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Gauhati High Court · body

2001 DIGILAW 36 (GAU)

Proveen Choudhury v. Union of India

2001-02-16

J.N.SARMA

body2001
This writ application has been filed by 19 persons. They are employees/ executives of respondent No. 4 Bongaigaon Refinery Petrochemical Limited at Dhaligaon (for short BRPL). In the year pursuant to a direction given by the Hon'ble Supreme Court in a number of writ petitions filed by the employees of various Govt of India undertakings regarding revision of pay scales etc, a High Power Pay Committee (for short HPPC) was appointed by the Supreme Court. The said committee submitted recommendation and on consideration of the same. Govt of India came out with a proposal before the Supreme Court and the end that the scales of pay and Deamess allowance as recommended in the report will be extended to the employees of Public Sector Undertakings which were being paid Central Dearness Allowances (CDA). The Court further directed that these employees will continue to enjoy the option to switch over to the IDA pattern of scales of pay etc on voluntary basis. Pursuant to the aforesaid direction of the Supreme Court and acceptance of the recommendations of the HPPC by the Central Govt, the Ministry of Programme Implementation and Department of Public Enterprises issued an office memorandum on 12.6 90 applying the recommendations of the HPPC to the Public Enterprises. By the said OM it was declared that the employees in respect of whom the recommendations of the HPPC were being implemented would get revision as and when similar changes are affected for the Central Govt employees. It was further declared that the employees will have option to switch over to the IDA pattern and related scales of pay notified by the Govt on voluntary basis. In the year 1992 i.e. on 31.3.92 the BRPL adopted IDA pattern related scales of pay in respect of its executives. It was clearly stated that the executives who are in the CD A scales of pay shall have option to switch over IDA pattern and related scales of pay on implementation of the HPPC and that such option can be exercised from a date not earlier than 1.1.1989. The period within which the option to be was given was limited up to 31.12.91 but ultimately it was extended up to 24.8.92. As many as 136 executives of BRPL exercised. their option on 26.8.92 pursuant to the letters of request issued by the BRPL asking its executives to exercise option. The period within which the option to be was given was limited up to 31.12.91 but ultimately it was extended up to 24.8.92. As many as 136 executives of BRPL exercised. their option on 26.8.92 pursuant to the letters of request issued by the BRPL asking its executives to exercise option. Though option was exercised in the year 1992 they were given the benefit from a back date i.e. they were allowed to switch over from 1.1.89. The option was not exercised by about 42/43 employees including the petitioners along with other 136 executives. These petitioners did not exercise option because at that point of time the IDA pattern of scale was not declared and they had no means to know what would be the scales meaning thereby whether by such switch over they will be financially benefited or not. Thereafter a circular was issued in the year 1996 i.e. on 22.2.96 by which the revision of pay scale was notified and all the executives who were entitled to IDA pattern was also notified with effect from 1.1.92. After 22.2.96 the petitioners came to know about the revision of IDA pattern of scales and uncertainties in their minds was removed and they came to know that this switch over shall be financially beneficial to them. Immediately thereafter all the petitioners who did not exercise options till then, submitted identical letters to the BRPL management i.e. on 24.8.96 exercising their option to switch over to the IDA pattern related scales on a voluntary basis. That letter is Annexure G series. One of the letter is quoted below : "The Manager (Personnel & Administration Esstt) Dated 24th of August 1996 BRPL HO Dhaligaon (Assam) (Through Proper Channel) Dear Sir, In inviting a reference to Govt of India, Ministry of Programme Implementation, Department of Public Enterprises, New Delhi's letter No.2(43/90/DPE/(WQ dated 12th June 1990 followed with the judgment of the Supreme Court of India dated 3.5.90,1, the undersigned do hereby for the Industrial DA Pattern and related scales of pay etc on a voluntary basis with effect from the first day of July year 1991. It is submitted for your kind information that judgment of the Supreme Court of India, dated 3.5.1990 envisaged me to enjoy the option to switch over to the Industrial DA pattern and related scales of pay etc on a voluntary basis which means switching over to the Industrial DA pattern and related scales of pay etc is one's fared will. However, if there are any instructions contrary to the above I shall request you to forward me the relevant instructions of the Competent Authority for my guidance. Thanking You. Sd/-M. Borkakati" The other petitioners also submitted letters in the same pattern. That after submission of the options by the petitioners on 24.S.96 no reply was received from the authority. Reminders were also $submitted vide Annexure 8 series. Thereafter on 12.12.96 Ministry of Petroleum and Natural Gas issued letter of instructions to the BRPL, whereby it was clarified that the employees who gave option to switch over from the CDA pattern to IDA pattern and related pay scales on voluntary basis shall have it from prospective date only. That is Annexure 1 to the writ application. The petitioners did not file any fresh option in terms of this letter as they exercise their options earlier vide Annexure G series quoted above. In terms of the option exercised in the month of December, 1996 benefits have been given to as many as 141 employees. But that benefit was not given to the present petitioners. Hence this writ application. 