Calcutta High Court (Appellete Side)
(Tarun Biman Chatterjee & Ors vs The State Of West Bengal on 13 July, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
13.7.2011
Sl. no.60 WPST 160 of 2011
(Tarun Biman Chatterjee & Ors.-vs-The State of West Bengal
& Ors.)
Mr. Asok Nath Ghosh....for the petitioners
Mr. Sundarananda Pal
Mr. Ayan Banerjee.....for the respondents
There was a disparity between two groups of
employees discharging identical nature of job. Pay
Commission suggested merger. Accordingly, merger was
done, however, the disparity remains. Even after merger,
one group, which was enjoying better pay scale, was given suitable increments, as a result, inequality remains. The aggrieved employees approached the Tribunal. The Tribunal in OA 289 of 2001 rejected the contentions of the petitioners therein and dismissed the said application vide judgment and order dated December 12, 2006.
Being aggrieved, the petitioners therein approached the Division Bench of this court by filing WPST 291 of 2007. The Division Bench after considering the rival contentions set aside the notification, which directed merger by keeping the disparity between two groups of employees. The Division Bench vide judgment and order dated April 2, 2008 appearing at pages 69-72 of the petition, allowed the application. The Division Bench observed as follows:
"Respectfully following the ratio decided in the case, we, therefore, hold and declare that the notification dated 2 15th May, 1978 is discriminatory to the extent of disparity of pay scale granted to the present applicants. We declare that the applicants are entitled to get the same pay scale as that of being drawn by erstwhile cadre of block Youth Organizer who are now designated with the cadre of the petitioners. However, this benefit shall not be given retrospectively and it shall be given from the date of filing of second application before the learned Tribunal. 40% of the arrears benefit shall be given from the date of filing application before the learned Tribunal upto the date of passing of the present order today. Full benefits shall be given from following day of present order. There will be no order as to costs. However, this order will confine to the petitioners only and it cannot have any omnibus effect as no one has come forward except the petitioners before us."
From the paragraph quoted (supra) we find that the Division Bench, although set aside the notification by holding it as discriminatory, restricted relief to the petitioners therein. Taking advantage of such restriction the present petitioners being similarly circumstanced, were denied relief, firstly by the authority and then by the Tribunal. The authority observed that since the earlier order was restricted to the petitioners in WPST 291 of 2007, such benefit could not be extended to others, even though they were similarly circumstanced. The Tribunal accepted the view. While doing so, the Tribunal analyzed the Division 3 Bench judgment of this court and considered the issue afresh and observed as follows:
"25. The applicants have relied on the judgment of the Hon'ble Court in WPST 291/07. It has to be kept in mind that the State respondents did not appear in this case and as such the Hon'ble Court had to decide the matter exparte. It has been specifically mentioned in the judgment that the benefit of the judgment will be limited to the petitioners only and not beyond. This specific direction cannot be considered to be a 'Obiter dicta'. Therefore, the applicants cannot take advantage of this judgment. The other judgments referred by the applicants being different in facts and circumstances are of no avail to the applicants."
The Tribunal observed that since the State did not appear before the Division Bench and the matter was decided ex parte, the benefit was restricted to the petitioners therein and not beyond.
In our view and with all humility may we say, once the Division Bench set aside the earlier order of the Tribunal and quashed the notification, the Tribunal was perhaps not competent to observe that the said order was passed ex parte and such decision could not be applied in the case of the like nature. It is true that the Division Bench restricted the order in the case of the petitioners in the said case. The Tribunal should have examined the case of the petitioners to find out, whether they would also be entitled to the benefit on the same analogy, as observed by the Division Bench. It 4 was not the idea of the Division Bench to restrict some one to get relief, which he is otherwise entitled to. The Division Bench was of the view that each and every case should be judged on its own merit. The petitioners therein approached the court and obtained relief, as they were found to be entitled to identical relief. Other group approached the Tribunal claiming to be similarly circumstanced. The Tribunal should have examined the case to find out, whether the petitioners' claim was correct or not.
On merits, we find that it is an admitted position that the petitioners herein are similarly circumstanced with the other group in WPST 291 of 2007. Hence, they were entitled to identical relief, being similarly circumstanced. From the judgment and order impugned we do not find any definite finding of the Tribunal that the petitioners herein were not similarly circumstanced with the petitioners in WPST 291 of 2007.
The Tribunal application succeeds and is allowed. Extend benefit accordingly.
There would be however, no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Ashim Kumar Banerjee,J.) 5 (Dr. Mrinal Kanti Chaudhuri,J.)