Gauhati High Court
Tripura Jute Mills Officers ... vs State Of Tripura And Ors. on 28 October, 2003
Equivalent citations: (2004)2GLR241
Author: T. Vaiphei
Bench: T. Vaiphei
JUDGMENT T. Vaiphei, J.
1. This is an application under Article 226 of the Constitution of India for directing the respondents to give effect to the recommendation of the 4th Tripura Pay Commission for revision of pay scale in respect of the Officers/Supervisors of Tripura Jute Mills Limited with effect from 1.1.1986 and also for providing house rent allowance, compensatory allowance, career advancement scheme and dearness allowance to the petitioners on par with the employees of the State Government and other public sector undertakings.
2. The facts of the case leading to the filing of this writ petition may be briefly stated as follows :-
The Tripura Jute Mills Limited (hereinafter called as 'T.J.M.L.) registered under the Indian Companies Act, 1956 is wholly a Government Company and having a Board of Directors, who are appointed by the Government of Tripura. At the time of constitution of 1st Pay Commission by the Government of Tripura, the T.J.M.L. was not yet in existence. However, the 2nd Pay Commission, constituted by the Government of Tripura in 1979 had recommended the pay structures of the officers and employees of the T.J.M.L. like other employees of the State Government undertakings. In the year 1988 the 3rd pay Commission constituted by the Government of Tripura recommended the pay structure of all the Government officers/ employees of the State including the officers and employees of all Government undertakings and Autonomous Bodies in the State, bat the said employees of the T.J.M.L. were excluded from the said 3rd Pay Commission report. According to the petitioners this fact came to their knowledge only after the publication of the report of the said 3rd Pay Commission. Thereafter they submitted a number of representations to the respondents to revise their pay scales by maintaining parity with the pay scales of the officers and employees of the Government and/or public sector undertakings of the State holding equivalent posts or enjoying analogous status, but to no effect. Even though the respondent No. 2 had assured the petitioners' Association on 30.07.1988 that their request for revision of pay scales on per with the pay scales of other Government undertakings recommended by the 3rd Pay Commission would be sympathetically considered, but nothing came out of it. When the Government of Tripura constituted the 4th Pay Commission, the petitioners' Association again approached the respondents to include the officers and supervisors of the T.J.M.L. under the purview of the 4th Pay Commission. The petitioners also assert that the Board of Directors in their meeting held on 20.11.1996 in the Chamber of Minister of Industries and Commerce, i.e., the Chairman of the T.J.M.L. resolved that the Industry Department be requested to constitute a pay revision committee for T.J.M.L. employees by comparing the pay scales of the employees of other public sector undertakings with the pay scales of the employees of the T.J.M.L. as early as possible keeping in view the likely outcome of the recommendation of the 4th Pay Commission. The petitioners submit that the Board of Directors are not the proper authority to recommend the pay structure or, to consider the service matter of the employees of the T.J.M.L. and, therefore, the, respondent No. 2 requested the Industry Department to undertake such exercise. The petitioners question, the wisdom of the respondents in constituting a separate committee other than the 4th Pay Commission for the purpose of recommending the pay structure of the employees of the T.J.M.L. and claim that there can be no reasonable basis for excluding the concerned employees of the T.J.M.L. from the purview of the 4th Pay Commission and as such this action of the respondents is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
It would appear that during the pendency of the writ petition, the petitioners' Association moved this Court for allowing them to submit Memorandum in respect of the revision of their pay scales to the 4th Pay Commission and by the interim order dated 21.4.1997 passed in C.M. Application No. 115/1997, arising out of this writ petition, this Court directed the 4th Pay Commission to consider the said Memorandum of the petitioners. In pursuance of the said interim order, the 4th Pay Commission while submitting its : report to the Government had also intimated the case of the employees of the T.J.M.L. in its report and made recommendation for revision of the pay scales of the said Officers and Supervisors. On the recommendation of the 4th Pay Commission, the respondent No. 1 framed the Tripura State Civil Services (Revised Pay) Rules, 1999 which was published in the Tripura Gazette Extraordinary Issue on 06.02.1999. It may be noted that in so far as the said Officers and Workers of the T.J.M.L. are concerned, the Government of Tripura, purportedly to give effect to the recommendation of the 4th Pay Commission, ordered that the pay of the Officers and Workers of the T.J.M.L. were to be revised with effect from 1.4.1999.
