Central Administrative Tribunal - Ernakulam
Hemalatha S vs Bharath Sanchar Nigam Ltd on 17 June, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Applicaton No.180/59/15
Friday, this the 17th day of June, 2016
C O RAM :
HON'BLE MR.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER
Hemalatha S
W/o.Ramakrishnan
Telecom Mechanic
O/o SDE (BBHD) OCB Exchange BSNL, Pattalam Road
Thrissur, residing at Anugraha, 7/1459
Vayaloppilli Nagar
East Fort P.O, Thrissur .... Applicant
(By Advocate: Mr.P.A Kumaran)
Versus
1. Bharath Sanchar Nigam Ltd., represented by its
Chairman and Managing Director
Sanchar Bhavan, New Delhi - 110 001
2. Chief General Manager, Telecom, BSNL,
Kerala Circle,
Thiruvananthapuram 695 001
3. Principal General Manager Telecommunication
Bharat Sanchar Nigam Ltd., Thrissur- 682 016 .... Respondents
(By Advocate Mr.P.Muraleedharan, ACGSC)
This Original Application having been heard on 02.06.2016 this Tribunal on
17.6.2016 delivered the following :
ORDER
BY HON'BLE MRS.P.GOPINATH, ADMINISTRATIVE MEMBER Applicant is aggrieved by the refusal of the respondents to step up her pay to that of her junior who started drawing a higher pay due to an anomalous point to point fixation done on conversion from the Central Dearness Allowance Pay Scale to Industrial Dearness Allowance pay scale with effect from 1.10.2000. Applicant is aggrieved by the refusal of respondents to extend the benefits given to other similarly placed employees who were granted the benefit of stepping up based on directions of this Tribunal as well as the Hon'ble High Court of Kerala. The applicant who commenced service as Group D was promoted as Telecom Mechanic in the erstwhile department of Telecom in 1998. BSNL is incorporated on 1.10.2000. The applicant worked under the BSNL on deemed deputation. She is later absorbed in to BSNL with effect from 1.10.2000. The CDA scales of the absorbees in BSNL were replaced with IDA pay scales with effect from 1.10.2000. The conversion was done on a point to point basis. The order clearly stipulated that any anomalies arising out of such fixation where the juniors started drawing higher pay ought to rectified. On such point to point fixation, the junior, Sri.T.O Varghese, started to draw higher pay than the applicant. On subsequent fixation under F.R 22(I)(a)(1) the disparity between the pay of the junior and the applicant increased. Representations made to step up the pay were not addressed. Similarly placed personnel approached the Hon'ble High Court in W.P B). 30582/2005 which was allowed declaring that the petitioner therein are entitled for stepping up of pay. The said judgment of the Learned Single Judge was affirmed by the Hon'ble Division Bench. The SLP filed before the Hon'ble Supreme Court was also dismissed. The petitioners in W.P(C) 30582/2005 and connected cases were granted the benefits of the judgment. O.A 1025/2010 and connected cases filed by persons similarly situated are allowed directing stepping up.
2 Applicant argues that it is a settled legal proposition that claims with respect to anomalies in pay fixation are continuing wrongs which give rise to a recurring cause of action each time the incumbent was paid a salary on the basis of such anomalous pay fixation. The Hon'ble Supreme Court has affirmed this proposition in M.R Gupta v. Union of India (1995) 5 SCC 628; Union of India v. Tarsem Singh (2008) 8 SCC 648. Again in State of Madhya Pradesh and others v. Yogendra Shrivasthava (2010) 12 SCC 538 the Hon'ble Apex Court was pleased to hold as follows:
'14. b�&............. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for higher allowance in accordance with the Rules (Prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim of correct payment. '
3 Relief sought is to declare that the applicant is entitled to get stepping up of pay with that of her junior T.O Varghese who started to draw higher pay by virtue of pay fixation granted on point to point basis in the IDA pay scale and due to fixation given under FR 22(I)(a)(i) after fixation of pay in the IDA pay scale and to draw and disburse arrears of pay and allowances and consequential benefits.
4 The respondent in the reply statement submits that the applicant who has been denied the stepping up of pay, had not even chosen to make any representation highlighting her grievances or challenge the same all these years. She has now come up with the above O.A in the wake of judgment of the Hon'ble High Court of Kerala and also by this Tribunal in connected cases filed by a group of similarly situated officials allowing such stepping up of pay. The applicant who has slept over her remedy from 2001 onwards is thus guilty of laches are not entitled for a relief of stepping up of their pay. This Tribunal has dismissed O.A No.333/14 vide order dated 22.05.2014 with an observation that the applicants in the case were fence sisters and did not approach this Tribunal on time and therefore, are clearly barred by limitation to raise issue after a lapse of 12 years.
