High Court · 2009

2. Shortly stated, the facts leading to the filing of the instant writ pet ition, as narrated in the writ petition, are that in the respondent-Corporation, there are 3 (three) categories of employees viz. a) Workmen, b) Non-unionized Supervisors and c) Officers/Executives. In the workmen category, there are grad es ranging from W-1 to W-9 whereas supervisory category, there are two grades na mely, S-1 and S-2. Above the supervisory category, there are the executive cate gory of various grades.

3. The pay structure of the workmen is determined by the bipartite settleme nt between the Trade Unions representing the workmen and the management. On the other hand, the pay structure, fitment benefits etc. of the non-unionized supe rvisors and the executives are finalized unilaterally by the Corporation based o n the directions issued by the Government of India in the particular Ministry, w hich is Ministry of Industry, Department of Public Enterprises. In the year 2000, on the recommendation of the Justice Mohan Committee P 4. ay Commission, pay scales of Officers and Supervisors of the Central Public Sect or Enterprises were revised with effect from 1.1.1997 vide office memorandum dat ed 25.6.1999 issued by the Central Government. Thereafter, the Central Governm ent vide its letter dated 25.9.2000 directed the respondent-Corporation to imple ment the said pay revision. In response to such direction, the respondent-Corpo ration by its Circular No.27/2000 dated 29.9.2000 implemented the revision of pa y for its employees i.e. the Executives including the Non-Unionized Supervisors. In Clause 5.1 of the Circular, it was provided that while fixing the pay of S upervisors in the revised pay scales, they would be given the benefit of 20% of their existing basic pay.

5. The respondent-Corporation simultaneously revised the pay scale of the W orkmen also in the year 2001 with effect from 1.1.1997 in terms of the policy of the Government of India in the department of Public Enterprises issued under of fice memorandum dated 14.1.1999. The respondent-Corporation by virtue of a Memo randum of Understanding dated 16.2.2001 implemented the revision of pay of the workers. In the Memorandum of Understanding, it was provided that the Workmen w ould be given the benefit of 25.5% of their existing basic pay along with one ad ditional increment. In paragraphs 7 and 9 of the writ petition, the petitioners have stated That the petitioners beg to state that the fixation benefit given to the Workmen at 25.5% along with an additional increment as against the 20% given to the Executives and non-unionized Supervisors given effect from 1.1.1997 has aff ected a particular class of employees of the respondent Corporation who were wo rking as Supervisors (both S-1 and S-2 level) as on 31.12.96. Those who became Supervisors after 1.1.97 by way of promotion were not affected because on 1.1. 97 they were working as Workmen and naturally availed the higher fixation benefi t given to them as workmen in the revision of pay w.e.f. 1.1.97 and thereafter t hey became Supervisor in batches from the year 1998 onwards. The aforesaid aff

6. thus :- (cid:28)7. ected Suip3visors were initially 106 in number which has now come down to 63. The present petition has been filed to espouse the cause of these Supervisors. The petitioner No.2 is one of them.

9. That the petitioners state that due to the higher fixation benefit of 1 997 pay revision given to the Workmen category, the aforesaid Supervisors suffer ed not only in terms of basic pay but also the proportionate benefits of D.A., C .P.F. H.R.A., gratuity etc. which are related to the basic pay. Lesser amount of basic pay fetches lesser amount of all the allowances. Similarly the employee s above the rank of Supervisors who are Executives have gained considerably as a result of higher time scale introduced by the 1997 revision of pay for them. (cid:29). According to the petitioners, the Supervisors working in other Public S 7. ector Undertakings also experienced the same grievance. Specific mention has be en made of the National Thermal Power Corporation Limited (NTPC) and Bharat Hea vy Electrical Limited (BHEL). According to the petitioners, the said two P.S.Us while implementing the 1997 Pay Revision of Supervisors and Officers adopted a much higher pay scale and fitment benefits for the Supervisors with a view to ho nour the relativity principle, remaining within the parameters of the same DPE G uidelines.

8. The petitioners had earlier moved this Court by filing the writ petition being WP(C) No.7837/2002 and the same was disposed of by order dated 6.4.2006 t aking into account the judgment delivered by the Kerala High Court on the same i ssue. As per the direction contained in the said order, the respondent-Corpora tion was to consider the cases of the Supervisors of both the grades i.e. S-1 and S-2 serving under the respondent-Corporation in the State of Assam. It was p rovided that the Supervisors in both the grades would make individual represen tation with regard to their grievance.

9. In compliance with the said direction of this Court, individual represen tations were made by the Supervisors. By the impugned order dated 19.10.2006, su ch representations having been rejected, the petitioners have once again approac hed this Court by filing the instant writ petition.

