Jagat Jiban Biswas and Others vs Union of India and Others

Tapan Kumar Dutt, J.—Heard the learned Advocates for the respective parties.

The aforesaid three petitions were taken up for analogous hearing in terms of the order dated 20.04.2004 passed by the Hon''ble Division Bench in A.P.O. 694 of 1998, A.P.O. 566 of 2000 and A.P.O.T. 113 of 2001.

In W.P. No. 2354 of 1996 the petitioners'' case, very briefly, is that the petitioners are working in the post of Commodores/Commanders in the Marine Department of the Kolkata Port Trust. The learned Advocate for the petitioners submitted that the petitioners are in the category of E.17 who happen to be the Class I Officers. Prior to 01.01.1992 the Pay Scale of the petitioners was Rs.4,800-175-6,500 and owing to a revision in the Pay Scale, the Government of India, Ministry of Surface Transport (Port Wing) by a letter dated 27th January, 1996 informed the Chairman of all the Major Port Trusts and Dock Labour Boards that the petitioners (E.17) and other Class I Officers in the category of E.18, E.19 and E.20 have been clubbed together and the Pay Scales have been revised to Rs.7,000-275-8,100-300-9,600 with effect from 01.01.1992 for a period of five years. The revised Pay Scales of the said categories of Officers, as indicated in the said letter dated 27.01.1996, are as follows:

Existing Pay Scales

Revised Pay Scales

E.17 4800-175-6550

E.18 4650-175-6575

7000-275-8100-300-9600

E.19 4900-175-6650

E.20 5000-175-6750

The petitioners were not in any way aggrieved with such revision of Pay Scales as indicated in the said letter dated 27.01.1996 (Annexure A to the writ petition). The petitioners are aggrieved by a subsequent letter dated 19th March, 1996 issued by the Ministry of Surface Transport (Port Wing) Government of India to the Chairman of all the Major Port Trust and Dock Labour Boards wherein it has been indicated that in supersession of the earlier letter dated 27th January, 1996 and in the light of the discussions held with the representatives of the All India Port Trust and Dock Labour Board Federations from 5th - 7th February, 1996 and 19th March, 1996 it has been decided that the Pay Scales, allowances and other perks of Class I and Class II Officers with effect from 01.01.1992 will be as indicated in the said letter. It appears from the said letter that E.17 category of Officers have been clubbed together with the E.16 category of Officers. The Officers under the category of E.18, E.19 and E.20 have been clubbed together with the Officers in the category of E.21. The Pay Scales which existed prior to the revision and the Pay Scales which came into existence after the revision have been indicated in the said letter dated 19.03.1996 as follows:

Existing Pay Scales

Revised Pay Scales

16.4350-150-4950-175-6525

(13)

7000-275-8100-(10) 300-9900

4800-175-6550

(10)

4650-175-6575

(11)

4900-175-6650

(10)

7500-300-10200 (9)

5000-175-6750

(10)

5150-175-6900

(10)

The petitioners'' grievance is that the subsequent decision of the authorities, as indicated in the said letter dated 19th March, 1996 (annexure B to the writ petition), is bad in law, illegal, mala fide, arbitrary and contrary to the guidelines of Department of Public Enterprise. The learned advocate for the petitioners also submitted that the petitioners were not given any opportunity of hearing before the decision, as indicated in the said letter dated 19th March, 1996, was taken by the authorities concerned.

It appears that by an order dated 4th August, 1998 an Hon''ble single Judge of this Court (as His Lordship then was) was pleased to allow the said writ petition and direct the respondents to give effect to the Revised Scale of Pay in relation to the petitioners in terms of the aforesaid letter dated 27.01.1996. The learned Advocate for the petitioners further submitted that by an order dated 15.07.1999 the fifth line from the bottom of page 2 of the order dated 04.08.1998 was modified by the said Hon''ble single Judge to the extent that instead of 27.01.1996 and annexure A it should be read as 19.03.1996 and annexure B respectively. It further appears that an appeal being A.P.O 694 of 1998 was filed by the Kolkata Port Trust against the aforesaid order dated 04.08.1998. An Hon''ble Division Bench of this Court by order dated 20th April, 2004 was pleased to dispose of the said appeal along with two other appeals namely, A.P.O. 566 of 2000 (arising out of W. P. No. 615 of 2000) and A.P.O.T. 113 of 2001 (arising out of W.P. No. 2027 of 2001). The Hon''ble Division Bench was pleased to set aside both the orders dated 04.08.1998 and 15.07.1999 and remit the matter back to the Hon''ble single Judge for deciding afresh, with liberty to the Kolkata Port Trust to file supplementary affidavit and also with liberty to the petitioners to reply to the same. Their Lordships were also pleased to direct that the salary which has been drawn by the writ petitioners shall not be recovered by the respondent authorities till the matter is decided by the Hon''ble single Judge and the writ petitioners will get the Pay Scale during the pendency of the matter as per the order dated 19th March, 1996. The Hon''ble Division Bench was pleased to dispose of the other two appeals, as aforesaid, in the light of the observations made in the said order dated 20.04.2004 and liberty was given to the Kolkata Port Trust/Union of India to file affidavit-of-opposition and also liberty was given to the petitioners to file their reply. The Hon''ble Division Bench was pleased to direct that all the three writ petitions would be heard analogously."

