In the High Court of Judicature at Madras
Dated :: 18..03..2011
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
Writ Petition No: 27793 of 2008
P.S. Munusami
No: 4/3, Karani Garden Main Street
Saidapet
Chennai 600 015. ... Petitioner
-vs-
1. The Managing Director
Chennai Metro Water Supply
and Sewerage Board
No: 1, Pumping Station Road
Chintadripet
Chennai 600 002.
2. The Chairman cum Secretary to Govt.
Chennai Metro Water Supply
and Sewerage Board
M.A. & W.S. Department
Secretariate
Fort St. George
Chennai 600 009.
3. The General Manager
Chennai Metro Water Supply
and Sewerage Board
No: 1, Pumping Station Road
Chintadripet
Chennai 600 002. ... Respondents
.. .. ..
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records relating to the impugned order of the 1st respondent in his Proc. No: CMWSSB / P & A / STF / RA1 / 29940 / 2007 dated 16.10.2007 and quash the same as highly illegal and consequently direct the respondents to give additional pay i.e. additional remuneration and allowances as to commensurate with the nature of work done by him from the date of additional work done till the date of retirement with consequential terminal benefits and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case.
For petitioner :: Mr. Prakash
M/s. Achari and Antoni Associates
For respondents :: Mr. B. Shantha Kumar
Standing Counsel for C.M.W.S.S.B.
.. .. ..
O R D E R
Heard Mr.Prakash for M/s. Achari and Antoni Associates learned counsel appearing for the petitioner and Mr. B. Shantha Kumar learned counsel appearing for the respondent Board.
2. This is a writ petition arising out of a decision taken by the respondents pursuant to the disposal of the writ appeal by this Court in W.A. No: 3259 of 2002 and thereafter as per the directions of this Court, the respondents have proceeded to hear the petitioner in a comprehensive manner taking into account every aspect of the matter which the petitioner had put forth and finally passed an order in Proceedings No: CMWSSB / P & D / STF / RA I / 29940 / 2007 dated 16.10.2007 which is challenged in this writ petition seeking to quash the same and for a consequential direction to give additional pay i.e. additional remuneration and allowances as to commensurate with the nature of work done by the petitioner from the date of additional work done till the date of retirement with consequential terminal benefits.
3. It is the case of the petitioner that he is a law graduate and joined service of the Corporation of Madras on 26.08.1967 and transferred as Junior Assistant on 01.08.1978 in the 2nd respondent Board. Subsequently, he was promoted as Assistant on 30.06.1980. During this period when he was employed as Assistant in the 1st respondent Chennai Metro Water Supply and Sewerage Board, hereinafter referred to as C.M.W.S.S. Board, he was deputed to attend the Court duties, especially to assist the legal advisors of the Board in addition to his normal work. As per the orders of the respondents dated 18.09.1983, 13.05.1985, 25.05.1985, etc. petitioner was posted permanently as Court clerk and made to represent the C.M.S.S.Board in the City Civil Court, Small Causes Court, Industrial Tribunal, Labour Court, Deputy Commissioner of Labour, Assistant Commissioner of Labour, Labour Officers in Kuralagam Building and all the Criminal Courts in Madras City. Petitioner claims that he underwent training course on “Court Procedure” conducted by the training centre of the Board on 24 and 25.08.1992 and from 16th to 19th August,1994.
4. According to him, the General Manager of the Board, by an order dated 04.05.1995 posted him in the Legal Cell Office for creating a legal library to take note of several important Court verdicts and for other purposes of updating the Act, Regulations, Manuals, etc. This work was initially attended by one Thiru. Pasupathy, Internal Auditor of the Board covered under Group ‘A’ category in the scale of pay of Rs.4,100 125 4,850 150 5,300 and that work has been assigned to the petitioner in addition to the earlier works. He made several representations to the respondents to give suitable placement with a time scale of pay. But no action was taken on his representation. But till petitioner’s retirement he was assigned to do the same work without any additional renunerations and allowances. During that he was period in-charge of more than 15,000 Court cases and was doing his work promptly to the satisfaction of the respondents. The work assigned to the petitioner is being attended by Assistant Law Officer in Corporation and his pay is equal to that of Senior Administrative Officer and he was made to do the work as that of the Assistant Law Officer but without any additional remuneration and allowance.
5. In that situation, as there was no positive decision from the respondent, petitioner filed a writ petition in W.P. No: 17943 of 1995 praying for a writ of mandamus directing the respondents to pay the same salary and allowance payable to group “B” employee of Madras Metropolitan Water Supply and Sewerage Board as that in the case of the Senior Administrative Officers. In that writ petition, the respondent filed his counter in June 1997 admitting the fact that the petitioner was assigned additional works. W.P. No: 17943 of 1995 was disposed of on 08.08.2002 after hearing the parties. The order runs to the effect that,
“It cannot be disputed and is not disputed by the respondent that the petitioner was required to do additional work over and above normal work assigned to him. Incidentally it may also be stated that the nature of work required to be done by his was very important and sensitive and he had to frequently attend the office of the Legal Advisor as well as the Court. He was required to keep track of all cases and he should have also spent considerable amount towards travelling expenses and other requirements. Additional work itself would justify the payment of additional remuneration which has not been properly considered by the respondent.”
The order further states that,
“The petitioner is directed to present a comprehensive representation to the Secretary of the Municipal and Administrative and Water Supply Department within a period of two weeks from the date of receipt of the copy of this order. He may bring to the notice of the said authority all the requisite facts for claiming additional benefits. On receipt of the said representation, the Secretary may give a hearing to the petitioner and pass appropriate orders within a period of six weeks thereafter. It is needless to mention that on the very face of the Office Order dated 18.09.1983, the petitioner will be entitled to additional remuneration and allowances and such remuneration and allowances shall be granted in favour of the petitioner which shall commensurate with the nature of work done by him with effect from the date from which the petitioner was required to discharge such additional duties”
Thus that writ petition was disposed of subject to the above observations.
6. Pursuant to the above order, petitioner gave a detailed comprehensive representation on 19.09.2002 to the respondent and subsequent to which respondent sent a communication on 28.10.2002 calling for petitioner’s personal appearance on 30.10.2002. But, without passing any order on petitioner’s representation, the respondent preferred an appeal in W.A. No: 3259 of 2002 and obtained a stay of the order made in W.P. No: 17943 of 1995. The writ appeal came to be dismissed by a Division Bench of this Court on 04.07.2007 confirming the order of the learned single Judge passed in W.P. No: 17943 of 1995. In its order, the Division Bench has observed that,
” The appellant Board should have considered the representation filed by the writ petitioner as directed by the single Judge. Further, the appellant Board is directed to comply with the order dated 08.08.2002 passed by the learned single Judge within a period of four weeks from the date of receipt of a copy of this order. ”
Subsequent to the order of the Court, the Board has sought for extension of time to comply with the order which was also ordered.
7. Further, on 16.10.2007, by proceedings No: CMWSSB/P & A /STF/RA1/29940/2007 the 2nd respondent passed an order rejecting the claim of the petitioner. It is stated in such order that, “The Board may give any work to any of its employees depending upon their skill, experience, qualification, etc. On that score higher scale of pay can neither be claimed nor be allowed.” Further, the order was to pay additional remuneration and allowance with effect from the date from which petitioner was doing additional work but the respondents passed an order paying out of pocket allowances for the period from 18.09.1983 to 18.10.2000 to a tune of Rs.5/- and later Rs.10/- per day as fixed allowance without paying additional remuneration and allowances as to commensurate with the nature of work for the above mentioned period as per the Order. But, admittedly petitioner was doing additional work till his retirement for which period the respondent has not paid the additional remuneration and allowance also.
8. In the above stated situation, the petitioner caused a legal notice to the respondents on 22.10.2007 requesting them to comply with the order of this Court. The said notice was served on the respondents on 23.10.2007. The respondents replied to such notice on 31.10.2007 by stating that the order of the Court dated 08.08.2002 was to dispose of petitioner’s representation and the same has been complied with. The order precisely says that, “It is needless to mention that on the very face of the Office Order dated 18.09.1983 the petitioner will be entitled to additional remuneration and allowances and such remuneration and allowances shall be granted in favour of the petitioner which shall commensurate with the nature of the work done by him with effect from the date from which the petitioner was required to discharge such additional duties”.
9. Thereafter, petitioner filed contempt petition in Cont. Petition No: 25 of 2008 which came to be dismissed with a finding that the direction to dispose of petitioner’s representation and that direction had been complied with. However, petitioner was given liberty to challenge the order of the 2nd respondent. Without prejudice to the rights raised in the present writ petition, petitioner received the amount sanctioned in the impugned order. Petitioner also filed a review in the above Contempt Petition in Review Sub Application No: 100 of 2008 which also came to be dismissed. Hence, petitioner has filed the present writ petition challenging the order of the respondent dated 16.10.2007 on the ground that the order of the 2nd respondent that only special allowances can be paid is against law since there is specific provision under the rules to give additional pay when the employees are given additional work over and above the normal work.
