Calcutta High Court (Appellete Side)
Dibyendu Bhattacharya vs Steel Authority Of India Ltd. & Ors on 1 August, 2008
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Tapan Mukherjee
F. M.A. 782 of 2007
Dibyendu Bhattacharya
Versus
Steel Authority of India Ltd. & Ors.
For the Appellant: Mr. Kashikanta Moitra
Ms. Debjani Sengupta
Mr. Sandipan Banerjee
Mr. Dibyendu Bhattacharyya
For the Respondents : Mr. Malay Kumar Basu
Mr. Subhasish Pachhal
Heard On: 18.06.2008 & 22.07.2008.
Judgment On: 01.08.2008.
PRANAB KUMAR CHATTOPADHYAY, J.
This appeal has been preferred at the instance of the appellant assailing the judgment of the learned Single Judge whereby and whereunder the said learned Single Judge dismissed the writ petition on merits. The appellant herein filed the writ petition challenging the decision of the respondent authorities regarding refusal to place the said appellant in the executive grade. The appellant/writ petitioner also alleged discriminatory treatment at the instance of the respondents due to non-observance of the principles of equal pay for equal work.
The relevant facts of this case are briefly narrated hereinafter:
The appellant herein submitted application for the post of Speech Therapist/Audiologist in prescribed form and manner in response to the advertisement published on behalf of the Steel Authority of India Limited, Durgapur Steel Plant. It is not in dispute that a panel of successful candidates was prepared by the concerned authority and the appellant herein secured fourth position in the said panel. It appears from the records that the first three empanelled candidates did not accept the appointment and, therefore, the appellant herein was offered appointment. Upon accepting the said offer, the appellant joined the post of Speech Therapist/Audiologist in S-6 Grade in Medical and Health Services under Steel Authority of India Limited in Durgapur Steel Plant.
The terms and conditions for appointment to the aforesaid post of Speech Therapist/Audiologist have been specifically mentioned in the letter of appointment issued to the appellant herein. Some of the aforesaid terms and conditions are set out hereunder:
"1........................................................................................................................... ...............................................................................................................................
(f) Your appointment will be under Steel Authority of India Limited and you will be liable to serve under the Company any where in India..................................
.......................................................................................................................................... ......................................................................................................................
3............................................................................................................................
(a) To perform all basic and special
audiological test i.e. Pure tone
audiometry, Tympanametry etc.
(b) To conduct regular speech therapy clinics
independently for the deaf-mute and
patients who need speech rehabilitation.
(c) To help the deaf with audiological
rehabilitation programmes e.g.
prescribing hearing aids etc.
(d) To maintain the Audiological instruments
and Calibrate them time to time.
(e) To give pre and post-operative
audiological support to ENT Surgeons in
cases of reconstructive surgery of the
ear.
(f) To look after the audiological as well as
Speech Therapy Unit independently under
the supervisions of the ENT Deptt.
(g) To perform day to day administrative
function of the Unit and will report to
the In-Charge of ENT Deptt. as and when
required.
(h) To look after the Audiometric Section
located at Occupational Health Services
Centre and routine audiometric
examination for Medical Examination as
and when required."
It is the case of the appellant that only after joining the aforesaid post it came to his knowledge that the post of Speech Therapist/Audiologist in other units of the Steel Authority of India Limited has been categorised as Executive grade. It has been submitted on behalf of the appellant that in the aforesaid circumstances, on a number of occasions appellant herein met his superior officers at Durgapur and requested them to treat the post of Speech Therapist/Audiologist as E-1 grade post like all other units of Steel Authority of India Limited. Since no favourable decision was taken pursuant to the aforesaid requests of the appellant, a written representation was submitted to the Executive Director, Durgapur Steel Plant by the appellant herein for treating the said post of Speech Therapist/Audiologist as E-1 grade post.
Although the aforesaid representation was strongly recommended and duly forwarded by the Senior Deputy Director (M&HS), Durgapur Main Hospital for favourable consideration, no effective favourable decision was taken thereafter. The appellant, therefore, made a further appeal and in response to that appeal Director (M&HS) by office Memo dated 20th July, 2003 strongly recommended and forwarded the case of the appellant for taking appropriate decision. It has been submitted on behalf of the appellant that the aforesaid post of Speech Therapist/Audiologist has been recognised as a special job in Steel Authority of India Limited and treating the said post in Executive grade (E-1 scale), necessary advertisements were issued for filling up the vacancies in Rourkela unit in October, 1986 and in Bokaro unit in 1989. It has been submitted on behalf of the appellant that the status of the post of Speech Therapist/Audiologist at Rourkela Steel Plant has been recognised as Executive grade (E-1 scale) whereas much lower scale has been assigned to the same post at Durgapur Steel Plant without any reasonable basis.