5 Submission of the applicant that Shri T.O Varghese is her junior is not correct. Shri.T.O.Varghese joined in the department on 26.2.1983 whereas the applicant in the above O.A joined in the department on 25.6.1992. The applicant commenced service as Regular Mazdoor under Thrissur Division in the Erstwhile department of Telecom on 25.06.1992. The applicant had been promoted to the post of Telecom Mechanic from Regular Mazdoor on 01.07.1999, in the Department of Telecommunications (DOT), Govt of India i.e. before formation of Bharath Sanchar Nigam Limited. The Regular Mazdoor CDA pay scale of 2550-55-2660-60-3200 in DOT was replaced by 4000-120-6800 IDA pay scale, w.e.f 1.10.2000 for personnel deputed to BSNL. The Central Dearness Allowance (CDA) pay scale of Telecom Mechanic in Department of Telecommunication (DOT) of Rs.3200-85-4900 was replaced with Industrial Dearness Allowances (IDA) pay scale of 4720-6970, w.e.f 1.10.2000. The applicant had been promoted to the post of Telecom Mechanic from Regular Mazdoor prior to 1.10.2000, in the Department of Telecommunications (DOT), Govt. of India i.e. before formation of Bharat Sanchar Nigam Limited. On 1.10.2000 Bharat Sanchar Nigam Limited (BSNL) was incorporated and the applicant along with others in DOT/DTS/DTO were initially deputed to work in BSNL on as is where is basis and thereafter absorbed in BSNL with effect from 1.10.2000 based on the option exercised by them. Wage Agreement was entered into between the union(s) and BSNL on 26.4.2002 and Industrial Dearness Allowance (IDA) pay scale introduced w.e.f. 1.10.2000, in replacement of Central Dearness Allowance (CDA) pay scales. Shri.T.O.Varghese joined the department on 26.2.1983 whereas applicant in the above joined the department on 25.6.1992. The applicant was not holding as on 1.10.2000 Group D post in BSNL, as she was promoted to the post of Telecom Mechanic prior to 1.10.2000. Shri.T.O.Varghese was promoted as Telecom Mechanic on 6.11.2002. The applicant was in a different cadre with its own seniority and carried a different scale of pay than the lower post held in BSNL by Shri.T.O.Varghese. Since the cadre and scale of pay held by the applicant and Shri.T.O Varghese were not identical, the question of stepping up of pay for the purpose of removing any anomaly does not arise in the present case. Equality postulates identity of class and once that is absent, discrimination cannot arise. The applicant is far junior to Shri.T.O.Varghese. Stepping up is done after a wage revision, to set right anomalies in certain well defined cases of junior drawing more pay. In the present case, there was no wage revision as on 1.10.2000. The wage agreement between the respondents and the approved union(s) was subsequently approved by the Department of Telecommunications, Govt. of India. The anomaly committee examined the issue to hold that certain juniors getting fixed at higher IDA pay than their seniors cannot be treated at par, as pay anomaly since the stage of pay as on 1.10.2000 in respect of junior and senior are not identical. It is well established proposition that there cannot be a case of discrimination merely because of fortuitous circumstances arising out of some peculiar developments or situations which create advantages or disadvantages for one group or the other although in the earlier stages they were, more or less alike. If one class has not been singled out for special treatment, the mere circumstance of advantages accruing to one or the other cannot result in breach of Article 14 of the Constitution. 6 On 26.4.2002 Wage Agreement was entered into between the Union(s) and BSNL in respect to introduction of IDA pay scale, w.e.f 1.10.2000, in replacement of CDA pay scales for Non executive staff (Group C & D) absorbed from DOT etc. in BSNL. On 7.8.2002 in pursuance of the aforesaid agreement dated 26.4.2002, with the approval of Board of Directors of BSNL &Department of Telecommunications (DOT), BSNL vide office order bearing No.BSNL/26/SR/2002 replaced the CDA pay scale of Non executive staff (Group C & D) absorbed from DOT etc, w.e.f 1.10.2000.
7 Heard the counsel for applicant and respondents and the written submissions made. Both sides produced judgments in support of their contention, but this case is being examined on its own merits.
8 Pay fixation in IDA pay scales was to be done in the manner, provided in the office order, which was agreed upon after protracted agreement with the Unions. The relevant provision is :
2.1(a) The basic pay of the non executive as on 1.10.2000 in the IDA pay scale would be fixed at the stage corresponding to the stage, which they had reached under CDA pay scale on 30.9.2000 i.e. Pay fixation will be on point to point basis.
2.1(e) The employees who have been promoted to the higher posts after 1.10.2000 will be fixed in the corresponding IDA pay scale from the date of promotion under the normal rules relating to the fixation of pay on promotion with reference to then pay in the IDA pay scale of pre-promoted post.
