Tripura High Court
Dr. Parimal Kanti Chakraborty vs Tripura Jute Mills Ltd on 4 September, 2018
Equivalent citations: AIRONLINE 2018 TRI 208
Author: Ajay Rastogi
Bench: Ajay Rastogi
Page 1 of 16
HIGH COURT OF TRIPURA
AGARTALA
WP(C) 785 OF 2017
Dr. Parimal Kanti Chakraborty,
S/o Lt. Ananta Kumar Chakraborty,
Resident of A.D.Nagar, Road No.11, Beltali,
P.O. & P.S: A.D. Nagar, PIN-799003,
District: West Tripura.
----Petitioner(s)
Versus
1. Tripura Jute Mills Ltd.
Government of Tripura Undertaking, represented by the
Managing Director TJML Hapania, Agartala, West Tripura,
PIN-799006.
2. The Managing Director,
Tripura Jute Mills Ltd., Hapania, Agartala, West Tripura,
PIN-799006.
3. The State of Tripura,
To be represented by the Secretary, Department of Industries
& Commerce, Govt. of Tripura, New Capital Complex,
Agartala,West Tripura, PIN-799010.
4. The Director,
Department of Industries & Commerce,
New Capital Complex, Agartala, West Tripura,
PIN-799010.
5. The Secretary,
Finance Department, Government of Tripura,
New Secretariat Complex, Agartala, West Tripura,
PIN-799010.
----Respondent(s)
Connected with
WP(C) 510 OF 2017
Tripura Chatkall Sramik Union
To be represented by the Secretary,
Tripura Chatkall Union Hapania, Agartala, West Tripura.
----Petitioner(s)
Versus
1. Tripura Jute Mills Ltd.
Government of Tripura Undertaking, represented by the
Managing Director TJML Hapania, Agartala, West Tripura,
PIN-799006.
2. The Managing Director,
Tripura Jute Mills Ltd., Hapania, Agartala, West Tripura,
PIN-799006.
Page 2 of 16
3. The State of Tripura,
To be represented by the Secretary, Department of Industries
& Commerce, Govt. of Tripura, New Capital Complex,
Agartala,West Tripura, PIN-799010.
4. The Director,
Department of Industries & Commerce,
New Capital Complex, Agartala, West Tripura,
PIN-799010.
5. The Secretary,
Finance Department, Government of Tripura,
New Secretariat Complex, Agartala, West Tripura,
PIN-799010.
----Respondent(s)
Connected with
WP(C) 525 OF 2017
Tripura Jute Mill Karmachari Mancha
To be represented by the Secretary,
Tripura Jute Mill Karmachari Mancha, Agartala, West Tripura.
----Petitioner(s)
Versus
1. Tripura Jute Mills Ltd.
Government of Tripura Undertaking, represented by the
Managing Director TJML Hapania, Agartala, West Tripura,
PIN-799006.
2. The Managing Director,
Tripura Jute Mills Ltd., Hapania, Agartala, West Tripura,
PIN-799006.
3. The State of Tripura,
To be represented by the Secretary, Department of Industries
& Commerce, Govt. of Tripura, New Capital Complex,
Agartala,West Tripura, PIN-799010.
4. The Director,
Department of Industries & Commerce,
New Capital Complex, Agartala, West Tripura,
PIN-799010.
5. The Secretary,
Finance Department, Government of Tripura,
New Secretariat Complex, Agartala, West Tripura,
PIN-799010.
Page 3 of 16
----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Advocate.
Mr. S. Bhattacharjee, Advocate.
Mr. K. Nath, Advocate.
For Respondent(s) : Mr. A.K.Bhowmik, Advocate General,
Mr. N. Choudhury, Govt. Advocate,
Mr. K.N. Bhattacharjee, Sr. Advocate,
Mr. D. Sharma, Addl. Govt. Advocate,
Mrs. S. Chakraborty, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AJAY RASTOGI
Judgment reserved on: 24th August,2018
Date of Pronouncement: 4th September,2018
JUDGMENT
Since common questions of fact & law are involved in the present batch of writ petitions, with consent of the parties, are decided by the present order.
