Calcutta High Court
Sri Sumitava Mitra & Ors vs National Jute Manufactures ... on 27 August, 2009
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice S.P. Talukdar
W.P. No. 1505 of 1999
G.A. No. 1280 of 2008
Sri Sumitava Mitra & Ors.
Vs.
National Jute Manufactures Corporation Limited & Ors.
with
W.P. No. 2394 of 1999
G.A. No. 1281 of 2008
Pradyut Ranjan Dutta Roy & Ors.
Vs.
National Jute Manufactures Corporation Limited & Ors.
For the Petitioners: Mr. Partha Sarathi Sengupta, Sr. Adv.,
Mr. Sadhan Roy Chowdhury,
Mr. Buddhadeb Ghosh,
Mrs. Rini Bhattacharya.
For the respondent : Mr. Alok Kumar Banerjee,
NJMC Ltd. Mrs. Bithika Mondal,
Mr. S. K. Das.
For Union of India : Mr. Prabir Bhowmick,
Mr. Kausik Kanti Maiti.
Judgment on : 27.08.2009.
S.P. Talukdar, J.: Identical facts and legal points being involved in the two applications, being W.P. No. 1505 of 1999 and W.P. No. 2394 of 1999, both the said applications were heard at a time in response to the submission made by learned Counsel for the parties.
Grievances of the petitioners, as ventilated in the application, being W.P. No. 1505 of 1999, may briefly be stated as follows:-
The petitioners are officers of National Jute Manufactures Corporation Limited, which is a Government of India Undertaking. It has about 615 officers and 23000 workers in its six jute mills. It is the only Public Sector Jute industry in India. There are two patterns of pay scale of the officers in Public Sector Enterprises, namely :
(a) Industrial Dearness Allowances (IDA) pattern, and (b) Central Dearness Allowance (CDA) pattern.
In National Jute Manufactures Corporation Limited, only Industrial Dearness Allowance (IDA) pattern is being followed quite unlike many other Public Sector Enterprises where both the patterns are followed simultaneously.
Revision of pay scale of the employees of the Central Government and all the various State Governments is taken up by Pay Commission appointed from time to time. But so far the employees of the National Jute Manufactures Corporation Limited hereinafter referred to as 'NJMC Ltd.' are concerned, such pay revision is dealt with and determined by the Department of Public Enterprises, Ministry of Industry, Government of India. Quite unlike the Government employees, the association or their representatives are not parties to such pay revision. By an order of the Supreme Court of India, the pay scale of CDA pattern employees in sixty nine Public Sector Enterprises under Government of India have been revised including those of Public Sector Enterprises where there are Industrial Dearness Allowance pattern officers and those salaries have not been revised. The Apex Court in an order passed on May 7, 1999 revised the salaries of even the IDA pattern officers in certain Public Sector Undertaking who were otherwise barred from getting revision of 1992 pay scale under the same clause by which the officers of the NJMC Ltd. have been denied revision of pay scales of 1992.
The pay scale of officers under IDA pattern in the Public Sector Enterprises under the Government of India are normally revised after every five years while that for CDA pattern, the revision is related to the recommendation of the pay commission for Central Government employees as per the order of the Apex Court. Last revision under IDA pattern was made in 1992 w.e.f. 1st January, 1992. But the pay scale of the officers of the NJMC Ltd. as well as those of many other Public Sector Enterprises were not revised on the pretext of certain condition in clause 13 of the said office Memorandum dated July 19, 1995. The same reads as follows:
"For such PSEs registered with the BIFR, pay revision and grant of other benefits will be allowed only if it is decided to revive the unit. The revival package should include the enhanced liability on this account. The benefit of pay revision, etc. shall be extended to IISCO and financial liability thereof shall be met by SAIL."
