Central Administrative Tribunal - Ernakulam
P.C Ibrahim vs The Administrator on 14 December, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.723/2013
Wednesday, this the 14th day of December, 2016
CORAM:
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath , Administrative Member
1. P.C Ibrahim
S/o.T.K.Kidav
Puthiyachetta House
Agatti Island, Leading Fireman
Police Station, Chetlat, Lakshadweep
2. S.B.Abdul Rahman
S/o.M.Attakoya
Sarommabiyoda House
Kadamath, Leading Fireman
Police Station, Kalpeni
Lakshadweep
3. M.P.Muthukoya
S/o.Late P.P.Hassainar
Mullappura House
Kadamath, Fireman, Police Station
Kalpeni, Lakshadweep
4. K.K.Koya
S/o.Late A.K.Cheriya Koya
Kunnam Kalam House
Kalpeni, Fireman, Police Station
Amini, Lakshadweep
5. H.Jaffer, S/o.Late Abdulla Koya
Hajarommabioda, Kiltan,
Fireman, Police Station
Androth, Lakshadweep
6. M.V.Aliyyul Akber
S/o.P.P.T Koyammakoya
Moulana Veedu
Andrott Island, Fireman
Police Station Minicoy
Lakshadweep
7. N.Koya
S/o.A.T.Fathahulla Koya
Nadiyath House, Kalpeni
Fireman, Police Station
Kiltan, Lakshadweep ... Applicants
(By Advocate -Mr.R.Sreeraj)
Versus
1. The Administrator
Union Territory of Lakshadweep
Kavaratti, Pin - 68255
2. The Superintendent of Police
Union Territory of Lakshadweep
Kavaratti, Pin - 682 555
3. Union of India represented by its Secretary
to Government of India, Ministry of Home Affairs
New Delhi, Pin - 110 001 . . . Respondents
(By Advocate - Mr.S Radhakrishnan for R 1 & 2,
Mr.N.Anilkumar,Sr.PCGC(R) for R3)
This Original Application having been heard on 9.11.2016, the Tribunal on
14.12.2016 delivered the following:
ORDER
By Hon'ble Mrs.P.Gopinath, Administrative Member The applicants are aggrieved by action of the respondents in compelling the applicants to shoulder routine police work for which they are not trained. This is being done without extending them any benefit available to the police personnel and denying them facilities like weekly off, public/national holidays etc. 2 The first and the second applicants are Leading Firemen and the other applicants are Firemen under the Lakshadweep Fire Service. Applicants submit that on completion of their training as stipulated in Annexure A-1 order, they were posted and attached to various police stations. This was done as a temporary measure till such time as the Fire Stations are established.
3 The applicant prays for he following reliefs:
' To declare that the action of the respondents in compelling the applicants to shoulder routine police work for which they are not trained at all without extending them any benefit whatsoever available to the police personnel and denying them weekly off, public/national holidays etc, is highly illegal, arbitrary, unjust, unreasonable and irrational and that the same violates Article 14 and 16 of the Constitution of India.
(ii) To direct the respondents not to compel the applicants to shoulder routine police work for which they are not trained.
(iii) To direct the respondents to grant the applicants weekly off, public/national holidays etc.
(iv) To direct the respondents to suitably compensate the applicants for extracting routine police work from them over the last 19 years without extending them any benefit whatsoever available to the police personnel and denying them weekly off, public/national holidays etc by granting them benefits like overtime allowance, honorarium, compensatory off etc.' 4 Respondent in their reply statement submit that the applicant nos.1 to 7 were appointed as Firemen in Union Territory of Lakshadweep for Fire Protection and Control as per appointment order dated 24.8.1993. Applicant Nos.1 and 2 were promoted to the post of Leading Firemen by order dated 6.1.2011 vide Annexure A-4 and applicants 3 to 7 are continuing as Firemen. Due to the geographical isolation of islands and limited transportation facilities from mainland to Island, Lakshadweep Police are faced with the difficulty of transporting other force from mainland to Island. Besides, the information regarding VIP visits to Lakshadweep is received from various Ministries and organizations at short notice. Hence, respondent Administration does not have enough time to arrange force. Superintendent of Police, U.T of Lakshadweep, Kavaratti is the Chief Fire Officer and hence internal arrangements are made between the fire and police officials only for the smooth functioning of both departments and thus the service of Lakshadweep Fire Service personnel were utilised for law and order and other security arrangements only when an emergency arises due to shortage of Police personnel. As of now, Lakshadweep Police has filled almost all vacancies at all levels of the Police department. Therefore, there is no need to take the help of other service staff by the Police Department except during election or emergencies like natural calamities.
