w w w . L a w y e r S e r v i c e s . i n

Sushil Kumar, Ex Deputy Director v/s Union of India, Ministry of Civil Aviation through the Director General of Civil Aviation, Safdurjung Airport, New Delhi & Another

Company & Directors' Information:- A K AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200MH2007PTC176382

Company & Directors' Information:- S V V AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200KA2008PTC046264

Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- S R C AVIATION PRIVATE LIMITED [Active] CIN = U74899DL1995PTC071383

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- M AND C AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63013KA2006PTC039002

Company & Directors' Information:- S. A. AVIATION PRIVATE LIMITED [Active] CIN = U63040DL2012PTC234038

Company & Directors' Information:- AVIATION INDIA PRIVATE LIMITED [Strike Off] CIN = U63033DL1996PTC077267

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- S K AVIATION PRIVATE LIMITED [Strike Off] CIN = U63090WB1999PTC089940

Company & Directors' Information:- P AND M AVIATION PRIVATE LIMITED [Active] CIN = U35999KA2021PTC143523

Company & Directors' Information:- S. S. AVIATION PRIVATE LIMITED [Active] CIN = U35300KA2007PTC043583

Company & Directors' Information:- R. S. INDIA AVIATION PRIVATE LIMITED [Active] CIN = U62100DL2006PTC153980

Company & Directors' Information:- J D M AVIATION INDIA PRIVATE LIMITED [Active] CIN = U63040PB2013PTC038242

Company & Directors' Information:- J T AVIATION PRIVATE LIMITED [Strike Off] CIN = U62200DL2011PTC216080

    Original Application No. 060/00608 of 2016

    Decided On, 03 August 2016

    At, Central Administrative Tribunal Chandigarh Bench

    By, MEMBER (J)

    For the Petitioner: B.S. Aggarwal, Advocate. For the Respondents: -------

Judgment Text

L.N. Mittal, Member(J):

1. This is second round of litigation initiated by applicant Sushil Kumar by filing this Original Application under Section 19 of the Administrative Tribunals Act, 1985.

2. Case of the applicant is that he was employee of Union of India (Respondent no. 1) and was absorbed in Public Sector Undertaking (PSU) Airports Authority of India (AAI) w.e.f. 2.10.1989 and was thus deemed to have retired from Union of India on 1.10.1989. At that time, full pension was payable on 33 years of qualifying service. Since the applicant had completed 18 = years service with respondent no. 1, he was granted prorata pension at the rate of 18.5/33 of the full pension.

3. With implementation of recommendations of the 6th Central Pay Commission (CPC), pension was also revised. However, for post- 1.1.2006 retirees, full pension was admissible for qualifying service of 20 years instead of earlier 33 years qualifying service. This benefit was, however, not extended to pre-2006 retirees. This discrimination was struck down by the Tribunal and Honble High Courts and upheld upto Honble Supreme Court. The applicant made representation dated 2.10.2015 (Annexure A-7) claiming full pension w.e.f. 1.1.2006 and also claiming arrears for earlier periods. Now, respondent no. 1 vide O.M. dated 6.4.2016 (Annexure A-6) has removed the aforesaid discrimination and has extended the benefit of full pension on qualifying service of 20 years even to pre-2006 retirees.

4. In the instant O.A., the applicant has sought quashing of order dated 16.5.2010 (Annexure A-2) regarding prorata pension given to the applicant on the basis of requirement of 33 years qualifying service instead of 20 years qualifying service and has accordingly sought pension at higher rate w.e.f. 1.1.2006, calculated prorata on the basis of requirement of 20 years qualifying service for full pension. The applicant has also claimed arrears alongwith interest.

5. During the course of hearing on the question of admission of the O.A. on 13.7.2016 when the counsel was questioned regarding limitation, he submitted that the applicant had earlier filed O.A. No. 1347/HR/2011 within limitation period from the impugned order dated 16.5.21010 (Annexure A-2), but the said O.A. was dismissed vide order dated 16.5.2013. Accordingly counsel for the applicant was directed to place on record copy of the said previous O.A. alongwith its order. The same have since been placed on record.