2. The primary grievance of the writ petitioners is regarding their entitlement to the benefits of revision of pay at par with the State Government employees and other Public Sector Undertakings including House Rent Allowance (HRA), Compensatory Allowance (CA) and Career Advancement Scheme (CAS) and Dearness Allowance (DA) etc. to be made effective from 1 st January, 1996 instead of 01.04.1999 the benefit of revision of 4th Pay Commission which had been sanctioned by the Govt. of Tripura, Finance Department under its notification dt. 5th July, 1999 to the officers & workers of Tripura Jute Mills Ltd.
3. The petitioner in WP(C) No.785/2017 was an officer Grade-II holding the post of Medical Assistant and superannuated from service on 31st January, 2007. The other writ petitions have Page 4 of 16 been filed by the Tripura Chatkall Sramik Union & Tripura Jute Mill Karmachari Mancha which are registered under the Indian Trade Union Act,1926 and it is not disputed that the members of the Union are employees of Tripura Jute Mills Ltd.
4. That the Tripura Jute Mills Ltd. is a Govt. company wholly owned & controlled by the Govt. of Tripura and registered under the Indian Companies Act and in the State of Tripura there are in all 33 Public Sector/Govt. Undertakings/ Statutory Bodies including the Tripura Jute Mills Ltd. but except the officers and workers of Tripura Jute Mills Ltd., all the officers and workers of 32 Public Sector/Govt. Undertakings/Statutory Bodies etc. have been extended the benefit of 4th Pay Commission with other allowances such as HRA, CA, CAS,DA etc. w.e.f. 01.01.1996. But in the case of the officers/workers of Tripura Jute Mills Ltd., the State Govt. took decision for revision of pay under its notification dt. 5th July, 1999 to revise the pay of the officers and workers of the Tripura Jute Mills Ltd. w.e.f. 1st April, 1999 with no rational basis attached to it.
5. Leaving aside the past history of the matter, the Tripura Jute Mills Officers' Association along with two officers jointly preferred a writ petition, but unfortunately the writ petition was dismissed by the learned Single Judge, which was questioned in Writ Appeal No.74/2003 and that came to be allowed vide judgment dt.8th April, 2011 and it is true that the writ petition was preferred by the Officers' Association along with two officers but the pleadings on record which I have looked into in Civil Rule No.139/97 which was originally filed by the Officers' Association, later amended, after the notification dt. 5th July, 1999 of the respondent-State of Tripura implementing the pay of the officers Page 5 of 16 and workers of the Tripura Jute Mills Ltd., w.e.f. 1st April, 1999. The record indicates that there was no confusion either in the mind of the respondents or before the Division Bench of this Court that the right of consideration is in respect of officers and workers are on the same footings/pedestal as prayed for and the fixation of the pay scale should have been made applicable w.e.f. 1st April,1996 instead of 01.04.1999 as being implemented by the State Govt. for officers and workers in all the 32 Public Sector/Govt. undertakings/statutory bodies etc.
6. The Division Bench of this Court in its judgment after taking note of the defence of the respondent-State and Tripura Jute Mills Ltd., recorded a finding that the plea of the respondent that the Tripura Jute Mills Ltd. was running into losses because of financial constraints it could not have been possible for the Govt. to implement the benefit of 4th Pay Commission w.e.f. 1st January,1996. The Division Bench in Para-53 and 54 of the judgment clearly observed that the defence of the State as projected that the Public Sector Undertaking (Jute Mill) is running into losses also appears to be factually incorrect since there are many Public Sector Undertakings running into losses but still the Govt. has accepted the recommendation of 4th Pay Commission and implemented the revised pay scales & other allowances w.e.f. 1st January, 1996 and the writ petitioners were able to demonstrate the disparity in the matter of pay and allowances that the respondents tried to defend with their shifting pleas in the counter affidavits filed after the amendment of the writ petition and accordingly while setting aside the judgment of the learned Single Judge dt. 28th October, 2003, directed the respondents to treat the Page 6 of 16 petitioners at par with their counter parts in other 32 organizations entitling them to the revised pay scale w.e.f. 01.01.1996 along with HRA, CA, CAS and DA etc.
