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2007 DIGILAW 314 (CAL)

STATE OF WEST BENGAL v. SUKHADA LAHIRI

2007-04-27

GIRISH CHANDRA GUPTA, PRASENJIT MANDAL

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GIRISH CHANDRA GUPTA, J. ( 1 ) THE West Bengal Administrative Tribunal by its judgment and order dated 6th January, 2004 has held that the Process Serverswere entitled to Scale No. 6 of 1981 with effect from the date of their joining. Aggrieved by this order the State has preferred this writ petition. The facts and circumstances of the case briefly stated are as follows: the Process Servers who were the applicants before the learned Tribunal prayed for the relief granted by the Tribunal on the following grounds: a) In paragraph 7. 5 the contention is that the Process Servers working in different Courts of Law, Statutory Tribunals and in the office of Collector of different districts of West Bengal discharge the same duties and responsibilities undertaken by the Seal Bailiffs working in the City civil Court and the Presidency Small Causes Court, if not more onerous duties. b) In paragraph 7. 20 it is contended that by a memo dated 2nd December, 1992, a copy whereof is Annexure 'f to the application filed before the tribunal, the Governor was pleased to treat the Process Servers, who are performing identical duties, at par with the Seal Bailiffs serving in the City Civil and Sessions Court and also agreed to pay them the scale payable to the Seal Bailiffs. c) In paragraph 7. 25 of the application, filed before the Tribunal, the contention is. that the persons referred to in paragraph 7. 22 of the application were declared to be eligible to get the scale of Seal Bailiffs under the memo dated 2nd December, 1992. d) Referring to a judgment dated 24th September, 1986 passed by S. R. Roy J. , as His Lordship then was in CR No. 5139 (W) of 1981 it has been contended that the Process Servers working in the office of the executive are entitled to the scale payable to the Seal Bailiffs. The judgment and order dated 24th September, 1986 was not interfered with either by the Appellate Court or by the Apex Court. e) Lastly it is contended that omission on the part of the State to treat the process Servers working in the office of the Collector, Malda at par with the Seal Bailiffs is an act of discrimination which is wrongful, illegal and unconstitutional. ( 2 ) MR. e) Lastly it is contended that omission on the part of the State to treat the process Servers working in the office of the Collector, Malda at par with the Seal Bailiffs is an act of discrimination which is wrongful, illegal and unconstitutional. ( 2 ) MR. Kar, learned Advocate appearing in support of the writ petition submitted: a) that the CR No. 5139 (W) of 1981 was filed by the Process Servers working in the Civil and Revenue Courts. The applicants before the tribunal working in the office of the executive cannot claim parity with the Seal Bailiffs; b) the Tribunal erred in law in holding that the issue was res judicata; c) in the subsequent reports of the Pay Commission the question was considered but the classification has been maintained. Considering the fact that new reports of the subsequent Pay Commission have come into force the order passed in CR No. 5139 (W) of 1981 can have no manner of application; d) the fact that some writ petitions subsequently filed were disposed of on the basis of the order passed in CR No. 5139 (W) of 1981 cannot denude the State from contesting the contention advanced by the applicants before the Tribunal. ( 3 ) MR. Arup Lahiri, learned Advocate appearing for the respondents submitted: a) twenty-sevenpersons similarly circumstanced have been given the same benefit; b) CR No. 5139 (W) of 1981 was filed amongst others by the process servers working in the office of the Collector; c) this Court cannot sit in appeal over the judgment and order passed in cr No. 5139 (W) of 1981; d) the Government has in principle agreed to extend the same benefit to the Process Servers by the memo dated 2nd December, 1992. ( 4 ) THE Tribunal, it appears, has misconstrued the judgment and order dated 24th September, 1986 to such an extent that it has been misled in proceeding on the basis "that the Hon'ble High Court specifically decided that process servers in general should get the pay scale No. 6 similarly which was given to the Seal bailiffs". ( 4 ) THE Tribunal, it appears, has misconstrued the judgment and order dated 24th September, 1986 to such an extent that it has been misled in proceeding on the basis "that the Hon'ble High Court specifically decided that process servers in general should get the pay scale No. 6 similarly which was given to the Seal bailiffs". This was obviously an erroneous view entertained by the Tribunal which would be amply demonstrated by quoting paragraph 31 of the writ petition registered as CR No. 5139 (W) of 1981 which reads as follows: "your petitioners submit that there is no reason why the scale of pay your petitioners working in the various District Courts, Subordinate Judges courts, Provincial Small Causes Courts and other Revenue Courts should not be fixed in the same scale as granted to the Seal Bailiffs. " ( 5 ) BASED on the aforesaid misconception the Tribunal concluded that the issue was res judicata. To be precise the conclusion arrived at by the Tribunal is as follows: "in fact, since the issue has been decided by the Hon'ble High Court and confirmed by the Hon'ble Appellate Court in the Division Bench and finally the SLP was rejected by the Hon'ble Supreme Court, the decision of the said case rests to be finally decided and there is no scope to decide it anew at this stage. In other words on the strength of the said decision the applicants who are Process Servers are entitled to get the pay scale which was given to the other Process Servers on the strength of the said decision of the Hon'ble High Court. The doctrine of