5 Respondent had made a request to the Ministry of Home Affairs to allow compensatory pay as admissible to Lakshadweep Police to Lakshadweep Fire Service personnel also, but MHA had not agreed to the proposal of the respondent administration. Lakshadweep Fire Service personal have recently made a claim for Compensatory Leave/Over Time Allowance instead of Compensatory Pay i.e, after denial of Compensatory Pay. It is submitted that the claim of allowing of Compensatory leave/OTA, is under consideration of the Administration. The department has sought information from other States/UTs on the kind of leave and its limitations including earned leave, casual leave, compensatory leave, medical and half pay leave and over time allowance by letter dated 28.5.2013. The reply from some of the UTS/States is awaited for a further examination of the case. Hence, the allegation that the respondents denied the benefits of compensatory leave/OTA is not admitted. Respondent is attempting to find a solution for this matter.
6 The Annexure A-8 & A-10 order/circular was issued by the Chief Fire Officer cum Superintendent of Police, U.T of Lakshadweep on 25 th April, 2000 to all Officer in Charge's of the concerned Island Police Stations that duty roster of the Firemen/Drivers should be maintained in such a manner that they are not found wanting on any count as and when any fire incident is reported so that fire services prevention and control is not adversely affected. 7 Enumerating the facts pertaining to suspension of applicants namely (1)P.C.Ibrahim, Leading Fireman (2) S.B.Abdul Rahman, Leading Fireman (3) M.P.Muthukoya, Fireman (4) K.K.Koya, Fireman (5) H.Jaffer, Fireman (6) M.V.Aliyyul Akbar, Fireman and (7) N.Koya, Fireman respondent submits that, at Police Station Agatti all the staff was deployed including Local Police, IRBn, Coastal Police, Fire Staff and CRPFwere deployed in connection with Panchayath election 2012. During election all the government servants' services can be requisitioned for election duty. On 4.12.2012, a route march was conducted at 3.30 p.m consisting of all the above mentioned staff including Fire staff. All the staff members were equipped with fire arms, riot equipments and lathies except the applicants. Deputy Superintendent of Police Agatti asked all seven applicants to arm themselves with lathies for route march. Despite repeated directions issued to Fire staff to carry lathies by the DYSP Agatti as well as Officer in Charge of Agatti Police Station and Inspector IRBN during the briefing, before commencing the route march, they flatly refused to carry lathi for the said route march. Respondent would argue that refusal to perform Government duty by a government servant amounted to gross misconduct and that too during election. In view of above all 7 applicants were suspended by order F.No.1/254/2012-Pol dated 4.12.2012. Suspension was revoked by Superintendent of Police with effect from 12.12.2012, contemplating departmental enquiry against all the applicants. The period of suspension from 4.12.2012 to 12.12.2012 will be treated as a consequence of the Regular Departmental Enquiry against the 7 applicants. The enquiry is being carried out by DYSP Shri.Gurbachan Singh.
8 Respondent's argument is that applicants are not being compelled to shoulder routine Police work. The assistance of the Fire Staff is being taken for national purpose and emergency cases like during election and due to shortage of Policemen.
