Central Administrative Tribunal - Madras
V Sivaraman vs M/O Defence on 11 July, 2024
1 OA No. 1955/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01955/2014
Dated this, the 11th day of July, Two Thousand & Twenty Four
CORAM :
HON'BLE MR. VARUN SINDHU KUL KAUMUDI, Member (A)
HON'BLE MR. M. SWAMINATHAN, Member (J)
1. V.Sivaraman,
2.R. Loganathan,
3. D. Kathiravan,
4. B.Palani Kumar,
5. M.Boopathy,
6. A. Balamurugan. .....Applicants
By Advocate M/s. Paul & Paul
Vs.
1.Union of India, rep. by its Secretary,
Ministry of Defence,
Department of Defence Production,
South Block, New Delhi-110 001
2.The Chairman,
Ordnance Factories Board,
10-A, S.K.Bose Road, Kolkatta-700 001.
3. The General Manager,
Ordnance Clothing Factory,
Avadi, Chennai-600 054.
4. The Directorate General of Ordnance,
Directorate of Ordnance (Coordination & Services) (Ministry of Defence),
10-A, SK Bose Road, Kolkatta-700 001.
(Impleaded vide order dated 20.07.2022 in MA 302 of 2022)
5. The Chairman and Managing Director,
Troop Comforts Limited (TCL), A Government of India Enterprise,
2 OA No. 1955/2014
Ministry of Defence,
Corporate HQRS, GT Road, Kanpur-208 013.
(Impleaded vide order dated 20.07.2022 in MA 302 of 2022).
....Respondents
By Advocate Mr. K. Rajendran, SCGSC
3 OA No. 1955/2014
ORDER
(Pronounced by Hon'ble Mr. Varun Sindhu Kul Kaumudi, Member(A)) This OA has been filed by the applicants seeking the following relief:-
"a). For quashing of the impugned order Nos 1810/LB/Gen, Labour Bureau, dated 21.07.2014, 23.07.2014, 06.08.2014, 08.09.2014 of the 3rd respondent is illegal and void;
b). For consequential direction to the respondents to grant proper seniority to the applicants in the skilled grade and grant promotion to highly skilled grade effect from 20.05.2003, with attendant benefits like, further promotion to HS Grade-l and Master Craftsman as the case may be, on that basis.
c). For such further or other relief or reliefs as this Hon'ble Tribunal may deems fit and proper in the circumstances of the case and thus render justice. "
2. The facts of the case, as submitted by the Applicants, are as follows, in brief:-
2.1. The applicants were originally appointed between 1991 and 1993, in the non-industrial establishment in the 3rd respondent factory, (Ordnance Clothing Factory), in various posts like Vendor, Durwan, etc. Since, promotional opportunities were very remote in the non-industrial establishment, they opted for appointment in the industrial establishment, as provided for in the rules. On appointment on the industrial side, on 02.04.2001, the applicants were trade tested in the tailor trade and appointed as unskilled workers, instead of semi-skilled workers, in the tailor trade.