It is contended by the petitioners that except for the employees of the T.J.M.L. the pay scales of all the Government of Tripura undertakings, numbering 32, were revised in pursuance of the recommendation of the 4th Pay Commission with effect from 1.1.1996. Some of the said Government Undertakings are Tripura Industrial Development Corporation Ltd., Tripura Tea Development Corporation Ltd., Tripura Small Industries Corporation Ltd., Tripura Horticulture Corporation Ltd. etc. It is also claimed by the petitioners that they have not been provided with House Rent Allowance (H.R.A.), Career Advancement Scheme (C.A.S.), Compensatory Allowance (C.A.) and Dearness Allowance (D.A.) even though these benefits are made available to the employee and supervisory staffs of the aforesaid 32 Government undertakings and as a result the petitioners are getting much less salary. The petitioners also point out that the Managing Director of the T.J.M.L. had vide Annexure-20M taken up the issue of implementation of revised pay scale to the employees of T.J.M.L. with effect from 1.1.1996 like other Public Sector Units and also introduction of H.R.A, C.A.S., C.A. and D.A to the said employees of the T.J.M.L.. The petitioners state that they are getting till now cumulative Industrial D.A. amounting to Rs. 278 only per month which is much less than the D.A. 22% of the basic pay enjoyed by the employees of the State Government and all other public sector Units. The petitioners also point out that the Pay Anomaly Cell constituted by the Managing Director of the T.J.M.L. vide order dated 06.07.1999 in its report gave a finding that in the matter of revision of pay scale the petitioners have been discriminated against and were not treated like the employees/Officers of the other public sector undertakings. The petitioners, therefore, submit that they have been victims of hostile discrimination at the hands of the State respondents.
3. The State respondents and the T.J.M.L. filed their respective counter affidavits and controverted the claims of the petitioners' Association. The counter affidavit of the T.J.M.L., i.e., the respondent No. 2 adopted the position taken by the State respondent. The respondents admit that the pay and allowances of the employees of the other public sector undertakings are mostly on par with the employees of the State Government and that their pay have been revised from time to time along with the employees of the State Government. In so far as the employees of the T.J.M.L. are concerned, the respondents point out that the Board of Directors of the T.J.M.L. have consistently followed a policy of keeping the pay and allowances and perquisite of the employees of the T.J.M.L. different from the employees of the State Government and other public sector undertakings. In this connection, the respondents referred to the letter dated 21.5.1986 and 21.11.1986, i.e. Annexure-R/8 and R/9, wherein the Managing Director of the T.J.M.L. had requested the State Government to exempt the employees of the T.J.M.L. from the purview of the 3rd Pay Commission. Under such circumstances the State Government could not recommend the introduction of the revised pay structure of the employees of the T.J.M.L. with effect from 1.1.1996. Regarding the non-payment of D.A. and of other allowances to the employees of the T.J.M.L., the respondents submit that the Finance Department in taking the impugned decision duly considered the resource available in the T.J.M.L. generation of income in the T.J.M.L. and the paying capacity of the T.J.M.L. authority. The respondents point out that most of the looms of the T.J.M.L. have been out Of order aid the production level is far below the optimum level. It is also pointed out by the respondents that the T.J.M.L. Authority cannot arrange payment of monthly salary and wages for each month and that the salary and wages of its employees could not be paid for 2/3 months most of the time, In such a situation, the respondents contend, the payment of D.A. and other allowances claimed as by the petitioners' Association would result in liquidation of the Mills itself thereby jeopardising the continued employment of the workers and officers concerned.
4. It is also the case of the respondents that the circumstances under which the pay structure of the employees of the T.J.M.L. are made is different from that of the employees of the other public sector undertakings and the State Government. The pay structure of the Jute Mills employees is settled through bipartite agreement. The T.J.M.L. has to meet its expenditure from its own income but when the company is running at a loss and cannot even pay salary to its/ employees regularly, the decision of the State Government for introduction of the revised pay structure of the employees of the T.J.M.L. with effect from 1.4.1999 is unassailable and well justified. The Government is also not in a position to come to the aid of the Company to meet the consequential increase in the liabilities of the T.J.M.L.. The respondents admit that the Board of Directors, of the T.J,M.L in its 146th meeting held on 31.1.2000 passed a resolution vide Clause 4(b) of the minutes for recommending to the Director of Industries and commerce to extend monetary benefits to the employees of the T.J.M.L. in the form of Medical Allowances, H.R.A and C.A. with effect from 01.04.2000 like other public sector undertakings. The proposal made by the Managing Director of the T.J.M.L. in accordance with the said recommendation of the Board of Directors was carefully considered by the Director of Industries and Commerce but no decision could be taken since the total financial implication likely to be involved was not communicated by the Managing Director concerned. The respondents also point out that the employees of the T.J.M.L. have been drawing Industrial D.A. since the establishment of the Mill. As far as the employees of the other public sector undertakings are concerned, since they have been covered by the Pay Commission, they continue to enjoy such benefits. The respondents also admit that the pay revision committee for the employees of the Mill was constituted by the Government and the said committee submitted its report to the authority but the Government has not accepted the recommendation.
