High Court of KeralaDivision Bench2020-02-26Petition allowed in part; directed refixation o...

OP (CAT).No.140 OF 2014(Z)

Case / Petition Number:OP (CAT).No.140 OF 2014(Z)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
P. V. Kunhikrishnan
Judgment Date: 2020-02-26
Court Decision / Holding: The Original Petition stands allowed to the above extent. The respondents are directed to refix the petitioners’ pay notionally as in 2000 and taking into account the 2010 upgradation, fix their pay notionally three years prior to the date of their representations, determine arrears from that date, revise any pension applicable, and pay arrears accordingly. No order on costs.
Final Disposition: Petition allowed in part; directed refixation of pay three years prior to representations with arrears and pension revisions, no costs.

Parties to the Case

Appellants / Petitioners

M.V. SREENIVASAN
K.P.RAVI
SUKUMARAN M.A.
UNNIRAJAN P.V.
KRISHNANKUTTY K.K.
SULEKHAN K.C.
RAMACHANDRAN.M.S. S/O.LATE SUBRAMANIYAN
REGHUNANANDANAN P.S.
JOSE U.D.
KANNAN T.M.
SURESH C.K.
SAILARAJAN P.E.
KRISHNA KUMAR V.K.
MOHANAN A.K.
UNNIKRISHNAN K.I.
JOHNSON P.L.
VIJAYAKUMAR V.K.
M.R.NARAYANAN SO.RAMANKUTTY
MADHAVAN K.N.
BALAKRISHNAN M.K.
MOHANAN V.K.

Respondents

UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, NEW DELHI
BHARATH SANCHAR NIG LTD. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SANCHAR BHAVAN, NEW DELHI
CHIEF GENERAL MANAGER TELECOM, BSNL., KERALA CIRCLE, TRIVANDRUM
PRINCIPAL GENERAL MANAGER TELECOMMUNICATION, BHARAT SANCHAR NIGAM LTD., THRISSUR - 682 016

Legal Representation & Advocates

Counsels for Petitioners

• SRI.P.A.KUMARAN
• SRI.NIRMAL V NAIR

Counsels for Respondents

• ASSISTANT SOLICITOR GENERAL
• SHRI P.VIJAYAKUMAR, ASG OF INDIA
• SRI P.J.PHILIP, SC, BSNL

Case Synopsis & Summary

The Kerala High Court exercises its jurisdiction under the Administrative Tribunals Act to review the Central Administrative Tribunal’s order dismissing OA 333/2014 in limine for delay of 12 years. The petitioners, 21 BSNL group-D employees promoted to Telecom Mechanics, challenge pay fixation after the replacement of Central Dearness Allowance (CDA) with Industrial Dearness Allowance (IDA) upon BSNL’s formation. They allege an anomaly: a junior, K.I. Francis, promoted in 2002, was drawing a higher pay in the same cadre. The Tribunal refused relief due to delay, noting the claim relates to 2002 and that the delay runs to nearly 12 years. Petitioners argue that identical grievances were granted relief in earlier judgments and in Tribunal decisions (Exhibits P6-P8), and rely on the Supreme Court’s Tarsem Singh decision to contend that the claim can be regarded as ongoing (recurring) and should be considered from three years prior to representations, i.e., from 2011–2014 period. The High Court accepts Tarsem Singh’s reasoning, finding the anomaly to be a recurring cause of action. It directs the respondents to refix pay notionally as of three years prior to the representations, account for the 2010 upgradation, and pay arrears accordingly, with pension revision where applicable. The petition stands allowed to this extent; costs are denied.

Provisions of Law Cited

Administrative Tribunals Act

Legal Doctrines & Maxims

Recurring cause of action doctrine
Tarsem Singh (supra) principle for backdating relief in continuing anomalies

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that the delay cannot defeats their remedy because the pay fixation anomaly arises from a continuing, recurring issue since 2002, with several similarly situated employees granted relief in earlier decisions. They relied on Annexures and exhibits showing prior fixation fixes and representations filed in 2014. They argued that Tarsem Singh (2008) supports backdating relief to three years prior to representations in cases of recurring anomalies, and sought a notional refixation of IDA pay as of that earlier date, with arrears and pension revision, to remedy the anomaly.