7. The judgment of the Division Bench of this Court of which I have made a reference had an occasion to examine the question regarding applicability of 4th Pay Commission to the workers and officers of Tripura Jute Mills Ltd. w.e.f. 01.01.1996 instead of 01.04.1999 as prayed and throughout in pleading it has referred to the category of officers & employees. Thus, for the sake of repetition there was no confusion at any stage in segregating the officers/workers who are indeed employees of Tripura Jute Mills Ltd. in examining the question regarding applicability of the pay scale w.e.f. 01.01.1996 instead of 01.04.1999 and it covers the officers and workers of Tripura Jute Mills Ltd. on the same footing for the purpose of their grievance being raised demanding their applicability of the 4th Pay Commission w.e.f. 01.01.1996 instead of 01.04.1999 as granted by the Govt. of Tripura keeping in view the parity amongst the officers & workers of the other 32 Public Sector undertakings/Statutory Bodies etc.
8. I consider it appropriate to quote Para-53 and 54 of judgment of the Division Bench of this Court of which I made a reference:
"53. The petitioners having clearly demonstrated that if not all, many PSUs are running at a loss and the Govt. has implemented the recommendation of the 4th Pay Commission by providing revised pay scales to their employees and other allowances, the learned single Judge ought to have considered that aspect of the matter instead of singling out the petitioners and for that matter the employees of TJM, Page 7 of 16 shifting the burden to them to prove that they are at par with their counterparts in other organizations. The fact of the matter is that the petitioners clearly demonstrated the disparity in the matter of revision of pay and allowances, which the respondents tried to defend with their shifting pleas in the original counter affidavit and the subsequent affidavits filed after the amendment of the writ petition.
54. For all the aforesaid reasons, we are of the considered opinion that writ appeal and for that matter the writ petition deserves to be allowed and consequently we set aside and quash the impugned judgment and order dated 28.10.2003 passed by the learned single Judge in Civil Rule No.139/1997. As a consequence, direction is issued to the respondents to treat the petitioners and for that matter the officers and employees of the TJM at par with their counterparts in other 32 organizations, entitling them to the revised pay scales w.e.f. 01.01.1996 and other allowances, such as, HRA, CA, CAS and DA etc."
9. The State of Tripura preferred Special Leave to appeal against the judgment of the Division Bench of which reference has been made. At that stage the Workers Union also filed their intervention application as a matter of precaution but as they were not the petitioners before the High Court, the Apex Court rejected their intervention application at the same time dismissed the Civil Appeal No.10411/2016 vide order dt. 25.10.2016, preferred by the State of Tripura and confined the relief to the members of the Tripura Jute Mill Officers' Association taking note of the fact that it was the Association who had agitated the matter before the High Court.
10. But it appears that this fact was not brought to the notice of the Apex Court that in the counter affidavits filed by the State of Tripura/Tripura Jute Mills Ltd. throughout a reference has been made of officers and employees of the Tripura Jute Mills Ltd. and the revision of pay scales which was made applicable by the Govt. w.e.f. 1st April, 1999 in rem to the employees of Tripura Page 8 of 16 Jute Mills Ltd. which covers officers and workers of Tripura Jute Mills Ltd. (TJML) and that appears the reason that after the Apex Court confined the judgment of the Division Bench of this Court to the Tripura Jute Mill Officers Association who had preferred the writ petition before the High Court that arose the occasion to the Union to prefer writ petitions claiming the self-same relief which has been examined extensively by the Division Bench of this Court at least on principle stands concluded that the workers who are employees of TJM Ltd. are also entitled for revision of the pay scale w.e.f. 01.01.1996 for all practical purposes.