In absence of pay revision, the petitioners were forced to continue with the existing pay scale of 1987. On an average an officer of NJMC Ltd. is incurring monthly loss of nearly Rs. 6,500/- and the outstanding arrear is on an average to the tune of Rs. 2.5 lakhs on account of non-implementation of the revised pay scale of 1992 in respect of the officers NJMC Ltd. The Government, thus, has adopted a discriminatory policy in formulating the pay scale of officers of NJMC Ltd. First, the Government is discriminating between the Central Government Employees and Public Sector Employees; secondly, there is discrimination between the Public Sectors on the basis of sickness; and thirdly between the sick Public Sectors referred to Board for Industrial and Financial Reconstruction (BIFR) and sick Public Sectors not referred to Board for Industrial and Financial Reconstruction and National Jute Manufactures Corporation Limited fall under the last category since it is a sick Undertaking referred to BIFR. The sickness of any Public Sector cannot be attributable to its employees and it may be due to various factors. Justice Mohan Committee Report of 1997 regarding revision of pay scale of Public Sector Employees was critical of any discrimination and as such, enforcement of clause 13 is bad and discriminatory. Clause 13 in the office Memorandum dated July 19, 1995 is bad, illegal and discriminatory inasmuch as the Apex Court was pleased to direct the employees of the National Textile Corporation to the BIFR to get their clearance regarding clause 13 in National Textile Corporation Industrial Dearness Employees Association Vs. Union of India's case. BIFR considered the issue and stated that they were unable to comment on the rational of the said office Memorandum since there might be some administrative reason like fund constraint etc. In the opinion of BIFR, allowing the major chunk of employees belonging to CDA pattern including those belonging to Central Government Undertakings, the pay revision as well as the arrear, while depriving the IDA employees, is devoid of all rational. The Government of India on BIFR clearance has to pay the IDA revised pay scale if they were entitled to the same. The inaction on the part of the Government in this regard is devoid of logic. There could be no embargo from BIFR, which virtually makes clause 13 of the office Memorandum non-existent.
In response to an application in connection with the case, as referred to earlier, the Apex Court directed the Ministry of Textiles to pay the 1992 revised pay scale to the petitioners i.e. National Textile Corporation IDA pattern w.e.f. January 1, 1999 pending further settlement by virtue of the order passed by the BIFR on April 24, 1998. The Government, thus, in an unjustified manner has kept the case of NJMC pending before the BIFR for six years prior to filing of the application. Non-payment of revised salary by NJMC Ltd. management to its officers w.e.f. January 1, 1992 is, thus, illegal, motivated and discriminatory. Leaving aside the 615 officers, the NJMC Ltd. revised the pay scales of its 23000 employees. The officers apart from suffering from financial loss have, thus, been subjected to humiliation. Significantly enough, amount involved for payment of arrear to the officers of NJMC in respect of 1992 pay revision is duly accommodated by NJMC in the revival package submitted to BIFR while clearly giving the consent of NJMC management in an affirmative note to give effect to such pay revision to Corporation officers. The NJMC management has principally agreed to pay its officers revised pay scale of 1992 and sent the pay revision proposal in accordance with the Department of Public Enterprises Circular relating to 1992 pay revision after its approval by the Chairman. In the meanwhile, the Ministry of Textile has issued internal circular for the post of Chairman-cum-Managing Director in the revised pay scale of 1992 and NJMC Ltd. has advertised for the post of Secretary in the revised pay scale. The General Manager (Personnel), National Textile Corporation Limited in its letter dated 28th May, 1999 intimated all the General Managers and others implementation of revised IDA pay scale from January 1, 1992 and for payment of arrears from January 1, 1999 to April 30, 1999. The department of Public Enterprises in a notification dated August 19, 1998 allowed 10% interim relief against revision of pay scales, which was made effective from January 1, 1997.
Being aggrieved by and dissatisfied with such inaction on the part of the respondent authority in the matter of revision of pay scale, the petitioners filed the instant application under Article 226 of the Constitution with the prayer for direction upon the respondents to extend the benefits of the revised pay scale w.e.f. January 1, 1992 to the petitioners and to make payment of all arrears consequent upon such enhancement. The petitioners also sought for cancellation of clause 13 of the office Memorandum dated July 19, 1995, being Annexure-'B'.
