Central Administrative Tribunal - Ernakulam
Ms Madhu vs M/O Defence on 31 August, 2017
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00120/2014
Thursday, this the 31st day of August, 2017
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mr.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
M.S.Madhu,
S/o.Sri.M.S.Radhakrishnan,
Electrical Fitter (High Skilled-II),
Naval Aircraft Yard, Kochi - 682 004.
Residing at Chennanattunikarthil House,
Pattanakkad P.O., Cherthala, Alappuzha - 688 531. ...Applicant
(By Advocate Mr.O.V.Radhakrishnan,Sr. with Mr.Antony Mukkath)
Versus
1. Flag Officer Commanding-in-Chief,
Southern Naval Command, Kochi - 682 004.
2. Commodore Superintendent,
Naval Aircraft Yard, Naval Base,
Kochi - 682 004.
3. Union of India represented by its Secretary,
Ministry of Defence, South Block,
New Delhi - 110 001. ...Respondents
(By Advocate Mr.N.Anilkumar,Sr.PCGC [R])
This application having been heard on 22 nd August 2017, the Tribunal
on 31st August 2017 delivered the following :
ORDER
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER The applicant has approached this Tribunal being aggrieved by the withdrawal of his ACP/MACP benefits reckoning 25.3.2003 as his date of initial engagement on casual basis. As per his pleadings, he had undergone .2.
Apprenticeship Training under the Base Repair Organization, Cochin (later renamed as Naval Ship Repair Yard) during the period from 1.1.1986 to 30.9.1987 and had passed the prescribed test conducted by the National Council for Vocational Training held in October, 1987. He was thereafter engaged as Electrician (Skilled) on casual basis with effect from different spells like from 10.4.1989 to 30.6.1989, 4.7.1989 to 29.9.1989, 18.12.1989 to 16.3.1990 and from 20.9.1990 to 19.11.1990. He states that the method of recruitment for regular posts of Tradesman (Skilled) Electrician, as per Annexure A-4 Recruitment Rules, was absorption of ex-Naval Apprentice failing which by promotion and failing that by transfer and failing both by direct recruitment and failing all by transfer on deputation/re-employment of ex-servicemen. Relying on the aforesaid Recruitment Rules regarding his eligibility to be considered for appointment he and three others filed O.A.No.431/1991 before this Tribunal which was disposed of by way of Annexure A-5 common judgment directing the Respondent Nos.1-2 to consider the applicants for regular employment to the post of Tradesman (Skilled) Electrician which arose after 29.12.1987 considering them as Ex- Naval Apprentices entitled to first preference under the Recruitment Rules. By way of implementation of Annexure A-5 judgment the respondents issued Annexure A-6 appointment order to the applicant with effect from 1.10.1993. Thereafter he completed probation and was later promoted as Electrical Fitter (Highly Skilled) with effect from 3.4.2010. In the meantime, persons belonging to Highly Skilled Tradesman of his ilk filed O.A.No.548/2009 before this Tribunal seeking to count the casual labour service they had put in for the purpose of annual increments, ACP etc. and .3.
for other consequential benefits, adding to the regular service. O.A.No.548/2009 was allowed vide Annexure A-9 dated 5.2.2010, the operative portion of which reads as follows :
"10. In view of the above, the O.A is allowed. It is declared that all the applicants and other similarly situated Industrial Workers are entitled to reckon the casual services rendered prior to regularisation for the purpose of working out the period of service for the purpose of ACP. If, after taking into account such casual service, the applicant and other similarly situated are eligible for consideration, that cases shall be considered by the respondents and the benefit of ACP shall be made available to those who are found suitable for the same. This drill shall be performed within a period of three months from the date of communication of this order. No costs."
