Central Administrative Tribunal - Kolkata
All India Association Of Non Gazetted ... vs Ordnance Factory on 17 November, 2023
1° 9a, 350.01741.2022 CENTRAL ADMINISTRATIVE TRIBUNAL | KOLKATA BENCH, KOLKATA . f .
No. 0.A. 350/01741/2022 Heard on: 06.10.2023 Present:
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Date of order: \t ANQOL2 ' Hon'ble Mr. Anindo Majumdar, Administrative Member
1. All India Association of Non-Gazetted Officers of Ordnance and Equipment Factories and Quality Assurance Organizations (Ministry of Defence),
2. Shri Ashanka Chakraborty,
3. Shri Rajiv Raushan,
4. Shri Krishna Murari,
5. Shri Kundan Kumar Thakur,
6. Shri Rajeev Kumar,
7. Shri Anish Kumar, 8: ~ Shri Avik Roy, -
9. Shri Sanjoy Kumar Giri,
10. Shri Kulmani Prosty,
11. Shri Ravi Shankar Jha,
12. Shri Somnath Paul,
13. Shri Soumen Saha,
14. Shri Ritesh Jha,
15. Shri ishant Kumar,
16. Shri Pallab Chakraborty, -
17.- Shri Pankaj Toppo,
18. Shri Rajeet Kumar,
19. Shri Rohit Kumar,
20. Shri Amod Kumar Mahto, .
21. Shri Pradeep.Kumar Sarkar,
-22. Shri Tapan Majumder,
23. Shri Subham Bhattacharjee,
24. Shri Pulak Sarkar, -
25. Shri Arabinda Haldar,
26. Shri Santabrata Chanda
27. National Defence Employees Union, High Explosives Factory, Khadki, Pune,
28.° Shri Ravindra Tukarami Chikhale.
wwe Applicants.
- VERSUS-
1. UNION OF INDIA service through the Secretary, Ministry of Defence (Defence and Production}, Government of India, South Block, New Delhi-
110001. cS 2 01a. 350.01741.2022
2. -THE DIRECTOR GENERAL. ORDNANCE (Coordination and Service}, Department of Defence Production, Government of India, Ministry of Defence, 10A, Shaheed Khudiram Bose Road, Kolkata- 700001.
3. THE CHAIRMAN AND. MANAGING DIRECTOR, _ Advanced Weapons And Equipment India Limited, A Government of India Enterprise, Ministry of Defence, service through the Managing Director, Ordnance Factory, Kalpi Road, Kanpur- 208009, UP,
4. THE CONTROLLER GENERAL OF DEFENCE | ACCOUNTS, Ministry of Defence, having its office at
-Ulan Batar Road, Palam Colony, Delht Cantonment, New Delhi-110010.
5. THE PRINCIPAL CONTROLLER OF ACCOUNTS _ (Fys.}. Ministry of Defence, having her office at 10A, Shaheed Khudiram Bose Road, Calcutta- 700001;
6. THE GENERAL MANAGER & EXECUTIVE DIRECTOR, Rifle Factory, Ishapore (a unit of Advanced Weapons and Equipment tndia Limited), a Government of India Enterprise, Ministry of Defence, Department of Defence Production, situated at Ishapore, Post Office- Ichapore-Nawabganj, District-24-Parganas (North), Pin- 743144. :
7. THE GENERAL MANAGER, High Explosives Factory, | Ministry of Defence, Department of Defence Production, situated Khadki, Pune, Maharashtra-
411003. .