9 The fixation in IDA pay scale is governed by separate set of orders issued by BSNL H.Qrs. The applicants were not holding Group D post in BSNL, as on 01.10.2000 as they were all promoted to the post of Telecoms Mechanic prior to 1.10.2000. As a result the applicants were not in the same scale of pay compared to the juniors cited in the application. The issue came up for consideration by the learned single judge of Hon'ble High Court of Kerala in Writ Petition No.30582 of 2005 filed by Shri.George M.J and Others vide Annexure A-5 in the above O.A and the learned single judge of the Hon'ble High Court of Kerala declared that the petitioners therein who were promoted as Telecom Mechanic after 1.10.2000 were entitled to have their pay stepped up and equated with the pay of their juniors. The Hon'ble High Court has also mentioned that the matter can be referred to the Anomaly Committee for considering the matter or the respondents may enter into another settlement with the employees unions. The operative part of the judgment is as under:
'5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I find force in the contention raised by the learned counsel for the petitioner that in the absence of another agreement or an award by the Industrial Tribunal, the parties cannot depart from or ignore Ext.P1. Ext.P1 contemplates fixation of pay applying the provisions of the Fundamental Rules. It is settled law that the agreement between the union representing the employees and the employer can be altered only by another settlement or by an award of the Industrial Tribunal. No agreement other than the agreement referred to in Ext.P1 has been brought to my notice. The service conditions stipulated in Ext.P1 even now hold the field.' '6. In my considered opinion, in the light of Ext.P1, the stand taken by the respondents cannot be countenanced. I therefore declare that the petitioners are entitled to have their pay stepped up and equated with the pay of their juniors who were promoted as Telecom Mechanic after 1.10.2000 in the manner done in Exts.P2 and P3. The arrears of emoluments payable to the petitioners from January 2005 onwards shall be paid on the basis of the fixation in Exts.P2 and )P3. They would also be entitled to periodical increments with effect from the date on which increments were granted to their juniors in service. The amount recovered shall also be reimbursed to them. I make it clear that this judgment will not stand in the way of the anomaly committee from considering the matter or the respondents from entering into another settlement with the employees unions. '
10 As per the order in the said writ petition, the issue was brought to the notice of the Anomaly Committee, which consists of the representatives of the management and staff side and the committee members observed that aberrations regarding pay of senior officials in the higher grade getting fixed at a lower pay in the IDA pay scale than what their juniors in the lower grade are getting consequent upon fixation of pay in IDA pattern on point to point basis do not fall within the provisions of FR/SR for being dealt as anomaly and further the staff side pointed out that even though the situation of 'senior getting less than that of the juniorb� cannot be recognized as anomaly under FR/SR, still apprehending the emergence of unforeseen situations, Annexure R1 issued regarding introduction of IDA pay scales for Non-Executives, issued in pursuance of wage agreement provided under para 2.1 (g) that the anomalies, aberrations, other hardships and difficulties, if any, which may arise in pay fixation, will be settled sympathetically, after these are pointed out. As such, in the spirit of these provisions, the aberrations need to be addressed appropriately. Accordingly, a settlement was reached by the staff side and the management and recommended for addressing the aberration cases in respect of Non- executives by the grant of personal pay.
11 For constituting an anomaly it should be directly as a result of application of Fundamental Rules 22 C. In the present case, the reason for senior getting less pay than the juniors, if any, is not on account of implementation of Fundamental Rules but due to the point to point pay fixation in tune with the fitment method approved by the unions on conversion from Central Dearness Allowance (CDA) scale of pay to Industrial Dearness Allowance (IDA) scale of pay. Hence it is not an anomaly. The fixation under IDA pay scale on conversion of CDA pay scale is governed by separate set of orders issued by BSNL Head Quarter and not under Fundamental Rules (FR). These orders have been issued as per the agreement signed with the approved unions. FR 22(1)a(1) provides that stepping up of pay should be done with effect from the date of promotion of the junior if both the junior and senior officials belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre. The scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical. The anomaly should be directly as a result of the application of FR 22(1)a(1). If even in the lower posts, the junior officer draws from time to time a higher rate of pay than the senior by virtue of advance increments, the above provisions can not be invoked to step up the pay of the senior officials.
12 An anomaly committee was set up consisting of members from the side of the management and the staff. The committee has already made recommendations for the redressal of the grievance of the employees. The applicants, after giving consent through their representatives for the issuance of the report, are not entitled to keep away from the implementation of that report. That report was circulated which is consisting of a proforma to point out specifically the name of the junior to whom the senior wants to have his pay stepped up. Applicant did not submit any representation as directed. 13 In the above context, the Hon'ble Allahabad High Court in 'Masan Ali son of Sri Hamid and Ors. V. Union of India (UOI) decided on 16 November 2007 held 'Section 18 of the Industrial Disputes Act, 1947 clearly provides that settlement arrived at by means of agreement in between employer and the workers otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement. The respondents do not dispute that there is agreement and it is binding on them. If the settlement is between the employer and the workmen it would be binding on that particular employee and the employer; if it is between a recognized union of the employees and the employer, it will bind all the members of the union and the employer. That it would be binding on all the members of the union is a necessary corollary of collective bargaining in the absence of allegation of malafides or fraud.
