BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION NO.362 OF 2018
National Federation of Atomic Energy )
Employees & Ors. )..APPLICANTS
Versus
Union of India & Ors. ..RESPONDENTS
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REJOINDER OF THE APPLICANTS The Applicants above named wish to say and submit as under:-
(1) The Applicants have read and understood the reply filed dated 4th July, 2019 filed by A.S. Sukumaran, working as Deputy Establishment Officer, BARC, DAE, on behalf of the Respondents and the Applicants would like to say and submit as under by way of rejoinder thereto:-
(2) At the outset the Applicants would like to say and submit that any statements or submissions in the reply filed by the Respondents which are not specifically dealt with by the Applicants in this rejoinder, the said statements and submissions are denied and the Respondents are put to strict proof in respect thereof.
(3) At the further outset the Applicants would like to say and submit that since they may not be dealing with the contents of the reply filed by the Respondents para-wise any omission to deal with the contents of any particular paragraph or part thereof by the Applicants in this rejoinder, the same may not be treated as an admission of the contents of the said paragraph or part thereof and the Respondents are put to strict proof in respect thereof.
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(4) Without prejudice to the aforementioned preliminary submissions, the Applicants would like to say and submit as under by way of rejoinder thereto.
(5) With reference to paras 1 to 5 of the reply of the Respondents, the same are formal paragraphs except in para 5 the Respondents are admitting that the advertisement under which the Applicant Nos.3 to 7 were selected contained the condition that advance increments should be granted based on performance during training. If this is the condition in the advertisement then the Respondents have to explain how the said advance increment are now sought to be recovered or reduced which is the subject matter of the grievance in the present Original Application.
(6) With reference to paras 6 to 10 of the reply of the Respondents, the Applicants would like to say that the contention of the Respondents that reduction of the awarded advance increment is done to mitigate the disparity between the juniors and seniors is not correct in law. The Applicants say that on the contrary by the impugned action more prejudice has been caused to the employees. The Applicants further say that the arbitrary decision of the Respondents to reduce the advance increments granted is contrary to the judgments of the CAT, Mumbai and Madras Bench as upheld by the Hon’ble Supreme Court of India. Further, the said action is contrary to the clarification given by the nodal ministry with the Department of Expenditure in the Ministry of Finance, Government of India.
(7) With further reference to paras 6 to 10 of the reply of the Respondents, the contention of the Respondents that the said advance increments of new recruits who have been recruited on or after 1st January, 2006 was to mitigate the disparity between the seniors recruited prior to 1st January, 2006 and juniors recruited
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subsequent to 1st January, 2006 is an improper exercise and not tenable in law. The Applicants say that even after such exercise the disparity still persists as can be seen from the table given below:-
Name Grade Pay scale
C -4000-100-6000
D-4500-125-7000 Pay allowed after 6th CPC Appointed before 01.01.2006
Shri. Bijay Kumar T/C C+0 4000 7440
Shri.Balsaraf D M T/D D+0 4500 8370
Name Grade Pay scale
C -4000-100-6000
D-4500-125-7000 Pay allowed after 6th CPC and retrospective implementation of ID note dated 1st June, 2009 Appointed after 01.01.2006
Kum. Rani V Singh T/C C+0 4000 7510
Balsaraf D M T/D D+0 4500 8560
(8) With further reference to paras 6 to 10 of the reply of the Respondents, the Applicant would like to say and submit that the more proper method in such cases is to remove the alleged pay disparity between the juniors and seniors should have been by stepping up the pay of the seniors for which there is ample provision in the FRSR Rules. The Applicant says that the entire basis for the grievance has arisen because the Respondents have chosen to revise the norms on the issue of grant of advance increment retrospectively and sought to take away the benefit retrospectively instead of making the said change for future increments after the date of issue of the revised norms. The
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contention of the Respondents that they have the power under the Allocation of Business Rules is not proper and correct since the power under the said Rules is in regard to conducting the day-to-day affairs of the DAE and does not extend to altering, reducing or modifying the recommendations of the 6th C.P.C. as accepted by the Government of India.