5. Heard Mr. P. Roy Barman, learned counsel for the petitioners. I have also heard Mr. T.K. Roy, learned Advocate General, Tripura, assisted by Mr. S. Chakraborty, learned counsel appearing on behalf of the respondents.
6. It is submitted by Mr. P. Roy Barman, learned counsel for the petitioners that the impugned action of the respondents in not accepting the recommendation of the pay commission for revision of pay scale of the Officers/Supervisors of the T.J.M.L. with effect from 1.1.1986 is arbitrary, illegal and discriminatory. The learned counsel also contends that the non-payment of revised H.R.A., C.A., C.A.S. and D.A. to the petitioners when such benefits are extended to the employees of other public sector undertakings amounts to hostile discrimination and the sane cannot stand. He further states that the Officers and employees of the T.J.M.L. are entitled to the same benefits extended to the officers and employees of other public sector undertakings inasmuch as they are similarly situated and equally circumstanced. In support of his contention, the learned counsel for the petitioners cited the decisions of the Hon'ble Apex Court, reported in (1998)3 GLR 71, (1994) 2 SCC 729, (1994) 6 SCC 651 and (1999) 2 SCC 372.
7. On the other hand, the learned Advocate General for the respondents vehemently submits that fixation of pay scale is a policy matter which cannot be interferred with by this Court unless such policy decision suffers from the vice of wednesbury unreasonableness or irrationality which elements are not present in the instant case. He further argues that this writ petition is a suicidal writ petition in that conceding the reliefs claimed by the petitioners' Association will lead to closer of the Unit itself when it cannot even pay regular salary to its employees even on the existing pay scale. The learned Advocate General further argues that the employees of the T.J.M.L. have always been consistently following a policy of keeping the pay and allowances of its employees different from that of the Government and other public sector undertakings. He refers to the letters dated 21.05.1986 and 21.11.1986 i.e., Annexure-R/8 and R/9, in which the Managing Director of the T.J.M.L. had requested the State Government to exempt the employees of the T.J.M.L. from the purview of the 3rd Pay Commission. He also points out by referring to the letter dated 16.12.1999, i.e., Annexure-20L that there could be no commitment in the part of the Administrative Department to meet the fund required for payment of revised pay etc. in respect of Officers, employees and workers of the T.J.M.L. and the T.J.M.L. was advised to generate adequate resources through its commercial activities for meeting the liabilities as a consequence of the revised scale of pay. The learned Advocate General, therefore, submits that there was no infirmity in revising the pay scales of the Officers and Workers of the T.J.M.L. with effect from 01.04.1999. In so far as the payment of D.A, H.R.A., C.A., etc. to the T.J.M.L. employees are concerned, no decision in the matter could be taken by the respondents. On the contrary, according to the learned Advocate General, the employees of the T.J.M.L. have been drawing Industrial D.A. since the inception of the Mill. To buttress his submissions, strong reliance is placed upon the decision of the Hon'ble Apex Court rendered in A, K. Bindal v. Union of India, reported in (2003) 5 SCC 16 3.
8. On examining the pleadings of the parties as well as the arguments advanced by the learned counsel for the rival parties, the first point for consideration is whether the petitioners' Association has any enforceable right to claim parity with the employees of other public sector Units of the State Government. It is a settled proposition of law that evaluation of jobs for the purpose of pay scales must be left to expert body and unless there are any mala fide, its evaluation should be accepted. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide and is reasonable and based on an intelligible criteria which has a rational nexus with the object of differentiation, the differentiation will not amount to discrimination -see Federation of All India Customs & Central Excise Stenographers v. Union of India, (1988) 3 SCC 91. It is also a settled law that the burden of proof of hostile discrimination lies on the petitioner. In other words, the allegations of discriminatory treatment must be specific and the petitioner must lay a proper foundation for examination of a case of discrimination under Article 14 of the Constitution of India. It is also trite that action of the Governmental Authorities must be presumed to be reasonable and in public interest and it is for the person assailing it to plead and prove the contrary see Fertilisers and Chemicals Travancore Ltd. v. Kerala State Electricity Board, (1988) 3 SCC 382.
