Central Administrative Tribunal - Delhi
Sukhdev Singh vs Union Of India on 9 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. NO. 50/2012
With
MA 30/2012 and
MA 2385/2012
Reserved on : 27.09.2013
Pronounced on: 09.10.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
1. Sukhdev Singh,
Vill & P O Nathuwal,
P/o. Karari Tch, Mukerian Distt.
Hoshiar Pur (PB).
2. Harish Kumar
K-80, Dakchn Puri,
New Delhi.
3. Hardev Singh
B-40, 5141, Street No. 2
Anand Nagar,
4. Jagdish Ram
Junior Engineering,
Daya Basti, New Delhi.
5. Narinder Kumar
159, Block-H, Sector 22,
Noida.
6. Khem Raj
144-T, Huts Railways Colony,
Thompson Road,
New Delhi.
7. Ramesh Chander
Dy. CE, Bridge Line,
Pahrawar Distt.
Rohtak, Haryana.
8. Shiv Narayan
H. No. 192, Balbir Nagar,
Delhi.
9. Balak Ram
JE/Bridge-SPL/N.R.
Daya Basti, Delhi.
10. Ombir Singh
H. No. F-7, East Jawahar Nagar,
Loni Road, Ghaziabad.
11. Baldev Singh
Executive Engineer,
Bridge Line, Muradabad.
12. Birbal
C/o. Axen,
Bridge Line,
Ambala, Ludhiana (P).
13. James Babalu,
392/17, Railway Colony,
Ambala Cantt, Haryana.
14. Ashok Kumar
52-A, Inder Puri,
Ambala Cantt, Haryana.
15. Balwant Singh
B-1191/3, Baba Colony,
Burari, Delhi. Applicants
(By Advocate: Sh. C. Hari Sharkar)
VERSUS
1. Union of India
Through The Secretary,
Ministry of Railways
Rail Bhawan, New Delhi.
2. The General Manager,
Northern Railway,
Baroda House, New Delhi.
3. The Chief Bridge Engineer,
Northern Railway, New Delhi.
4. The Chief Personnel Officer,
Northern Railway,
Baroda House, New Delhi. .Respondents
(By Advocate : Sh. Shailendra Tiwari)
O R D E R
Shri G. George Paracken, M(J) The grievance of the applicants in this OA is that the respondents have denied them arrears of pay and allowances which have arisen on account of upgradation of their pay scale from the scale of pay of the Material Checker (MC) to that of the Material Checking Clerk (MCC).
2. This is their second round of litigation. Earlier they have approached this Tribunal vide OA No. 934/2006 seeking the following reliefs :-
(i) to direct respondents to extend the benefits of pay scale of Rs.3050-4590 to applicants from the date they started performing the duties of Material Clerk.
(ii) to grant costs of this OA to the applicants.
3. In the said OA, the applicants were mainly seeking the implementation of the Railway Boards letter No. E(I.R)1/2004/JCM2-3 dated 03.06.2004, according to which the Material Checkers (Store-Chaser) performing the duties of Material Clerks are allowed the pay scale of Rs.3050-4590/-. This Tribunal dismissed it vide order dated 17.04.2007 and the relevant part of the same reads as under :-
8. The applicants are in the habit of regularly filing representations/OAs. However, once an issue has been decided in one OA, the same issue cannot be raised subsequently. On this ground alone, the present OA is barred by constructive res judciata. This has been held in Forward Construction Co and Others Vs. Prabhat Mandal (Regd) Andheri and Others, 1986 (1) SCC 100 wherein it has been held as follows:-
An adjudication is conclusive and final not only as to the actual manner determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had actually controverted and decided. Where a matter has been constructive in issue, it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. Therefore, the judgment of the High Court in the earlier writ petition would operate as res judicata even when one of the grounds taken in the subsequent writ petition before the High Court was absent in the earlier petition.
9. We have heard the arguments raised by the learned counsel of the respondents and perused the pleas raised by the applicants. The arguments and Apex Court judgments quoted by the respondents have the necessary legal backing. Hence, this OA has to be dismissed.
