Calcutta High Court
The Calcutta Municipal Corpn. And Ors. vs Sri Swapan Dhar And Ors. on 24 August, 1993
Equivalent citations: (1994)1CALLT153(HC), 98CWN366
JUDGMENT Bhagabati Prasad Banerjee, J.
1. This is an appeal against the judgment and order dated 8th January, 1992 passed by Mohitosh Majumdar (As His Lordship then was).
2. The facts relevant for the purpose of appeal are set out below :
The writ petitioner-opposite parties' service was. transferred by Calcutta Metropolitan Development Authority to the Calcutta Municipal Corporation by order dated 8th June, 1978 stating inter alia, "the following 12 tubewells sunk by CMDA have already been handed over to Calcutta Corporation along with its operating Staff for maintenance. The names of MR Staff of CMDA engaged in operating the Deep Tubewells are noted against each. Those MR Staff engaged in operating the deep tubewells who had been operating those tubcwell were being paid at Rs. 9.20 per day according to decision of the Authority of CMDA. They are being directed to join the Calcutta Corpn. by 15.6.78.
Names of places where tubewells sunk and Names of Operating stafft.
Landed over.
1. Hastings Pump House Sri Anil Pandit
2. South Canal road Pump house Sri Bimal Ch. Das
3. Kulia Tangra Pump House Sri Dipak Kumar Bose
4. Junction of Mohanchand Road and Sri Asoke Nath
Michael Dutta Street Pump House
5. Jogesh Mitra Road Pump House Sri Rajkumar Pathak
6. DC Dey Road Pump House Sri Sibu De Muhuri
(Cord Park)
7. New Alipore Market Pump House Sri Sukumar Dangore
8. Umakanta Sen Lane Pump House Sri Swapan Dhar
9. Junction of Sahapur Road and Nalini Sri Mrinmoy Ganguly
Ranjan Avenue Pump House
10. Junction of Nanda Mullick Lane and Sri Tapan Ghosal
Peary Das Road Pump House
11. Rani Rashmoni Garden Lane Pump Sri Sudhir Chandra Das
House
12. Junction of Hazra Road and Gorcha Sri Mohitosh Majumdar.
Road Pump House
The operating staff in respect of those tubewells which are noted against sl. No. 1 to 6 were released on 13.3.78 along with handing over to those tubewells to Calcutta Corpn. They had also submitted joining report to the Calcutta Corpn. for duties. The operating staff whose names are noted against sl. No. 7 to 12 have been asked to submit joining report to Calcutta Corporation for those tubewells which were handed over on 23.5.78.
Till finalisation of their wage rates the difference between Rs. 7.00 agreed to be paid by the Calcutta Corpn. and Rs. 9.20 being paid by the CMDA (i.e. Rs. 2.20) per head per day will be paid monthly in advance to Calcutta Corpn. Kindly allow them to join within the date mentioned.
3. Because of indifferent attitude taken by the authorities concerned the writ petitioner opp-parties have come to this Court on earlier three occa sions. The first writ application filed by the writ petitioner opp-parties in OR 9141 (W) of 1986 was disposed of on 11th July, 1986 by the following order : "This is an application under Article 226 of the Constitution. The petitioners were initially appointed in the office of the Calcutta Metropolitan Development Authority, in short CMDA in the department of water supply and environmental Hygiene Sector. There are 19 petitioners in this proceedings. Some of them were appointed in the year 1974, some in the year 1975 and others in the year 1976 as Master Roll Staff. The petitioners were engaged in operating pump of Deep Tubewells in Calcutta.
4. In or about 1978 some 12 tubewells sunk by the CMDA were handed over to the Corpn. of Calcutta and with that transfer the services some operating staff engaged for maintenance placed at the disposal of the Corpn. of Calcutta. The operating staff so directed to be transferred to the Corporation of Calcutta were asked to join the Calcutta Corporation by June 15, 1978.