11. It is not the case of the respondents even in their present counter affidavits that the applicability of the 4th Pay Commission which has been effected by the Govt. w.e.f. 1st April, 1999 of the officers and workers of the TJML revised by the Govt. under its notification dt. 5th July, 1999 is in any manner holds any disparity among the officers or workers broadly both are the employees of the Tripura Jute Mills Ltd. and at least on principle, the Division Bench of this Court has held in arriving to a conclusion that the employees of the Tripura Jute Mills Ltd. have been discriminated in their entitlement i.e. revision of pay w.e.f. from 1st January, 1996 vis-à-vis that with the other 32 Public Sector Undertakings/Statutory Bodies which are owned and controlled by the Govt. of Tripura.
12. In WP(C) No. 785/2017, the petitioner is an officer who stands superannuated and his claim has not been accepted by the respondents for the reason that he was not a member of the Association, although on principle, no justification has been Page 9 of 16 tendered by the respondents to distinguish the case of the writ petitioner from seeking his fixation in the revision of pay w.e.f. 01.01.1996 as being decided by the Division Bench of this Court in its judgment dt. 8th April, 2011.
13. The Govt. of Tripura by revising the pay of the officers and workers of the Tripura Jute Mills under its notification dt. 5th July, 1999 also approved the terms and conditions of pay revision of the officers and workers of TJML in the form of Annexure-1 holding that the pay revision shall come into force w.e.f. 1st April, 1999 and applies to persons who are appointed in the regular pay scale and definition of the term 'employee' has been defined and all such persons, who were appointed in TJML in the regular scale of pay, were considered to be the employees of TJML.
14. I consider it appropriate to quote the extract of the terms and conditions which was in rem applicable in revision of the pay to the officers and workers of the Tripura Jute Mills Ltd. appended in the form of Annexure-1 to the notification dt. 5th July,1999 which was impugned and examined by the Division Bench of this Court.
"TERMS AND CONDITIONS OF PAY REVISION OF THE OFFICERS AND WORKERS OF THE TRIPURA JUTE MILLS LTD.
1. The pay revision shall come into force from 01.04.1999 and apply to person appointed in the regular scale of pay, but shall not apply to-
(a) Persons not in whole-time employment;
(b) Persons in contingent employment;
(c) Persons paid otherwise than on a monthly basis
including those paid on only on piece-rate basis;
(d) Persons employed on contract basis except where the terms of contract provide otherwise;Page 10 of 16
(e) Persons re-employed in the service after retirement;
(f) Any other class or category of persons whom the Tripura Jute Mill Ltd. with the approval of the State Government in Finance Department may, by order, specifically exclude from the operation of all or any of the provisions herein contained.
2. Definition For the purpose of the provisions herein contained-
(a) 'BASIC PAY' means the pay as defined in Fundamental Rule 9(21)(a)(i);
(b) 'EXISTING SCALE' means scale shown in column 2 of Annexure-A as applicable to the post held by the employee of Tripura Jute Mills Ltd. as on the First Day of April,1999.
(c) 'EXISTING EMOLUMENTS' means the aggregate of:
(i) The Basic Pay in the Existing Scale;
(ii) Dearness allowance/addl Dearness Allowance
appropriate to the Basic Pay admissible at the
All India Consumer Price Index (AICPI) for
Industrial Worker average 2044 as per
Annexure-B;
(iii) The Interim Relief released upto 31.03.1999.
Note: If there is any fraction of a rupee in the aggregate, fraction below 50(fifty) paise shall be ignored, while fraction of 50(fifty) paise and above shall be rounded off to the next higher rupee.
(d) 'REVISED SCALE' means the corresponding revised scale of pay in relation to the existing scale of pay, introduced from the First Day of April, 1999 as indicated in column No.5 of Annexure-C.
(e) 'PRE-REVISED SCALE' means a scale shown in column-2 of Annexure-A.
(f) 'PRE-REVISED SCALE CORRESPONDING TO A REVISED SCALE' means a pre-revised scale shown in column-2 of Annexure-A against a revised scale in column-4 of the same Annexure.