. ... Respondents For the Applicant . : Mr. P.C.:Das, Counsel . Ms. T. Maity, Counsel For the Respondents ° : Mr. S, Paul, Counsel OR DER The applicant has filed this original application seeking the following reliefs:
"a) Leave may be granted to the applicants to file this application jointly under Rule ', 4(5)(b}) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because the concerned Association is making this original application and their members are the 3 0.a. 350,01741.2022 é i employees of the concerned Ordnance Factory, therefore under Rule 4(5)(b) of the Central Administrative Tribunal (Procedure) Rules, 1987 this original application is permissible;
'a
b) To pass an appropriate order directing upon the respondents to extend the benefit of the calculation of OTA and OTB by inclusion of various allowances i.e. HRA/TA/SFA while calculating OTA arid OTB will be extended provisionally to the applicants with retrospective effect i.e. with effect from 2006 in terms of the direction .given by the Learned Central Administrative Tribunal, Principal Bench, New Delhi in "order dated 25.04.2018 in OA No. 650/2016 appearing at Annexure A-5 of this original application and in terms of the order dated 04.04.2014 passed by the Learned Central Administrative Tribunal, Hyderabad Bench in OA No. 1372/2012 and in terms of the earlier direction given by this Hon'ble Tribunal in order dated 09.12.2019 in OA No. _ 350/1523/2019 and in terms of the order dated 11.11.2020 passed by this Hon'ble
- Tribunal in OA No. 350/705/2020 along with all arrear benefits;
c} To pass an appropriate order directing upon the respondents to give the benefit of calculation of OTA and OTB by inclusion of various allowances i.e. HRA/TA/SFA while calculating OTA and OTB will be extended provisionally to the applicants with retrospective effect i.e. with effect from 2006 along with ail consequential arrear. benefits in terms of the direction given by the Learned Central Administrative Tribunal, Principal Bench, New Delhi in order dated 25.04.2018 in OA No. 650/2016 appearing at Annexure A-5 of this original application and in terms of the order dated' 04.04.2014 passed by the Learned Central Administrative Tribunal, Hyderabad Bench in OA No. 1372/2012 and in terms of the earlier direction given by this Hon'ble Tribunal in order dated 09.12.2019 in OA No. 350/1523/2019 and in terms of the order dated 11.11.2020 - passed by this Hon'ble Tribunal ih OA No. 350/705/2020 along with all arrear benefits and to give all consequential benefits in favour of the members of the Union and employees those who: are existing and retired of Gun & Shell Factory, Cossipore and SQAE(A), Cossipore with effect from 01.01.2006;
d} To declare that in view of the constitution bench decision rendéred by the Hon'ble Supreme Court in the case of K.C. Sharma -vs- Union of India & others reported in 1998 SCC (L&S} Page 226 the present applicants are entitled the same relief which has been granted by the Learned Central Administrative Tribunal, Principal Bench, New Delhi in order dated 25.04.2018 in OA No. 650/2016 appearing at Annexure A-5 of this original application and in terms of the order dated 04.04.2014 passed. by the Learned Central Administrative Tribunal, Hyderabad Bench in OA No. 1372/2012 and in terms of the earlier direction given by this Hon'ble Tribunal in order dated 09.12.2019 in OA No. 350/1523/2019 and in terms of the order dated 11.11.2020 passed by this Hon'ble Tribunal in OA No. 350/705/2020 along with all arrear benefits;" F :
2. The applicants have submitted that they had been in receipt. of overtime allowance whenever they were required to work beyond the normal working
-hours-of 48 hours in a week and that the said allowance used to be ca!culated by
- including all allowances admissible to the employees like House Rent Allowance (HRA),- City Compensatory Allowance (CCA), Transport Allowance (TA), Small Family 'Allowance (SFA), etc. aS per the provisions of Factories Act, 1948.
They have submitted that respondent No. 1, 2 and3 issued a memorandum dated O
4. 0.a. 350.01741,2022 26.06.2009 stating that House Rent Allowance, Travelling Allowance and Small Family Allowance would stand excluded for the purpose of calculation of over . time.allowance. Based on this memorandum, the Principal Controller of Accounts (Factories), Kolkata issued an office memo on 27.08.2009,
3. The office memo dated 26" June, 2009 was challenged before the Central Administrative Tribunal, Chennai Bench by filing an Original Application No. 1144 of 2009. However, the said Original Application was dismissed by the Chennai Bench of CAT. A Writ Petition was filed by the Heavy Vehicles Factory employees . Union in WP 609 of 2011 before the Hon'ble High Court of Madras against the order of the CAT, Chennai dated 30.11.2011. The said Writ Petition was allowed by the Hon'ble High Court at Madras. The respondents have filed Special Leave Petitions (SLPs) against the said judgement of the Hon'ble High Court of Madras.
Although the SLPs has been admitted by the Hon'ble Apex Court, they are still pending. However, the aforesaid judgement of the Hon'ble High Court of Madras has not been stayed bythe Hon'ble Apex Court.
4. 'The Ofdinance Factory, Civilian Employees Union had also filed an Original * Application No. 1372 of 2012 before the Hyderabad Bench of CAT: praying for the extension of same relief(s) granted -by the Madras High'Court. The said O.A. was allowed by the Hyderabad Bench of CAT vide its order dated 04.04.2014.
