THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH ) AGARTALA BENCH

1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH ) AGARTALA BENCH WA No. 74 of 2003 1. The Tripura Jute Mills Officers Association, represented by Shri Durgesh Ranjan Chowdhury, S/o. Late Debendra Chowdhury, Member of the Executive Committee of TJMOA, Agartala. 2. Shri Samarendra Dey, S/o. Late Upendra Kumar Dey, Member of the Executive Committee, TJMOA, Hafania, Agartala, West Tripura. 3. Shri Parimal Das, S/O Lalmohan Das, Member of the Executive Committee, TJMOA, Hafania, Agartala, West Tripura....Appellants/Petitioners -Versu s 1. The State of Tripura, to be served on the Chief Secretary, to the Government of Tripura (Incharge), Agartala, West Tripura. 2. The Tripura Jute Mills Ltd. (A. Govt. of Tripura Undertakings), represented by the Managing Director, Hafania, West Tripura. 3. The Secretary to the Forth Tripura Pay Commission, Revenue Buildings, Agartala....Respondents

2 BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA THE HON BLE MR. JUSTICE C.R. SARMA For the petitioners : For the respondents : Mr. P. Roy Barman, Adv. Mr. S. Bhattacharya, Adv. Mr. S. Deb, Sr. Adv. Mr. S. Chakraborty, GA. Date of hearing : 04.04.2011. Date of Judgement : 08.04.2011. B.K. SHARMA, J JUDGEMENT AND ORDER (CAV) This appeal is directed against the judgement and order dated 28.10.2003, passed by the learned Single Judge in the writ petition being Civil Rule No. 139/1997 dismissing the writ petition. Issue Involved : 2. The issue raised in the writ petition is as to whether the employees of the Tripura Jute Mills Ltd., a Govt. of Tripura Undertaking, are entitled to the benefits of revision of pay at par with the State govt. employees and other Public Sector Undertakings including revised House Rent Allowance (HRA), Compensatory Allowance (CA), Career Advancement Scheme (CAS) and Dearness Allowance (DA). The learned single Judge having answered the issue in the negative, the petitioners have filed the instant appeal.

3 Brief Facts : 3. The petitioner No.1 is an association formed in 1984 consisting of the employees of the Tripura Jute Mills Ltd. (TJM), a Govt. of Tripura Undertaking. The petitioners No. 2 & 3 are the employees of TJM and also represent the association. 4. The TJM is wholly owned by the Govt. of Tripura and it is registered under the Indian companies Act, 1956. That being the position, the Govt. of Tripura made applicable the recommendation of the 2 nd Pay Commission to the Officers and employees of TJM at par with other State Govt. Undertakings and Statutory Bodies. When the 3 rd pay Commission was constituted by notification dated 4.11.1985, it was also provided by a subsequent notification dated 16.12.1986 that the said Commission would also consider the pay structure for the Corporations, Autonomous bodies etc. of the Govt. of Tripura. 5. Pursuant to the recommendation made by the 3 rd Pay Commission in its report submitted in the year 1988, recommending revised pay structures for all Govt. Officers/employees of the State including the Officers and employees of Govt. Undertakings and autonomous bodies except the TJM, the revised pay structure was made applicable to all other PSUs/Govt. Undertakings/Statutory

4 Bodies, except the TJM, which according to the petitioners, was discriminatory. 6. According to the petitioners, they came to know about the exclusion of TJM in the report of the 3 rd Pay Commission at a later stage and consequently made several representations for treating the Officers and employees of the TJM at par with their counterparts in other PSUs, statutory bodies, etc. In consideration of such representation, the Managing director of TJM i.e. the respondent No.2 had assured the petitioners on 30.7.1988 that their demand for revision of pay at par with other PSUs would be considered sympathetically taking into account the recommendation of 3 rd Pay Commission. However, nothing followed thereafter. 7. The Board of Directors of the TJM in its meeting held on 20.11.1996 in the chamber of Minister of Industries and Commerce (Chairman TJM), resolved that the Govt. in the Industries Department be requested to constitution of Pay Revision Committee for the employees of the TJM. The said Committee was to compare the scale of pay of other PSUs keeping in mind the 4 th Pay Commission, which was to consider the revision of pay. In this context, the petitioners have asserted that it is the Board of directors of the TJM, which is competent to take decision in the matter regarding revision of pay etc and that the Managing Director of his own is not entitled to take independent decision in the matter. This particular plea of the petitioners is in reference to the

