Jagannath Datta Vs the Union of India and 5 Ors.

ARMED FORCES TRIBUNAL (PRINCIPAL BENCH) WEST BLOCK-VIII SECTOR-1 R.K. PURAM NEW DELHI- 110066. 4:THE REGISTRAR-IN-CHARGE ARMED FORCES TRIBUNAL (REGIONAL BRANCH) 2ND FLOOR ASSAM POLICE HOUSING CORPORATION LTD. BEHIND ASSAM POLICE HEADQUARTERS DR. BK KAKATI ROAD REHABARI GUWAHATI -781008 (ASSAM). 5:THE CONTROLLER OF DEFENCE ACCOUNTS NARANGI P.O.- UDYAN VIHAR DIST.- KAMRUP(M) GUWAHATI -781027. 6:THE DEPUTY CONTROLLER OF DEFENCE ACCOUNTS AREA ACCOUNTS OFFICE BIVAR ROAD SHILLONG MEGHALAYA PIN- 793001. ------------

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For the Petitioner : Mr. A.R. Tahbildar, Adv.

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For the Respondents: Ms. B. Sarma, CGC. Ms. A. Gayan, CGC.

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BEFORE

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THE HON’BLE MR. JUSTICE SUMAN SHYAM

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Date of hearing & Judgement : 03/04/2025.

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Page No.# 3/8

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JUDGEMENT AND ORDER (ORAL)

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1. Heard Mr. A.R.Tahbildar, learned counsel for the writ petitioner. Also heard Ms. B. Sarma, learned CGC, appearing for the respondent nos. 1, 4, 5 & 6 and Ms. A. Gayan, learned CGC, appearing for the respondent nos. 2 & 3.

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2. The core controversy involved in this writ petition pertains to the decision of the authorities to unilaterally reduce the pay of the writ petitioner. The facts and circumstances leading to the filing of this writ petition, briefly stated, may be noticed as under.

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3. The writ petitioner herein has retired from service from the post of Subedar (Honorary Subedar Major) on attaining the age of superannuation with effect from 28/02/2017. At the time of his retirement, the basic pension of the petitioner was Rs. 33,700/- per month. After retirement, the petitioner was re-employed as Consultant (Junior Accounts Officer) on contract basis for a period of 1 (one) year after obtaining approval of the Chairman of the Tribunal, New Delhi, vide engagement letter dated 01/09/2023 and posted in the AFT, Regional Bench at Guwahati. Accordingly, the petitioner joined as Consultant (JAO) in the AFT, Regional Bench at Guwahati on 04/09/2023 by accepting the terms and conditions of appointment, as laid down in the letter dated 01/09/2023.

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4. While discharging his duties as Consultant (JAO), the contractual engagement of the petitioner had been extended for a period of another one year with effect from 04/09/2024 to 03/09/2025, on the same terms and condition. However, on 14/08/2024, the respondent no. 6 i.e. the Deputy Controller of Accounts, Area Accounts Office, Shillong, had issued a notification unilaterally reducing the emolument of the petitioner from Rs. 48,000/- per month to Rs. 35,300/- per month, allegedly on the ground that the remuneration fixed under the contract agreement was contrary to the guidelines laid down vide Office Memorandum dated 09/12/2020, issued by the Government of India, Ministry of Finance, Department of Expenditure. The notification dated 14/08/2024 is under challenge in this writ petition.

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5. By referring to the materials available on record, Mr. A.R. Tahbildar, learned counsel for the petitioner submits that his client was engaged on contract basis, on clear terms and conditions of contract. Notwithstanding the same, the respondents have acted arbitrarily by unilaterally reducing the emolument of the petitioner thus acting in breach of the conditions of appointment. It is also the submission of Mr. Tahbildar that save and except the petitioner

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Page No.# 4/8

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and another employee engaged on contract basis as Consultant (PPS) under the AFT, Regional Bench, Guwahati, all other similarly situated employees across the country, are being permitted to draw the amount equivalent to what had been offered to them as per the contract agreement. Therefore, submits Mr. Tahbildar, this is a clear case of arbitrary and discriminatory treatment meted out to the writ petitioner by the respondent authorities.

