Central Administrative Tribunal - Cuttack
C Rout vs Defence on 4 February, 2020
LOO SAD SOUS
LAWS OS BO sa DT P2078
i 'A No, a60/ HiZ/2016
&
QANO.260 /413 / 2018
Date ofReseryver G27. 2020
DateafQrder: oh. sg, @eko
CORAM:
HON HLE MR. GOKUL PCHAND ISA PATI MEMBERLAY
HON'TELE MRSWARUP P RUMAR MISHEA, MEMBERG)
I PV LANG 266 fA
Raj Kishoare Patel, aged al aut 45 years.S/o, Late Pitambar Patel, working
as [AWM SMM, Per 'ee 2 243, OnNGSISS7/4, OFBL Estate, Ordnance
Pactary, Badmal, Belangir, Qisha,
Applicant
By the Advecate{s}-M/s.D.P.Dhalasamant
NM Reaut
"VERSUS-
Union of India represented through:
i. The Secretary, Ministry of Defence, Deptt. Of Defence Prodn. & Supplies,
South Block, New Delhi-T10 O11.
2 ae DGOQP & Chairman, Ordnance Factory Board, 10-4, Sahid Kudhiram
Bose Koad, Kolkata-700 001,
3. The General Manager, Ordnance Factory, Badal, Bolangir, Odisha.
Respondents
By the Advocate(s}-Mr.$.Behers
bo
In DANG 288 fALT PROT 6
Sh.Chitaranian Reat, aged about 37 years, S/o. ShUmech Ch.Qour
AU NaS lib', Types Wh 2 znd ase Grdnance Factory, Badal Estate,
POQ-Hadinal, [ist-folangir, PIN-767 O76, presently working as junior
Works Manager, Ordnance Fa tory, Sadmal, Bolangir, Gdisha,
Applicant
By the Advocate(s}-M/s.D.P Dhalasamant
Ss
f
-VERSUS-
Union of India represented through:
iL The Secretary, Govt. OF India, Ministry of Defence, Rakhsha Bhawan,
New Delhi-t10 O11. . ,
2. DNrecter General Ordnance Factory, Ministry of OGefence, Ordnance
Factary Board, 10-A, Sabid Kudhiram Rose Road, Nalkatas?00 O01.
na
Union
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The General Manager, Ordnance Factory, Badmal, Balangir, Odisha
DY wad Fo
wResnondents
x x x. RZ ¢ aes roe est
by the Advacatals }\MrG.R verma
in DANoS60 fig (2016
Shabhudatta Mishra, aged about 40 years, SfoShiNbakar Mishra,
AtLQrNodsos?, Tyee-T¥, 5 Phase, Ordnance Factory, Badmal Estate,
PO-Badmial, Bist-Rolangir, PIN-767 O°0. presently vee as juminr
Works Manager, Ordnance Factory, Badmal, Balansdr, Qdish
oo PPC ATL
By the Advacate(s}-M /s DLP Dhalasamant
ON an
NOME Boat
"VERSUS-
ofindla represented throu gh:
The Secretary, Govt. OF India, Mintatry of Defence, Rakhsha Bhawan,
New Dely-fLi0 on.
INrector General Orimance Factery, Ministry af Defence, Orimance
Factary Beard, 1Q-A, Sahid Kudhiram Bose Road, Kalika en ood.
The General Manager, Ordnance Factory, Basmal, Bolangir, Odisha.
Respondents
By the Advecatets}-Mr. AK Mohapatra
in GANGS
i. Mr.Mans a Sumar Hota, aged ahont 42 years.S/o Shri
Riswakesharl, QrNo32i40/2, OFBL Estate, Ordnance Factory
Hadmal, Bolangir, Qdisha,
2. MrNiroj Ranjan Das, aged about 42 years, S/oShri late Suresh
Chand Gash, QrNaS3277, Type-ll, QFSL Estate, Ordnance
Factory Badmal, Bolangir, Odiaha.
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'tot
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fa
Sh.satya Narayan Tripathy, aged about 41 years, S/o. Sh.Nbakar
Tripathy y, QeNo.Sio1d, Type, OPBL Estate, Ordnance Factory,
Badmal, Bolangir, Qdisha.
~
& Shri Udit Kumar Pate reson about 44 years/p.
Sachidananda Patel, gS4 Phase-H, OFBL
Ordnance Factory I Padmal Badal Bolangir, Odisha.
in MrDebasish Nayak, aged about 43 years, So. Sh. Shaghat Nayak,
OPBL Estate, Ordnance Factory Radinal, Badmal, Bolangir, Gdisha.