5 particular letter written by the Managing director requesting the Govt. of Tripura to keep aside the TJM from the purview of the 3 rd Pay Commission. 8. It is the further grievance of the petitioners that inspite of the aforesaid developments, the TJM was excluded from the purview of 4 th Pay Commission unlike other PSUs / statutory bodies, which were covered by 4 th Pay Commission. It is the stand of the petitioners that the same resulted in hostile discrimination and violation of Article 14 and 16 of the Constitution of India. 9. When the petitioners agitated their aforesaid grievance before the Chief Secretary, Govt. of Tripura by a representation dated 7.1.97, the Chief Secretary by his letter dated 9.1.97 informed the petitioners that as he had no time they should meet the Principal Secretary, Industries and Commerce in respect of their grievances. Accordingly, the petitioners met the Principal Secretary on 24.1.97. 10. When nothing resulted thereafter, the petitioners filed the instant writ petition. This Court by order dated 21.4.97 passed in CM Application No. 115/97 made a provision for submission of memorandum by the petitioners to the Pay Commission in respect of revision of pay scale of the officers /employees of TJM. Consequential direction was also issued to the 4 th Pay Commission to consider the memorandum to

6 be submitted by the petitioners for recommending the revision of pay scale of the officers /employees of TJM. 11. Pursuant to the said order passed by this Court, the petitioners submitted memorandum in respect of revision of pay scale to the 4 th Pay Commission and accordingly the said Pay Commission while making its recommendation, also included the TJM in its report and made recommendation for revision of pay scale of its officers and employees. 12. Pursuant to the aforesaid report of the 4 th Pay Commission, the Govt. of Tripura in acceptance of the same, introduced the revised pay scale for its employees vide notification dated 6.2.99 and accordingly Tripura State Civil services (Revised Pay) Rules, 1999 was introduced and it was published in the extra ordinary issue of Tripura Gazette on 6.2.99. 13. After the aforesaid development, another notification was issued on 5.7.99 by the Govt. of Tripura revising the pay of the officers / employees of the TJM w.e.f. 1.4.1999. The revision was made to give effect to the recommendation of the 4 th Pay Commission. It is in respect of this effective date i.e. 1.4.99, the petitioners have made a grievance. According to them, the pay revision should be made effective from 1.1.1996 at par with the other State Govt. employees and employees of other PSUs /statutory bodies like that of the TJM.

7 14. to buttress the aforesaid stand, the petitioners have stated in their writ petition that there are 33 Govt. of Tripura Undertakings/Statutory Bodies including that of TJM and that the pay revision for those undertakings having been made effective from 1.1.96, there cannot be any reason as to why the TJM, which is similarly situated with those undertakings, should be treated differently. In this connection, the petitioners have annexed to the writ petition copies of various orders (Annexure-20 series) extending the benefit of revision of pay to the officer and employees of various undertakings w.e.f. 1.1.1996. 15. It is in the aforesaid background coupled with the fact that the officers and employees of TJM have also not been provided with House Rent Allowance, Carrier Advancement Scheme, Compensatory Allowance and Dearness Allowance, the petitioners have contended in the writ petition that there is hostile discrimination in the matter of pay and allowances and consequently the employees of the TJM are getting much lesser pay than their counterparts in other PSUs. 16. The Managing Director of TJM by his letter dated 29.4.2000 took up the grievances of the petitioners with the Govt. and requested to provide the benefits of pay revision to the officers and employees of TJM at par with other PSUs. However, nothing resulted.

8 Stand of the respondents (after amendment of the writ petition). 17. Various counter affidavits and rejoinder affidavits have been filed. Be it stated here that although the writ petition was filed in 1997 but because of the subsequent developments that took place during the pendency of the writ petition coupled with the consequential action pursuant to the aforesaid interim order passed by this court, the writ petition was amended bringing on record the subsequent facts, which have been discussed above. 18. In the counter affidavits filed by the respondents, their basic stand to controvert the claim of the petitioners are as follows :- (i) (ii) The inclusion of TJM in the 4 th Pay Commission report being pursuant to the aforesaid interim order passed by this Court, the Govt. of Tripura is not bound to accept the same. The State Government having regard to the facts and circumstances involved, having accepted the report for TJM to be made effective from 1.4.99 in respect of TJM, the petitioners cannot make any grievance against the same. (iii) The pay and allowances of the employees of other undertakings apart from TNGC being mostly at par with the State Govt. employees and their pay also having been revised from time to time