10. The 1st respondent Managing Director of the respondent C.M.W.S.S. Board has filed a counter affidavit on behalf of all the respondents. It is stated in the counter that petitioner has frivolously claiming repeatedly for payment of additional remuneration and allowances in the absence of any such provision either in the Service Regulations of the Board or in the C.M.W.S.S.B Pay Regulations for the post of “Assistant” held by him has no legal basis. Just because of the letter dated 18.09.1983 which contemplates that the petitioner shall attend to the work allocated along with other five staff members to assist the legal Adviser in addition to their normal work in respect of the cases filed against the defaulters for non-payment of Water and Sewerage Tax for the period 1979-80, 1980-81, 1981-82 does not provide him the right to claim the remuneration and allowances applicable to the post of Senior Administrative Officer of the Board. The petitioner was working in the Finance (Taxes) Department as Assistant since 30.06.1980 till the formation of the Legal Cell with effect from 12.02.1986 and joined the Legal Cell as Assistant on 19.02.1986. Except the petitioner none of the other staff members claimed any such imaginary additional remuneration and allowances for the allocation of work in addition to normal work entrusted to them by the Office Order dated 18.09.1983. Such being the case, the petitioner has no vested or legally enforceable right exclusively to claim additional remuneration and allowances in the absence of any provisions governing the staff members belonging to the General Sub-Ordinate Services of the Board under the Special Regulations 1982 for the post of ‘Assistant’. With reference to the Office Order dt. 18.09.1983, it is the stand of the respondents that the petitioner was deputed to assist the Legal Advisers in the conduct of cases filed against the defaulters for the period from 1979 to 1982 along with five other staff members of the Finance (Taxes) Department. The above allocation of work was given to the petitioner whenever the need arose or for any assistance sought for by the Legal Advisers as and when required in addition to the normal work in the Finance (Taxes) Department. Therefore, according to the respondents, the petitioner was allocated the said work only in the capacity of an “Assistant” and not with reference to his law qualification. The petitioner was fully aware of the statutory Pay Regulations applicable for the post of Assistant and other terms and conditions of his appointment. The Board has the right to allocate any work with reference to a post held by an employee when due to any exigency or it is considered necessary in the interest of the Administration. In the Pay Regulations of the Board it is patently evident from the Sub Regulation 3 of Employees Service (Pay) Regulations of CMWSSB, which reads thus :
” The whole time of an employee is at the disposal of the Board wihich pay him and he may be employed in any manner required by proper authority without claim for additional remuneration. ”
Therefore, it is for the competent authority to decide the nature of allocation of the work which requires to be performed depending on the respective posts held by the employee. Similarly, Regulation 28 in the Pay Regulations of the Board envisages that the Board may appoint an employee to hold full additional or to discharge the current duties of “another post” shall be allowed to draw ‘additional pay’ uniformly at the rate of 1/5th of the pay drawn in the ‘regular post’. In this case the petitioner was not appointed to hold additional charge of ‘any post’ or to discharge the duties of ‘another post’ but only as an Assistant to furnish the details and to assist the Legal Advisor with regard to the default in payment of Tax cases filed against the consumers which were specially posted for final disposal in the year 1983. In view of the nature of work done by the petitioner in the said department the additional allocation of work in the same Finance Department (Taxes) as and when required to assist the Legal Advisers, cannot be construed as an additional appointment to hold a different post or to discharge duties of another post, as contemplated under Regulation 28 of Pay Regulations of CMWSS Board.
11. In the counter affidavit of the respondents, it is further stated that the order passed by the Court in W.P. No: 17943 of 1995, which was confirmed in W.A. No: 3259 of 2002, was duly complied with by the C.M.S.S.Board with the directions issued by the Secretary to Government, M.A. & W.S. Department dated 15.10.2007 despite the fact that there was no statutory provision under the Service Regulations in particular the Pay Regulations of the Board. Whatever source of allowances available under the delegation of powers were considered by the Board in granting the allowance of Rs.24,190/- to the petitioner. Petitioner had suppressed the fact that he had received a sum of Rs.27,485/- – local conveyance allowance when he was promoted as Junior Administrative Officer from the post of Assistant in P & A (Vigilance Cell) Dept., and as Junior Accounts Officer in the Area Offices of the Board with effect from 31.10.2000 till14.10.2003. Despite the fact of having received both the allowances, he had filed the present writ petition for the issue of a writ of mandamus directing the Board to grant additional remuneration and allowances as to commensurate with the nature of work done by him from the date of additional work done till the date of retirement with consequential and other benefits.
