Central Administrative Tribunal - Mumbai
Shri Subash V. Chari vs The Union Of India Through on 2 December, 2013
O.A. No. 526/2009 & Group CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI Original Applications No.: 153/2013, 154/2013, 155/2013, 156/2013, 157/2013, 281/2013, 282/2013, 283/2013, 284/2013, 285/2013, 286/2013, 287/2013, 288/201, 289/2013, 290/2013, 291/2013, 292/2013, 293/2013, 294/2013, 295/2013, 296/2013, 720/2011, 526/2009, 801/2010, 640/2012 Dated this Monday, the 02nd day of December 2013 CORAM : HON'BLE SHRI SUDHIR KUMAR, MEMBER (A) HON'BLE SHRI A.J. ROHEE, MEMBER (J) 526/2009 1. Shri Subash V. Chari Assistant Store Keeper, Material Organization, Goa R/at H.No.565, Talegaon, Durgawadi, Near Vithal Mandir, Housing Board Colony, Opp. Nikhil Store, North Goa, Karanzale, Goa 403 002. 2. A.R. Sawant Assistant Store Keeper, Material Organization, Goa R/at Roladao, Heuriques Hsg. Society, Non-Mon, Vasco-da-Gama, Goa. 3. A.N. Naik Assistant Store Keeper, Material Organization, Goa R/at B-1, Shalom Valley View Hsg. Society, Mangoor Hill, Vasco. 4. V.B. Mahale Assistant Store Keeper, -2-O.A. No. 526/2009 & Group Material Organization, Goa R/at Defence Civilian Accommodation, Varunapuri, Vasco-da-Gama. 5. Smt. M.N. Naik Assistant Store Keeper, Material Organization, Goa R/at C/o Narayan R. Naik, Diwan Vastu, Flat No. 11, Near Vadem Lake, Vadem, Vasco-da-Gama, Goa 403 713. 6. J.M.J. Gonsalves Assistant Store Keeper, Material Organization, Goa R/at Curchwado, Majorda, Goa 403 713. ... Applicants 801/2010 1. Ranganath T. Kudnekar Assistant Store Keeper, Material Organization, R/at H.No.136, Khotalavada, Saligao Bender, Goa. 2. P.Y Shet ASK, Material Organization, R/at H.No.3, Non-Mon Vasco, Vasco-da-Gama, Goa 403 802. 3. R.B. Kunkaliekar ASK, Material Organization, R/at H.No.617, Saklembhat, Carambolim, Tiswadi, Goa. 4. K.B. Gaude ASK, Material Organization, R/at H.No.555, Keriyem Khandepar, Ponda, Goa 403 401. 5. Mr. L Rebello Naval Aircraft Yard, R/at H.No.123, -3-O.A. No. 526/2009 & Group Masor Bunder, Vasco-da-Gama, Goa 6. R.R. Parab INS Hansa Dabolim, Goa R/at Near Chicalim Church, Chicalim Goa. 7. Mr. Jaoao C S Gracias Assistant Store Keeper, Material Organization, R/at H.No.115, Quelossim-Cortalim, Goa 403 710. 8. P.X. Naik Assistant Store Keeper, INS Hansa, Dabolim, Goa R/at H.No.16/527/1, Durgawadi, Taleigao, Goa. 9. Mr. L.N. Naik Assistant Store Keeper, Naval Aircraft Yard, Dabolim, Goa R/at Sarwan Temwada, Bicholin, Goa. 10. Mr. Premanand P. Naik Assistant Store Keeper, D G Range, R/at H.No.163/2, Luis waddo, Calata majorda, Goa 403 713. ... Applicants 720/2011 1. Naval Stores Storehouse Staff Association, Material Organization, Naval Stores Depot, Ghatkopar (West), Mumbai 400 086 through its General Secretary, Shri D.V. Thanekar, Storekeeper, R/at 475, Madhavrao Rokde Street, Cement Chawl No.1, 2nd Floor, Room No. 66, Near Masjid Station (West), -4-O.A. No. 526/2009 & Group Mumbai 400 009. 2. Shri M.N. Maheshwaran Storekeeper R/at Sector 2, Building 56, Flat No. 582, C.G.S. Colony, Kane Nagar, Antop Hill, Mumbai 400 037. 3. Shri P.S. Hegiste Storekeeper, R/at A-206, Heraba Sankul, Shani Nagar, Manjarli, Badlapur (W), District : Thane. 