Respondent No. 2 by filing an Affidavit-in-Opposition raised dispute regarding maintainability of the instant application. It had been claimed that the Union of India is not in a position to implement the revision of pay scale of 1992 and 1997 to the executives in view of the guidelines contained in O. M. No. 2(50)/86-DPE (WC) dated 19th July, 1995 and O. M. No. 2(49)/98-DPE (WC) dated 25th June, 1999, which prohibit pay revision in sick companies referred to BIFR. The Corporation had been referred to BIFR in 1993. The operating agency had been appointed. The Government had all along been willing to grant VRS to the officers strictly in accordance with the guidelines of Directors Public Enterprises (DPE). The requisite funds for the same are available with the Government and the funds earmarked for VRS for the officers would not be diverted towards any other purpose. In view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, the writ application cannot be held to be maintainable.
The salary of the petitioners has been fixed according to bipartite/tripartite industry- wise settlement made from time to time and pay revision of the staff are being made keeping in parity with the industry norms. The petitioners were awarded two interim reliefs time to time after the same pay revision. Clause 13 of the DPE's O.M. No. 2(50)/86-IPE dated 19th July, 1995 specifically provides that in a sick company revision of pay scale can only be made in the event the unit generate its own funds. The unit in question being a sick industry, question of its generating funds could not arise. In the process the basic pay of a clerk could become higher than that of the officers who are 2/3 rank above them. Non- supervisory employee working in the corporate office and unit head office are governed by the Memorandum of Settlement entered into with the management on the basis of their charters of demand. Such settlement usually made after the expiry of every three years. The officers are governed by NJMC Service Rules and Regulations, 1982 and the pay revision of the officers are being made as per the guidelines provided by the Department of Public Enterprises, Government of India as issued from time to time. The basic pay of the clerk could be higher than that of officers because a certain portion of the Dearness Allowance by a bipartite settlement could have merged with the basic pay. NJMC had been nationalized in 1980. It has its six units after nationalization. As per the first schedule of the Jute Companies (Nationalization) Act, 1980, five jute mills were nationalized under the purview of the Nationalization Act, 1980. Those five jute mills were nationalized on 21st December, 1980. The remaining one was nationalized on 27th April, 1980. All these jute companies, thereafter, were vested in NJMC Limited as per Nationalization Act, 1980.
Such respondent categorically denied that the petitioners have been discriminated. The Chairman-cum-Managing Director placed in the 95th meeting of the Board of Directors the detailed working capital of the proposed revised pay scale of the executives in NJMC Limited w.e.f. 1st January, 1992 as well as financial implications for payment of the salary to the executives on the basis of proposed revision of pay and accumulated arrear w.e.f. 1st January, 1992 inasmuch as the procedures relating to fitment of executives in different grades of scale. The Board asked CMD to send the detailed papers and documents along with proposal in accordance with DPE's guidelines to the Ministry of Textile for necessary compliance in the matter. In case of officers' pay scale are revised in terms of the guidelines provided by DPE, Government of India from time to time. The guidelines contained in O.M. dated 19th July, 1995 and O.M. dated 25th June, 1999, prohibit pay revision in sick companies referred to BIFR.
