Central Administrative Tribunal - Jabalpur
Rajendra Kumar Wasnik vs M/O Defence on 19 July, 2018
Sub: allowances 1 OA No.200/00310/2014
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00310/2014
Jabalpur, this Thursday, the 19th day of July, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
1. Rajendra Kumar Wasnik, S/o Late D.Wasnik,
Aged about 51 years, 1041, Lobo Colony,
Near DSC Line, Indera Nagar, Bilpura,
Vehicle Estate, Jabalpur, MP-482009
2. Gopal Prasad Vishwakarma, S/o Prithivi Kumar,
Aged about 47 years, H.No. 2207,
Near Chouksey Hotel,
Post-Kanchanpur, Adhartal,
Jabalpur, M.P.-482004
Both are working in V.F.J. Hospital,
Jabalpur-482010 (M.P.) -Applicants
(By Advocate -Shri A.K.Pare)
Versus
1. Union of India, through Secretary,
Defence Production, South Block,
New Delhi-110011
2. DGOF/Chairman, Ordnance Factory Board,
10-A, S.K.Bose Road, Kolkata-700001
3. Sr. General Manager,
Vehicle Factory Jabalpur (M.P.)-482009 -Respondents
(By Advocate -Shri James Anthony)
(Date of reserving the order:-04.04.2018)
Page 1 of 10
Sub: allowances 2 OA No.200/00310/2014
ORDER
By Ramesh Singh Thakur, JM:-
The applicants are aggrieved against the order dated
02.01.2014 (Annexure A-13) by which the respondents had denied the payment of Hospital Patient Care Allowance. Hence they filed this Original Application.
2. The applicants have prayed for the following reliefs in this Original Application:-
"8. Relief Sought:
(i) Issue a writ/writs, order/orders, direction/directions of the appropriate nature to the respondents.
(ii) direct the respondent to consider the representation of the applicants by granting them to arrears of the HPCA from 01/09/2008 as per revised order for double rate till July 2013 by set aside the order dated 02/01/2014 (Annexure A-
13).
(iii) direct the respondent to pya 12% interest on the arrears for delay payment of arrears.
(iv) direct to award the cost of petition.
(v) any other relief which this Hon'ble CAT may deems fit and proper looking to the facts and circumstances of the case in the interest of justice."
3. The brief facts of the case are that the applicants are appointed on the post of Ambulance Motor Driver (in short AMD). They are entitled for Hospital Patient Care Allowance (in short HPCA), a copy of the order dated 18.11.2005 is filed as annexure A-1.
Page 2 of 10
Sub: allowances 3 OA No.200/00310/2014
4. The applicant has been transferred from vehicle Factory Hospital to Motor Transport Section, a copy of the intersectional transfer order dated 20.06.2009 and dated 22.07.2009 are filed as Annexure A-2. Vide order dated 06.12.2010 (Annexure A-3) the applicants have been promoted from Ambulance Motor Driver (OG) to Ambulance Motor Driver Grade II, and Ambulance Motor Driver Grade II to Ambulance Motor Driver Grade I respectively. Again vide order dated 04.06.2011 (Annexure A-4) they have been transferred from M.T. to P.L-I and M.T. to VFPL.
5. Looking to the benefits of financial, safety etc. granted to the Civilian Motor Driver (CMD) the applicants submitted representation for re-designation/change of designation from AMD to CMD on 18.01.2012 and it has been clearly mentioned in the representation that two AMD namely Shri Hubbi Lal and Shri Kishan Lal are working in the hospital without any govt. ambulance as all the govt. ambulances had been deposited in M.T. section for condemnation. A copy of the representation dated 18.01.2012 is filed as annexure A-5.
6. In response to the said representation the respondents dispose of the same vide order dated 18.03.2012 (Annexure A-6) and stated that "you have to perform the duties assigned to you." The applicant further submitted representation dated 07.02.2013 Page 3 of 10 Sub: allowances 4 OA No.200/00310/2014 (Annexure A-7) for payment of patient care allowance. The respondents vide letter dated 07.03.2013 (Annexure A-8) intimated the applicants that you have to perform the duties assigned to you. It is also intimated that your representation in respect of AMD to CMD will not be entertained by the management in future.
7. The applicants further submitted that HPCA of the applicants were stopped from the month of January 2013, therefore, applicants' submitted representation on 26.03.2013 & 05.06.2013 as the other AMD were enjoying without any work and are getting HPCA in double rate. A copy of the representations are annexed as Annexures A-9 & A-10.
8. Looking to the above discrimination the respondents transferred the applicants to Vehicle Hospital by intersectional transfer order dated 08.08.2013 (Annexure A-11). The applicant further averred that they have submitted representation to the respondent authorities for arrears payment of HPCA from 01.09.2008 as per revised order for doubling rate till July 2013 but the respondents vide their letter dated 02.01.2014 have denied the same to the applicants.
9. The main ground for challenge in this Original Application is that the acts of the respondents are bad in law by not paying the Page 4 of 10 Sub: allowances 5 OA No.200/00310/2014 arrears of HPCA to the applicants as they are entitled for the same from 01.09.2008 as per revised order.
10. The respondents have filed their reply. The replying respondents in their preliminary submissions have averred that as per Government of India Ministry of Health and Family Welfare letter dated 17.12.2012 & 21.12.2012 it is clearly mentioned that HPCA/PCA will be admissible only in case the individual proceeds on leave/training for less than one calendar month and it may not be admissible in case the individual proceeds on leave/training for more than one calendar month.