5. The members of the operating staff go transferred were the petitioner No. 1 Anil Pandit, petitioner No. 2 Bimal Chandra Das, petitioner No. 15 Dipak Bose, petitioner No. 13 Ashoke Nath, Petitioner No. 7, Rajkumar Pathak, Petitioner No. 5 Sibu De Muhuri, petitioner No. 12 Sukumar Dangore, petitioner No. 19 Swapan Dhar, petitioner No. 18 Sudhir Ch. Das, petitioner No. 19 Mrinmoy Ganguly and one Tapan Ghosal. The case of the petitioners is that they joined the Calcutta Corporation as Turn Cock, though according to the petitioners, they were working as pumping operators under the CMDA. It is also the case of the petitioners that there were about 7 operators in the Master Roll staff being engaged as the pumping operators in CMDA and 19 of them who are the petitioners were transferred to Calcutta Corporation as 'Turn Cock.'
6. After joining Calcutta Corporation the petitioners made several representations to the authorities of the Corporation of Calcutta to the effect that they were entitled to get the grade of Filter Driver's posts according to the petitioners are equivalent to the post of pumping operators under the CMDA. It is further stated by the petitioners that they joined as Turn cock under the Corporation of Calcutta under protest. It is also their contention that the post of Turn cock under the Corpn. of Calcutta be considered as equivalent to the post of pumping operators under the CMDA.
It is the case of the petitioners that their basic salary started at the rate of Rs. 170/- per month plus other allowances. According to the petitioners after pay commission's report published in 1981 the basic salary has been increased to Rs. 245/- per month plus other allowances. It is the grievance of the petitioners that those who were not transferred to the Calcutta Corporation and who remained with CMDA as pumping operators were getting their basic salary at the rate of Rs. 260/- plus; usual allowances under the CMDA, whereas the petitioners were deprived of the salary as they were working under the Corporation of Calcutta as Turn Cock to whom such pay of scale was not applicable.
7. It is the further case of the petitioners that in or about January, 1983 a panel was prepared consisting of 300 candidates by the Corporation of Calcutta for the post of apprentice cholorine operators and out of the said panel the Corporation of Calcutta absorbed 80 candidates as apprentice trainee of Cholorine operators and another 40 candidates as trainee filter drivers at different sites. It is the contention of the petitioners that the authority cannot appoint those 40 candidates as trainee filter drivers since the petitioners were already there having experience of filter drivers and as such their claims cannot be ignored. It is the contention of the petitioners that the post of filter driver under the corporation of Calcutta is equivalent to the post of pumping operators under the CMDA even though the petitioners were not considered for the posts of filter driver under the Corporation of Calcutta. It is the grievance of the petitioners that several representations were made from time to time to appropriate authorities to consider their legitimate claims but the appropriate authorities wrongfully and illegally refused to consider the petitioners legitimate claims and the authority concerned failed to take appropriate decision in the matter.
Hence, this writ application praying for a direction on the respondents to place the petitioners in the post of filter driver or any equivalent post thereto under the Corporation of Calcutta or alternatively they will be given suitable posts under CMDA.
8. Mr. Bhunia with Mr. H.P. Roy Chowdhury appears for the petitioners. None appears for the respondents in spite of the service of the rule. It is contended by Mr. Bhunia that the petitioners were in the post of pumping operators which were equivalent to the post of filter driver under the Corpn. of Calcutta. The services of the petitioners were placed under the Corporation of Calcutta and were asked to join as turn cock under the Corpn. of Calcutta whereas the other colleagues of the petitioners remained' with CMDA working as pumping operators and were enjoying a better scale of pay. Mr. Bhunia submits that the nature of the job of Turn Cock is really the job of Khalasi but the petitioners were working as pumping operators with some technical experience and considering such experience they were appointed as pumping operators by the CMDA. It is the contention of Mr. Bhunia since that service of the petitioners were placed under the Corporation of Calcutta they should have similar scale of pay which they were enjoying while working under the CMDA and also they should have similar posts which they were holding prior to the placement of their services at the disposal of the Calcutta Corporation. His submission is that it is in not dispute that the persons who are on the master roll of pumping operators and also the scale of pay for such posts, but the petitioners are deprived of such scale of pay and also they are not allowed to hold similar posts under the Corporation of Calcutta. This in the submission of Mr. Bhunia is discriminatory and as such violative of Article 14 of the Constitution. Mr. Bhunia submits that the respondents made discrimination between the petitioners who have been transferred to the Corporation of Calcutta and the candidates who are still working under the CMDA as pumping operators. Further, when the Corporation of Calcutta filled up some 40 posts of filter drivers which according to the petitioners, are equivalent to the posts held by the petitioners under the CMDA, the Corporation of Calcutta denied the petitioners' legitimate right to be considered for appointment as filter driver under the Corporation of Calcutta.
