery proceedings initiated for the recovery of excess payment of NDA consequent to the above orders:
> To direct the 2nd & 3rd Respondents to refund the amount recovered from retired employees with interest: and > to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus to render justice."
3. The brief facts of the case as stated by the applicants are as follows:
The first applicant is a Registered Trade Union espousing the cause of its members who are Industrial Employees serving under the Respondents, The 2™ applicant is working as a Master Craftsman working under the Heavy Energy Projectile Factory (HEPF). This Original Application is preferred since the Respondents have abruptly stopped payment of Night Duty Allowance (NDA), which is paid to certain group of Industrial Employees (IEs) 3 OA 1032/2021 performing duties between 22:00 hrs and 06:00 hrs during night shifts by fixing ceiling of Rs.43600 for Its entitlement w..e.f. 01.07.2017 (order passed on 28.09.2020). This matter has been taken up by the organized labour Including the 1* Applicant union before the authorities through JCM at various levels. Even when the matter is pending the 2" Respondent passed orders to recover alleged over payment (paid from July 2017 upto Octuber 2020). The 3rd Respondent recovered the alleged overpayment from the pensionary benefits of those whe retired during 2021. Now, 3° Respondent propeses to recover the said overpayment from the serving employees from their salary starting from the month of November 2021 in an unlawful manner, without even giving a show cause notice to them. The representations submitted by the Applicants were not responded to until this date. Hence the Applicants are before this Hon'ble Tribunal for intervention and to render justice.
4. After notice, the respondents have entered appearance through their counsel and filed their reply and opposed the relief on the ground that after 6" Central Pay Commission's (CPC) recommendations, the pay scale has been hiked and the Group D cadre has been merged followed with the cadre restructuring. Thereafter against the 7 CPC's recommendations the DOPT has issued OM dated 13.07.2020 In respect of implementation of Government's decision on 7" CPC recommendation on Night Duty Allowance (NDA} in supersession of the DOPT OM dated 04.10.1989, 05.05.1994 along with certain guidelines cetling has been fixed on basic pay for entitlement of NDA at the rate of Rs.43600 per month. This will be as per the hourly rate of NDA equal to [(BP+DA)}/200]. Accordingly the respondent department have issued a circular dated 28.09.2020 and conveyed the revised guidelines in m9 4 OA 1032/2021 respect of NDA and the same has been published in factory order No.124 dated 24,11.2020 by the 2" respondent for information and necessary action of all concerned. Accordingly the local Accounts Officer, HEPF, vide their letter dated 08.12.2020 has forwarded the list of recovery of NDA in respect of industrial employees (existing & retired) for the period from July 2017 to October 2020 and directed to recover the amount of NDA either in the pay bill or remit through MRO and forwarded the same to local Accounts Office, HEPF for further action, Hence, the second respondent issued circular dated 28.10.2021 for information of all concerned & based on the DOPT OM dated 13.07.2020 arrears of NDA was claimed by the eligible employees including retired Government servants and the same has been paid to them. Therefore recovery of excess payment pald against NDA is unavoidable. The said order Is effective w.e.f 01.07.2017. The excess payment pald against the NDA has to be recovered and to be deposited into Government Account. Subsequently, the issue has been taken up by the Defence Ministry In respect of recovery and is under consideration, the orders of recovery In respect of some of the employees are kept in abeyance and the Ministry is yet to take \final decision on it. However In respect of some of the employees recovery has been effected.
4.1 The respondents further contended that after the final decision by the Ministry, the respondent department will act in accordance with the guidelines. Moreover the respondents submit that the DOPT has taken a decision to fix the ceiling looking into the pay hike after the 6" CPC's recommendations as well as 7" CPC's recommendations. As such the applicant fs not justified to challenge the same in the present OA and he has not pleaded or made any specific ground to that effect as well as in respect of Arbitrary Award he has not placed any material document on record, 5 OA 1032/2021 hence the OA has to be dismissed.
5. Heard both sides and perused the relevant records.
6. Learned counsel for the applicants has filed additional affidavit and relied upon the additional documents. Learned counsel also placed reliance upon the order passed by the Hon. High court of Rajasthan at Jodhpur in WP No.8637/2011 in the matter of Union of India Vs. Kanti Ballabh Joshi & Ors and submitted that the act of the respondents is beyond their purview and they have to pay NDA without any restrictions. Learned counsel for the applicants has also relied upon the 7" CPC's recommendations which are extracted hereunder:-
8.17.74 The Commission examined the various arguments given for the grant of Night Duty Allowance:
* Night Work Convention, 1990 of International Labour Organization, states in Article 8: "Compensation for night workers in the form of working time, pay or similar benefits shall recognise the nature of night: work."