The respondents No. 2, thus, sought for dismissal of the writ application. In the Affidavit-in-Reply filed by the petitioners in response to the stand taken by the respondent authority, it is clearly mentioned that an amount of Rs. 978 crores had been kept for offering VRS to all the employees of the NJMC Ltd. and also for clearing all the statutory dues of the secured creditors. It had been alleged that out of such sanctioned amount of Rs. 978 crores, at least 101 crore of rupees (66 crores for VRS and 35 crores towards arrear salaries) had been earmarked for offering VRS to the executives of the NJMC Ltd. and for payment of arrear salaries fallen due and payable due to non-revision of pay w.e.f. 1.1.1992 to the members of the executive cadre of the organization. The petitioners reiterated that there could be no infirmity in making prayer for implementation of the revised pay scale w.e.f. 1st January, 1992. The benefits of pay revision had been extended to all other workforce of the organization under the decision of the Cabinet from 1st January, 1992. It had been alleged that the respondent authorities were not justified in creating a classification amongst the employees, who are all serving the same industry. It is unreasonable that the respondent authorities would extend the benefit of pay revision to a particular class of employees whereas the present petitioners would be denied the same. There could be no rational basis for such unreasonable classification and thereby, denying the benefit to the executives. Such denial has virtually given rise to an absurd situation. The entitlement of revision of pay by the executives under the scheme of revival prepared and submitted by the operating agency and approved by the Government of India on November, 2007 which has again been submitted to the BIFR is under consideration. The Government of India must not be allowed to approbate and reprobate nor could be permitted to blow both hot and cold in the same breath. The guidelines in the office Memorandum dated 19th July, 1995 and another dated 25th June, 1999 which purported to prescribe pay revision in sick company as referred to BIFR by implication of law declared by the Supreme Court had become inoperative and/or non-existent.
It was again mentioned that Section 22 relates to bar of any winding up proceeding of the industrial company or for executive, distress or the like against any of the properties of the industrial company or for the appointment of a receiver. Since in the present case, no such relief as contained in Section 22 of the Sick Industrial Company (Special Provision) Act, 1985 had been asked for, there could be very little scope for refusing the claim as made on behalf of the writ petitioners. The manner in which the respondent organization is functioning has created serious anomalies like that the clerical members of the staff holding the feeder post on being promoted in the rank of executive cadre due to grant of successive revision of pay are now getting higher pay scale and allowances than that of the executive members of the staff. This is detrimental and/or violative of the basic principle of maintaining "parity in the scale of pay" in the organization. The respondent, thus, claimed that in appreciation of such continuous and conscious discrimination made by the respondent organization, the present writ application should be entertained and the grievances as ventilated should be properly redressed. The respondent authorities, thus, may be directed to grant new revision of pay and allowances to the executive members of the executive cadre employees of the organization in tune and at par with the current revision of pay for the employees of the Corporation. The petitioners have also sought for payment of interest at the rate of 18% per annum.
Mr. Partha Sarathi Sengupta, appearing as learned Counsel for the writ petitioners, submitted that the decision of the authorities in the matter of pay scale of the writ petitioners has virtually resulted in a state of functional disorder. Referring to the office Memorandum dated 1st July, 1995, being Annexure-'B' at page 101 in G.A. No. 1281 of 2008, it was submitted that the same relates to revision of scales of pay of the executives holding posts below the Board level and non-unionized supervisors w.e.f. 1.1.1992. According to him, the said memo deserves to be considered in its proper perspective. Petitioners cannot be denied benefits of the said memo on the plea of clause 13, which is in violation of Article 14 of the Constitution. Since it does not relate to other employees, it had resulted in unreasonable classification. He submitted that classification must relate to the object. Inviting attention of the Court of Article 21 of the Constitution, it was submitted that there had been no revision of pay scale of the petitioners since 1987.
It was contended on behalf of the petitioners that even the Chairman of the NJMC made strong recommendations in appreciation of the claim of the petitioners. He wondered as to how could 'the feeder posts' carry pay scale higher than the superior officers.
Referring to the fact that pay revision is necessitated after every five years, it was submitted that for the Government employees, both Central as well as the States, there are pay commissions after regular interval, may be, ten years. This is important in order to enable the employees to respond to the challenges of stagflation. It was further submitted that fixation of pay scale may not be within the scope and ambit of a writ application but the petitioners here had just prayed for direction upon the respondent authorities to accept the pay scale suggested by the Government. Mr. Sengupta reiterated that an amount of Rs. 35 crores have been earmarked towards payment of arrear salaries.
On behalf of the respondent Union of India, learned Counsel referred to the background of the present cases. Inviting attention to the present state of affairs, it was submitted that NJMC because of its consistent non-performance was declared as sick industry. The fact that the NJMC was referred to Board for Industrial and Financial Reconstruction in June, 1993 was also brought to the notice of this Court. In this regard, learned Counsel Mr. Sengupta, appearing for the writ petitioners, submitted that such reference was made in June 1993 i.e. much after January 1, 1992, which was the effective date of revision and as such, non-payment of revised salary by NJMC management to its officers w.e.f. January 1, 1992 was illegal, motivated and discriminatory.