8A. I heard the submissions of the learned advocate appearing for the petitioners and I see some justification in the contention made by the learned advocate appearing for the petitioners. As it appears from the order No. 741/CMDA/Secy. dt. 8th June, 1978, it is not the case of the respondents CMDA authority that the petitioners became surplus and therefore, some of the tubewells sunk by CMDA were handed over to the Calcutta Corporation. It placed the services of some maintenance staff, that is, the petitioners, under the Corporation of Calcutta to facilitate maintenance. By such transfer it cannot be contended that they should not be given a similar pay of scale by the Corporation of Calcutta which they are enjoying under the CMDA. It is also provided in the said memo dated 8th June, 1988 a copy of which is annexure 'C to the petition that till finalisation of their wage rates the difference between Rs 7/- agreed to be paid by the Calcutta Corporation and Rs. 9.20 being paid by the CMDA (i.e. Rs. 2.20) per head per day would be paid monthly in advance to the Calcutta Corporation. Therefore, one can see that the whole purpose was that when their services were placed at the disposal of the Corporation of Calcutta their pay protection should also be ensured by the Corporation of Calcutta by giving them suitable equivalent posts and also equivalent scale of pay. As no one appears for the respondents, I did not have the benefit of ascertaining the views of the respondents on the case as made out by the petitioners.
9. I dispose of this rule by directing the respondents authorities to consider the case of the petitioners from all its aspects including the question of seniority and offer them suitable posts equivalent to the posts which they were holding under the CMDA prior to their services being transferred to the Corporation of Calcutta and also offer a suitable equivalent scale of pay. In disposing of the petitioner's case the respondents authorities concerned should give notice to the petitioners and hear their submissions of representations and pass such orders as the appropriate authority considers fit and proper, keeping in view that the petitioners should get similar scale of pay and similar status which they are getting under the CMDA, if such scale of pay is not already granted to them. The appropriate respondent authorities should dispose of the petitioners' case in the manner as indicated above within a period of six months from the date of communication of this order.
The rule is thus disposed of. There will be no order as to costs."
10. Thereafter the Municipal Corporation passed an offer which was a total non-speaking order. Another order was passed on November 3, 1987, in the same manner. On 29th July, 1989 another order was passed in this connection. Pursuant to the said orders the matter was considered by Mr. R.K. Prasannan, Municipal Commissioner, wherein he found that the writ petitioner opp-parties could not produce any testimonial to show that they were entitled to the post of filter driver and accordingly they would be treated to as Turn Cock in the scale of Rs. 170-300/- which was subsequently revised Rs. 245-455/- which was considered to be just and proper and commensurate with their status under the CMDA. The said determination could not be accepted as correct determination with regard to status and with regard to the grievance of the writ petitioners opp. parties for the simple reason that services of the writ petitioners were transferred against their will to the Calcutta Municipal Corporation which was a foreign employer. This is a case where both the function and functionaries have been transferred to Calcutta Municipal Corporation by CMDA. Admittedly, the writ petitioners opp. parties were operating the said tubewells which they were operating for a long time. But after transfer the Municipal authority had no occasion to revert their position and to appoint them as Turn Cock. Accordingly, it is the case of the writ petitioners opp. parties although that on the basis of the representations contained in the order dt. 8.6.78 under protest, jointed the Calcutta Municipal Corporation on the clear understanding that they would be engaged in operating deep tubewell which they have been operating. It is admitted position that Municipal authorities have not passed an order nor passed any resolution affecting their status. The municipal authorities, the appellants have come up with the case that the pump was to be operated by fitter-cum-driver whose present pay scale is Rs. 920-1617/- and that the said post is promotional and that the writ petitioner opposite parties were holding the post of Turn Cock and from the post of Turn Cock one is promoted to the post of filter-cum-driver, or in other words, the pump-cum-helpoperator under the CMDA to which the writ petitioners opp. parties were entitled to are not available to the writ petitioners opposite parties for want of necessary qualifications and/or experience and that according to the appellants writ petitioners opp. parties should be treated as Turn Cock and not filter driver. The appellants could not disclose any material nor could give any explanation how and in what manner the writ petitioners-opp. parties were appointed and treated as Turn Cock degrading their status. The appellants' case is that the writ petitioners opposite parties have been appointed in the post according to their status and qualifications and they are not found by any comparison with any other post under the CMDA, the learned trial Judge considered the facts of the case in details and has held that the writ petitioner opp. parties were entitled to be treated as fitter driver by application of the principle of parity in employment and equalisation of post and that writ petitioners opposite parties shall be accorded all service benefits and that the writ petitioners opposite parties should be accorded service benefits from the date of presentation of writ application and not from any earlier date. Or in other words they were directed to have been appointed in the post of filter driver from 1978 but the actual service benefits should be given to them from the presentation of the writ application only.
11. On behalf of the appellant, Mr. M.K. Roy, learned advocate submitted that the writ petitioners opp. parties were in the master roll workers and accordingly they were rightly treated as Turn Cock and they have been accorded a special scale attached to the post of Turn Cock. The post of pump operator under the CMDA was equivalent to the post of filter driver under the CMC and hence the writ petitioners opp. parties claimed that they should have been appointed to the post of filter driver cannot stand for want of requisite qualification. According to Mr. Roy the CMC have considered the case of the writ petitioners opp. parties and have fixed pay correctly in the post considering the service in the comparable post under the CMDA.
11 A. Mr. S.K. Panja, learned advocate, appearing on behalf of the CMDA had opposed the CMC and supported the case of the writ petitioners opposite parties. According to CMDA if the writ petitioners opposite parties were not transferred to the CMC in that event they would have remained in the post of Pump valve operator at the present pay scale of Rs. 920-1617/- which is equivalent to the post of filter driver under the CMC and the clear stand of the CMDA was that the writ petitioners opp, parties according to the status under the CMDA as transferred to the CMC were entitled to operate the pump as filter driver and not as Turn Cock. It is admitted position that the post of Turn Cock is subordinate to the post of filter driver. Accordingly it was submitted that the writ petitioners opposite parties could not have been appointed by the CMC in the post of Turn Cock.
12. Mr. P.S. Sengupta, learned advocate appearing on behalf of the writ petitioners, opp. parties submitted that ordinarily the service of an employee could not be transferred under the foreign employer without the consent of the employees. But in the instant case as because the functions and functionaries were both transferred they accepted for transfer of service on condition of maintaining their status and position as they are entitled to under the CMDA which was unconditionally accepted by the CMC from the very beginning but subsequently they treated the writ petitioners opposite parties as turn cock contrary to the representations contained in the order dt. 8.6.78 by which their services were transferred. Mr. Sengupta further submitted that on the basis of representation contained in the said order the writ petitioner opposite parties have accepted such assignment under the CMC. Further CMC had no occasion to adopt any resolution or to pass any order affecting the status and degrading them to the lower post which was not done and could not have been done. Mr. Sengupta submitted that if the writ petitioner opposite parties were in the same position under the CMDA in that event they would have got as matter of course the status of pay scale of pump valve operator under the CMDA which is equivalent to the post of filter driver under the CMC. It was submitted that CMC cannot domote and/or degrade the writ petitioners opposite parties. Further no contrary order was passed by CMC which makes it clear that the CMC had accepted the position of the writ petitioners opposite parties. Mr. Sengupta further submitted that foreign employer under whom services have been placed cannot unilaterally change the terms and conditions of services and/or status of the writ petitioners opp. parties inasmuch as the services of the writ petitioners opposite parties were transferred under the agreement and/or understanding between the CMC and the CMDA which was embodied in the order dated 8.6. 78 and accordingly the CMC was bound to maintain or bound to pay according to status of pump operator by treating them in the post of Turn Cock. It was submitted that no appointment letter and/or no order has been issued by CMC appointing and/or treating the writ petitioner opposite parties as Turn Cock. Accordingly, it was further submitted by Sengupta that the learned trial Judge was right in granting relief to the writ petitioners opposite parties in the facts and circumstances of the case.