2. In the meantime, on 23rd October, 1998 a notice was issued by the Union of India which is Annexure P and that is quoted below : "The Director (Personnel), BRPL, Assam Sub: Switching over from CDA pattern pay scale to IDA pattern related scale of pay in respect of remaining Executive of BRPL from date of option letter. Sir, I am directed to refer to BRPL's letter No. DP/59/98 dated 10th Jury, 1998 on the subject mentioned above and to say that the matter was examined in consultation with Department of Public Enterprises and to clarify that switching over from CDA pattern to IDA pattern may be allowed from the prospective effect only and not from the retrospective effect. Now, in 1998 the employees may be allowed to switch over from CDA pattern to IDA pattern not earlier than April, 1998 in any case, Yours faithfully, Sd/- Desk Officer(R)" Earlier the management of BRPL vide Annexure M and O wrote the following letters to the Ministry. These two letters are quoted below : "The Secretary, Ministry of Petroleum & Natural Gas, Annexure M Govt of India, New Delhi. Ref: PER 5.30.03 Date: 27 May, 1998 Attn: Shri KP Nambissasn, Desk Officer, Switching over from CDA pattern pay scale to IDA pattern pay scale. Dear Sir, The Ministry had forwarded the IDA pattern and related scales of pay for adoption BRPL vide their letter No. 31027/13/91-DO(R)dated 17.3.92. In accordance with the instructions contained in the letter, the executives of the company who were on CDA scales of pay were given the entries to switch over the IDA scales of pay with retrospective effect not earlier than 01.01.87 and about 157 executives, switch over to IDA scales of pay in 1992 with retrospective effect. Many of the executives did not switch over to IDA scales in 1992 on the plea that the details in revision of n)A scales of pay effective from 01.01.92 were not known to them, when the options were invited by BRPL. The revised ID A scales of pay effective from 01.01.92 were implemented only 1996. Subsequent to implementation of the revised scales of pay wef 1.1.92, many of the executives in HPPC scales of pay requested for switch over to IDA scales of pay wef 1.7.91. In this connection, in response to our inquiry, Ministry clarified vide letter No. 31027/13/91-DO(R) dated 12.12.96 that the executives can exercise their option on voluntary basis for switch over to IDA scales of pay from a prospective date only. In view of the clarification by the Ministry about 121 executives switched over from CDA to IDA scales of pay from the month of December 1996 while remaining 43 did not exercise their option for switch over to IDA scales. In view of the clarification by the Ministry about 121 executives switched over from CDA to IDA scales of pay from the month of December 1996 while remaining 43 did not exercise their option for switch over to IDA scales. The executives who are still in CDA scales of pay have been insisting to allow them to switch over to IDA scales from retrospective effect from 1.7.91 on the plea that the details of revision of IDA scales effective from 1.1.92 were not made available to them in 1992 due to which they could not make a clear assessment to exercise their option to switch over to IDA scales of pay in 1992 and that justice is being denied to them by not allowing them to switch over from a retrospective effect, They have now represented their case through Officers Association to allow them to switch over to IDA scales of pay from at least 01.8.96 as against their earlier option to switch over with effect from 01.07.91. We feel for the following reasons, that there is a case for reviewing the matter: (i) In 1992, when the option was invited by BRPL the officers never knew their benefits in the IDA revised scale as the revision was not notified. Without knowing the benefits it is not fair for the company to expect the beneficiaries (viz. Officers) to exercise their option. (ii) Since the revised scales was notified in February, 1996 and the Ministry, (MoPNG) permitted us to allow the benefit of switch over in December 1996, the same logic may be applied in the case of those who opted for switch over in August 1996. (iii) First time, when the MoPNG advised us to not to give retrospective effect was in December 1996, These cases had exercised their option prior to December 1996. (iv) It is quite possible that all those who continued now in CD A may then opt for IDA scales. (v) This may achieve 100% of officers switching over from CD A to IDA We request you to kindly communicate your concurrence in the matter. (iv) It is quite possible that all those who continued now in CD A may then opt for IDA scales. (v) This may achieve 100% of officers switching over from CD A to IDA We request you to kindly communicate your concurrence in the matter. Thanking you, Yours faithfully Sd/- K. Ramchandran Pillai Director - Personnel" This will show that BRPL was sympathetic to the genuine demands of the petitioners, but they could not give the benefit without prior permission/sanction from the Central Govt and on 23rd October, 1998 the Central Govt stated that this would be available only from April 1998 and not earlier to it Hence, this application has been filed with the prayer that Annexure K, P and Q may be quashed and the petitioners may be given IDA pattern of scales with effect from 1.7.91, but at the time of argument Mr. PK Goswami, learned Advocate for the d petitioners fairly concedes that he does not want to have the benefit from July 91. This was in view of the fact that there was a meeting between the management and the executives and it agreed that they would be satisfied if this benefit would be given from August, 1996 and the BRPL accordingly recommended their cases by letters quoted above. Annexures K, P and Q are quoted below : "Shri M Borkakati, Annexure K(l) Through General Manager (Finance) Sub: Forwarding of application addressed to the Secretary, MoPNG, Govt of India admissibility of IDA pay revision benefit to HPPC governed executive with retrospective effect. Dear Sir, Kindly refer to your letter dated 28.02,53 on the above subject. In this regards we are to inform you that on implementation of IDA pay scales were invited through individual letters No. PER 5.30.01 dated 08.07.92 wherein it was clearly mentioned that option should be submitted latest by 09.08.92 and after expiry of the above time limit exercising of option would be permitted only from a prospective date and in such cases prospective date would be reckoned from January or July of the calendar year. Subsequently date for submission of option was extended upto 20.08.92. However, you did not submit your option to switch over from HPPC pay scale to ID A pay scale at that time wef 01.07.91. Subsequently date for submission of option was extended upto 20.08.92. However, you did not submit your option to switch over from HPPC pay scale to ID A pay scale at that time wef 01.07.91. Further, we have also received clarification from the Ministry that the employees governed by HPPC scale of pay have an option to switch over from CD A pattern to IDA pattern and related pay scales from a prospective day only. In December 19% again a circular was issued giving opportunity to HPPC governed employees to switch over to IDA scales of pay wef 01,12.96, however, you did not exercise your option within the stipulated time. In view of the clarification already given by the Ministry on the subject, we regret it would not be possible to agree to your request to switch over to IDA scales of pay wef 1.7.91. Accordingly, your application cannot be forwarded to the Ministry, A circular was issued giving opportunity to HPPC governed employees to switch over to EDA scales of pay wef 01.12.96, however, you did not exercise your option within the stipulated time. In view of the clarification already given by the Ministry on the subject, we regret it would not be possible to agree to your request to switch over to IDA scales of pay wef 1.7.91. Accordingly, your application can not be forwarded to the Ministry, Yours faithfully Sd/- Sr. Manager (Personnel)" "New Delhi the 23rd October, 1998 Annexure P The Director (Personnel), BRPL, Assam. Subject: Switching over from CDA pattern pay of scale to IDA pattern related scale of pay in respect of remaining executives of BRPL from the date of option letter. Sir, I am, directed to refer to BRPL's letter No. DP/59/98 dated 10th July 1998 on the subject mentioned above and to say that the matter was examined in consultation with Department of Public Enterprises and to clarify that switching over from CDA pattern to IDA pattern may be allowed from the prospective effect only and not d from the retrospective effect. Now, in 1998 the employees may be allowed to switch over from CDA pattern to IDA pattern not earlier than April, 1998 in any case, Yours faithfully (KPK Nambissan) Officer (R)" "Bongaigaon Refinery & Petrochemical Ltd, Annexure Q PO: Dhaligaon, Dist. Bongaigaon, Assam, 783 385. Now, in 1998 the employees may be allowed to switch over from CDA pattern to IDA pattern not earlier than April, 1998 in any case, Yours faithfully (KPK Nambissan) Officer (R)" "Bongaigaon Refinery & Petrochemical Ltd, Annexure Q PO: Dhaligaon, Dist. Bongaigaon, Assam, 783 385. No. PER 5.30.01 Date 20.11.98 Circular Sub: Option to switch over from CDA pattern pay scales to IDA pattern pay scale. 1. A group of executives presently in CDA scales of pay, had requested to allow them to switch over from CDA to IDA scales of pay from a retrospective date. 2. The matter referred to the MoPNG with a request to allow the Executives to switch over from CDA scales of pay wef 01.08.96. 