Gauhati High Court
Sri Ajoy Kumar Borthakur vs National Small Industries Corporation ... on 25 July, 2013
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) No. 1345/2006
Petitioner :
Sri Ajoy Kumar Borthakur,
S/O Sarbananda Borthakur,
R/O S. N. Borthakur,
Phukan Road, Tarajan,
Jorhat-1.
By Advocate :
Mr. M. Bhuyan.
Respondents :
1. National Small Industries Corporation (NSIC) Ltd., a Government of India Enterprise having its Head Office at-Loghu Udyog Bhavan, near-Okhla Industrial Estate, New Delhi-20.
2. Chairman-cum-Managing Director, NSIC, Loghu Udyog Bhavan, near Okhla Industrial Estate, New Delhi-20.
3. Regional General Manager, National Small Industries Corporation, D. S. Mansion, R. G. Baruah Road, Guwahati-5.
4. Union of India, represented by the Secretary, Department of Public Enterprise, Government of India, Block-14, C.G.O. Complex, Lodhi Road, New Delhi.
5. Union of India, represented by Secretary, Ministry of Small Industries, Udyog Bhavan, Rafi Marg, New Delhi.
By Advocates :
Mr. N. C. Das, Senior Advocate, Ms. M. Devi.
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 25-07-2013
Date of Judgment : 25-07-2013
J U D G M E N T AND O R D E R (ORAL)
Question for consideration in this writ petition is the entitlement of the petitioner to Special Duty Allowance (SDA), which is provided to the employees of National Small Industries Corporation Limited like the Central Government civilian employees hailing from outside the North-Eastern Region on their posting to the North- Eastern Region.
2. Case of the petitioner is that he was appointed as Deputy Manager of National Small Industries Corporation Limited (NSIC), a Government of India enterprise, and he joined in that post at Guwahati on 29.09.1986. Thereafter, he was transferred to Howrah in the State of West Bengal on 06.11.1989. Petitioner was again transferred from Howrah to Guwahati in the same capacity in June, 1991, whereafter he joined at Guwahati on 14.06.1991 and served till 05.05.2003 when he was transferred to Delhi. However, instead of proceeding to Delhi in terms of the transfer order, petitioner took voluntary retirement from service.
3. Petitioner hails from the North-Eastern Region and belongs to Guwahati in the State of Assam. When he joined service in the NSIC, such service had all India transfer liability.
4. Government of India in the Finance Department had introduced SDA vide Office Memorandum (OM) dated 14.12.1983.
This allowance was made available to the Central Government civilian employees having all India transfer liability at the rate of 25% of the WP(C) No. 2999/2010 Page 2 of 6 basic pay while posted in the North-Eastern Region, subject to certain conditions.
5. Board of Directors of NSIC in its meeting held on 31.08.1992 decided that those employees of NSIC not belonging to the North-Eastern Region, on their posting to the said Region, would be eligible to SDA w.e.f. 01.09.1992 at the rates applicable to the Central Government employees. It was further decided that non-local employees of NSIC posted in the North-Eastern Region be paid SDA @
12.½% of basic pay subject to a ceiling of Rs. 1,000/- per month. This was circulated amongst the employees of NSIC vide circular dated 12.11.1992 issued by the General Manager. Subsequently, it was clarified by the Cabinet Secretariat, Government of India (Annexure-3 to the writ petition) that an employee hailing from the North-Eastern Region posted to the North-Eastern Region initially but subsequently transferred out of the North-Eastern Region but re-posted to the North-Eastern Region after serving some time in non-North-Eastern Region, would be entitled to SDA.
6. Respondents have filed a common affidavit. Stand taken in the affidavit is that as per the decision of the Board of Directors of NSIC, benefit of SDA would be available only to those employees hailing from outside the North-Eastern Region and posted to the North-Eastern Region w.e.f. 01.09.1992. Since writ petition hails from the North-Eastern Region, he is not entitled to the benefit of SDA.
7. Heard Mr. M. Bhuyan, learned counsel for the petitioner and Mr. N. C. Das, learned Senior Counsel assisted by Ms. M. Devi, learned counsel for the respondents.
WP(C) No. 2999/2010 Page 3 of 6
8. Learned counsel for the petitioner submits that after the clarification given by the Cabinet Secretariat, Government of India there can be no two opinion that an employee like the petitioner hailing from the North-Eastern Region, posted to the North-Eastern Region initially but subsequently transferred out of the North-Eastern Region and again re-posted to the North-Eastern Region after serving for some time outside the North-Eastern Region would be entitled to the benefit of SDA. He also places reliance on two decisions of this Court in the case of Basant Kumar and Ors. Vs. Union of India and Ors. reported in 2001 (1) GLT 636 and on a recent Division Bench judgment of this Court in WP(C) No. 5577/2012 (H. Baruah Vs. Union of India and Ors.) delivered on 14.05.2013.
9. On the other hand, Mr. Das, learned Senior Counsel for the respondents, has referred to the circular dated 12.11.1992 of the NSIC to contend that employees of NSIC hailing from the North- Eastern Region and posted in the Region would not be entitled to receive SDA. Benefit of SDA is extended only as an incentive to employees of other parts of the country to serve in the North-Eastern Region.
10. Submissions made have been considered.
11. In so far Central Government employees hailing from the North-Eastern Region and re-posted to the North-Eastern Region after serving outside the Region is concerned, it is already seen from the clarification issued by the Cabinet Secretariat, Government of India that such category of employees would also be entitled to the benefit of SDA. In Basant Kumar (supra), a Single Bench of this Court held WP(C) No. 2999/2010 Page 4 of 6 that the benefit of SDA would be available to the petitioners of that case from the date when they joined their respective assignments in the North-Eastern Region. In the recent case of H. Baruah (supra), this Court noted that the benefit of SDA has also been extended to the All India Services officers. In case of All India Services officers, serving in the North-Eastern Region, they are getting the benefit of SDA irrespective of the fact as to whether they hail from outside the North-Eastern Region or they hail from the North-Eastern Region. The Division Bench also referred to the Office Memorandum dated 29.08.2008 of the Central Government by which benefit of SDA has been provided to all Central Government employees having all India transfer liability posted from outside the North-Eastern Region or from another area of North-Eastern Region. In that case, a retired Judge of this Court had made the grievance that he was deprived of SDA amongst other benefits. This Court after referring to various provisions governing SDA, held that there is absolutely no manner of doubt that the petitioner was entitled to SDA from the date of his appointment as a Judge of the Gauhati High Court as he had to hold Court in different Benches of this Court throughout the North- Eastern Region. In the present case, admittedly petitioner on his re- posting, served at Gauhati for the period from 14.06.1991 till 05.05.2003.
12. Thus having regard to the discussions made above, I am of the considered opinion that the petitioner would be entitled to the benefit of SDA during the period of his service at Guwahati on his re- posting. As per the circular of NSIC dated 12.11.1992, the benefit of SDA was provided w.e.f. 01.09.1992.
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13. Accordingly, respondents are directed to pay SDA to the petitioner at the rate applicable to the employees of NSIC for the period from 01.09.1992 till 05.05.2003. The above exercise shall be carried out within a period of 3 (three) months from the date of receipt of certified copy of this order.
14. Writ petition is accordingly allowed.
JUDGE aparna WP(C) No. 2999/2010 Page 6 of 6