Contentions of Respondents

The respondents urged dismissal on grounds of laches and inordinate delay, arguing the claim relates to 2002 and was not timely pursued, and that the Tribunal correctly rejected OA 333/2014 in limine. They argued against retrospective relief and insisted on limitations on arrears, while relying on Tarsem Singh as supportive of three-year backdating only in the context of recurring actions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union of India & Others v. Tarsem Singh	2008 (8) SCC 648	Positive	Cited to support the principle that for recurring anomalies, the claim can be considered from three years prior to the representations, i.e., backdating relief.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 26TH DAY OF FEBRUARY 2020/7TH PHALGUNA, 1941** ## **OP (CAT).No.140 OF 2014(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 333/2014 DATED 22-05-2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 M.V. SREENIVASAN, S/O.VELAYUDHAN, TELECOM MECHANIC, TELEPHONE EXCHANGE, VELLANGALLUR, THRISSUR - 680 662, RESIDING AT MUNDACHERY HOUSE, KONATHUKUNNU P.O., PAINGODE, THRISSUR - 680 123.** - **2 K.P.RAVI, AGED 56 YEARS S/O.K.K.PONNAN, TELECOM MECHANIC, TELEPHONE EXCHANGE, KODAKARA, PIN: 680 684, RESIDING AT KODAKARKKAARAN HOUSE, MATTATHURKUNNU P.O., PIN: 680 684.** - **3 SUKUMARAN M.A., AGED 56 YEARS S/O.LATE APPU M.M., TELECOM MECHANIC, TELPHONE EXCHANGE, KODAKARA, THRISSUR - 680 684, RESIDING AT MOOLAMKUDATH HOUSE, MATTATHURKUNNU P.O., THRISSUR - 680 684.** - **4 UNNIRAJAN P.V., AGED 47 YEARS S/O.VELAYUDHAN, TELECOM MECHANIC, TELEPHONE EXCHANGE, MOORKANAD, THRISSUR - 680 711, RESIDING AT PANDARAPARAMBIL HOUSE, PARK ROAD, IRINJALAKKUDA, THRISSUR - 680 121.** - **5 KRISHNANKUTTY K.K., AGED 55 YEARS S/O.KUTTAN, TELECOM MECHANIC, TELEPHONE EXCHANGE, VALLAKKUNNU, THRISSUR - 680 683, RESIDING AT KANNOLY HOUSE, VAYALOOR, NELLAYI P.O., THRISSUR - 680 305.** OP (CAT).No.140 OF 2014(Z) ..2.. - **6 SULEKHAN K.C., AGED 50 YEARS S/O.CHERU, TELECOM MECHANIC, TELEPHONE EXCHANGE, VALLAKKUNNU, THRISSUR - 680 683, RESIDING AT KOLAYATTIL HOUSE, PARK ROAD, IRINJALAKKUDA - 680 121.** - **7 RAMACHANDRAN.M.S. S/O.LATE SUBRAMANIYAN, TELECOM MECHANIC, TEPHONE EXCHANGE, IRINJALAKKUDA, THRISSUR - 680 121, RESIDING AT MANGATTUKARA PARAMBIL HOUSE, OORAKAM P.O., THRISSUR** - **8 REGHUNANANDANAN P.S., AGED 49 YEARS S/O.LATE SANKUNNI, TELECOM MECHANIC, TELEPHONE EXCHANGE, IRINJALAKKUDA, THRISSUR -680 121, RESIDING AT PANAMUKKIL HOUSE, NEDUPUZHA, THRISSUR 680 015.** - **9 JOSE U.D., AGED 50 YEARS S/O.LATE DEVASSY, TELECOM MECHANIC, TELEPHONE EXCHANGE, ENGANDIYOOR, THRISSUR - 680 615, RESIDING AT UKKEN HOUSE, LISUE AVENUE, OLARIKARA, P.O.PULLAZHI, THRISSUR - 680 012.** - **10 KANNAN T.M., AGED 49 YEARS S/O.LATE MADHAVAN, TELECOM MECHANIC, TEPEPHONE EXCHANGE, ENGANDIYOOR, THRISSUR - 680 615, RESIDING AT THAZHATHUVALAPPIL HOUSE, ENGANDIYOOR P.O., THRISSUR.