10. I have heard Mr. K.N. Choudhury, learned Sr. counsel assisted by Mr. D. Mazumdar, learned counsel for the petitioners as well as Mr. S.N. Sarmah, learne d Sr. counsel assisted by Mr. J. Roy, learned counsel for the respondent-Corpora tion. I have also considered the materials on record and have given my anxious c onsideration to the same as well as the submission advanced by the learned coun sel for the parties.

11. While it is the case of the petitioners that there is pay anomaly, it is the case of the respondent-Corporation that it is not the case of any pay anoma ly warranting removal of the same. It is the grievance of the petitioners that t he Supervisors working in higher grades than that of the Workmen who are gettin g lesser pay than the Workmen and the same being an anomaly elementary for remov al of such pay anomaly, required to be removed by the respondent-Corporation. In the impugned order dated 19.10.2006, the respondent-Corporation has dealt wit h the principles relating to upgradation of pay of the seniors in relation to t he juniors. The said principles have been enumerated as follows :- (cid:28)a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted should be identical and in the same cadre . b) The pre-revised and revised scales of pay of the lower and higher posts in wh ich they are entitled to draw pay, should be identical. c) The senior officer at the time of promotion had been drawing equal or more pa y than the junior, and d) The anomaly should be directly as a result of the application of the provi sions of FR 22 (A)(1) or any other rule of order regulating the pay fixation on such promotion in the revised scale. For example, if even in the lower post t he junior officer draws from time to time higher rates of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step up the pay of the senior officer. (cid:29) It has been stated in the impugned letter dated 19.10.2006 that the sen 12. iority of the Executives of the Corporation in different pay scales is determin ed with reference to their cadre (in the line of promotion) and discipline and that the line of promotion is the channel of movement of an employee from a sc ale of pay to the next higher scale in his/her discipline. The incumbent has bee n informed of the said impugned letter dated 19.10.2006 that since his case does not fall in one of the above mentioned categories, there is no scope for steppi ng up of their pay as was claimed. If we go by the stand in the writ petition, it is the own case of the p 13. etitioners that while the pay structure of the Workmen is determined by the bip artite settlement, the pay structures of the Supervisors and Executives are fina lized unilaterally by the Corporation on the basis of the direction issued by th e Government of India in the particular Ministry. The pay scale of the Officers and Supervisors of the Central Public Sector Enterprises were revised with effe ct from 1.1.1997 vide office memorandum dated 25.6.1999 issued by the Government of India. The pay revision was implemented by the respondent-Corporation on th e basis of the Central Government directives. It was provided that while fixing the pay of the Supervisors in the revised pay scale, they should be given the b enefit of 20% of their existing basic pay. The aforesaid pay revision effected in respect of the Supervisors did n 14. ot have anything to do with the pay revision effected in respect of the Workmen pursuant to the bipartite agreement/Memorandam of Understanding dated 16.2.200 1. Such pay revision of the Workmen effected and implemented was independent of the pay revision effected in respect of the Supervisors pursuant to the Central Government directives. In respect of the Workmen, it was provided that their fi tment benefits would be 25.5% of their existing basic pay along with one additi onal increment unlike the Supervisors whose fitment benefit was fixed at 20%.

15. The petitioners understood well that they were getting lesser pay than t he Workmen in view of such fitment benefits of 25,5% along with additional incr ement which is 20% in respect of the Executives and Non-unionized Supervisors. It is in this context, the petitioners have made the above-quoted statements in Paragraphs 7 and 9 of the writ petition. Thus, the purported pay anomaly is d irectly not attributable to a common and basic ground of pay fixation in respe ct of both the categories. While the pay revision in respect of the Executives a nd Supervisors were effected as per the Central Government directives, the pay revision of the Workmen was effected pursuant to the bipartite agreement/MoU. T his is precisely the reason as to why the petitioners, in effect, have question ed the pay revision effected to the Supervisors and Executives with effect from 1.1.1997 by the Central Government in the particular Ministry in the particular manner. It is one thing to say that that their pay revision with effect from 1. 1.1997 was not effected properly, but it is another thing to say that their pay has been fixed anomalously compared to pay fixation benefit extended to the Wo rkmen. This is precisely the reason as to why in Annexure-’K’ representation d ated 23.5.2006, the following statement was made :- (cid:28)Another fall out of the arbitrary 1997 pay revision was that the basic pay of t hose in W-9 category who became S-1 Supervisor after 1997 i.e. in the year 1998 and afterwards was fixed on much higher side than the basic pay of those S-1 sup ervisors who were promoted before 1997 i.e. between 1998 and 1993, although all were drawing same basic pay while in W-8 category. This difference ranges betwe en Rs.600/- and Rs.1,000/- (cid:28)

