Desu, Karamchari Adhikar ... vs Municipal Corporation Of Delhi ...
2001 Latest Caselaw 1566 Del

JUDGMENT

Mukundakam Sharma, J.

1. By filing this writ petition, the petitioners are ventilating their grievances in rspect of their pay scales contendingt, iner alia, that although the said pay scales have been revised with effect from 1st January, 1978, the arrears have been apid to the petitiens only with effect from 1st July, 1981. The further grievance of the petitoner is that although Additional Dearness Allowance is to be paid to the petitioners, the same is subject to the condition that the element of Additional Dearness Allowance merged in the pay at 320 points of price index as shown in colum 4 of the Annexure IV of the order of the respondents dated 22nd June, 1982 would be excluded from the pay. In the writ petition the petitoners, therefore have prayed that he arrears for the period from 1st January, 1978 to st July, 1981 due to revision of pay scales with effect from 1st January, 1978 be paid to them and proper and appropriate Dearness Allowance/Additional Dearness Allowance should be paid to the emploees of the Delhi Vidyut Board as the present payment in respect of the same isnot orde.r In the petition the petitioners have also claimed payment of the interim relief as announced bythe Government of India pending 4th Pay Commission.

2. Pending recommendations of the 3rd Pay Commission, the Committee under the chairmanship of T.Shiva shankaran was constituted by the Government of India vide notification dated 14th january, 1971 to examine and report the demand of Delhi Electric Supply Undertaking Engineers for grant of higher pay scales ocnsdiering the nature of duties and higer rsik nd responsibilities as copared to their cunter prats in the negbouring States. The cCommittee recommended hiher pay scales and on the basis of the aforesaid recommendations of the said Committee, the pay scales of the Delhi Electric Supply Undertaking Engineers were revised with effect from 1st April, 1972, which were later on extended to all other employees/officers with effect from 1st April, 1971. The pay scales of hte said employees of the respondent/Delhi Electric Supply Undertaking were further revised with effect from 1st january, 1978 by an order issued byhe respondents on 22nd June 1982. A copy of the said order is placed on record as 'Elclosure-I. The said order was passed by the Commissioner, Municipal Corporation of Delhi, exercising the powers of the corporation udner Section 490(2)(b) of the Delhi Municipal Corporation Act, 1957. It is stated in the said order that in exercise of hte aforesaid powers, the Commissioner has appproved the scale of pay of the employees/officers tobe revised with effect from 1st January, 1978. So far Group 'C' and 'D' employees are concerned, the revision of pay scale was shown in 'Annexure-I' to the said document whereas for the Engineer/Technical Officers, the same was shown in 'Annexure-II' and for non-technical officers, it was shown in 'Annexure-III'. It was further stated in the said office order that Dearness Allowance would be paid to the officer/employees at the rates specified by the Central Government from time to time subject to the condition that the element of Additional Dearness Allowance merged in the pay at 320 points of price index as shown in column 4 of the 'Annexure-IV' would be excluded from pay for the purpose of payment of D.A../A.D.A. It was also sated that the actual benefit of revision of pay scales would be given from 1st July, 1981 and no arrears for he period from 1st January, 1978 to 30th June, 1981 would be paid. It was also stated that the option to elect the existing scale or 3rd Pay Commission scale or the revised scale would be exercised by the employees in the prescribed fromat within two months of the date of issue of the said office order.

3. It is an admitted position that all the employees/officers of the Delhi Electric Supply Undertaking exercised their option for grant of revised scale pursuant to which the aforesaid scale was granted to them along with all other benefits as stated in the said order dated 22nd June, 1982. After obtaining the said relief in terms of the said order, the present petition was filed in this Court in the month of October, 1985 seeking for the reliefs as stated at the beginning of this narration.