Mr. Banerjee, appearing as learned Counsel for the respondent company, submitted that what has essentially been asked for in the two writ applications is nothing but out and out money claim. It was further submitted that the company having proved to be not viable, had to undergo radical change in complexion.
Many other aspects were also referred to in course of submission. Learned Counsel for the respondent NJMC mentioned about steady decline in the physical and financial performance of NJMC. Deriving support from a departmental communication, it was contended that despite signing of agreement by the leaders of various trade unions on 27th July, 1994 assuring movement of productivity, the decline continued. On the other hand, expenditure on salary and wages has increased to Rs.112 crores in 2003-04. It enjoyed budgetary support by the Government of India. There had been efforts to revive and to run some mills on conversion basis. The situation, however, did not improve. There were employees asking for VRS. Since Government was also paying the workers without any work, it was in the interest of the Government to offer them VRS. NJMC, in this manner, could reduce the workforce. The aspect of revival was decided to be referred to Board for Reconstruction of Public Sector Enterprises (BRPSE) as recommended by the Department of Public Enterprises (DPE) and Department of Expenditure, after examining all aspects proposed VRS. The VRS package was proposed to be as per guidelines of the Department of Public Enterprises. Minutes of the meeting of the High Powered Committee for Revival of National Jute Manufactures Corporation Ltd. held under the Chairmanship of Secretary (Textile) were, according to learned Counsel, one step further towards rationalization. It was proposed that 'all the employees of the NJMC and all its individual units would be offered VRS. The VRS package as per the guidelines of Dept. of Public Enterprises may be modified to make it more attractive to the employees of NJMC whose pay structure has not been revised since 1987 and DA arrears has not been given since two years. The modified VRS package may include revision of pay scales w.e.f. 1992 and grant DA arrears.........' Having regard to all such facts and materials, this Court certainly finds it difficult to brush aside the grievances, as ventilated on behalf of the petitioners. It is not in dispute that there had been no pay revision for the writ petitioners since 1987. Pay revision of the employees is essential and unavoidable in the existing socio-economic background of our society. With ever-increasing rise in prices, the money invariably loses its value. There is, thus, need for compensation and this can only be done by offering rise in salaries and allowances. It is neither necessary nor desirable to deal with this aspect in any further detail. But the Court can very well take note of the fact that the Government employees both Central as well as the States had a pay revision in 1996 and in fact, there had been further pay revision in January 2006. The situation, thus, becomes very grave for those to whom the benefit of pay revision could not be extended. More money leads to higher prices. For the people who had not been given any pay rise, they are again under painful compulsion to pay more and more for less and less. This aspect cannot just be lost sight of and in this context, the genuineness of the grievances cannot possibly be questioned.
On behalf of the respondents, it was submitted that the NJMC being a sick industry, Section 22 (1) of 'The Sick Industrial Companies (Special Provisions) Act, 1985' would stand in the way of entertaining the instant applications. Section 22(1) of the said Act reads as follows:
"(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority."
Mr. Sengupta clarified this provision while submitting that it prohibits certain matters as specifically spelt out. But there cannot be any restriction or any bar in proceeding with the instant writ applications. The said provision essentially relates to commercial claims or transactions. It was further submitted that Section 22(3) of the said Act gives details but it does not follow therefrom that there can be any restriction in granting reliefs as sought for in the present writ applications. After careful consideration of the relevant provision, I find no reason for not accepting such contention.
