CWP No. 18512 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CWP No. 18512 of 2010 Date of decision: 03.10.2011 HMT Officers Association, Pinjore through its President...... Petitioner Versus HMT Limited and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Ram Kumar Malik, Sr. Advocate with Mr. Rajat Mor, Advocate for the petitioner Mr. R K Chhibber, Senior Advocate with Ms Harpriya Khaneka, Advocate for respondent No. 4 Mr. Manish Jain, Advocate for respondent No. 5 -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. The HMT officers' Association has filed the present writ petition seeking direction to the respondents to revise the pay scales of the Officers' of PS cadre employees with effect from 01.01.1997 and 01.01.2007. It was contended by the learned counsel for the petitioner that the pay scales of the employees of HMT Limited including PS Cadre CWP No. 18512 of 2010 2 employees were revised w.e.f. 01.01.1992. The next revision of the pay scales was due w.e.f. 01.01.1997 but no pay scales were revised. Thereafter, further revision of pay scale w.e.f. 01.01.2007 became due but no revision in the pay scales has been made. Vide letter dated 17.10.2008, even the Chairman-cum-Managing Director of the HMT Limited had requested the Government of India for implementation of 1997 pay revision package in HMT Limited and its subsidiaries companies. However, the Government, vide letter dated 13.01.2009, rejected the aforesaid request on the ground that the financial position of the HMT Limited was not sound. It was further contended that due to the non revision of the pay scales, the employees of the feeder cadre are getting more emoluments in comparison to the employees holding higher posts. PS cadre employees includes Officers and Supervisory staff. The post of PS Cadre II is also filled up by way of promotion from Worker Grade Cadre which is a feeder post of PS Grade II. The Worker categories are entitled to more benefits in comparison to the PS cadre category. The worker categories have open ended grades with no stagnation. They are also entitled to percentage based increments. They are entitled to regular increments. The result of the above said benefits admissible to the Workman categories is that now their emoluments are more in comparison to the PS cadre categories. Reply has been filed by respondents No. 1 to 4 and respondent No. 5. The facts as narrated above are admitted. It is not denied that an anomaly has cropped up by which the workers are drawing more pay than the Officers and the supervisors and that the Officers and Supervisors have been stagnating at the maximum of their pay scales without any stagnation increment. The only reason assigned by the respondents for not revising the CWP No. 18512 of 2010 3 pay scales of the petitioner w.e.f. 01.01.1997 and w.e.f. 01.01.2007 is the poor financial position of the Company. Heard. The respondent No. 5-Government of India in para 8(vii, viii) expressed its difficulty as under:- “8 (vii-viii) That in reply to paras 8(vii) & (viii), it is submitted that Implementation of the 1997 pay revision cannot be done on the basis of Govt. budgetary support as it has been clearly mentioned in the DPE guidelines that there would be no Govt. subvention for implementation of 1997 pay revision. It is further submitted that the said letter dated 13.01.2009 was not an order but a clarification with respect to Government's policy guidelines for the implementation of 1997 pay revision. This can be implemented in the Company if it is in a position to raise resources to bear the extra cost on account of such pay revision. Even by quashing the impugned letter, implementation of 1997 pay revision would not be feasible as such implementation cannot be done through Govt. Budgetary support. Insofar as removal of the anomaly is concerned, it is submitted that the anomaly can be removed if the 1997 pay revision is implemented by the Company by fulfilling the guidelines issued by the DPE vide DPE OM #2(49)/ 98-DPE (WC) dated 25.06.1999.” However, in the same breath, respondent No. 5 - Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Heavy Industries, New Delhi, accepted the anomaly that has cropped up iin para 4 and 5 of the reply as under:- “4-5 That in reply to paras 4 and 5, it is submitted CWP No. 18512 of 2010 4 that the HMT Group of Companies has been continuing with 1992 pay revision. While the officers and supervisors are drawing their pay in the revised pay scale of 1992 pay revision, the workers have been drawing their pay in an open ended pay structure with regular increments on percentage basis. Most of the officers and supervisors have reached the maximum of their pay scales and are stagnating. No stagnation increment is also granted to them. As a result an anomaly has cropped up by which the workers are drawing more pay than the officers and supervisors in some cases. Similar view has been expressed in reply to ground 8 (v-vi) which reads:- “8(v-vi) That insofar as para 8(v) and (vi) are concerned, it is submitted that as already stated in the earlier paras the anomaly in the pay of the officers/supervisors and the workers in HMT Limited has cropped up due to the fact that while the workers are getting regular increment by certain percentage in an open ended pay structure, the officers and supervisors have been stagnating at the maximum of other pay scales without any stagnation increment The judgement as relied upon by the petitioners is not at all attracted to the facts of the case in hand and is distinguishable.” Besides, respondents No. 1 to 4 too in their written statement, have admitted as under: “It is not disputed that some of the workers are getting more benefits of basic wages than some of the officers because in the case of workers, they continue to get annual increments right up to the date of their CWP No. 18512 of 2010 5 retirement, whereas, the officers because of structured/close ended grades as is clear from the perusal of Annexure R1/1 reproduced in para 3 above, do not get any increment after they reach the highest basic pay of the above referred revised pay scale.” Thus, the respondents have in no uncertain terms accepted the fact that an anomaly has cropped up vide which most of the workers are drawing more pay than the officers, creating frustration, demoralisation amongst the officer class which has reduced the efficiency and spirit to work with dedication and to the best of their ability. In view of the above this Court is of the considered view that the said defence taken by the respondent-company of poor financial position has no merit. Hon'ble the Supreme Court in the case of Haryana State Minor Irrigation Tubewell Corporation and others v. G S Uppal and others (Civil appeal No. 9244 of 2003, decided on 16.04.2008), wherein, a similar defence of poor financial constrain was taken up for refusing revision of pay scales, was pleased to hold:- “24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or CWP No. 18512 of 2010 6 repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgement of the Division Bench upholding the judgement and order of the learned Single Judge, CWP No. 18512 of 2010 7 we are of the view that the impugned judgement warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.” Observations of the Division Bench of this Court in the case of Sunder Lal Jain and others v. State of Haryana and others 1995(1) SLR 215 are also relevant which read:- “.......It is totally unreasonable to place a junior post in the same pay scale. A Division Bench of this Court in Har Kishan and another v. State of Punjab and another 1987 (5) SLR 539 held that 'where a lower post is equated with regard to pay scale with the promotional post, it was a clear anomaly and was highly irrational”. Another Division Bench of this Court in P.L. Goyal v. State of Haryana and Ors 1990(5) SLR 108, held that “reducing the pay scale on promotion would be violative of Articles 14 and 16 of the Constitution of India'. In Civil Writ Petition 10534 of 1991 (Mani Ram and others v. State of Haryana and ors.) decided by me on September 20,1993, it was held that 'it was legitimate aspiration of every citizen to be better placed, both, in status and pay on promotion and if this is to be frustrated, it will obviously damper the growth of the main which is an natural desire of everyone.” If there is no increase in the emoluments of a citizen on his promotion, no one would ever work with zeal and dedication nor would be ever like to acquire better experience and more qualifications. This would result into complete stagnation. The action of the respondents in equating the promotional posts with that of inferior posts in the matter of pay scale would obviously CWP No. 18512 of 2010 8 result in restricting the natural aspiration of human being to go higher and higher in his service graph and would, thus be wholly arbitrary.” It is an admitted position that the HMT Limited is a Central Public Enterprises under the administrative control of Ministry of Heavy Industries and Public Enterprises, Department of Heavy Industries, New Delhi. The employees of certain Public Sector Undertakings which are running in losses, have been granted the revised pay scales. The petitioner has quoted One such instance of 'Instrumentation Limited Kota (Rajasthan)'. The respondents have not denied the said fact in their written statement. Thus, the poor financial position of the Company cannot be made a ground to discriminate the petitioners viz-a-viz the other workers resulting in a situation where workers are getting more than the officers. It was incumbent upon the Government to find a solution to the problem. In view of the above discussion, the present petition is allowed and the respondents are directed to revise the pay scales of the Officers' of PS cadre employees as applicable to them; with a further direction that the arrears thereof shall also be paid to them within a period of six months from today. (Nirmaljit Kaur) Judge 03.10.2011 mohan