However, the work of tailor was extracted from the applicants, though they were designated as unskilled workers. Therefore, the applicants, along with 4 OA No. 1955/2014 few other similarly placed employees (A.Rajan & others), approached this Tribunal in OA No.442 of 2004, seeking direction for treatment of their original appointment as Tailor semi-skilled rather than unskilled, in the industrial establishment, with all consequential benefits. The OA was dismissed by this Tribunal against which Writ Petition No.7424 of 2005 was filed and the same was allowed, vide order, dated 30.04.2009. The Hon'ble High Court of Madras directed that the applicants herein and others are entitled to pay fixation. seniority, promotion, etc. 2.2. Due to non-compliance with the order passed by the Hon'ble High Court, Contempt Petition No. 1678 of 2011 was filed and notice was ordered in the contempt petition. The 3rd respondent published factory order, dated 08.08.2013, granting seniority and promotion to the petitioners, including the present applicants, in compliance with the directions of the Hon'ble High Court. In the instant case, although, promotion to the skilled grade had been granted, in compliance with the directions of the Hon'ble High Court in WP No.7424 of 2005, further promotion in seniority had not been granted or assigned in furtherance of the High Court directions, as far as the present applicants were concerned. In response to their representations, the 3rd respondent passed the impugned orders, dated 21.07.2014, 06.08.2014, etc., rejecting the claim of the applicants on the ground that grant of seniority and promotion was in order and any ante-dating of promotion will render the seniors of the applicants as juniors. Since, the orders of the Hon'ble High 5 OA No. 1955/2014 Court had been substantially complied with, the contempt petition was closed on 12.09.2013. However, as far as the present applicants are concerned, the administration had meted out discriminatory treatment and interpreted the directions of the Hon'ble High Court to their detriment. The applicants claim that, by virtue of the fact of lower seniority and delayed promotion in the higher grades like, HS Grade II and I, etc., they have been deprived of due service benefits. Aggrieved, the applicants have filed this OA.
3. The main grounds, among others, raised by the applicants, are as under:-
i. Denial of promotion to the applicants as Highly Skilled Grade II, with effect from 20.05.2003, as granted to other junior employees, is patently malafide, arbitrary, unreasonable, discriminatory and violative of Article 14 of the Constitution of India.
ii. The applicants were appointed in the skilled grade earlier to other employees and the date of appointment in the skilled grade ought to have been treated as the basis for further promotion to HS grades and Master Craftsman. In the instant case, the denial of promotion to higher grades on the basis of the promotion of the applicants in the skilled grade is contrary to rules and the orders passed by the Hon'ble High Court.
4.1. The respondents have filed their reply opposing the relief prayed for by the applicant. It is submitted that the Non-Industrial Employees, viz., 6 OA No. 1955/2014 Durwan/Orderly/Sweeper/Mali, etc., in the erstwhile Group-D, were transferred/re-designated to the Industrial Establishment as Direct Workers in the trade/grade of Labourer/Un-skilled (presently Labourer/Semi-skilled, as per the 6th CPC), as per existing 2nd respondent's instructions. During the year 1999, few Non-Industrial Employees were re-designated as Labourers/Un-Skilled, following the 1st respondent's instructions, and the re-designated employees were deployed to work as Tailor on machine output in the designated trade/grade of Labourer/Un-skilled, on their own willingness, after passing the Trade Test meant for the post of Tailor/Semi- Skilled. Accordingly, the pay, on transfer, was fixed in the trade/grade of Labourer/Un-skilled (Rs.2550-3200) and, on completion of 3 years, those Labourers/Un-skilled were promoted to Tailor/Semi-skilled (Rs.2650-4000), based on their request. The entry grade in the trade of Tailor is Semi-skilled. 4.2. Shri. A. Rajan & 22 others had submitted identical representations, dated 19.08.2003, requesting to consider them for re-designation from the Non-Industrial Establishment to the Industrial Establishment in the trade/grade of Tailor/Semi-skilled, from the date they were re-designated as Labourer/Un-skilled, by citing earlier cases. Some of the Non-Industrial employees were transferred/re-designated to Industrial Establishment as Tailor/Semi-skilled, with the approval of the then General Manager. The representation, dated 19.08.2003, was processed and rejection was conveyed vide the 3rd respondent's letter No. 1802/LB, dated 18.10.2003. 7 OA No. 1955/2014 4.3. They filed O.A.No. 442/2004 before the CAT-Madras Bench. The Tribunal, vide order, dated 27/01/2005, dismissed the above O.A. on the grounds that since the applicants themselves had opted for a particular grade, now they cannot go back, thereby accepting the stand taken by the Department. The Hon'ble High Court had allowed Writ Petition No. 7424/2005, vide its order, dated 30.04.2009, and it was categorically directed that the petitioners would get notional fixation of the Tailor/Semi- skilled Grade from the date of their transfer from the Non- Industrial Establishment to the Industrial Establishment and, on completion of two years, they would be notionally fixed in the pay scale of Tailor/Skilled, since the petitioners had approached the Tribunal belatedly after they were appointed as Tailors (Semi-skilled), after rendering three years of service as Labourers (Unskilled).
