Central Administrative Tribunal - Delhi
Rajender Tushir vs Chief Managing Director on 9 July, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI T.A. NO. 181/2009 M.A. NO.712/2010 New Delhi, this the 9th day of July, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Rajender Tushir, S/o Late Shri Hardeva Singh Tushir, H.No.1125, V & PO Alipur, Near Sabji Mandi, Delhi 110 036 APPLICANT (By Advocate : Shri Puneet Verma) VERSUS 1. Chief Managing Director, MTNL, Corporate Office, Jawahar Lal Nehru Marg, Mahanagar Dursanchar Bhawan, Near Jakir Hussain College, New Delhi 2. Executive Director, MTNL, Telephone House, Prabha Devi, Dadar (West), Mumbai 400 028 3. Executive Director, MTNL, Delhi K.L. Bhawan, New Delhi 110 050 4. Dev Bushan Chopra (Staff No.88650), Account Officer (Pay & Account), Eastern Court Compound, New Delhi 110 050 (At present working as Sr. Account Officer Internal Audit, Office of GM, Daryagang, 10, Ansari Road, MTNL, New Delhi-110 002) 5. Pankaj Kumar Roy (Staff No.89527), Account Officer (Works), MTNL, Delhi K.L. Bhawan, New Delhi 110 050 RESPONDENTS (By Advocate: Ms Nidhi Bisaria) O R D E R By Dr. Veena Chhotray, Member (A):
The instant TA has arisen from the WP (C) No.2100/2007 transferred by the Delhi High Court vide its order dated 22.1.2009. Though dismissed for default on 20.10.2009, the TA was restored by Tribunals order dated 16.11.2009 in MA No.2261/2009. Restoring the TA to its original number, it is now being considered on merit after hearing both the learned counsels and also carefully perusing the material on record. Along with the TA we are also considering MA No.2595/2009 with the prayer for recalling our order dated 24.11.2009 in respect of one of the claims made in the TA i.e. regarding grant of newspaper allowance. Hearing both the learned counsels, this MA is being allowed and our earlier order dated 24.11.2009 is being recalled hereby.
2. The applicant before us is a Junior Accounts Officer presently absorbed in BSNL and claiming payments of certain allowances alleged to have been arbitrarily denied to him during his deputation period with MTNL w.e.f. 8.4.1999 to 7.5.2005. By way of relief the TA seeks following reliefs:
Payment of compensation @ Rs.3000/- per month w.e.f. 8.4.1999 to 7.5.2005 along with 12% interest thereon;
Bonus for the years 2003-04 and 2004-05 amounting to Rs.21,000/-; and Reimbursement of newspaper allowance for 41 months amounting to Rs.4,100/- along with 12% interest thereon.
Of the three fold reliefs claimed, the one relating to payment of Bonus is not pressed before us. We also note in this context an observation made in the Tribunals earlier order dated 24.11.2009 that the Bonus has already been paid which is not disputed. Hence this order is dealing with only the remaining two claims pertaining to the monthly compensation allowance as well as the newspaper allowance.
3.1 The brief factual background of the case is that the applicant originally belonged to the Department of Posts as a regular appointee. He was brought on deputation to the Department of Telecommunication as a Junior Accounts Officer vide the order dated 12.3.1999 and allotted to the Telecom. Circle, MTNL, Mumbai vide the DoT letter dated 18.3.1999. Subsequently in 2005, the applicant got permanently absorbed in BSNL on the basis of an examination.
3.2 During the period the applicant was working in MTNL, the Respondents took a decision vide their order dated 5.6.2000 to grant compensation of Rs.3,000/- per month to Group A & B Officers working in MTNL. A copy of this order is annexed with the TA as Annexure P/4 (Colly). Since this order is critical for adjudication of the issue raised in this TA, its full text is being extracted as below:
MAHANAGAR TELEPHONE NIGAM LIMITED (A Government of India Enterprises) No.MTNL/IRW/21(6)/99/Pt/ Dt. 5th June, 2000 Sub:- Grant of compensation of Rs.3000/- p.m. to Group A & B officers working in MTNL.