9 From the arguments put forward this appears to be a case where the applicants did not refuse to participate in the route march, but refused to carry lathi on the route march as it did not form part of the prescribed uniform of the post they held.. Any prescribed uniform is to be respected in the way prescribed and not by its addition or alteration. Hence, applicants had not committed a misconduct by respecting the uniform. 10 It appears from the respondents' reply statement that though fire staff are recruited for fire duty, situations may arise wherein their services are required to be requisitioned, and used in an exigency for police duty. This would normally arise when an urgent need or demand has to be dealt with and contingency plans have to be drawn up, without affecting Fireman's availability to attend to fire incident. Due to the geographical and isolated location of the Island, we understand that such use may be necessary at times. However, if fire staff are utilised for any service other than fire duty, they are required to be compensated. OTA will be admissible when such duty is performed beyond duty hours. Compensatory pay will be admissible if Firemen's services are used on a regular basis for police duties. The respondents' have also not made out a case that the incidents of fire are so few that the firemen remain idle most of the time. In order to use firemen's services properly, fully and productively, the performance of police duties without affecting deliverence of fire services, should form a part of their engagement conditions in the Recruitment Rules. This should be feasible in view of the unique and isolated location of the Island, away from the mainland. However, no such arrangement is made. Hence, it becomes necessary to compensate the Firemen when their services are utilised for purposes other than their terms of recruitment and engagement. 11 In the meantime both respondent administration and third respondent will consider amending the Recruitment Rules to include police duties to be performed by Firemen during their spare and unutilised duty time in view of the peculiar and special geographic location of the Island and in order to meet the local contingencies and requirement. This will cover VIP duties, security arrangements and emergency duty but not criminal investigation and other regular police station duties. This will be subject to a work study on the time taken to implement fire duties in the past and time available as spare for performance of policing work. Such a re-organisation of functions is necessary in view of the special circumstances of the Island administration and to meet the requirements of the Island territory.
12. From the pleadings the position that emerges is that applicants are discharging the function of two posts. FR 49 covers the case of a person being made to hold dual charge of two posts in the same cadre and performing the functions of both from time to time if not regularly and in the same office carrying identical scales of pay. In such an instance no additional pay shall be admissible irrespective of the period of dual charge. This is a case where despite absence of any formal order of combination of the duties of the two posts, applicants have been performing the duties. Since there is no formal arrangement for combination of duties in the form of an order, there has been some resistance also in delivery of dual duties.
FR 49(v) also states that:
' 49(v) : No additional pay shall be admissile to a government servant who is appointed to hold current charge of the routine duties of another post or posts irrespective of the duration of the additional charge. ' 13 Hence even in respect of holding of additional current charge of a full post, no additional pay is admissible. Whereas a combination of additional duties would not be looked upon adversely, a combination of posts may lead to a justifiable inference that the need for the second post does not exist. Hence such a course of action is not advisable for the Fire Department whose work is intermittent and required to be accessed only when an incident, whose timeline is unknown, occurs.
14 We are aware that any relief given should be within the ambit of financial rules which will be acceptable, failing which the relief will remain in paper only. We note that under FR 46(b) there is a provision for payment for extra work. Till the above amendment is effected we find that FR 46(b) can be granted to applicants.
'Honoraria' - FR 46(b) reads as follows:
'Honoraria - The Central Government may grant or permit a Government Servant to receive an honorarium as remuneration for work performed which is occasional or intermittent in character and either so laborious or of such special merit as to justify a special reward. Except when special reasons which should be recorded in writing, exist for a departure from this provision, sanction to the grant of acceptance of an honorarium should not be given unless the work has been undertaken with the prior consent of the Central Government and its amount has been settled in advance.' FR 9 defines honorarium as :
' A recurring or non-recurring payment granted to a government servant from the Consolidated Fund of India or the consolidated fund of a State/Union. Territory as remuneration for special work of an occassional or intermittent character. '
15 We also note that extra-duty allowance stipulated under FR(9) can also come to the assistance of applicants. Under FR 9, there is a provision for extra-duty allowance which would fit the requirement of applicants as the police duty performed by Fireman would fit the definition of extra duty. Further, in case the additional duty is performed before or after duty hours applicants are entitled to receive overtime allowance. 16 We note that respondents have three options under the Rules to compensate the applicants for the additional duty performed which we direct the respondents to disburse as per situation and circumstance of using the services of the applicant. Further they would have by now received replies to their request for information issued to other Union Territories and States. Hence, we direct: Till such time the respondent takes a final decision on the matter, the applicants be compensated with either payment of Honoraria or overtime or extra-duty allowance as the case may be, with effect from the date of filing of Original Application for the additional duties performed, as all the above allowances cannot be paid concurrently for the same duty performed on one occasion.
17 The Original Application is disposed of as above. No costs.
(MRS.P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv