Nupur Sarkar And Ors vs The Board Of Trustees For The Syama ...
2021 Latest Caselaw 346 Cal/2

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.

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

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

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.

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