10. In view of the above, OA is dismissed. No costs.
4. The applicants challenged the aforesaid order before the Honble High Court vide Writ Petition No. 8521/2007 and the High Court vide its order dated 05.02.2009 set aside the aforesaid order of this Tribunal and remanded the case to decide it on merits. In the said order the High Court has observed as under :-
The following facts are not in dispute that the petitioners herein filed OA No. 648/1999 (herein referred to as first OA) wherein the relief was sought for upgradation of the post store men/material checkers to the post of material checking clerks in the grade of Rs.950-1500/- as per the Railway Board Circular dated 20.07.1979 and Circular dated 16.08.1978. They had sought the directions to fix the salary in the grade of Rs.225-308/- as material checkers and grade of Rs.260-400/- Rs.950-1500 as material checking clerks from the date from which they were working as store man. To put in otherwise, since the petitioners were discharging the duties of store man for quite some time, their request was to grant them the salary of material checking clerk in that grade and to regularize them on those posts. This first OA of the petitioners was allowed by the Tribunal vide orders dated 03.04.2004 and complying with these directions, the Railways issued orders dated 11.04.2004 re-designating the petitioners as material checkers. They were given the pay scale of Rs.2750-4400 with effect from 03.04.2003. It appears that there was some dispute about the appropriate scale which is to be accorded to such material checking clerks and the matter was pending for consideration with the Railways on this aspect. The Railways ultimately issued orders dated 03.06.2004 as per which it was decided that the material checkers (store chasers) performing the duties of material clerk would be allowed the pay scale of Rs.3050-4950. After the issuance of this OA, the petitioners also started claiming the said pay scale of Rs.3050-4950/-. When the request was not exceeded to by the respondent, the petitioners preferred OA No. 934/2006 claiming the aforesaid pay scale (herein referred to as second OA). The second OA has also been dismissed by the Tribunal vide judgment dated 17.04.2007 on the ground that it was time barred and also barred by principles of constructive res judicata in-as-much-as, this relief was not sought and are claimed by the petitioners preferred review of the said order by filing RA No. 96/2007 which was also dismissed by the Tribunal vide orders dated 09.05.2007.
Challenging these orders i.e. one passed in the first OA, in the second OA and dismissing the review application, the present writ petition is filed. From the facts noted above, it is clear that cause of action for claiming of pay scale of Rs.3050-4590/- arose only when the Railways took decision for grant of these pay scales to material clerks vide OA No. 934/2006 before that there was no cause of action to make a demand of this nature and therefore, could not have been included in the relief claimed while preferring the first OA. When reviewed the matter in the aforesaid perspective, it is clear that principles of constructive res judicata are wrongly applied by the learned Tribunal. There is an apparent error in dismissing the second OA on the said ground.
5. Pursuant to the aforesaid direction, this Tribunal again considered the case in RA 96/2009 in OA 934/2006 and finally disposed it of vide order dated 13.05.2009 directing the respondents to consider the claim of the applicants for grant of pay scale of Rs.3050-4590/- as per the circular dated 03.06.2004 from the date they were performing the duties of Material Checker by passing a speaking order. It is in pursuance to the aforesaid direction the respondents have issued the impugned office order dated 23.01.2010. According to the said order the applicants are presently working within the jurisdiction of Dy.CE/BL/TKJ as material checkers in pay band of Rs.5200-20200 + grade pay of Rs.1800 and they have been upgraded as MCC (from the date they were working as MC) in pay band of Rs.5200-20200 + Rs.1900/-Grade Pay as per sanction of competent authority i.e. GM/W.Rly conveyed to third respondent vide GM/P letter No.752-E/Court case/CWP No. 8521/2007/Eii Bi dated 21.01.2010.
6. According to the applicants by issuing the aforesaid order, they have denied them partial arrears on account of pay and allowances. They have further stated that the circular dated 03.06.2004 speaks about the pay scale of Rs.3050-4590/- which has to be allowed to the material checkers who are performing the duties of material clerks. It was never disputed by the respondents that the applicants who are material checkers were performing the duties of material clerks. This fact was not disputed by the respondents even during the course of proceedings before this Honble Tribunal in OA 934/2006 (supra). That being the factual position, the applicants are entitled to the revised pay scale from the date they started performing the duties of the material clerk. The applicants in the present case started performing duties of material clerk w.e.f. 03.04.2003. The respondents while implementing the order of this Tribunal dated 13.05.2009 in RA No. 96/2007 in OA 934/2006 has granted the benefits of revised pay scale w.e.f. 23.01.2010 which is the date of issuance of Office Order. According to the applicants, the respondents have not given any reasons as to why the benefit of revised pay scale was granted to the applicants w.e.f. 23.01.2010 and not from 03.04.2004.
