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2018 DIGILAW 1925 (JHR)

Jharkhand Police Men’s Association v. State of Jharkhand

2018-08-23

S.N.PATHAK, S.N.PATHAK

body2018
JUDGMENT : 1. Prayer in all these writ petitions are diverse, may be overlapping in parts. However, the issues involved in all these writ petitions are similar i.e. relating to pay anomalies and as such they have been tagged together and are being heard and disposed of by this common Judgment. 2. Different and contradictory stands are taken by different departments in different writ petitions mainly for the reason that a decision which at the first instance ought to have been taken by the authorities/departments concerned, the authorities/departments by filing respective affidavits in different writ petitions intended a decision from this Court. All these matters mainly relates to pay anomalies. What pay scale a particular employee is entitled for is the exclusive domain of the State and it would be appropriate if the same is referred to a Committee of experts for proper redressal of grievances related to pay-anomalies of the petitioner. 3. Similar issues fell for consideration before the Hon’ble Apex Court in the case of “Oil & Natural Gas Commission Vs. Collector of Central Excise” reported in (2004) 6 SCC 437 and the Hon’ble Court held that. “4. There are some doubts and problems that have arisen in the working out of these arrangements which require to be clarified and some creases ironed out. Some doubts persist as to the precise import and implications of the words “and recourse to litigation should be avoided”. It is clear that the order of this Court is not to the effect that–nor can that be done–so far as the Union of India and its statutory corporations are concerned, their statutory remedies are effaced. Indeed, the purpose of the constitution of the High-Powered Committee was not to take away those remedies. The relevant portion of the order reads; (SCC pp. 541-42, para-3) “3. We direct that the Government of India shall set up a committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to court or to a tribunal without the matter having been first examined by the Committee and its clearance for litigation. The Government may include a representative of the Ministry concerned in a specified case and one from the Ministry of Finance in the Committee. Senior Officers only should be nominated so that the Committee would function with status, control and discipline.” It is abundantly clear that the machinery contemplated is only to ensure that no litigation comes to court without the parties having had an opportunity of conciliation before an in-house committee. 5. It is also clarified that even the pending matters before any court or tribunal should also be the subject-matter of the deliberations of the High Powered Committee. All the matters pending as of today either instituted by the Union of India or any of the public sector undertakings shall within one month from today be referred by the appellant or the petitioner, as the case may be, to the High Powered Committee. The High-Powered Committee will deal with these matters most expeditiously and endeavor to resolve the matters. 6. Accordingly, there should be no bar to the lodgment of an appeal or petition either by the Union of India or the public sector undertakings before any court or tribunal so as to save limitation. But, before such filing every endeavor should be made to have the clearance of the High-Powered Committee. 7. However, as to what the court or tribunal should do if such judicial remedies are sought before such a court or tribunal, the order of 11-10-1991 clarifies: “4. It shall be the obligation of every court and every tribunal where such a dispute is raised hereafter to demand a clearance from the Committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with.” 8. Wherever appeals, petitions, etc. are filed without the clearance of the High-Powered Committee so as to save limitation, the appellant or the petitioner, as the case may be, shall within a month from such filing, refer the matter to the High-Powered Committee, with prior notice to the designated authority in the Cabinet Secretariat of the Government of India authorized to receive notices in that behalf. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High Powered Committee the Government proposes to nominate the Under Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. Shri K.T.S. Tulsi, learned Additional Solicitor General stated that in order to coordinate these references of the High Powered Committee the Government proposes to nominate the Under Secretary (Coordination) in the Cabinet Secretariat as the nodal authority to coordinate these references. The reference shall be deemed to have been made and become effective only after a notice of the reference is lodged with the said nodal authority. the reference shall be deemed to be valid if made in the case of the Union of India by its Secretary, Ministry of Finance, Department of Revenue, and in the case of public sector undertakings by its Chairman, Managing Director or Chief Executive, as the case may be. It is only after such reference to the High Powered Committee is made in the manner indicated that the operation of the order or proceedings under challenge shall be suspended till the High-Powered Committee resolves the dispute or gives clearance to the litigations. If the High-Powered Committee is unable to resolve the matter for reasons to be recorded by it, it shall grant clearance for the litigation. 