12. On the other hand, Mr. B.Shantha Kumar learned counsel appearing for the C.M.W.S.S.Board would submit that as per the Regulations of the respondent Board, the competent authority has got ample power to depute any person for any work without any claim for additional remuneration and further only in cases where the Board appoints an employee to hold full additional or to discharge the current duties of “another post” shall be allowed to draw “additional pay” uniformly at the rate of 1/5th pay drawn in the “regular post”. He would also submit that petitioner’s case has been considered entirely on the basis of observations made by this Court and thereafter, petitioner had been paid a sum of Rs.24,190/- as an allowance. He would also add that the petitioner had already received a sum of Rs.27,485/- as local conveyance allowance when he was promoted as Junior Administrative Officer from the post of Assistant in P & A (Vigilance Cell). Therefore, according to the learned counsel for the respondents, the order impugned is the order passed in compliance of the decision rendered by this Court and hence, no interference is called for.
13. Mr. Prakash, learned counsel appearing for the petitioner has vehemently contended that the Additional Remuneration and Allowances as directed by this Court has not been paid by the respondents and the impugned order suffers from legal infirmity. He would further contend that in similar circumstances in the case of one V.K.Suresh Kumar, who was working as Junior Assistant, the Board had granted additional remuneration and allowances equivalent to that of Dy.P.R.M. whereas the petitioner’s case was not considered by them.
14. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents Board.
15. It is seen from the materials available on record that the petitioner joined service of the Corporation of Madras on 26.08.1967 and was transferred as Junior Assistant on 01.08.1978 in the 2nd respondent Board. Subsequently, he was promoted as Assistant on 30.06.1980. During the period when he was employed as Assistant in the 1st respondent/C.M.W.S.S. Board, as per the Office Letter dated 18.09.1983, he was deputed to attend the work relating to Court duties in addition to his normal duties. It is further seen that by the order dated 04.05.1995 the petitioner was posted in the Legal Cell Office for creating a legal library to take note of several important Court verdicts and for other purposes of updating the Act, Regulations, Manuals, etc., as he was a law graduate. Thus the petitioner was added with additional responsibilities. The work allocated to the petitioner, other than the normal work performed by him, pertaining to the Court work, liason with Board’s Legal Advisors in the preparation of parawise remarks , preparation of draft counters, draft appeal, draft reply to legal notice, settlement of their legal fees, etc. The grievance of the petitioner is that all the above facts have not been considered by the Board. Whereas, a perusal of the impugned order shows that the claim of the petitioner had indeed been considered by the respondent Board. The petitioner had claimed the remuneration and allowances as that of the Senior Administrative Officer in Grade V for which he had to first get promoted from the post of Assistant to Junior Administrative Officer and then to the post of Administrative Officer before getting promotion to the post of Senior Administrative Officer. The selection to the higher post is based on merit and seniority. The petitioner was only working as Assistant discharging the duties allotted to him by the Board. The Board has also referred to Pay Regulation (3) as stated supra. The relevant paragraph of the impugned order reads as under :
” The representation of the petitioner was carefully examined. The claim of the petitioner that he should be allowed the pay and allowances of the post of Senior Administrative Officer is untenable. Pay Scale are allowed only on the basis of the post held by a person. For example, an Assistant can only be allowed the scale of pay eligible to the post of Assistant irrespective of the duties assigned to him/her. The Board may give any work to any of its employees depending upon their skill, experience, qualification, etc. on that score, the higher scale of pay can neither be claimed nor be allowed, as such an act will be against the Regulation of the Board. In this case, the representation of Thiru.P.S.Munusamy is to allow to him the scale of pay of Senior Administrative Officer, which is three stage above the post of Assistant which he was holding at that time. The prmotions to higher posts carrying higher scale can only be allowed on promotion to higher posts and not others. Thiru.P.S.Munusamy himself was promoted as Junior Administrative Officer w.e.f. 16.06.2000 and again promoted to the post of Administrative Office w.e.f. 21.4.2004. As a result, the representation of Thiru.P.S.Munusamy, claiming pay and allowances on par with the post of Senior Administrative Officer cannot be considered and therefore his representation is rejected. However, it is seen from the records that Thiru.P.S.Munusamy was given additional work over and above his normal duties and he had discharged that additional responsibilities.
Considering the circumstances of the case, while he may not be given the scale of Senior Administrative Officer as claimed by him, the Board is directed to consider giving him a Special Allowance for the period when he discharged additional responsibilities.”