4. Shri V.V. Rane Storekeeper, R/at B-303, OMSAI Pujan Housing Society, Near Dube Hospital, Badlapur (E), District : Thane. 640/2012 1. K.K. Naik ASK, Material Organisation R/at: Mhn-34, New-uadem Last Bust Stop, New-uadem, Vasco-da-Gama, Goa. 2. P.A. Naik ASK, Material Organisation R/at: C-3, Raghav Apts. Opp Multipurpose School, Borda-margo, Goa 403 602. 153/2013 Shri Nandakishor Uttam malvankar Fitter Auto (MCM), Naval Aircraft Yard, Dabolim, Goa 403 801 R/at H.No.803-C, New Vaddem, Last Bus Stop, Vasco-da-Gama, Goa 403 802. ... Applicants ... Applicants ... Applicant -5-O.A. No. 526/2009 & Group 154/2013 Shri Bhagyawan S. Shirodkar CMD-I, INS Gomantak, Goa 403 802 R/at: H.No.221, Near Ganpati Temple, New Vaddem, Vasco-da-Gama, Goa 403 802. ... Applicant 155/2013 Shri Bhanudas Shamba Narvekar Fitter Auto (MCM), Naval Transport Repair Workshop (NTRW), Goa 403 802 R/at H.No.54, Ward No.1, Naibag Pernem, Goa 403 512. ... Applicant 156/2013 Shri Nagesh Sonu Kolvalkar Fitter Auto (HSK-I), I.N.S. Hansa, Dabolim, Goa 403 801 R/at H.No. 336, Xapora, Bardez, Near Fishing Jetty, Goa 403 509. ... Applicant 157/2013 Shri Borges Camilo Remedios Fitter Electrical (M.C.M), I.N.S. Hansa, Dabolim, Goa 403 801 R/at H.No.52, Pavasao, Nuvem, Salcete, Goa 403 604. ... Applicant 281/2013 Smt. Catharina Hortecio Fernandes E Nunes LDC, Naval Armament Depot, chicalim, Goa 403 802 R/at H.No.138, 2nd Near Kesarker Chawl, Comba, Margao, Salcete, Goa 403 701. ... Applicant 282/2013 Shri Antonio Mascarenhas Tractor Driver (MCM), -6-O.A. No. 526/2009 & Group INS Hansa, Dabolim Goa 403 801 R/at H.No.76/A, Acsona Seraulim Salcete, Goa 403 708. ... Applicant 283/2013 Shri Mahabaleshwar Mahadev Phadte, Fitter Electrical (HSK-II), D.G. Range, Vasco-da-Gama, Goa 403 802 R/at: H.No. 18, Bandir Wado, Shapora, Bardez Goa 403 509. ... Applicant 284/2013 Shri Bharat Rajaram Pednekar Fitter Auto (HSK-I), INS Hansa, Dabolim, Goa 403 801 R/at H.No.41, Last Bus Stop, Near Jum, New Vaddem, Vasco-da-Gama, Goa 403 802. ... Applicant 285/2013 Shri Anthony J. Fernandes Fitter Electrical Auto (HSK), Naval Transport Repair Workshop (NTRW), Goa 403 802 R/at H.No.57, Cotta Cantivaddo Chandor Salcete, Goa 403 714. ... Applicant 286/2013 Shri Ramdas Pandurang Khorjuvekar CMD-II, I.N.S. Hansa, Dabolim, Goa 403 801 R/at H.No.93, New-Vaddem, Bharatnagar, Vasco-da-Gama, Goa 403 802. ... Applicant 287/2013 Shri Ramakant Sagun Chavan, Semi Skilled Labour (SSL) Naval Aircraft Yard, Dabolim Goa 403 801 -07-O.A. No. 526/2009 & Group R/at: H.No. 695-A, Near Water Tank, Last Bus Stop,l New VaddemVasco-da-Gama, Goa 403 802. ... Applicant 288/2013 Shri Jose Sarvito D'mello Fitter Auto (MCM), I.N.S. Gomantak, Goa 403 802 R/at: H.No.318, Cortalim, 1st Arvale, South Goa 403 710. ... Applicant 289/2013 Shri John C.A. Peres Fitter Auto (HSK-I), I.N.S. Hansa, Dabolim Goa 403 801 R/at H.No. 1052/1, Bairo Dias, Goa Velha, Illhas, Goa 403 108. ... Applicant 290/2013 Shri Sadguru Y. SakhalkarFitter Auto Electrical INS Gomantak, Goa 403 802 R/at Bastora Chandanwadi, Mapusa, Bardex, Goa 403 507. ... Applicant 291/2013 Shri Jana Shrirang TariCMD II, I.N.S. Gomantak, Goa 403 802 R/at Rambhavan, Kumbharjua, Goa 403 802. ... Applicant 292/2013 Shri Prabhakar Shankar Dhuri, Fire Engine Driver GD-1, I.N.S. Hansa, Goa 403 801 R/at: H.No.EWS 176, Housing Board