9. The High-Powered Committee shall submit a half-yearly report–instead of quarterly report as earlier indicated–to this Court as to the number of matters referred to it and the manner in which they were dealt with and disposed of. The report for the half-year ended 31.12.1993 shall be lodged before 31-1-1994 and for every half-year thereafter within one month of the expiry of the half-year.” 4. The Hon’ble Apex Court in the case of National Union of All India Radio and others Vs. Union of India and Another and another analogous case of Sanaullah Khan and others Vs. Union of India reported in (1990) 3 SCC 596 has directed to set up High Power Committee in the appropriate Ministry for examination of objections with reference to terms of the scheme and a final decision to be taken within six months taking into account the views expressed by the Supreme Court. Similar view was reiterated in the case of Jute Corporation of India Officers’ Association Vs. Jute Corporation of India Ltd. and another and other analogous cases reported in (1990) 3 SCC 436 and para-5 whereof reads as under: “5. Similar view was reiterated in the case of Jute Corporation of India Officers’ Association Vs. Jute Corporation of India Ltd. and another and other analogous cases reported in (1990) 3 SCC 436 and para-5 whereof reads as under: “5. When the matters were posted for hearing on March 14, 1986, the Central Government expressed its willingness to refer to High Power Pay Committee the question regarding the revision of pay scales, additional dearness allowance, compensatory and other allowances and such other incidental aspects relating to the employees governed by the Central pattern of pay scales and dearness allowance. Accordingly, the court directed the Central Government to constitute a High Power Pay Committee to go into various aspects relating to pay scales and other incidental matters including interim relief to the said employees, viz. the employees governed by the Central Government pattern of pay scales and dearness allowance. The terms of reference of the High Power Pay Committee were as follows: “I. To examine the present structure of emoluments and conditions of service taking into account the total packet of benefits in cash and kind, available to the workers, clerical staff, supervisors and officers, below the Board level following the Central DA pattern and to suggest changes which may be desirable and feasible. II. To examine the variety of allowances and benefits in kind that are presently available to the above noted employees in addition to pay and DA and suggest rationalization, simplification thereof with a view to promoting efficiency. III. To examine matters relating to grant of interim relief to the employees of all such public enterprises (belonging to the Government of India and following the Central DA pattern) who are drawing basic pay above Rs.1000 per month and grant necessary relief to them, if called for. IV. While making recommendations on the above points, the Committee would keep in view other related factors such as scales of pay, DA and allowances prevailing in other public sector undertakings on Industrial DA formula, economic conditions in the country, resources available at the disposal of these public enterprises.” 5. In the case of Mahanagar Telephone Nigam Ltd. Vs. Chairman, Central Board, Direct Taxes and Another reported in (2004) 6 SCC 431 , Hon’ble Apex Court has held in para-8 as under:- “Undoubtedly, the right to enforce a right in a Court of law cannot be effaced. In the case of Mahanagar Telephone Nigam Ltd. Vs. Chairman, Central Board, Direct Taxes and Another reported in (2004) 6 SCC 431 , Hon’ble Apex Court has held in para-8 as under:- “Undoubtedly, the right to enforce a right in a Court of law cannot be effaced. However, it must be remembered that Courts are overburdened with a large number of cases. The majority of such cases pertain to Government Departments and/or Public Sector Undertakings. As is stated in Chief Conservator of Forests' case (supra) it was not contemplated by the framers of the Constitution or C.P.C. that two departments of a State or Union of India and/or a department of the Government and a Public Sector Undertaking fight a litigation in a Court of law. Such a course is detrimental to public interest as it entails avoidable wastage of public money and time. These are all limbs of the Government and must act in co-ordination and not confrontation. The mechanism set up by this Court is not as suggested by Mr. Andhyarujina only to conciliate between the Government Departments. It is also set up for purposes of ensuring that frivolous disputes do not come before Courts without clearance from the High Powered Committee. If it can, the High Powered Committee will resolve the dispute. If the dispute is not resolved the Committee would undoubtedly give clearance. However there could also be frivolous litigation proposed by a department of the Government or a Public Sector Undertaking. This could be prevented by the High Powered Committee. In such cases there is no question of resolving the dispute. The Committee only has to refuse permission to litigate. No right of the Department/Public Sector Undertaking is affected in such a case. The litigation being of a frivolous nature must not be brought to Court. To be remembered that in almost all cases one or the other party will not be happy with the decision of the High Powered Committee. The dissatisfied party will always claim that its rights are affected, when in fact, no right is affected. The Committee is constituted of highly placed officers of the Government, who do not have an interest in the dispute, it is thus expected that their decision will be fair and honest. Even if the Department/Public Sector Undertaking finds the decision unpalatable, discipline requires that they abide by it. The Committee is constituted of highly placed officers of the Government, who do not have an interest in the dispute, it is thus expected that their decision will be fair and honest. Even if the Department/Public Sector Undertaking finds the decision unpalatable, discipline requires that they abide by it. Otherwise the whole purpose of this exercise will be lost and every party against whom the decision is given will claim that they have been wronged and that their rights are affected. This should not be allowed to be done” 6. This Court in the case of Dukhu Ram Kuiry Vs. The State of Jharkhand and others in W.P.