Calcutta High Court (Appellete Side)
Kakali Pakira vs State Of West Bengal & Others on 17 April, 2013
Author: Biswanath Somadder
Bench: Biswanath Somadder
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
THE HONB'LE MR. JUSTICE BISWANATH SOMADDER
W.P. No. 2150 (W) of 2012
Kakali Pakira
-Versus-
State of West Bengal & Others
For the Petitioner: Mr. Malay Kumar Basu, Sr. Advocate,
Mr. Indranil Nandi
For the Respondent
Nos.4, 5 & 6 : Mr. Tarun Kumar Ray, Sr. Advocate
Mr. Biplab Ranjan Bose,
Mr. Arnab Ray
For the State : Mr. Pankaj Halder
Heard on : 06/09/2012, 16/10/2012, 18/10/2012, 30/01/2013,
25/03/2012.
Judgment on : 17/04/2013
Biswanath Somadder,J:- The petitioner has approached this Court by filing the instant writ petition, praying, inter alia, for issuance of a writ in the nature of mandamus, commanding the respondents, particularly respondent nos. 4, 5 and 6 to revise her pay scale with effect from 1st April, 2006 and to act in accordance with law.
2
Pursuant to an advertisement published in the year, 2004, by the West Bengal Cooperative Service Commission, the petitioner had applied for the post of Chief Executive of Balitikuri Cooperative Bank Limited, being the respondent no.4 (hereinafter referred to as the Bank), and was selected for the post-in- question. Thereafter, the petitioner worked as a probationer in the Bank, with effect from 8th February, 2005 on the basis of an appointment letter dated 25th January, 2005 for a period of one year and after successful completion of her probationary period, the service of the writ petitioner was confirmed and she was allowed to draw a consolidated salary at the rate of Rs.15,000/- (Rupees fifteen thousand only) per month. It was mentioned in the appointment letter dated 25th January, 2005, that the petitioner would be entitled to draw a monthly salary in the pay scale of Rs.7,500-400-9,500-450-11,750-500-14250/- plus other allowances, as admissible under the existing rules, on successful completion of the probationary period of one year.
According to the petitioner, ever since being appointed to the post of Chief Executive, she has been discharging her duties and performing her functions to the fullest satisfaction of all concerned and after joining the post, the financial position and profitability of the Bank has improved remarkably. According to the petitioner, the Board of Directors of the Bank revised the pay scale of all its employees in December, 2006, which was effective from 1st April, 2006. However, the pay scale of the petitioner was not revised, without assigning any reason, whatsoever. According to the petitioner, the Board of Directors of the Bank had also increased the wages of daily rated employees and contingent staff of the 3 Bank, but had not increased the salary of the petitioner. The petitioner made several representations to the Board of Directors of the Bank and also to the Department of Cooperation, Government of West Bengal. The petitioner was assured that her case would be reviewed, if admissible under the relevant Acts and the Rules framed thereunder, which was never done. Thereafter, she approached this Court by filing the instant writ petition.
The question that falls for determination in the facts and circumstances of the instant case is whether the Bank's decision not to revise the pay scale of the petitioner, in spite of revision of such pay scale in respect of all its employees in December, 2006 (with effect from 1st April, 2006), can be said to be arbitrary and/or unreasonable.
According to the learned senior counsel appearing on behalf of the petitioner, the records of the case would demonstrate that although the post of Chief Executive of the Bank was the highest paid post, in view of revision of the pay scale in the year, 2006, the basic pay of the next officer below the rank of the petitioner, has been enhanced to Rs.11,836/- from Rs.4,200/-, while the basic pay of the petitioner continues at Rs.7,500/- per month, as a result of non revision of her scale of pay. According to the learned senior counsel, as a result of the effect of the revision of pay scale of the other employees of the Bank and non revision of the pay scale of the petitioner, her basic pay has become much lower than her immediate subordinate. It is his specific contention that the revision of the pay scale of the employees of the Bank in the year, 2006, is defective, inasmuch as there cannot be any revised pay scale by dint of which a 4 subordinate employee gets a higher basic pay than his superior (in this case, the Chief Executive of the Bank). It is also submitted by the learned senior counsel for the petitioner that after revision of the pay scale in the year 2006, the bank granted additional dearness allowance to its other employees with effect from 1st December, 2007, but for some unknown reasons, the petitioner was not granted such additional dearness allowance @ 14 %. According to him, this alone would go to show that the Bank's conduct was not only arbitrary, but would also demonstrate the fact that the writ petitioner had been deliberately and intentionally victimized by the Bank, for reasons best known to them. On the other hand, learned senior counsel appearing on behalf of the Bank submitted that the writ petition is not maintainable since a cooperative society has no trappings of governmental or other authority and is not under the direct financial and administrative control of the State Government. According to him, it is a private institution, voluntarily formed by its members and in absence of any breach of any statute or statutory rules, no writ would lie against the Bank. Referring to Entry 10(A) of the Appendix to Chapter V of the West Bengal Cooperative Societies Rules, 2011 and the pari materia provision contained in the earlier 1987 Rules, he submitted that the Board of Directors of a cooperative society is a competent authority to frame the scale of pay, dearness allowance and other allowances in respect of each category of employees of the cooperative society as also to revise the scale of pay of each of such categories of employees from time to time, if circumstances so demand. He specifically contended before this Court that in the present case, the circumstances did not justify an upward 5 revision of pay scale in favour of the petitioner only within two months, because the existing pay scale for other posts were revised after 10 years. It has also been contended on behalf of the Bank that the claim of the petitioner was indefinite and nebulous in nature and she had not challenged any particular decision or resolution of the Board of Directors by which the post of Chief Executive was allowed the particular pay scale with effect from 8th February, 2006, or the decision or resolution by which others were given the benefit of upward revision, leaving out her case. Holding a singular post and in her peculiar factual status, the petitioner even cannot claim the right of equal pay for equal work or complain about unequal treatment of equals, resulting in violation of articles 14 and 16 of the Constitution of India, though, in any event, such provisions are not attracted unless the authority is a "State" within the meaning of Article 12 of the Constitution of India.
