A.Venkatachalam v. The Registrar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.01.2018

CORAM

THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH AND THE HON'BLE MR.JUSTICE RMT.TEEKAA RAMAN Writ Petition No.40807 of 2016 A.Venkatachalam ..

Petitioner Vs.

1. The Registrar Central Administrative Tribunal Madras Bench Chennai 600 104.

2. Union of India rep. by its Secretary Department of Telecommunication Sanchar Bhavan New Delhi 110 001.

3. Bharat Sanchar Nigam Limited rep. by its Chairman and Managing Director Corporate Office, Bharat Sanchar Bhavan Harish Chandra Mathur Lane Janpath, New Delhi 110 001.

4. The Chief General Manager BSNL, Tamil Nadu Circle Anna Salai Chennai 600 002.

5. The Assistant General Manager (Administration) O/o. Principal General Manager BSNL, Trichy 620 001.

6. The Secretary Department of Public Enterprises Government of India 14, CGO Complex Lodhi Road, New Delhi 110 003.

7. The Principal Controller of Communication Accounts BSNL, Tamil Nadu Circle Chennai 600 002.

..

Respondents

Petition under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records relating to the common order dated 31.3.2015 passed by the first respondent in O.A.No.995 of 2011 batch of cases, as corrected by the Corrigendum dated 24.8.2016 insofar as it relates to dismissal of O.A.No.117 of 2013as ordered in Para No.19(ii)(a) of the said impugned common order dated 31.3.2015 and consequently, direct the respondents 2 to 7 to restore the earlier pay scale of the petitioner which prevailed in March 2012 and also pay him pension and other attendant benefits accordingly including the arrears of pension and other attendant benefits thereof from April, 2012, both with due interest thereon to be fixed by this Court ignoring the alleged clarification of the sixth respondent.

For Petitioner : Mr.A.R.Gokulnath For Respondents 2 & 6 : Dr.G.Baskaran For Respondents 3 to 5 : Dr.D.Simon R1 : Tribunal

O R D E R

(Made by Huluvadi G.Ramesh,J) The petitioner joined the Department of Telecommunication as a Lineman and thereafter, promoted as Telecom Mechanic. Both the posts are Group 'C' posts. After the formation of Bharat Sanchar Nigam Limited (for brevity 'BSNL') on 01.10.2000, the petitioner was absorbed in BSNL on the option exercised by him. The said option was accepted and acted upon by the Government in 2002 and till then, his status as Government Servant was not changed. The terms and conditions of service of the employees, including the petitioner, were governed by the Central Government Rules and Supplementary Rules, even after the formation of BSNL. By Office Order dated 07.8.2002 issued by the third respondent, Industrial Dearness Allowance Pay Scales (IDA Pay Scales) was introduced in the place of Central Dearness Allowance Pay Scales (CDA Pay Scales).

2. At the time of his retirement, the petitioner received a communication dated 10.4.2012 sanctioning only a sum of Rs.5,73,212/- towards retirement benefits, withholding a sum of Rs.2,25,000/-. Hence, the petitioner made a representation to the seventh respondent on 30.5.2012 requesting to revise the sanction with all consequential benefits. By proceedings of the fifth respondent dated 17.10.2012, the petitioner was informed that his pay was revised retrospectively from 01.10.2000 fixing his last pay drawn as Rs.18,160/-, on the basis of an office

memorandum dated 17.12.2008 of the second respondent. Aggrieved by the same, the petitioner filed O.A.No.117 of 2013 before the Tribunal seeking to restore his earlier pay and to refund the withheld amount and for consequential benefits. The Tribunal, by order dated 31.3.2015, directed the respondents to refund the withheld amount, but however dismissed the other reliefs sought by the petitioner. Hence, the above writ petition.

3. Admittedly, the petitioner was transferred to BSNL on his exercising the option. At that time, basic pay was fixed in CDA Pay Scale, in the absence of any Standing Order. Thereafter, IDA Pay Scale was introduced and accordingly, the pay was revised by circular dated 07.8.2002, which has been given retrospective effect. In the meanwhile, the petitioner was promoted while he was drawing pay in CDA Pay Scale. Therefore, the pay of petitioner was revised as per the proceedings dated 17.12.2008 which had resulted in reduction of pay and recovery of amount paid in excess.

4. It is the contention of the petitioner that in the absence of any Standing Order for several years, the fixation of pay in IDA Scale without allowing him to exercise his option under FR 22(I)(a)(i) is erroneous. In this regard, it is to be noted that the Department of Telecommunication, by Official Memorandum dated 17.12.2008, has clarified that exercising option under FR 22(I)(a)(i) is not applicable to the employees of BSNL and that the Fundamental Rules governing the services of Central Government employees have no automatic application to the employees of a public limited company. Therefore, BSNL being a public limited company and the petitioner having become the employee of BSNL, the petitioner cannot exercise his option under FR 22(I)(a)(i) and accordingly, the contention of the petitioner is not sustainable.

5. According to the respondents, the stand taken in the Official Memorandum dated 17.12.2008 is a policy decision of the Government and it was issued keeping in view the benefits to all the employees of BSNL. Though it is contended that the policy decision rendering change in conditions of service void ab initio as per the judgment in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad [(1999) 6 SCC 275], we are of the view that it cannot be stated to be a policy decision, but rather it can be stated as an ad hoc arrangement made in the absence of any Standing Order or Rules being made during transition from Telecom Department to BSNL.

6. The learned counsel for the petitioner relied upon the decisions of the Apex Court in Lokmat Newspapers Pvt. Ltd. v. Shankarprasad [(1999) 6 SCC 275], Gurucharan Singh Grewal v. Punjab State Electricity Board [(2009) 3 SCC 94], and Oil and

Natural Gas Corporation Ltd. v. Petroleum Coal Labour Union [(2015) 6 SCC 494] and the decisions of the Tribunal of the Kerala, in support of his contentions and also to substantiate his claim that there cannot be any recovery of amount after retirement.

7. There is no dispute with regard to the fact that there cannot be any recovery after retirement. Therefore, the Tribunal had rightly directed the respondents to refund the amount recovered/withheld from the petitioner and accordingly, the amount recovered from the petitioner was refunded. Further, a perusal of the order of the Tribunal makes it clear that the Tribunal has taken note of the contentions raised by the petitioner and has properly dealt with the matter.

8. We are, therefore, of the view that the order of the Tribunal does not require any interference and accordingly, this writ petition is dismissed. However, there shall be no order as to costs.

Sd/- Assistant Registrar(CS VII) //True copy// Sub Assistant Registrar kpl To

1. The Registrar Central Administrative Tribunal Chennai 600 104.

W.P.No.40807 of 2016 MP(CO) GN(26/02/2018)