(9) With further reference to paras 6 to 10 of the reply of the Respondents, the Applicants would like to say that the Respondents are well aware of the powers they can exercise in such matters and which is the reason for the respondents seeking for clarification from the Department of Expenditure, Ministry of Finance, Government of India, a Nodal Ministry as to how to regulate the grant of advance increments which are already granted by the Respondents. The Applicants say and submit that the contention taken in para 10 of the reply that the DAE has the necessary power to alter or modify the advance increment granted as per the CPC norms under the Allocation of Business Rules is not correct. In fact the clarification received from the Nodal Finance Ministry is selectively being implemented to somehow support the improper action on the part of the Respondents. The entire narration of facts in para 6 to 10 would clearly indicate that the Respondents have no case to oppose the reliefs sought for by the Applicants in the Original Application. The rest of paras 6 to 10 are denied.
(10) With reference to para 16 of the reply of the Respondents, the Applicants say that the action of the Respondents to re-fix the pay of the Applicants by taking away advance increments granted to the trainees is not correct and contrary to the judgments of the CAT, Mumbai and Madras Bench and the Hon’ble Supreme Court of India, apart from being contrary to the revised pay Rules and clarifications issued by the Finance Ministry. The Applicants say that similar action was taken by the DAE of releasing advance increments to trainees at the time of 3rd and 4th Pay Commission pay scale implementation and the said action was quashed by the said judgments which are annexed to the Original Application of the CAT, Mumbai and Madras Bench as well as the Supreme Court of India, which are annexed to the Original Application. The present action impugned in the Original Application is identical and fully covered by the said judgments and, therefore, the action impugned herein is required to be set aside by this Hon’be Tribunal.
(11) With reference to para 22 of the reply of the Respondents, the Applicants reiterate the averments in paras 4.12 and 4.13 of the Original Application as also the contents of the document at Annexure A-4 to the Original Application. The Applicants say that the contention taken by the Respondents that there is no mention in the appointment memorandum given to Dilipkumar Chaudhary that he has been granted 3 advance increments on his initial appointment though the Respondents are admitting that on his initial appointment the said Dilipkumar Chaudhary in the pay scale of Rs.4000-100-6000 under the 5th Pay Commission pay scale. The initial pay of the said Dilipkumar Chaudhary was fixed at Rs.4,300/- from the first date of his appointment. This itself indicates that the said Dilipkumar Chaudhary had been granted 3 advance increments since any new appointee in Government service fixed at the minimum of the pay scale. The Applicants say that the averments of the Respondents that the Applicants should produce all the relevant documents of the individuals 3 to 7 for verification by the Respondents is a strange argument because whatever documents are referred to by the Applicants in the Original Application are issued by the Respondents themselves and the originals of the said documents are at all times and even today only in the custody of the Respondents. The said averment clearly indicates the total lack of merits in the case of the Respondents.
(12) With reference to para 24 of the reply of the Respondents, the Applicants reiterate the averments in para 4.15 of the Original Application as also the contents of the documents at Annexure A-5 and A-6 to the Original Application. The Applicants say that the contention of the Respondents that on the refixation of pay of Dilipkumar Chaudhary under the 6th Pay Commission pay scales his pay was increased to Rs.7,810/- in the pay bank band of Rs.5,200-20,200 with grade pay of Rs.2,400/- is not stating the correct and complete facts. The Applicants say that the pay of Dilipkumar Chaudhary on refixation under the 6th Pay Commission pay scales was fixed at Rs.7,810/- by reducing two increments. It was essentially an advance increment granted to the said employee. The Applicants say that if all the 3 advance increments of the said Dilipkumar Chaudhary had been taken into account on refixatin of pay of the said Dilipkumar Chaudhary under the 6th Pay Commission pay scales would have been fixed at Rs.8,400/- instead of Rs.7,810/- resulting in a loss of Rs.590/- per month. The rest of the averments in the said paragraph are denied.