9 at par with the State Govt. employees, they have been extended with the benefit of pay revision w.e.f. 1.1.1996. (iv) There is no direct relation of the revision of pay of the officers and workers of TJM with the State Govt. employees as the Board of Directors of TJM has consistently followed the policy of keeping the pay and allowances and perquisite structure in TJM, different from that of the Government. In this connection, the respondents have referred to the letters dated 21.5.86 and 21.11.86 issued by the Managing Director of TJM requesting the State Govt. to exempt the TJM from the purview of 3 rd Pay Commission. (v) While accepting the 4 th Pay Commission recommendation for TJM, the Govt. took into account the generation of income by TJM and its paying capacity. It has been stated that most of the Looms in the TJM have been out of order and the production level is far below the optimum level. The TJM itself being not in a position to pay the monthly salary and wages to its employees regularly, the petitioners cannot insist for extending the benefits recommended by the 4 th Pay Commission.

10 Stand of the respondents before amendment of the writ petition. 19. As noted above, the writ petition was amended bringing on record the 4 th pay Commission recommendation and all subsequent developments. It will be appropriate to take note of the stand of the respondents in their counter affidavit filed before the writ petition was amended They are as follows :- (i) In the counter affidavits filed by respondent No.1 i.e. Govt. of Tripura and the respondent No.2 i.e. the Managing Director of the TJM, while not denying the stand of the petitioners specifically, it has been stated that the TJM is fully competent to formulate the wage agreement with Workers and that such wage agreement is executed through bipartite agreement between the respondentno.2 and the recognised Workers Union. As regards the pay structure of the officer and Supervisors of TJM, it has been stated that the advice from expert body like Pay Commission, may be sought for. It will be pertinent to mention here that unlike in the affidavit filed after amendment in the said writ petition, there was no plea that the TJM being a loss incurring Unit, its employees cannot be treated at par with other PSUs/statutory bodies of the Govt. of Tripura. (ii) In another counter affidavit filed on 15/12/2002, the respondent No.2 has more or less adopted

11 the stand of the Govt. in their counter affidavit filed after the writ petition was amended. Rejoinder Affidavit : 20. In the rejoinder affidavit filed by the petitioner on 2.12.2002, they have reiterated their stand in the writ petition. In addition, the petitioners have also referred to the minutes of the 134 th meeting of the Board of Directors of TJM held on 20.11.1996, in which the wide disparity of pay scale of TJM employees compared to that of State and other PSUs, was noted. As regards the plea of the respondents that TJM was kept out of the purview of the 3 rd Pay Commission, it has been stated that the Managing Director of his own without the approval of the Board of Directors, was not competent to take such a course of action. As regards the plea of TJM being a loss incurring Unit, the petitioners have referred to the PSUs like TRTC, THHDC, TSIC, TFDPC etc, which according to the petitioners have been incurring huge loss but employees of which have been provided with the benefits of pay revision. 21. In the rejoinder affidavit, the petitioners have shown the statistics of pay structure so as to contend that it is the employees of the TJM alone who have been discriminated by way of providing lesser pay than the employees of their counterparts. As regards the plea of the respondents that some of the Looms are not in operation, it has been stated that it is the responsibility of the respondents No. 1 & 2 to ensure that all the Looms become fully operational and the

12 production reaches the optimum level. It has been categorically stated that almost all the undertakings of the Govt. of Tripura are running in loss and their economic condition is even worst than the TJM. They have denied that pay structures of the petitioners had ever been settled through bipartite settlement. Arguments : 22. We have heard Mr. P. Roy Barman, learned counsel for the writ petitioners-appellants as well as Mr. S. Deb, learned senior counsel assisted by Mr. S. Chakraborty, learned State Counsel, appearing for the respondents. We have also considered the entire materials in record. 23. Mr. Roy Barman, learned counsel for the appellants submitted that the learned Single Judge has committed manifest error of law in passing the impugned judgement and order on non-existent fact. According to him, the materials on record do not justify the rejection of the claim of the petitioners-appellants for parity in giving the benefit of revised pay scale with other entitled benefits. Placing reliance on two decisions of the Apex Court reported in (2003) 6 SCC 01(Kapila Hingarani Vs. State of Bihar and others) and (2005) 2 SCC 262 (Kapila Hingarani Vs. State of Bihar and others), Mr. Barman submitted that the respondents cannot deny parity in the matter of pay and allowances to the Officers and employees of TJM.