3. The MoPNG vide letter No. 31027/137 91/DO(R) dated 23rd December 1998 clarified that switching over from CDA pattern to IDA pattern may be allowed from the prospective effect only and not from retrospective effect. Now in 1998 the employees may be allowed to switch over from CDA pattern to IDA pattern not earlier than April, 1998 in any case. 4. Accordingly, interested executives may now submit their irrevocable option to switch over from CDA to IDA pattern of pay scales from a date not earlier than 01.04.98. 5. Individual options may be submitted to the Personnel (Estt) Section on or before 31.12.98. It may however be noted that after expiry of the above time limit, exercise of option will be permitted only from a prospective date. This has the approval of the Competent Authority. Sd/- Sr. Manager (P & A)" 3. An affidavit-in-opposition has been filed on behalf of the Union of India wherein the Union of India takes a stand that right to exercise option cannot be for an indefinite period as the right was not exercised within the period, the earlier by circular the subsequent exercise of option will not give the benefit. But the Union of India forgot that this right was given in to 31.12.96 and the employees who exercised option, benefit was given to them and I do not understand what is the default with these employees. These employees also exercised their option up to August, 1996. No doubt that was withdrawn and pursuant to subsequent circular no fresh option was given, but that will not wipe out the earlier option as quoted above. These employees also exercised their option up to August, 1996. No doubt that was withdrawn and pursuant to subsequent circular no fresh option was given, but that will not wipe out the earlier option as quoted above. Of course there was a letter on 19.12.96 wherein the company remanded the employees to exercise their option to switch over to IDA pattern pay scales and other related pay scales, but this was not done by the petitioners. An Affidavit-in-opposition has been filed on behalf of the BRPL where their main stand is that the benefit cannot be given to these employees without permission/sanction from the Union of India and if the letter quoted above is not quashed, the question of giving benefit does not arise. 4. Mr. PK Goswami, learned Advocate for the petitioners draws my attention that in similar situation in Public Sector Undertaking even this benefit was given with retrospective effect even from 1.7.91 by letter dated 29.1.% and that is in the case of Engineers India Ltd. That relevant portion of the letter is quoted below : "The matter has been recognised and reviewed and it has now been decided to give a last and final opportunity to all remaining CD A employees to exercise their options to switch over to EDA pattern of scales and DA as on 1.7.91. Employees who have already exercised their option as per circular No. 28/93 wef 1.1.93 can also now revise their option, if they so desire to switch over from 1.7.91." 5. This is a fight between the management and the employees and the basic principle is that in a democratic country like ours the management must show magnanimity and prudent and if without violating the law and/or statute some benefits can be given to the employees it should be always given. One should not be behaved in a hinge strong manner and/or with an ego. That is not done by the management that is because the management by letter which is quoted above wrote to the authority to consider sympathetically the case of those employees, but that was turned down by the Union of India by passing the cryptic order without any basis and without any reason. No reason has been seen why that order had to be passed by the Union of India. No reason has been seen why that order had to be passed by the Union of India. The Union of India failed to bear in mind that in similar Public Sector Undertaking that benefit has been given and that also from a retrospective date and here in this case that benefit cannot be given from prospective date i.e. from a date after exercising option that is not understood. Mr. Goswami has drawn my attention that prejudice will be caused to these employees if they are not given those benefit and he has produced a chart in the affidavit in reply. That chart in its entirety is enclosed with the judgment. 6. Considering the entire materials and findings that the right of the petitioners to get the IDA pattern as was given to the other similarly situated persons, I allow this writ application with a direction that the petitioners shall be paid the IDA pattern of scales and other revision from December, 1996 as recommended by themselves in the letters quoted above. 7. Mr. PC Deka, learned Advocate for the respondent Nos 4 to 6 submits that to give the benefit from August, 1996 will cause difficulty as because the other employees also may make same demand and prays to consider from December, 1996. But this will not create any problem regarding fitment of the employees in the Central scale. 8. The order dated 23.10.98 and 20.11.98 (Annexure P and Q) shall stand quashed. The arrears salary shall be paid within a period of three (3) months from the date of receipt of this order. Heard Mr. PK Goswami, learned Senior Advocate assisted by Mr. AC Borbora and Mr. PK Barman, learned Advocate for the petitioners, Mr. PC Deka, learned Senior Advocate assisted by Mr. SK Medhi, learned Advocate for the respondents No. 4 to 6 and Mr. KK Mahanta, learned Senior Central Govt Standing Counsel for the Union of India.