* There are studies to prove the deleterious effects on health of prolonged periods of continuous night duty.
« Sleep Is more likely to be interrupted during day time compared to night time.
* Transportation and Entertainment are generally planned keeping day time in mind.
8.17.75 This Commission is, therefore, convinced that the need for compensating night work is widely recognized and should be continued. 8.17.76 However, the practice of arriving at the rates of NDA needs to be uniform. Jt Is seen that in the Railways the rate of NDA has been broad-banded and all employees at each level of Grade Pay are given the same rate of NDA. For achieving this broad-banding, the average of Minimum and Maximum of the entire Pay Band has been taken to arrive at the average pay. This appears to be incorrect because running Pay Bands were intentionally kept wide by the VI CPC to avoid stagnation. Hence to use the extremities of the Pay Band for arrival at the average rate of NDA is not appropriate. Moreover, with the computerization of pay rolls, the arnount of Night Duty Allowance can be easily calculated for each employee. 8.17.77 Taking the above into account, the following set of recormmendations is made with regard to: NDA:
« The present formulation of weightage of 10 minutes for every hour of duty performed between the hours of 22:00 and 06:00 may be continued;
« The present prescribed hourly rate of NDA equal to (BP+DA)/200 may be continued;
« This amount of NDA should, however, be worked out separately for O 6 OA 1032/2021 each employee. With the computerization of pay rolls, working out the amount of NDA automatically for each employee every month will not entail any difficulty. The existing formulation for giving same rate of NDA for all employees with a particular GP should be abolished.
« This formulation will extend to all employees across all ministries/departments who were already in receipt of Night Duty Allowance.
e A certificate should be given by the supervisor concerned that Night Duty is essential, 3.4.17 Night Duty Allowance (NDA) (Para 8.17.71-77)} Existing Provisions: It Is granted to certain specified categories of employees for performance of duty between 22:00 hrs and 06:00 hrs. At present, the allowance is administered as per DoPT's OM No.12012/4/86-Estt. (Allowances) of 04.10.1989, wherein every 6 hours of night work earns 1 weighted hour of day work, or each hour of night work earns extra 10 minutes of day work. The ceiling of pay for entitlement of Night Duty Allowance Is #2200 per month.
Recommendations of 7th CPC: The 7th CPC has recommended as under:
{i} The present formulation of weightage of 10 minutes for every hour of duty performed between the hours of 22:00 and 06:00 may be continued:
(ii) The present prescribed hourly rate of NDA equal to (BP+DA)/200 may be continued;
(iii) This amount of NDA should, however, be worked out separately for each employee, With the computerization of pay rolls, working out the amount of NDA automatically for each employee every month will not entail any difficulty. The existing formulation for giving same rate of NDA for all employees with a particular GP should be abolished.
(iv) This formulation will extend to all employees across all Ministries/ Departments who were already in receipt of Night Duty Allowance, A certificate should be given by the supervisor concerned that Night Duty is essential, Demands:
I. M/o Health & FW: Tt should be given to nursing cadre at par with other Central Government employees.
fl. National Council (Staff Side), JCM: The recommendation of the 7th CPC "this formulation will extend to all employees across all the Ministries / Departments who are already in receipt of Night Duty Allowance" needs to be altered to mean that the revised Night Duty Allowance recommended by the Commission must be paid to all personnel who are deployed for night duty supported by the certificate provided by his immediate superior officer.
III. Department of Atornic Energy: This allowance may be extended to all employees who are performing night duty and be increased by a factor of 2.25 Analysis and Recommendations of the Committee:
DoPT is the nodal Department for this allowance. In its comments, DoPT has informed that the Board of Arbitration in C.A. Ref No. 6 of 1995 had awarded that the ceiling of %2200/- per month ray be removed. However, the Government has decided not to accept the Award and to move a Resolution in the Parliament to reject the Award.7 OA 1032/2021
Also, the demand to include more categories in the ambit of this allowance is not within the remit of this Committee. The recommendations of the 7th CPC on Night Duty Allowance may be accepted without any change.
6.1 Learned counsel for the applicants has also relied upon the Brochure on Joint Consultative Machinery and Compulsory Arbitration for Central Government Employees wherein certain guidelines has been given regarding procedure for processing cases of disagreement on arbitrable matters and awards of board of arbitration. It is stated therein that "After the decision (Award) of the Board of Arbitration is received, the Award would either be implemented or resolutions moved in both the Houses of Parliament within six months", As such the Government has not submitted any proposal to modify or reject the award since they have not received any. communication hence it has to be assumed that the respondent Government has no option except to implement the award.