(13) With reference to para 25 of the reply of the Respondents, the Applicants reiterate the averments in para 4.16 and 4.17 of the Original Application. The Applicants say that the contentions in this paragraph of the reply are not correct in respect of Applicant No.4 Sasikumar N.S. The Applicants say that the said Sasikumar N.S. was granted 3 additional increments which would take his pay beyond Rs.8,000/- per month in the pay bank band of Rs.5,200-20,200 and which anomaly in the pay has not been explained or clarified by the Respondents in the entire reply. The rest of the averments in para 25 are denied.
With reference to paras 26 and 27 of the reply of the Respondents, the Applicants reiterate the averments in para 4.18 and 4.19 of the Original Application. The Applicants say and submit that in these two paras of the reply the Respondents are mainly relying upon the averments set out by them in para 24 of the reply and the averments in rejoinder to the said paragraph which are earlier set out herein are reiterated by way of reply to paras 26 and 27 of the reply.
(15) With reference to para 31 of the reply of the Respondents, the averments in paras 4.23 and 4.24 of the Original Application. The Applicants say that the contentions therein are not correct. The Applicants say that the contention taken by the Respondents that the Applicants in this case were recorded as Category II Trainees and not direct recruits is emphatically denied. The Applicants say that Category II Trainees are also directly recruited only and they have to undergo a period of training before they are appointed on direct recruitment basis. Therefore, it is not a case that all Category II trainees are promotes or that they cannot be treated as direct recruits. It is a clear case of the Respondents trying to create an artificial distinction without there being any basis for the same. The contention that the O.M. dated 7th October, 2010 at Annexure A-12 to the Original Application being not applicable to the Applicant is emphatically denied. The Applicants say that in fact the table in the reply of the Respondents itself supports the case of the Applicants that the said O.M. dated 7th October, 2010 applies to them and they have to be granted advance increments on that basis and the same cannot be reduced or recovered from the Applicant. The rest of the averments in the said para are denied.
(16) With reference to para 32 of the reply of the Respondents, the Applicants say that the contention that the pay of the Applicants is not reduced is emphatically denied. The other averments in the para of the reply relate to the earlier proceedings filed by the Applicants and the directions given by the Tribunal in the earlier proceedings which are matter of record. The speaking order being passed dated 12th July, 2017 which is impugned in the Original Application is also not in dispute. However, the contention that there was no response to the letter of the union and the employees dated 14th February, 2011 and 26th December, 2016 is not correct because the earlier Original Application No.252 of 2017 was filed by the Applicants only because there was no response to the said two letters of the Union.(the respondent has only reacted after the applicant filed the OA 252 of 2017)
(17) With reference to para 33 of the reply of the Respondents, the Applicants reiterate the averments in paras 4.27 to 4.29 of the Original Application. The contention of the Respondents that the judgments of the CAT, Mumbai Bench, Madras Bench and the Hon’ble Supreme Court of India were taken into account while deciding the representation by the speaking order dated 12th July, 2017 is not correct. The further contention that facts in the present case are different is also emphatically denied. The Applicants say that there is no iota of difference between the cases of the Applicants and the earlier cases decided by this Bench of the Tribunal, Madras Bench of the Tribunal and the Hon’ble Supreme Court of India. The Respondents have not shown as to what is the difference, on what basis and merely making a bold statement without particulars does not advance the case of the Respondents. The contention of the Respondents that the said judgments do not apply to the Applicants is also emphatically denied and it is reiterated that the Applicants are fully covered by the said judgments and are entitled to similar benefits on that basis.
(18) With reference to paras 34 and 35 of the reply of the Respondents, the Applicants reiterate the averments in paras 4.30 to 4.32 of the Original Application. The Applicant say that the so-called reasoned order dated 12th July, 2017 does not contain any reasons nor does it contain all the relevant facts and judgments applicable to the case of the Applicants and in a perfunctory manner with a pre-decided notion the said representations have been rejected. In fact there is no reason why the judgments cited in the said representations are not applicable to the case of the Applicants.