13 24. Mr. S. Deb, learned senior counsel appearing for the respondents at the very outset questioned the very maintainability of the writ petition, the same having been filed by an association of the officers and employees of TJM, which is not registered one. According to him, there being no discrimination in the matter of fixation of the date of effect of the Revised Pay Rules and even if any, the matter being one of policy, is not amenable to writ jurisdiction. During the course of argument, he has exclusively refered to De Smith s Judicial Review Sixth Edition (Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, so as to deal with the question of sufficient interest of the petitioners in the matter. He has also referred to Halsbury s Laws of England, Vol.I, Fourth Edition, to buttress his argument that the writ petition filed by an un-corporated body is not maintainable. In this connection, he has also referred to Corpus Juris Secundum Volume 55, Section 48 and the decision in revenue Commissioners vs. National Federation of Self- Employment and Small Business Ltd. Reported in 1981(2) All ER 1993. 25. Apart from the above, Mr. Deb, learned counsel representing the respondents has also placed reliance on the decision in Regina vs. Secretary of State for the Environment, Ex parte Rose Theatre Trust Co., (1990) 1 All ER 754 and so also on the decision reported in AIR 1951 SC 41Charanjit Lal Chowdhuty s case). Mr. Deb, learned senior counsel also referring to the decision in Calcutta Gas Company (Proprietor) Limited vs. The State of West Bangal & Others, reported in AIR 1962 SC 1044, argued

14 that the right that can be enforced under Article 226 shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified. He has also placed reliance on Vinoy Kumar vs. State of UP & Ors reported in (2001) 4 SCC 734 to further buttress his argument that the writ petition is not maintainable. 26. Although, Mr. Deb, learned counsel for the respondents argued at length on the maintainability of the writ petition but on being asked as to whether in view of the fact that the petition has been filed also by two of the officials of the TJM, whether the writ petition so far as the said two petitioners are concerned, is maintainable or not, Mr. Deb fairly admitted that the petition would be still maintainable, the same having been filed by other two petitioners i.e. the petitioners No. 2 & 3 jointly with the unregistered Association i.e. the petitioner No.1. 27. So far as the merit of the case of the petitioners is concerned, Mr. Deb has referred to the decision of the Apex Court in the case of A.K. Bindal & another Vs. The Union of India and others reported in (2003) 5 SCC 163, so as to contend that the TJM employees being not Govt. servants, they have no legal rights to claim that the Govt. should pay their salary or that the additional expenditure to be incurred on account of revision of their pay scale, should made by the Government. He has also placed reliance on the decision in Express Newspaper (P) Ltd. Vs. Union of India reported in

15 AIR 1958 SC 578, so as to emphasise on the economic viability of the TJM and its capacity to pay salary to its employees. 28. Mr. Deb, learned counsel for the respondents has also referred to the decisions in Officers and Supervisors of IDPL Vs. Chairman and Managing Director, IDPL reported in (2003) 6 SCC 490 and Vijay Kumar Vs. Whirlpool of India and others reported in (2008) 1 SCC 119 to argue that essentially the revision of pay is a policy matter and on such policy matter, the extent of judicial review is indisputably limited. In this connection, he has also referred to the decisions in BALCO Employees Union Vs. Union of India reported in (2002) 2 SCC 333 and so also in Dhampur Sugar Vs. The State of Uttaranchal reported in (2007) 8 SCC 418. In addition, he has also referred to the decision in Bajaj Hindustan Ltd. Vs. Sir Sadhi Lal Enterprises Ltd. Reported in (2011) 1 SCC 640. 29. In addition to the above arguments made by Mr. Deb, learned senior counsel for the respondents, a written argument has also been filed incorporating various decisions of the Apex Court, most of which have been referred to above, so as to further buttress the argument on behalf of the respondents that the writ petition is not maintainable, both on merit as well as the same having been filed by an un-registered /un-incorporated Association.