ColonyGogol, Salcete, Margao, Goa 403 601. ... Applicant -08-O.A. No. 526/2009 & Group 293/2013 Shri Mildred De Souza, Fitter Electrical Auto (HSK), Naval Armament Depot, Chicalim Goa 403 802 R/at: H.No. 340, 2nd Arvale, Opp. Sebastio, Chapel Cortalim, South Goa 403 711. ... Applicant 294/2013 Shri Ashok D. Mandrekar, C.M.D. II, Naval Aircraft Yard, Dabolim Goa 403 802 R/at: H.No. 222-C, Sangolda BellavistaBardez, Goa 403 511. ... Applicant 295/2013 Shri Milind Chodankar Chargeman-I, Auto NavalTransport Repair Workshops(NTRW), Vasco-da-Gama, Goa 403 802R/at: H.No.218, Bela-bai Chikran uddi, Vasco-da-Gama, Goa 403 802. ... Applicant 296/2013 Shri Ashok Narayan Amonkar, C.M.D II, Naval Aircraft Yard, Dabolim, Goa 403 801. R/at: H.No. 417/2C, Marjua diwade,Piedade, Iihas-Goa 403 403. ... Applicant (By Advocate Shri D.V. Gangal, S.V. Marne and Shri A.I. Bhatkar) VERSUS 1. The Union of India through Secretary, Ministry of Defence, South Block, New Delhi 110 011. ... Respondents in O.A. Nos. 281/2013 -09-O.A. No. 526/2009 & Group to 296/2013, 153/2013 to 157/2013, 720/2011 2. The Chief of the Naval staff Integrated Head Quarters, Ministry of Defence (Navy), New Delhi 110 011. ... Respondents in O.A. Nos. 281/2013 to 296/2013, 153/2013 to 157/2013, 720/2013 3. The Flag Officer Commanding-in-Chief Western Naval Command, Shahid Bhagat Singh Road, Mumbai 400 001. ... Respondents in O.A. Nos. 281/2013 to 296/2013, 640/2012, 153/2013 to 157/2013, 801/2010, 526/2009 4. The Flag Officer Commanding Headquarter Goa Naval Area, Vasco-da-Gama, Goa 403 802. ... Respondents in O.A. Nos. 281/2013 to 296/2013, 640/2012, 153/2013 to 157/2013, 801/2010, 526/2009 5. Union of India through The Secretary, Ministry of Defence (Navy) Integrated Headquarters Directorate of Logistics Support 'C' Wing, Sena Bhavan, New Delhi 110 011. ... Respondent in O.A. Nos. 640/2012, 801/2010, 526/2009 6. The Material Superintendent Material Organization, Naval Stores Depot, Ghatkopar (W), Mumbai 400 086. ... Respondent in O.A. Nos. 720/2011 (By Advocates Shri V.S. Masurkar, Shri R.R. Shetty, Shri D.A. Dube and Shri N.K. Rajpurohit) -10 O R D E R
Per Sri Sudhir Kumar, Member (A) This is the second round of litigation before this Tribunal in respect of applicants of OA No.526/2009, and the first round of litigation before this Tribunal in respect of the applicants of OA No.720/2011 and connected cases and OA No.153/2013 and connected cases. The common issue in these cases relates to the treatment to be accorded to the regularisation of casual services rendered by the applicants before their substantive appointment in the various civilian cadres under the Navy. When the applicants of OA No.526/2009 had approached this Tribunal earlier, the OA Nos.423/2005 and 424/2005 had been disposed of by this Bombay Bench of this Tribunal on 17.4.2006, directing the respondents to follow the judgments in the earlier cases of this Bench in OA No.788/2003 and OA No.343/2002. In both those sets of judgments, the Tribunal had granted the prayers of the applicants in respect of the benefit of counting of the past service from the dates of their initial appointments of the respective applicants, for grant of ACP benefits. Similar judgment had later followed in the case of OA No.32/2009.