In supersession of this office orders of even No. dated 25th May 2000 and 26th May, 2000, the Board of Directors of MTNL have decided to pay a compensation of Rs.3000/- p.m. to all Group A and B officers working in MTNL. This compensation shall be payable with effect from 01.04.99 or from their date of joining MTNL, whichever is later, till the IDA pay scales become operative for Group A & B officers, subject to the following conditions:-
This compensation will not have any link with the pay of the officers.
With the grant of this compensation, the payment of other benefits like quarterly incentive with effect from 01.04.2000 and schemes for payment of Lunch Allowances for attending office on Saturdays and holidays will stand withdrawn from the date of issue of this office order in respect of Group A & B Officers working in MTNL.
All group A & B officers will switch over to six days a week working with immediate effect.
This issues with the approval of the CMD MTNL.
(M.L. Malik) Principal General Manager (O) MTNL Corporate Office (emphasis supplied) The aforesaid order was followed by a subsequent corrigendum of the same date clarifying that the amount of compensation mentioned in the aforesaid OM would also be applicable to the JTOs and JOs working in MTNL.
3.3 The TA contends that the decision for payment of consolidated amount of monthly compensation had been decided by the Board of Directors of MTNL in lieu of the existing fringe benefits being given to different sections of the employees and to redress the complaints of any discrimination among different groups of employees. Further this had also been extended to all Group A and B officers for switching over from 5 days working to 6 days a week. The grievance of the applicant is that even though he had been previously enjoying the fringe benefits like the incentive allowance etc., the compensation amount was not paid to him (Para 7 of the TA). It is also averred that the respondents even after paying the amount for some period started recovery of the payments made from April September 2001 and thereafter stopped the payment altogether. This is said to be done without giving opportunity to explain to the applicant.
3.4 On a representation by the applicant, a reference had been made from the Mumbai Office to the Headquarters vide letter dated 20.6.2000 stating that in normal circumstances the payment and allowances of deputation are governed by their terms and conditions of deputation, whether in the present case the compensation amount was entitled to be paid to the applicant who had constantly been pressing for the same. Vide their letter dated 22.6.2000 it had been clarified by the Headquarters that Group A and B officers and AOs who had come to MTNL, Mumbai on deputation are not entitled for the above payment as they are getting deputation allowance (Annexure P/7 (colly.).
4. On behalf of the respondents, the learned counsel Ms. Nidhi Bisaria would insist that the applicant being a deputationist to the MTNL was not entitled to this monthly compensation amount. Responding to the averments in the TA, para-7 of the counter affidavit makes the following submissions:-
The answering respondent submits that it was applicable only to the deemed deputationists from department of Telecommunication who had the prospects of being absorbed in MTNL. It is submitted that the Petitioner being an employee of Department of Posts was on general deputation to MTNL, and was having no prospect of being absorbed in MTNL was not entitled for the adhoc payment of Rs.3000/- per month. It would also be the submission of the respondents that the adhoc payment had been recovered from the arrears of pay due on operation of the IDA pay scales subsequently.
4.1 The applicant has rebutted the respondents contention regarding there being any difference between his status as a deputationist to MTNL and those of the deemed deputationsts from DoT who, according to the respondents, had prospects of being absorbed in MTNL. In support several documentary proofs issued in various contexts (dated 30.4.2002; 7.9.2001; 31.8.2002; 23.10.2003 and 1.8.2007 have been enclosed to drive home the point that there was no such difference and the deputationists from other departments such as the applicant were also considered on deemed deputation to MTNL and BSNL.
