OD-5
WPO/160/2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
[Via Video Conference]
NUPUR SARKAR AND ORS.
Versus
THE BOARD OF TRUSTEES FOR THE SYAMA PRASAD MOOKERJEE PORT,
KOLKATA AND ORS.
BEFORE:
The Hon'ble JUSTICE RAJASEKHAR MANTHA
Date : 6th April, 2021.
Appearance:
Mr.Soumya Majumder, Adv.
Mr.Mainak Ganguly, Adv.
..for the petitioners.
Mr.Jaydip Kar, Sr. Adv.
Mr.Somnath Bose, Adv.
..for respondent no.1
Mr.Ashok Kr. Chakraborty, Adv.
Mr.Sunil Singhania, Adv.
..for respondent no.2 The Court : The writ petitioners are Class-1 officers of the Kolkata Port Trust. Some time in the year 2010, the Central Government, Ministry of Shipping of India had required Major Port Trusts in the country to implement revised pay scales consequent upon standardizing, bunching, re-bunching and stepping up pay scales.
The aforesaid measures were aimed at maintaining a difference in pay and allowances between persons of junior post and higher posts and to ensure compliance of Fundamental Rule 22.
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Pursuant to such communication from the Central Government, the KoPT re-organized, re-bunched and stepped-up pay scales of Group-C and Class-1 Officers. The aforesaid benefits of the re-bunching and stepping-up pay were being enjoyed by the employees of KoPT since the year 2014.
Some time in the year 2019, the Central Government found that the Kolkata Port Trust had committed an error in the said stepping-up of pay to its employees. The Central Government was of the view that its circular of the year 2010 was misinterpreted by the KoPT.
The Central Government thereafter directed the Kolkata Port Trust to not only to stop the benefits of re-bunching and stepping up but also called upon the Port Trust to recover the same.
Prior thereto in the year 2016, re-bunching benefits also deemed illegal by the Central Government and KoPT was required to recover the same and benefits were stopped. The Kolkata Port Trust commenced compliance with the directives of the Central Government.
WP No. 1128 of 2016 (Dr. Aminul Islam Khan & ors. versus Board of Trustees for the Port of Kolkata & Ors.), was filed by the beneficiaries of the re- bunching. The petitioners therein contending that the re-bunching was correct and the recovery and stoppage of benefits was illegal.
By interim orders passed in the said writ petition, Co-ordinate Benches including this Court had restrained the Port Trust from effecting recovery or withdrawal of the bunching benefits. By a judgment in order dated 13th March, 2020 a Co-ordinate Bench upheld the contention in WP No.1128 of 2016. The 3 stand of the Central Government was set aside and the decision of the Port Trust as regards, re-bunching was upheld.
The writ petitioners are the beneficiaries of the step-up pay. They contend that the step-up pay is essentially a part and parcel and a consequence of the re- organization of pay and the benefits given to the other employees.
The Port Trust, in June 2020, has stopped the additional benefits of step- up and commenced recovery of the step up benefits already received by the petitioners, from 2014 to June 2020. The writ petition was filed in March, 2021. There is a prayer for interference by way of interim order against recovery of benefits being enjoyed by them since 2014 and also orders restraining the Port Trust from stopping the step-up benefits.
Mr. Jaidip Kar, learned Senior Advocate appearing for the Kolkata Port Trust submits that what is sought to be recovered is not the entire step-up benefit. The benefits granted to the petitioners by the Port Trust was far outside the scope of a regular and acceptable step-up benefit and hence, interim orders at this stage are not called for.
Having heard Counsel for the parties, this Court is of the view that the petitioners cannot ipso facto seeking the benefits of the decision of the judgment dated 16. 09. 2020 (supra). The petitioners do not appear as persons similarly situated, to those in WP No. 1128 of 2016. Even if it is accepted, for the sake of argument that the step-up benefit is part of the same series of the decisions as the re-bunching and re-organizing, there is delay on the part of the petitioners in seeking relief. The cause of action of the petitioners arose in the year 2019. They 4 only made a representation to the Port Trust thereafter. Nothing prevented them in approaching Court in the year 2019.
However, for the purpose of interim order, a prima facie case has been made out by the petitioners, as regards the validity and propriety of the step-up benefit allowed by the Kolkata Port Trust since 2014. The propriety of the decision of the KoPT and interpretation to the contrary of the Central Government will have to be tested only after receiving affidavits.
As for balance of convenience this Court finds that the Port Trust has been granting the benefit of step-up to the petitioners (in excess or otherwise) since the year 2014. Indeed it would be unfair to effect recovery of such amounts in the year 2020. The said step-up benefit has admittedly been stopped since June 2020.
Stoppage of the benefit having been already effected since June 2020, cannot be interfered with at the interim stage except to direct that the same shall abide by the final result of the writ petition. In so far as the recovery of the amounts being effected, there shall be an interim order of stay against the same with immediate effect. The Kolkata Port Trust shall not make any further recovery from the pay and allowance of the petitioners towards the alleged improper and illegal step-up benefit granted to the petitioners on the condition that the Port Trust shall be entitled to effect all and any recovery of the said benefit in the event the Port Trust and Central Government succeed in the writ petition.
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Mr. Majumder submits that some of the petitioners are pensioners. The aforesaid interim order against recovery shall also cover the pensioners on a similar undertaking. This Court is conscious of the decision of the Supreme Court in the case of State of Punjab Vs Rafiq Masih, reported in (2015) 4 SCC 334 in this regard. The said recovery from pensioners in the context of the aforesaid decision and the subsequent decisions of the Supreme Court, shall be addressed separately at the time of final decision. It is made clear that in the event the petitioners succeed, the step-up benefit that had been stopped since 2020 and recovery thereof, shall carry interest at the rate of nine percent (9%) per annum.
Let affidavit-in-opposition be filed by Port Trust within a period of six weeks from date; reply thereto, if any, may be filed within two weeks thereafter.
Liberty to mention after completion of pleadings.
(RAJASEKHAR MANTHA, J.) D.Ghosh