2. However, when the applicants of the present OA Subhash V.Chari & Ors. had approached this Tribunal through the present OA 526/2009, an order had been passed on 10.8.2011 by another concurrent bench holding that in the light of the judgment of the Hon'ble Apex Court in the case of Punjab State Electricity Board & Ors. vs. Jagjiwan
-11 Ram and Ors. {2009 (1) SCC (L&S) 769}, the decision of the respondents is not counting the past service of the applicants, and ignoring their date of initial appointment on officiating/temporary basis and counting their past service only from the date of their regular and substantive appointments w.e.f. 7.6.2007 cannot be faulted as being either arbitrary or illegal or calling for any interference by this Tribunal, in exercise of powers of judicial review, and the OA was thereafter dismissed.
3. The applicants of this OA 526/2009 then carried the matter before the Hon'ble High Court, which entertained the Writ Petition No.9732/2011 and passed its order dt. 23.1.2012 in that Writ Petition and held that the order of the Tribunal was erroneous, inasmuch as, when the regularisation of the petitioners before the Hon'ble High Court had already been ordered by the respondents from the date of their initial appointment for all purposes except for seniority and promotion, it was to be made applicable for the purpose of grant of ACP also, and an argument to the contrary, for denying ACP benefit to the petitioner before the Hon'ble High Court, was totally un-acceptable, because the date on which the regularisation was ordered the ACP scheme itself was not in force, and because of this, the Bench which decided the OA on 10.8.2011 had falled in error.
4. The High Court, further observed that, the Bench could not would not have declared the earlier ordes of the other Benches as per incuriam and that even if the Division Bench was of the opinion that certain relevant and crucial aspects
-12 of the matter had not been considered by the earlier Benches, it could not have declared those orders to be per incuriam and declined to follow them and that the right course of action available to the Division Bench of this Tribunal was to refer the issue to a Larger Bench, rather than refusing to follow the earlier orders declaring them to be per incuriam. In the operative portion of its order, the Hon'ble High Court has ordered novo consideration and decision in accordance with law as follows :"
a) The order of the petition is set aside.
Tribunal impugned in this
(b) The OA is remitted back to the Tribunal for de-
and in the light of the observations made above.
(c) Rule is made absolute accordingly.
(d) There shall be no order as to costs.
(e) All the contentions available to both the sides are kept open to be raised before the Tribunal".
5. Thereafter, this case OA No.526/2009 were revived and we are bound to decide and consider the case in accordance with law and in accordance with the observations of the Hon'ble High Court made in its Judgment and Order dt. 23.1.2012.
6. We are in respectful agreement with the orders of the Hon'ble High Court that according to law as laid down by the Hon'ble Apex Court in S.I.Rooplal and Anr. vs. Lt. Governor through Chief Secretary Delhi : JT 1999 (9) SC 597 and in accordance with the Judgment in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra {{2011) 1 S.C.C. 694}, a Bench of this Tribunal cannot declare the determination of another Bench of co-equal
-13 strength as per incuriam.
7. During the course of the arguments before us, it was vehemently argued by the applicants that they should be given the benefit of the judgments of this Tribunal's Circuit Bench at Goa order in OA No.516 and 732 of 1998 Shri N.R.Naik and Ors. vs. Union of India and Ors. (1990 (3) CAT AISLJ 19 which decision has since been implemented by the respondents through office order dt. 26.6.1995 produced by the applicants at Annexure-A/5 of the OA. They had also cited the judgments of co-ordinate benches in OA No.343/2002 dt. 10.12.2002 and OA No.193/2011 to 263/2011 and related cases, judgment dt. 12.9.2011, and the judgment of the Ernakulam Bench of this Tribunal in OA No.23/2005 filed by All India Naval Clerks' Association and one K.G.Lakshmi Kutty judgment dt. 10.10.2006, which had relied upon the judgment and order in OA No.755/2000 dt. 20.9.2002 pronounced by the Ernakulam Bench of the Tribunal itself. They had also pointed out that this matter was carried by the respondents before the Hon'ble High Court of Kerala at Ernakulam in Writ Petition Civil No.21384/2007 (Z) Union of India vs. All India Naval Clerks' Association and K.G.Lakshmi Kutty in which the judgment of the Hon'ble Kerala High Court was pronounced on 17.1.2012. The applicants had also produced a copy of the order of the Ernakulam Bench in OA No.755/2000 dt. 20.9.2002, and a copy of the Hon'ble High Court's order dt. 17.1.2012 as cited above.