On behalf of the writ petitioners, reference was made to a decision of the learned Single Bench of this Court in this context. In Jenson Nicholson (I) Ltd. Vs. Controlling Authority Under the Payment of Gratuity Act, 1972 & Ors., as reported in 2008(2) CHN 954, the learned Single Bench of this Court, Aniruddha Bose, J. held that 'the legislative intention of Section 22 of the 1985 Act as it appears from the consistent views taken by the judicial authorities, is to protect the assets of the company in their commercial dealings...........' It was further held that the restricted immunity which is sought to be provided for a sick industrial unit under the provisions of Section 22(1) of the 1985 Act are claims against the company mainly arising out of commercial transactions or contracts. This provision cannot protect such undertaking from a claim of legitimate dues of workmen or employees, which accrue in their favour under statutory provisions.
Much was submitted referring to clause 13 of the office Memorandum dated 19th July, 1995 of the Department of Public Enterprises. By the said clause 13, a bar has been stipulated towards granting pay revision. The said clause 13 has not been made to operate in respect of the workers and other clerical members of the employees of the organization. This prompted the writ petitioners to challenge the validity of the said clause 13 of the office Memorandum dated 19th July, 1995 issued by the Department of Public Enterprises.
Mr. Sengupta, on behalf of the writ petitioners, submitted that the total work force of the organization is about 25000 out of which only 650 number of employees are in the officers' category and the fact remains that the workers and the clerical members of the staff numbering 23315 have been given revision of pay successively on two occasions after the last revision was granted to the officers in 1987. In later part of 1992, the company was referred to BIFR but it could not affect adversely for the company in extending the benefits of revision of pay to the workers and the clerical members of staff. No doubt, an anomalous position has been created by virtue of pay rise for those in the feeder cadre who, as such, are sometime getting more than their superiors. The management of the company quite rightly appreciated these aspects and took the same into consideration while recommending for grant of revision of pay to the officers' category of employees w.e.f. 1.1.1992 and 1.1.1997. The salient points of such recommendation were reflected in letter dated 25th April, 2003, being Annexure-'M'. A chart at page 49H had been appended showing the clerks getting salaries higher than the officers. The writ petitioners do not dispute that they were given interim relief on two occasions. It had been claimed that an amount of Rs. 35 crores had been kept for payment of arrear salaries and this is for granting of benefit of revision of pay.
Highlighting all these aspects, it was submitted by Mr. Sengupta on behalf of the writ petitioners that there could be no rational justification for not considering the matter in its right perspective and there could be no justification for denying pay revision to the writ petitioners. According to him, a conscious discrimination has been perpetrated. It was further submitted that the company is running at a loss when there is a pay revision practically all sections of the employees, about 23000 in number and denying the same to only 615 officers. The respondents, in such view of the matter, virtually created a class within a class, which is not permissible.
The Apex Court in the case between Haryana State Minor Irrigation Tube-wells Corporation & Ors. Vs. G. S. Uppal & Ors., as reported in 2008 SCC Vol-VII, page 375, categorically observed that an organization cannot put forth financial loss as a ground only with regard to a limited category of employees.
In the factual backdrop of the said case, the Apex Court further held that 'it cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category.' On the other hand, deriving support and strength from a Division Bench decision of this Court in the case between State of Bihar & Ors. Vs. Bihar Veterinary Association & Ors., as reported in (2008) 11 SCC 60, it was submitted on behalf of the respondents that Courts should not ordinarily upset the recommendation of the expert bodies as that has a cascading effect leading to multifarious litigation.
Learned Division Bench relied upon the decision of the Apex Court in the case between S.C. Chandra Vs. State of Jharkhand, as reported in (2007) 8 SCC 279. It was held that fixation of pay and determination of parity is a complex matter, which is for the executive to discharge.
In response to such plea as raised on behalf of the respondents, Mr. Sengupta deriving support from the decision in the case of Haryana State Minor Irrigation Tube-wells Corporation and Ors. (Supra), submitted that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is, no doubt, very limited. However, it is well settled that the Courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.
The main hurdle as it appears from the submission made by learned Counsel for the parties, is clause 13 of the office Memorandum dated 19th July, 1995. The same reads :
"For such PSEs registered with the BIFR, pay revision and grant of other benefits will be allowed only if it is decided to revive the unit. The revival package should include the enhanced liability on this account. The benefit of pay revision, etc. shall be extended to IISCO and financial liability thereof shall be met by SAIL."