(g) 'REVISED SCALE CORRESPONDING TO A PRE-REVISED SCALE' means a revised scale shown in column-4 of Annexure-A against a pre-revised scale in column-2 of the same Annexure.
(h) 'MODIFIED SCALE' means a scale shown in column 4 of Annexure-C
(i) 'SCHEDULE' means a schedule annexed herewith.Page 11 of 16
(j) 'EMPLOYEE' means persons appointed by the Tripura Jute Mills Ltd. in the regular scale of pay from time to time in Tripura Jute Mills Ltd.
3. Scale of pay of Posts From the date of commencement of the pay revision, the scale of pay of every post whose existing scale is specified in column-3 of Annexure-C shall be as specified in column-4 thereof w.e.f.
01.04.1999.
Provided that where a post and its promotion post carry the same revised scale of pay, the Tripura Jute Mills Ltd. with prior approval of the State Government in the Finance Department may, having regard to the recruitment rules for the promotion post, distinguish it from its feeder post in such a manner as may be deemed necessary."
15. Broadly it was the terms & conditions applicable to the officers and workers who are employees of the Tripura Jute Mills Ltd. and as already observed that the persons, who were appointed in the regular scale of pay from time to time in Tripura Jute Mills Ltd. are considered to be the employees. There appears no reason to distinguish among the officers and workers of Tripura Jute Mills Ltd. on the contrary TJM Ltd. has never distinguished amongst officers and workers regarding the applicability of pay scales sanctioned vide notification dt. 05.07.1999 applicable w.e.f. 01.04.1999 but after reviewed by the Division Bench of this Court in the judgment dt. 08.04.2011 at least on principle the question as to whether the present members of the Union are entitled for revision of pay scale w.e.f.1st January, 1996 in place of 01.04.1999 as sanctioned by the Govt. under its notification dt.5th July, 1999 is no more res integra for me to be examined before a Single Bench of this Court.
16. In WP(C) No.785/2017, the counter affidavits which have been filed appears to be a copy of counter affidavits filed in Page 12 of 16 WP(C) 510/2017, a connected writ petition. The objections which the respondents had tried to substantiate is the delay on the part of the petitioner in filing the writ petition. But in my considered view, the objection regarding delay does not hold good in the case of WP(C) No.785/2017 since after the judgment on principles being upheld holding the right of the officers of Tripura Jute Mills Ltd. regarding their entitlement and fixation of pay with other allowances w.e.f. 1st January, 1996 instead of 1st April, 1999 as being sanctioned by the Govt. under its notification dt. 5 th July, 1999 at least the delay may not come forward to non-suit the claim of the petitioner and at least the notification dt.5th July,1999 which is applicable amongst the officers & workers of the Tripura Jute Mill has to be made applicable in rem w.e.f. 1st January,1996 after being held by the Division Bench of this Court of which reference has been made in details and at least there appears no reason to have a disparity amongst the employees of the Tripura Jute Mills Ltd. regarding their entitlement and fixation of pay and allowances which indeed has to be applied maintaining principles of parity w.e.f. 1st January, 1996 between the officers & workers of Tripura Jute Mill being placed on the similar footing.
17. As regards the counter affidavits filed by the State- respondents and also by the Tripura Jute Mills Ltd. in the cases of Union are almost in the same footings just to non suit the claim of the members of the Union who are indisputably the employees of the Tripura Jute Mills Ltd. raising number of preliminary objections which might appeal to the Court to non suit their claim since on principles the issue has been threadbare examined by the Division Page 13 of 16 Bench of this court in its judgment dt. 8th April, 2011 of which reference has been made & finally held that the officers of Tripura Jute Mills Ltd. are entitled for their fixation in the pay scales w.e.f. 01.01.1996 instead of 1st April, 1999 as sanctioned by the Govt. under its notification dt. 5th July, 1999 keeping in view the parity with other officers and workers of 32 Public Sector Undertakings/Statutory bodies etc. where the benefit of 4th revision of pay has been extended consistently with no discrimination w.e.f. 1st January, 1996 such action of the respondents indeed was violative of Article 14 of the Constitution.