** - **11 SURESH C.K., AGED 49 YEARS S/O.KUNJAYYAPPAN, TELECOM MECHANIC, TELEPHONE EXCHANGE, KATTAKAMPAL, P.O.PAZHANJ, PIN: 680 542, RESIDING AT CHALLAYIL HOUSE, THOOVANUR, KECHERI P.O., THRISSUR - 680 501.** - **12 SAILARAJAN P.E., AGED 49 YEARS S/O.UNNIKRISHNAN NAIR, TELECOM MECHANIC, O/O.SDE, PERUMPILAVU, KARIKKAD P.O., PIN: 680 519, RESIDING AT PADINJARE ERAKKAT, IRUNILAMKODE P.O., MULLURKARA, PIN: 680 583.** OP (CAT).No.140 OF 2014(Z) ..3.. - **13 KRISHNA KUMAR V.K., AGED 50 YEARS S/O.KRISHNAN EZHUTHASSAN, TELECOM MECHANIC, O/O.SDE, PERUMPILAVU, KARIKKAD P.O., PIN: 680 519, RESING AT VALIYAPARAMBIL HOUSE, P.O.ENKAKAD, THRISSUR.** - **14 MOHANAN A.K., AGED 47 YEARS S/O.A.V.KRISHNAN, TELECOM MECHANIC, O/O.SDE (EXTERNAL), KUNNAMKULAM P.O., RESIDING AT ALLIPARAMBIL HOUSE, KUMARANALLOOR P.O., VADAKKANCHERY, THRISSUR.** - **15 UNNIKRISHNAN K.I., AGED 48 YEARS S/O.ITTY, TELECOM MECHANIC, O/O.SDE, PERUMPILAVU, KARIKKAD P.O., PIN: 680 519, RESIDING AT KANISATHU PADIKKAL HOUSE, KORATTIKKARA P.O., THRISSUR - 680 543.** - **16 JOHNSON P.L., AGED 49 YEARS S/O.LAZER P.D., TELECOM MECHNANIC O/O.SED (EXTERNAL), VELOOR, THRISSUR - 680 601, RESIDING AT PORATHOOR HOUSE, CHOONDAL P.O., THRISSUR - 680 502.** - **17 VIJAYAKUMAR V.K., AGED 50 YEARS S/O.KARUNAKARAN, TELECOM MECHANIC, O/O.SDE, KANDASSANKADAVU, THRISSUR, RESIDING AT VELATH HOUE, KARAMUKKU, P.O., KANDASSANKADAVU, THRISSUR - 680 613.** - **18 M.R.NARAYANAN SO.RAMANKUTTY TELECOM MECHANIC, O/O.SDE, KANDASSANKADAVU, THRISSUR, RESIDING AT MAMBULLY HOUSE, KANDASSANKADAVU, THRISSUR - 680 613.** - **19 MADHAVAN K.N., AGED 49 YEARS S/O.NARAYANANKUTTY, TELECOM MECHANIC, TELEPHONE EXCHANGE, INCHAKUNDU, THRISSUR - 680 312, RESIDING KANDEDATH HOUSE, VELLIKULANGARA P.O., THRISSUR - 680 699.** OP (CAT).No.140 OF 2014(Z) ..4.. - **20 BALAKRISHNAN M.K., AGED 53 YEARS S/O.KUNJUMON, TELECOM MECHANIC, O/O SDE, STL PROJECT UDAAN, PGMT OFFICE, THRISSUR, RESIDING AT MEKKOTTIL HOUSE, KANI PAYYOOR, KUNNAMKULAM, THRISSUR - 680 517.** - **21 MOHANAN V.K., AGED 48 YEARS S/O.KRISHNAN, TELECOM MECHANIC, PROJECT UDAAN, BSNL, KODUNGALLOOR, THRISSUR, 680 664, RESIDING AT VADAKKOODAN HOUSE, EDATHIRINJI, THRISSUR - 680 122.** **BY ADVS. SRI.P.A.KUMARAN SRI.NIRMAL V NAIR** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, NEW DELHI.** - **2 BHARATH SANCHAR NIGAM LTD. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, SANCHAR BHAVAN, NEW DELHI.** - **3 CHIEF GENERAL MANAGER TELECOM, BSNL., KERALA CIRCLE, TRIVANDRUM.** - **4 PRINCIPAL GENERAL MANAGER TELECOMMUNICAATION, BHARAT SANCHAR NIGAM LTD., THRISSUR - 682 016.** - **R1 BY ASSISTANT SOLICITOR GENERAL R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2 BY ADV. SRI.P.J.PHILIP,SC,BSNL(BHARAT SANCHAR N R2-4 BY ADV. SRI.P.J.PHILIPSCBSNLBHARAT SANCHAR N** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 26.