Central Administrative Tribunal - Delhi
Virender Kumar vs Municipal Corporation Of Delhi, Govt. ... on 8 November, 2016
1 OA No.100/2474/2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.100/2474/2012
New Delhi this the 8th day of November, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. P.K. BASU, MEMBER (A)
1. Virender Kumar
S/o Late Shri Desh Ram
R/o Village & P.O.
Bagdola, Sector-A, Dwarka,
New Delhi.
2. Brij Bhushan
S/o Late Shri Sunder Lal
R/o 1618, Rani Bagh,
New Delhi.
3. Mahinder Singh
S/o Shri Hari Singh
R/o B-375, Gali No.6,
Nehru Vihar, (Dayalpur),
Delhi-110094.
4. Rajiv Kumar
S/o Shri Madan Gopal
R/o G-20,/6A, Rajouri Garden,
New Delhi.
5. Kushi Ram
S/o Shri Budh Ram
R/o House No.190,
Gali No.5, Karawal Nagar,
Delhi-110094.
6. Rohtas
S/o Shri Ram Pat
R/o Village Peepli,
Distt. Sonepat, Haryana.
7. Dharam Pal
S/o Shri Hari Singh
R/o C-44, Gali No.20,
Mata Wali Gali,
Johripur, Delhi-110094.
8. Dharamraj
S/o Shri Babu Lal
2 OA No.100/2474/2012
R/o C-28 Karmpura,
Delhi-110015.
9. Chandan Singh
S/o Shri Mangtu Ram
R/o Khedi Kalan, Sonipat,
Haryana.
10. Mirza Mustafa Ali Baig
S/o Late Shri Mirza Moazzam Ali Baig
R/o 192F, First Floor, Arjun Nagar,
New Delhi-11029. .....Applicants
(Argued by: Mrs. P.K. Gupta, Advocate)
Versus
1. North Delhi Municipal Corporation,
Through Commissioner,
17th Floor, Civic Centre, Minto Road,
Delhi.
2. South Delhi Municipal Corporation,
Through Commissioner,
17th Floor, Civic Centre, Minto Road,
Delhi.
3. East Delhi Municipal Corporation,
Through Commissioner,
Udyog Bhavan, Patparganj Industrial Area,
Delhi-110092.
4. Additional Commissioner (Engineering)
North Delhi Municipal Corporation,
17th Floor, Civic Centre, Minto Road,
Delhi.
5. Additional Commissioner (Engineering)
South Delhi Municipal Corporation,
17th Floor, Civic Centre, Minto Road,
Delhi.
6. Additional Commissioner (Engineering)
East Delhi Municipal Corporation,
Udyog Bhavan, Patparganj Industrial Area,
Delhi-110092.
7. Chief Accountant-cum-Financial Accountant,
North Delhi Municipal Corporation,
Through Commissioner,
17th Floor, Civic Centre, Minto Road, Delhi.
3 OA No.100/2474/2012
8. Chief Accountant-cum-Financial Accountant,
South Delhi Municipal Corporation,
Through Commissioner,
17th Floor, Civic Centre, Minto Road, Delhi.
9. Chief Accountant-cum-Financial Accountant,
South Delhi Municipal Corporation,
Udyog Bhavan, Patparganj Industrial Area,
Delhi-110092.
10. Executive Engineer,
Hot Mix Plant
Municipal Corporation of Delhi,
Moti Nagar, New Delhi. .....Respondents
(By Advocates : Mr. R.N. Singh for Respondents 1, 4 & 7
Ms. Anupama Bansal for Respondents 2, 5 & 8
Mr. K.M. Singh for Respondents 3, 6 &9)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The crux of the facts and material, essential for deciding the instant Original Application (OA), filed by applicants Virender Kumar S/o Late Shri Desh Ram and Others, and exposited from the record, is that, the applicants were initially appointed on ad hoc basis as Operator, Wireman, Electric Beldars, Fitters and Welder, in between 1969 to 1985 in the Engineering Department of the Respondent No.2-South Delhi Municipal Corporation (SDMC). They were assigned the duty in Hot Mix Plants. Subsequently, their services were regularised in between 1977 to 1990 by the competent authority and initially they were covered under the Employees Provident Fund (EPF) Scheme.
4 OA No.100/2474/2012
2. The case set-up by the applicants, in brief, insofar as relevant is that the functioning of all the Hot Mix Plants were closed. At the same time, the respondent No.2-SDMC was directed not to remove and to adjust the persons, who were working on the Hot Mix Plants to discharge their duties in other departments of the Municipal Corporation of Delhi (MCD) by Hon'ble Apex Court in M.C. Mehta's case. Since then, they are discharging their duties as such, continuously in the other departments of MCD.
3. According to the applicants, some of the similarly situated persons, who were earlier working in Hot Mix Plants and adjusted in other departments of MCD, were subsequently given the benefit of General Provident Fund (GPF) Scheme, as shown in Annexure A-II. However, the same very benefits were denied to the applicants. They moved representation dated 03.08.2009 (Annexure A-IV). The same was placed in a meeting convened on 29.09.2009 (Annexure A-V), wherein a decision was taken that the employees, who are interested to be governed under GPF Scheme, shall give consent and thereafter, decision shall be taken.