2. Subsequently, by way of complying with Annexure A-9 order of this Tribunal Respondent No.2 issued Annexure A-10 order and thereafter Annexure A-11 order with the following remarks :
" Consequent on implementation of Hon'ble C.A.T., Ernakulam Order dated 5th February 2010 in O.A.No.548/2009 and HQSNC letter CS 2695/43/1371 dated 29th July 2010 the casual service has been regularized after condoning the artificial breaks from the date of initial appointment with effect from 10.4.1989 with all consequential benefits including the benefits under ACP/MACP Scheme except seniority."
3. On 16.9.2011 Respondent No.2 issued Annexure A-14 list antedating the first ACP of the applicant from 1.10.2005 to 25.3.2003. Subsequently by Annexure A-15 impugned communication dated 20.6.2012 the following order has been passed :
" ........(e) It is evident that though the individual had been engaged on casual basis, the same has not been continued till appointment on regular basis. Since the appointment of the individual as Electrician (SK) has been made against the quota for ex-apprentice on the basis of court directives, the past spells of service which occurred 03 years prior to regular appointment, such casual engagement cannot be linked as continuous. Hence the period between 20 th November 1990 and 30th September 1993 cannot be treated as break and condoned for the purpose of regularization of casual service rendered during April, 1989 to November, 1990. Moreover, the fact regarding casual engagement of the individual has not been brought in the court case and therefore, no directive in this regard has been made in the court directives.
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(f) In view of the above, it is intimated that the individual is not eligible to be considered for regularization of casual service rendered from 10th April 1989 to 19th November 1990 with intermitted break by treating the period of 1042 days from 20 th November 1990 to 30th September 1993 as break for condonation."
4. Applicant submitted Annexure A-17 representation to Respondent No.2 pointing out that Annexure A-15 was against Annexure A-5 order of this Tribunal wherein it was clearly directed that Ex-Naval Apprenticeship are to be given first preference in absorption in the direct recruitment vacancies of Tradesman and requesting for review of the case for condonation of break occurred in regularisation of his casual service. Annexure A-17 representation was rejected by Annexure A-20 communication. Applicant alleges that Annexure A-15 communication was not preceded by notice of personal hearing of the applicant. He further states that Annexure A-19 and Annexure A-20 communications are based on a misconstruction of Annexure A-4 Recruitment Rules and therefore they are clearly illegal, arbitrary and discriminatory.
5. Applicant prays for the relief as under :
1. To call for the records leading to Annexure A-15, Annexure A-16, Annexure A-19 and Annexure A-20 and to set aside the same.
2. To issue appropriate direction or order directing the respondents to restore Annexures A-11, A-12, A-13 and A-14 and to make available all service benefits flowing therefrom to the applicant expeditiously and at any rate within a time frame that may be fixed by this Hon'ble Tribunal.
3. To issue appropriate direction or order directing the respondents to disburse the arrears of pay and allowances due to the applicant consequent on the restoration of Annexures A-11 to A-14 and the amounts unlawfully withheld based on Annexures A-15, A-16, A-19 and A-20 within a time frame that may be fixed by this Hon'ble Tribunal.
4. To issue appropriate direction or order which this Hon'ble Tribunal deems fit, just and proper in the circumstance of the case; and
5. To allow the above O.A with costs to the applicant.
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6. The O.A was resisted by the respondents by contending that the applicant never had a continuous engagement of casual service immediately preceding his regular appointment vide Annexure A-6 order. Respondents state that his date of first engagement as casual labourer was followed by long breaks and finally he had a break of 1042 days prior to his regular appointment and hence the date of his initial engagement as casual labourer cannot be reckoned as regular service for the purpose of MACP and other benefits.
7. We have heard Shri.Antony Mukkath representing Shri.O.V.Radhakrishnan,Sr. advocate, for the applicant and the Senior Central Government Counsel for the respondents. Perused the record.
8. The short question to be considered in this case is whether the break occurred between the date of applicant's discharge from last spell of casual engagement and the date of regular appointment vide Annexure A-6 has to be ignored as artificial breaks for the purpose of counting the length of service required for claiming the financial benefits such as ACP/MACP etc.
