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Gauhati High Court · body

2015 DIGILAW 930 (GAU)

Kamala Baishya v. State of Assam

2015-07-29

HRISHIKESH ROY

body2015
JUDGEMENT 1. Heard Ms. P. Bhattacharya, the learned counsel appearing for the petitioner. The respondent Assam Industrial Development Corporation Ltd. (in short ‘the AIDC’) and its officials are represented by learned Advocate Mr. N. Deka. The respondent No.1 and respondent No.5 are unrepresented, when the case is heard. 2. The petitioner is serving as a Stenographer Grade-I in the AIDC and she challenges the office order dated 29.5.2008 (Annedxure-9), whereby the benefit of pay step up granted to make her salary at par with another Grade-I Stenographer Tapan Kumar Sarma (respondent No.5), was ordered to be kept in abeyance, by the Managing Director of the AIDC. The pay of the petitioner was stepped up on 19.9.2000 (Annexure-8), by re-fixing her basic pay at Rs.7350/- w.e.f. 1.4.1997 to provide her equal pay with her junior colleague. 3. The petitioner was appointed as Stenographer Grade-III in the AIDC on 2.8.1984 (Annexure-1) and she was promoted as Grade-I Stenographer on 4.12.1993 (Annexure-3). On the other hand, the respondent No.5 Tapan Kumar Sarma was initially inducted as a Grade-III Stenographer in the AIDC on 30.8.1982 but he resigned his job on 31.12.1985 and he joined the Assam Syntex Ltd. (in short ‘the ASL’) on 1.1.1986, as a Stenographer Grade-II. He was promoted to Grade-I in ASL. Subsequently the respondent No.5 returned back to AIDC on lien on 13.9.1993 as a Grade-I Stenographer. Eventually when regular vacancy of Grade-I Stenographer became available in AIDC, the respondent No.5 was absorbed in that vacancy on 1.4.1997 (Annexure-4). 4. However the higher pay of respondent No.5 drawn at ASL was not protected at the time of his absorption in the AIDC on 1.4.1997 and therefore the respondent No.5 represented for fixation of his pay. Consequently through the Memo. dated 8.12.1998 (Annexure-5), the basic pay of respondent No.5 was fixed at Rs.7100/- P.M. w.e.f. 1.1.996. 5. The higher pay granted to the respondent No.5 resulted in juniors like the petitioner and other Grade-I Stenographer, getting lower salary and accordingly they prayed for stepping up their pay. Consequently through the Memo. dated 8.12.1998 (Annexure-5), the basic pay of respondent No.5 was fixed at Rs.7100/- P.M. w.e.f. 1.1.996. 5. The higher pay granted to the respondent No.5 resulted in juniors like the petitioner and other Grade-I Stenographer, getting lower salary and accordingly they prayed for stepping up their pay. The matter was considered by the Pay Anomaly Committee (in short “the Anomaly Committee”) and on 1.9.2000 (Annexure-7) the Committee noted that the respondent No.5 was absorbed in the AIDC on probation basis when he came on lien from ASL and at that stage, even without pay protection, the returnee was allowed to draw higher salary in AIDC, which he availed at the ASL. Since this resulted in drawing of lesser pay by the serving Stenographers of AIDC, the Anomaly Committee recommended for stepping up the basic pay of the senior Stenographers to give them same basic salary as the respondent No.5 Tapan Kumar Sarma w.e.f. 1.4.1997. 6. Consequently pay fixation order was issued for the petitioner on 19.9.2000 (Annexure-8), but by the impugned office order dated 29.5.2008 (Annexure-9), the higher pay granted to the petitioner was kept in abeyance, purportedly on the basis of the recommendation made by another Anomaly Committee on 27.11.2001. 7.1. Assailing the Management’s decision which in effect reduces the salary of the petitioner, Ms. P. Bhattacharya, learned counsel submits that no opportunity of hearing was afforded before altering the service condition of the petitioner to her detriment and therefore the decision is unsustainable in law. 7.2. She further submits that the employer could not have acted on the purported recommendation of the Anomaly Committee as the Committee deliberated behind the petitioner’s back and their recommendation was made in the context of another group of AIDC employees and only in passing, the case of the petitioner and the respondent No.5 was discussed by the Anomaly Committee on 27.11.2001. 8.1. On the other hand, Mr. N. Deka, the learned counsel submits that the AIDC acted on the basis of the 27.11.2001 recommendation made by the Anomaly Committee and legal opinion and accordingly he justifies the withdrawal of higher pay to the petitioner. 8.2. On the issue of denial of hearing, Mr. Deka argues that even if a hearing is afforded, the consequences will remain the same and therefore he prays for dismissal of the case. 9. 8.2. On the issue of denial of hearing, Mr. Deka argues that even if a hearing is afforded, the consequences will remain the same and therefore he prays for dismissal of the case. 9. Since the impugned office order was passed on the recommendation of the Anomaly Committee, the deliberation of the Committee is carefully perused by this Court. The 8th item on the Committee’s agenda was the representation of the seven Office Assistants of the AIDC who applied for stepping up of their pay with one Ms. P. Devi, who was allegedly junior to the applicants. In the context of the exercise undertaken for the Office Assistants, the Committee noted that higher pay of the Stenographer Tapan Kumar Sarma (respondent No.5), which he drew at ASL was protected, when he was appointed in the AIDC. This was found to be the basis for stepping up the pay of the senior Stenographers like the petitioner, to the level of the private respondent. On this understanding, for the Junior Office Assistants, the Anomaly Committee recommended for upgradation of pay. Alternate recommendation was also made for re-examination of the higher pay granted to the juniors in the cadre. 9. But when we look at the fresh appointment order of the respondent No.5 as Stenographer Grade-I in the AIDC, it is clear that his higher pay at the ASL was not protected and in fact he was appointed on probation basis in the AIDC. Similarly when the pay of respondent No.5 was fixed at a higher level on 8.12.1998 (Annexure-5), there was no mention of protection of his higher salary at the ASL. Thus at no stage, any specific pay protection order was granted to the respondent No.5 and yet the Anomaly Committee erroneously construed that higher pay drawn by Tapan Kumar Sarma (respondent No.5) at ASL, was protected upon his appointment in the AIDC. 10. It is well settled in the field of service jurisprudence that service conditions can’t be altered to the prejudice of an employee without hearing the affected employee and in this case, it is clear that the petitioner was never afforded any opportunity either by her employer or by the Anomaly Committee, before the impugned office order was issued on 29.5.2008 (Annexure-9). 11. 11. The petitioner was given the benefit of higher salary from 19.9.2000 and eight years thereafter, the respondents have ordered for keeping in abeyance the higher pay benefit to the petitioner, without affording any opportunity of hearing. The AIDC tries to justify this by citing the recommendation of the Anomaly Committee but as earlier noted, the Committee acted on a erroneous premises by observing that pay protection was granted to the respondent No.5 on his fresh appointment in the AIDC. 12. Taking the above factors into account, I hold that the office order dated 29.5.2008 (Annexure-9) is legally unsustainable and the same is accordingly quashed. Consequently the petitioner is permitted to enjoy the benefits of salary up-gradation granted to her by the previous order dated 19.9.2000 (Annexure-8). It is ordered accordingly. 13. With the above order, the case stands allowed without any order of cost.