& ShSanat Sumer Saheo, aged about 42 years, 5/o. Late Shri Trinath
Sahu, OFRL Estate, Grdnance Factory Bacdimal, Badmal, Bolangir,
Odisha.
i>
tae
MrPragyan Kumar Rath, aged about 41 years, S/o, Late Umakanta
Rath « Grit Na. 333 i. yt YPSrk tt i, OFR i. SES tS, Crdran ee Ps cfory
Badmal, Bolangir, Gdisha,
5 8 ShSasanka Sekhar Kay, aged about 41 years, S/o. Late Hare
= Krushna Kar, OrNo 32000 /OLDOrNoOFRL SEALED, Ordnanes
Factory, Badal, Holang guy, Odisha,
3, Mrvipak Chandra Pate 1 aged about 44 years, 3/0. Sh. Bedyvyas
Patel, QrNoS2oee, Type-lil, OFBL Estar . Ordnance Factory
Badeial, Bok angir, Qdisha,
iB. MrAshok Kamar Rehers, aged about 40 years, 3/oShSucdam
Prasad Behera, Qr.No.31055/2, QFBL Estate, Ordnance Factery,
Badmal, Balangir, Odisha.
1. MeSunit Kumar Pandey, azed about 34 years, Sa. ShLate
Srikanta Pandey, QrNo312} &, Pype-Ti OEY, Estate, Ordnance
Factory, Badmal, Rolangir, odigha,
a
Bs ae Seam od ae Hy a Dash ves eda aboRL |S years, S/o. Late Tripurari
fe, Badmal, Bolangir.
Applicants
by the Advocate{s)-M/s.D.P. Dhalasamant
N.MURout
ee Die
-VERSUS-.
Union of India represented 4 rough:
i. The Secretary, 6 avt. OF India, Ministry of Defence, Deptt OF Defence.
Production & Supplies, South Block, New Delhi 110014
&. The DGOF & Chairman, Ordnance Factory Board, 10-4, 'Sahid Rudhiram
Base Read, Kolkata-700 001.
3. The General Manager, Ordnance Factory, Badmal, Bolan wir, Odisha,
Respondents
By the Advocate(s}-Mr.S.B Mohanty
ORDER
LOWARUP KUMAR MISHRA, MEMBERS Ty:
in all the Original Applrations, legality and validiny of order No3601 PE ater SLIZ2015 {A/10)}, whereby the promotion of the applicants in the erstwhile Asst. Foreman {Tech/Chem). and JWM(CPech/Chem) has been deferred from 28072010 te 2212.2015 consequent upen publication of the revised seniority Hae of Chargeman {Tech/C her my} fram OLO1L2009 onwards upto = fTe GLOLZOIS vide OFB Letter No.3? SS CH Te ch(ChemSNTY 2015 /Par NG dated OF GA 2018, 3 3 3 nN 3 3 Ba 3 $ 3 4 & Since the point to be decided emerges oat of an identical cause of action, all the above mentioned four OAs are being disposed of through this common order, For the sake of reference, the facts narrated in OA.No.260 /409 /20186 are being referred to.