16. Both the categories of the employees are not in the same category and th us, no comparison could be drawn. In this connection, the respondent-Corporatio n in their counter-affidavit, upon a reference to the circulars holding the fiel d for both the categories of employees have given the details of the fitment ben efits admissible to both the categories of employees. The Apex Court in the cas e of State of AP v. G. Sreenivasa Rao reported in (1989) 2 SCC 290 observed thu s :- (cid:28)15. ’Equal pay for equal work’ does not mean that all the members of a cadre m ust receive the same pay packet irrespective of their seniority, source of rec ruitment, educational qualifications and various other incidents of service. Wh en a single running pay scale is provided in a cadre the constitutional mandate of equal pay for equal work is satisfied. Ordinarily grant of higher pay to a junior would ex facie be arbitrary but if there are justifiable grounds in doi ng so the seniors cannot invoke the equality doctrine. To illustrate, when pay fixation is done under valid statutory rules/executive instructions, when person s recruited from different sources are given pay protection, when promotee from lower cadre or a transferee from another cadre is given pay protection, when a senior is stopped at efficiency bar, when advance increments are given for exper ience/passing a test/acquiring higher qualifications or incentive for efficiency ; are some of the eventualities when a junior may be drawing higher pay then hi s seniors without violating the mandate of equal pay for equal work. The differ entia on these grounds would be based on intelligible criteria which has rationa l nexus with the object sought to be achieved. We do not therefore find any goo d ground to sustain the judgments of the High Court/Tribunal (cid:29)

17. In Union of India & Ors v. O.P. Saxena & Ors reported in (1997) 6 SCC 360, the Apex Court, while interferring with the decision of the Tribunal direct ing stepping up of the pay of the respondents therein as not correct, upon a reference to the principles relating to stepping up of pay as contained in the R ailway Rules, observed that two conditions namely - 1) both the senior and juni or officers should belong to the same cadre and 2) the scales of pay of the lowe r and higher posts should be identical. In the said case, one Shri Kareer rema ined in the cadre of running staff by choice, but the respondents were promote d to the supervisory cadre. Thereafter, Shri Kareer on the one hand and the respondents on the other belonged to two different cadres. The pay of Shri Kare er was fixed according to the scales which were approved for the running staff i ncluding the running allowance. The Apex Court held that the source of recruitme nt in the case of Shri Kareer vis-à-vis the respondents being different, the pri nciple of stepping up of pay would not arise. In the instant case, there is no dispute that both the categories of emp 18. loyees i.e. the Supervisors and the Workmen are in different cadres. While the pay of the Workmen will be revised pursuant to the bipartite agreement/MoU, the pay revision in respect of the Supervisors was effected pursuant to the directio ns of the Central Government. In such a situation, if the Workmen uses to get more salary than that of the Supervisors, same cannot be said to be the case of pay anomalies. None of the elements attributable as pay anomaly, requires remov al of the same at the intervention of the pay anomaly. The removal authority be ing present in the instant case, no interference is called for to the decision of the respondent-Corporation, which they have communicated individually to the Supervisors, one of which is the impugned Annexure-’L’ communication dated 19.10 .2006. If the petitioners are really aggrieved, they should not be agreed wih the revision of pay scales effected in respect of the Supervisors and Executiv es with effect from 1.1.1997 to the Central Government. But such grievance cann ot relate to the Workmen, whose pay revision was effected pursuant to the bipar tite agreement/MoU. The respondent-Corporation, of their own, did not do anythi ng but it simply followed the Central Government guidelines. The analogy, on whi ch the petitioners have emphasized in reference to the other P.S.Us like, N.T.P. B.H.E.L. etc. cannot help the petitioners. If the said two PSUs of the C, ir own extend certain benefits to similar categories of employees, same binds t he respondent-Corporation to follow the same rule. The respondent-Corporation will be bound on legal principles and not on the principles being followed in the said PSUs. Its case will have to be understood on the background in the fac t situation involved about which discussions have been made above.

19. For all the aforesaid reasons, it cannot be said to be a case of pay ano maly requiring intervention of this Court so as to direct the respondent-Corpor ation to remove such pay anomaly and/or to step up the pay of the Supervisors . This, however, will not preclude the petitioners to approach the Central Govern ment for appropriate relief in reference to pay revision effected with effect f rom 1.1.1997 with the 20% fitment benefit, which was 25.5% in respect of the Wor kmen.

20. . There shall be no order as to costs. Writ petitions are disposed of with the above liberty to the petitioners