14 In the case of Herbertsons Limited v. The Workmen of Herbertsons Ltd and Others reported in 1976 (4) SCC 36, the Hon'ble Supreme Court considered the effect of the settlement arrived at by the recognized union of majority workers. It was observed by Goswami J., speaking for the Court that when a recognised union negotiates with an employer, the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognized union, which is expected to protect the legitimate interest of labour, enters into a settlement in the best interest of labour. This would be the normal rule. It was further observed that it is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained, the Court will be slow to hold a settlement as unfair and unjust. Therefore, the settlement has to be accepted or rejected as a whole.
15 At the time of fixation of pay under IDA, the applicant had already been promoted to the cadre of Telecom Mechanic prior to 1.10.2000 and her pay was fixed in the IDA scale of pay. Shri.T.O Varghese became Telecom Mechanic only with effect from 6.11.2002 much after the applicant. Hence both these employees are in two categories as on 30.9.2000, and cannot be compared. Comparison can be made only with equals. The applicant and the persons who are promoted after the promotion of the applicant cannot be categorised as one group. The drawing of equal pay can be compared only for the employees who are from the same category and their service incidents also happened on the same day.
16 Respondent has produced the comparison statement of the applicant and the junior which reflects the difference in date of joining, date of promotion, the IDA fixation, and the number of increments 2 and 9 drawn by applicant and Mr.Varghese respectively. Respondents points out that there may be Regular Mazdoors who are drawing more pay than Telecom Mechanic on 1.10.2000, by virtue of their length of service and this is not represented as a case of anomaly. Those Regular Mazdoors who draw more pay than Telecom Mechanics on 1.10.2000 will continue to draw more pay on promotion. And when such Regular Mazdoor with more service is promoted in 2002, he will concurrently get more salary. Stepping up of pay of |Senior on promotion drawing less pay than his junior is done applying FR 22(1) a (i). In the case of the applicant in the above O.A, anomaly is alleged to have arisen not when senior is promoted or his pay is fixed. 17 As per Government of India order No.22 under FR 22(1)a(1) it is laid that steeping up of pay should be done with effect from the date of promotion of the junior if both the junior and senior officials belong to the same cadre, and the posts in which they have been promoted or appointed should be identical and in the same cadre. The scale of pay of the lower and higher posts in which they are entitled to draw pay should be identical. The anomaly should be directly as a result of the application of FR 22(1)a(1). If even in the lower posts, the junior officer draws from time to time a higher rate of pay than the senior by virtue of advance increments, the above provisions will not be invoked to step up the pay of the senior officials. Furthermore the applicable pay scales have already undergone changes with effect from 1.10.2000 and from 01.01.2007. In fact as on 01.10.2000 there was no pay revision but only conversion from Central Dearness Allowance (CDA) scale of pay to Industrial Dearness Allowance (IDA) scale of pay on 01.10.2000 applicant and Shri.T.O Varghese were in two different posts and scale of pay. 18 In the present case Shri.T.O.Varghese, a junior to the applicant became entitled to a higher pay fixation on promotion as Telecom Mechanic in the year 2002. The applicant was not holding Group D post in BSNL, as on 1.10.2000 like Shri.T.O.Varghese as she was promoted to the post of Telecom Mechanic prior to 1.10.2000. As a result, the post held by the applicant carried a different scale of pay than the lower post held by Shri.T.O Varghese. Since the scales of pay in the higher post held by the applicant and lower post held by Shri.T.O.Varghese were not identical, the question of stepping up of pay for the purpose of removing any anomaly does not arise. This case is different from the facts of Gurucharan Singh Grewal's case, (2009) 3 SCC 94, relied upon by the applicant and substantially similar to the facts of cases; ESI Corporation V. P.K.Srinivasmurthy (AIR 1997 SC 2983), Union of India v. O.P Saxena (AIR 1997 SC 2978 (1) and Union of India v. E.S.Soundara Rajan (AIR 1980 SC 959). The disparity in the present case has not arisen from any disparity in incremental benefits, but from the different pay scales applicable to the applicant and Mr.T.O.Varghese and the different dates of entering service in different cadre as brought out in Annexure R4. Hence, the prayer of the applicant for stepping up of pay with her junior Shri.T.O Varghese is devoid of merit. 19 The Original Application is dismissed. No order as to costs.
(MRS.P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv