Central Administrative Tribunal - Mumbai
Satish Yashwant Mhatre vs M/O Defence on 30 November, 2022
eed s o fees? ea Annenonent ee ee < *, Central Administrative Tribunal Mumbai Bench, Mumbai OLA. No.32/2020 Vhrough video conferencing Order reserved on 2 "* November, 2022 Order pronounced on 30" November, 2022 OA, Nowe face Hen' ble Mrs, Harvinder Kaur Oberoi, Member ( Satish Yashwant Mhatre Ex- AASO, from the ofo NAD, Karanja, Aged 66 years, Group B (Gazetted) and Resident of 638, Omar House at Vinayak, Kegoan fal. Uran, Distt. Raigad 400 702 (Mr, Abdulraliak I Bhatkar, Advo ats) . Applicant Yersus 1. 'The Union of India through the Secretary, Ministry of Cf fenee South Bioc k, New Delhi- 119 a Tins Valkator bis An 100 New De Thi Ok <a sbetngge * natn" Sai, ee eg, Deanté Chateeass ent, cr ay We 3 Depot Ghatkopar, ete, by respondent Nod, 3. The Flaz Officer Com umanding-in-Chief Headquarters, Wes tern Naval Command Ballard Pier, Near Tiger Gate Mumbai 400 O01 4 Vhe A Superintendent \dimiral Naval Docl skyar rd, Lion Gate Shahid Bhagat Singh Road, Mumbai 400 023 5. The Chief General Manager Naval Apartment Depot, Gun Gate Shahid Bhagat Singh Road, Mumbai 400 023 6. The General Manager Naval Armament Depot Karanja, Uran, Dist. Raigad Maharashtra 400 702 .. Respondents (Mr. Rishi Ashok, Advocate for Mr. BK Ashok, Advocate) ORDER
succinctly, the facts of the case are that the applicant joined the organization of respondent No.6 as Lower Division Clerk (LDC) on 22.05.1972 and carmed three promotions thereafter. He retired on 31.08. 2013, on bets Pee oat Oty rat a "sy Sey oe + aoe fern 12 the age of SUDSIARHE TOT > AOU Bo TES a cleri wey) a * Feeata ta hie cates applicant, the ical and mm appointed eee ey heowrawiane TTatte AG Rese: la aad their postings ere made in various Unis of Nay ¥, LS, Javal Doekyard, Naval Arnmiament Den AA a"
PRALALIRSEE oP CL LE LL LLL LL ELE EEE EEE EE at ak, ee ae a tne cacre controlling authority of clerical cadre, In the Organization where the applicant was working, there is an oluce called "Timekeeping Section (Ti (limekeeping Office)' where the clerical staff js posted on rotation for a fixed period of three years. The oe Was posted mn the said section from 10.02.1999 to 11.02.2002 and 27.05.2000 tO OF 06. 2011. Due to various reasons, he was required to be present at the mustering points in moming as well as in evening and he was required to deal with the workers {industrial staff}; and since the working hours of th industrial staff were more, the applicant, who was posted in the Timekeeping Section, was also required to perform the duties for more hours.
2. in terms of the provisions of Section 59 (1) of the Factories Act, 1948, where a worker works in a facto; ry for more than nine hours in any day or for more than forty.
ate ¢ eight hours in any week, be shall, in respect of overtime oh work, be entitled to wages at twice the ording ary rate of Wages. Section 59 (2) of said Act provides that for the Ty Fe Fog wh Gaetan £9 Bhan a aon Sn ©. Sere open Purposes of sub-Section (1), "ordinary rate of WARES 9 ssrearran whee te titan ae 3 tysian he neans the basic wages plus such allowances, including the Tt is submitted that since the © applicant has worked Lae] for more than nine hours in a da ay and for more than forty- eight hours in a week, provisions of Section $9 of the Act were applicable to him and accordins gly, he was paid rlime allowanceAvages at the rate of twice the ordmary rats of wages in respect of overtime periormed by him in the Timekeeping Section of the } Naval Armament Depot, Karania, However, the overtime allow fance/wapes were paid to the applicant on the basis of - pre-revised pay scales applying clause (i) of Office Memorandum (OM) dated 01.07.1998, whereas, according to him, the applicant was entitled to receive the overtime allowance/wages in terms of clause (i) of the said OM.
4, tas further submitted that since the clerical staff posted and working in Timekeepi ng Section of the Naval Armament Depot, Karanja were paid overtime allowance on the basis of pre-revised pay scales instead of revised Pay scales, they Aled O.A. No.446/2005 befp: re the Murabai Bench of this 7 fribumal, challenging the action of the respondents. However, the said O.A, was dismissed on 05.12.2005, Agerieved, Weir Petition No 4900/2007 was fled before the Hon'ble Bombay Hizh Court Vide x z jktigment dated 26.09.2018, the said Writ Potitio mM AAS applicants therein the tox 2 SV WETE POS af a Vas. & Ad Ne awe ie e arlene Re ne wag ee od { their revised + pay scales for the nericd Hy 4 af the Naval Armament Depot, s {t is further submitted that in accordance with the Section 59 of the Factories Act, 1948 and clause (a) of OM cated 01.07.1998, the applicant was entitled to receive the overtime allowances at twice the ordinary rate of his wages on the basis of the revised pay scales, i.e., pay scales of S™ & 6" Central Pay Commissions (CPCs) for the 7 period he worked. Though the respondents paid the overtime allowances to the applicant at twice the ordinate rate of his _ Wages but the same were paid on the basis of pre-revised 2 pay scales of 4" CPC. Accordingly, basing the judgment of Hon'ble Bombay High Court, the applicant herein preferred representations dated 29.03.2019 and 01.08.2919 with a request to pay the overtime allowance on the basis of revised pay scales. However, vide impugned order dated 282019, the respondents rejected the representation dated 29.03.2019 preferred by the applicant, stating that the matter was examined by the competent authority and it ted thet Court orders are specific to those who he ws nal or en fo on srt have sought relief from the Court and it cannot be orton aaa 4 dy os ses Lat sr Pe the Sees bees, cxXtented to other emnmlovees unless approved by the os eereene SOF ns es re einenln wed he oy SOverdent Since he to abtain redre ess, this £ GQ the instant OLA seekine the fo wing Wiersie "(a) This Hon'ble Tribunal will be graciously Tee o call for the records pertaining to the plisased tk te issuance of impugned orders both dated 31.10.2019 and after going through the legality and validity of Mic same, quash and set aside the impugned order dated 31.10.2078.
a a
(b) This Hon'ble Tribunal will be gracioush pleased to hold and declere that the Applicant is enitiled and eligible to receive the overtime allowance on the basis of revised pay scales Le. Pay Scales of S™ & 6° CPC for the period fom 10.02.1999 to 11.02.2002 and from 27.05.2609 to 07.06.2011, respectively, the period he was posted to work In the Timekeeping Section of Naval Armament Depot, Karanja, Uran.
(c) This Hon'ble Tribunal will be graciously pleased to direct the Respondents to pay the overtime allowance on the basis of revised pay scales i.e. Pay Scales of S° & 6 CPC for the period from 10.02.1999 to 11.02.2002 and from 27.05.2009 to 07.06.2011, respectively, to the Applicant, the period the Applicant was posted to work in the Timekeeping Section of Naval Armament Depot, Karanja, Uran, () This Hon*ble Tribunal will be graciously pleased to direct the Respondents to grant all consequential benefits to the Applicant, ©} This Hon'ble Tribunal will Be gracious ? oS ¥ me it " " 23% , "5 Pye erie pleased to pass such other and further orders as . ~~ * 4 Rr rhe exe PRO a etter d ar deemed Ht in the facts and cireumstances of the case g x . + (©) Cost of this application be awarded io the ee) ~ + Appheant ro & Ne eet ts te ThA. No.32) S020 G. in contrast, the respondents filed their counter afiidavit. Tt is subrnitted that the applicant F Peleg t the ambit of Section 64 of Factories Act, 1948 and whose basic pay is more than Rs. 1600/- per month in pre-revised scale. It is further submitted that even though the applicant S entitisd to overtime allowance at double the rate in termes af Section S9 of the Factories Ast, 1948, the same is admissible as per the old pay scales notiona ally determiner in terms of clause (iif) of the OM dated 01.07.1998.
7. The respondents defended the impugned order by reiterating that the Court orders are specific to thase who sought relief from Court and it cannot be extended to other employees unless approved by the Government.
8. Learned counsel for applicant unhes ahnogly argued that the applicant is entitled to overtime allowance in terms of clause (i) of the OM dated 01.07.1998 on the basis of revised pay scales for the period he was posted in timekeeping section, whereas the re espondenis are applying Tey BOOSIE scan onan 4m os Phyeee sa Noeaoou2007 was specine to the apphicants therein and Eas) O.A. Nose /2oge since the applicant herein was not party in the said case, he cannot sesk any relief!'
10. Referring to pare agraph (6) of the counter affidavit, the learned counsel for respondents argued that the applicant retired in the year 2013. He Worked in Timekeeping Section in 1999 and theresfter from 2009 to 2011 and if at all the applicant was aware that he had done overtime and he was entitled to double the rate of WALES, he should have claimed the overtime wages during the material time and not afer lapse of 10 years. Hence, it js argued, the O.A. deserves to be dismissed, as the applicant filed the OLA. beyond limitation of one year, as provided in Section 21 of the Administrative Tribunals Act, 1985, Pal li, [heard the learned counsel for the parties in detail and perused the material placed-on record, Rie = 5 de one " La ms om yeaa 2 Qos ig. The matter centres arom the OM dated 01.07.1998, more pericuany is clauses () & GH). For Susy reference, both the clauses are reorochaced hereinbclow:
geen "ey Trrfoweas af Ya decoded wet ey hy fhe hea UW? The employees of Industrial estanishimenr +y. ses PPLE YS nae Yee Peri een aes 3 . » > Who are Workers" within the Wiearnine of ad Sra A at ay ot.
VRS Hs ax chor} aN AY, u rey iS af Overtime ANowsnce fx att OVA, Noga/ scar the Act on one basis of the revised pay scales, As already stated in the Ministry of Defence OM Nod42yV87/D (CID dated 11.09.87 and OM No.I4Q8e/D (Ci) dated i4.O1.88, they are entitled ty Overtime Allowance ently at the time rate, for werk done between the prescribed working hours and upto 48 hours a week, oon ayorees oe Pa oye (u} XX XX XX XX
i) Those categories of "Workers" who come within the scope of section 64 of the Factories Act and whose basic pay is more than Rs.1600/- gan. in the pre-revised scales are eligible for OTA in terns of Ministry of Defence OM No. i4 (2V76/D (Civ dated 25.06.1983. Accordingly, OTA will be paid to them on the basis of old pay scales notionally determined. They will also be paid OTA for overtime work done between the prescribed duty hours and upto 48 hours a weck only at time rate calculated on the basis of old pay scales notionally determined. They will be entitled to OTA at double the time rate calculated on the basis of old pay scales, notionally determined, for work beyond 48 hours under the orders dated 25.06.1983 referred to above. This will not entitle anyone who js not covered by 25.06.1983 orders to clair OTA."
{emphasis supplied) 14 Te Lean . ; Mesaiebear $ant ih sy tivornt Ja Merrapieautd [3. This not under dispute that the applicant is "worke:
Bn ee wewry fey en eh a ey ee roy Pr geek Pere whe won Dereon ane therelors, entitled to payment of overtime allowance in YR wy tt ene SE a Rootastos Aes TAA 8 + yen Pian, at SOR CHOM OS OY Lac raclorics Ach 148 As referred Bin wha eT i Loe "ROT ap Tye? PODS weaseldecn iy above, clause 4) of the OM dated 01.07.1998 provides a < 4 Le 4 « : ge gy ae aye fh MEER Ty ses FX sb ory os al LOOSE AW FE te cheney VER PP Noe rey ean A pa oyt tha that such over AU QUO RCE, TO TOTS OF Secon $9 of the at oo wy tw par s as om £ reed Ey shrek ee ; ree Sea a "eg A a3 Ao on Ss mes $e i ot ', ay @® SF a cease ma "4 ee ver 43 fos 5 Cj "wa Pood eet 5 "beet 3 ed "7 cae) %. Kee ror pete, be ost ga ae AS, rood «ped Mang uw r wer! Ga o a cod z iva < Zo » me cf obs ea eva D fs S ' Oh 3 a ~ af Qe rT los yb tem Nod Fe ° 4 res als:
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ection 64 of .
scope of § ?