9. Applicant states that he was given regular appointment vide Annexure A-6 in terms of Annexure A-5 order of this Tribunal wherein his engagement as Ex-Apprentice of Naval Ship Repair Yard was taken into consideration in terms of Annexure A-4 Recruitment Rules then prevailing. According to him, in the impugned communication the respondents have treated him as an Ex-Apprentice entitled to be absorbed against vacancies .6.
earmarked for 60% vacancies in the post and hence he could not have any claim for post stated to have been filled by Direct Recruitment. Learned counsel for the applicant pointed out that the afore said stand of the respondents that he has been appointed against 60% of the vacancies earmarked for the Ex-Apprentice is not based on Annexure A-4 recriutment rules but is based on the subsequently notified recruitment rules which is inapplicable to his case. Learned counsel argued that this Tribunal vide Annexure A-9 order had made it clear that casual service rendered by the Industrial Workers prior to their regularisation has to be reckoned for the purpose of working out the period of service for the purpose of ACP. As there is a clear direction in Annexure A-9 order that it is applicable to similarly situated persons the applicant also is entitled to the benefits of Annexure A-9 order and hence the respondents ought to have ignored the artificial break between his casual engagement and regular appointment, the counsel argued.
10. Referring to Annexure R-1 and Annexure R-3 orders of this Tribunal and Annexure R-2 judgment of the Hon'ble High Court of Kerala (confirming Annexure R-1order) learned Senior Central Government Counsel submitted that the unduly long breaks cannot be considered for condoning as artificial break for the purpose of reckoning the period of financial upgradation from the date of initial casual engagement. In Annexure R-2 judgment of the Hon'ble High Court of Kerala also it has been held that long break of service like more than 9 months delay between the initial engagement and regularisation cannot be condoned at all.
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11. It can be discerned from the pleadings of the applicant itself that he was engaged as Electrician (Skilled) on casual basis during different spells ie. from 10.4.1989 to 30.6.1989, 4.7.1989 to 29.9.1989, 18.12.1989 to 16.3.1990 and 20.9.1990 to 19.11.1990 before his regularisation vide Annexure A-6 dated 1.10.1993. Respondents point out that there has been a break of 1042 days which cannot be trivialised as an artificial break for claiming the benefits of ACP and other financial upgradation. Although no notice was given to the applicant before cancellation of the benefit of reckoning the date of his initial engagement for calculating the length of service put in for the purpose of financial upgradations, we find no reason to interfere with the aforesaid decision of the respondents. In this case as there was a long and significant break of 1042 days between discharge of the applicant from casual engagement and regular employment, by any strech of imagination it cannot be treated as an ignorable artificial break. The Apex Court in Ashok Kumar Sonkar v. Union of India and others (2007) 4 SCC 503 held that if no useful purpose is served by giving an opportunity for hearing the principle of audi alteram partem need not be followed.
12. It is settled law that the errors can be corrected as the same would confer unjustifiable benefits to the employee. Such mistakes cannot be allowed to be perpetuated, as held by the Hon'ble Apex Court in ICAR & Another v. T.K.Suryanarayan & Others (1997) 6 SCC 766 and Chandigarh Administration v. Jagat Singh & Another AIR 1995 SC 705. The Hon'ble Apex Court has again held the same view in State of Uttar Pradesh & .8.
Others v. Rajkumar Sharma & Others (2006) 3 SCC 330 wherein it was held that if the State committed a mistake it cannot be forced to perpetuate the same mistake.
13. In the light of the above discussion, we find no merit in this O.A and hence the O.A is dismissed. Parties shall suffer their own costs.