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6. Contending that the contractual service of his client is valid till 03/09/2025, Mr. Tahbildar has argued that until such time the existing contract expires, the authorities would be bound to pay the remuneration to the petitioner, as per the terms and conditions of the contract.

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7. Ms. B. Sarma, learned CGC, appearing for the respondent nos. 1, 4, 5 & 6, on the other hand, has argued that the remuneration offered to the petitioner under the contract agreement was not consistent with the guidelines laid down by notification dated 09/12/2020. Moreover, the remuneration offered to the petitioner under the terms and condition of the contract agreement, was not done after obtaining prior approval of the Principal Integrated Financial Advisor (PIFA). As soon as the anomaly was detected, the remuneration of the petitioner was reduced to a sum of Rs. 35,300/-, so as to make the total amount receivable by the petitioner including his pension as Rs. 48,000/-.

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8. Ms. A. Gayan, learned CGC, appearing for the respondent nos. 2 & 3 has produced the relevant records to demonstrate that the approval of the Finance Officer under the establishment of the PIFA was obtained by the AFT before issuing the engagement letter to the petitioner at a monthly remuneration to Rs. 48,000/-. I have perused the records so produced by Ms. Gayan.

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9. At the outset, it will be pertinent to note herein that the post of Consultant (JAO) in the AFT, Principal Bench, New Delhi is treated to be equivalent to the post of Assistant/Tribunal Master or equivalent. As per the Office Order dated 16/01/2023, the Assistant/Tribunal Master or equivalent post is entitled to monthly fixed remuneration of Rs. 48,000/-.

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10. As stated above, the petitioner was originally engaged on contract basis vide letter dated 01/09/2023 for monthly remuneration of Rs. 48,000/- per month. The terms and conditions of engagement of the writ petitioner as Consultant (JAO), issued on 01/09/2023, are reproduced herein below for ready reference :-

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Page No.# 5/8

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“1. You are hereby offered engagement as Consultant (JAO) in this Regional Bench, Guwahati in view of the Principal Bench, AFT letter No. 7(79)/2023/AFT/PB/Admin-II dated 01 Sep 2023 for a period of one year w.e.f. the date of joining or till the post is filled up on regular basis, whichever is earlier on the following terms and conditions :-

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(a) That, you will be paid a consolidated and fixed remuneration of Rs. 48,000/(Rupees forty eight thousand only) per month and will not be entitled to any other perquisites.

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(b) That, during the period of engagement, you will be entitled to 1.5 day’s paid leave for each completed month. In case of leave in excess of 1.5 day’s per month, deduction on pro-rata basis would be made from the lump sum contractual amount payable to you.

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(c) That, your engagement as Consultant (JAO) in the Armed Forces Tribunal, Regional Bench, Guwahati shall be subject to satisfactory performance and can be terminated without assigning any reason, whatsoever.

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(d) That, your engagement will be on full time basis and you will be required to attend the office on all the working days and also on holidays, if required on account of exigency of work, for which NO additional remuneration will be paid.

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(e) That, the Income Tax or any other tax liable to deducted at source as per prevalent rules will be deducted at source before effecting the payment for which the Department will issue TDS Certificate(s).

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(f) That, the appoint shall stand terminated automatically without any specific order to that effect on completion of the term of engagement and if the day of expiry of engagement happened to be a holiday, the engagement shall stand terminated a day before.

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(g) That, one month’s advance notice has to be given or an amount equal to one month’s remuneration has to be deposited by you, if you wishes to terminate the engagement immediately.

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(h) That, you will perform your duties with utmost devotion and assist in any other assignment given to you.

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This is to be informed that, NO Travelling Allowance for joining this engagement

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Page No.# 6/8

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as Consultant (JAO) is admissible.

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The expenditure to be booked under Code Head 040/07 (OE).

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This issues with the approval of the Competent Authority.”