4.4. The Respondents further submit that the order of the Hon'ble High Court of Madras was complied with, by the 3rd respondent, vide Factory Order Part-III No.439, dated 31.08.2009. The pay of the petitioners in W.P.No.7424/2005 was notionally fixed in the pay scale of Tailor/Semi- skilled on the date of transfer to the Industrial Establishment and, on completion of two years, their pay was again fixed notionally in the pay scale of Tailor/Skilled. The arrears for notionally fixed pay were paid from the date of the order of the Hon'ble High Court of Madras. Further, since the Hon'ble High Court had clearly directed that they would get only notional 8 OA No. 1955/2014 pay, without arrears, the petitioners were treated as Tailor (Semi-skilled) and Tailor (Skilled) for fixation of pay, notionally, and no specific orders placing them as Tailor (Semi-skilled) and Tailor (Skilled) with date was published. Hence, the seniority of the petitioners, therein, was also not revised. 4.5. Aggrieved, they filed Contempt Petition No.1678/2011 for implementation of the order of the Hon'ble High Court with the benefit of seniority also. However, the Hon'ble High Court, without going into the merits of the case, directed the respondent department to implement its order, in full, vide order, dated 03.07.2013.
4.6. Accordingly, all the petitioners were bestowed the benefit of seniority and they were all, subsequently, elevated on further promotions, subject to eligibility, on par with their juniors, in the post of Tailor/Semi-skilled. It is well-settled principle of law that, on revision of seniority, with all other attendant benefits in any case, the position of the incumbent will be compared on par with their juniors.
4.7. However, the applicants, vide representation, dated 17.10.2003, requested to revise the date of promotion to HS-II, w.e.f.20.05.2003, taking into account the date of promotion to the skilled grade. The applicants were also informed by the respondent that the individuals who are seniors to the applicants were not promoted to the skilled grade, immediately, on completion of 2 years, considering the procedure involved, such as training and then trade test, etc., whereas, in the applicant's case, all formalities were 9 OA No. 1955/2014 not taken care of and they were promoted to the Skilled grade, immediately, on completion of 2 years and any action ante-dating the promotion of HS-II, based on the date of grant of the skilled grade, as an outcome of the court order, will render their seniors in the Tailor/Semi-skilled grade as juniors, which would not be in order. It is further submitted that the 1st respondent, vide the letter No.Per/I/Seniority/2015-16, dated 04.08.2015, had instructed all the sister factories that promotion from Skilled to Highly Skilled Grade-II will be made as per the seniority fixed for Semi-skilled grade (entry grade) which will be arrived at, as per merit of the select panel, without making any linkage to the date of up-gradation to the skilled grade. 4.8. As per the order of the Hon'ble High Court of Madras, the pay of all the applicants was fixed notionally. It is worth noting that all appointments towards the recruitment of Tailor/Skilled grade were initially made as Tailor/Semi-Skilled, and, after completion of and proper execution of duty as tailors for 2 years, they will be sponsored for 15 days' training and then for the relevant Trade Test, as per the SRO. On successful passing of the Trade Test, they will be considered for promotion to the Skilled grade, subject to clearance from the vigilance angle. In the instant case, all the above formalities, required to have been completed as per the SRO, were given a go-by, while complying with the order of the Hon'ble High Court of Madras and they were promoted to the Skilled Grade immediately on completion of 2 years. Further, the applicants have been promoted to the 10 OA No. 1955/2014 post of Tailor/HS-II, w.e.f. 01.01.2006, on par with their seniors and juniors who were compared with the applicants on the date of re-designation from NIE to IE.