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (CAT).No.140 OF 2014(Z) **==> picture [31 x 7] intentionally omitted <==** ## **JUDGMENT** ## K.Vinod Chandran, J. The applicants approached the Tribunal with a delay of 12 years, for which reason, the Tribunal refused to admit the Original Application and rejected it _in limine_ . 2. The applicants are Group-D employees, who were promoted as Telecom Mechanics. While they were continuing so, the pay of all employees in the Bharat Sanchar Nigam Limited (BSNL) was revised by replacing the Central Dearness Allowance (CDA) by Industrial Dearness Allowance (IDA). This is because the BSNL was formed carving out the Telecommunication sector from the Telecom Department and the same was constituted as an independent statutory corporation. OP (CAT).No.140 OF 2014(Z) **==> picture [31 x 7] intentionally omitted <==** 3. The grievance projected in the Original Application was with respect to pay fixation anomaly. While the Telecom Mechanics were fixed in the corresponding stage of the IDA scale, an admitted junior of the petitioners, one K.I.Francis, who was promoted with effect from 06.11.2002, was drawing a higher pay in the cadre of Telecom Mechanic. It is the fixation of that anomaly, the petitioners sought before the Tribunal. The Tribunal found that the claim is related back to the year 2002. There was a delay of almost 12 years, from the date on which the cause of action arose. The Tribunal, hence, rejected the claim. 4. The learned counsel for the petitioners points out that the Tribunal itself has referred to the decisions of the High Court and also the OP (CAT).No.140 OF 2014(Z) **==> picture [31 x 7] intentionally omitted <==** Tribunal, wherein identical grievances were projected by almost similarly situated persons. They were allowed such fixation and so were many others, who had filed representations. The representations of the petitioners at Annexure A5 series, however, had not been considered. It is also submitted that even with respect to similarly situated persons, the Tribunal had, by Exts.P6 & P8, allowed the entire claims raised, wherein also there was considerable delay in approaching the Tribunal. The learned counsel also placed before us the judgment of the Hon'ble Supreme Court in **Union of India & Others** v. **Tarsem** **Singh** [2008 (8) SCC 648]. **==> picture [415 x 12] intentionally omitted <==** petitioners had delayed their claim for about 12 years. The anomaly occurred in the year OP (CAT).No.140 OF 2014(Z) ..8.. 2002 and the representations at Annexure A5 series were filed only in the year 2014. The Original Application was filed before the Tribunal within the time as provided under the Administrative Tribunals Act after the representations were filed. In such circumstances, we are of the opinion that going by **Tarsem Singh** ( _supra_ ), the petitioners' claim can be considered from a date three years prior to the date of the representations, since the anomaly, which occurred in the year 2002 is a recurring cause of action, still continuing. 