16 30. As has been held by the Apex Court in Ambica Quarry Works Vs. State of Gujarat reported in AIR 1987 SC 1073, the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it (See Lord Halsbury in QuinnV. Leathen, 1901 AC 495). Moreover, as has been observed by the Apex Court in Madhav Rao Scindia Vs. Union of India reported in (1971) 1 SCC 85, it is not proper to record a word, a clause or a sentence occurring in a judgement of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgement. Analysis, Conclusions and Findings : 31. In the instant case, the question involved is, as to whether the officers and employees of TJM is entitled to the benefits of revision of pay at par with their counterparts working in other similarly situated PSUs and statutory bodies wholly owned and controlled by the State Govt. Coming to the question of maintainability of the writ petition, as has been noted above and accepted by the learned counsel appearing for the respondents, even if the writ petition is said to be not maintainable so far as the petitioner No.1 is concerned but still the writ petition is maintainable, so far as the other two petitioners are concerned. That apart, the writ petition having been filed 14 years back and the same having been understood to be a petition filed by the Officers and employees of the TJM by all concerned including the respondents themselves and the matter having already been

17 adjudicated upon on merit, without any objection, whatsoever, regarding maintainability of the writ petition, we are of the considered opinion that it will be inappropriate not to decide the writ petition on merit, more so, when the other two petitioners i.e. the petitioners No. 2 & 3 are very much interested in the writ petition. Whatever way the writ petition is decided, same will be binding on the officers and employees of the TJM. That being the position, the decisions and passages on which the learned counsel for the respondents have referred to need not be dealt with for a mere academic discussion. 32. In Kapila Hingarani (supra), the Apex Court held that the employees of State owned corporations/psus/statutory bodies being States within the meaning of Article 12 of the Constitution of India, the State Government having deep and pervasive control over such bodies, has an additional duty to protect the constitutional rights of their employees. 33. In (2005) 2 SCC 262 (Kapila Hingarani (supra), the Apex Court issue further direction reiterating its earlier direction holding that such direction cannot be said to be only one time direction. 34. In A.K. Bindal (supra), the Apex Court taking note of the fact that the particular voluntary retirement scheme had been accepted and the benefits thereof had been taken by majority of the employees of a sick Govt. company held

18 that they cannot re-agitate the issue relating to pay revision. It was in that context, the claim for pay revision by the employees of the Govt. company was considered and rejected. It was observed that since employees of Govt. companies are not Govt. servants, they have no legal rights to claim that the Govt. should pay their salary or that the additional expenditure incurred on account of revision of their pay scale should be made by the Govt. It was observed that the economic viability of the industrial unit or the financial capacity of the employer is a valid consideration in answering the question as to whether the revision of pay should also be extended to the employees of such an industrial unit. 35. Unlike the aforesaid case, in the instant case, the Govt. has extended the benefit of revision of pay to all the employees of the other PSUs /Govt. undertakings / statutory bodies with the exception of the employees of TJM. In south Malabar Gramin Bank Vs. Coordination of SMGB Employees Union and SMGB Officers Federation reported in AIR 1963 SC 1332, the Apex Court noticing the fact that the decision of National Industrial Tribunal in the form of an award had been implemented by the Central Govt., it was held that it would not be admissible for the employer bank or the Union of India to take the plea that the financial condition of the Regional Rural Banks was not such that they may give their employees the pay structure of the employees of the Nationalised Commercial Banks. In A.K. Bindal (supra), the Apex Court noticed the aforesaid decision in South Malabar Gramin Bank, and observed that

19 in such a situation, the plea that financial condition of the Regional Rural Bank was not conducive to give employees the entitled pay structure, would not be permissible. 36. In the instant case, the plea of the respondents in their original counter affidavits prior to the amendment of the writ petition has been noted above. It was never contended that because of the economic condition of the TJM, its officers and employees are not entitled to claim parity in pay scale / revision of pay at par with other PSUs. The only contention raised was that the TJM from its very inception, maintained different pay structure and, in fact, when the 3 rd Pay Commission was constituted, the Managing Director of TJM requested the Government to exclude the TJM from the purview of the said Pay Commission. 37. It is only after the 4 th Pay Commission recommendation, the plea of economic viability of TJM has been taken in the additional counter affidavit. As has been held by the Apex Court in Mohinder Singh Gill Vs. Chief Election Commissioner reported in AIR 1975 SC 851, when a order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. In the instant case also, the Govt. of Tripura rejected the claim of the petitioner on the ground mentioned in the original counter

