Calcutta High Court (Appellete Side)
The State Of West Bengal & Ors vs Nityananda Mondal & Ors on 24 February, 2020
Author: Soumen Sen
Bench: Soumen Sen
1
24.02.2020
S/L No.4
Court No.16
(gc)
MAT 657 of 2014
With
CAN 4217 of 2014
The State of West Bengal & Ors.
Vs.
Nityananda Mondal & Ors.
Mr. Tapan Kr. Mukherjee, Ld. AGP,
Mr. Somnath Naskar
...for the Appellants.
Mr. Narayan Ch. Mondal
...for the Respondent Nos.1 to 6.
This appeal is arising out of an order dated 27th January, 2014 in a writ petition being WP No.1072 (W) of 2014 filed by the private respondents alleging inaction on the part of the Director of Industrial Training, West Bengal to extend the benefit of higher scale of pay in favour of the writ petitioners on the basis of the decision arrived at by the Director of Industrial Training on 8th February, 2013.
The appeal is preferred by the State of West Bengal on the ground that the order passed by the learned Single Judge is without jurisdiction inasmuch as the appellants did not qualify for such benefits.
Before we go into the question of jurisdiction, it is relevant to mention that the writ petitioners earlier filed a writ application being WP No.1708 (W) of 2004 in which an order was passed on 1st August, 2012 by which an appropriate authority, namely, the Director of Industrial Training, was directed to pass a reasoned order with regard to the claim for equal treatment in fixation of scale of pay like the Workshop Instructors in Indian Industrial Training Institute. It is suffice to show 2 that the contention of the writ petitioners in the said proceeding was that although they were working as Workshop Instructors in different trades in different Government sponsored I.T.Cs (also formerly known as JTSs), they were not receiving equal treatment and equal scale of pay. Necessarily, one of the examinations expected to be carried out and rightly carried out by the Director of Industrial Training so as to ascertain whether the writ petitioners were not performing same type of duties and also having same type of responsibilities in order to able to make a claim of equal pay for equal work. On consideration of the materials on record, the Director of Industrial Training had passed an order on 8th February, 2013. The said order in its entirety is reproduced below:-
"Seen the order of the Hon'ble Court, Calcutta in the instant case. As per the said order, several Petitioners were called for a Personal hearing on 18.01.13. Heard the Petitioners. During the hearing they submitted some papers to establish their claim. The Writ petition submitted by them before the Hon'ble High Court, Calcutta was also considered. The contention of the petitioners is that they are working as Workshop Instructors in different trades and different Govt. sponsored I.T.Cs (also formerly known as JTSs). The case is regarding granting equal pay for equal work like the instructor employed in Govt. I.T.Is. Though they are performing same type of duties and also bearing same type of responsibilities, they were not given scale of pay at part with I.T.I instructors, i.e. pay in PB-3 with G.P. Rs.3900/-. But Workshop instructors of I.T.Cs get scale of pay in PB-3 with G.P. Rs.3200/-.
Nature of work and requisite qualification of both the posts are identical. But the disparity in pay prevails.
3
Previously the matter was moved to Finance Department for favourable consideration. But no reply has been received from the Finance Department. In the last two pay commissions, no recommendation was made for them due to absence of valid recruitment rules. Recruitment rules were published in 2011.
In view of the facts above and order of the Hon'ble High Court, Calcutta, in the instant case, I am of the view that the seven petitioners are entitled to get the benefits of higher scale of pay. However the matter requires concurrence of the Finance department. The Administrative Department is requested to move it to the Finance department, at the earliest for consideration of the same.
Let a copy of this order be sent to the seven petitioners and the Joint Secretary, T.E.T. (Trg Branch). Deptt.
Director of Industrial Training West Bengal"
A photostat copy of the original order dated 8th February, 2013 produced before us is kept with the record.
In view of the fact that the State authorities were not acting on the basis of the recommendation of the Director of Industrial Training, a second writ petition was filed before this Court which was disposed of by our former the Hon'ble Chief Justice Debasish Kar Gupta on 27th January, 2014 by which His Lordship directed the Director of Industrial Training, West Bengal to release the above benefit to the petitioners in terms of his order dated 8th February, 2013 within 31st March, 2013. The Director of Industrial Training is the appellant No.3 in this appeal. The appellant No.3 cannot at this stage be heard to contend that the order was erroneous. In fact, he did not say so.4
The learned Additional Government Pleader has relied upon a decision of the Hon'ble Supreme Court in Kiran Singh & Ors. Vs. Chaman Paswan & Ors. reported at AIR 1954 SC 340 Paragraph 6 in order to argue having regard to the fact that the appellants became an employer of the State Government by reason of the notification dated 17th February, 2012, the grievance of the writ petitioners are required to be heard by the State Administrative Tribunal and not by the writ Court. The question of jurisdiction to pass an order was never challenged either on 1st August, 2012 when the earlier writ petition was considered and/or before the Hon'ble the former Chief Justice Debasish Kar Gupta on 27th January, 2014.
The argument that this Court has no jurisdiction is an argument in desperation having regard to the fact that the appellants had accepted the earlier order dated 1st August, 2012 and it is trite law that when an authority conversant with the facts and an expert in the field had decided the matter it is binding on the department. The legitimacy of the claim of the writ petitioners is not denied.
The learned Additional Government Pleader has strenuously argued before us that the qualifications of all the appellants are not same and cannot be treated at par with the ITI Instructors but we are unable to accept the same having regard to the fact that the Director of Industrial Training has examined each case and had the occasion to consider the nature of the duties and the responsibilities that each of the writ petitioners had undertaken during their course of employment 5 and on such consideration have arrived at a finding that "though they are performing same type of duties and also bearing same type of responsibilities, they were not given scale of pay at par with I.T.I. instructors, i.e. pay in PB-3 with G.P. Rs.3900/-". Even otherwise we feel that the State as a model employer should not discriminate amongst its employees when it is an admitted fact that the nature of the duties and the types of duties and responsibilities of the writ petitioners are similar to that of I.T.I. Instructors.
It would be travesty of justice for the Courts in such a situation to turn blind eyes and ignore what had been decided by the appropriate authority of the appellants who is an expert in the field and was entrusted with the duties to decide the matter on consideration of the materials on record. The order of the Director of Industrial Training is binding upon the appellants.
On such consideration, we are unable to accept the contention of the appellants.
The appeal fails.
The appeal and the stay application stand dismissed. However, there shall be no order as to costs.
We direct the appellants to comply with the order within four weeks from date.
(Soumen Sen, J.) (Saugata Bhattacharyya, J.)