The learned advocate appearing on behalf of the petitioners submitted that the decision taken by the respondents-authority concerned, as indicated in the said letter dated 19.03.1996, is bad in law, arbitrary, illegal, mala fide and in violation of the principles of natural justice. In the supplementary affidavit on behalf of the respondent Nos.2 and 3 (Kolkata Port Trust authorities) a copy of the affidavit of one Kandikatla James Divya Prasad, affirmed on 11th February, 1999, has been annexed and the respondents have relied heavily on such affidavit. The respondents have stated that the reason for which the said letter dated 19.03.1996 came into existence has been explained in such affidavit. The learned advocate for the petitioners submitted that in the letter dated 19.03.1996 no proper reason was given by the respondents-authorities. The learned advocate for the petitioners referred to paragraph 2 of the said affidavit dated 11.02.1999. From the said paragraph 2 of the said affidavit it appears that the deponent of the said affidavit has stated that a Pay Revision Committee under the Chairmanship of the Chairman, Mumbai Port Trust was constituted and the said Committee submitted its recommendations with regard to the revision of pay scales and allowances of the Class I & II officers of the Port Trust and Dock Labour Boards w.e.f. 01.01.1992 to the Ministry concerned but such recommendations could not be accepted by the Government as those were on the higher side and as such the pay scales provided in the guidelines of Department of Public Enterprises were extended to the Class I & II officers vide the Ministry''s order dated 27.01.1996. It further appears from the said paragraph that the officers'' Federation raised a demand that the revision of pay should be as per the recommendations of Pay Revision Committee and the officers went on one day''s strike, and to avoid an indefinite strike discussions were held. It has been further stated in the said paragraph that on the basis of the understanding arrived at between the Federation and the Management, revised orders on pay revision were issued on 19.03.1996 accepting the recommendations of the Pay Revision Committee and, therefore, re-grouping and revision of pay-scales were done accordingly as indicated in the Ministry''s order dated 19.03.1996.

The petitioners'' learned advocate submitted that the officers of E.20 and E.21 category were senior in rank than the officers in the category of E.18 and E.19 and their pay-scales were also higher but, nonetheless, the category of E.18 and E.19 were clubbed together with E.20 and E.21 by Ministry''s letter dated 19.03.1996. But the E.17- officers were clubbed together with E.16 when officers of E.16 category were lower in rank and also had a lower pay-scale. The said learned Advocate submitted that the petitioners who were placed in the same group as that of E.18 and E.19 category by the Ministry''s earlier order dated 27.01.1996 could not have been subsequently placed in a lesser advantageous position than that of E.18 and E.19 category. It was further submitted on behalf of the petitioners that no opportunity of hearing was given to the petitioners before issuance of the Ministry''s order dated 19.03.1996 or even at the time when discussions were held as stated in paragraph 2 of the said affidavit dated 11.02.1999. The petitioners'' learned Advocate further submitted that the officers of E.17, E.18 and E.19 category do equal work and that prior to the issuance of the Ministry''s order dated 27.01.1996 the E.18 officers had a pay-scale lower than the pay scale of the E.17 officers. It is the further case of the petitioners that the respondents acted in violation of the principles of natural justice and the petitioners, who did not participate in the strike, were made to suffer and the petitioners were not heard when discussions took place, as aforesaid. The learned Advocate for the petitioners submitted that the petitioners are not members of the All India Ports and Dock Labour Board officers'' Federation. The writ petitioners have challenged the impugned letter dated 19.03.1996 and the learned Advocate for the petitioners submitted, by making a comparison of the revised pay-scales, as indicated in the said letter dated 19.03.1996, that it is the petitioners who have been made to suffer. The petitioners'' learned advocate cited certain reported decisions as follows:

The decision reported at Basudeo Tiwary Vs. Sido Kanhu University and Others, was cited for the proposition that audi alteram partem, which is a facet of natural justice, is a requirement of Article 14 of the Constitution of India as indicated in paragraph 9 of the said reports. There cannot be any dispute with regard to such proposition of law.