9. In the instant case, the petitioners claim that their condition of service is similar to the condition of Service of the employees of other public sector Units and as such they are entitled to equal treatment. The petitioners in their additional affidavit state that other public sector Units such as T.R.T.C., T.H.H.D.C., T.S.l.C. and T.F.D.P.C. are also incurring huge loss and inspite of that the pay scale of the employees and officers of those public sector Units were revised with effect from 01.01.1996 and that such employees have also been provided with D.A. and other allowances as extended to the employees of the State Government. Denying those allegations, the respondents submit that the petitioners' Association and the employees of other public sector Units do not stand on the same footing by pointing out that in the T.J.M.L. most of the looms have been out of order and the production level is far below the optimum level. The T.J.M.L. authority cannot even arrange to pay the salary in each month and most of the time the salary and wages remains outstanding for more than 2/3 months at a time. The respondents also categorically assert that in the case of T.J.M.L. the expenditures for payment of salaries and other financial benefits have to be met by the income generated from the Mill themselves. In other words, the State respondent has no obligation to meet the salaries of the employees of the T.J.M.L..
10. I have carefully gone through the pleadings of the petitioners and I cannot make out therefrom any materials to form an opinion that the employees of the T.J.M.L. and the employees of the other public sector Units belong to and constitute the same class. On the contrary, the contents of Annexure-R/9 and R/9 of the affidavit of the State respondent manifestly show that the employees of the T.J.M.L. have been treated separately since its inception. In the absence of any material to show that the other public sector Units with whom the petitioners''Association claimed parity are also required to meet the salaries of their employees from the income generated from their Units or that there is no commitment on the part of the Government to meet the salaries of such employees, it is not possible for this Court to decide that the petitioners' Association and the employees of the said public sector Units are similarly situated. In that view of the matter, it cannot be said that the petitioners have discharged their burden to establish that the T.J.M.L. and other public sector Units of the State of Tripura belong to the same class and that the employees of the T.J.M.L. have been subjected to hostile discrimination for nonpayment of the revised pay scale with effect from 1.1.1996 or of D.A., C.A.S., H.R.A. and C.A. to them.
11. In the instant case, it is an undisputed fact that the T.J.M.L. is a loss incurring unit and cannot pay the salary of its employees including the petitioners' Association for 2/3 months. Therefore, the financial liabilities for the revised pay scale as well as D.A., C.A.S., H.R.A. and C.A. shall necessarily have to be borne by the State Government, if and when such benefits are agreed to be extended to the petitioners. In this connection, it may be relevant to refer to Annexure-20L of the writ petition, which is a letter addressed to the respondent No. 2 by the Director (Industries & Commerce) and Additional Secretary (emphasis mine), Government of Tripura. Para 6 of the said letter is important, which reads thus :-
"6. The undersigned has been directed to communicate that the approval in respect of introduction of revised pay scales as above is not to be construed in any way as a commitment on part of the Administrative. Department to meet the resources required for payment of revised pay etc. in respect of officers, employees end workers of the Tripura Jute Mills Limited ; and to further advise to generate adequate resources generation through their commercial activities for meeting the liabilities as a consequence of the revised scales of pay."
It is not the case of the petitioners that the fund for payment of the revised pay scales and D.A., C.A.S., H.R.A. and C.A. would be available from the income/profit generated from operating the manufacturing units of the T.J.M.L.. It is rather the case of the petitioners that it is the duty of the State respondent to provide the fund for meeting the expenditures involved in payment of the revised pay scales, etc. to them. There can be no doubt that Annexure-20L reflects the decision of the State respondent since the same is communicated by the Additional Secretary, who is the competent authority for the purpose. By Annexare-20L, it is now clear that the Government has already expressed its decision not to extend, budgetary support to meet such expenditures. Can the Government be compelled by this Court in the exercise of its writ jurisdiction to provide fund to the T.J.M.L. to enable it to pay the revised pay scales with effect from 01.01.1986 or with effect from 01.01.1996 since the T.J.M.L. is enable to generate sufficient income from its manufacturing units to meet such expenditures ?
