Kerala High Court
M.P.Showkathali vs The Administrator on 6 April, 2016
Author: Anil K.Narendran
Bench: P.R.Ramachandra Menon, Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938
OP (CAT).No. 166 of 2016 (Z)
----------------------------------------------
AGAINST THE ORDER/JUDGMENT IN OA 181/00062/2014 of CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 06-04-2016
PETITIONER(S):
----------------------
1. M.P.SHOWKATHALI,
S/O.MOHAMMED ALI, COMPUTER GRADE II/SECTION HOLDER,
LAKSHADWEEP GOVERNEMNT RPESS,
KILTAN ISLAND, RESIDING AT MALAYAMPURA HOUSE,
UNION TERRITORY OF LAKSHADWEEP,KILTAN.
2. K.MOHAMMED KASIM,
S/O.T.K.SIDDIQUE,
COMPUTER GRADE II, LAKSHADWEEP GOVERNMENT PRESS,
CHETLAT ISLAND, RESIDING AT KUNNASHADA HOUSE,
UNION TERRITORY OF LAKSHADWEEP,ANDROTT.
BY ADV. SRI.JOBY CYRIAC
RESPONDENT(S):
-------------------------
1. THE ADMINISTRATOR,
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI-682 555.
2. UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF URBAN AFFAIRS AND EMPLOYMENT,
DEPARTMENT OF URBAN DEVELOPMENT, NEW DELHI-110 001.
3. THE MINISTRY OF FINANCE,
REPRESENTED BY ITS SECRETARY,
GOVERNMENT OF INDIA, NEW DELHI-110 001.
R2 & R3 BY ADVS.SRI.P.K.RAMKUMAR, CGC
SRI.N.NAGARESH, ASSISTANT SOLICITOR
GENERAL
R1 BY ADV. SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 05-09-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
OP (CAT).No. 166 of 2016 (Z)
----------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS:
---------------------------------------
P1: TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION
IN THE OA NO.62/2014, CAT, ERNAKULAM.
P2: TRUE COPY OF REPLY WAS FILED ONLY BY THE 1ST RESPONDENT.
P3: TRUE COPY OF THE PETITIONER'S RE-JOINDER OF EXT.P2.
P4: TRUE COPY OF THE IMPUGNED ORDER DATED 6.4.2016 IN OA NO.62/2014.
P5: TRUE COPY OF THE REPORT OF UNDER SECRETARY, MINISTRY OF
URBAN DEVELOPMENT.
P6: TRUE COPY OF THE ORDER IN OA NO.181/00061/2014.
RESPONDENT(S)' EXHIBITS: NIL
-----------------------------------------
/TRUE COPY/
P.A.TO JUDGE
P.R. RAMACHANDRA MENON &
ANIL K.NARENDRAN, JJ.
-----------------------------------------------------------
O.P.(CAT).No.166 of 2016
----------------------------------------------------------
Dated this the 5th day of September, 2016
J U D G M E N T
P.R.Ramachandra Menon, J.
Challenge is against the order dated 06.04.2016 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.181/00062/2014 preferred by the petitioners who were the applicants claiming benefit of Annexure A1, Office Memorandum to have a higher scale of pay, based on the supervisory nature of duty attached to the post.
2. The sequence of events revealed from the proceedings is that, the petitioners while working as 'Computer Gr.II' in the printing press at Union Territory of Lakshadweep came across Annexure A1 Official Memorandum dated 31.10.1989, which was issued pursuant to the recommendations of the 4th Central Pay Commission, facilitating payment of higher scale in respect of all posts in the printing press, provided the duty discharged was of supervisory in nature. According to the petitioners/applicants, they were discharging supervisory duties and the factual position in this regard was virtually conceded by the Lakshadweep Administration. Pursuant to the claim put up in this regard, the matter was considered by the UT of Lakshadweep, particularly the Director of Printing and O.P.(CAT).No.166/2016 2 Stationary and it was accordingly, that Annexure A2 recommendation was forwarded to the Ministry, stating it point blank that the persons who were occupying the posts of 'Computer Gr-II' were discharging supervisory duties. At the same time, there was a similar dispute in respect of the post of 'Phototype Setting Operator' also and the position was clarified by the Director of Printing and Stationary in respect of the said post as well, as per Annexure A2 dated 02.07.2012, pointing out that those persons were also discharging supervisory duties. Both the above posts were in the scale of pay of 1200-2040 (pre-revised) and placement was sought for by both the groups, pursuant to Annexure A1 Office Memorandum, in the higher scale of pay of 1400-2300. Since no action was forthcoming either from the part of the Lakshadweep Administration or from the part of the Ministry, despite the representation preferred in this regard, the petitioners was compelled to approach the Tribunal by filing O.A.No.181/0062/2014. After hearing both the sides, the said O.A was disposed of as per Annexure P4 dated 06.04.2016, directing the Lakshadweep Administration to forward the relevant particulars to the Ministry within the specified time, simultaneously directing the Ministry to have it considered and finalized at the earliest, as specified therein.