18. The objection raised by the respondents is that the Tripura Jute Mills Ltd. Workers Union earlier preferred Civil Rule No.641/97 claiming pay revision along with DA, CA, HRA and CAS but that came to be dismissed as withdrawn on 19.09.2017 and it was not agitated at least by the Union any further. But this objection does not hold good for the simple reason that the writ petition was filed by the workers Union in 1997 and the State Govt. under its notification dt. 5th July, 1999 has granted them the benefits of revision of pay scale w.e.f. 01.04.1999. Thus the subsequent notification dt. 5th July,1999 was not the subject matter of challenge and particularly its applicability which was effected from 01.04.1999, rejection of the writ petition may not be of any substance and would not deprive the rights of the petitioners in claiming the reliefs what being prayed in the writ petition.
19. Another objection raised by the respondents in the written statement is that after their intervention application filed by Page 14 of 16 the petitioner-Union being rejected by the Apex Court at least they could not prefer any writ petition. The submission is without substance for the reason that the Apex Court has not permitted the intervention at the stage of a special leave to appeal for the reason that they were not parties to the proceedings before the Division Bench of this Court, but that will not debar the Union in filing their separate petition and rejection of their intervention application by the Apex court would not non suit the claim of the petitioners, which they have raised in the instant writ petitions.
20. The further objection of the respondents is that the pay structure of the workers have been determined by a bi-partite agreement between the management of TJML and the recognized Trade Unions and once they are party to the bi-partite agreement, they are not entitled to claim the revision of pay under the present revision of pay rules. The submission on the face of it is bereft of merit for the reason that the Govt. of Tripura under its notification dt.5th July, 1999 has made revision of pay scales applicable of the officers and workers of the Tripura Jute Mills Ltd. w.e.f. 1st April, 1999 and officers and workers are the employees of the TJML of which reference has been made. Thus with all respects, the objections which have been raised by the respondents is nothing but to divert the issue from consideration only to non suit the claim of the writ petitioners which is not expected from the State.
21. Further objection is made of the delay and laches on behalf of the petitioners in approaching this Court. The submission is without substance for the reason that the grievance agitated was Page 15 of 16 pending in this Court for a sufficient long time and once the Division Bench of this Court on principles has arrived to a conclusion that the action of the respondents was in violation of Article 14 of the Constitution and the defence in segregating the officers/workers of the TJML from other 32 Public Sector Undertakings/Govt. undertakings/Statutory bodies etc. amounts to discrimination which is violative of Article 14 of the Constitution and once held that the entitlement of the officers who approached for their revision of pay w.e.f. 01.01.1996, there is no reason for the Govt. to take any different stand against the workers of the Tripura Jute Mills Ltd. who are indeed employees of the TJML and it was expected from the Govt. to come forward after lost the battle on principle to extend the benefits to the workers who are also the employees of the Tripura Jute Mills Ltd. and at least the delay and laches may not come in way of the petitioners, more so, when no third party right has accrued or defeated in the interregnum period and that will not defeat the rights of the petitioners in claiming the relief of fixation of pay scales w.e.f. 01.01.1996 as decided by the Division Bench of this Court under its judgment dt. 8th April,2011 of which a detailed reference has been made by me.
22. The writ petitions succeed and are accordingly allowed. The respondents are directed to revise the pay scales of the members of the petitioners-Union including employees of Tripura Jute Mills Ltd. which are covered under the notification dt.5th July, 1999, at par with their counterparts in 32 Public Sector Undertakings/Statutory Bodies/Govt. Undertakings etc. entitling them to the revised pay scales w.e.f. 01.01.1996 and other Page 16 of 16 allowances such as HRA, CAS, CA, DA etc. as considered by the Division Bench of this Court in Judgment dt. 8th April, 2011.
23. The respondents shall compute the arrears in case of individual worker/employee as indicated above and ensure compliance of the judgment within six months from today. No cost.
CHIEF JUSTICE Certificate:- All corrections made in the judgment/order have been incorporated in the judgment/order.
Sanjay