16. The above facts would reveal that consequent upon the orders of the Municipal Department petitioner had been paid a sum of Rs.24,190/- as Local Conveyance Allowance and further, he has received a sum of Rs. 27,485/- when he was promoted as Junior Administrative Officer from the post of Assistant in P & A (Vigilance Cell) Department and as Junior Accounts Officer in the Area Offices of the Board with effect from 31.10.2000 till 14.10.2003. The calculations arrived at by the respondents which are available in the typed set of papers would reveal that the amount shown ranges from Rs. 150/- per month to Rs. 280/- per month for different period of the calender years. It is not in dispute that the petitioner was given an additional responsibility on permanent basis as he was a law graduate. This aspect has been noticed by the Division Bench when it stated that, “it is needless to mention that on the very face of the Office Order dated 18.09.1983, the petitioner will be entitled to additional remuneration and allowances and such remuneration and allowances shall be granted in favour of the petitioner which shall commensurate with the nature of the work done by him with effect from the date from which the petitioner was required to discharge such additional duties.” In the backdrop of these observations that additional remuneration and allowances shall be granted in favour of the petitioner which shall commensurate with the nature of work done by him, petitioner claims that he has not been so paid by the respondents. He also claims that in the case of one V.K.Suresh Kumar, who was working as Junior Assistant, the Board had granted additional remuneration and allowances equivalent to that of Dy.P.R.M. whereas the petitioner’s case was not considered by them. Petitioner has also taken a strong ground that there is a specific provision under the Rule to give additional remuneration and allowances to the employees when they are given additional work over and above their normal work.
17. Though it is true that the respondent Board is vested with the power to allocate any work to its employees as the whole time of an employee is at the disposal of the Board which pays him and he may be employed in any manner required by proper authority without claim for additional remuneration, here is a case of an employee whose nature of work itself is to deal with the Board’s judicial matters namely liaison with Board’s Legal Advisors in the preparation of parawise remarks, draft counters, draft appeal, draft reply to legal notice, settlement of their legal fees, etc. This has been taken note of by this Court on the earlier occasions also namely while disposing of the earlier writ petition (W.P. No: 17943 of 1995) and the consequent writ appeal (W.A. No: 3259 of 2002). In other words, this aspect has been very well considered by both the learned single Judge as well as the Division Bench when it observed that the Board should take into consideration the important aspect namely the petitioner was dealing with very sensitive legal matters on a permanent basis which is in addition to his normal duties and responsibilities. It is equally true that the work assigned / allocated to the petitioner by way of additional work cannot be equated with that of the Senior Administrative Officer. The respondents had very categorically stated in the impugned order that promotions to higher posts carrying higher scale can only be allowed on promotion to higher posts and not otherwise. It is also stated that the remuneration and allowances claimed by the petitioner are that of the Senior Administrative Officer in Grade V and that the petitioner’s post of Assistant is Grade IX. It is the stand of the respondents that to enable the petitioner to get the remuneration and allowances as claimed by him, he must first be promoted as Junior Administrative Officer, then Administrative Officer and thereafter Senior Administrative Officer.
18. It is the specific case of the petitioner that there is a provision in the Rules and Regulations governing the employees of the C.M.W.S.S. Board to grant additional remuneration and allowances to its employees when they are given additional work and responsibilities over and above the normal work done by them. It is also his case that in respect of a Junior Assistant namely V.K.Suresh Kumar the respondent Board has granted additional remuneration and allowances equivalent to that of Dy. P.R.M. If that be so, there is an obligation on the part of the respondent Board to look into the grievance of the petitioner taking into account the nature of work handled by him and accordingly calculate the amount of additional payment.
19. While considering the above circumstances, though this Court is not inclined to strike down the entire order impugned in this writ petition, this writ petition stands disposed of with a direction to the 1st respondent to place the matter before the Chairman of the respondent Board for an appropriate decision, taking into account the decision rendered by this Court in W.P. No: 17943 of 1995, which was confirmed in W.A. No: 3259 of 2002 as well as by considering every aspect of the claim put forth by the petitioner particularly the grant of additional remuneration to one V.K.Suresh Kumar, Junior Assistant. Consequently, connected miscellaneous petition is closed. There shall be no orders as to the costs.
Index : Yes / No 18..03..2011
Website : Yes / No
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To
1. The Managing Director
Chennai Metro Water Supply
and Sewerage Board
No: 1, Pumping Station Road
Chintadripet
Chennai 600 002.
2. The Chairman cum Secretary to Govt.
Chennai Metro Water Supply
and Sewerage Board
M.A. & W.S. Department
Secretariate
Fort St. George
Chennai 600 009.
3. The General Manager
Chennai Metro Water Supply
and Sewerage Board
No: 1, Pumping Station Road
Chintadripet
Chennai 600 002.
V. Dhanapalan, J.
W.P. No: 27793 of 2008
18..03..2011
