Central Administrative Tribunal - Kolkata
Uday Kumar Neogi vs Department Of Defence Production on 2 July, 2024
1 O.A./350/871/2024 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A/350/871/2024 Date of Order:-2/7/2024. Coram: Hon'ble Mr. Rajnish Kumar Rai, Judicial Member.
Uday Kumar Neogi, son of Late Pratul Chandra Neogi, aged about 69 years, Ex. JWM Mech. In Gun and Shell Factory, Cossipore, Kolkata- 12, residing at Godrej Prakriti, Sodepur, 187 F/1, B.T. Road, Tower-Everest, Block-T, Flat no. 1802, P.O- Sukchar, Dist- 24 PGS (North), West Bengal, Kol- 700015.
...........Applicant
-Versus-
1. Union of India, through its secretary, Ministry of Defence, Department of Defence Production, South Block, New Delhi- 110001.
2. Chairman/Director General Ordnance Factory Board, 10-A Shahid Khudi Ram Bose Marg, Kolkata- 700001.
3. The Executive Director (General Manager), Gun and Shell Factory, Cossipore, Kolkata- 700001.
4. The Principal Controller of Defence Accounts (Pension) Draupadighat, Allahabad (UP) - 211001.
..........Respondents For the applicants : Mr. A. Chakraborty, Mr. Argha Chakraborty, Ms. P. Mondal (Counsels).
For the respondent(s) : None.
2
O.A./350/871/2024
O R D E R (ORAL).
Per: Mr. Rajnish Kumar Rai, Judicial Member.
1. Learned Counsels for the applicant Mr. A. Chakraborty, Mr. Argha Chakraborty & Ms. P. Mondal are present and heard.
2. This matter is taken up by Single Bench in view of the revised list dated 4/4/2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and, as no complicated question of law is involved, this matter is taken up for disposal.
3. The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following relief(s):-
"i) An Order do issue directing the respondents to grant the benefit of one notional increment to the applicant due on 1 January, 2016 with all consequential benefits".
4. The applicant is aggrieved with the respondents for not considering his case for granting of notional Increment w.e.f. 1/1/2016 although he has already filed representations dated 10/6/2024 before the respondents in this regard.
5. It is not in dispute by the respective parties that the matter pertains to grant of notional pay/increment for employees who have retired on 31/12/2015 during the same year.
5. The Hon'ble Apex Court in Director (Admn. and HR) KPTCL & Ora Vs. C. P. Mundinamani &Ors (Civil Appeal No. 2471 of 2023), (@SLP (C) No. 6185/2020), decided on 11/4/2023, had approved and upheld the view taken by different High Courts regarding grant of one annual increment earned by the employees on the last day of their service for 3 O.A./350/871/2024 rendering their services preceding one year from the date of retirement with good behavior and efficiently. In рага's 1, 2, 6.3, 6.4 and 7 of the said judgement the Hon'ble Supreme Court held as under:-
"1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Karnataka at Bengaluru in Writ Appeal No. 4193/2017, by which, the Division Beach of the High Court has allowed the said appeal preferred by the employees- respondents herein by quashing and setting aside the judgment and order passed by the learned Single Judge and directing the appellants to grant one annual increment which the respondents had earned one day prior to the retired on attaining the age of superannuation, the management -KPTCL has preferred the present appeal.
2. The undisputed facts are that one day earlier than the retirement sad on completion of one year service preceding the date of retirement all the employees earned one annual increment. However, taking into consideration Regulation 40(1) of the Karnataka Electricity Board Employees Service Regulations, 1997 (hereinafter referred to as the Regulations), which provides lust an increment accrues from the day following that on which it is earned, the appellants denied the annual increment on the ground that the day on which the increment accrued the respective employees -original writ petitioners were not in service. The writ petition(s) filed by the original writ petitioners claiming the annual increment came to be dismissed by the loaned Single Judge. By the impugned judgment and order and following the decision of the Andhra Pradesh High Court in the case of Union of India and Ors. Vs. R. Malakondaiah and ors. reported in 2002(4) ALT 550 (DB) and relying upon the decisions of other High Courts, the Division Bench of the Karnataka High Court has allowed the appeal and has directed that the appellants to grant one annual increment to the respective employees-respondents by observing that the respective employees as such earned the increment for rendering their one-year service prior to their retirement.