11. It is therefore clearly understood from the above mentioned condition that minimum one day or more in one calendar month service is required towards patient care for entitlement of PCA. So it is not appropriate that an employee who is working in production section not in Hospital is entitled for PCA. For the period from 07/2011 to 01/2013 they were in production section, so their statement of non payment of PCA arrears is false. In view of the above the applicants are not entitled for the said period.
12. In para-wise reply the respondents submitted that applicants are appointed on the post of Ambulance Motor Driver but their entitlement for HPCA depends upon their posting/services towards Page 5 of 10 Sub: allowances 6 OA No.200/00310/2014 caring of patients as AMD for minimum one day or more in one calendar month.
13. The applicant No.1 had applied for re-designation from AMD to CMD on 18.01.2012 and the respondents gave their reply that as per the requirement of manpower in order to fulfill the defence production the management had transferred the applicant from VFJ hospital to MT section. As per SRO 6 of 2005, the incumbents in the posts mentioned in the schedule normally liable for service in the same factory or office in the ordnance factory organization, a copy of the SRO is attached as Annexure R-3. The respondents further submitted that after transfer the applicant was posted in MT section which is not related to hospital. Therefore he is not entitled for HPCA/PCA as per rules.
14. The applicant has filed rejoinder to the reply in which the applicant submitted that they are appointed to the post of AMD. It is further submitted that prior to their transfer they are getting HPCA. It is submitted in the rejoinder that the applicants were maliciously transferred as the SRO 6 of 2005 is related with Civilian Motor Driver and not related with Ambulance Motor Driver.
15. The applicants further submitted in their rejoinder that the applicant had applied for re-designation from AMD to CMD on Page 6 of 10 Sub: allowances 7 OA No.200/00310/2014 18.01.2012 and vide Annexure A-6 dated 18.03.2012 respondents have intimated that you have to perform the duties assigned to you.
16. The respondents have filed their additional reply in which they have specifically submitted that the applicants have not been transferred forcefully, but for the functional requirement of the department. The SRO in respect of AMD mentions the rules of ambulance drivers, which is annexed as Annexure R-5.
17. We have heard the learned counsel for both the parties and carefully gone through the documents annexed therewith.
18. The main case of the applicants is that he was appointed on the post of AMD, which has also been admitted by the replying respondents. It is also admitted by the authorities that as per Annexure A-2, the applicant No.1 was transferred from Vehicle Factory Hospital to Motor Transport Section on 20.06.2009 and applicant No. 2 on 22.07.2009 respectively. It is also admitted fact that the applicant No. 1 has been promoted from AMD to AMD Grade II and applicant No. 2 promoted to AMD Grade I, which his clear from Annexure A-3. The only dispute is that applicants were appointed as Motor Driver and were getting the Hospital Patient Care Allowances (HPCA) and on transfer to other unit the said allowance was not paid. Secondly, the applicants have also raised the question of discrimination on the fact that two other AMD's are Page 7 of 10 Sub: allowances 8 OA No.200/00310/2014 taking full right and privilege of being AMD without doing his Ambulance Motor Driving duty. Whereas the applicants have not been paid despite the fact, that, they were appointed as AMD and are on deputation in the heavy vehicle section.
19. On the other side the replying respondents has submitted that the employees who are working in production section and not in hospital is not entitled for Patient Care Allowances (PCA). The applicants have been paid the arrears of PCA when they have worked in the hospital duty. Further, it has been submitted by the replying respondents that applicants are appointed on the post of AMD but their entitlement for HPCA depends upon their posting/services towards caring of patients. So it is clear and admitted by the replying respondents that the applicants are appointed on the post of AMD, which itself suggests that their cadre is different from other vehicle drivers. It is also admitted fact that PCA is to be given to the AMD only.
20. Merely, on the submission of the replying respondents that though the applicants were appointed on the post of AMD but their entitlement for HPCA depends upon their posting/services towards caring of patients, the said submission is not maintainable due to the reason that the appointment of the applicants is on the post of AMD and the said entitlement cannot be refused only on the basis Page 8 of 10 Sub: allowances 9 OA No.200/00310/2014 that they have been shifted to other duty. It is pertinent to mention that regarding the appointment as AMD the main consideration for such appointment is different. That is why PCA provided to AMD only. As per Annexure A-1 HPCA/PCA is to be provided to the staff as mentioned in Para 2 and category of AMD is mentioned there.
21. Though the replying respondents has relied upon Annexure R-3 and has submitted that the incumbent in the posts mentioned in the scheduled normally liable for service in the same factory or office in the Ordnance Factory Organization. It is pertinent to mention that if this Annexure R-3 is seen minutely, this SRO 6 which is of 2005 is not applicable to the applicants. In the schedule of this Annexure R-3 the category of civilian driver has been given, whereas the category of the applicants is a separate category i.e. Ambulance Driver in the hospital. Therefore, this Annexure R-3 is not applicable to the applicants.
22. Though the replying respondents has also relied upon SRO 88 dated 03.08.2005 as indicated in the category of AMD but it is relevant to mention that this SRO pertains to regarding the recruitment which depends upon the subject to variation dependent on workload. So this Annexure R-5 is not relevant for the purpose the issue in the present Original Application. Page 9 of 10
Sub: allowances 10 OA No.200/00310/2014
23. Resultantly, in view of the above we are of the considered view that the applicants are entitled for HPCA as per Annexure A-1. Hence, this Original Application is allowed. Annexure A-13 dated 02.01.2014 is quashed and set aside. The respondents are directed to pay/grant the HPCA to the applicants with effect from 20.06.2009 to 08.08.2013 and 22.07.2009 to 08.08.2013 respectively within a period of 60 days after receiving the order of this Tribunal. No order on costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
rn
Page 10 of 10