res judicata which rests on the principles that one should not be vexed twice for the same cause and that there should be finality of the litigation is well applicable in this case. The rule also rests on public policy. When a particular decision has become final and binding between the parties it cannot be set at naught. As such the respondents are now estopped by the strength of the said judgment of the hon'ble High Court to raise the pleas as contended in this case, most particularly in the circumstances where the respondents have not been able to give the material to show any difference of duties, functions and responsibility of two groups of Process Servers made subsequent to said judgment. " ( 6 ) WE are constrained to observe that the conclusions arrived at by the tribunal are not tenable in law. Section 11 of the Code of Civil Procedure may be noticed in this regard which provides as follows: "res Judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. " ( 7 ) THE application which was before the Tribunal was not between the same parties nor between the parties under whom they or any of them were litigating under the same title. It has already been noticed that the petitioners in CR No. 5139 (W) of 1981 were the process servers working in the different Civil and revenue Courts whereas the applicants who approached the Tribunal were and are working in the office of the executive. Therefore, by no stretch of imagination can it be said that the issue was res judicata. ( 8 ) THE learned Tribunal has also reversed the burden of proof. It is for the applicants who alleged discrimination to prove that there has been a discriminatory treatment. In this regard reference can be made to the judgment in the case of A. V. Nachane and Anr. vs. UOI and Anr. , reported in AIR 1982 SC 1126 . In paragraph 8 of the aforesaid judgment the following law was laid down: "but the burden of establishing hostile discrimination was on the petitioners who challenged the Amendment Act and the rules. It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishments to whom the provisions of the Industrial Disputes act were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the industrial Disputes Act they had been discriminated against. It was for them to show that the employees of the Life Insurance Corporation and the employees of the other establishments to whom the provisions of the Industrial Disputes act were applicable were similarly circumstanced to justify the contention that by excluding the employees of the Corporation from the purview of the industrial Disputes Act they had been discriminated against. " ( 9 ) IT may be true that the writ petition being CR No. 5139 (W) of 1981 was filed by the Association and it may also be true that some of their members were working in the office of the executive but the fact remains that what was in issue was parity as between the Process Servers working in the Civil and revenue Court on the one hand and the Seal Bailiffs working in the City Civil and Sessions Court and the Presidency Small Causes Court on the other. Benefits may have been extended to the members of the Association because of the contempt proceedings. Whether on the basis of the memo dated 2nd December, 1992 the applicants before the Tribunal were entitled to the same benefit has not been gone into by the Tribunal. ( 10 ) WE have read and re-read the judgment of the Tribunal. The conclusion we have arrived at is that the learned Tribunal entertained a misconception as to the facts and circumstances of the case and arrived at a wrong conclusion. The question whether the theory of equal pay for equal work should be pressed into service in the present case has not at all been gone into by the Tribunal. The grounds on which the relief was claimed by the applicants before the tribunal except for referring to the judgment passed in CR No. 5139 (W) of 1981 have not been touched. We may also in this regard usefully recount the law laid down by the Apex Court in the case of Federation of All India Customs and Central Excise Stenographers' vs. UOI and Ors. , reported in AIR 1988 SC 1291 . That was a case in which the Stenographers (Grade- I) attached with officers in the pay scale of Rs. 2500-2750/- sought parity with the pay scale of the stenographers attached to the Joint Secretaries and officers above that rank. , reported in AIR 1988 SC 1291 . That was a case in which the Stenographers (Grade- I) attached with officers in the pay scale of Rs. 2500-2750/- sought parity with the pay scale of the stenographers attached to the Joint Secretaries and officers above that rank. In paragraph 7 of the aforesaid judgment the following caution was administered : "equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasis that equal pay for equal work is a concomitant of article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right. " ( 11 ) AFTER considering the matter in great detail the petition was dismissed by Their Lordship, in that case, holding as follows: "in this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some I more sensitive, some requiring more tact, some less it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact. In the light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs. " ( 12 ) IN the facts and circumstances of the case we are of the view that the matter must go back to the Tribunal for re-hearing after giving opportunity to all the parties to file such affidavit or affidavits as they may desire to do. ( 13 ) THIS petition accordingly succeeds. The order under challenge is set aside. The Tribunal is directed to re-hear the application after giving opportunity to the parties to file further affidavit or affidavits if they so desire. The hearing should be concluded preferably within a period of six months. There shall be no order as to costs. ( 14 ) URGENT xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities. Petition succeeds.