Central Administrative Tribunal - Kolkata
Smt Sakunti Mallick vs Ordnance Factory Board (Ofb) on 29 November, 2023
ar' oO 1 : - Q.A. No. 880//1743/2022 ee N | | | peor a "| @ENTRAL ADMINISTRATIVE TRIBUNAL iS S » ~-* KOLKATA BENCH, KOLKATA O.A. No. 350//1743/2022 Heard on: \F.10 - 202% Date of Order: Qa, \\ AOLS Coram: Hon'ble Mr. Anindo Majumdar, Administrative Member 1. SMT. SAKUNTI MALLICK, wife of Late Hira Lal Mallick, aged about 61 years, residing at 5A, New -Ramkrishna Pally, Monoharpur, P.O. Dankuni, District Hooghly, Pin- 712311. The husband of the applicant No. 1 namely'Late Hira Lal Mallick was working to the post of Examiner HS (M/C) in SQAE (A), Cossipore, Kolkata Director General 7 00002 under of Quality Assurance, Government of India. Cossipore, Kolkata 700002, Mobile No. 7890714501, Email ID- [email protected]. 2. SMT. KANIKA SARKAR, wife of Late Kartick Chandra Sarkar, aged about 42 years. The A husband of the applicant No. 2 was Technician, HSW-1 in SOAE (A). Cossipore Kolkata 700002 under Director General of Quality Assurance, Government of India, Cossipore, Kolkata 700002, and residing at 255, B-2, Congress Road, Kalyani, Nadia, Pin-741235 Mobile No. 9674358630, . Email ID-: kakansarkar 1 998@grnail. com. 3 SHRI ARUN KUMAR DEY, son of Late Anish Dey, aged about 40 years, residing at 48/24/A/1, Souh Sinthe Road, Kolkata 700050 and working to the post | of Assistant Engineer (QA) in SQAE (Armts.), Cossipore, Kolkata 700002 under the Director General of Quality Assurance, Government of India, Cossipore, Kolkata '700002. _..APPLICANTS -VERSUS- 1. UNION OF- INDIA service through the Secretary, . Ministry of Defence. (Defence and Production}, Government of India, South Block, New Delhi-110001. 2. _THE DIRECTOR GENERAL, Directorate (Coordination of and Ordnance Service), Department - of Defence Production, Government of India, Ministry of Defence, 10A, Shaheed Khudiram Bose Road, Kolkata-700001. a Vac -- i, 2 OA. No. 850//1743/2022 3. THE DIRECTOR GENERAL OF QUALITY ESTABLISHMENT ASSURANCE (DGQA), Ministry of - Defence, Room No. 308- A, D-1 Wing, Army HQ, New - Delhi- 110011. 4. THE DIRECTOR OF SENIOR QUALITY ASSURANCE ESTABLISHMENT (A), SQAE (A), Cossipore, Kolkata --- 700002. 5. THE DIRECTOR OF SENIOR QUALITY ASSURANCE ESTABLISHMENT (Armts.), SQAE (A), Cossipore, Kolkata 700002. 7 6.. THE CONTROLLER, Controllerate of Quality Assurance Cossipore, Kolkata - 700002. COA, ...RESPONDENTS. For The Applicant(s): | Mr. P. C. Das; Counsel Ms. T. Maity; Counsel For The Respondent(s): Mr. P. N..Sharma, Counsel | ORDER Per: Mr. Anindo Majumdar, Member (A) -
nw This matter is taken up by Single Bench in view of the revised list dated 04.04.2000 issued under Sub-Section (6) of Section 5 of the Administrative Tribunals Act, 1985, and since, 'no complicated question of law is involved, this matter is taken up for disposal, at the admission stage, with the consent of both .
the parties.
2. The applicants are legal heirs of retired employees and existing employees working under the control and authority of _ Directorate Authority of Quality Assurance, New Delhi. Husband Via 3 O.A. No. 350//1743/2022 of the Applicant No. 1, Late Harilal Mallick was examiner. They aré aggrieved by the non-consideration of their representation dated 21.07.2021 addressed to: the Director General Ordnance Factory-cum-Chairman Ordnance Factory Board, Kolkata, praying for inclusion of HRA,TA and SFA for the purpose of calculating overtime allowance.
3. The applicants have filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s):
"q) Léave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because the grievances of the present applicants those who are legal heirs of the existing and retired employees ' of DGOA Establishments, SQAE (A), SQAE {Armts.), CQA Cossipore, Kolkata-700002 against the inaction on the
- part of authorities concerned by not extending the benefit of the judgment as decided by this Hon'ble Tribunal and ° also the various coordinate' benches of this Hon'ble Tribunal including the Hon'ble High Courts in respect of non-considering the claim of the applicants to grant such OTA arrears. Against such inaction on the part of the respondent authority, they are moving this original application and under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 this original application is permissible;
/b) To pass an appropriate order directing upon the respondents particularly the DGQA Establishment, SQAE (A), SOAE (Armts.) and CQA, Cossipore, Kolkata-700002 to . extend the benefit.of the calculation of OTA by inclusion of various allowances ie. HRA/TA/SFA while calculating OTA will be extended :-provisionally to the applicants with _ retrospective effect ie. with effect from 2006 in terms of the direction given. by the Learned Central Administrative Tribunal, Principal Bench, New Delhi in order dated 25.04.2018 in OA No. 650/2016 appearing at Annexure A-5 of this original application and in terms of the order dated 04.04.2014 .passed by the Leamed Central Administrative Tribunal, Hyderabad Bench in OA No. 1372/2012 and in terms of the earlier direction given by this Hon'ble Tribunal in order dated 09.12.2019 in OA No. 350/ 1523/2019 and in terms of the order dated 11.11.2020 passed by this Hon'ble Tribunal.in OA No. _ 350/705/2020 and in-the light of the latest order dated 15.03.2021 passed by this Hon'ble Tribunal in OA' No. 350/178/2021 and MA No, 350/66/2021 in the case of Gun & Shell Factory Karmachari Union & Ors. -vs- Union of India and others along with all arrear benefits with effect from 2006; N () P : O.A. No. 350//1743/2022
c) To pass an appropriate order directing .upon the respondents particularly the DGQA Establishment, SQAE (A), SQAE (Armts.) and CQA, Cossipore, Kolkata-700002 to give the benefit of calculation of OTA by inclusion of various allowances ie. HRA/TA/SFA while calculating OTA will be. extended provisionally to the applicants with retrospective effect i.e, with effect from 2006 along with all consequential arrear benefits in terms of the direction given by the Learned Central Administrative Tribunal, Principal Bench, New Delhi in. order dated 25.04.2018 in OA No. 650/2016 appearing at Annexure A-5 of this original application and in terms of the order dated 04.04.2014 passed by the Learned Central Administrative Tribunal, Hyderabad Bench in OA No. 1372/2012 and.in terms of the earlier direction given by this Hon'ble Tribunal in order dated 09.12.2019 in OA No. 350/ 1523/2019 and in terms of thé order dated 11.11.2020 passed by this Hon'ble Tribunal in OA No. 350/705/2020 and in the light of the latest order dated 15.03.2021 passed by this Hon'ble Tribunal,in OA No. 350/178/2021 and MA No. 350/66/2021 in the case of Gun & Sheil Factory Kaimachari Union & Ors. -vs- Union of India and: others along with all arrear benefits with effect from 2006 and further directed: the Ordnance Factory Board, Kolkata to make a suitable instruction to the concerned General Managers of the concerned Ordnance factories under whom the members of the applicants-Unions are/were working so that they can be deprived for getting such benefit; , \
d) To declare that the office memo dated 26th June, 2009 issued by the Government of India, Ministry of Defence and on the basis of said office memo, the subsequent office orders dated 27.08.2009 along with CGDA letter 'dated 27.08.2009 .and office order dated 28.10.2009 are nonest and cannot be sustainable in the eye of law as per thé judicial pronouncement made by the Hon'ble High Court of Judicature at Madras in Writ Petition Nos. 609, 1276, 1466, 1980 to 1982, 9076 and 21035 of 2011 and connected MPs vide order dated 30.11.2011 because which has been already quashed and/or set aside by the Hon'ble High Court of Judicature at Madras and on the basis of 'that, the benefit of the applicants has been granted by the Hon'ble High Court of Judicature at Madras in Writ Petition Nos. 609, 1276, 1466, 1980 to 1982, 9076 and 21035 of 2011 as well as similarly circumstanced employees get benefit by the Léarned Central Administrative Tribunal, Hyderabad Bench in OA No. . .1372 of 2012 vide order dated 04.04.2014 and also the decision of the Learned Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 650/2016 vide order dated 25.04.2018 cannot be restricted in connection to the present applicants as they are the similarly circumstanced persons and they are entitled to get the same reliefs with effect from 2006 and in the light of the latest order dated 15.03.2021 passed by this Hon'ble Tribunal in OA No. 350/ 178/2021 and MA No. 350/§6/2021 in the case of 5 QA. No. 850//1743/2022 Gun & Shell Factory Karmachari Union & Ors. -vs- Union of India and others along with ail consequential benefits _ subject to the decision of the. Hon'ble Supreme Court; if any. a ;
4. The applicants have submitted that they had been in receipt of overtime allowance whenever 'they were required to work beyond the normal working hours of 48 hours in a week and that the said allowance used to be calculated by inchiding © all allowances admissible to 'the employees like House :
Rent. Allowance. (HRA), City Compensatory Allowance (CCA), Transport Allowance (TA), Small Family Allowance (SFA), etc. as per the provisions of Factories. Act, 1948, They have submitted that 'respondent No. 1, 2 and3 issued a memorandum dated 26.06.2009 stating that House Rent Allowance, Travelling | Allowance-and Small Family Allowance would stand excluded for the purpose of calculation of over time allowance. Based on this memorandum, the Principal Controller of Accounts (Factories), Kolkata issued an office memo on 27.08.2009.
5. The office memo. dated 26th June, 2009 was challenged before the Central Administrative Tribunal, Chennai Bench -by filing an Original Application No. 1144 of 2009. However, the said Original. Application was dismissed. by the Chennai Bench of CAT. A Writ Petition was filed by the Heavy Vehicles. Factory Employees Union in WP 609 ot 2011 before the Hon'ble High Court of Madras against the order of the CAT, Chennai dated 30.11.201 1. The said Writ Petition was allowed by the Hon'ble High Court at Madras. The respondents have filed Special Leave Petitions (SLPs) against the said judgement of the Hon'ble High Court of Madras. Although the SLPs has been admitted by the
- 6 O.A. No, 350//1743/2022 Hon'ble Apex Court, they are still pending. However, the aforesaid judgement of the Hon'ble High Court of Madras has not been stayed by the Hon'ble Apex Court. | 6, | The Ordnance Factory Civilian Employees Union had also filed an Original Application No. 1372 of 2012 before the Hyderabad Bench of CAT praying for the extension of same relief(s) granted by the Madras High Court. The said O.A. was allowed by the Hyderabad Bench of CAT vide its order dated 04.04.2014. . | 3 7, . The Principal Bench of the Central Administrative Tribunal, New Delhi has provided identical relief in OA No. 650/2016, vide its order dated 25.04.2018 and directed the respondents to - include all allowances such as HRA, TA and SFA while calculating Overtime Allowance w.e.f 01.01.2006 . |
8.. This Tribunal, has vide its order dated 11.11.2020 in OA . No. 350/ 705/2020 in the case of Employees Union Ordnance Factory, Dum Dum and others versus Union of India and others granted similar relief in favour of the applicants. The Ordnance Factory Board vide its order. dated 30.12.2020 has implemented the order of this Tribunal dated 11.11.2020 in O.A. No. 350/705 /2020. .
9. The present, applicants had made a representation dtd. 21.07.2021 to the General Manager, Rifle factory, Ichapore, on 21.07.2021 for inclusion of HRA, TA and SFA for the purpose of calculating overtime allowance i.e for grant of identical relief(s) as granted by the Hon'ble High Court of Madras and the various Benches. of the Central Administrative Tribunal. However, no 7 O.A. No. 350//1743/2022 action on the said representation has been taken by the respondents as yet.
10. The respondents in the reply, have submitted that although the Madras High Court and some Benches of the Central administrative Tribunal have issued directions for allowing the inclusion of HRA, TA, and SFA for. calculation of House Rent Allowance, these orders are subject to the outcome. of the SLPs pending before' the. Hon'ble Apex Court and 'also that these orders and not. passed in rem. They have further submitted that'in case these orders are implemented .
retrospectively, then considerable amount .would be incurred towards arrear payments which wouldcost a_ financial burden on the government exchequer. The respondents have further submitted that in case the Hon'ble Apex Court Allows the pending SLPs, recovery action of the amount paid to the _ applicants provisionally has to be initiated which would lead to ' - considerable administrative difficulties.. Moreover, recovery from retired employees will not be easy. |
11. I have heard the learned counsels for both the sides and have examined the material-on record.
12. I find that the issue regarding inclusion of admissible allowances: such as HRA, TA, and SFA for the purpose of tam ms, eo calculating overtime allowance has been decided by the Hon'ble High Court at Madras in Writ Petition No. 609/2011, vide its judgment dated 30.11.2011. The operative part of. the said judgement is reproduced below:
"14, We have gone through the. entire, materials placed on record. It is | seen from the perusal of the records that aaaevee of the pyaer passed 8 OA. No. 350//1743/2022 by the Tribunal, wherein original applications were filed by the employees working in the third respondent factory challenging the order, dated 26.06.2009, issued by the first respondent, wherein House Rent Allowance, Travelling Allowance, Small Family Allowance were excluded from the overtime allowance for 'the purpose of computation of the same, the present writ petitions have been fled.
15, It is an admitted case that the third respondent factory is governed by the provisions of the Factories Act. It is also the case of the employees that they are enjoying the overtime allowances all along and suddenly, a decision was taken to discontinue the payment of the aforesaid allowances by relying on Section 59(2) of the Factories Act, wherein Wages and Allowances were defined, to the effect that , 'ordinary rate of wages' means the basic wages plus such allowances, including the cash equivalent of the advantage according through the concessional sale to workers of food grains and otherwise the worker is' for the time being entitled to, but does not include: a bonus and wages for overtime work. When: the definition of the term, 'wages' specifically excludes 'bonus' and overtime wages to calculate the overtime work and the aforesaid allowances were excluded only basis of the opinion: given by the legal advisor of the Ministry of Law and not in consultation with the Ministry of Law (Department of Legal Affiars}, as requested by the Ministry of Labour, based on which, the Tribunal has dismissed the original applications by a common order dated 24.12.2010, which, in our considered opinion, is illegal.
16. As rightly contended by the learned counsel for the petitioners, as per the definition of Sub Section (2) of Section 39 of the Factories Act. calculating the 'ordinary rate' of wages means, basic wages plus such allowances Including the cash equivalent of the advantage accruing ~ through the concessional sale to workers of food grains and other articles, as the worker is for the time being entitled to, but does not include a bonus arid wages for overtime work. In the absence of any rules governing the subject with regard to the exclusion of the above said allowances, from the definition of ordinary rate of wages, as per Sub: Section 2 of Section 59 of the Factories Act and when the petitioners are catering the same all along, taking a decision, which is contrary to the definition as contained in Sub Section 2 of Section 59 of the Factories Act, is unsustainable in law. .
