Tapan Kumar Paul vs Calcutta Municipal Corporation

Bhagabati Prasad Banerjee, J.—This is an application for stay of operation of the order passed by the Mayor-in-Council of the Calcutta Municipal Corporation dated April 23, 1983. By the said order the higher pay fixed by the Respondents in respect of the Appellants/Petitioners with effect from September 8, 1981, was reduced with effect from May 1, 1993. It was also provided that no recovery of the amount overdrawn for the period from September 8, 1981 to April 30, 1993, would be made as the same was paid. The learned trial Judge held:

Finding a prima facie case there will be an interim order to this extent that the Respondent C.M.C. authorities will not take any steps for deduction from the salary of the Petitioner for the past period without the leave of the Court. Regarding current pay the Respondent will maintain a separate account and keep the excess amount which, according to them, has occurred due to mistake until the matter is decided on merit.

The facts of the case in short is that the Appellants/Petitioners were all Accounts Inspectors under the Calcutta Municipal Corporation and that they were initially appointed on regular basis as Junior Copyists in Tollygunge Tax Department of erstwhile Corporation of Calcutta now known as Calcutta Municipal Corporation with effect from May 12, 1969. It was the case of the Appellants/Petitioners that one Shri Shankar Bose was also appointed in similar post and similar pay-scale to that of the Appellants/Petitioners and that all of them were transferred from Tollygunge to the main office exempting Shankar Bose who was posted to the Secretary''s department attached to Mayor''s office at the Central Office of the erstwhile Corporation of Calcutta. In case of Shankar Bose a special pay of Rs. 50 was given with effect from April 1, 1981 and that the Appellants/Petitioners also demanded the said benefit on the basis of equal pay for equal work. It appears that the Appellants/Petitioners were senior to the said Shankar Bose and that the pay of the Appellants/Petitioners was made at par with that of Shankar Bose with effect from September 8, 1991. Admittedly, the Petitioners were enjoying the same benefit from September 8, 1981. Six other employees, viz. Sujit Baran Mukherjee and others who were similarly posted and claimed also equal pay for the equal work and/or the pay protection. Relying upon the fact the Appellants/Petitioners were granted the same benefit.

The case of Sujit Baran Mukherjee and five others ultimately came up for hearing in Matter No. 5511 of 1987 before the learned trial Judge. The learned trial Judge by the order dated April 27, 1992, allowed the writ application of Sujit Baran Mukherjee and others, directing the Respondents to give those writ-Petitioners same scale of pays as 11 others who were the Appellants/Petitioners herein and whose case was referred in para. 28 of that writ application with effect from the same date from which the Appellants/Petitioners who are 11 in number granted that benefit.

Against the order of the learned trial Judge dated April 27, 1992, in Matter No. 5511 of 1987 an appeal was preferred before this Division Bench and the Division Bench in Appeal No. 662 of 1992 dismissed the appeal agreeing with the view expressed by the learned trial Judge. Thereafter, by the impugned order dated April 23, 1993, the pays of the Appellants/Petitioners were reduced admittedly without giving any notice and/or hearing to the Appellants/Petitioners.

Mr. Bikash Ranjan Bhattacharya, learned Advocate appearing on behalf of the Appellants-Petitioners submitted before us that in the facts and circumstances of the case the pay of the Appellants/Petitioners could not be reduced and in support of this contention, reliance was placed to a decision of the Privy Council in the case of AIR 1937 27 (Privy Council) . In this case it was held as follows:

In a case in which after Government officials, duly competent and duly authorised in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.

Where a Sub-Inspector of Police was granted an invalid pension by a competent authority and thus duly ceased to be in service and the officer succeeding the authority, which had granted the pension, reconsidered the matter and ordered his removal from the service.

Reliance was also placed to a decision of the Supreme Court in a case of Shyam Sunder Vs. State of Rajasthan, in which applying the principle of promissory estoppel the Supreme Court held as follows:

The Appellants having believed the representation, made by the State and having further acted thereon cannot now be defeated of their hopes which have crystallised into rights, thanks to the application of the doctrine of promissory estoppel. Therefore, it is not open to the State, according to the law laid down by this Court, to backtrack.

Mr. Bhattacharya further submitted relying upon the decision of the Supreme Court in the case of Chawla and Another Vs. State of Haryana, In this case, admittedly, the employees were confirmed in wrong pay-scale and after confirming the Government servants in the said scale the appointing authority reduced the same without giving an opportunity to the former. It was held that once the pay was fixed and confirmed the Respondents could not reduce the scale without giving an opportunity to the persons to be affected.

Reliance was also placed to another decision of the Supreme Court in the case of The Nayagarh Co-operative Central Bank Ltd. and Another Vs. Narayan Rath and Another, in which the Supreme Court held that after appointment was made even though illegally the same could not be set aside after a lapse of several years and in this connection, the Supreme Court observed that

It was not open to the Registrar, in our opinion, to set aside the Respondent No. 1''s appointment as Secretary. The Registrar has acquiesced in the appointment and having allowed the incumbent to work for thirteen years set aside the appointment of the incumbent.

The learned Counsel appearing on behalf of the Respondents submitted that if any mistake is committed by the Respondents and On the basis of such mistake the pay-scale is fixed, in that event the Respondents are well within their jurisdiction to correct it and for that purpose no hearing is required to be given. The writ application is pending. This appeal is against an interlocutory order and it would not be proper on our part to make any comment on the merits of the case which is required to be decided by the learned trial Judge on the basis of affidavits and after applying the principles of law involved in the dispute. We are of the view that in the facts and circumstances of the case, the Appellants have been able to make out a strong prima facie case. The interim order of injunction passed by the learned trial Judge was not necessary in view of the fact that the Respondents had waived recovery of the excess amount paid. We are of the view that if the Appellants were allowed to draw the pay-scale as was fixed in the year 1981 till the disposal of the writ application that could not cause any prejudice to the Respondents. After all, the Appellants were enjoying the said benefits since 1981 and that the reduction in pay-scale was made in the facts and circumstances stated above.

Accordingly, we stay the operation of the resolution and/or orders dated April 23, 1993, passed by the Mayor-in-Council reducing the pay-scale on the Appellants/Petitioners until disposal of the writ application on condition that in case the writ application fails the Respondents would be at liberty to adjust the excess payment, if any, made against future payments.

The view we have taken, no useful purpose would be served in keeping the appeal pending. The appeal is treated as on day''s list and is disposed of in terms of the above. All undertakings are discharged.

We make it clear that we have not adjudicated any point on merits which are left open.

All parties to act on a signed xerox copy of the judgment and order on the usual undertaking.

Asok Kumar Chakravarty J.

I agree.