Reference was made to paragraph 10 of the decision reported at Om Prakash Mann Vs. Director of Education (BASIC) and Others, and the petitioners'' learned Advocate submitted that in the instant case the petitioners have been adversely affected by the manner in which the subsequent clubbing of pay-scales has been done.

Paragraph 53 of the decision reported at Rajesh Kumar and Others Vs. D.Commissioner of Income Tax and Others, was cited for the proposition that if an authority intends to pass an order which may prejudicially affect a person and make the person suffer civil consequences, then in that event the principles of natural justice must be held to be implicit.

The petitioners'' learned Advocate next referred to Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, while making submissions on the concept of pay- scales and also in support of the contention that when a government revises pay-scales a fitment exercise takes place.

The petitioners'' learned Advocate next referred to paragraph 5 of the decision reported at State of Mizoram and Another Vs. Mizoram Engineering Service Association and Another, in support of the contention that the Government cannot be permitted to discriminate between similarly placed individuals and that in the absence of special reasons the petitioners cannot be given a lower pay-scale than that of the officers of E.18 and E.19 category.

Reference was next made to the decision reported at T.K. Rangarajan Vs. Government of Tamil Nadu and Others, for the proposition that employees do not have any fundamental right to strike. The petitioners'' learned advocate submitted that even though the petitioners had followed the law by not participating in the strike yet the petitioners were made to suffer by way of revision of pay-scales.

The petitioners'' learned Advocate also referred to the decision reported at State of U.P. and Others Vs. U.P. Sales Tax Officers Grade II Association, in support of the contention that considering the nature of duties and functions of the officers of E.17, E.18 and E.19 category such officers should be in the same pay-scale and that they were so in terms of the Ministry''s earlier letter dated 27.01.1996.

The learned advocate appearing on behalf of the respondent Nos. 2 and 3 (Calcutta Port Trust authorities) in W.P.No.2354 of 1996 submitted that the writ petitioners have not challenged the Pay Revision Committee''s report and, therefore, the pay-scales fixed on the basis of such report cannot be questioned by the writ petitioners.

The learned advocate for the said respondent Nos. 2 and 3 submitted that there was a mistake on the part of the authority concerned in adopting the guidelines of the department of public enterprises and fixing Pay Scales accordingly. The said learned advocate could not dispute the fact that a strike did take place and the authorities concerned, thereafter, accepted the Pay Revision Committee''s Recommendation. According to the said learned advocate, the respondent authorities concerned did not commit any wrong in its actions. According to the said learned advocate since the petitioners have not challenged the recommendations made by the Pay Revision Committee, the petitioners cannot challenge the action taken by the respondent authorities.

The said learned advocate cited a decision reported at Government of Maharashtra and Others Vs. Deokar''s Distillery, and referred to paragraph 38 of the said reports in support of his contention that since the petitioners have not challenged the Pay Revision Committees'' recommendations, the petitioners cannot question the fixation of pay-scale according to such recommendations.

The learned advocate appearing on behalf of the petitioners submitted, in reply, that in the letter dated 19th March, 1996 the recommendations of the Pay Revision Committee were not mentioned and the basis of making such further revision in the pay-scales pursuant to the revision indicated in the earlier letter dated 27.01.1996 was not disclosed. The petitioners'' learned advocate further submitted that the letter dated 19.03.1996 does not disclose any reason, whatsoever, for the purported revision of the pay-scales. According to the said Learned Advocate, it would appear from the statements made in paragraph 2 of the said affidavit dated 11th February, 1999 affirmed by the aforesaid Kandikatla Japes Divya Prasad that the respondents were not really dissatisfied with the grouping of the employees as indicated in the letter dated 27.01.1996 but the revision of pay-scales under challenge in the writ petition was made pursuant to an understanding arrived at between the aforesaid Federation and the Management as would appear from the aforesaid paragraph 2 of the said affidavit itself. The petitioners'' learned advocate submitted that the writ petitioners were not parties to such understanding and such understanding was arrived at under pressure from the employees and/or their Union who participated in the said strike. The said learned advocate further submitted that the stand taken by the learned advocate appearing on behalf of the respondent Nos.2 and 3 in this regard (i.e. the submission that the writ petitioners have not challenged the recommendations of the Pay Revision Committee in their writ petition) has not been pleaded by the said respondents.