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11. There is no controversy about the fact that the tenure of contractual engagement of the writ petitioner is till 03/09/2025. From a bare reading of the terms and conditions of engagement, it is clear that the petitioner was entitled to receive consolidated and fixed remuneration of Rs. 48,000/- per months. Such remuneration had no connection with the pension that he would be drawing due to his past services rendered under the Armed Forces. Not only that, it is also the admitted position of fact that the petitioner has been drawing a fixed salary of Rs. 48,000/- per month, until the month of June, 2024. There is nothing in the contract, which provides that the fixed remuneration paid to the petitioner would be adjustable against the pension drawn by him.

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12. It is no doubt correct that in the guidelines laid down by OM dated 09/12/2020, there is a clause pertaining to remuneration, which is quoted herein below for ready reference :-

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“ Remuneration

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A fixed monthly amount shall be admissible, arrived at by deducting the basic pension from the pay drawn at the time of retirement. The amount of remuneration so fixed shall remain unchanged for the term of the contract. There will be no annual increment/percentage increase during the contract period.”

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13. A bare reading of the aforementioned clause does indicate that the amount payable to an employee is required to be deducted from the basic pension. Be that as it may, the fact remains that no such indication was given in the engagement letter issued to the petitioner. Moreover, it is not understood as to how, basic pension of an employee can be deducted from the fixed monthly amount payable to a contractual employee since his engagement is purely governed by the terms and conditions of the contract. Not only that, the clause pertaining to remuneration, as noted herein above, prima facie appears to be mutually contradictory, inasmuch as, it has also been provided in that clause that the amount of remuneration so fixed by the contract, shall remain unchanged for the terms of the contract.

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Page No.# 7/8

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If the employment of the petitioner was provided for the fixed salary of Rs. 48,000/- minus his pension, the said fact ought to have been clearly mentioned in the appointment letter which was not done in this case.

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14. Be that as it may, the core issue arising for consideration of this Court in the present proceeding is as to whether, the petitioner has the right to receive the remuneration as per the terms and conditions contained in his appointment order. The answer to the said question, in the opinion of this Court, has is to be in the affirmative. Once an employee is engaged on contractual basis, all conditions of his service shall be governed strictly by the terms and conditions of the contract and the same cannot be altered unilaterally. Even if it is assumed that the engagement letter issued to the petitioner was contrary to the guidelines, even then, the writ petitioner cannot be made to suffer for the same. It is a different matter that even under the guidelines referred to by the respondents, the impugned action is found to be completely untenable in the eyes of law.

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15. As noted herein above, Ms. Gayan, learned CGC, has produced the records to show that necessary approval from the concerned authorities was obtained by the AFT before issuing the engagement letter to the petitioner. Therefore, the respondents cannot be allowed to contend that the remuneration offered to the petitioner, was not in accordance with the guidelines applicable in this case. Moreover, Ms. B. Sarma, learned CGC, has not been able to convincingly deny and dispute the assertion of the petitioner’s counsel that similar recourse had not been taken by the authorities in case of any other contractual employees serving in the various Benches of the Armed Forces Tribunal across the country.

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16. For the reasons stated herein above, this Court is of the opinion that the writ petition must succeed. The same is accordingly allowed.

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17. The impugned order dated 14/08/2024 qua the writ petitioner, is hereby set aside. Consequently, the petitioner is held to be entitled to receive a sum of Rs. 48,000/- as fixed monthly remuneration for the period of his contractual service. As such, the arrear dues payable to the petitioner with effect from July, 2024 till today, shall be paid to him within 01(one) month from today.

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18. Since the petitioner has been unduly made to suffer for no fault of his own and he has been denied the benefit of remuneration which was legitimately due and payable to him, the arrear amount, as payable to the writ petitioner, shall carry interest @ 12% (twelve

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Page No.# 8/8

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percent) per annum from the date on which the amount had become due, till realization of the same.

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19. For the current period, the petitioner shall continue to be paid the sum of Rs. 48,000/- per month till the period of validity of the contract agreement.

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With the above directions and observations, the writ petition stand disposed of.

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There shall be no order as to costs.

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Comparing Assistant

Jagannath Datta v. the Union of India and 5 Ors.

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Jagannath Datta v. the Union of India and 5 Ors.

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