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é ~ per tionth more than Rs. 1600 y is pa S, Meaning seale '.
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conditions have to be satisfied by the catego thin the scope of Section 64 of the Factories Act, 1948 oy OMe Wi § concerned nist c or 4 "{a} The worke:
and a > is Fas Pawo a oo tee o <3 "Ny SOR ak Ter . roe *, ; Aik.
a puny, Section 64 of the said Act. However, the respondents applied clause (iil) of OM dated 01.07.1998 to the case of scales, without going into the question as to whether hs was the worker, within the ambit of Section 64 of the ig Learned counsel for respondents contended that the Court orders are specific to those who have sought relisf from the Court and it cannot be extended to. other employees unless approved by the Government and this is the defence taken by the respondenis in support of the impuened order. For easy reference, the. impugned order reads as under:-
lL. oR io your representation dated 29 Mar 2019 regarding overtime allowance in the revised pay scale and arrears jor period in time keeping section fom 10 Feb 1999 to 11 Feb 2002 & 27 May 2009 to OF Jum 2011.
tg we ae Ne wees ke CHAN he yraved by ¢ If ULE VG LUELLA ue ah a ae et Peers ne tata be fat & bene font ot se En 07 hea ast co) 3, In view of above, YOur repress accordingly disposed off"
mi li? lt is stare decisiy that in terms of Agt Court shall be binding on all Courts within the terdtory of India. This power is vested with the Hon'ble Supreme Court only, When such is the legal position, the respondents cannot, on their own, imply that the judgment delivered by the Hon'ble Bombay High Court was restricted to the applicants therein only and is not applicable to the applicant herein.
18. In paragraph 22 of the judgment, the Hon'ble Bombay High Court has observed as follows:-
"eg, That apart in Paragraph Nos.4.8 and 4.9 of the origin al application instituted by the petitioners before the CAT, they have clearly pleaded that clarks like them who have been post ved in the time keeping section of the Nayal oe xyard or at the office of Gener Naval Arcaament Depot, Mumbai have ag overtime & all owence on the basis of ¢ 5 * tsi i.
B that the ¢ Nav al Do 5 ee ety ee be ed Deed Ute : :
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20. Keeping the observations made by the Hon'ble High Ja Court in Writ Petition N (2007, Lam of the firm view that the applicant herein is similarly placed to the ongs before the Hon'ble High Court, as they are "worker"
within the meaning of Factories Act, 1948 and, therefore he is entitled to payment of overtime allowance in terms of Section $9 of the Factories Act, 1948, coupled with the provisions contained in clause (i) of the OM dated OL,07.1998, Zi, Coming to the argument of learned counsel for respondents that the O.A. is hit by limitation and hence, deserves dismissal on this ground alone, it is noted that immediately after the judgment was delivered by the Hon'ble Bombay High Court on 26.09.201 8, the applicant preferred representation on 29.03.2019 followed by another on 01.08.2019. Howe ver, the respondents rejected the representation dated 29.03.2019 side the impugned Y order dated 31.10.2019. The same is chal llenged by filing the instant OLA. on 06.01.2020, seeking to pay the overtime allowance in the revised pay scale and arrears thereof, A rk. nue 13 2025, "x he Se A cxnergs gehen A Pee soso Orn O2.12.23 hen Ws Ue. Was closed ROOF x 3 + + oy a 5 x OPGers, {GaTHEd Courses! Bar fF SSDOR Gan TS teolk: two ck: EY at : + % =~ m 3 + Tite a TTA are Tyee te eet yss x TREO tims =o PrOGnce Sone Bi cements Ren SUPDATE Ot bis t argeament that the OLA. is hit by Heaitati tht ts a nana Ae Prey.