3. Based on the aforesaid direction, the matter was stated as O.P.(CAT).No.166/2016 3 being considered by the authorities at appropriate level, but nothing transpired in the positive; which made the petitioners to approach the Tribunal by filing Contempt of Court proceedings. When the matter was taken up for consideration, the ongoing steps were brought to the notice of the Tribunal, particularly to implement the direction. It was accordingly, that the Contempt of Court proceedings were closed, recording the submission as borne by Annexure A4 dated 07.04.2014. Subsequently, the matter was considered and finalized by the Ministry, who passed Annexure A5 order dated 07.07.2014, wherein it was observed that, by virtue of the instruction obtained from the Lakshadweep Administration as per the contents of the letter dated 01.07.2014, the post in question was not of supervisory in nature and as such, the petitioners/applicants were not entitled to have the benefit of Annexure A1 Office Memorandum. The claim was rejected accordingly. This made the petitioners to have it challenged again by approaching the Tribunal, by way of O.A.No.181/00062/2014. Detailed reply statement was filed on behalf of the Lakshadweep Administration, signed by an Administrative Officer representing the Administrator. In the reply statement, authenticity of Annexure A2 recommendation stated as issued by the Director of Printing Press (person by name B.K.Jha) was disputed and it was asserted that the post concerned was not supervisory in nature and hence the O.P.(CAT).No.166/2016 4 applicants were not entitled to get the benefit of Annexure A1 Office Memorandum. The Tribunal, after hearing both the sides, observed that no document was produced by the applicants to hold that they were discharging supervisory duties and in such circumstances, interference was declined and the O.A was dismissed as per Ext.P4 order dated 06.04.2016. This in turn is under challenge in this Original Petition.
4. Heard the learned counsel for the petitioners, the learned standing counsel for the Lakshadweep Administration and the learned Central Government Counsel who entered appearance on behalf of the 2nd and 3rd respondents. The stand taken by the Lakshadweep Administration is that it is only a formal party. According to the learned Central Government Counsel, the position was got ascertained from the Lakshadweep Administration and it was based on the contents of the letter, copy of which has been produced as Annexure R1(b) [issued by the Secretary, Printing and Stationary, holding that the post in question was not supervisory in nature], that the claim was rejected as per Annexure A5. According to the learned standing counsel for the Administration, apart from the fact that Annexure A2 Official Memorandum was disowned by the Administration, the only document available to support the case of the petitioner is Annexure A8, which only refers to the discharging of O.P.(CAT).No.166/2016 5 supervisory works as the "officer-in-charge" by the 2nd petitioner; which by itself cannot lead to any conclusion that the post was carrying supervisory duties.
5. At the very outset, it is to be noted that the Ministry had not filed any reply statement before the Tribunal, nor has filed any affidavit before this Court. With reference to the instructions obtained over telephone, based on the pleadings and materials already forming part of the record, to sustain Annexure A5 order, it is contended that the petitioners were not discharging any supervisory duties as pointed out by the Secretary (Printing and Stationary), Union Territory of Lakshadweep.
6. Right from the beginning, the case of the petitioners was that, by working as `Computer Gr-II', they were discharging supervisory duties. This Court does not find it necessary to deal with the factual position in a wider magnitude, in so far as there is a categorical recommendation in Annexure A2 (if it was an authentic document and forming part of the record) as sent by the Director (Printing and Stationary) to the Ministry. The relevant portion of Annexure A2 Official Memorandum is extracted below for reference.