(Dated this the 31st day of August 2017)
(E.K.BHARAT BHUSHAN) (U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00120/2014
1. Annexure A-1 - Photocopy of the National Apprenticeship Certificate S.No.(NAC)-86 AB-1/86 awarded to the applicant.
2. Annexure A-2 - Photocopy of the certificate dated 9.10.1989.
3. Annexure A-3 - Photocopy of the certificate dated 20.11.1990.
4. Annexure A-4 - Photocopy of the Amended Recruitment Rules SRO 338(S1 3) dated 19.11.1979 as amended vide SROs 131/84 25/87 and 200/89.
5. Annexure A-5 - Photocopy of the judgment dated 14.10.1992 in O.A.No.431/1991 of this Hon'ble Tribunal.
6. Annexure A-6 - Photocopy of the Appointment Order No.CS 4216/44 dated 1.10.1993 of the Commodore, Chief Staff Officer (P & A).
7. Annexure A-7 - Photocopy of the Order dated 28.2.1996 of the Commodore, Chief Staff Officer (P & A).
8. Annexure A-8 - Photocopy of the Order No.CS 2765/34/1 dated 6.4.2010 of the Captain, Chief Staff Officer (P & A).
9. Annexure A-9 - Photocopy of the Order dated 5.2.2010 in O.A.No.548/2009 of this Hon'ble Tribunal.
10. Annexure A-10 - Photocopy of the Circular No.274/6/27 dated 7.8.2010 of the Admin. Officer II for 2nd respondent.
11. Annexure A-11 - Photocopy of the Order/Civilian Establishment List/50/2011 dated 1.6.2011 of the Admin. Officer Gde.II for 2 nd respondent.
12. Annexure A-12 - Photocopy of the Civilian Establishment Leave Order IND/14/2011 dated 1.6.2011 of the Admin. Officer Gde.II for 2 nd respondent.
13. Annexure A-13 - Photocopy of the Order No.CS 2765/34/MACP dated 11.8.2011 of the Admin. Officer Gde.II for 1st respondent.
14. Annexure A-14 - Photocopy of the Order/Civilian Establishment List 93/2011 dated 16.9.2011 of the Admin. Officer Gde.II for 2nd respondent.
15. Annexure A-15 - Photocopy of the Order No.276/6/2 dated 20.6.2012 of the Admin. Officer Gde.-II.
16. Annexure A-16 - Photocopy of the Order No.CS 2765/34/MACP dated 12.6.2012 of the Admin. Officer-II.
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17. Annexure A-17 - Photocopy of the representation dated 12.7.2012 of the applicant to the 2nd respondent.
18. Annexure A-18 - Photocopy of the reminder dated 5.12.2012 of the applicant to the 2nd respondent.
19. Annexure A-19 - Photocopy of the Order No.CS 2765/34/MACP dated 21.2.2013 of the Admin. Officer-II for 1st respondent.
20. Annexure A-20 - Photocopy of the Order No.276/6/2 dated 26.2.2013 of the Admin. Officer Gde.-II.
21. Annexure A-21 - Photocopy of the Integrated Headquarters Ministry of Defence (Navy) Group C Industrial Posts (Tradesmen) Recruitment Rules, 2012 No.SRO 43 dated 18.5.2012.
22. Annexure A-22 - Photocopy of the Order No.CS 2765/34/MACP dated 2.11.2010 of the Admin. Officer Grade II for 1st respondent.
23. Annexure A-23 - Photocopy of the Order Civilian Establishment List No.158/2010 dated 6.11.2010 of the Civilian Establishment Officer for 2 nd respondent.
24. Annexure A-24 - Photocopy of the Draft Seniority List with covering letter No.CS 2776/4 dated 19.8.2013 of the Administrative Officer-II for 1 st respondent.
25. Annexure R-1 - A copy of Hon'ble Tribunal order dated 5 th June, 2009.
26. Annexure R-2 - A copy of Hon'ble High Court of Kerala Order dated 4th October 2012.
27. Annexure R-3 - A copy of Hon'ble Tribunal order dated 21 st October 2013.
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