5, The Principal Bench of the Central Administrative Tribunal, New Delhi has |' brovided identical relief in OA No. 650/2016, vide its order dated 25.04.2018 and directed the respondents to. include all allowances suchas HRA, TA and SFA while calculating Overtime Allowa nee wae 01.01.2006.
6. This Tribunal, has vide its order dated 11.11.2020 in OA No. 350/705/2020 in the case of Employees Union Ordinance Factory, Dum Dum and others versus N Abe. seb ) "5 0.8. 350.01741,2022 Union of India and 'others granted similar relief in favour of the applicants. The Ordnance Factory Board has directed the General Manager, Ordnance Factory, Dum Dum to implement the order of this Tribunal dated 11.11.2020 and the same has been complied with..
7 The, present applicants comprising of the existing members of the _-untonand retired employees of the Rifle Factory had made a representation a before the G .
eneral Manager, Rifle factory, Ishapore, on 21.07.2021 for inclusion of HRA, TA and SFA for the purpose of calculating overtime allowance i.e for grant _of identical relief(s} as granted by the Hon'ble High Court of Madras and the | various Benches of the Central Administrative Tribunal. However, no action on the said representation has been taken by the respondents as yet.
8. The applicants in this original application, have submitted that it is a well Principle of Law as laid down by a Five Judges Bench of the Hon'ble Apex Court in _ the case of Keshav Sharma vs. Union of India and others wherein the it has been held, inter alia that "the extension of benefit of judgement cannot be denied to the similarly circumstanced persons".
9. The respondents in the reply, have submitted that although.the Madras High Court and some Benches of the Central administrative Tribunal have issued directions for allowing the inclusion of HRA, TA, and SEA for calculation of House Rent Allowance these orders are subject to the outcome of the. SLPs pending before the Hon'ble Apex Court and also that these orders and not passed in rem. They - have further . submitted -- that in case these orders - are implemented retrospectively 'then considerable amount would be incurred towards arrear payments which would cost a financial burden on the government exchequer. The respondents have further submitted that in case the Hon'ble Apex 6 0.a. 350.01741.2022 Court Allows the pending SLPs, recovery action of the amount paid to the applicants provisionally has tobe initiated which would lead to considerable administrative difficulties. Moreover, recovery from retired employees will not be easy. : ' 10, |have heard the learned counsels for both the sides and have examined the material on record.
11. | find that the. issue regarding inclusion of admissible allowances such as ' HRA, TA, and SFA for the purpose of calculating overtime allowance has been "decided by the Hon'ble High Court at Madras in Writ Petition No. 609/201, vide
-its judement dated 30.11.2011. The operative part of the said. judgement is. reproduced below:
"14, We have gone through the entire, materials placed on record. It is seen from the
- perusal of the records that aggrieved of the order passed by the Tribunal, wherein original: applications were filed by.the employees working in the third respondent -- 'factory challenging the order, dated 26.06.2009, issued by the first respondent, wherein House Rent Allowance, Travelling Allowance, Small Family Allowance were excluded from the overtime allowance for the purpose of computation of the same, the present writ petitions have been fled.
15. Itis an admitted case that the third respondent factory is governed by the provisions of the Factories Act. It is also the case of the employees that they are enjoying the overtime allowances all along and suddenly, a decision was taken to discontinue the payment of the aforesaid allowances by relying on Section 59(2) of the Factories Act, wherein Wages and Allowances were defined, to the effect that 'ordinary rate of wages' meéans the basic wages plus such allowances, including the cash equivalent of the 'advantage according through the concessional sale to workers of food grains and otherwise the worker is for the time being entitled to, but does not include a bonus and wages for overtime work. When the definition of the term, 'wages' specifically excludes 'bonus' and overtime wages to calculate the overtime work and the aforesaid 'allowances were excluded only basis of the opinion given by the legal advisor of the- Ministry of Law and not in consultation with the Ministry of Law (Department of Legal - Affiars), as requested by the Ministry of Labour, based on which, the Tribunal has"
dismissed the original applications by a common order dated 24.12.2010, which, in our considered opinion, is illegal.