6. In such circumstances, we direct the respondents to carry out the refixation, notionally, as in 2000 and also taking into account the up-gradation granted in Ext.R1(c) produced herein of the year 2010, fix their OP (CAT).No.140 OF 2014(Z) **==> picture [31 x 7] intentionally omitted <==** pays notionally as on the date three years prior to the individual representations. If, on such fixation, any arrears have to be paid, the arrears shall be paid only from that date prior to three years from the representation. The pension, if any applicable, shall also stand revised and the arrears paid. The Original Petition stands allowed to the above extent. No order on costs. ## **Sd/-** ## **K.VINOD CHANDRAN** ## **JUDGE** **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** Bka/27.02.2020 OP (CAT).No.140 OF 2014(Z) ..10.. ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 P1; A TRUE COPY OF THE FINAL ORDER DATED 22/5/2014 IN OA 333/2014 ON THE FILES OF THE TRIBUNAL** **EXHIBIT P2 P2: A TRUE COPY OF THE JUDGMENT DATED 24/7/2008 IN WPC 30582/2008 ON THE FILES OF THIS HONOURABLE COURT.** - **EXHIBIT P3 P3: A TRUE COPY OF THE JUDGMENT DATED 23/9/2009 IN W.A 1028/2009 ON THE FILES OF THIS HONOURABLE COURT.** - **EXHIBIT P4 P4: A TRUE COPY OF THE JUDGMENT DATED 8/8/2011 IN O.P.(CAT) 2233/2011 ON THE FILES OF THIS HONOURABLE COURT.** - **ANNEXURE P5 P5: A TRUE COPY OF THE ORIGINAL APPLICATION AND ANNEXURES** - **ANNEXURE A1 TRUE COPIES OF THE PAY FIXATION MEMOS FOR IDA SCALE OF APPLICANTS** - **ANNEXURE A2 A TRUE COPY OF ORDER NO. BSNL/26/SR/2002 DATED 07.08.2002** - **ANNEXURE A3 A TRUE COPY OF THE ORDER NO. A0(ESTT)/E-2/08-09/WPC-30582/05/25 DATED 26.06.2010 ISSUED FOR THE 4TH RESPONDENT.** **ANNEXURE A4 A TRUE COPY OF THE FINAL ORDER IN OA.A 405/2011 AND CONNECTED CASES** **ANNEXURE A5 TRUE COPIES OF THE REPRESENTTIONS SUBMITTED BY ALL THE APPLICNTS DATED 26.04.2014** OP (CAT).No.140 OF 2014(Z) ..11.. **EXHIBIT P6** **A TRUE COPY OF THE RELEVANT PORTION OF THE FINAL ORDER IN O.A.558/2010 AND CONNECTED CASES.** **EXHIBIT P7** **A TRUE COPY OF THE LETTER NO. 2119/2011-PERS-III DATED 4.5.2012 ISSUED FOR THE 2ND RESPONDENT.** **EXHIBIT P8** **A TRUE COPY OF THE FINAL ORDER DATED 15.9.2017 IN O.A.730/2014 ON THE FILES OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P9** **A TRUE COPY OF ORDER DATED 28.1.2018 ISSUED BY THE 4TH RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(a) TRUE COPY OF THE COMPARISON STATEMENT OF THE PAY OF APPLICANTS AND JUNIOR** **EXHIBIT R1(b) TRUE COPY OF THE REPORT OF THE COMMITTEE CONSTITUTED TO EXAMINE ARBIRATION CASES OF NON- EXCUTIVES** **EXHIBIT R1(c) TRUE COPY OF LETTER NO 27-7/2008-TE -II DATED 23.03.2010 BY THE CORPORATE OFFICE OF BSNL**