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3. Jn the said O.A, the applicant presently working as [WM/MM kas sought for the following reliefs:
Please direct the respondent to consider and call for the records of the resy sondents pertaining to ihe impugned order of the Respondent No.2 vide order No DWM i5/Tech(Chemical) /PEP/GB/2015 dated = 22.1 2.2018 5 deferring the effective date af the promotion date of applicant wel 28.07.2010 and the consequent factory orders of the Respondent No. FO Part-If No26L dtd, 31/12/2018 ta defer the regular premotion fate of the applicants from 28.07. 2010 to 22.12.2015 and set aside the same and pass such other or further order or orders in the circunistances of the case aynd in the Interest of justice, if} Pass any other further order or orders which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case, oo 'eal
4. Shern of unnecessary details, it would suffice to note that challenging the legality of arder dated 22.12.2015 whereby promotion of the applicant herein is claimed to have been deferred from 28.07.2010 to 22. 12.2015, 2 number of Applications had been Aled before various Benches of the Tribunal, one of those being O.A.No, 274 of 2016 ; before the Central Administrative Tribune NL, Principal Bench, New Deihi. Itreveais from the record that the CAT, Principal Bench had passed an order dated 27.05.2016 in PTL /1S36/2014 to as the following effect:
"In this wew of the matter, no direction can be issued In these PTs. However, the applicants are at [berty to file their respective OAs before the apprapriate jurisdictional benches, and such OAs after completion of pleadings shall remain He aver HI the disposal of OA No.274/2016 pending hefare PR"
Backed by this, the applicants in the above four OAs haye approached this Tribunal seeking reliefs, as referred to above, 8, O.A.N0.260/409 /207 G came up fer atimission on £2.06.201 6, when this Tribunal passed the folowing orders:
"Heard Mr.D.P.Dhalasamant, learned counsel for the applicant: and Mr&Behers, learned SCGPC, Admit. Issue hoUce to respondents returnable in four weeks. However, it is directed that this Matter, on completion af pleadings shall lie over ti the disposal fo QANo?74 of 2016 pending before the CAT, Principal Bench, As an interim MCAsSure, statis Guo in respect of the applicant shall be Maintained until further erders",
7. 'This interim order is in force as an date. 8 Respondents have filed their counter apposing the prayer of the applicant. However, hy filing an additional counter, the respondents have brought to the notice of this Tribunal order dated 04.04.2019 passed by the CAT, Principal Bench, dis posing of CANo.274 f2016, % We have heard the learned counsels for the respective parties and perused the records, In the fitness of things, the relevant part of the order as passed in the said 0.A, is extracted hereunder:
Wee
3. The applicants were originally appointed as Chargeman Grade-H {Electrical} during the years 1998-2002, as per rales. The respondents, vide the Annexure A-2 order dated 28.07.2010, on the recommendation of the Supplementary DPC, promoted the applicants and others to the post af Assistant Forernan (Electrical) with effect from 16.08.2010, However, vide Annexure A-3 Corrigendum dated
02.08.2010, the respondents have changed the date of Promotion frem 16.08.2010 to 30.07.2010. While the applicants and others were working as Assistant Forman {Electrical}, in view of the implementation of the 6% Cpe recommendations, the respondents again vide the Annewure A-4 dated 14.02.2011, merged the post of Assistant Foreman (Electrical) wherein the applicants were working, with the post of funior Warks Manager (Electrical).
ria ne . However, while the applicants were working as Junior Works Manager (Electrical), the respondents revised the seniority list of Chargeman {Technical/Electrical) from OL.OL.2009 onwards upte OLOLZ018, vide letter dated O7.O8.2015 (Annexure R-1 to the compliance affidavit Hled n behalf of the respondents on 22.01.2019), after following sue procedure, Le, after calling for objections from. the applicants and others, and in view of the consequent Review DPC recommendations, have issued the impugned Annexure A-1 letter dated 22.12.2015 postponing or deferring the date of promotian of the applicants from the original date of 30.07.2010 to the dates mentioned In the sald proceedings.
Agerieved with the said proceedings dated 22.12.2015, the applicants Hled the instant OA.
s Heard Shri U. Srivastava, the learned counsel for the anplicants and Shyt Gyanendra Singh, the leaned counsel for the respondents and perused the pleadings an record.
Shri U. Srivastava, the learned counsel appearing far the applicants while reiterating the aforesaid [xcts submits that once the respondents have promoted the applicants against the post of Assistant Foreman (Electrical), diverted from the Mechanical discipline to Electrical discipline by invoking Note 15 of the Indian Ordinance Factories Group 'C' supervisory and Non-Gagetted Cadre {Recruitment and Conditions of Se vice) Rules, 1989 (SRO 13-E} (Annexure R- 1 to the counter filed by the respondents), and after the applicants worked in the said promotional posts of Assistant Foreman (Electrical), which were later re- designated as funfor Works Manager (Electrical) for ail these years, cannot defer or postpone the promotions of the applicants to any subsequent date, The learned counsel further submits that if amy other category of employees deserves promotion fram a particular date, in view of any change in the rules or circumstances, they can be premoted as such by creating supernumerary posts or by adjusting them against any future vacancies, but deferring/postponing the promotions given to the ayplicants way back in the year 2010, Is iflepal and arbitrary.