Mr. Kashikanta Moitra, learned Senior Counsel representing the appellant submits that the status of the post of Speech Therapist/Audiologist at Rourkela Steel Plant cannot be different from the status of the said post at Durgapur Steel Plant since the duties and responsibilities discharged by the holder of the aforesaid posts at Rourkela Steel Plant and Durgapur Steel Plant are identical. Mr. Moitra submits that there cannot be any valid reason for treating the post of Speech Therapist/Audiologist at Rourkela Steel Plant in Executive grade with E-1 scale when the same post was treated as non-executive one at Durgapur Steel Plant upon assigning much lower scale.
Mr. Malay Basu, learned Senior Counsel representing the respondents authorities submits that save and except the Rourkela Steel Plant, no other unit of Steel Authority of India treated the post of Speech Therapist/Audiologist in executive grade. Mr. Basu further submits that the claim of the appellant herein as regard equal pay for equal work cannot be accepted in view of the fact that the job description and responsibilities of the Speech Therapist/Audiologist of Durgapur Steel Plant are different than that of Rourkela Steel Plant. Mr. Basu also submits that the Speech Therapist/Audiologist of Rourkela Steel Plant is not discharging similar functions and carrying out identical responsibilities which are discharged by the appellant herein as Speech Therapist/Audiologist of Durgapur Steel Plant. Mr. Basu submits that Sri B. V. Prabhakar, Speech Therapist/Audiologist of Rourkela Steel Plant has been discharging additional functions of managerial duties which include procurement of specialised equipments for Speech and hearing unit from time to time whereas the appellant herein is not discharging any such managerial duties.
It has further been submitted on behalf of the respondents authorities that the appellant herein was never entrusted managerial duties with regard to procurement of specialised equipments for Speech and hearing unit and, therefore, the Speech Therapist/Audiologist of Rourkela Steel Plant cannot be treated at par with the Speech Therapist/Audiologist of Durgapur Steel Plant. Mr. Basu also submits that Sri B. V. Prabhakar now working as Speech Therapist/Audiologist in Rourkela Steel Plant was originally appointed at Bokaro Steel Plant in non-executive cadre and only in the year 1986 pursuant to an advertisement published by Rourkela Steel Plant applied for the post of Speech Therapist/Audiologist and ultimately, joined in Rourkela Steel Plant. Mr. Basu further submits that the said Sri Prabhakar was not appointed directly in the Rourkela Steel Plant but was an in- house candidate of Steel Authority of India Limited.
Mr. Basu, however, specifically urged before this court that Sri Prabhakar, Speech Therapist/Audiologist of Rourkela Steel Plant cannot be treated at par with the appellant herein since said Sri Prabhakar has been discharging managerial job unlike the appellant herein. Mr. Basu also submits that while Sri Prabhakar was appointed at Rourkela Steel Plant in the year 1987, the Establishment Manual as on 15.05.1972 was valid and operative wherein the post of Medical Officers in the medical department has been defined as executive post. Similarly, in the year 1996 when the appellant herein was appointed, the Manual of 1992 was in force wherein the said post of Speech Therapist/Audiologist has been described as highly skilled personnel and accordingly fitted in S-6 grade.
The learned Senior Counsel of the respondent authorities submits that in view of the aforesaid Establishment Manual of Steel Authority of India Limited, the post of Speech Therapist/Audiologist can never be treated as executive post. It has also been argued on behalf of the respondents that once an offer was made to the appellant and the same was accepted by him, the contract was complete and the same, therefore, binds the appellant herein. It has also been submitted on behalf of the respondents that the appellant herein joined the non-executive grade post in the year 1996 in S-6 grade and afterwards was promoted to S-7 grade, S-8 grade and S-9 grade. The learned Senior Counsel of the respondents further submits that the aforesaid promotions were accepted by the appellant herein without any objection and, therefore, the said appellant is not entitled to claim that the said post of Speech Therapist/Audiologist at Durgapur Steel Plant should be upgraded to executive post after assigning E-1 scale of pay on the principle of equal pay for equal work.
