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Judgment
Ravindra V. Ghuge, J
01] Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
02] The petitioners are the Union of India through the Secretary, Ministry of Defence, the D.G.O.F/Chairman of the Ordnance Factory Board,
Kolkata and the General Manager, Ordnance Factory, Ambajhari, Nagpur. Prayer Clause-A put-forth by the petitioners reads as under:-
“A. Call for record and proceedings of Original Application No.2065 of 2014 decided by the learned Central Administrative Tribunal, Bombay
Bench, Mumbai, Camp at Nagpur vide its impugned order dated 05.08.2016 and by appropriate writ, order or direction be pleased to quash and set
aside the same as incorrect, erroneous, unsustainable and contrary to law.â€
03] The petitioners are aggrieved by the judgment and order dated 05.08.2016 delivered by the learned Central Administrative Tribunal, Bombay
Bench at Nagpur (hereinafter referred to as the ‘CAT’ for short) in Original Application No. 2065 of 2014. By the impugned judgment, the
learned CAT has passed the following order under prayer Clauses 8 & 9:-
“8. In view of the above, I quash and set aside the impugned communication dated 10.02.2014 and direct the respondents to pass necessary orders
within eight weeks from the date of receipt of a copy of this order granting night duty allowance to the eligible industrial employees of Ordnance
Factory, Ambajhari on the basis of revised Pay Scale and allowances drawn by them w.e.f. 01.01.1996 and 01.01.2006 as per the 5th & 6th CPC
recommendation respectively. Consequently, the Applicants will also be entitled to get the applicable arrears w.e.f. 01.01.1996 and 01.01.2006.
The OA stands allowed with the above directions. No order as to costs.â€
04] Having considered the strenuous submissions of the learned Advocates of the respective sides, we find that the following factors are undisputed:-
a) The original applicants and the Ordnance Employees Union, represent the civilian workers working with the Ordnance Factory.
b) Such workers have worked during the night shift and for which they were entitled for the Night Duty Allowance (NDA).
c) NDA was introduced in 1986 and became payable as per the rates of wages prescribed by the 4th Central Pay Commission (CPC)
recommendations.
d) The NDA is calculated as per the formula prescribed by the Office Memorandum dated 04.10.1989.
e) With the increase/revision in the salaries of the employees working in the Ordnance Factories, Industrial Establishments of the Government of
India, Indian Railways etc., the NDA fluctuated as per the revision in the pay scale payable to the employees under the different CPC.
f) The NDA was calculated as per the 4th CPC recommendations and were paid to the employees for a period of ten years from 01.01.1986 up to
31.12.1995.
g) The same rates were made applicable for the period 01.01.1996 till 31.12.2005 as per the 4th CPC recommendations.
h) Though the 5th CPC recommendations applicable for the period 01.01.1996 to 31.12.2005, were made applicable to all the Government of India
(GOI) employees, NDA was not revised commensurately though the salary was revised.
i) The impugned judgment is delivered by the learned CAT on 05.08.2016. A decision was taken by the GOI, Ministry of Defence (MOD) Ordnance
Factory Board at Kolkata on 21.05.2015 and it was decided that though the NDA was payable commensurate to the pay revisions of the 4th CPC and
the 6th CPC recommendations, such revision of NDA commensurate to the revision of the salaries of the employees working in the Ordnance Factory
under 5th CPC, would not be revised for the period 01.01.1996 till 31.12.2005. NDA would be paid as per the rate prescribed by the 4th CPC
recommendations.
j) If overtime payment is received by the employees, NDA would not be payable.
05] In the above backdrop, we find that learned CAT, Madras Bench had dealt with the issue of payment of NDA at the Engine Factory, Avadi
which is a part of the Ordnance Factory Board, Kolkata. Learned CAT at Kolkata had delivered it’s judgment and which was cited before the
learned CAT Madras Bench.
06] The learned CAT, Bombay Bench has reproduced two portions of the judgment of the Madras Bench which read as under:-
“5. Learned counsel appearing for the applicants had brought to the notice of the Bench that similar issue was already decided by the Hon’ble
CAT, Jodhpur Bench in OA 34/2008 by an order and judgment dated 5.11.2009 and the same was confirmed by the Hon’ble Supreme Court of
India. He prayed to allow this OA by following the judgment and order dated 5.11.2009 in OA 43/2008 of the CAT, Jodhpur Bench.
Having considered the arguments of both the parties and after perusal of the material on record, I am of the opinion that similar issue has already
been dealt with by the CAT, Jodhpur Bench. The CAT, Jodhpur Bench has held that the respondents shall pay NDA to the applicants therein on the
basis of the actual pay thus calculated. I have also seen in the reply statement that the respondents have already informed the subject matter to the
Ministry of Defence by way of fax dated 9.12.2010 for necessary orders. In view of the facts and circumstances of the case and by following the
judgment and order dated 5.11.2009 in OA 34/2008 of the CAT, Jodhpur Bench, I am of the opinion that this is a fit case to direct the respondents to
calculate and pay night duty allowance payable to industrial employees working in the 4th respondent factory on the basis of the revised basic pay and
allowances drawn by them with effect from 1.1.1996 and 1.1.2006 as per the 5th and 6th Pay Commission’s recommendations respectively along
with arrears with effect from 1.1.1996. The respondents are further directed to complete the entire exercise within a period of three months from the
date of receipt of a copy of this order. In the result, the OA is allowed. No order as to cost.â€
07] The learned Advocate for the petitioner has strenuously criticized the impugned judgment and places reliance on specific pleadings set out in
paragraph 7 of the memo of the petition. The relevant portion reads as under:-
“In this connection, it is most respectfully submitted that subsequent to the said orders, Ministry of Defence has framed the policy with regard to
payment of Night Duty Allowance to the employees in line with the order of the Hon’ble CAT, Jodhpur order dated 05.11.2009 in O.A No.
34/2008 and issued order No. 17(4)/2012/D (Civ-II) dated 08.05.2015, in consultation with Ministry of Finance ( Deptt of Expenditure), Deptt. of
Personnel & Training and Ministry of Law & Justice. As per the said policy of Ministry of Defence, the eligible Defence Civilian Employees
Industrial and Non-Industrial employees are to be paid the Night Duty Allowance based on revised pay and allowance drawn by them w.e.d.
01.01.2006 and payment of arrears from April 2007. Accordingly, the said policy has been circulated vide Ordnance Factory Board Instructions No.
148/2015/Per/Policy dated 21.05.2015 for compliance at all Ordnance Factories. A copy of the said instructions dated 21.05.2015 is annexed herewith
as ANNEXURE-VIII.
08] The ground raised by the petitioners in paragraph 8 of the memo of the petition reads as under:-
“8. The matter of issue of revised policy on the Night Duty Allowance authorising payment of Night Duty Allowance as per revised rates w.e.f.
01.01.2006 had not been taken into consideration by Hon’ble Tribunal while passing their order dated 05.08.2016 in Original Application No.
2065/2014. The Original Application No. 2065/2014 was filed before the learned Tribunal well before the revised order dated 08.05.2015 on Night
Duty Allowance was issued by Ministry of Defence. It is worth submitting that during the period when matter was under the consideration of
Government for issue of revised policy and a decision was pending, the benefit of the judgement dated 08.08.2012 in O.A. No. 1391/2010 has been
extended for the Petitioners only as a one time measure. In view of the foregoing and considering that the order dated 05.08.2016 of the learned
Tribunal is passed without referring to the subsequent Development taken place as indicated above in the matter of granting Night Duty Allowance in
revised rates including that a policy decision has already been taken by the Government in the meantime.â€
09] It is, therefore, canvassed that as a policy decision was taken by the Government of India GOI-MOD for the Ordnance Factory Board, on
21.05.2015, NDA as per the revised rates under the 5th CPC recommendations, would not be payable for the period 01.01.1996 till 31.12.2005. It is,
however, conceded on the basis of the record that NDA was payable to these employees even during this period of ten years, but on the basis of the
wages revised under the 4th CPC recommendations.
10] Considering the above, we specifically called upon the learned Advocate for the petitioner to inform us as to what is the logic of extending the
benefits of NDA under the 4th CPC, 5th CPC and even 6th CPC recommendations and making the payment of NDA on the basis of the wage
revision under the 4th CPC recommendations for the period 01.01.1996 to 31.05.2005, when the 5th CPC recommendations were made applicable.
The learned Advocate has made a valiant attempt to convince us that the decision dated 21.05.2015 was taken by the Ordnance Factory Board which
was circulated to all concerned by the Director General Ordnance Factories. Therefore, NDA, though would be payable even for this period of ten
years, would be on the basis of the 4th CPC recommendations notwithstanding the applicability of the 5th CPC recommendations.
11] The learned Advocate for the petitioner has tried to convince us as regards the sanctity of the communication dated 21.05.2015 as being a
decision taken by the GOI-MOD. We find that there has been no change in the policy of the GOI of extending the benefits of NDA to all civilian
employees working in the Industrial Establishments and the Non-Industrial Establishments. NDA was made payable to all such employees
commensurate to the CPC recommendations as were applicable for the period of ten years under the 4th and the 6th CPC. We do not find any logic
behind depriving such civilian employees, the difference in the NDA payable under the 5th CPC recommendations. There is no reason cited before us
which would convince us that the GOI had consciously and thoughtfully decided to deprive such civilian employees only of the Ordnance Factories,
the payment of NDA based on the wage revisions that have been made applicable under the 5th CPC recommendations. We are also informed that
the difference in the NDA based on the 5th CPC recommendations vis-a-vis the 4th CPC recommendations, have been made to several employees of
the Ordnance Factories owing to the judgments of the various CAT benches and even to the non-litigating employees working in the Industrial
Establishments of the GOI as well as the Indian Railways.