It appears from the writ petition that the petitioners have made a prayer that the impugned re-grouping of the petitioners'' pay-scale should be set aside. The petitioners have also taken a ground in their writ petition that the impugned revision of pay-scales and/or re-grouping has been done behind the back of the petitioners and without giving the petitioners any reasonable opportunity of being heard and thus the respondents have violated all principles of justice and fairplay. In paragraph 2 of the said affidavit dated 11th February, 1999 it has been stated that to avoid an indefinite strike the office bearers of the said Federation were called for a discussion to sort out the issue and thereafter the matter was discussed and the pay revision, as indicated in the letter dated 19th March, 1996, took place. The respondent authorities did not disclose any reason in their letter dated 19th March, 1996 as to why a subsequent change in the pay-scales and the re-grouping of the categories of employees became necessary and it was not disclosed in the said letter that the Pay Revision Committees'' Recommendations were being accepted or that there was a mistake in following the guidelines of the department of public enterprises. Thus the point raised on behalf of the respondent Nos. 2 and 3 is without any substance.

The learned advocate appearing on behalf of the respondent Nos. 2 and 3 further submitted the petitioners have not suffered any loss in view of the subsequent revision of pay-scales as indicated in the letter dated 19th March, 1996. This point is also without any substance in view of the fact that had the petitioners been placed in the group in which the officers of E.18 and E.19 category have been placed by virtue of the impugned letter dated 19th March, 1996 then in that event the petitioners would have benefited more. No valid reason has been given by the respondents to justify the act of the respondents whereby the petitioners have been taken out of the group in which E.18 and E.19 officers have been included and the petitioners have been clubbed together with the E.16 officers. This Court is unable to accept the submission of the learned advocate for the respondent Nos. 2 and 3 to the effect that in the present case compliance of the principles of natural justice would have been an useless formality since the petitioners have not suffered. This Court is of the view that in the present case it was imperative for the respondents to follow the principles of natural justice.

The learned advocate for the respondent Nos. 2 and 3 cited another decision reported at (2001) 1 SCC 353 (Kshetriya Kisan Gramin Bank v. D.B. Sharma & Ors.) and referred to paragraph 7 of the said reports, in support of his submission that the Court should be very careful while exercising jurisdiction to interfere with the Pay Revision Committee''s recommendations. In the paragraph 7 of the said reports the Hon''ble Supreme Court was of the view that in the matter of equation of posts or equation of pay, the same should be left to the Executive Government, who can get it determined by expert bodies like the Pay Commission, and such expert body would be the best judge to make necessary evaluation and the Court should not interfere with such findings and/or recommendations of the expert bodies unless it can be shown that such findings and/or recommendations were made on extraneous considerations. In the present case it has already been indicated above that no valid reason has been disclosed by the respondents authorities in support of their act of re-grouping the petitioners by excluding the petitioners from the group in which E.18 and E.19 officers have been included and clubbing the petitioners with E.16 officers who were lower in rank than the petitioners and who were also enjoying lower pay scales than that of the petitioners. The only reason given by the respondent authorities and that too subsequently, in their affidavit dated 11.02.1999, is that the respondent authorities intended to avoid an indefinite strike by some of the employees of the Port Trust and as such changes were made in the revision of pay scales. But, unfortunately, in the negotiations and/or discussions that followed, the respondent authorities did not give any opl4ortunity to the petitioners to participate in such discussions. This Court is of the view that such stand taken by the respondent authorities was not justified. Consideration, on the part of the respondent authorities, of the threat of indefinite strike by some of the employees of the Port Trust for the purpose of causing changes in the revision of the pay scales comes within the category of extraneous consideration. In such circumstances, the said reported decision assistance to the respondent authorities.

The learned advocate for the petitioners had referred to paragraph 32 of the decision reported at Haryana State Minor Irrigation Tubewells Corporation and Others Vs. G.S. Uppal and Others, in support of the submission that since the petitioners were clubbed together with the officers of the E.18, E.19 and E.20 categories by the earlier letter dated 27.01.1996 as the authorities must have found that the petitioners were at par with the said categories of officers, the authorities concerned could not have, subsequently, disturbed such parity. According to the said learned advocate, the parity that was reflected in the earlier letter dated 27.01.1996 should have been maintained. This Court is of the view that the pay-scale which was assigned to the petitioners by the earlier letter dated 27.01.1996 should not have been changed in an arbitrary manner to the disadvantage of the petitioners. In any event, the respondent authorities should have complied with the principles of natural justice and should have assigned proper reasons as to why it became necessary to cause the purported change in the revision of pay-scales of the petitioners.