Mr. Moitra, learned Senior Counsel of the appellant submits that initially at the time of accepting appointment to the post of Speech Therapist/Audiologist in Durgapur Steel Plant the appellant had no knowledge about the status of the other Speech Therapists employed in other units of Steel Authority of India Limited and, therefore, the appellant accepted the offer of appointment to the said post of Speech Therapist/Audiologist in Durgapur Steel Plant in non-executive grade carrying S-6 scale of pay even after discharging similar duties and identical responsibilities like other Speech Therapists working in other units of Steel Authority of India Limited who have been assigned executive grade and E-1 scale of pay.
The learned Senior Counsel representing the respondents submits that the Speech Therapist/Audiologist at Rourkela Steel Plant unit is required to discharge additional managerial duty and, therefore, the said post of Speech Therapist/Audiologist has been assigned executive grade with E-1 scale of pay.
Mr. Moitra, learned Senior Counsel of the appellant however, submits that Sri Prabhakar, Speech Therapist/Audiologist at Rourkela Steel Plant unit was not asked to discharge any additional managerial job at the time of appointment.
The respondent authorities herein by way of supplementary affidavit disclosed various documents and correspondences. Referring to the said documents annexed with the supplementary affidavit, Mr. Moitra submits that the same do not refer to any additional job which was required to be discharged by Sri Prabhakar, Speech Therapist/Audiologist at Rourkela Steel Plant. Mr. Moitra further submits that at the time of appointment of Sri Prabhakar as Speech Therapist/Audiologist at Rourkela Steel Plant, it was never mentioned that the said Speech Therapist/Audiologist should also discharge additional managerial duties including procurement of specialised equipments for Speech and hearing unit. Mr. Moitra submits that while Sri Prabhakar was appointed at Rourkela Steel Plant as Speech Therapist-cum-Audiologist initially he was not at all required to perform any managerial job or procurement job and when subsequently said Sri Prabhakar was promoted to higher grades i.e. E-2, E-3 and E-4 then only he was required to perform the managerial duties.
On examination of the materials on record we do not find that at the time of initial appointment as Speech Therapist/Audiologist in Rourkela Steel Plant under the Steel Authority of India Limited, Sri Prabhakar was required to discharge managerial duties including procurement of specialised equipments for Speech and hearing unit. The respondent authorities tried its level best to establish that the post of Speech Therapist/Audiologist at Rourkela Steel Plant cannot be equated with the post of Speech Therapist/Audiologist at Durgapur Steel Plant on the ground that the duties to be discharged by the Speech Therapist/Audiologist at two different units are completely different.
From the records we find that the Senior Deputy Director (M&HS), Durgapur Steel Plant Main Hospital by the Memo dated 3rd March, 2004 strongly recommended the claim of the appellant herein in the following manner:
" Sub: Upgradation of the post of Audiologist-
cum-Speech Therapist.
Audiology & Speech Therapy is a separate specially which is required in Hospital like Durgapur Steel Plant. It is a very rare specially available in the country and is a part and parcel of the department of ENT. At present the job of the Audiologist cum Speech Therapist has become very important in the treatment of almost all ENT cases.
In our hospital the above post is in the non-
executive category, whereas it is in executive category entry in other sister unit of SAIL. Considering the gravity of the job the post may be upgraded to the executive one as it is prevailing in other plants. Presently we have a person named Mr. Dibyendu Bhattacharya, T/No. 353299 in S-7 grade, who is discharging responsibility with full satisfaction. He is a qualified (M.Sc. in Speech & Hearing) and experienced person in this field who had joined DSP Hospital in S-6 grade in the month of June, 1996. In this connection it may kindly be pointed out that the work physiologist in our Occupational Health Services Centre joined DSP as an executive who has the qualification which is at par with Mr. D. Bhattacharya in his respective field.
Hence it is suggested to upgrade the post of Audiologist cum Speech Therapist to the executive grade to make it at par with the other sister unit of SAIL. (Emphasis Added) After upgradation Mr. Bhattacharya also can look after the job of the industrial Audiologist in the Occupational Health Services (which is a statute job) as we don't have any qualified person for the same.
Director (M&HS) may kindly consider the proposal and if agreed requested to take up the matter with the appropriate authority.
Sd/-
Dr. N. C. Bhattacharjee, Sr. Dy. Director (M&HS) 3.3.04"
In spite of the aforesaid recommendation no favourable decision was taken by the competent authority and, therefore, the appellant herein had no other alternative but to file the writ petition which was, however, dismissed by the learned Single Judge on merits and assailing the said decision of the said learned Single Judge, instant appeal has been preferred by the said writ petitioner.