4. In pursuance thereof, applicants gave consent for availing benefits under GPF Scheme, on the ground of parity of grant of GPF benefits allowed to other similarly situated employees. The applicants sought information under the RTI Act, 2005 and they were informed, vide 5 OA No.100/2474/2012 memo dated 27.12.2010 (Annexure A-VI Colly) that 30 such similarly situated employees have been converted from EPF Scheme to GPF Scheme. The same were illegally denied to the applicants. Then they issued a legal notice dated 19.10.2010 (Annexure A-VII) in this regard, but in vain.
5. Finding no alternative, the applicants then filed the OA bearing No.742/2012 in which the respondents were directed to look into the matter treating that OA as a supplementary representation of the applicants, and to decide the same by passing a speaking and reasoned order, which should be communicated to them, vide order dated 05.03.2012 (Annexure A-VIII) by this Tribunal. In compliance thereof, the applicants forwarded the copy of the representation dated 17.03.2012 (Annexure A-IX), which was rejected by passing a very brief and non- speaking impugned order dated 10.07.2012 (Annexure A-1) by the competent authority.
6. Aggrieved thereby, the applicants have instituted the present OA, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985, on the following grounds:-
"(A) That the action of the respondents is violative of Article 14 & 16 of Constitutions of India.
(B) That the respondents have discriminated among similarly situated persons hence the action of the respondents is illegal, perverse and suffers from malafides.
(C) That the applicants and other similar similarly situated persons who are discharging their duties in various zones of the respondents have made numerous representations but the 6 OA No.100/2474/2012 respondents have not decided any representations. The non action on the part of the respondents is illegal, arbitrary and discriminatory.
(D) That the conversion from the EPF to GPF Scheme is also beneficial to the MCD. The respondents are delaying the grant of benefit of GPF scheme to the applicants. The applicants were regularized prior to 2004 and no harm and prejudice would be caused to the respondents if the applicants who are presently under the EPF scheme being given the benefit under the GPF scheme.
(E) That the delay is causing great hardship to the applicants.
Hence the applicants are filing the present petition before this Hon'ble Tribunal. The action of the respondents is discriminatory. (F) That as per the letter dated 27.12.2010, the respondents have admitted that the GPF Scheme have been made applicable to some of the employees working in the Hot Mix Plant, therefore, there is no justification in not granting the benefit of the GPF Scheme to the applicants.
(G) That the applicants are entitled for the benefits under the GPF Scheme on the terms and conditions which have been made applicable to similarly situated person.
(H) That the closure of the Hot Mix Plant by the orders of Hon'ble Supreme Court, is an admitted fact, the services of the employees who were working in the Hot Mix Plant, are now placed in various Zonal Offices of the Respondents is also an admitted fact. Applicants are discharging duties in various zonal offices, are thus entitle for similar treatment as given to the employees of Zonal Offices. (I) That the respondents passed the non-reasoned and non- speaking order dated 10.7.2012.
(J) That the respondents erred in not appreciating that similarly situated person have been granted the benefit of GPF Scheme which has been admitted by the respondents in their reply to RTI Application.
(K) That the respondents failed to consider that as per the record the GPF benefit has been given to other Hot Mix Plant Employee i.e. 30 employee. The impugned order is totally silent for the discrimination with the applicants.
(L) That if the 30 employees have been converted from EPF to GPF then on what basis the benefit can be denied to the applicants. The respondents did not assign any reason for rejecting the representation dated 17.3.2012.
(M) That the order passed by respondents does not show application of mind by the competent authority, as the respondents did not consider the facts and circumstances, while deciding the representation.
(N) That the Respondents ought to have passed the reasoned order while deciding the representation. The order passed is hence liable to be set aside.
(O) That the discrimination is writ large as the similarly situated employees of HOT Mix Plant are getting the benefit of GPF Scheme therefore the same cannot be denied to applicants. 7 OA No.100/2474/2012
(P) That the Respondents did not appreciate that the earlier in the meeting it has been decided to give the benefit, so there cannot be any reason to deny the same subsequently.
(Q) That it has been stated in the impugned order by the respondents that presently there are no such instructions/directions from the Government allowing the employees to switch over from EPF to GPF. In this regard it is stated that when the similarly situated 30 employees were allowed to switch over from EPF to GPF after closure of Hot Mix Plant. The applicants are seeking the same switch over under the same rules which were applied to 30 employees. (R) That the impugned order is bad in law as the applicants are not seeking relief from the present date, but from the date from which the benefit was given to similarly situated persons. (S) That the Respondents have failed to disclose the reasons/rules under which the similarly situated persons were granted the benefits.
(T) That applicants may be permitted to urge any other additional grounds in support of their case."
7. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, the applicants claimed that they are also entitled to the benefits of GPF Scheme at par with persons mentioned in Annexure A-II, to whom the benefit of GPF Scheme has already been granted by the MCD under the similar set of circumstances. On the strength of aforesaid grounds, the applicants seek to quash the impugned order in the manner indicated hereinabove.
8. The respondents No.1, 4 and 7 did not file the written statement and their defence was struck off, vide order dated 07.10.2016, by this Tribunal. However, remaining contesting respondents No.3, 6 & 9 have refuted the claim of the applicants and filed the reply, wherein it was pleaded as under:-
"1. That this OA is not maintainable and should be dismissed on the ground that the present petition is hopelessly time barred by limitation.8 OA No.100/2474/2012
IT is pertinent to mention here that the Hon'ble Supreme Court in the case of Union of India Vs. M.K. Sarkar has held that the cause of action arises from the original date and the applicants have alleged in the para 4.7 that similarly situated employees/persons have been given the benefit of GPF Scheme between 1997-2008 and the applicants made the representation in the year 2012. It is further submitted that the applicants filed the application No. 740/2012which was disposed of at the admission stage and the same also dies not give a cause of action as held by Hon'ble Supreme Court in the case of Union of India Vs. M.K. Sarkar.
2. That this OA is not maintainable and should be dismissed on the ground that the applicants are covered under the Factories. Act 1948 and as per the provisions of the said Act the applicants are the member of EPF Scheme wherein the applicants are contributing to the employees provident fund at the rate of 12.00% towards EPF and equal contribution i.e. 12% is/was also being made by the respondents. It is pertinent to mention here that the some of the part of the contribution of the respondent is also being contributed towards the pension scheme as per the labour laws.
3. That this OA is not maintainable and should be dismissed on the ground that the applicants does not get the right to switch over to GPF scheme if the other similar situated persons have been switched over to GPF Scheme. It is pertinent to mention here that if there is any illegality that should not be perpetuated. It is further submitted that the applicants are getting their provident fund as the Govt. employees get their provident fund after the retirement.
4. That this OA is not maintainable and should be dismissed on the ground as the applicants in the para 7 of the OA has mentioned not applicable whereas, the applicants on the same issue had already filed OA No. 742/2012 which was decided at the admission stage.
5. It is submitted that the applicants NO. 3 & 7 were/are working with East Delhi Municipal Corporation and moreover, the applicant No. 3, has retired in accordance with the terms and conditions of the Factories Act from service from the office of East Delhi Municipal Corporation and have been paid their respective terminal dues/benefits accordingly".
9. On merits, it was admitted that the benefit of GPF Scheme was extended to similarly situated persons illegally and the applicants are not entitled to the benefit of GPF Scheme. Virtually acknowledging the factual matrix and reiterating the validity of impugned order, the respondents have stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal.
10. Controverting the pleadings in the reply of the respondents and reiterating the grounds contained in the 9 OA No.100/2474/2012 OA, the applicants filed the rejoinder. That is how we are seized of the matter.
11. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, we are of the firm view that the instant OA deserves to be accepted, for the reasons mentioned hereinbelow.
12. As is evident from the record, that the applicants were appointed on the pointed posts. They were assigned the duty in Hot Mix Plants. Subsequently, their services were duly regularised by the SDMC. The Hon'ble Apex Court while ordering the closure of all Hot Mix Plants in M.C. Mehta's case, directed the MCD to avail the services of the employees working in Hot Mix Plants in other departments of MCD. Since then, they are continuously working on the indicated posts in different departments of MCD. It is not a matter of dispute, that the MCD has permitted 46 similarly situated persons to switch over from EPF Scheme to GPF Scheme and granted all the benefits of GPF Scheme.
13. Therefore, once it is proved on record that similarly situated persons were granted the benefit of GPF Scheme, in that eventuality, indeed the same very benefit cannot legally be denied to the applicants as well, on the principle of parity in view of law laid down by Hon'ble Apex Court in cases Man Singh Vs. State of Haryana and others AIR 10 OA No.100/2474/2012 2008 SC 2481 and Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ 120 wherein, it was ruled that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the Doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. It was also held that the administrative action should be just on the test of 'fair play' and reasonableness.
14. Therefore, the applicants are also entitled to the benefit of same very GPF Scheme on the basis of parity as well in the manner discussed hereinabove, in the obtaining circumstances of the case. Thus, the contrary arguments of the learned counsels for respondents stricto sensu deserve to be ignored. The indicated ratio of law laid down by Hon'ble Apex Court is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
15. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 11 OA No.100/2474/2012
16. In the light of the aforesaid reasons, OA is hereby accepted. The impugned order dated 10.07.2012 (Annexure A-1) is hereby set aside. Applicants are held entitled to be governed by GPF-cum-Pension Scheme with all consequential benefits. At the same time, the respondents are directed to release all the benefits including pensionary benefits to the applicants, after making necessary deductions within a period of 3 months from the date of receipt of a certified copy of this order. However, the parties are left to bear their own costs.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
08.11.2016
Rakesh