4.9. The Respondents argue that the applicants have not been discriminated against in any manner. Promotion cannot be claimed as a matter of right unless the promotion is denied at the cost of fair play, good conscience and equity. It is reiterated that the individuals who are seniors to the applicants were not promoted to the skilled grade immediately on completion of 2 years, considering the procedure involved, such as probation, permanency, training for trade test and then the trade test, etc., whereas, in the applicants' case, all formalities were not followed and notional fixation was done for the Skilled Grade, immediately, on completion of 2 years. The applicants cannot be allowed to unsettle the settled matters after so many years.
4.10. Accordingly, the respondents have prayed for dismissal of the OA, as devoid of merits.
5. R-4 and R-5 were impleaded on the basis of MA No. 302/2022, filed by R-3 in the OA. Amended OA was filed on 22.02.2024 by the applicants.
6. Both sides have filed written arguments.
7. Heard both sides and perused the records.
8. As per Annexure - (A) to the Statutory Rules & Order (SRO) 185, dt. 1st Nov., 1994, filed by the 3rd Respondent, TAILOR Trade is listed at Sl. 11 OA No. 1955/2014 No. 21 and is shown as existing in the Grade - SEMI - SKILLED to MASTER CRAFTSMAN. The eligibility criteria are enumerated as follows:-
S. No. Post Qualifying DPC/ Pay
service Trade Test
1 Tailor/Semi- Direct Trade Test Level-1
Skilled Recruitment
2 Tailor/Skilled 2 years Trade Test Level-2
3 Tailor/Highly 3 years Trade Test Level-4
Skilled-II
4 Tailor/Highly 3 years Trade Test Level-5
Skilled-I
5 Tailor/Master 3 years DPC Level-6
Crafts Man
9. The learned counsel for the applicants has placed reliance on the decision of the Hon'ble Apex Court, vide order, dt. 7 th September, 2007, in Civil Appeal No. 4108 of 2007 in the case of Commissioner, Karnataka Housing Board Vs. C. Muddiah (2007) 7 SCC 689, for grant of benefits to the applicants on par with their juniors, ie., granting the placement of HS - II, with effect from 20.05.2003. The following Paras have been cited -
"9. The learned counsel for the appellant-Board contended that the writ- petitioner had succeeded in earlier litigation. A Single Judge of the High Court directed the appellant-Board to reconsider the seniority list and reassign seniority to the writ-petitioner over respondent Nos. 2 to 34. It is also true that the Court directed consequential benefits to be extended to the writ-petitioner. According to the learned counsel, however, the said order had been complied with and the appellant-Board has paid all consequential benefits to the writ- petitioner to which he was entitled in law. He also submitted that it was the case of the writ-petitioner that the order passed by the Court had not been complied with and the appellant-Board had committed contempt, but the contempt petitions were dismissed. In view of the said order, it is not open to the writ-petitioner to contend that there was non-compliance with the order passed by the Court. A fresh petition for such relief was not maintainable.12 OA No. 1955/2014
.....
"27. In our opinion, the contention that no fresh petition could be filed by the respondent-writ petitioner in 2000 has also no substance. ........
"31. Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from October 27, 1997 to February 28, 1998. It was expressly stated that the writ-petitioner would not be entitled to arrears of pay and allowances for any earlier period "since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers". It is thus obvious that in spite of clear direction issued by a competent Court, no payment was made and an express order was passed to the effect that the writ- petitioner would not be entitled to pay as he had not worked. The writ- petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer.
"32. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
....."
