Calcutta High Court (Appellete Side)
Kamal Chandra Roy vs Calcutta Dock Labour Board & Others on 26 July, 2018
1
217 26.07.2018. W.P. 3452 (W) of 2015
BD
Kamal Chandra Roy
Vs
Calcutta Dock Labour Board & Others
Mr. Upendra Roy,
Mr. Sunny Nandy.
... For Petitioner
Mr. Sougata Bhattacharya,
Mr. S. K. Roy.
... For Respondents
An indefinite and somewhat vaguely drafted writ petition has given rise to an elaborate affidavit in opposition which has given the petitioner some space to argue about the deprivation the details of which are absolutely wanting in the writ petition itself.
The petitioner was an employee of the Calcutta Dock Labour Board (the Board, for short) and retired in the year 1992. All that he alleges in the writ petition is that there have been various wage settlements after his retirement but he has not been given the benefit of the same. The writ petition does not give any details about the wage settlement, how much the petitioner is entitled to, how much the petitioner received and how much the petitioner would have received if his claim was correct. Without making any reference to any of these factual aspects a petition with evasive pleadings have been filed merely praying for upgrading the pension of the petitioner on various wage settlements.
The respondents came up with a very detailed affidavit wherein they have fairly admitted the two wage 2 revisions of the years 1998 and 2007 respectively. The first one was supposed to be given with effect from August 2000 and the second one was to be given with effect from January 27, 2010. The specific case of the respondents was that due to financial crunch of the concerned Board the wage revision could not be implemented in respect of any of the pensioners according to the schedule. But they did not go wholly without implementing it. The first wage revision in respect of the pensioners as well as employees who are still in service could be implemented only with effect from May 2010. So far as the second wage revision is concerned it was implemented from April 2015. The petitioner's pension has been upgraded according to the actual implementation that could be done by the respondents.
The respondents have referred to various Government Orders governing implementation of the wage revision to retired employees from which it would appear that the Ministry of Shipping, Road Transport & Highways, Government of India has specifically made a provision that in the event of the pension returns falling short of the requirement to pay the defined benefit the same might undergo downward revision. The order dated February 26, 2008 even reminded the Board to keep in mind the capacity of the company to pay and the necessity for administrative approval was also highlighted.
The whole purpose of enacting Dock Workers (Regulation of Employment) Act, 1948 was to regulate 3 the employment of dock workers employed or to be employed in or in the vicinity of the port areas in connection with certain duties. Various provisions of the said Act had been referred to in the affidavit in opposition to show the purpose behind establishing the concerned Board in terms of the relevant Act. The further specific case of the respondents is that due to shortage of revenue earnings, specially loss of employment opportunity of the registered workers and by reason of shouldering idle wages for the years together the Board could not build the necessary pension fund for payment of pension to the retired workers or employees. In the meantime, the pension liability of the Board had increased many times due to the implementation of the various Government Orders and various pensioner-friendly schemes. The financial condition of the Board may be brought out from the figure given in the affidavit in opposition which shows the total accumulated deficit of Rs. 1139.68 crores as on March 31, 2015. Therefore, the Board just could not afford to implement the wage revision in respect of any of its retired employees and the petitioner's case is no exception.
Like the writ petition the affidavit-in-reply of the petitioner is equally non-specific and does not deal with the specific case made out by the respondents. The recurring motif of the affidavit-in-reply is that the respondents have not denied the right of the petitioner to get the benefit of the wage settlement from the date the same came in to be. Barring this, practically there 4 is no denial of the case made out by the respondents rendering the affidavit-in-reply to be suffering from the doctrine of non-traverse. The specific case of the respondents has been left severely isolated and untouched.
This allegation of discrimination without anything more is not a sustainable one as the petitioner has failed to give any specific instance of discrimination or how this had been practiced by the respondents or how the petitioner has been discriminated. It is a well settled principle of law in matters relating to malafide, discrimination fraud etc. the specific case must have to be put forthwith sufficient details in order to enable the Court to adjudicate on the same. A bald allegation floated by way of a speculative statement is inadequate to substantiate the case of the discrimination.
Pursuant to the order dated April 30, 2018 the respondents have again used a supplementary affidavit reiterating their stand in the affidavit-in-opposition, but elaborating on the financial difficulties being faced by the Board in implementing the wage revision. It further appears that even after the first wage revision was implemented the Board of Directors of the respondent no. 1 in the Board meeting dated January 30, 2013 amended the existing Pension Rules and incorporated certain special provisions which inter alia provided that any revision of pension as per the Government Order, wage settlement etc. would be implemented subject to affordability of the Board after 5 adopting its resolution. The Central Government by its order dated February 18, 2011 specifically directed that the guidelines for revision of pension should be implemented subject to affordability.
The stark financial condition of the Board is brought out from the supplementary affidavit that presently the monthly revenue of the Board is only Rs. 4.60 crores which is hardly adequate to meet the salary or wages of its employees and workers and for payment of pension of 5500 retired employees and for meeting administrative expenses.
Thus, to an indefinite petition the respondents have laid bare their financial position and the reasons for not implementing the wage revisions according to their original schedule. The respondents have specifically stated that there has not been any exception in respect of the case of the petitioner or he has not been singled out. The wage revision has been implemented by the Board with effect from a certain date in respect of all the pensioners without making any exception to anybody.
It may be mentioned that the financial incapacity of the Board was considered even in a contempt application in the case of Harendra Nath Raj Vs. Sri M. T. Krishna Babu & Ors. (CPAN 780 of 2015 in F.M.A. 1709 of 2013). There the petitioner obtained an order from this Court for the pension to be revised or enhanced. Subsequently, he filed an application for contempt upon the enhanced amount not being paid. A Division Bench of this Court by its order dated April 7, 6 2017 had considered the financial condition of the concerned Board from its affidavit and dropped the contempt proceeding after observing that the Board plainly did not have the amount to pay the pension at the enhanced rate on the basis of the order passed by this Court.
I have referred to this order as it has a very special significance. That was a case where the Court passed an order directing the payment of pension at an enhanced rate. But in spite of it its non- implementation was exonerated by the Court for the lack of access to fund. When an order, already passed in favour of a party, cannot be implemented for paucity of access to fund and the Court considered it not worth directing the Board to implement its own order, the Court must be cautious before issuing a mandamus upon the respondents for doing something which would be an empty formality leading the further complications. The financial stringency faced by the Board has not been controverted by the petitioner. That being what it is an order for implementing the wage revision in respect of a solitary employee would be bad enough and the Board cannot implement it in respect of all pensioners. After all, pay revisions are implemented subject to financial affordability.
When the Court has also accepted on an earlier occasion, as mentioned earlier, the financial inability of the Board to implement the order of the Court, futile direction must not be passed. If the wage revision cannot be implemented in respect of all the employees, 7 the petitioner cannot ask to be individually favoured.
In such view of it, I find no justification for issuing any mandamus upon the respondents to implement the wage revisions from the originally scheduled dates which could not be done in respect of any other pensioners.
The writ petition merits no consideration and the same is hereby dismissed.
There shall be no order as to costs.
Urgent Photostat certified copy of the order, if applied for, be supplied to the parties at an early date.
(Dr. Sambuddha Chakrabarti, J.)