The Jearned counsel further sabmits that once the applicants ha ave physically worked in the promotional posts from 20.07.2010 tl the date of issuance of the impugned erder, praposing ta refix their pay in accordance with the deferred date is Wegal, arbitrary and violative of the
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principles of the natural fustice, as the said promotions to the applicants were conferred by the respondents themselves and that the same were not due to any _ misrepresentatian or frand played by the applicants, The learned counsel for the applicants placed heavy reliance on the judgment of the Hon'ble Apex Court in Kusheswar Nath Pandy Vs. State of Bihar and Others (2013) 9 SCR 593 and of the Hon'ble High Court of Orissa, Cuttack In WLP. (C} No, 4652/2017 in Union of tndla and Others Vs, R. Srinivas and Others decided on 26.07 oly, On the other hand, Shri Gayenenra Singh, the learned counsel for the respondents would submit that once the -
applicants admit that the respondents have empowered to inveke Note 15 of the Annexure R-1 Rules 1989, in their favour, they cannot raise any objection when the respondents inveked the same Note while setting right the injustice done to the Mechanical Wing employees, The learned counsel further submits that the applicants having not challenged the revised seniority lists of Chargeman (Technical /Chemical / Electrical} as on 01.01.2009 onwards upto OL0020138, which were issued after calling for objections from the applicants and others and after considering the same, and basing on which the inipugned order was passed, cannot question the consequential action of issuance of the impugned order. Once the applicants accepted their seniority position, as per the revised seniority list of Chargeman dated 07.08.2015 as on 01.10.2009, Le. the date prior to their promotion to the post of Assistant Foreman (Electrical), the OA itself is not maintainable as the impugned order was passed strictly basing on the said revised seniority list The learned counsel further submits that the entire process, Le, revising the seniority list and deferring the dates 'of promotion etc. was carefully undertaken by the Task Force, which was specifically created and that no employee is discriminated in any manner in the whole process and accordingly prays for dismissal ofthe OA.
As rightly submitted by the learned counsel for the respondents, the applicants have not challenged the revised seniority Ust of Chargeman as on 01.01.2009 issued on OVUB2015 basing on which the promotions of the applicants and others were reviewed and acecardingly appropriate dates af fresh promotions were assigned to the Ts.
fore es tt applicants and to others. Further, ance the power of the respondents to > invoke Note 18 of the 1989 Rules, is not disputed, the respondents action cannot be found fault with, as Une af lcm yes "tall fo show violation af any other rule or existence of any arbitrariness in respect of the applicants or any other Individual employee.
However, we are in All. agreement with the submission of the leant ned counsel for the applicants that the promotions to the post of Assistant Pereman(Electrical) now re- designated as junior Works Managers {Electrical} were given to the applicants with effect from 30.07.2010 by the respondents . themselves, and that there was no misrepresentation or fraud played by the applicants and that the applicants having actually worked in the said promotional posts from the date of said pramotion eW the dste of deferment or postponement of the same, the respondetits cannot resort to any recovery consequent to the dsefermant/pestponement of the nromotions of the appheants, On our enquiry about the stand of the respondents on the said issne, the learned counsel For the respondents today produced a letter dated 25.00.2019 written by Director/NG for Director General, Ordinance Facturies addressed to the General Manager, Ordnance Factory Muradnagar wherein the was categorically stated that "although, relevant rules regarding pay fixation wauld inevitalle have to be applied to the case of the applicants, whose date of pramotian to JM have been postponed, the respandents do not intend fo make any recovery of payments already made to them aad hence, the earnings received by them for the period which they had served as AVMs, will not be affected In any manner', The ficts in Kusheshwar Nath Pandey's case {supra}, on which the applicants counsel has placed reliance, are not applicable to the facts of the present case, Simdlariy, the decision of the Hon'ble High Court of Orissa in Ro Srinivas and others {supra} weld net suppert the contentions of the applicants, Hence, we don't find any merit in the challenge made to the impugned arder, However, in the circumstances and for the aforesaid reasons, the respondents are directed not to affect any recoveries In pursaance of the lapagned orders of the OA, in terms af thelr own letter dated 25.01.2019.
Aecerdingly, the OA is dis sposed of yen iQ. Since the peut to be decided! herein has already been set at rest, we do not Nad any justifiable reason 'O make 8 departure from the view already taken by the CAT, Principal Reneh, Following the ratin decided b y the CAT, 2 Principal Bench, we Rald chat the impugned order which is the subject matter of challenged herein, needs no interference by this banal However, the Fespandents are directed pot to effect any recoveries in Pursuance of the impugned orders in all ch e four OAs, in terms of their awn letter dated Re SS. 2019, Accaraiy Bly, al the OAs are ¢ iSpased af No caste.
ed LL Conse uenthy, the Mas iF any, pending in all the OAs, stand disposed of TTS aeanmaeanatintenw enue estan coat TRA RAN nai tne ao