4. Counsel appearing for the respondents on the basis thereof took up a preliinary objection that this writ petition is not maintainable on the ground of delay and laches. According to the counsel for the respondents, there is a delay of more than three years in approaching this Court and that there is no justified explanation given by the petitoners for the unusual delay and, therefore, the petition is liable to be dismissed on the said count alone. It was also submitted that he contentions raised in the present petition give rise to disputed questions of fact which cannot be decided in this writ petition and, therefore, on that count also, the writ petition is not maintainable in this Court.

5. Counsel appearing for the petitioners, however, submitted that there is no delay in approaching this Court for immediately after the aforesaid order was publihed, the petitioners, submitted representations and waited for its response and since no effective steps were taken by the respondents, this writ petition was filed immediately thereafter. It was also contended that the questions raised in this petition are all matters of documents which are placed on record and, therefore, the mater could be effectively decided on the basis of te said records. Counsel appearing for the petitioners further submitted that lal the employees of the respondents ere goerned at pa, in respect of pay scales nad all other allowances, like Dearness Allowances, Additional Dearness Allowanfce, HRA, CCA, etc., with theCentrla government employees and the recommendations of the First and Second Pay Commissions are applicable on Delhi Electric Supply undertaking employees and that recommendations of all the pay Commissions are still applicable, except in the matter of pay scales. Itwas also stated by the counsel appearing for the petitioners that between the two pay scales, 3rd Pay Commissionpay scales and the pay scales revissed by the respondents, the only difference is that in the 3rd pay Commission pay scales Additional Dearness Allowance has bene merged at 200 point index, as on 1st January, 1973 and in respect of respondents pay scale Additional Dearness Allowance ha sbene merged at 320 point price index as on 1st January ,1978 and, therefore there is no variation in between the two pay scales nad as such the action of the respondents to exclue the merged element of Drearness Allowance/Additional Dearness Allowance from the Basic Pay as was made available to thw Central Government employees has created anomalies/discrimination resulting in adverse effect on the salary of its employees. It was also submitted that the pay scales having been revised with effec tfrom 1st January, 1978, there isn o justification to pay the arrears and giving effect to the said pay scale on y with effect from 1st July, 1981 and thereby depriving the petitioners from getting arrears in respect of the period from 1st January, 1978 to 30th June, 1981. It was also submitted that since the employees of the respondents were governed at par with the Central Government employees in respect to pay scales and other allowances, the interim relief as announced by the Governmnet of India pending Fourth Pay Commission couldnot have been denied to the petitioners.

6. In support of his contention, the learned cousnel appearing for the petitioners drew my attention tothe contents of 'Annexure-IV' at page 39 and Table 1 of the Fitment and Pay Fixation Tables appearing at page 115 of the paper book. 'Annexure-IV' inter alia indicates also the condition regardign paymnet of Dearness Allowance after the pay revision. It is stated that the Dearness Allowances would be paid to the employees at the rates specified by theCentral Government, from time to time, subject to the condition that the element of Additinal Dearness Allowance merged in thepay at 320 point of price index as approximated and shown in colukmn 4 of the table would be excluded form the pay for the purposes of further payment of Dearness Allowance tothe employees. Comparing the contents of the said Annexures, counsel for the petitioners submitted that the scale of pay of an employee working in the existing scale of Rs. 120-150 was revised to Rs. 410-580 but in his case the lement of Dearness Allowance which was directed to be excluded from pay of further payment of Dearness Allowance was Rs. 155/- and, therefore a person whose Basic Pay as on 1st January, 1978 was at RS. 120/-, he would be losing an amount of Rs. 147.60 when he is placed in the resvised pay scale and, therefore, anomalies arise in the aforesaid manner. He submitted that the same is the case when the Basis Pay of an employee as on 1st January, 1978 was up to Rs. 130/- in the existing scale. In support of his contention the counsel also relied upon the decisions of the Supreme Court in The Bata Shoe Co., (P) Ltd. v. D.N. Ganguly and Ors. and also the decisions of the SupremeCourt in Surinder Kumar Trehan v. Union of Indiak and Ors. , Employees's State Insurance Corpn. and Ors. v. Gunvantri Umedrai Bhat and Ors. reported in 1995 Supreme Court Cases (L&S) 903 andOffiers of F.C.I. v. F.C.I. and Ors. (C.W.P. No. 17059/1984). Relying on the said decions, it was submitted by the counsel appering for the petitioners thatthe Basis Pay of an i ndividual employee can be reduced only as a penalty udner FR 29 and not otherwise. It was also submitted that the expression 'pay' is defied in FR 9(21)(a)(i). It was submitted that the impugned actions on the part of the respondents amounts to reduction of pay which is not permissible.