.... Beane Wee, pes rt @) $8 8 Rathore v. State of Madhya Pradesh, MANU/SC/002/1996 MS
(i) Jagdish Lal & others v. State of Haryana & others, MANU/SC/0596/1997, Gn} Rushibhai Jagdishbhai Pathak vy. Bhavnagar Municipal Corporation, MANU/SC/06 59/2022:
and
(iv) State ef Tamil Nadav, Seshachalam, MANU/SC/7932/2007,
23. On perusal of the aforementioned fadgments, it is ostsusibly clear that the facis in those cases are surely diferent to the ones in the present O.A. The Apex Court in S S$ Rathore's cass (supra) has held that repeated representations do not give any fresh cause of action to the ery e vo cs we 35 hy aye Py eas os eee wate ard ¢ ' erp eb cs sugeany, Waereas in other three cases, referred to above, the present Case, ibis seen: imme: diately after the judgment was clelin avect ayy by W Y etn > fe orm say Ook Meare aes' CEM yeree 2 ¥ LEX at JORG Y BRA LAE can a3 Sp AS Ne ee 3 cant ' PA TSS gy + Sey Aovert Perey vit 5 Yy oo SONS GUIS, TRO applicant 4 TORSESeNtalion On 3 at AP We wae iy ee * * "
VIG Z0TE The respoadents, however, i seems, have Yeh Ass ~ r yrs e SO FR AN saspey dee gp Gea WHO cau the one made on 29.05.2019. meaning $3 OTs.
GA. Nuas/eose thereby they themselves have not entertained the latter one, probably for the reason that the same is repeated one, Tn ather three cases, the learned counsel for respondents argued, the Hon'ble Supreme Court hes de: alt with the issue of limitation or a i Stale claim, Tn the © present case, the issue of limitation has alre ady been dealt with. Tt is not disputed that the re Spondents themselves took substantial tira to consider and decide the representation. Thusly, the objection raised by the respondents regarding limitation is o overruled,
24. Tam fortified by the law laid down by the Hon'ble Supreme Court in State of Uttar Pradesh & others v. Arvind Kumar Srivastava & others, (2015) 1 scc 347, wherein it has been held that the normal rule is that when a particular set of employees is given relief by Court, all other ide entically situated persons should be treate ed alike by extending same benelil since not doin HE §o would amount of to discrimination and be violative Constitution. Relevant exe verpt of the said jadement reads thus:
a ' re rhea aticgye ormal rule is that when 4 particular . eat Cg giver refier® by the Court, all : oS Ons eee L to b ¥ violative 3 ds to be applied in i service matt emp phatically as the service firispradence valved Pare A es a em Mad similarly situated persons should be treated similarly. Therefore, the normal rule would be merely because other mee iy Siuated persons did not approach the Court earlier, they are not to be treated differently, 22.2, However, this principle is subject to well recognized exceptions in the form of laches and delays ag well as acquiescence. Those persons who did not challenge the wrongful action in their cases anc acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court eartler in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim cs 22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in vem with intention to give benefit io all similar! ly situated persons, whether they approached the Court or noi W wh such @ proncuncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can ceocur when the subject reatter of the decision <4 touches upon the policy matters, Hke scheme of P eens! on and the like {see KC, Sharma & Ors. y. Union of India (supra). On the other hand, if the sad the cr oeee netore the Court and ~ . ot . yt y found out from the tenor and language o ™ x he ey a, ee ris Sirsa st fe yk o> fhe pac aden Ben, those who want fo get i i f yf a xe benefit at sent extended to them shall have te on & eae a 'anenmancl me, Peeasss' ~ -
OA Nae feos satisly that their petition does not suffer from either laches and delays ora quiescence."
es Pt 25, In the totality of facts and circumstances of the case ¢ ye the OLA. is allowed with the followin ng directions:
(1) The applicant is entitled to reosive the overtime allowance on the basis of revised pay scales during the time he was posted in the Timekeeping Section of Nava 1 Armament Depot, Karanja, Uran, ie., from 10.02.1999 to 11.02.2002 and 27.05.2009 to 07.06.2011. |
(i) The respondents are directed to caloulate the differential amount and release the same to the applicant, within a period of three months from the dats of receipt ofa copy of this order, Phere shall be no order as to casts.