12] We also find from the document dated 21.05.2015 which is the foundation of the case of the petitioner that there is no decision taken that the
eligible civilian employees who have received NDA under the 4th CPC recommendations and are eligible under the 6th CPC recommendations, will
not be entitled for the difference in the NDA under the 5th CPC recommendations. We, therefore, are unable to accept the strenuous submission of
the learned Advocate for the petitioners that the policy decision communicated by the letter dated 21.05.2015 would render such employees disentitled
for the difference in the NDA commensurate to the revised pay scales under the 5th CPC recommendations.
13] The learned Advocate for the respondents has pointed out a communication dated 04.10.2013 issued by the under Secretary (Estt./NG), Ministry
of Defence, D(Estt./NG) by which a decision was taken by the MOD that benefits of the judgment delivered by the learned CAT, Chennai Bench
would be implemented only in respect of the employees who are party to the cases. This leads to an inference that those who have not litigated for
their difference of NDA, shall not be paid the said benefits.
14] We find from Clause 26.5 which is a part of the 5th CPC recommendations that it was recommended that decisions taken in a specific case either
by the Judiciary or the Government, should be applied to all other identical cases without forcing the other employees to approach the court of law for
seeking an identical remedy or relief. It was, therefore, recommended that the decisions in cases where a principle or common issue of general nature
applicable to a group or category of Government employees, would also apply to those employees who have not litigated and have not approached the
Courts. This portion of Clause 26.5 has been reproduced under paragraph 14 of the judgment delivered on 27.08.2014 by the learned CAT, Madras
Bench at Chennai. Clause 26.5 is, therefore, reproduced as under:-
“26.5 Extending judicial decisions in matters of a general nature to all similarly placed employees. We have observed that frequently, in cases of
service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter
before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central
Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed and others v. UOI & others (O.A. Nos. 451 and 541 of 1991), wherein it was
held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties
to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C.
Ghosh v. UOI, [ (1992) 19 ATC 94 (SC) ], dated 20-7-1998;K .I. Shepherd v. UOI [(JT 1987 (3) SC 600]); Abid Hussian v. UOI [(JT 1987 (1) SC
147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other
identical cases without forcing the other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will
apply only in cases where a principle or common issue of general nature applicable to to a group or category of Government employees is concerned
and not to matters relating to a specific grievance or anomaly of an individual employee. In a later case of Uttaranchal Forest Rangers’ Assn.
(Direct Recruit) v. State of U.P.,(2006) 10 SCC 346, the Apex Court has referred to the decision in the case of State of Karnataka vs C Lalitha
(2006) 2 SCC 747 as under:
Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because
one person has approached the court that would not meet that persons similarly situated should be treated differently. If the administrative authorities
discriminate amongst persons similarly situated in matters of concessions and benefits the same directly infringes the constitutional provisions
enshrined in Art. 14 and 16 of the Constitution.â€
15] In view of the above, we do not find that there is any impediment for the linking of the NDA with the 5th CPC recommendations and the
employees, who are otherwise entitled for NDA and have received the benefits of the NDA linked with their wage structure under the 4th and the 6th
CPC recommendations, would be entitled for the difference in the quantum of NDA paid by linking it with the 5th CPC recommendations.
16] The learned Advocate for the petitioner has strenuously contended that the policy decision communicated by the MOD vide its circular dated
21.05.2015 was not placed before the learned CAT when it delivered the impugned judgment. Since we have extensively dealt with the said
communication and its effect, we do not find that, by placing the said communication before the learned CAT, there could have been any different
conclusion than the one arrived at in the impugned judgment.
17] In view of the above, this petition, being devoid of merits, is dismissed. Rule is discharged.
18] The learned Advocate for the petitioner submits that the impugned order will have far-reaching financial effects and would burden the treasury of
the Government of India. We are reminded of a similar argument made before the Hon’ble Apex Court in the case of Chief Conservator of
Forests & Another Vs. Jagannath Maruti Kondhare, reported in AIR 1996 SC 2898, in which it was canvassed that granting pay scale to daily wagers
on parity with the regular employees on the principle of ‘equal wages for equal work’, would foist a huge financial burden on the Central
Government Exchequer. The Hon’ble Apex Court had reacted to the said submission by recording as under :-
“We have not felt inclined to bear in mind this contention of Shri Dholakia as the same has been brought out almost from the hat. The argument
relating to financial burden is one of despair or in terrorem. We have neither been impressed by the first nor frightened by the second.â€
19] We wish to express the same view that we are not impressed by the said submission since, if the employees are entitled to certain monetary
benefits as a matter of right, they cannot be deprived of such benefits on the spacious plea that the Central Government will have to shoulder a
financial burden.
20] We expect the petitioners to make the payments to the respondents in view of the judgment of the learned CAT and the view taken by this Court,
within a period of twelve weeks.
21] Before parting with this matter, we deem it appropriate to record our appreciation for the efforts made by the learned Advocate for the
petitioners.