Judgment:
ORDER
SHEET WP NO.1654 OF2010IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE BHOLANATH RAY & ORS.Versus UNION OF INDIA & ORS BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 20th December, 2016.
Appearance : Mr.Partha Sarathi Bhattacharya, Sr.Adv.Ms.Indrani Chatterjee, Mr.Parvej Anam, Advs., for the petitioneRs.Mr.Kishore Dutta, Sr.Adv., Mr.Ashok Kumar Jena, Adv., for the respondent.
Mr.B.Sinha Roy, Mr.Nripendra Nath Mondal, Advs., for the Union of India.
The Court : A section of the retired employees of Kolkata Port Trust complain that the Central Government is yet to revise their pays in accordance with two notifications issued.
The learned Senior Advocate appearing on behalf of the writ petitioners refers to the initial revision of pay scale.
He submits that, by a subsequent decision dated March 19, 1996 the initial revision was set aside.
The decision dated March 19, 1996 was assailed by way of several writ petitions.
Ultimately, by an order dated April 6, 2011 passed by the Hon’ble Division Bench, the authorities hearing the were writ directed petitioners to take therein a fresh and decision after taking after into consideration their grievances for the purpose of fixation of pay scale.
He submits that, such exercise has not been done till date.
The learned Senior Advocate for the petitioners rely upon a decision in the case of Abid Hussain & ORS.versus Union of India & Ors., reported in AIR1987SC820and submits that, the benefits available to the employees should be extended to the retired employees also for the same period of time.
He relies upon a decision in the case of Tukaram Kana Joshi & ORS.versus Maharashtra Industrial Development Corporation & Ors., reported in 2013 (1) SCC353and submits that, delay and laches by themselves do not defeat the right of a writ petition.
He relies upon a decision in the case of Vimla Sharma versus State of Uttar Pradesh, reported in 1990 (Supp) SCC770for the same proposition.
The learned Senior Advocate appearing for the Kolkata Port Trust submits that, his client is the implementing authority.
The decision of pay fixation is to be taken by the Central Government.
He submits that, the writ petitioners have come after retirement and the order of the Hon’ble Division Bench is limited to the writ petitioners in those matteRs.The learned Advocate appearing for the Union of India submits that, the decision in terms of the order dated April 6, 2011 has not been taken since the writ petitioners did not make their representation to such effect.
He submits that, the present writ petitioners have not made any representation.
He further submits that, in the event the representation is made, the same will be considered by the appropriate authority in accordance with law.
I have considered the rival contentions of the parties and the materials made available on record.
Apparently, the authorities had decided to fix the pay of a section of the employees of Kolkata Port Trust.
The initial decision was superceded by a decision dated March 19, 1996.
The decision dated March 19, 1996 was assailed in several writ petitions.
The initial order of one of such writ petitions is dated August 4, 1998.
Subsequently, a number of writ petitions were filed.
Ultimately, by an order dated April 6, 2011 the writ petition challenging the decision dated March 19, 2016 was disposed of.
The relevant portion of the order dated April 6, 2011 is as follows : “We merely modify the judgment and order of the learned Trial Judge to the effect that the decision taken by the recommendation petitioner is for set Government fixation aside of but, up-setting pay we scale the of direct the the Government, if so desire, to take fresh decision upon hearing the writ petitioner/respondent and taking into consideration of their grievance.
This exercise shall be completed within a period of three months from the date of communication of this order”.
Admittedly, the present writ petitioners were not parties in the earlier proceedings.
It is also a matter of record that the Central Government has not taken any decision on the pay fixation in terms of the direction contained in the order dated April 6, 2011 passed by the Hon’ble Division Bench.
The (supra) writ petitioners contemplates a are retired situation employees.
where service Abid Hussain benefits made available to the existing employees for a given period should be extended in the same manner to the employees similarly situated who have retired from service.
Therefore, following the ratio of Abid Hussain (supra).in the event of pay is fixed by the authorities for the relevant period the same would govern the writ petitioneRs.The question of the writ petitioners having retired from service will not stand in the way of the writ petitioners getting the benefit thereof.
Tukaram Kana Joshi & ORS.(supra) and Vimla Sharma (supra) are of the view that, delay and laches in filing the writ petition by itself are not impediments in the grant of relief in an appropriate case.
The relief under article 226 of the Constitution of India is a discretionary relief.
Such discretion is depended on the facts and circumstances of each case.
There can be mitigating factORS.continuity of cause of action and others which may prompt the Court not to refuse to entertain the writ petition solely on the ground of delay and laches.
In the present case the fate of the writ petitioners are yet to be decided.
Moreover, the order of the Division Bench directing the authorities to decide on the pay fixation is dated April 6, 2011 and the writ petition was filed in 2010.
Therefore, the writ petitioners were before the Court at a point of time when the authorities were yet to decide on the pay fixation and the Court was yet to pronounce its final verdict on the pay fixation.
Viewed from such perspective, it cannot be said that the writ petitioners are guilty of delay and laches.
Furthermore, in the event the writ petitioners are denied the relief as sought for herein, it would discrimination as tantamount against to the embarking writ upon petitioneRs.an In active such eventuality, a person similarly situated and circumstanced as that of the petitioners would receive benefits of pay fixation while the petitioners will be left in the lurch.
Such a couRs.of action should be avoided.
In my view, the direction contained in the order dated April 6, 2011 passed by the Hon’ble Division Bench does not warrant further representation to be made by any of the petitioners therein, for the authorities to decide on the pay fixation.
All that is required to be done is that, the authorities were to issue notices upon such writ petitioners and to give an opportunity of hearing to them to decide the issue.
The authorities have not done so.
The authorities are yet to decide on the issue.
In such circumstances, the appropriate authority, in seisin of deciding the pay fixation, will act strictly in terms of the order dated April 6, 2011.
It will issue notices of hearing to the writ petitioners covered by the order dated April 6, 2011 within a period of four weeks from date.
Such authorities will also afford a reasonable opportunity of hearing to the writ petitioners herein.
In such hearing, the writ petitioners are at liberty to be represented by their authorised representatives.
The authorities will decide affording an on the pay fixation opportunity of in accordance hearing to the with writ law after petitioners herein.
It is expected that, the authorities will decide on the pay fixation within a period of six weeks from the date conclusion of the hearing.
WP No.1654 of 2010 is disposed of.
No order as to costs.
(DEBANGSU BASAK, J.) sd/ of