(S) No. 3375 of 2016 and other analogous cases observed that parties were agreed that a Committee may be constituted consisting of the representative from the State Government and representatives from each Universities. Learned State counsel, on the instructions from the Secretary of the concerned Department also affirmed willingness of the State for constitution of such a Committee. Thereafter, Court directed the authorities to constitute a Committee to formulate the broad guidelines within four months and further direction was given to the Universities to decide individual cases within three months thereafter. The University was further directed to provide opportunity to all the claimants for furnishing necessary documents, for which a notice was directed to be issued by the Universities. The writ petitions were accordingly disposed of. 7. All these matters relate to pay anomaly. This Court, sitting under Article 226 of the Constitution of India is of the prima facie opinion that it would be expedient in the interest of justice to refer all these matters before the Department concerned. On the cost of repetition, it is reiterated as to what pay scale a particular employee is entitled for, is the exclusive domain of the State, the same needs determination by a Committee of experts. These matters were adjourned on several occasions for taking response from the respondents on constitution of such Committee for formulating guidelines on the basis of which respective departments shall deal with individual claims. In view of diversity of issues and divergent stand taken by the respondents, prima-facie, I am of the opinion that a Committee should be constituted comprising of high ranking officers including Secretaries of the Departments who may take a decision on the issues relating to pay anomalies of the petitioners. In view of diversity of issues and divergent stand taken by the respondents, prima-facie, I am of the opinion that a Committee should be constituted comprising of high ranking officers including Secretaries of the Departments who may take a decision on the issues relating to pay anomalies of the petitioners. However, before taking a final decision in the matter, this Court thought it appropriate to take response from the petitioners as well as respondents on constitution of Committee for resolving the disputes of pay anomalies. Accordingly, these cases have been adjourned on several dates. 8. Mr. Jai Prakash, learned Additional Advocate General, on instructions from the State, affirms willingness for constitution of such a Committee. Broadly, parties have agreed that a Committee may be constituted consisting of representatives from the respective departments. 9. In the circumstances, individual petitioners are directed to approach respective Secretaries of the Department by filing their respective representations along with a copy of writ petition and other documents, if so required and upon receipt of the same, the department concerned shall take a decision within a period of three months from the date of receipt/production of a copy of this order. If department concerned is unable to take a decision, the same shall be referred to the Chief Secretary after assigning cogent reasons for not coming to a conclusion. The Chief Secretary of the State, upon receipt of such recommendations of the department, shall constitute a Committee of Heads of Department/Secretaries including the experts and other members who are found appropriate in the interest of Committee for taking final decision. Final decision shall be taken by the Committee within a further period of four months. Committee shall examine individual cases and take a decision regarding pay anomalies, entitlement of receiving a particular pay scale etc. and other emoluments, if any, in accordance with law. If the Committee fails to take a unanimous decision on the representation of the individual employees, the same shall be disposed of with a reasoned order. The parties aggrieved with said reasoned order are at liberty to approach the Court for redressal of their grievances. 10. The object behind constitution of such Committee is to ensure that no litigation comes to the Court without the parties having had an opportunity of conciliation before in-house Committee. 11. Resultantly, all the writ petitions are hereby disposed of with aforesaid observations and directions. 10. The object behind constitution of such Committee is to ensure that no litigation comes to the Court without the parties having had an opportunity of conciliation before in-house Committee. 11. Resultantly, all the writ petitions are hereby disposed of with aforesaid observations and directions. It is further ordered that petitioners shall approach concerned department within a period of one month from the date of receipt of a copy of this order and thereafter respondents shall act accordingly. 12. As a sequel of disposal of the instant writ petitions, all pending Interlocutory Applications, if any, also stand disposed of.