20 affidavit, which is that the TJM all along maintained a separate entity in the matter of revision of pay. It was contended that since the TJM opted out from the purview of 3 rd Pay Commission, its case was not considered by the said Pay Commission. It had never been the case of the respondents that the TJM being a sick unit, the Govt. of Tripura is not in a position to provide its employees the benefit of revision of pay. 38. As noted above, the TJM was brought within the purview of 4 th Pay Commission as per the interim order passed by this Court. Accordingly, the 4 th Pay Commission took into account the case of the TJM as well, along with other PSUs and made its recommendation. Such recommendation has been accepted by the Govt. of Tripura with the distinction that in respect of other PSUs, the revision of pay has been effected w.e.f. 1.1.1996 but only in the case of TJM, the same has been made effective from 1.4.1999. No reason is discernible as to why such a differentiation was made, although in the additional counter affidavit filed by the respondents, apart from the plea that was raised in the original counter affidavit, the plea of economic condition of the TJM has also been raised. However, while doing so, the respondents have not answered the specific plea of the petitioners that they are at par with their counterparts in other PSUs and that most of the PSUs are running at a loss and their economic condition is worst than that of the TJM. In this connection, the petitioners have also cited the specific instances of the PSUs, whose economic conditions are not good.

21 39. In the report dated 26.9.1998 that was submitted by the Pay Revision Committee for TJM staff and officers, recommendation was made for introduction of the revised pay scale to the employees of TJM at par with the State Govt. employees. It will be pertinent to mention here that the said Pay Revision Committee was constituted by the Govt. of Tripura. The Committee also recommended for extending dearness allowance and other allowances applicable to the employees of TJM at par with the State Govt. employees. 40. The said Committee constituted by none other than the Govt. of Tripura itself, also took note of the fact that the TJM was excluded from the purview of the 3 rd Pay Commission and consequently there was no recommendation for the employees of TJM. It will be pertinent to mention here that the Govt. while constituting the Committee did not indicate any terms of reference. Therefore, the Committee had gone into details of all the issues linked with the pay revision like, viability, performance of the mill, gross margin earned, investment per year, excess manpower, etc, as available to the Govt. At page 6 of the report, it was observed thus :- After evaluating the gross salary of the lowest rank of Group A, Group B and Group C employees as on 1.4.98 with analogous post of TJML in the same grade, it apparently gives an idea that the employees of TJML are getting a lower salary as compared to the corresponding employees of the State Govt. In

22 case Group D employees, the difference is Rs. 1000/- per month, in Group C, the difference is Rs. 2000/- per month, in Group B, the difference is Rs. 3000/- per month and in case of Group A employees the difference is Rs. 4000/- per month. In highest rank of Group A post, the difference is almost Rs. 5000/- per month. So, the idea behind this recommendation is to give full benefit of pay scale and allowances etc. so that they may not be looser of emoluments in comparison with the employees of State Govt. and Public Sector Undertakings. At the same time it is felt that the management should take suitable step for better supervision, better work culture and better monitoring of the system so that a better output is achieved. The total expenditure for salary now being incurred for supervisory type of manpower is comparatively 40.very low than the amount incurred for workmen. So it is felt that recruitment of fee professional senior ranking Managers will definitely help for better production achievement and improving overall efficiency of the mill. 41. In Yogeswar Prasad Vs. National Inst., Edu Planning & Admn reported in 2010 AIR SCW 7136, the Apex Court dealing with the question of pay parity of the appellants, Assistants and Stenographers in National Institute of Education, Planning and Administration (NIEPA), in reference to the benefit of 4 th CPC, held that denial of pay equivalence was improper. While holding so, the Apex Court made a reference to the similar pay equivalence available to Assistants and Stenographers working in Sahitya Academy, an autonomous organisation.

23 42. In Haryana State Minor Irrigation Tubewells Corporation Vs. G.S. Uppal reported in 2008 AIR SCW 3388, the Apex Court held that in the matter of revised pay scale given to the Engineers of State Govt. and Govt. Corporation, removal of anomaly thereof would be applicable to Corporation Engineers to maintain parity, more so, when such benefit was extended to other employees of the Corporation. It was held that the fact that the Corporation was running under losses was immaterial. In paragraph 24 if the said judgement, the Apex Court taking note of the plea of the appellants that the Corporation was running under losses and that it cannot meet the financial burden on account of revision of scales of pay, which was rejected by the High Court, held that it was rightly rejected. It was observed that whatever may be the factual position, there cannot be any justification in denying the claim of revision of pay scales to the respondents. It was further observed that if the Corporation was running into losses, the measures of economy, avoidance of frequent writing of dues, reduction of posts or repatriation of deputationist, may provide the possible solution to the problem. In this connection, the Apex Court also referred to the decision of the Apex Court in M.M.R. Khan Vs. Union of India reported in 1990 (Supp) SCC 191 and Indian Overseas Bank Vs. IOB Staff Canteen Workers Union reported in (2000) 4 SCC 245, so as to held that such contention was not available to the appellants. 43. The petitioners have brought on record the letter dated 5.7.99 addressed to the Managing Director of TJM by