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6.3. At this stage, it is required to be noted that there are divergent views of various High Courts on 4 O.A./350/871/2024 the issue involved. The Full Bench of the Andhra Pradesh High Court, the Himachal Pradesh High Court and the Kerala High Court have taken a contrary view and have taken the view canvassed on behalf of the appellants. On the other hand, the Madras High Court in the case of P. Ayyamporumal (supra); the Delhi high Court in the case of Gopal Singh Vs. Union of India and Ors. (Writ Petition (C) No. 10509/2019 decided on 23.01.2020); the Allahabad High Court in the case of Nand Vijay Singh and Ora. Vs. Union of India and Ors. (Writ A No. 13299/2020 decided on 29.06.2021); the Madhya Pradesh High Court in the case of Yogendra Singh Bhadmauria and Ors. Vs. State of Madhya Pradesh; the Orissa High Court in the case of AFR Ann Kumar Biswal Vs. State of Odisha and Anr. (Writ Petition No. 17715/2020 decided on 30.07.2021); and the Gujarat High Court in the case of Stale of Gujarat Vs. Takhatsinh Udasinh Songars (Letters Patent Appeal No. 868/2021) have taken a divergent view than the view taken by the Fall Bench of the Andhra Pradesh High Court and have taken the view that once an employee has earned the increment on completing one year service lie cannot be denied the benefit of such annual increment on his attaining the age of superannuation and/or the day of retirement on the very next day.
6.4. Now so far as the submission on behalf of the appellants that the annual increment is in the form of incentive and to encourage an employee to perform well and therefore, once he is not in service, there is no question of grant of annual increment is concerned, the aforesaid has no substance. In a given case, it may happen that the employee earns the increment three days before his date of superannuation and therefore, even according to the Regulation 40(1) increment is accrued on the next day in that case also such an employees would not have one year service thereafter. It is to be noted that increment is earned on one year past service rendered in a time scale. Therefore, the aforesaid submission is not to be accepted.
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7. la view of the above and for the reasons stated above, the Division Bench of the High Court has rightly directed the appellants to grant one annual increment which the original writ petitioners 5 O.A./350/871/2024 earned on the last day of their service for rendering their services preceding one year from the date of retirement with good behaviour and efficiently. We are in complete agreement with the view taken by the Division Bench of de High Court. Under the circumstances, the present appeal deserves to be dismissed and is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs."
6. However, as is evident from the perusal of records, the applicant has retired on 31/12/2015 which implies that he stood retired almost nine years before the instant original application was actually filed. This further implies that there has been a considerable delay since the cause of action arose and the original application was preferred. However, since a specific prayer for grant of arrears that shall accrue consequent to the issuance of notional increment has also been made on the part of the applicant, it would be in the fitness of things to meticulously examine the delay and latches prevailing herein before pondering over the decision as to how much arrear payment is liable to be made in favour of the applicant. For the said purpose, it would be significant to straightway rely upon the law laid down by the Apex Court in its judgment dated 13.08.2008 passed in Civil Appeal No. 5151-5152 of 2008 titled Union of India &Ors vs. Tarsem Singh wherein the Hon'ble Court has dealt with the issue of delay and latches / limitation while conferring the relief sought by the aggrieved party. For the sake of clarity, the operative portion of the aforementioned judgment is quoted herein below:-
"5. To summarize, normally, a belated service related claim will be rejected on the ground of delay and latches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long 6 O.A./350/871/2024 delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re- fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of latches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.
6. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.
7. In view of the above, these appeals are allowed. The order of the Division Bench directing payment of disability pension from the date it fell due, is set aside. As a consequence, the order of the learned Single Judge is restored."
7. Thus, this Tribunal is of the considered opinion that the issue of delay and latches/limitation and continuous wrong as defined by the Apex Court in the aforementioned judgment passed in the case of Tarsem Singh (supra) is applicable to the instant original application and accordingly, arrear payment of only three years preceding to the date on which the instant original application was filed is liable to be granted in favour of the applicant.
8. Accordingly, in view of the above quoted deliberations, the instant O.A. is allowed. Respondents are hereby directed to issue one notional 7 O.A./350/871/2024 increment to the applicant and further issue revised PPO in this regard. However, arrear payment of only three years preceding the date of filing of this original application, i.e. 1/7/2024, shall be made to the applicant @ 6% simple interest per annum. The said exercise is to be completed within a period of three months from the date of this order without fail. There will be no order as to costs.
(Rajnish Kumar Rai) Judicial Member //SKG//