"Computer Gr-II (1200-2040):- There are only 6 Computer Gr-II working in the department. One each post deployed in the Press Units Chetlat Island, Andrott Island and Kiltan Island and they are working as Officer O.P.(CAT).No.166/2016 6 in charge in the Unit Presses and they are holding full responsibility of the Unit Presses. The Computers Gr-II working in the Lakshadweep Government Press are Diploma Holders in Printing Technology (3 years) and they are supervising entire sections like Printing, Binding and DTP sections in the Unit Presses. These pots classified as Central Civil Service Group C (Technical) non ministerial, non gazette but in the Government of India Press, these pots are non technical. There are no other technical supervisors posted in the Unit Presses. In addition to that they are undertaking all kind of printing work in the Unit Presses required for the Lakshadweep administration offices in the concerned island. The Computers Gr-II should keep correct record of all jobs in the each section and maintain their progress. They should maintain the log books for the different groups entrusted with the jobs. They also maintain a work order register for undertaking the printing work receiving them from other department. They are personally held responsible for the general supervision over the works of the different sections etc. They are classified as technical supervisors in the Lakshadweep Government Press. As per the recommendation of the IDC-1987 and Office memorandum of the Finance Ministry vide No.36(1)-IC/88 dated 31st October, 1989 in Para 2, the Committee has recommended Rs.1400-2300 for technical supervisors. Therefore, this department classifieds this posts as technical supervisor and recommends revising the pay scale of Computer Gr-II from Rs.1200-2040 to 1400-2300 and the post re-designated as Section Holder." O.P.(CAT).No.166/2016 7
7. The said proceeding forms part of the proceedings bearing No.1/21/2004-LGP dated 02.07.2012 of the Lakshadweep Administration addressed to Under Secretary to the Government of India, Ministry of Urban Affairs and Employment, Department of Urban Development, New Delhi. When the authenticity of the said document (Annexure A2) was denied by the Administration by filing a reply statement before the Tribunal (and before this Court as well), it is not clearly stated whether it was a 'forged' or 'manipulated' document. Nothing is forthcoming from the part of the Ministry in this regard. Reference is made in Annexure A2 to Annexure 1 and 2 regarding nature of duties, responsibilities, educational qualification required for the post and the promotional avenues in connection with the proposal for granting pay revision to the printing press employees of the Lakshadeweep Administration. If the concerned Annexure showing the nature of duties of the post of `Computer Gr-II' as shown in Annuexure A2 was forming part of the records, the authorities of Administration cannot take a U-turn to contend that it was not there. If such a document was prepared in a clandestine manner by persons with vested interest, as contended by the Administration, then also it was equally obligatory for the Administration to have conducted an enquiry and taken appropriate action against the persons concerned. No such pleading is raised either before the Tribunal or before this O.P.(CAT).No.166/2016 8 Court. Equally important is to note that the Administration did not write to the Ministry as to the authenticity of Annexure A2, and clarifying that the post of `Computer Gr-II' was never to be classified as supervisory post, to have the pay scale revised as Rs.1400-2300. In so far as no step has been taken in this regard, the Administration may not be justified in simply saying that Annexure A2 is a 'forged' document. Equally important is to note that the very same Office Memorandum was produced as Annexure A4 in O.A.No.62/2014 filed by the concerned applicants before the Tribunal seeking for similar benefits and higher pay scale as flowing from Annexure A1 office memorandum in respect of the post of Phototype Setting Operator. Similar contention was raised by the Administration as to the authenticity of Annexure A2 before the Tribunal in the said case as well. After hearing both the sides, the contention taken by the Administration was negated by the Tribunal and the O.A was allowed, giving positive direction as contained in Ext.P6 order dated 15.02.2016. Strangely, a diametrically opposite view was taken by the very same Tribunal just two months later, while passing Ext.P4 order dated 06.04.2016, in total ignorance of Ext.P6 order.
8. Another aspect to be noted is that the Ministry has placed sole reliance upon the contents of the letter dated 01.07.2014 issued by the Secretary (Printing & Stationary), Lakshadweep Administration O.P.(CAT).No.166/2016 9 to hold that the post is not of supervisory in nature. It is necessary to extract the contents of the said letter, to have a broader analysis, which is reproduced below:
"Please refer to the letter cited on the subject mentioned above regarding the upgradation of the post of Photo Typesetting Operator and Computer Gr-II and certification of the post. The details are furnished below:
Computer Gr-II:- There are only 6 Computer Gr-II working in the department and the post is not a supervisory category. Further one each post is deployed in the Press Units, Chetlat, Andrott and Kiltan and they are presently working as senior most official in their respective unit under the control of Sub Divisional Officer in the respective island. The other 3 Computer Gr-II working in the Headquarter Press, Kavaratti are also not working in Supervisory category.
Photo Typesetting Operator:- The post is deployed to the DTP Section for typing and page setting in the Computer. The post of Photo Typesetting Operator belongs to operative category and hence staff working the post is not belongs supervisory cadre."