24 the Govt. of Tripura in the Finance Department under the signature of the Principal Secretary, Finance, by which the feeling of the State Govt. that the pay of the officers and workers of TJM should be revised w.e.f. 1.4.1999 was conveyed. Similar feeling was conveyed in respect of other PSUs, such as Tripura Industrial Development Corporation Ltd., Tripura Tea Development Corporation Ltd., Tripura Small Industries Corporation Ltd., Tripura Horticulture Corporation Ltd. Etc., by communications of the same date i.e. 5.7.99 with the distinction that in their cases, the revision was made effective from 01.01.1996. However, no reason is discernible in the said communications dated 5.7.99 as to why such a distinction was made in respect of the effective date of applicability of the revision of pay. 44. The petitioners have also brought on record the memorandum dated 8.12.1999, issued by the Govt. of Tripura in the Finance Department under the signature of the Principal Secretary, by which recommendation of the State Govt. towards drawal of various types of allowances after introduction of revised scales of pay in respect of the PSUs, Cooperative Societies, Cooperative Banks, Boards, Agencies, Constitutional Bodies and other such authorities was made. In the said communication, the TJM was excluded. Significantly, in paragraph 4 of the letter, a direction was issued to the organisations mentioned in the letter, which only exclude the petitioners organisation i.e. TJM to work out the requirement of additional fund for the grant of the allowances at revised rates. Direction was also issued to furnish proposal for financial assistance indicating

25 the amount of additional financial liability of the respective organisation that should be sent to the Finance Department along with the records of decision and orders through the respective Nodal Department in the State Govt. for release of fund. 45. The arguments advanced by Mr. Deb, learned counsel for the respondents that in the matter of policy decision and that too relating to revision of pay in respect of Govt. undertakings, the Writ Court exercising its power of judicial review under Article 226 of the Constitution of India will be slow in interfering with such policy decision, will have to be understood in the context in which the submission has been made. Apart from submitting that the policy decision of the State Govt. is not liable to be interfered with, there was no submission and / or disclosure as to what is the policy decision. Merely on the ground of involvement of a policy decision without highlighting anything in this regard, it cannot be argued that whatever decision the State Govt. takes in respect of its own undertakings, will have to be accepted by the Writ Court exercising its power of judicial review under Article 226 of the Constitution of India. 46. As noted above, at one stage, it was the plea of the respondents that TJM was excluded from the purview of 3 rd Pay Commission and consequently, it was not entitled to get included within the purview of 4 th Pay Commission. However, at the same time, it has also been admitted that the TJM was very much within the purview of 2 nd Pay

26 Commission and since its inception, all along followed the pay structure of the State Govt. employees. It was for the first time during 3 rd Pay Commission, the Managing Director of the TJM of his own communicated to the Govt. to exclude the TJM from the purview of the said Pay Commission. Such decision of the Managing Director was not backed by any decision and / or resolution of the Board of Directors of TJM. 47. The TJM was again brought within the purview of the 4 th Pay Commission consequent upon the interim order passed by this Court. The interim order was only to the effect of entitling the petitioners to make memorandum to the Commission and in turn consideration of the memorandum by the Pay Commission. There was no obligation on the part of the State Govt. to act upon the recommendation of the Commission in respect of the TJM, if their plea in the original counter affidavit is to be entertained, about which mention has been made above. However, per contra, the Govt. of Tripura accepted the recommendation in case of TJM as well but the effective date of applicability of the revised pay was made effective w.e.f. 1.4.1999 unlike the other PSUs / undertakings / statutory bodies for whom, the same was made applicable w.e.f. 1.1.1996. No reason is discernible for doing so except the plea of economic condition of TJM. Such plea is belied by the own action of the respondents in asking the other PSUs to workout the requirement of additional funds and furnish proposal for additional financial liability in respect of the 32 organisations out of 33 organisations. The discriminatory treatment is in respect of the 33 rd