7. Respondents in their reply have submitted that the applicants were initially appointed in Group D as Khalasi in the Bridge Department of Northern Railways. They were further promoted as Storemen and Material Checker. Instructions were issued by the Railway Board, vide letter No. E(P&A)II/85/PS-5/SS-3 dated 07.08.1991, to upgrade the posts of Material Checkers to Material Clerks. As per the aforesaid circular, all such upgradations have to be effected with matching surrender and from a prospective date only and therefore, the question of arrears claimed by the applicants does not arise. They have also stated that this Tribunals directions contained in its order dated 13.05.2009 in RA No. 96/2007 in OA No. 934/2006 have been complied with and the benefits have been granted to all the applicants vide the Dy. Chief Engineer/Bridge Line, Tilak Marg, New Delhis letter dated 23.01.2010. They have also stated that the applicants were working as Material Checker with effect from 03.04.2003 and in compliance of the aforesaid direction of this Tribunal they were regularized as Material Clerks from that date i.e., 03.04.2003 by fixing their pay on proforma basis and actual payment was made to them from the date of issue of the order of upgradation.
8. We have heard the learned counsel for the applicants Sh. C. Hari Shanker and Sh. Shailendra Tiwary, counsel for respondents. Undisputedly, the circular dated 03.06.2004 was applicable to the applicants. According to the said circular, the Material Clerks (Stores-Chaser) performing the duties of Material Clerk are allowed the pay scale of Rs.3050-4590. Thus the post of Store-Chaser who are required to perform the duties of Material Clerk shall be created in appropriate Grade viz. Rs.3050-4590/-. It is not in dispute that the applicants were Material Checkers and they were performing the duties of the Material Clerks. Therefore, it was incumbent upon the respondents to grant the pay scale of Rs.3050-4590/- to the applicants with effect from 03.06.2004. As the same was not done, the applicants had to approach this Tribunal vide OA No. 934/2006 (supra) seeking direction to the respondents to extend the benefit of pay scale of Rs.3040-4590/- from the date they started performing the duties of Material Clerks. Though the aforesaid OA was dismissed, the High Court interfered in the matter observing that pursuant to OA 648/1999 filed by the applicants the respondents had already issued orders dated 11.04.2004 and re-designated them as Material Checkers and they were also given pay scale of Rs.2750-4400/- with effect from 03.04.2003. However, there was dispute about the appropriate scale which was to be accorded to them and ultimately the Railways issued the order dated 03.06.2004 wherein it has been decided that the Material Checkers (Stores-Chasers) performing the duties of the Material Clerks would be allowed the pay of Rs.3050-4590/-. After the issuance of the aforesaid order, the applicants had started claiming scale of Rs.3050-4590/-. Therefore, the High Court has observed that while considering the aforesaid fact since the request of the applicant was not considered by the respondents, they have filed OA No. 934/2006 (supra) before this Tribunal but it was dismissed and the High Court considered that before adjudicating the issue it was not proper for the Tribunal to dismiss the case. However, when the matter was re-heard on 13.05.2009 and this Tribunal directed the respondents to consider their claim of grant of pay scale of Rs.3050-4590/- as per the circular dated 03.06.2004, the respondents have of-course complied with the aforesaid directions of the Tribunal by way of impugned order dated 23.01.2010 but only partly. According to the said order, the applicants were working as Material Checkers in the pay band of Rs.5200-20200 + GP of Rs.1800 which have been upgraded as MCC from the date they are working as MC in the pay band of Rs.5200-20200/- + 1900 GP as per the sanction of the competent authority. However, they have not paid the arrears to them.
9. In our considered view, the denial of the arrears to the applicants in the aforesaid facts and circumstances is not justified. The respondents themselves have not denied that applicants who are material checkers were performing their duties of the material clerk w.e.f. 03.04.2003. But, in an arbitrary manner, they have granted the benefit of the higher pay scales to them only from 23.01.2010 which is the date of issue of the order implementing that this Tribunals order dated 13.05.2009. Therefore, the principle of No work no pay does not apply in this case. In fact the applicants are only seeking the pay scales which is admissible to the post on which they have been actually working.
10. We, therefore, allow this OA directing the respondents to grant them arrears of payment with effect from 03.04.2003 arising on account of pay fixation vide order dated 23.01.2010. They shall also pass an appropriate order in implementation of the aforesaid directions within a period of two months from the date of receipt of a copy of this order. With the above direction the OA stands disposed of. We are also of the view that it is a fit case for imposing heavy cost upon the respondents for dragging the applicants again and again to this Tribunal as well as to the Honble High Court. However, we do not do so for the only reason that the applicants have not sought it in their prayer clause. Hence, there shall be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/mbt/