16. As rightly contended by the learned counsel for the petitioners, as per the definition of Sub Section {2) of Section 39 of the Factories Act. calculating the 'ordinary rate' of wages means, basic wages plus such allowances Including the cash equivalent of the advantage accruing through the concessional sale to workers of food grains and other articles, as the worker is for the time being entitled to, but does not include a bonus arid 4
7. ova. 350.01741,2022 wages for overtime work. in the absence of any rules governing the subject with regard to the exclusion of the above said allowances, from the definition of ordinary rate of wages, as per Sub Section 2 of Section 59 of the Factories Act and when the petitioners are catering the same all along, taking a decision, which is contrary to the definition as contained in Sub Section 2 of Section 59 of the Factories Act, is unsustainable in law.
17. It is also seen from the perusal of the records that when the Ministry of Finance, through their official memorandum, dated 14.11.2002, has requested the Ministry of Labour to reconsider the matter in consultation with the Ministry of Law (Department at of Legal Affairs); but after consulting. with the legal advisor of the Ministry, the Ministry of Labour and Employment has issued the above memorandum, which in our considered opinion, is not legal, since. consulting the Ministry of Law is different from . consulting the legal advisor of the Ministry. We are unable to understand as to what is :
the. legal sanctity attached to the advise given by the legal advisor of the Ministry to exclude the abovesaid allowances to calculate the basic rate of wages. In the absence of any rule to exclude the aforesaid allowances from the definition of the basic wage, "when the Section excludes only two items, viz, bonus and wages for overtime work, the é action of the first respondent in excluding the said allowances without any authority, but only based on the opinion expressed by the legal advisor of the concerned:
Department, which cannot be considered to be the power given to exclude those _ allowances, and also the order passed by the Tribunal in rejecting the claim made by the petitioners based on the aforesaid memorandum, are considered to be illegal and unsustainable in law.
18. For the foregoing reasons, the order passed by the Tribunal is liable to be set aside and it is, accordingly, set aside. The writ petitions are allowed. Connected M.Ps. are closed. However, there will be no order as to costs." .
412. The Hyderabad Bench of this Tribunal has also passed a similar order dated 04.04.2014, in OA No. 1372/2012, wherein it has been held, inter alia, as below:
13.
"3. Having heard the applicant, party-in-person and the learned Additional Standing Counsel for the Respondents and since the Impugned order of Respondent No.2 dated " 26.6.2000 has already been quashed by the Hon'ble High Court of Madras though the. Department preferred SLPs before the Hon'ble Apex Court, no stay was granted in the SLPs, we are of the considered view that the applicant is entitled to get the relief as prayed in the application.
4. Accordingly the Respondents are directed to include all allowances such as HRA, TA and SFA in calculation of Over Time Allowance.from 1.1.2006.
5.Jn the result, the OA is allowed. No order as to costs."
4 a 1 The Principal Bench of this. Tribunal, has also vide its order dated 25.04.2018, in O.A 650/2016, extended. similar relief(s} to the applicants in that O.A concerned provisionally subject. to the final outcome of the decision of the Hon'ble Apex Court in SLPs No. 12845-12852/2012.
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oa', 4 * O 8 _0.a, 350.01741.2022
14. This Tribunal, vide its order: dated 11.11.2020 in OA 350/705/2020, has extended similar benefits to the applicants in that O.A in the light of orders | -passed by the Principal Bench as well as the Hyderabad Bench . 15, _ The aforesaid orders of the Madras High Court and some other Benches of . the CAT have already been implemented by the respective respondents. | 16. . From the receding paragraphs, it is clear that the issue of inclusion of HRA, TA. and SFA has already been décided by the Hon'ble High Court of Madras. | Thereafter, the Principal Bench and other Benches of this Tribunal have granted ,
- similar: relief(s) to the idéntically placed applicants in the Original Applications filed before them. The applicants in this Original Application in their respective .
N are also identically placed as those in the Original Applications quoted above, The applicants in this Original Application are therefore entitled to receive similar reltef(s).
17. | In view of the above discussion, the respondents are directed to include HRA, TA SFA and other admissible allowances for the purpose of calculating . overtime allowance provisionally wet 01.01.2006 subject to the final outcome of the decisions of the Hon'ble Apex Court in the SLPs filed by the Union of India in | the insta nt matter. ~
18. -With these directions, this Original Application is disposed of. There shall be no order as to costs.
(Anindo Majumdar) | Administrative Member Drh