Karnataka High Court
K Srinivasa Iyer vs The Ministry Of Heavy Industries And ... on 6 February, 2023
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
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WA No. 92 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
WRIT APPEAL NO. 92 OF 2023 (S-RES)
BETWEEN:
1. K SRINIVASA IYER
S/O LATE S. KRISHNAMURTHY
AGED ABOUT 68 YEARS,
RESIDING AT NO.4, F-102,
SRI. BALAJI RESIDENCY,
DODDAPPAIAH LAYOUT,
NAGASHETTYHALLI,
SANJAYNAGAR,
BANGALORE-560094.
Digitally signed 2. P REVANNA
by R DEEPA S/O LATE PUTTAREVAIAH
Location: High AGED ABOUT 63 YEARS,
Court of
Karnataka NO.271/12, 6TH A CROSS, 8TH MAIN,
RPC LAYOUT, HAMPINAGAR,
BANGALORE-560104
...APPELLANTS
(BY SRI. P M NAYAK., ADVOCATE)
AND:
1. THE MINISTRY OF HEAVY INDUSTRIES AND PUBLIC
ENTERPRISES
DEPARTMENT OF PUBLIC ENTERPRISES PUBLIC
ENTERPRISES BHAWAN,
BLOCK, NO.14 CGO COMPLEX,
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WA No. 92 of 2023
LODHI ROAD
NEW DELHI-110003 REPRESENTED BY ITS
SECRETARY
2. M/S HMT (INTERNATIONAL) LTD.,
NO.59, BELLARY ROAD,
HMT BHAVAN, 5TH FLOOR,
BANGALORE-560032
REPRESENTED BY ITS MANAGING DIRECTOR
3. M/S HMT LTD
NO.59, BELLARY ROAD,
HMT BHAVAN, 5TH FLOOR,
BANGALORE-560032
REPRESENTED BY ITS CHAIRMAN AND
MANAGING DIRECTOR
4. V SATHYANARAYANA
S/O LATE VEERAPPA,
AGED ABOUT 69 YEARS,
NO.378, 5TH MAIN, 2ND BLOCK,
BSK 1ST STAGE,
BANGALORE-560050
...RESPONDENTS
(BY SRI. H. SHANTHI BHUSHAN, DEPUTY SOLICITOR GENERAL,
FOR R1)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
08/11/2022 OF THE LEARNED SINGLE JUDGE PASSED IN WP
NO.5091/2016 AND THEREBY ALLOW THE WRIT PETITION AS
PRAYED FOR.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., DELIVERED THE
FOLLOWING:
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WA No. 92 of 2023
JUDGMENT
This intra-court appeal is filed under Section 4 of the Karnataka High Courts Act challenging the order dated 08.11.2022, passed in W.P.No.5091/2016 by the learned Single Judge.
2. Brief facts leading rise to filing of this appeal are as under:
The appellants have held the post of Manager Legal (Pay Scale Grade-E5) and Deputy Manager - Projects (Pay Scale Grade-E4) which are below board level executive post in respondent No.2 - Company. The appellants retired from service respectively on 31.03.2011. and 30.11.2010 upon attaining the age of superannuation with entitlement for the 1997 revised pay scale w.e.f. 01.01.1997 and 2007 revised pay scale w.e.f. 01.01.2007 as there was 1997 and 2007 pay revision by the Department of Public Enterprise, Government of India. Pursuant to the office memorandum dated 25.06.1999 related to 1997 revision -4- WA No. 92 of 2023 of pay by the Department of Public Enterprises, the Department of Heavy Industry, Government of India, as per the order date 24.06.2011 permitted respondent No.2 to implement the 1997 pay revision w.e.f. 01.01.1997 and the appellants after retirement got 1997 revised pay scale w.e.f. 01.01.1997. Respondent No.2 with the approval from the Department of Heavy Industry, implemented the revised 2007 pay scales w.e.f. 01.04.2012 (instead of 01.01.2007) to the board level and below board level executives only to those who were on the roll of the company as on 31.3.2012 which is contrary to the office memorandum dated 26.11.2008 of the Department of Public Enterprises, pertaining to 2007 pay revision which specifies revision of pay is effective from 01.01.2007 and thereby the appellants who retired on 31.03.2011 and 30.11.2010, deprived from their legitimate revised pay scale w.ef. 01.01.2007 and all consequential benefits. The appellants filed the writ petition in W.P.No.5091/2016. The learned Single Judge after considering the material on -5- WA No. 92 of 2023 record, rejected the writ petition vide order dated 08.11.2022. Hence, this intra-court appeal.
3. Heard the learned counsel for the appellants.
4. Learned counsel for the appellants submits that the learned Single Judge has committed an error in dismissing the writ petition. He submits that as per the office memorandum dated 26.11.2008 revised pay scales of the board and below the board level executive in CPSEs, w.e.f. 01.01.2007 with full packages as per the clauses specified therein. The appellants are entitle for the benefit of revised pay scale of 2007. Further, as per the office memorandum dated 02.04.2009 and 09.04.2009, a clarification was issued stating that the said directions are applicable to respondent No.2 - Company and there cannot be any deviations by respondent No.2 - Company from directions in implementing 2007 revision of pay scales to its board and below the board level executives and non unionized supervisors. He further submits that clause No.17 in Annexure-B specified that the revised pay -6- WA No. 92 of 2023 scales will be effective from 01.01.2007 and the payment of HRA, perks and allowances based on the revised scales will be from the date of issue of presidential directive with the approval from the concerned administrative ministry / department on the concurrence of its financial advisor. Hence, as on 01.01.2007 the appellants were in service and the said benefit is to be extended to the appellants. He submits that the learned Single Judge without considering the material on record has dismissed the writ petition. Thus, the impugned order passed by the learned Single Judge is arbitrary, erroneous and the same is liable to be set aside. Hence, on these grounds, he prayed to allow the writ appeal.
5. Perused the records and considered the submissions of the learned counsel for the appellants.
6. The appellants respectively held the post of Manager Legal (Pay Scale Grade-E5) and the Deputy Manager - Projects (Pay Scale Grade-E4) and they retired -7- WA No. 92 of 2023 from the service respectively on 31.03.2011 and 30.11.2010, upon attaining the age of superannuation with entitlement for 1997 revised pay scale w.e.f. 01.01.1997 and 2007 revised pay scale w.e.f. 01.01.2007. The appellants accepted all the retiral benefits without protest. The respondent No.1 issued a notification dated 26.11.2008 vide Annexure-D. We have perused the office memorandum dated 26.11.2008. The said office memorandum discloses that revision of pay scale of below board level and board level executives and non unionized supervisors in the Central Public Sector Enterprises.
7. Clause (3) of the office memorandum reads thus:
"3. Affordability for implementation of pay revision: The revised pay scales would be adopted, subject to the condition that the additional outgo by such revision for a period of 12 months should not result in more than 20% dip in profit before tax (PBT) for the year 2007-2008 of a CPSE in respect of executives as well as non- unionised supervisory staff taken together in a -8- WA No. 92 of 2023 CPSE. CPSEs that cannot afford to pay full package, can implement with either part PRP or no PRP. These CPSEs may pay the full package subsequently, provided the dip in the profit (PBT) is fully recouped to the original level."
8. Clause (3) contemplates that the revised pay scales would be adopted subject to the condition that additional outgo by such revision for a period of 12 months should not result more than 20% dip in profit before tax for the year 2007-08 of Central Public Sector Enterprises (CPSE). Thus, as per clause (3) of office memorandum issued by the department of the public enterprises, past performance of CPSE is one of the criteria for controlling Ministry.
9. Clause (17) of the official memorandum dated 26.11.2008 reads thus:
"17. Issue of Presidential Directive, effective date of implementation and payment of allowances etc: The revised pay scales would be implemented by issue of Presidential Directive in -9- WA No. 92 of 2023 respect of each CPSE separately by the concerned Administrative Ministry / Department. The revised pay scales will be effective from 1.1.2007. The payment of HRA, perks and allowances based on the revised scales will, however, be from the date of issue of Presidential Directive. The Board of Directors of each CPSE would be required to consider the proposal of pay revision based on their affordability to pay and submit the same to the Administrative Ministry / Department for approval. The concerned Administrative Ministry with the concurrence of its Financial Advisor will issue the Presidential Directive. A copy of the Presidential Directive issued to the CPSEs concerned may be endorsed to the Department of Public Enterprises."
(Emphasis Supplied)
10. From the perusal of clause (17) it contemplates that that the revised pay scale will be from the date of issue presidential directive and also on their affordability to pay. The respondents in para No.1 of the statement of objections extracted the audit statement of accounts, company's performance reads thus:
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Sl. Operational 2007- 2008- 2009- 2010- 2011- 2012-
No Parameters 08 09 10 11 12 13 1 Sales 2500 1636 3080 2788 3240 2561 2 PBT-before EOI 102 126 396 360 457 642 3 Extra Ordinary item (EOI) 1997 revision - - - 329 283 - arrears 4 Net Profit - PBT 102 126 396 31 174 642 (after EOI) 5 DPE Guidelines 20.40 25.20 79.20 6.20 34.80 128.40 from implementation of 2007 scale 20% of profit 6 Burden consequent 41.97 48.45 59.17 75.30 98.00 114.03 to implementation of 2007 pay scale 7 Applicability for Eligible Eligible implementation as - - - - per DPE Guideline
11. The board of directors considering the proposal of pay revision based on the affordability to pay implemented the revision of pay scale w.e.f. 2012-13 and permitted the implementation of devised pay scale w.e.f.
01.04.2012. Admittedly, the appellants were not on the rolls of the Company as on 31.03.2012, as they have retired in the year 2010 and 2011. The appellants are seeking for the revision of the pay scale with retrospective operation. Insofar as adopting of revision of pay scale, it depends on its economic conditions, financial constrains and many other administration. The learned Single Judge placing reliance on the judgment of the Hon'ble Apex
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Court in the case of GOVERNMENT OF ANDHRA PRADESH AND OTHERS VS. N.SUBBARAYUDU AND OTHERS reported in (2008) 14 SCC 702 and UNION OF INDIA AND OTHERS VS. M.V.MOHANAN NAIR reported in (2020)5 SCC 421 held that in giving effect to the pay revision from 01.04.2012 by respondent Nos.2 and 3 is illegal and further, it is the discretion of the Executive Officer to fix the cut off date and cut off date cannot be dubbed as arbitrary even if no particular reason is given to the same. The learned Single Judge after considering the material on record was justified in recording the finding that there is no error or illegality in giving effect to the pay revision from 01.04.2012 by respondent Nos.2 and 3. This Court cannot sit as an Appellate Authority over the decision taken by the Executive Authority of respondent Nos.2 and 3 to fix the cut off date and it is the domain of the Executive Authority. The learned Single Judge after considering the material on record and also placing reliance on the judgment of the Hon'ble Apex Court in the above referred decisions and also considering Clause Nos.3 and 17 of the
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WA No. 92 of 2023Office memorandum dated 26.11.2008 has passed the impugned order. The impugned order passed by the learned Single Judge is just and proper. We do not find any grounds to interfere with the impugned order. Hence we proceed to pass the following:
ORDER The writ appeal is dismissed.
In view of disposal of the writ appeal, pending IAs., if any, do not survive for consideration and are accordingly disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SSB