(19) With reference to paras 36 to 40 of the reply of the Respondents, the contention of the Respondents that there was no reduction of pay on re-fixation under the 6th Pay Commission or that the advance increments were not reduced is emphatically denied. The Applicants say that as pointed out in the Original Application and in the representations the advance increments granted to the employees have been reduced without a show cause notice and the pay has been effectively reduced after the benefit of advance increments have been granted and enjoyed by the employees for a number of years. The rest of the averments in the said paras are denied. The Applicants say that the Respondents have adopted a negative attitude in the present case and the averments contrary thereto are denied. The Applicants reiterate the averments in paras 4.33 to 4.39 of the Original Application.
(20) With reference to para 41 of the reply of the Respondents, the Applicants reiterate the averments in paras.4.40 and 4.41 of the Original Application and deny all averments contrary thereto. The Applicants say that when there is no dispute regarding the grant of advance increments the Respondents have to properly explain why the said advance increments granted and enjoyed by the Applicants employees and other similarly situated persons was reduced without notice to them on re-fixation of their pay under the 6th Pay Commission.
(21) With reference to para 42 of the reply of the Respondents, the Applicants say that the contention of the Respondents that the ID (Inter Departmental) note date 1st June, 2009 which is cited as a basis to reduce the advance increments is applicable to the Stipendiary Trainees Category I and Category II appointed during the period from 1st January, 2002 (1/1/2006) to 31st December, 2008 is an action which clearly indicates the illegality in the same. The Applicants say that there cannot be retrospective implementation of ID note and the same can be applied only prospectively.
(22) With reference to paras 43 and 44 of the reply of the Respondents, the Applicants reiterate the averments in paras 4.43 to 4.46 of the Original Application. The Applicants say that the contention taken by the Respondents that the Trainees who have been inducted in service after 1st January, 2006 are eliable for advance increments only as per the DAE ID Note dated 1st June, 2009 is emphatically denied. The Applicants say that it is rather strange that such an argument is advanced by the DAE which is absurd on the face of it. The Applicants say that a person who is appointed on 1st January, 2006 cannot have his pay fixed by virtue of a DAE Note issued three and half years after his appointment on 1st June, 2009. The Respondents have not shown as to how a Note issued in 2009 will govern the pay of the employee appointed 3 years prior thereto in 2006. It is clear that the Respondents have no basis for justifying the said illegal action impugned in the Original Application and, therefore, on that ground alone the Original Application is required to be allowed. The rest of the contentions in these two paragraphs are denied.
(23) With reference to paras 45 to 56 of the reply of the Respondents, the same deals with legal submissions set out by the Applicants. The Applicants reiterate all the legal submissions set out in the Original Application and deny all legal submissions which are contrary thereto or inconsistent therewith. The Applicants reserve their right to put forth additional legal submissions at the time of hearing of the Original Application.
Rests of the averments in the reply are without any merits and are required to be rejected.
(25) In the premises aforesaid, the Applicants say that the Original Application is required to be allowed with costs.
Mumbai dated this 6th day of February, 2020.
A.Shridharan,
General Secretary of
Applicant No.2 Union
Advocate for the Applicants
VERIFICATION
I, A.Shridharan, Aged ___ years, the General Secretary of Applicant No.2 Union do hereby solemnly verify that whatever is stated in the foregoing rejoinder is true and correct to the best of my own knowledge and belief and I believe the same to be true.
So verified at Mumbai this ____th day of February, 2020.
A.Shridharan,
General Secretary of
Applicant No.2 Union
Advocate for the Applicants
BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION NO.632 OF 2018
National Federation of Atomic
Energy Employees & Ors. ..APPLICANTS
Versus
Union of India & Ors. ..RESPONDENTS
REJOINDER OF THE APPLICANTS
Mumbai, dated this __th day of February, 2020.
Ramesh Ramamurthy,
Saikumar Ramamurthy,
Advocate for the Applicants
Islam Bldg.,1st foor, R.No.11,
Opposite Akbarallys,
46 Veer Nariman Road,
Fort, Mumbai 400 023.