17. It is also seen from. the perusal of the records that when the Ministry of Finance, through their official memorandum, - dated 14,11,2002, has requested the Ministry of Labour to reconsider the matter in consultation with the Ministry of Law (Department at of Legal Affairs), but after consulting with the legal advisor of the Ministry, the Ministry of Labour and Employment has issued the above memorandum, which in our considered opinion, is not legal, since consulting the Ministry of Law is different from consulting the legal advisor of the Ministry. We are unable to understand as to what is the legdl sanctity attached to the advice given by the legal advisor of the Ministry to exclude the aforesaid allowances to calculate the basic rate of wages. In the absence of any rule to exclude the aforesaid allowances from the definition of the basic wage, when the Section excludes only two items, viz, bonus and wages for overtime work, the action of the first respondent in excluding the said allowances without any authority, but only based'on the opinion expressed by the legal advisor of the concerned Department, which cannot be considered to be the power given to exclude those allowances, and also the order passed by the Tribunal in rejecting the claim made by: the titioners go ; O.A. No. 350//1743/2022 .
based on the aforesaid memorandum, are considered to be illegal and unsustainable in law.
18. For the foregoing reasons, the order passed by the Tribunal is _ liable to. be set aside and it is, accordingly, set aside. The writ petitions . are allowed.. Connected M.Ps. are closed. However, there will be no order as to costs." :
13. The Hyderabad Bench of this Tribunal has also passed a ' gimilar order dated 04.04.2014, in OA.No. 1372/2012, wherein it has been held, inter alia, as below:
«3, Having heard the applicant, party-in-person and the learned. Additional 'Standing Counsel for the Respondents and since the Impugned order of Respondent No.2 dated 26. 6.2000 has already
-been quashed by the Hon'ble High Court of Madras though the Department preferred SLPs before the Hon'ble Apex Court, no stay was .
granted in the SLPs, we are of the considered view that the applicant i is entitled to get the relief as prayed in the application.
4, Accordingly the Respondents are directed to include all allowances such as HRA, TA-and SFA in calculation of Over Time Allowance from 1,1.2006. . ;
5. In the result, the OA is allowed. No order as to costs."
14. The Principal Bench of this Tribunal, has also vide its order dated 25.04.2018; in O.A 650/20 16, extended similar rélief(s s} t the applicants in that O.A concerned provisionally subject to the final outcome of the decision of the Hon'ble Apex Court in SLPs No, 12845-12852/2012. |
15. This Tribunal, vide its order dated 11.1 1.2020 in OA '350/705/2020, has extended similar benefits to the applicants in that O.A in the light of orders passed by the Principal Bench as well as the Hyderabad Bench .
16. The aforesaid orders of the Madras High Court and some other Benches' of the CAT 'have already been implemented by the respective respondents.
no. 10 0.A. No. 350//1743/2022
17. From the preceding paragraphs, it is clear that the issue of inclusion of HRA, TA and SFA has already been decided by the Hon'ble High Court of Madras. Thereafter, the Principal Bench
- and other Benches of this Tribunal have granted similar relief(s) to the identically placed applicants in the Original Applications . ~ filed before them. The applicants in this Original Application in their respective are also 'identically placed as those in the Original Applications quoted above. A Five-Member-Bench of the Hon'ble Apex Court in the case of Keshav Sharma vs. Union of India and others has inter alia held that "the extension of benefit of judgement cannot be denied to the: similarly 'circumstanced persons". The applicants in this Original . Application are therefore entitled to receive similar relief(s).
18. In view of the above discussion, the respondents are directed to include HRA, TA SFA and other admissible allowances for the purpose of calculating overtime allowance provisionally in respect of the applicants w.e.f, -01.01.2006 subject to the final outcome of the decisiori of the Hon'ble Apex Court on the SLPs filed by the Union of India in the instant. 'matter. | ; 19. With these directions, this Original Application is disposed of. There shall be no order as to costs.
(Anindo Majumdar) Member (A) SK