The office Memorandum dated 19th July, 1995 was issued by the Department of Public Enterprises, Ministry of Industry, Government of India. It refers to the fact that pay revision in respect of executives holding posts below the Board level and non-unionized supervisors following IDA pattern in the Public Enterprises were last revised w.e.f. 1.1.1987.
Thus, so far the NJMC is concerned, pay revision and grant of other benefits has been linked up with revival of the unit. It is, however, pointed out that except the 600 and odd persons, about 23000 employees have not been denied the benefit of pay revision. It cannot be disputed that successful running of an organization depends on many factors. It cannot be said that it only depends upon the performance of an insignificant minority of the employees. Apart from efficiency on the part of the employees and the management, there are factors like proper infrastructure. Market demand is also another significant aspect.
I find it extremely difficult, if not impossible, to brush aside the submission made by Mr. Sengupta on behalf of the petitioners that the petitioners certainly did not deserve to be specially picked up for being held responsible for alleged lack of smooth functioning of the organization.
In view of the fact that there had been steady and consistent price-rise of all commodities during this protracted period of time i.e. from 1987, it is inconceivable that about 600 and odd persons would be denied the benefit of pay rise. With stagnant pay structure, the petitioners cannot be expected to successfully respond to the challenge. This, consequently, is bound to affect their moral and has adverse impact on their functioning. As it appears from the materials on record, the financial liability also does not seem to be much.
Leaving aside that aspect, there is a moral issue is involved as well. How can a person holding inferior rank draw salary higher than his superior authority? This reminds of George Orwell, who in his book 'Animal Farm' said that all are equals but some are more equal than others. There can be no doubt that it will be unjust and improper to make the petitioners' suffer by not revising their pay scale and to compel them to continue with their existing pay scale of 1987.
Clause 13 of the said Memorandum dated 19th July, 1995 cannot, thus, stand the test of judicial scrutiny since it appears to be arbitrary and in clear violation of the basic principle that each one is entitled to get according to his ability and his need. Any action that leads to socio-economic disparity; a decision, which threatens to disturb functional harmony and any approach that suffers from inherent hollowness and latent ambiguity cannot have any legal sanction. Law in changing society like that of ours cannot stand still and if it fails to respond to the demands of the situation, if it does not meet the aspirations of the people, if it emphasizes only on rules and principles and ignores the cause of justice, it may not serve any fruitful purpose. After all, it is not 'NITI' alone but 'NYAY' as well, which are to be borne in mind in order to ensure smooth and effective functioning of the society.
But at the same time, this Court is not unaware of the fact that fixation of salary and allowances involves specialized skill. It is for the financial experts and the persons in the administration or executive wing with experience who can better handle the problem. What is essential is to have a rational approach to the entire problem. This must be followed up keeping in mind that some amount of money had already been kept allotted for this purpose and there is strong favourable recommendation of the authority in this regard.
I think interest of justice will be best served if the job of formulating a rational pay structure for the present petitioners is left to an expert body - of course, with representatives of the present petitioners. Accordingly, the application being W.P. No. 1505 of 1999 succeeds.
This also governs the writ application being W.P. No. 2394 of 1999. The respondent authorities are hereby directed to form a team of experts with sufficient experience in dealing with matters relating to rationalization of pay structure and of course, including representatives of the present petitioners.
Such a body must be formed within a period of three months from the date of communication of this order. The said body may, thereafter, consider the grievances of the writ petitioners, as ventilated in the two applications and take appropriate action and submit their reports - taking into consideration the annexures to the two writ applications. This must be done within a further period of four months from the date of formation of the said committee.
The respondent authorities must immediately thereafter take appropriate steps towards fixation of pay scales and payment of arrear amount to the petitioners.
Consequently, all the pending applications are disposed. There is no order as to costs.
Xerox certified copy of the judgment and order be supplied to the parties, if applied for, as expeditiously as possible.
(S.P. Talukdar, J.)