27 organisation, which is the TJM. In such a situation, it cannot be said to be a case of reasonable classification warranting non-interference of this Court exercising its power of judicial review under Article 226 of the Constitution of India. 48. Above being the position, the decision on which the learned counsel for the respondents have placed reliance, which are primarily on the liberty and freedom in framing policies by public authorities and non-interference thereof by way of judicial review, are of no help to the case of the respondents. This Court is concerned with the decision making process and when the said process is at fault, it cannot be said that the decision is based on a sound policy and this Court will have to give away to the said decision. 49. The learned single Judge has held in the impugned judgement and order dated 28.10.2003 that the officers and employees of the TJM are not entitled to get similar treatment with that of other 32 PSUs /Govt. undertakings/statutory bodies. Such a finding has been recorded on the ground that the economic condition of TJM is not viable and that the same is a loss incurring unit. While answering the issue against the petitioners-appellants, the learned single Judge primarily proceeded with that notion in mind, without however, taking into consideration the case of other 32 organisations, about which mention has been made above. It has been held by the learned single Judge that the petitioners do not have any enforceable right to

28 claim parity with the employees of other PSUs of the State Govt. Deviating from the facts and issues involved in the writ petition, the learned single Judge has gone into the area of evaluation of jobs for the purpose of pay scales with the observation that the same must be left to the expert body. In the instant case, we are not concerned with as to whether the employees of TJM perform the same nature of job like that of their counterparts in other PSUs. It was never the pleaded case of the respondents that the distinction has been made upon evaluation of the duties and responsibilities of the employees. 50. The learned single Judge has also held that there cannot be any formation of opinion that the employees of TJM and the employees of other PSUs belonged to and constitute the same class. While holding so, the learned single Judge has taken note of the aforementioned fact relating to the exclusion of TJM from the purview of 3 rd Pay Commission at the instance of the Managing Director of TJM, unmindful of the fact that the Govt. itself considered the recommendation of the 4 th Pay Commission in respect of TJM with the distinction of making the effective date differently. The leaned single Judge has also held that the petitioners have failed to discharge their burden to establish that they and for that matter the employees of TJM and their counterparts in other PSUs belonged to same class and that the employees of TJM have been subjected to hostile discrimination for non-payment of revised pay scale w.e.f.1.1.1996 or DA, CAS, HRA and CA to them.

29 51. The petitioners-appellants have clearly demonstrated that they have been discriminated in the matter of granting the said benefits. They have also demonstrated that they stand on equal footing like that of other PSUs. It was never the contention of the respondents that the petitioners are a class apart and cannot be equated with that of the other PSUs. Their plea before the amendment of the writ petition and after the amendment, has been noted above, from which it cannot be said that the petitioners failed to discharge their burden relating to their claim of discrimination in the matter of pay and allowances. 52. The learned single Judge while shifting the burden to the petitioners to prove that the payment of revised pay scales and other allowances would be available from the income /profit generated by operating the manufacturing units of TJM, failed to take note of the fact that in respect of other PSUs, it is the State Govt. which took the burden to provide additional fund required for the said benefits. If the TJM is a loss incurring unit, as has been held by the Apex Court in Haryana State Minor Irrigation (supra), it is the bounden duty of the State Govt. to take remedial measures and the same cannot be a ground to deny the claim of revision of pay scales. 53. The petitioners having clearly demonstrated that if not all, many PSUs are running at a loss and the Govt. has implemented the recommendation of the 4 th pay Commission

30 by providing revised pay scales to their employees and other allowances, the learned single Judge ought to have considered that aspect of the matter instead of singling out the petitioners and for that matter the employees of TJM, shifting the burden to them to prove that they are at par with their counterparts in other organisations. The fact of the matter is that the petitioners clearly demonstrated the disparity in the matter of revision of pay and allowances, which the respondents tried to defend with their shifting pleas in the original counter affidavit and the subsequent affidavits filed after the amendment of the writ petition. 54. For all the aforesaid reasons, we are of the considered opinion that writ appeal and for that matter the writ petition deserves to be allowed and consequently we set aside and quash the impugned judgement and order dated 28.10.2003 passed by the learned single Judge in Civil Rule No. 139/1997. As a consequence, direction is issued to the respondents to treat the petitioners and for that matter the officers and employees of the TJM at par with their counterparts in other 32 organisations, entitling them to the revised pay scales w.e.f. 01.01.1996 and other allowances, such as, HRA, CA, CAS and DA etc. 55. The writ appeal is allowed and consequently, the writ petition also stand allowed, without however, any order as to costs. JUDGE JUDGE Sukhamay