13. It is well-settled principle that a statutory body cannot function as it pleases. After the services of the writ petitioners opposite parties were transferred to the CMC by order passed by CMDA on 8.6.78 the CMC must be treated to have accepted the status of the writ petitioner opposite parties as they were under the CMDA and accordingly they were entitled to operate the deep tubewells. Admittedly deep tubewells operators are treated as filter driver under the CMC and not Turn Cock. The post of Turn Cock is a subordinate to the post of filter driver. Accordingly we do not find any alternative but to hold that the writ petitioners opposite parties were to be treated as filter driver under the CMC in view of the fact that after such transfer of service from the CMDA to CMC, the CMC could not unilaterally in absence of any resolution and/or order treat the writ petitioners opposite parties as Turn Cock. Unilaterally a foreign employer cannot be permitted to change the terms and conditions of the services to the prejudice of the writ petitioners opposite parties and that too without giving any opportunity and/or hearing. Since the functions and functionaries were taken over their position as deep tubewell operator now filter driver under the CMC could not be denied to them. CMC is bound by principle of estoppel and acquiascence by accepting the order dt. 8.6.78 by which services were transferred without any objection and without passing any resolution and/or passing any order to the contrary. The municipal authorities have not changed the terms and conditions of the service to the prejudice of the writ petitioners opposite parties by any means, provided under the CMC Act and accordingly, the municipal authorities by administrative manipulation cannot treat them as Turn Cock in the work charged. Work charged is not conclusive and not binding upon the parties, the writ petitioners opposite parties accepted the transfer of service under objection. When the writ petitioners opposite parties have joined the CMC on the basis of representations that they would be operating deep tubewells in whatever capacity that may be and that position and status could not be allowed to be taken away or interfered with by CMC to their prejudice. On the basis of the principles of promissory estoppel it is a clear case that the writ petitioners changed their position to their prejudice and when they have accepted such an appointment under the Calcutta Municipal Authority, the Calcutta Municipal Authority cannot take a stand contrary to the representation made to them. It was open to the CMC not to accept the service of the writ petitioners opposite parties at the initial stage. But once they have accepted the writ petitioners opposite parties' transfer of service the terms and conditions of their service having been accepted and allowed to continue they were estopped from changing afterwards on any grounds whatsoever. We do not find any reason to treat the writ petitioners opposite parties as Turn Cock and consequently, whether the post of filter driver promotional or not, wholly immaterial in this case. If the writ petitioners opposite parties substantively appointed in the post of Turn Cock in that event it could have been contended that they cannot lay their hands to the post of filter driver which was promotional post except by way of promotion. Considering all the facts and circumstances of the case we are clearly of the view that the learned trial Judge was right in holding that they were to be treated as filter driver with effect from the date of their transfer of service. We do not find any ground and/or reason to interfere with the order passed by the learned trial Judge. It is very unfortunate that the writ petitioners opposite parties in order to uphold their status on transfer of their service under the CMC had to move this court on four different occasions. Public authorities are not expected to take such a stand which was binding on the parties. Accordingly, we do not find any merit in this appeal.
The appeal is accordingly, dismissed with costs assessed at 30 G.Ms. A.K. Chakravarty, J.
14. I agree.