8. The Ld. Counsel for the respondents initially vehemently argued against the prayers made in these OAs,
-14 and also argued that in a related matter in OA No.148/AN/2011, with OA No.165/AN/2011, passed by a Full Bench of the Calcutta Bench of this Tribunal on 22.3.2013, in cases arising from Andaman & Nicobar Islands, the matter had since been referred for consideration before a Larger Bench, in view of the ratio laid down by the Hon'ble Apex Court in S.I.Rooplal and Anr. (supra), and since a Full Bench consisting of three Members had also found this matter appropriate to be considered by a Larger Bench, we ought not to decide this matter. A copy of the order of Full Bench of the Calcutta Bench of this Tribunal was produced by the respondents. The respondents also produced a copy of the orders passed on 1.8.2013 in OA No.399/2013 by this Bombay Bench of the Tribunal itself, in which also it was held that the requests of the applicants are not in accordance with the provisions contained in the ACP scheme dt. 9.8.1999, and also that the OA suffers from delay and laches.
9. But, before arguments could proceed further, the Learned Counsel for the applicants produced a copy of the letter No.CS/I/0304/ACP/PC(23)/05) dt. 26.4.2013 addressed by the Headquarters, Western Naval Command, Shahid Bhagat Singh Road, Mumbai-400001 to numerous Naval Establishments all over the country which states as follows :"
cs/I/0304/ACP/PC(23/05) 26th April, 2013 ................................................... IMPLEMENTATION OF JUDGMENT DATED 17 JANUARY 2012 ON PC NO.21384/2007(Z) OF HON'BLE HIGH COURT OF KERALA AT ERNAKULAM
1. Refer to IHQ/MoD (N) letter CP(NG)/6001/CC/AIDEF/I dated 04 Apr 2013 (copy enclosed)
2. IHQ/MoD (N) vide letter under reference has intimated that case for grant of ACP/MACP benefits from date of initial appointment to the similarly placed persons was referred to JAG(Navy) for their comments and advice in the matter. JAG(N) has stated that individuals who are eligible needs to be dealt with the same manner in which earlier cases have been given relief. Therefore, eligibility of individuals be first ascertained and established and if they satisfy the requirement, then they may be given the benefits not withstanding that they are not before court.
3. IHQ/MoD (N) has further stated that Hon'ble CAT Order dated 20 Sep 2002 in OA 755/2000 for the petitioners as well as member of Naval Clerks Association was issued by MoD. Therefore, approval of MoD would be required for extending the benefits of OA 755/2000 to the persons who are neither the petitioners nor the members of Naval Clerks Association in compliance of Judgment delivered by Hon'ble High Court of Kerala on 17 Jan 2012 in WPC 21384/2007(Z).
4. It is therefore requested that eligibility of the individuals who have represented for extending the benefits of order dated 20 Sep 2002 in OA 755/2000 consequent to order of Hon'ble High Court of Kerala for grant of ACP/MACP from date of initial appointment and also similar cases left out be ascertained in the first instance and forwarded to this Headquarters as per proforma enclosed to this letter.
5. HODs are rquested to ensure utmost care taken in complying above information as the same is required to be forwarded to IHQ/MoD (N) for approval of MoD.
6. NIL report is also required".
10. In view of this submission, the Ld. Counsel for the Respondents Shri R.R.Shetty submitted that when his clients the Union of India, have themselves at the highest level decided that even those persons who were neither the petitioners before the Ernakulam Bench in the OA No.755/2000, in which orders dt. 20.9.2002 wee passed, nor were they Members of the Naval Clerks' Association, would all be extended the benefit of the judgment of the High Court of Kerala at Ernakulam dt. 17.1.2012, no dispute or lis remains to be judicially adjudicated by us.
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11. Therefore, when once the Respondents themselves have, through the letter circulated on 26.4.2013 produced before us, agreed to extend the benefit sought by the applicants of the present cases, there is no dispute or lis which remains for our judicial determination in accordance with law. Therefore, all these OAs stand disposed of accordingly, but there shall be no order as to costs. (A.J.ROHEE) (SUDHIR KUMAR) MEMBER (J) MEMBER (A) B.