Calcutta High Court (Appellete Side)
Sarvesh Kumar & Ors vs Union Of India & Ors on 12 February, 2024
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :-
The Hon'ble PARTHA SARATHI SEN
WPA 9428 of 2021
Sarvesh Kumar & Ors.
-Vs-
Union of India & Ors.
For the Petitioners: Mr. Samim Ahammed, Adv.,
Mr. Arka Maity, Adv.,
Mr. Danishuddin Abbasi, Adv.
For the respondent nos. 2, 4 & 6: Mr. Victor Chatterjee, Adv.,
Mr. Ranit Ray, Adv.
Hearing concluded on: 06.02.2024. Judgment on: 12 .02.2024. PARTHA SARATHI SEN, J. : -
1. By filing the instant writ petition under Article 226 of the Constitution of India the writ petitioners have prayed for a direction upon the respondent no.2 herein and /or its officers to fix the basic pay of the petitioners at Rs.29,000/- at par with other Junior Engineering Assistants-IV.
2. In support of the instant writ petition Mr. Ahammed, learned advocate for the writ petitioners at the very outset draws attention of this Court to page no.35 i.e. the copy of the relevant advertisement as published by respondent no.2/ Oil Company for recruitment of Junior Engineering Assistant- IV (Production) vide post code 201. Admittedly, the present petitioners have been selected for the said post and they have 2 been issued appointment letters for the said post of Junior Engineering Assistant-IV (Production) in the pay scale of Rs.11,900/- - Rs.32,000/- (pre-revised). It is pertinent to mention herein that such pay scale was mentioned in the aforementioned advertisement as published by respondent no.2/Oil Company. Drawing attention to page no.273 of the writ petition being the photo-copy of the pay slip of one Mr. Braj Mohan, a Junior Engineering Assistant-IV as well as to the subsequent pages wherein the pay slips of other employees of the respondent no.2-Oil Company have been annexed, it is contended that in those pay slips, the master basic of the said employees have been fixed at the rate of Rs.29,000/- whereas in the pay slips of the present writ petitioners the master basic has been fixed at the rate of Rs.25,000/-.
3. It is contended further that the persons whose basic pay was fixed at the rate of 29,000/- were recruited in the self-same post i.e. in the post of Junior Engineering Assistant-IV by virtue of self same advertisement and also by virtue of self same recruitment process and in spite of the same two separate basic pays have been fixed in respect of the said employees and the present writ petitioners which is violative of Article 14 of the Constitution of India. Drawing attention to page no.279 of the writ petition it is contended that the writ petitioners have made representation before the respondent no.2/Oil Company for removing such discrepancy but under cover of its letter dated 29.07.2020 the respondent no.2/Oil company declined to concede with the request of the writ petitioners on the plea that in terms of long term Settlement as arrived at by and 3 between respondent no.2/ Oil Company and the representatives of the Union of the Workmen of the said Oil Company, the workmen who had joined the respondent no.2/ Oil Company on or after 01.01.2017 and who are on the rolls of the Corporation as on 03.10.2019 their initial basic pay have been fixed at the rate of Rs.20,000/- in Grade IV and those workmen who have joined after 03.10.2019 their basic pay have been fixed at minimum of pay scale i.e. at Rs.25,000/-.
4. It is argued further on behalf of the writ petitioners that in the Memorandum of Settlement as signed by the representatives of the respondent no.2/Oil Company and the office bearers of the employees of the Union of the Workmen of the respondent no.2/Oil Company it was agreed that the workmen who joined the service of the Corporation in regular scale of pay on or after 01.01.2017 shall also be covered by the provisions of the Settlement. Drawing attention to page no.307 of the instant writ petition it is further argued on behalf of the writ petitioners that on the basis of the said Memorandum of Settlement the respondent no.2/Oil Company unilaterally issued a guideline for implementation of the said Settlement wherein they have put the following conditions:-
" Workmen who have joined the service of the Corporation on or after 01.01.2017 and till the date of signing of the Settlement, i.e. 03.10.2019 shall be deemed to have been appointed in the revised scales of pay and Fitment benefit shall not be admissible to them. However, as a special one- time dispensation, the Basic Pay in respect of workmen who have joined the Corporation on or after 01.01.2017 and are on 4 the rolls of the Corporation as on 03.10.2019 shall be fixed as under:-
Grade Pay Scale Initial Basic Pay to be
fixed at
I Rs.23,000-Rs78,000 Rs.25,600/-
IV Rs.25,000-Rs. 1,05,000 Rs.29,000/-
The above dispensation is not admissible to those separated workmen who joined the service of the Corporation on or after 01.01.2017 but resigned from the services of the Corporation before the date of signing of the Settlement i.e. 03.10.2019."
5. It is argued on behalf of the writ petitioners that none of the office bearers of the Workmens' Union of the respondent no.2/ Oil Company had signed such guideline and based on such unilateral guideline the respondent no.2/Oil Company Authority have fixed the basic pay of Rs.29,000/- for some workmen who have joined earlier to the writ petitioners and Rs.25,000/- as basic pay for the writ petitioners who have joined afterwards. It is further argued that by doing such act the respondent no.2/ Oil Company has practically created a 'class amongst class' since the present writ petitioners and other Junior Engineering Assistants-IV (whose basic pay is Rs. 29,000/-) have been appointed in the same recruitment process under the same recruitment advertisement and for the delayed joining of the present writ petitioners, the present writ petitioners have no role to play since the respondent no.2/Oil company issued the letter of appointment to the writ petitioners at a later stage in 5 comparison to the others whose basic pay was fixed to the tune of Rs.29,000/-.
6. In course of his submission Mr. Ahammed, learned advocate for the writ petitioner places his reliance upon the following reported decisions namely:
i. Randhir Singh Vs. Union of India reported in (1982) 1 SCC 618;
ii. State of Rajasthan Vs. Gurcharan Singh Grewal and Ors.
reported in 1990 (Supp.) SCC 778.
7. It is thus argued on behalf of the writ petitioners that it is a fit case for allowing the instant writ petition.
8. Per contra, Mr. Victor Chatterjee, duly assisted by Mr. Ranit Ray, learned advocates for the respondent nos. 2,4 and 6 contended that there is no dispute that the present writ petitioners fall under the category of 'Workmen' under the provision of Industrial Disputes Act, 1947 (hereinafter referred to as the 'said Act of 1947', in short) and therefore the dispute as occurred between the present writ petitioners and the respondent no.2 comes under the definition of 'Industrial Dispute' under Section 2(k) of the said Act of 1947. It is thus contended that the instant writ petition has been filed bypassing the procedure for Settlement of Disputes as laid down in the said Act of 1947 and therefore this Court ought to be very slow in granting the relief as prayed for by the writ petitioners since under a specified Act alternative remedy is available to 6 the writ petitioners. It is thus argued that the present writ petitioners have chosen a wrong forum.
9. It is further argued by Mr. Chatterjee that since the guidelines issued by the respondent no.2/Oil Company has been issued for implementation of the Settlement as arrived at and as referred to above, it cannot be said that the said guideline is not a part and parcel of the said Settlement. It is further argued that the act of the respondent no.2/Oil Company may be viewed as a 'reasonable classification' since as per Settlement between the respondent and the Workmens' Union, those who have joined on or before 03.10.2019 are entitled to get the basic scale of Rs.29,000/- and since the present writ petitioners have joined afterwards they have been offered with a basic pay of Rs.25,000/-. It is further argued that by filing the instant writ petition, the writ petitioners have practically challenged the validity of the bi partite Settlement as arrived at as per provision of Section 18 of the Industrial Disputes Act, 1947, the validity of which can be challenged before an Industrial Adjudicator only. It is further argued that the cut-off date i.e. 03.10.2019 is not arbitrary since the same is the outcome of this Settlement.
10. In course of his argument learned advocate for the respondent nos. 2,4 and 6 have referred the following decisions:-
i. Radha Krishan Industries vs. State of Himachal Pradesh and Ors. reported in (2021) 6 SCC 771:
2021 SCC OnLine SC 334;7
ii. Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Ltd. reported in (1991) 1 SCC 4;
iii. National Engineering Industries Ltd. Vs. State of Rajasthan and Ors. reported in (2000) 1 SCC 371.
iv. Chandigarh Administration vs. Laxman Roller Flour Mills Pvt. Ltd. reported in (1998) 8 SCC 326;
v. K. Thimmappa and Ors vs. Chairman, Central
Board of Directors, State Bank of India and Anr.
reported in (2001) 2 SCC 259;
vi. Union of India vs. Indian Navy Civilian Design
Officers Association and Anr. reported in 2023 SCC Online SC 173.
11. In course of his reply learned advocate for the writ petitioner places his reliance upon the reported decisions of Telecom District Manager vs. Keshab Deb reported in (2008) 8 SCC 402.
12. On perusal of the entire materials as placed before this Court and after hearing the learned advocates for the contending parties it appears to this Court that there is no dispute that the present writ petitioners and the other workmen, being Junior Engineering Assistants-IV (Production), whose basic pay have been fixed to the tune of Rs.29,000/-have been inducted in the respondent no.2/Oil Company under the same recruitment process and in the same post being Post Code 201 and the only difference between the two groups are of their different date of 8 joining. The question which this Court is required to answer as to whether on account of such difference of date of joining, the respondent no.2/ Oil Company is at all justified in fixing two separate basic pays for the two groups of workmen who have been appointed in the same post under the same recruitment process.
13. Admittedly, the Settlement was arrived at by and between respondent no.2/Oil Company and its Workmens' Union and the Clause 2.3 of the said Settlement reads as under:-
"Workmen who joined the service of the Corporation in regular scale of pay on or after 01.01.2017 shall also be covered by the provisions of this Settlement. However, the Fitment benefits shall not be admissible to them."
14. Admittedly, the writ petitioners and their colleagues in other groups (whose basic pay is Rs. 29,000/-) joined after 01.01.2017 and on close scrutiny of such terms of Settlement this Court finds no cut-off date i.e. 03.10.2019. It further appears to this Court that in the guidelines for implementation as prepared by the respondent no.2/Oil Company such cut-off date (03.10.2019) has been fixed and such guidelines only bear signature of an officer of the respondent no.2/Oil Company and nowhere in the said guideline the signatures of the office bearers of the Workmens' Union are found. In absence of such signatures of the office bearers of the Workmens' Union, it cannot be said that the said guideline is the part and parcel of the Settlement as referred to above.
15. Next question which arises for consideration as to whether such unilateral act of the respondent no. 2 /Oil Company i.e. fixing of cut-off 9 date and fixing of different scales of pay for two groups of workmen who are working in the same post and who have been recruited in the same recruitment process tantamounts to violation of Article 14 of the Constitution of India. In the reported decision of Gurcharan Singh Grewal and Ors (supra) the Hon'ble Apex Court expressed the following view:-
"8.This Court held in D.S. Nakara and Ors. v. Union of India , "Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated differently without any reasonable basis. Though Article 14 forbids class legislation, yet it permits reasonable classification. The classification must be founded on an intelligible differential which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. There ought to be casual connection between the basis of classification and the object of the statute. An executive action could be sustained only if the twin tests of reasonable classification and the rational principle co-related to the object sought to be achieved are satisfied."
The appellant has therefore, to satisfy the Court that the classification was based on some valid principle which in itself was not irrational, unreasonable or discriminatory." Similar view was taken by the Hon'ble Apex Court in the case of Randhir Singh (supra) wherein the Hon'ble Apex Court held the following:-
"8......................................................................................10
Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay***********************************************************. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle 'equal pay for equal work' is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer."
16. In course of his argument Mr. Chatterjee, learned advocate for respondent nos.2,4 and 6 was very vocal with regard to the jurisdiction of this Court being a Constitutional Court since according to him the dispute as raised by the writ petitioners in this writ petition is as an industrial dispute and therefore alternative remedy is available to them. This Court is in respectful disagreement with the submission of Mr. Chatterjee since in the decision of Radha Krishan Industries as cited from the side of the respondent nos. 2,4 and 6 the Hon'ble Apex Court 11 while dealing with the subject of exceptions to the rule of alternative remedy expressed the following view:-
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.12
28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad reported in (2003) 5 SCC 399, Babubhai Muljibhai Patel v. Nandlal Khodidas Barot reported in (1974) 2SCC 706 and Rajasthan SEB v. Union of India reported in (2008) 5 SCC 632 among other decisions."
17. In deciding the petitioners' right to choose forum the Hon'ble Apex Court in the reported decision of Telecom District Manager (supra) as cited from the side of the writ petitioners expressed the following view:-
"In a case of the present nature where an employee maintains a writ petition not only on the ground of violation of the equality clause enshrined under Article 14 of the Constitution of India but also on the ground of violation of the provisions of the Industrial Disputes Act, 1947, he has an option to choose his own forum. Section 28 of the Administrative Tribunals Act, 1985 does not bar the jurisdiction of the Central Administrative Tribunal. It saves the jurisdiction of the Industrial Tribunal. An employee who claims himself to be a workman, therefore, will have a right of election in the matter of choice of forum. It is. therefore, not correct to contend that the Central Administrative Tribunal had no jurisdiction to pass the impugned judgment. Furthermore the respondent claimed regularisation in services. Such an application was maintainable. As to whether he would be entitled to such a relief or not, however, is a different question."
18. In view of the discussion made hereinabove it appears to this Court that when the writ petitioners and the other workmen whose basic pay has been fixed to the tune of Rs.29,000/- have been recruited in the same post pursuant to the same recruitment advertisement , same recruitment 13 process and since the writ petitioners and other similarly circumstanced workmen are discharging the same nature of work, the principle of 'equal pay for equal work' as guaranteed under Article 14 of the Constitution of India comes into operation.
19. In further considered view of this court the act of the respondent no.2/Oil Company tantamounts to 'class legislation' and under no stretch of imagination that can be termed as a 'reasonable classification' in view of publication of unilateral guideline by the respondent no.2/Oil Company.
20. The other reported decisions as cited from the side of respondent nos. 2,4 and 6 in considered view of this Court have been passed in different perspectives and are thus distinguishable from the facts and circumstances of the instant case.
21. As a result the instant writ petition succeeds.
22. The respondent no.2/Oil Company and its officers are thus directed to fix the basic pay of the present writ petitioners at par with other Junior Engineering Assistants-IV i.e. at Rs. 29,000/- with effect from their respective dates of joining and the respondents are further directed to pay all the consequential benefits including arrears of pay to the writ petitioners within 2 months from the date of communication of this order.
23. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.
(PARTHA SARATHI SEN, J.)