Apart from this, it has also been contended on behalf of the Bank that the instant writ petition is also liable to be dismissed on the ground of inordinate delay in approaching this Court. According to the Bank, the cause of action arose on 30th December, 2006, when retrospective revision of pay scale was made with effect from 1st April, 2006 and even then the petitioner's claim was clearly refused through a letter dated 22nd October, 2009. She waited till February 2012 to approach this Court, though in the meantime a further revision of pay scale had taken place.
6
The State Government has filed a report in the form of an affidavit, which was affirmed on 25th September, 2012 by the Deputy Registrar of Cooperative Societies, (Urban Credit), West Bengal. The affidavit annexes a report of the Additional Registrar of Cooperative Societies (U/C), West Bengal, which clearly indicts the Bank, particularly, the decision taken by its Board of Directors in its meeting dated 21st July, 2009. According to the Additional Registrar of Cooperative Societies, the decision of the Bank lacks principles of equity and natural justice and the allegations made in the writ petition have basis. It has also been stated in the report that after receiving the complaint of the petitioner, a meeting was held on 09th October, 2009, at the chamber of the Additional Registrar of Cooperative Societies to settle the issue between the management and the Chief Executive of the Bank. In the said meeting, the Chairman of the Bank gave assurance that a compliance regarding service benefit claims in respect of the Chief Executive would be given within 31st October, 2009. It was later found that such compliance submitted by the Chairman, in terms of his letter dated 22nd October, 2009, was only with regard to grant of maternity leave to the writ petitioner. Regarding pay related benefits including dearness allowance, the Chairman informed the petitioner that the Bank management had decided not to revise her pay and allowances. The Chairman stated that she was enjoying total emoluments much more than other employees of the Bank, including the next officer below her rank. The Additional Registrar of Cooperative Societies, West Bengal, in his report, has categorically stated that this stand of the Bank was quite contrary to the spirit of law, as laid down in the West Bengal 7 Cooperative Societies Rules, 2011, as per Appendix to Chapter V of rule 106 of the said Rules, which states that groupings of employees of a cooperative society should be as follows:
"Group A - Top Level Management Group B - Medium Level Management. Group C - Clerical and Operative. Group D - Subordinate Staff "
It was also stated by the Additional Registrar of Cooperative Societies that an employee who is holding a post, requires to discharge duties as assigned and it is quite logical that the pay and allowance of the concerned employee should be compatible to the post in question. Since, the Chief Executive of a cooperative Bank belongs to Group-A, i.e., top level management, he/she expects his/her pay to be commensurate to his/her status, vis-à-vis other staff of the Bank. Whenever revision of pay and allowances of other employees of the organization is decided to be given effect to, it should cover all its employees, including the Chief Executive.
The contention of the learned senior counsel appearing on behalf of the Bank with regard to maintainability of the instant writ petition, in the backdrop of the clear stand taken by the concerned State respondent, does not hold much water. The categorical observation made by the Additional Registrar of Cooperative Societies in his report clearly indicates arbitrariness and palpable 8 unreasonableness on the part of the Board of Directors of the Bank in the decision-making process, while denying the petitioner all benefits to pay revision, which were granted to all other employees of the Bank. So far as the question of whether a writ petition is maintainable against a cooperative society is concerned, the same is no more res integra, in view of various decisions of this Court, including Bhabani Adhikari vs West Bengal State Co-operative Bank Limited & Ors. reported in 2009 (1) CHN 573 and Bashirhat Sardarati Tantubay vs The State of West Bengal & Ors reported in (2012)2 WBLR (Cal)
675. As observed hereinbefore, there is no manner of doubt, whatsoever, that in the facts and circumstances of the instant case, the Board of Directors of the Bank have demonstrated clear arbitrariness and palpable unreasonableness in the decision-making process while revising the pay scale of all its employees to the exclusion of the writ petitioner, who happens to be Chief Executive of the Bank.
In such facts and circumstances, as stated above, the writ petitioner is entitled to an order from this Court directing the respondent nos. 4,5 & 6 to revise the pay scale of the petitioner with effect from 1st April,2006. Consequentially, the decision taken by the Board of Directors of the Bank in its meeting held on 21st July, 2009, is liable to be set aside and is accordingly set aside, to the extent it affects the rights of the petitioner. Such revision of pay scale shall be commensurate with the post of Chief Executive of the Bank, which the petitioner now holds. The respondent nos. 4, 5 & 6 shall also ensure that the 9 basic pay scale of the petitioner is higher than the basic pay scale of the next officer below her rank. This exercise shall be completed as expeditiously as possible, preferably within a period of six weeks, but not later than eight weeks from the date of communication of a photostat certified copy of this order.
In the event, the respondent nos. 4,5 & 6 do not take appropriate and effective steps in terms of this order, the respondent no.2, being the Registrar of Cooperative Societies, West Bengal, shall proceed against respondent nos. 4,5 & 6 by initiating appropriate proceedings in accordance with law.
The writ petition stands disposed of accordingly.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.
(Biswanath Somadder, J.)