6.2 Learned counsel for the applicants has also placed reliance upon the OM dated 10.06.1988 wherein it has been specifically accepted that after the decision (Award) of the Board of Arbitration is received, the Award would either be implemented or statements laid on the Table of both the Houses of Parliament within six months, However the respondent DOPT has not followed the same.
6.3 Learned counsel for the applicant submits that once the issue has been considered at length on earller occasions by the courts and attained finality thereby the respondents does not have any power to modify the same in the way as modified In the said impugned Oms dated 13.07.2020 subsequently the respondents have adopted the said DOPT Oms and issued the impugned circulars 28.09.2020, 28.10.2021 and 28.12.2021.
6.4 Learned counsel for the applicants has also placed reliance upon the om ee:
8 OA 1032/2021Railway Board circular dated 21.07.2022 wherein decision has been taken by the Railway that NDA may be granted to all eligible non-gazetted officers of Ministry of Railways up to pay level 7 including those who are granted the benefit of MACP in pay level 8. However maximum basic pay for working out hourly rate of NDA shall remain Rs.43600, i.e., the prescribed ceiling fixed by Board letter dated 29.09.2020. He submitted that the DOPT Oms are not binding on the Railways since the decisions are taken by the Boards not by the DOPT.
7. On the other hand, learned counsel for the respondents has vehemently argued that on the earlier occasion in the year 1989 when the ceiling has been fixed against the NDA against the recommendation of the 4"
CPC considering the pay level at that time and now after the 7" cPpc recommendation there is hike in the pay level. As such, the 7 CPC while giving recommendations has already extended the said benefit to the employees across all the Ministries, Departments who were already in receipt of NDA. As far as concerned to the reliance of the applicant on the Railway Board letter dated 29.09.2020, he submitted that the DOPT OMs are not binding on the Railways since the decisions are taken by the Railway Board not by the DOPT.
8. It is to be noted that upon detailed consideration, the DOPT in supersession of the earlier OM has Issued the OM dated 13.07.2020 and issued the following instructions:
(i) Wherever the working hours have been arrived at after taking into account the night weightage factor, no further compensation may be admissible.
(ii) Night Duty will be defined as duty performed between 22:00 hours and 6:00 hours
(iii) A uniform weightage of 10 minutes shall be given for every hour of night duty performed.
(iv) The ceiling of basic pay for entitlement of Night Duty Allowance shall be Rs. 43600/- per. month.9 OA 1032/2021
(v) The hourly rate of NDA equal to I(BP-+DAI/2001 will be paid and the basic pay and DA for the calculation of NDA rates shall be the basic pay and DA prevalent as per 7th CPC.
(vi)This formulation will extend to all employees across all Ministries/ Departments who were already in receipt of NDA.
(vl) The amount of NDA will be worked out separately for each employee depending upon the basic pay the concerned employee is drawing on the date of performing the night duty. The existing practice for giving same rate of NDA to all employees with a particular Grade Pay should be discontinued.
(vii) A certificate should be given by the supervisor concerned that Night Buty is essential.
The respondent department, HEPF, following with the said guidelines has issued circular dated 28.09.2020 and subsequent circulars -which are impugned in the present OA. As far as concerned to the recovery of éxcess payment of NDA, it is under consideration before the Defence Ministry. till that time the said recovery has been kept in abeyance. \
9. it is to be noted that since there is hike in pay scale as well as the applicant has not placed any material on record neither he has made any specific plea or raised any ground relying upon the said Arbitrary Award that become final and same has to be accepted. It is to be noted that though the learned counsel for the applicant has relied upon the earlier OM as well as the order passed by the Rajasthan High court in WP 8637/2011, however the applicant has not raised any plea or ground In his OA In respect of further decision on the Arbitrary Award 2017. It is to be noted that except relying upon the orders passed on the earlier occasion, that too in the year 2012 neither, the facts nor the material has been placed before the court to apply the mind In the present case.
10. As far as concerned to the recovery, both the counsels have jointly submitted that the issue is under consideration before the Ministry of Defence hence further recovery is kept in abeyance. In respect of ceiling identified the applicant has not raised any specific plea or ground with we FE a % See _ wet 10 OA 1032/2021 supporting documents. Hence in the absence of the sarne the OA is without any pleadings"and ground and thereby without any merit. Hence the same is dismissed. No.:order as to costs.
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