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2005 DIGILAW 709 (CAL)

Surenoran Pal Singh v. UNION OF INDIA

2005-11-24

ASHIM KUMAR BANERJEE, P.N.SINHA

body2005
Judgment : ASHIM KUMAR BANERJEE, J. (1.) The writ petitioners are working in the forest department of these islands under the Corporation namely Andaman and Nicobar Islands Forest and Plantation Development Corporation Limited, being a Public Sector Undertaking. Dispute arose after the recommendation of the Vth Pay Commission with regard to the proper scale of pay for the petitioners. The department of public sector enterprises vide office memorandum dated May 12, 1999 clarified to the following extent. "It has since been clarified by the Department of Expenditure, Ministry of Finance that even though the CDA pattern employees in PSUs were on Central Government scales of pay, their overall service conditions are not comparable with the Central Government employees in the matter of recruitment rules, qualifications, promotion policy, various perquisites, retirement benefits, etc. and as such, the specific revised pay scales contained in Part B of the First Schedule of the Notification dated 30th September, 1997 cannot be extended in case of CDA pattern employees in PSUs. In such cases, only normal replacement scales as contained in Part A of the First Schedule of the said Notification of 30th September, 1997 maybe given." (2.) As per such clarification, the scale of pay now enjoyed by the officers discharging the identical work for the Central Government working in various forest departments was denied to the writ petitioners. The writ petitioners approached this Court by filing a writ petition No. 094 of 2000. The writ petition was heard and disposed of by the learned Single Judge of this Court on September 15, 2000. While doing so, His Lordship observed that respondent No. 4 and 5, being Corporation, must take a decision with regard to revision of pay scales of the petitioners and if necessary a Pay Committee might be constituted for the said purpose in the light of the Vth Pay Commission Report. While giving such direction, His Lordship categorically observed that, while doing so, such Committee must take into account the decision of the Apex Court in the case of Jute Corporation of India Limited reported in 1990(3) Supreme Court Cases page 436. His Lordship further directed the authority not only to take decision but also implement the same within a period of four months from the date of communication of the said order. His Lordship further directed the authority not only to take decision but also implement the same within a period of four months from the date of communication of the said order. The said order of His Lordship was accepted by all the authorities including the Administration as well as the Corporation. No appeal was preferred either by Union of India or by the Corporation. On the contrary the Corporation appointed the Pay Committee to go into the question in terms of the direction of His Lordship. However, the Committee rejected the prayer for revision an the basis of the Central Governments clarification. The Committee observed that the financial benefits in terms of the bonus, provident fund, gratuity, leave encashment etc. payable to the Central Government employees were totally different from the officers working in the said Corporation and as such there was no parity which would entitle the petitioners to get identical pay. The Committee also observed that the judgment of the Apex Court in the case of Jute Corporation of India Limited (Supra) was silent on this point, and accordingly, the representation of the petitioners was rejected. (3.) The writ petitioners again approached this Court by filing a contempt application being CPAN No. 11 of 2000. The learned Single Judge observed that, since a reasoned order had been passed, the petitioner should challenge such reasoned order and/or report of the Pay Committee independently as the scope of contempt proceeding is very much limited. This order was passed on July 6, 2001. The writ petitioner then filed the second writ application being WP No. 101 of 200. The same came up for hearing before the learned Single Judge and was disposed of by His Lordship by a judgment and order dated October 15, 2001. The learned Single Judge categorically observed as follows : "Under the above circumstances, in my view, the petitioners are doing similar type of jobs as are done by the forest officials of the Andaman and Nicobar Administration. I have already indicated the Recruitment Rules are also similar to those applicable to the forest officials of the Administration". (4.) The learned Judge also went into the question of the excess benefit of leave encashment, bonus etc. and came to a finding that there was no indication by the Pay Committee as to how the new pay scale could be refused totally on such ground. (4.) The learned Judge also went into the question of the excess benefit of leave encashment, bonus etc. and came to a finding that there was no indication by the Pay Committee as to how the new pay scale could be refused totally on such ground. His Lordship also observed that there was a specific direction given by this Court to adjudicate the issue after applying the ratio in the case Jute Corporation of India Limited (supra) The petitioners, however, poreferred an appeal from the said order whereas, neither the Corporation nor the Central Government preferred either any appeal or any cross objection. (5.) The Division Bench refused to interfere with the order of the learned Single Judge and directed the committee to consider the matter afresh in the light of the observations made in the first writ application as well as in the second writ application. The authority again considered the matter and passed an order dated October 11, 2002 and again rejected the prayer of the petitioners. Paragraph 8 and 9 of the reasoned order appearing at page 121-125 of the review application being relevant hearing are quoted below : 8. "In view of above the Ministry called for the said details and compared the service conditions of two cadres of employees and found that there is a distinct difference in service conditions, duties and responsibilities of two cadres of employees. The Forest Rangers, Deputy Rangers and Veterinary Compounders of the two cadres are governed under different set of Recruitment Rule and there is a distinct difference with regard to educational qualifications, promotions, conduct rules, powers and duties etc. apart from the difference in the monetary benefits such as bonus, gratuity, leave encashment and General provident Fund/ Employment Provident Fund etc. 9. Before arriving at a decision, the order of the Supreme Court relied by the Petitioners in the case of Jute Corporation of India was also examined and it was found that the said judgment is not applicable for deciding parity in the two cadres of employees as it relates to grant of dearness allowance only between the two cadres of employees". (6.) The writ petitioners filed the third writ application challenging the said order impugned dated October 11, 2002. (6.) The writ petitioners filed the third writ application challenging the said order impugned dated October 11, 2002. The matter came up before the learned Single Judge for hearing on June 19, 2003, when the learned Single Judge observed that since important question of law was involved in the said matter, the matter should be placed before the Division Bench. The parties did not object to the same, as appears from the said order. The writ application was placed for disposal before the Division bench. The Division Bench heard the matter on the next day i.e. June 20, 2003. The Division Bench however, looked at the problem from a totally different angle. The Division Bench observed that the applicability of the ratio decided in the Jute Corporation of India Limited was not a relevant issue. The relevant issue was whether the petitioners were entitled to the revised scale in terms of the Part C of the Schedule. Hence, the Division Bench was of the view that there should be an attempt to find out whether the petitioners fell under the category of Part C of the Schedule before direction could be given to extend such benefit to them. The Division Bench referred the matter to the Pay Committee appointed for the said purpose to find out as to whether the petitioners fell under the category of Part C of the Schedule and find out how such benefits could be denied to the petitioners when those benefits were being enjoyed by the superior officers of the Corporation. (7.) Being aggrieved by the said judgment and order of the Division Bench dated June 20, 2003 the petitioners came for review by filing this instant, review application. (8.) Ms. S. Ganguly, learned advocate appearing for the petitioners, in support of her submission, pointed out that the judgment and order of the Division Bench was erroneous on tbe face of its record. According to her, the applicability of the Apex Court decision in the case of Jute Corporation of India Limited was no more res-integra as the observation made by the learned Single Judge in the fast writ application reached its finality as observed by the learned Single Judge in the second writ application and confirmed by the Division Bench Moreover, the observation of Their Lordships, contrary thereto, being a coordinate Bench on that aspect was erroneous. Ms. Ms. Ganguly, further pointed out that the pay Committee was asked to apply the decision of the Jute Corporation as well as to implement their decision in the light of the observations made by the Judges of this Court in the first writ application as well as the second writ application as confirmed by the Division Bench by the order dated February June 20, 2003. Hence, further direction to find out the applicability of the Part C of the Schedule was totally irrelevant, as it would not serve any purpose. Ms. Ganguly further contended that the order impugned in the third writ application was passed In complete violation of the order- of this Court of the learned Single Judge in the first writ application which directed the authority to apply the ratio of the Jute Corporation case. The learned Single Judge in the second writ application observed that the plea of leave encashment, gratuity and other benefits would hardly make any difference in the instant case. These two aspects were again reiterated by the order impugned passed by the Pay Committee particularly in paragraphs 8 and 9 (supra). Hence, the Division Bench should not have gone into such question again (9.) We are totally in agreement with the submissions made by Ms. S. Ganguly to that effect that there was no need for sending the matter back to the Pay Committee to find out the applicability of the Part C of the Schedule as there had been an adjudication by this Court to that effect earlier. After all these orders, the Administration was only to extend benefit unless there was any other difficulty. The Pay, Committee did not point any other difficulty save and accept those stood adjudicated by this Court earlier. (10.) There is another salient aspect in this matter, which we need to refer. The Union of India is a necessary party herein. The Union of India was represented by Mr. B K. Das, learned counsel. Mr. B.K. Das is indisposed of today. However, the matter was taken up for hearing in the last week. Mr. B.K. Das contended that he had no instruction in this matter from the Central Government. The Central Government, in our view, should not have avoided hearing of the review application in that way. (11.) in our view, this is a fit and proper case for review. However, the matter was taken up for hearing in the last week. Mr. B.K. Das contended that he had no instruction in this matter from the Central Government. The Central Government, in our view, should not have avoided hearing of the review application in that way. (11.) in our view, this is a fit and proper case for review. We should rectify our earlier order by recalling the judgment and order dated June 20. 2003 passed by the Division Bench and replace the same by the following order. (12.) The judgment and order dated June 20, 2003 passed in WP No. 10 of 2003 is recalled. The order impugned at page 121 to 125 order dated October 11, 2002 in the review application is quashed and set aside. (13.) The Central Government as well as the Corporation is directed to extend the benefits of revised pay scale to the petitioners as applicable to the Central Government Officers discharging identical duties than that of the petitioners. The Central Government or Corporation may, however, refuse such benefits if there is any such reason apart from the reasons already adjudicated earlier and discussed above. Such benefits must be extended and/or reasons for refusal in terms of this order must be communicated to the petitioners within a period of four weeks from the date of communication of this order. The RVW No. 007 of 2005 is, thus, disposed of. There would be, however, no order as to costs. Revision allowed.