4.2 The applicant has also rebutted the plea of the respondents that he was in receipt of deputation allowance and as such he was not entitled to the compensation amount. It is stated that he had, in fact, opted for the ex-cadre pay scale i.e JAOs pay scale and not the pay scale with any deputation allowance. Further, the applicant has also adverted to the relevant rules to reinforce his entitlement to this allowance. In a representation to the authorities, the following was submitted:
Further your kind attention is invited on Para 7.6 (a) of appendix 5 of Swamys Fundamental Rules (Deputation within India) which shows the admissibility of allowances and benefits while on deputation and stipulated that only those allowances are not admissible which are not admissible to other employees of the corresponding status in borrowing organization.
5.1 From a perusal of the records before us, we find that the decision of payment of consolidated compensation amount had been given in lieu of certain incentives being paid previously to the employees. Further, while this was made subject to several conditions, no distinction had been made between the deputationists from other Departments. Thus we hold the view that the attempt on the part of the respondents to draw such a distinction is not supported by a bare reading of their own office order. In the matter of deputation allowance, the plea of the applicant about his not being in receipt of such an allowance has not been rebutted by the respondents. As regards the admissibility of allowances and benefits while on deputation, Appendix 5, para 7.6 of Swamys Compilation of FRSR, while prescribing the guidelines on the subject states the following:-
Allowances not admissible to regular employees of corresponding status in the borrowing organization, shall not be admissible to the officer on deputation/foreign service, even if they were admissible in the parent organization.
Certain allowances such as HRA/CCA; Joining Time and Joining Time Pay, Travelling Allowances and Transfer T.A, Children Education Allowance and LTC being regulated with mutual consent of the lending and borrowing organizations; and Certain Allowances and Facilities such as Dearness Allowance, Medical Facilities and Leave to be regulated in accordance with the relevant Rules. In the matter of Dearness Allowance, it is specified that this would be dependant upon whether the employee has opted to draw pay in the time scale of ex-cadre post or his own grade plus deputation allowance.
From a holistic reading of the above rules it would follow as a logical corollary that the allowances other than those mentioned in Rule 7.6 as are made admissible in the borrowing organizations would also be admissible for the deputationists.
5.2 On the subject of compensation, we, therefore, do not find any reason as not to make the same admissible to the applicant as well, which, of course, would be subject to fulfillment of the conditions stipulated in the relevant order. In this context, it is noted that this compensation amount was made payable till IDA pay scale became operative for Group A and B Officers. It is also relevant that as submitted by the respondents, the adhoc payment on this account had been recovered from the arrears of pay on operation of the IDA pay scales as per their OM dated 23.2.2004. The applicant has contended about his having opted for the ex-cadre pay scale. However, whether he was already in the IDA pay scale or not would need to be determined by the respondents and subject to that payment of such amount would have to be considered. Needless to say such an exercise would also take into account the terms and conditions of the deputation in this case.
6. As regards Newspaper Allowance, the contention of the applicant is that there were no Gazetted Officers in MTNL and all the officers are designated as Executives. Besides, the Newspaper Allowance had been given even to C Grade officials. In support an order dated 7-10.2.2003 from the MTNL has also been enclosed along with MA No.2595/2009. On the subject of Newspaper Allowance, the learned counsel for the applicant would produce before us a representation dated 15.1.2000 submitted by him to the Director (Finance), MTNL which in response vide their letter dated 12.4.2010 shows that the matter is under consideration of the administrative authorities.
7. In view of the foregoing, we dispose of this TA with a direction to the Respondents to pass speaking orders separately on the subject of grant of monthly compensation amount as well as the Newspaper Allowance. Needless to say, while doing so they would bear in mind our observations on various aspects in the body of the order. While making payment of compensation amount, the respondents would consider the exact terms and conditions of deputation and particularly the pay scale which the applicant had been drawing during his tenure in the MTNL. This has to be done within a period of three months from the date of receipt of a copy of the order. No order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU) MEMBER (A) MEMBER (J) /pkr/