In order to examine the validity of the claims of the appellant that the Speech Therapist/Audiologist at Rourkela Steel Plant should be treated at par with the Speech Therapist/Audiologist at Durgapur Steel Plant, following factors are required to be taken into consideration:
1) Duties and responsibilities of both the posts;
2) Nature and status of the posts;
3) Responsibilities and powers to be exercised by the holders of the said posts;
4) Qualification and eligibility criteria for recruitment to the said posts.
On examination of the available records we find that Sri B. V. Prabhakar was initially appointed in the post of Speech Therapist at Bokara Steel Plant and subsequently, his name was forwarded for the post of Speech Therapist/Audiologist at Rourkela Steel Plant wherein said Sri Prabhakar was appointed to the post of Speech Therapist/Audiologist in E-1 scale. Admittedly, said Sri Prabhakar was in-house candidate who was appointed to the post of Speech Therapist/Audiologist in Rourkela Steel Plant in executive grade. The Assistant Manager (Personnel), Rourkela Steel Plant issued the office order dated 20th April, 1987 in this regard and the same is quoted hereunder:
" OFFICE ORDER NO. 154 DATED: 20-4-1997 Consequent on his appointment as Audiologist-cum-Speech Therapist in Rourkela Steel Plant, Shri B.V. Prabhakar, Speech Therapist in Bokaro Steel Plant, has joined the Medical Department, with effect from the forenoon of 4.3.1987 on a pay of Rs. 1390/- per month in the scale of Rs. 1150-60- 1870/-.
He will be governed by the terms and conditions as applicable to similar category of executives in the Medical Department.
The date of birth of Shri Prabhakar is 4.4.1955 (Fourth April one thousand nine hundred fifty five).
The Personal Number allotted to Shri Prabhakar is 873197.
Sd/-
(S. K. Nayak) Asst. Manager (Pers) OD"
In the aforesaid office order it has been specifically mentioned that Sri B. V. Prabhakar was Speech Therapist in Bokaro Steel Plant and was subsequently, appointed as Speech Therapist/Audiologist at Rourkela Steel Plant wherein he would be governed by the terms and conditions as applicable to the executives. It has never been mentioned that said Sri Prabhakar, Speech Therapist/Audiologist of Rourkela Steel Plant would be required to discharge any additional duty of managerial category. Inspite of granting repeated opportunities, respondent authorities could not disclose any document wherefrom it would appear that the Speech Therapist/Audiologist at Rourkela Steel Plant unit was required to discharge higher responsibilities and/or managerial duties which were not required to be discharged by the Speech Therapist/Audiologist of Durgapur Steel Plant like the appellant herein.
It is not in dispute that Sri Prabhakar, Speech Therapist/Audiologist at Rourkela Steel Plant unit was assigned executive grade and E-1 scale at the time of initial appointment to the said post. The deciding factor would be undisputedly, the duties and responsibilities attached to the post of Speech Therapist/Audiologist at Rourkela Steel Plant unit and Durgapur Steel Plant unit at the time of initial appointment.
The respondent authorities although sought to contend that the Speech Therapist/Audiologist at Rourkela Steel Plant is required to discharge higher responsibilities and managerial duties, the same, in our opinion, is not correct appreciation of the factual position. On examination of the records we are satisfied that Sri Prabhakar was asked to discharge certain additional responsibilities of managerial nature only after granting promotion to the higher promotional posts carrying higher scale of pay of E-2, E-3 and E-4 but at the time of initial appointment it has not been established that said Sri Prabhakar was required to discharge any managerial duty although he was appointed in executive grade carrying E-1 scale. The Speech Therapist/Audiologist in Rourkela Steel Plant at the time of induction was not required to discharge any additional managerial duty and, therefore, there can be no valid reason for not granting the identical benefit to the appellant herein at the time of initial appointment to the post of Speech Therapist/Audiologist in Durgapur Steel Plant.
It is true that the appellant herein accepted the appointment to the post of Speech Therapist/Audiologist in Durgapur Steel Plant upon going through the advertisement wherein it has been categorically mentioned that the selected candidates would be absorbed in S-3 grade and not in the executive grade carrying E-1 scale of pay but the aforesaid acceptance of appointment by the appellant cannot prevent him from demanding higher scale of pay subsequently on the basis of the principle of equal pay for equal work specially when it has been categorically submitted on behalf of the appellant that the said appellant had no knowledge about the assignment of higher scale of pay to the holders of the same posts in the other units of the company. The principle of estoppel has no manner of application in this regard. After coming to know about the disparity of scale of pay and grade in respect of the holders of the same posts in different units of the same company, the appellant herein raised his demand before the competent authority for granting higher scale of pay meant for the executives upon observing the principle of equal pay for equal work.