12. Two relevant questions, namely, whether the employees of a Government Company are civil servants having the right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scale should be met by the Government and whether the employees of public sector enterprises have any legal right to claim that though such undertakings, in which they are working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard, have come for consideration before the Hon'ble Apex . Court in A.K. Bindal's case (supra). The relevant portion of para 17 of the Judgment reads thus :-
"The legal position of the Government company is that its identity remains distinct from the Government. The Government company is not identified with the Union but has been placed under a Special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire shareholding is owned by the Central Government will not make the incorporated company part of the Central Government. It is also equally well settled that the employees of the Government Company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution. Since employees of Government Companies are not Government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure on account of revision of their pay scale should be met by the Government, doing employees of the companies it is the responsibility of the companies to pay them salary and if the company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance the pay scale the petitioners cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account for revision of pay scales ........"
The relevant portion of para 22 of the same judgment may as well be extracted hereunder :-
"The economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees them selves........"
13. The parties are agreed upon the point that the T.J.M.L. is a Government Company registered under Companies Act, 1956. It may also be noticed that the two corporations in A.K. Bindal's case (supra), namely, Fertilizer Corporation of India (FCI.) and Hindustan Fertilizer Corporation (HFC) are also Government Companies registered under the Companies Act, 1956. At this stage, I may also refer to the latest decision of the Hon'ble Apex Court in Officers & Supervisors of I.D.P.L. v. Chairman & M.D. I.D.P.L. reported in (2003) 6 SCC 490 in which the contentions raised by the petitioners in A.K. Bindal's case (supra) was reiterated by the petitioners therein. Relying upon the decision of A.K. Bimdal's case, the Hon'ble Apex Court dismissed the writ petition. In view of the above decisions of the Hon'ble Apex Court, the law is now well established that the employees of a Government Company have no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scales should be met by the Government and that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure and revision of pay scales of the employees.
14. In the light of my findings that the T.J.M.L. is a loss-incurring unit and cannot even pay regular salary to its employees and that most of the looms of the units having been out of order with the production level far below the optimum level and the further fact that the Government is unwilling to extend budgetary support to help the T.J.M.L. pay the revised pay scale with effect from 1.1.1996 it is thus not permissible for this Court to grant the reliefs claimed by the petitioners, and to do so would be contrary to the law laid down by the Hon'ble Apex Court in the aforesaid case, which, to my mind, is squarely applicable to the facts of this case. The submission of the learned counsel for the petitioners that the fact that the T.J.M.L. being a loss incurring unit can be no ground for non-payment of the revised scale of pay etc. has been completely answered by the Hon'ble Apex Court in the aforesaid cases.
15. It is next contended by the learned counsel for the petitioners that fixing 1.4.1999 as the cut-off date for revising the pay-scale of the petitioners' Association is arbitrary and not sustain able in law inasmuch as the employees of the other public sector units were paid the revised pay scale with effect from 1.1.1996, Choice of a date cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances', see Union of India v. Sudhir Kumar in (1994) 4 SCC 212. In this case, in view of the position taken by the State Government that it could not provide budgetary support for payment of enhanced/revised pay scale, it cannot be held that fixing of different cut-off date for the petitioners' Association is arbitrary or whimsical. In the State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117, it was held by the Hon'ble Apex Court that financial constraints are valid considerations for framing or modifying a policy. Again, in Union of India v. Lieut. E.Iacuts (1997) 7 SCC 334, the Hon'ble Apex Court held that additional financial outlay required was a relevant consideration for determination of cut-off date. It was further held that if a benefit is conferred upon a given date bearing in mind all relevant factors, it cannot be considered arbitrary or unreasonable. Therefore, the petitioners' Association has no legitimate grievance against the impugned action of the respondents. That apart to grant the reliefs claimed by the Petitioners' Association on the facts and circumstances of this case would be to shut the realities highlighted by the respondents and will have disastrous consequences leading to the closure of the unit itself to the detriment of the employees of the T.J.M.L. including members of the petitioners' Association. Therefore, I reluctantly agree with the submission of the learned Advocate General that this writ petition is a suicidal writ petition. I have gone through the cases cited by the learned counsel for the petitioners in support of the various submissions made by him but in the view that I have taken I do not propose to discuss them in detail.
16 For what has been stated above, this writ petition is devoid of merits, and is hereby dismissed. But there shall be no order as to costs.