7. Counsel appearing for the respondents, however, submitted that all the aforesaid allegations are baseless. It was submitted by him that the Management (DESU/DVB) negotiated and signed aMemorandum of Settlemenet on19th April, 1982 with the recognise Union/Association for revisions of wages on the partern of Punjab State Electricity Board which was the demand at the relevant point of time of all the Unions of the Delhi Electric Supply Undrtaking. It was submitted that the settlement was arrived at after negotiation and the same is signed byt he representatives of the recognished Union and the General Manager of the Delhi Vidyut Board. In the said settlement, it is specificaly stated that there would be revisions of pay scales with effect from 1st January, 1978 and that arears would be payable from 1st July 1981 only. In order to buttress his arguments, counsel drew my attention to the contents of the aforesaid Memorandum of Settlement which is placed on the records of the case. It was also submitted by him that since the aforesaid order dated 22nd June, 1982 was issued pursuant to an in terms of the aforesaid terms of Memorandum of Settlement, there cannot be any illegality or arbitratiness in the same. It was also submitted by him that options were given to all the employees/officers of the Delhi Electric Supply Undertaking and that all of them including the nine petitioners opted for availing of the revised pay scales in the year 1982 itself and, therefore, after a lapse of three years they cannot turn bakc and say that he same is not acceptable to them. He was also seeking to invoke the principles of waiver and estoppel against the petitioners.

8. In the context fo the aforesaid submissions of the counsel appearing for the parties, let me discuss the issues that arise for my considration.

9. The Delhi Electric Supply Undertaking/Delhi Vidyut Board is an independent organisation having it own legal entity and the employees/officers are governed by its rules and regulations. They arenot government employees. The employees of the Delhi Electric Suplly Undertaking/Delhi Vidyut Board are also not covered automatically by the Rules, Regulations and recommendations byt he various Committees including Pay Commissions unless the same are adopted by Delhi Electric Supply Undertaking/Delhi Vidyut Board separately and independently. The pay scales of the employees of Delhi Electric Supply Undertaking/Delhi Vidyut Board are prescribed and governed by their own agreements and Committee Reports. The aforesaid position is also corroborated by the very fact that the Shiv Shankar Commission Report prescribed a pay scale which was accepted by the respondents and the petitioners also accepted the aforesaid position. There was also a demand from all the employees of the Delhi Electric Undertaking and their Unions for revising the wages of the employees/officers on the pattern of the Punjab State Electricity Board.

10. In view of the aforesaid demand of the employees of the Delhi Electric Supply Undertaking/Delhi Vidyut Board the Government of India, Minsistry of Energy constituted a Committee to go into the aforesadi specific demands. Subsequent therto the recognised Unions and the management arrived at a settlement in respect of the aforesadi demands. A memorandum of settlement between the Management and the registered and recognised Unions was signed on 19.4.1982. In the said settlement it was aggreeed to that dearness allowance shall be paid to the employees at rates specified by the Central Government from time to time subjct to conditions stipulated in Appendix II. In terms of and in accordance with the aforesaid settlement Pay Revision order was issued by the respondent on 22.6.1982 wherein the following was provided:-

"Dearness allowance shall be payable to Offices/Employees at rates specified by the Central Govermntk from time to time subject to the condition that the element of additional dearness allowance merged in the pay at 320 points of price index as shown in the column 4 of the Annexure IV shall be excluded from the pay for purposes of payment of DA/ADA."