9. Obviously, the only letter referred to in the said letter, is the letter written by the Ministry calling for the particulars. The letter of the Ministry, dated 30.06.2014, has been produced as Annexure R1(a) in O.A.No.62/2014 by the Administration. The curious aspect to be noted is that the said letter was sent by the Ministry to the Lakshadweep Administration by three modes, that is by speed O.P.(CAT).No.166/2016 10 post, by fax and by e-mail. The speed post, by any probability, would not have reached the island on the next day. Immediately on getting the letter by fax or e-mail, the Secretary, Printing and Stationary, Lakshadweep Administration, sent Annexure R1(b) reply within 24 hours, stating that the post was not of supervisory in nature. What was the material before the Secretary to have verified this aspect is not known, as no reference is made to any such record in the said reply. It appears that the Secretary sent the reply, merely on the basis of his personal conviction and nothing more; which cannot but be deprecated.
10. Yet another aspect to be noted is that, the necessity to have the matter considered in detail is discernible from the proceedings of the Committee constituted by the Ministry and the minutes of the meeting held on 19.03.2014, a copy of which has been produced as Annexure A6. The said meeting was attended by the following persons:
1. Dr.Sudhir Krishna, Secretary (UD)
2. ShriH.Rajesh Prasad, Administrator of UT, Lakshadweep.
3. Shri.Neeraj Mandloi, JS (UD)
4. Shri.Dharmendra, JS (L&W), Ministry of UD
5. Shri.Asai Pal Singh, Deputy Resident Commissioner of Lakshadweep Administration in New Delhi.
6. Shri.A.K.Sinha, Director (Ptg.), Directorate of O.P.(CAT).No.166/2016 11 Printing.
7. Smt.Vinod Jindal, DS (PSP), Ministry of UD.
8. Shri.K.Arora, DS (Printing), Directorate of Printing.
9. Shri.A.Banerjee, US (PSP-I), Ministry of UD.
11. The opinions expressed by the different dignitaries such as Director of (Printing), Secretary (UD), Administrator (U T of Lakshadweep) have been adverted to in the relevant paragraphs. In paragraph 6, it was resolved that the Director (Printing) will submit a comprehensive report regarding Lakshadweep press considering the pay parity issues of all posts. The report was directed to be submitted within 15 days. In paragraph No.7, it was also decided that as soon as the report was received, the directions of the Central Administrative Tribunal would be implemented by passing appropriate order in the case of aggrieved parties as well as for the other posts and positions, if required. In paragraph No.8 the Secretary (UD) was directed that utmost importance might be given to the matter and it should be disposed of in the time limit prescribed. Despite the deliberations of the Committee in crystal-clear terms as above, it appears that the report of the Director of Printing was never called for, before passing Anneuxre A5 order. Obviously, no reference to any such report of the Director of Printing, who is the competent authority to deal with the issue regarding the nature of posts, job specification, O.P.(CAT).No.166/2016 12 duties, etc., is referred to in Annexure A5. Same is the position with regard to the reply sent by the Secretary vide Annexure R1(b) dated 01.07.2014, immediately on getting Annexure R1(a) letter dated 30.06.2014 sent by the Ministry. No further enquiry was made by the Secretary but for dealing with the matter in a casual manner. Almost similar is the position with regard to the course pursued by the Ministry as well, while passing Annexure A5 order, simply dismissing the claim stating that the post was not supervisory in nature. It is seen that the Lakshadweep Administration and the Ministry were approaching the issue in a casual manner without any regard to the rights and liberties of the persons concerned, particularly as to the grievance projected, which was directed to be considered by the Tribunal. On the other hand, they have even gone against the actual facts and figures, if the contents of Annexure A2 were true and correct and if Annexure A2 was still forming part of the files of the Ministry; without anything to challenge its authenticity.
12. The factual position is further brought on record by the petitioners, as per the information furnished to them on invoking the RTI Act (as evident from Annexure A7). The questions at serial No.15 and 17, along with the answers given are relevant, which are reproduced below:
O.P.(CAT).No.166/2016 13
15. Furnish the name of The following officials are Computers Gr-II those who working as Computer Gr.II at are attending technical HQ and Unit presses. Details supervision in the presses. are as under.