The learned advocate appearing on behalf of the respondent No.1 in W.P. No. 2354 of 1996 submitted that unless a case of hostile discrimination is made out, this Court should not interfere with the fixation of pay-scale. In support of such submission, the learned Advocate cited a decision reported in Union of India (UOI) and Another Vs. P.V. Hariharan and Another, and referred to paragraph 5 of the said reports. As already discussed above, this Court has found that the respondent authorities concerned took extraneous matter into consideration and arbitrarily caused a change in the revision of the pay-scales to the disadvantage of the writ petitioners without giving the writ petitioners any opportunity of hearing and without following of principles of natural justice. The subsequent and sudden change in revision of pay-scales, without any valid basis, caused against the petitioners by the respondent authorities is an act on the part of the respondent authorities concerned which has the effect of affecting the petitioners'' interest in a hostile manner. Thus the said reported decision cannot be of any assistance to the respondent No.1.

The learned advocate for the respondent No.1 cited another decision reported at Union of India and others Vs. Makhan Chandra Roy, and relied upon the following observation of the Hon''ble Supreme Court in paragraph 2 of the said reports: "In our view that exercise was totally unauthorised as it amounted to taking a policy-decision which was within the domain of the authorities themselves who are the authors of the Revised Pay-scales." There cannot be any dispute that such policy decision lies within the domain of the appropriate authority but in the facts and circumstances of the present case, as it has been found above by this Court, that the respondent authorities concerned took extraneous matters into consideration while making subsequent changes in the revision of pay- scales arbitrarily and without following the principles of natural justice. In such circumstances the said reported decision cannot be of any help to the respondent No.1.

In view of the discussions made above the writ petition being W.P. No. 2354 of 1996 is disposed of by directing the respondent authorities to treat the petitioners as being included in the group in which the E.18, E.19, E.20 and E.21 categories of officers have been placed and the petitioners should be given the same pay-scales as has been given to the said categories of officers that is to say in the pay scale of Rs.7500-300-10200 as contained in the letter dated 19th March, 1996. The writ petitioners shall be deemed to have been entitled to such pay-scale from the date when such pay-scale became effective in respect of the officers in the categories of E.18, E.19, E.20 and E.21. The respondent authorities concerned shall take necessary steps in this regard for the purpose of giving effect to this order.

At the time of hearing, the learned advocates on behalf of the respective parties submitted that for all practical purposes the grievances of the petitioners in W.P. No. 615 of 2000 and W.P. No. 2027 of 2000 are the same as that of the petitioners in W.P. No. 2354 of 1996. The learned advocate for the petitioners in W.P. No. 615 of 2000 and W.P. No. 2027 of 2000 submitted that the petitioners in such writ petitions are not parties in W.P. No. 2354 of 1996 but the relief which the writ petitioners in W.P. No. 615 of 2000 and W.P. No. 2027 of 2000 is seeking is the same, in effect, as that of the petitioners in W.P. No. 2354 of 1996.The said learned advocate also submitted that the petitioners in W.P. No. 615 of 2000 and W.P. No. 2027 of 2000 wanted to have the benefits of the orders passed by this Court earlier in W.P. No. 2354 of 1996 but such benefit was refused by the respondent authorities concerned to the petitioners in W.P. No. 615 of 2000 and W.P. No. 2027 of 2000 and as such such persons had to move the aforesaid two writ petitions.

Having heard the learned advocates for the respective parties, the said W.P.No.615 of 2000 and W.P. No. 2027 of 2000 are disposed of by directing that the, order passed above in W.P. No. 2354 of 1996 shall also govern the writ petitions being W.P. No. 615 of 2000 and W.P. No. 2027 of 2000. Thus, W. P. No. 615 of 2000 and W.P. No. 2027 of 2000 also stand disposed of in terms of the order passed above in W.P. No. 2354 of 1996.

Urgent Xerox certified copy of this order, if applied for, will be given to the learned advocates for the respective parties upon compliance of all the necessary formalities.

Petition disposed of

Later :

After the above judgment was delivered the learned advocate appearing on behalf of the respondent No.1 prayed for stay of operation of the above judgment for a period of four weeks.

Having heard the learned advocates for the respective parties in this regard, the operation of the above judgment shall remain stayed for a period of four weeks from this date.