10.1. The Respondents argue that the pay, on transfer of the applicant from NIE to IE, was fixed in the trade/grade of Labourer/Un-skilled (Rs.2550- 3200) and, on completion of 3 years, those Labourers/Un-skilled were promoted to the post of Tailor/Semi-Skilled (Rs.2650-4000), based on their request, as the entry grade in the trade of Tailor is Semi-Skilled. 10.2. The applicants were promoted to Skilled Grade as per the Court directives. The eligibility criteria, such as minimum qualifying service, Trade Test, etc., in terms of Inter Grade Ratio, will have to be followed. The 13 OA No. 1955/2014 respondents have argued that the applicants' plea is to revise the date of HS- II, w.e.f. 20.05.2003, taking into account the date of getting into the skilled grade. But those who are senior to the applicants were not promoted to the skilled grade immediately on completion of 2 years considering the procedures involved, such as probation, permanency, training for trade test and then trade test, etc., whereas in the applicants' case, these formalities were dispensed with due to the directives of Hon'ble High Court and notional fixation was done for the Skilled grade, immediately, on completion of 2 years. Any action antedating their promotion to the HS-II grade, based on the date of skilled grade, which is an outcome of court order, will render their seniors in the Tailor/Semi-skilled grade as juniors, which will not be in order. Further, their seniors in the semi-skilled grade will become junior to the applicants, if the prayer is allowed.
10.3. The relevant portion of the order, dt. 30.04.2009, in WP No. 7424 of 2005, is extracted below :-
" 8. It is admitted by the first and second respondents before the third respondent as well as this Court that they did the work of Tailors though the employees on transfer to industrial establishment were re-designated as Labourers (Unskilled). It is also admitted that the petitioners were trade tested before their transfer to industrial establishment. Since they were found eligible, they were asked to work as Tailors. Once the petitioners were asked to do the work of Tailor after passing the trade test, the second respondent was not justified in refusing the scale of pay for the post of Tailor. The second respondent, being a State under Article 12 of the Constitution should behave like a model employer. Referring to grant benefits such as pay fixation, seniority, promotion etc., for the post of Tailors (Semi-Skilled) in the said circumstances is arbitrary and violative of Article 14 of the Constitution.14 OA No. 1955/2014
9. The third respondent - Tribunal is not correct in relying on the undertakings given by the petitioners agreeing for re-designation as Labourers (unskilled) and to work as Tailors. We are of the considered opinion that such undertakings are illegal and could not be sustained. The second respondent could not deny the benefits available to the post, particularly after extracting work from the employees citing the undertakings. Further, we have also taken note of the earlier orders given to similarly placed employees re-designating them as Tailors (Semi-Skilled). Therefore, the second respondent could not discriminate the writ petitioners.
10. For the aforesaid reasons, we are inclined to allow the writ petition and accordingly, the writ petition is allowed. Since the petitioners approached the Tribunal belatedly after they were appointed as Tailors (Semi-Skilled) after rendering three years of service as Labourers (unskilled) though they carried out the work of Tailor, we have decided to grant only notional fixation of pay. is made clear that the petitioners would get the notional fixation of the Tailors (Semi-Skilled) from the date of their transfer from non-industrial establishment to industrial establishment and on completion of two years, they would be notionally fixed the pay scale of Tailors (Skilled). However, they are not entitled to arrears of fixation. The second respondent is directed to carry out the exercise of fixation of pay within four weeks from the date of receipt of a copy of this order. No costs."
10.4. Applicants have relied upon the order, dt. 28.03.2000, of the Hon'ble Apex Court in Civil Appeal No. 2272 of 2000, in the case of Union of India and ors Vs. K. B. Rajoria (2000) 3 SCC 562. The relevant paras are extracted below :-
".....