In any event, we do not find any reason how the respondent company can assign different scale of pay or grade in respect of the holders of the same posts in different units of the company when we find the qualifications, eligibility criteria and nature of duties required to be discharged by the holders of the post of Speech Therapists in different units particularly in Rourkela Steel Plant and Durgapur Steel Plant are similar and identical. Therefore, the appellant herein has rightly claimed the executive grade and E-1 scale of pay being a Speech Therapist/Audiologist of Durgapur Steel Plant since the said grade and scale of pay was assigned to the Speech Therapist/Audiologist of Rourkela Steel Plant.
It may not be out of place to mention that in terms of Clause 1(f) of the offer of appointment, the appellant herein may be asked to serve as Speech Therapist/Audiologist in Rourkela Steel Plant. Therefore, it cannot be accepted that a Speech Therapist/Audiologist will receive lesser pay while posted in Durgapur Steel Plant and enjoy the benefit of higher scale of pay while posted in Rourkela Steel Plant under the same company, namely, Steel Authority of India Limited.
We are, therefore, unable to approve the decision of the respondent authorities to assign lesser scale of pay to the appellant herein after declaring the post of Speech Therapist/Audiologist in Durgapur Steel Plant as non-executive grade carrying scale of pay in S-6 grade.
The appellant herein has also disclosed certain documents in support of his contentions that the said appellant was also required to discharge certain additional functions including procurement of instruments through agencies. However, we are not very much concerned about the occasional discharge of additional duties by any Speech Therapist/Audiologist since the same was not specifically mentioned at the time of initial appointment to the said post.
Considering the qualifications and the experience attached to the post of Speech Therapist/Audiologist in respect of both the units of Steel Authority of India Limited at Durgapur Steel Plant and Rourkela Steel Plant and the duties and responsibilities attached to the said post we are satisfied that the Speech Therapist/Audiologist of Durgapur Steel Plant is required to discharge similar responsibilities and identical duties like the Speech Therapist/Audiologist of Rourkela Steel Plant although different scale of pay has been assigned for the aforesaid posts under the same employer namely, the Steel Authority of India Limited. Therefore, the principle of equal pay for equal work is very much applicable in the facts of the present case and the appellant herein could not be denied the benefit of executive grade and E-1 scale of pay at the time of initial appointment to the post of Speech Therapist/Audiologist. Mere fact that Sri Prabhakar, Speech Therapist/Audiologist at Rourkela Steel Plant was given Executive grade at the time of initial recruitment to the post of Speech Therapist/Audiologist cannot be the deciding factor for not equating the post of Speech Therapist/Audiologist at Durgapur Steel Plant with that of the Rourkela Steel Plant. The deciding factor in this regard should be the duties and responsibilities attached to the post and not the scale of pay.
In the case of E.P. Royappa vs. State of Tamil Nadu and another reported in AIR 1974 SC 555, Justice P. N. Bhagwati, speaking for the Bench observed:
"82.........................................................the basic criterion for the determination of equivalence is "the nature and responsibilities of duties attached to the post and not the pay attached to the post............................................................"
For the reasons discussed hereinbefore, we hold that the appellant herein is entitled to get the executive grade and E-1 scale of pay and also entitled to enjoy the similar service benefits as are admissible to the Speech Therapist/Audiologist in Rourkela Steel Plant under Steel Authority of India Limited.
Therefore, we are unable to approve the decision of the learned Single Judge and set aside the same.
This appeal thus stands allowed.
The respondent authorities are directed to grant to the appellant similar service benefits as are available to the Speech Therapist/Audiologist of Rourkela Steel Plant including the executive grade with corresponding E-1 scale as granted also to the said Speech Therapist/Audiologist of the Rourkela Steel Plant.
Needless to mention that the appellant herein will be entitled to all arrear service benefits which will be calculated by the respondent authorities within four weeks from date and should be disbursed to the said appellant within two weeks thereafter.
In the facts and circumstances of the present case, there will be, however, no order as to costs.
Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
[PRANAB KUMAR CHATTOPADHYAY, J.] TAPAN MUKHERJEE, J.
I agree.
[TAPAN MUKHERJEE, J.]