Shri.K.K.Kunhammed, Smt.P.C.Hairumbi, Shri.Kasim, Shri.K.K.Abdul Kader, Shri.Shoukathali and Shri.C.N.Mehaboob among them Smt.P.C.Hairumbi, Kasim & Shoukathali are working at unit press at Androth, Chetlat and Kiltan respectively. The Unit presses are under direct control of SDO/DC of concerned islands and computers being senior technical hand presently available in above Units are monitoring the works carried in above units. The other computers are presently working at HQ press Kavaratti.
Shri.K.K.Kunhmed deals some
technical files and file related
to Unit presses.
Shri.C.N.Mehaboob attend files
like OTA and also maintain
work booking register and
Shri.K.K.Abdul Kader deal
Gazette file and also monitor
the works carried in Riso
Section which is under
supervision of Overseer
Printing.
17. Furnish designation of Director (P&S) decide the
competent authority to decide matter and advise of Secretary the nature of duties and (P&S) also obtain as and when responsibilities of technical required.
staff working in the
Lakshadweep Government
Presses.
O.P.(CAT).No.166/2016 14
On concluding the entire facts and circumstances as above, we do not require any second thought to hold that the order under challenge in the O.A is not liable to be sustained. Accordingly, we set aside Annexure A5 order. We are also constrained to mention that issue was not properly projected before the Tribunal with reference to the actual pleadings and materials. Hence, we set aside Exhibit P4 order passed by the Tribunal as well, which is under challenge.
13. On raising a query as to whether Ext.P6 order passed by the Tribunal in O.A.No.62/14 has been subjected to challenge, the learned standing counsel for the Administration submits that no challenge has been raised so far and adds that the Administration had instructed the Ministry to have it challenged. There is no case for the Ministry that they have challenged Ext.P6 order by filing appropriate proceedings and as it stands so, it has to be presumed that Ext.P6 has become final. In the said circumstances, the matter requires to be re- considered by the Ministry so as to give effect to the direction given by the Tribunal as per Annexure A3 order, after verifying the entire files and after calling for the comprehensive report from the Director of Printing, UT of Lakshadweep as dealt with in paragraph No.6 of Annexure A6 minutes of the meeting held on 19.03.2014. This shall be done, also after verifying whether Exhibit P6 has attained finality. Fresh order as above shall be passed as above, after hearing the O.P.(CAT).No.166/2016 15 petitioners and also the Lakshadweep Administration at the earliest, at any rate within 'three months' from the date of receipt of a copy of the judgment.
14. We are of the view that, this is a fit case for imposing exemplary costs upon the Administration as well as on the Ministry, for having dealt with the direction given by the Tribunal in a casual manner; that too contrary to the resolution in the minutes of the meeting of the Committee held on 19.03.2014 resolving to call for a comprehensive report of the Director (Printing and Stationary), UT of Lakshadweep. Though we are of the view that a total cost of Rs.50,000/- can be imposed upon the Administration as well as on the Ministry on an equal measure, considering the persuasive submission made by the learned Standing Counsel for the Lakshadweep Administration and the Central Government Counsel to enable them have the issue dealt with afresh with reference to the relevant facts and circumstances, we reduce the quantum of cost and limit the same as Rs.10,000/- each. The cost shall be shared by the petitioners.
15. It is necessary to make a mention that a detailed enquiry shall be conducted by the Ministry with reference to the nature of steps taken by the Administration disputing or disowning the authenticity of the Annexure A2 Office Memorandum dated 02.07.2012. If the Ministry finds that the version of the Administration O.P.(CAT).No.166/2016 16 is not correct, appropriate action shall be caused to be taken against all concerned. The outcome of such enquiry shall be brought to the notice of this Court in the form of a report, to consider whether any further action is necessary at the hands of this Court. It shall be done within three months. It is made clear that, we have not dealt with the merits of the case, but for holding that the 'decision making process' is bad. It is open for the Ministry to have the issue considered in the light of the comprehensive report called for from the Director (Printing and Stationary) as per the Annexure A6 minutes of the meeting held on 19.03.2014 and such other relevant materials.
Original Petition stands disposed of.
(P.R. RAMACHANDRA MENON, JUDGE) (ANIL K.NARENDRAN, JUDGE) DG The words "Director of Printing, U.T of Lakshadweep"
occurring in paragraphs 13 and 14 of the judgment dated 05/09/2016 in O.P (CAT) No.166/2016 are corrected and substituted as "The Director (Ptd.), Directorate of Printing, Ministry of Urban Development, Union of India", vide order dated 27/10/2016 in I.A.No.1343/2016 in O.P(CAT) No.166/2016.
Sd/-
Registrar (Judicial)