"15. The office memorandum referred to in the order dated 10-6-1998 and in terms of which notional promotion was granted to Krishnamoorti contains several provisions of which one is relevant for our purposes:
"18.4.3. If the officers placed junior to the officer concerned have been promoted, he should be promoted immediately and if there is no vacancy the juniormost person officiating in the higher grade should be reverted to accommodate him. On promotion, his pay should be fixed under FR at the stage it would have reached, had he been promoted from the date the officer immediately below him was promoted but no arrears would be admissible. The seniority of the officer would be determined in the order in which his name, on review, has been placed in the select list by DPC. If in any such case a minimum period of qualifying service is prescribed for promotion to higher grade, the period from which an officer placed below the 15 OA No. 1955/2014 officer concerned in the select list was promoted to the higher grade, should be reckoned towards the qualifying period of service for the purpose of determining his eligibility for promotion to the next higher grade."
"16. Analysed, these instructions provide:
(i) For the immediate promotion of a person who has been superseded.
(ii) Upon such promotion his pay should be fixed at the stage at which it would have reached had he been promoted from the date that the junior officer was promoted.
(iii) The seniority of such notionally promoted officer would be determined according to the select list prepared by DPC if a minimum period is prescribed.
(iv) For the further promotion of such notionally promoted officer. his eligibility would be calculated as including the period from which the junior officer was promoted.
......
"18. ........... Notes 1 and 2 to the said Schedule clarify the position with regard to the calculation of "two years' regular service in the grade":
"(1) The eligibility list for promotion shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grades/posts.
(2) If a junior with the requisite years of service is considered, the senior will also be considered notwithstanding the fact that he does not possess the requisite years of service." (emphasis added) ........
"21. The notional promotion was given to Krishnamoorti to right the wrong that had been done to him by his supersession on 22-2-1995. If Krishnamoorti is denied the right to of Director General on the basis of such notional promotion, particularly be considered for promotion to the post when the relevant provisions so provide, it would result in perpetuating the wrong done to him. ........"
11. The order, dt. 30.04.2009, of the Hon'ble High Court in WP No. 7424/2005 has to be read with the order, dt. 28.03.2000, of the Hon'ble 16 OA No. 1955/2014 Supreme Court in C.A. No. 2272 of 2000. The initial error of placing Semi-skilled Tailor in the Unskilled category, was ordered to be rectified, by the Hon'ble High Court along with specific directions in respect of notional fixation of pay. It also entitles them to be considered for subsequent service benefits. The eligibility for further promotion, as clarified by the Hon'ble Apex Court, has to be calculated with reference to the date on which their junior was promoted.
12. However, we have seen that the respondents, in their affidavit, have submitted as follows:-
"3. The individuals who are compared by the applicants are seniors to the applicant in their date of appointment in Semi-skilled Grade. The request of the applicants to place them just below their seniors is not in order. Their seniority can be fixed only at par with their juniors. Their seniors promoted to erstwhile Highly Skilled (HS) were promoted in relaxation of Trade Test, Qualifying service etc. as per OFB Instructions. The applicant who was promoted to Skilled Grade as per the court directives cannot again be promoted to HS w.e.f.20.05.2003 further relaxing the eligibility criteria such as minimum qualifying service, Trade Test etc., in terms of Inter Grade Ratio making their seniors in appointment as their juniors."
13. Since the respondents have admitted that the seniors were promoted in relaxation of the conditions, as per OFB instructions, we feel it will be discriminatory if the same yardstick that was used in the case of the seniors by the OFB is not applied to the applicants for considering them for monetary benefit, without upsetting the settled seniority position. We would reiterate the directions of the Hon'ble Apex Court in the case of C. Muddiah (2007) 7 SCC 689, that -
17 OA No. 1955/2014
"32. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
14. Respondents are directed to consider the applicants for grant of notional fixation of pay in the next higher grades, and for extending the consequential monetary benefits, in terms of the order, dt. 30.04.2009, of the Hon'ble High Court of Madras, in WP No. 7424 of 2005. Such exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
15. Accordingly, OA is disposed of. Pending MAs, if any, stand closed. No order as to costs.
(M. Swaminathan) (Varun Sindhu Kul Kaumudi)
Member (J) Member (A)
11.07.2024
SKSI