6. I have heard counsel for the applicant on the question of admission of the O.A. and perused the case file.

7. Counsel for the applicant reiterated that in view of judgments of the Tribunal and High Courts and Honble Supreme Court and consequent O.M. dated 6.4.2016 (Annexure A-6), the applicant is entitled to higher revised pension w.e.f. 1.1.2006 on the basis of requirement of 20 years qualifying service ( instead of 33 years service as earlier required) for full pension. Counsel for the applicant when confronted during the course of hearing regarding bar of res judicata, contended that similar 2nd O.A. No. 060/00107/2016 filed by Jai Narain Singal against Union of India and Another has been allowed by this Tribunal vide order dated 15.7.2016 and the present applicant is situated similarly. In view of this submission, file of O.A. NO. 060/00107/2016 Jai Narain Singal vs. Union of India & Another has also been requisitioned and perused.

8. I have carefully considered the matter. Although there appears to be some force in the claim of the applicant in view of O.M. dated 6.4.2016 (Annexure A-6) issued by respondent no.1, yet the instant O.A. is hit by bar of resjudicata. The claim made by the applicant in the instant O.A. was also made by him in his previous O.A. No. 1347/HR/2011 (besides other reliefs) which was dismissed by the Tribunal vide order dated 16.5.2013. Consequently, the instant O.A. to claim the same relief is patently hit by res judicata and, therefore, cannot be entertained.

9. In the aforesaid context, it is also highly significant to notice that in the instant O.A., the applicant completely concealed the material fact that he had earlier filed O.A. NO. 1347/HR/2011 which was dismissed by the Tribunal nor copy of the said O.A. or its order was placed on record. The applicant is thus also guilty of concealment of material fact and of not coming to the Tribunal with clean hands.

10. As regards parity with Jai Narain Singal (supra), perusal of O.A. No. 060/00107/2016 reveals that there was no averment in the said O.A. also that it was second O.A. by him for the same relief or that his earlier O.A. stood dismissed, a concealment made by Jai Narain Singal as made by the present applicant Sushil Kumar in the instant O.A. Moreover, Jai Narain Singal had filed his O.A. on 3.2.2016 i.e. before issuance of O.M. dated 6.4.2016. During the pendency of the said O.A., O.M. dated 6.4.2016 was issued and thereupon respondents on their own revised the pension of said applaint Jai Narain Singal as per O.M. dated 6.4.2016 vide letter dated 3.6.2016. In view thereof, in that O.A., counsel for the parties prayed that the O.A. be disposed of as infructuous and was accordingly disposed of as infructuous vide order dated 15.7.2016. Thus in that case, the Tribunal had no occasion to adjudicate the claim of the said applicant Jai Narain Singal nor at any stage it emerged before the Tribunal in that O.A. that it was second O.A. by Jai Narain Singal. Consequently, present applicant Sushil Kumar cannot claim parity with Jai Narain Singal when the instant O.A. filed by Sushil Kumar is barred by res judicata.

11. Instant O.A. is also barred by limitation as order dated 16.5.2010 (Annexure A-2) is under challenge. The O.A. has been filed on 12.7.2016 i.e. more than 6 years from the date of impugned order (Annexure A-2) although limitation period to challenge the same was one year only. In fact, the applicant had probably filed the previous O.A. No. 1347/HR/2011 within limitation, but the same stands dismissed vide order dated 16.5.2013.

12. In the aforesaid circumstances, it is evident that the instant O.A. cannot be entertained being barred by res judicata as well as limitation and also the applicant not having come to the Tribunal with clean hands. However, claim of the applicant prima facie seems to be genuine in view of O.M. dated 6.4.2016 issued by respondent no. 1- Union of India itself. Consequently, the applicant shall be at liberty, if so advised, to make fresh representation to respondent no. 1 on the b

Please Login To View The Full Judgment!

asis of O.M. dated 6.4.2016 (Annexure A-6). The instant order and order dated 16.5.2013 in previous O.A. filed by the applicant shall be no bar for respondent no. 1 (either on its own or on representation of the applicant) to grant the desired relief to the applicant if found entitled to the same. The applicant shall also be at liberty, if so advised, to file application for review of order dated 16.5.2013 passed by the Tribunal in his previous O.A. 1347/HR/2011 to claim the relief of enhanced revised pension w.e.f. 1.1.2006, in view of subsequent developments particularly issuance of O.M. dated 6.4.2016 (Annexure A-6). 13. Subject to observations in the preceding paragraph, the instant O.A. is dismissed in limine.