Even subsequent thereto the Government of India consituted a Committee with Shri K.P. Rao, as the Chairman and three members one of which was Shri P.K. Kumaramangalam, who was the Chairman of the Joint Action Committee of DESU employees. The following were the terms of reference:-

(a) To examine the issue of payment of DA etc., in terms of the pay revision order of 1982 and make an appropriate recommendation;

(b) To examine and recommend appropriate pay scales for DESU employees; and

(c) To make recommendations relating to the date of application of revised pay scales, staffing etc.

The Committee enquired into the same and consulted the employees of hte Delhi Electric Supply Undertaking. During the said discussins, it was conceded by the employees of the Delhi Electric Supply Undertaking that there shall not be payment of D.A. on D.A. It also trnaspires from the contens of the report placed on record that various alternatives were consiered by the Committee and it was finally decied that the method of calcualation of DA/ADA was in order. Threrfore, the Pay Revision Order dated 22.6.1982 was found to be in order. On t he issue of DA the Committee held as follows:

"On the first issue of reguation of DA with reference to the Pay Revision Orde,r the Committee after examining all aspects came to the conclusion that the payment has bene correctly regulated by DESU. The same applies to ad hoc DA also."

11. Therefore after looking into the entire mater and due deliberations and all background materials, the Committee concluded that the aforesaid method of calculation of Dearness Allowance/Additional Dearness Allowance is in order In the said document, reference is also made to the Memorandum of Settlement dated 19th April 1982, singned between the General Manager, Delhi Electric Supply Undertaking and Generla Secretary of the Delhi Electric Supply Undertaking Workers Union.

12. The aforesaid narration makes it crystal clear that a settlement was arrived at between the Union and the Management in respect of the issue with regard to payment of DA/ADA. In tersm of the aforesaid settlement, the Government took a decision and an order was passed and even thereafter a Committee was constituted to go into all the afoesaid aspects as to whether o rnot the said decision is justified. After minute scrutiny of the same, it was found that the said decision is justified and should be adhered to. The matter having been examined at different stages by different authority/committee including the representatives of the employees/officers and the Management and they having found the decion valid, it cannot be said that there is any anomaly in the same.

13. It is settled law hat so far the matter with regard to pay revision and pay fixation are concerne,d the smae is the primary fuction of the executive and not o fthe judicaiary. In this connection, reference may be made to the decision of the Supreme Court in Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. reported in 1993 Supp 91) Supreme Court Cases 153. In paragraph 12 thereof, the Supreme Court said that the equation of posts and detemination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts would not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. It was also held equation of posts and equation of salaries is a complex matter which is best lef tto an expert body unless there is cogent material non record to come to a firm conclusion that a grave error had crept in while fixing the pay scalefor given post and Court's interference is absolutely necessary to undo the injustice. Same principle should also apply to the issues raised in the present petition.

14. The petitioners were given an option pursuant to the order dated 22nd June, 1982. All the peitioners had exercised the option to avail of the benefit of the said revised pay scales. The benefits under the said order as stated above were examined and scrutinised at different levesl and thereafter it was found to be jstified. The petitioners also did not approach this Court till the year 1985. The petitioner No.1 hereinis an un-recognised and un-registered Union and only nine individual petitioners are before this Court. It thus appears that allthe recongised Unions and the membrs thereof are satisfied witht he aforesaid pay structure as also the benefits given therein. Inthe said order three options given to all the employees to elect the existing scale or 3rd Pay Commission scale or the revised scale. The petitioners out of the aforesaid three options accepted and exercised thri option in favor of the revised scale. In the said orde,r it was specifically mentioned that actual benefit of revision of scales would be given from 1st July, 1981. The petitionrs having accepted the aforesaid condition while exercisign their options are bound by the same for they ahd exercised thjeir option with open eyes and knew perfectly well as to what would be the effect thereof. The priciple of waiver nd estoppel shal also apply to the facts of the present case.

15. In the settlement arrived at between the representatives of the recongnised Union and the General Mangar of the Managemnet executed on 19th April 1982, it was specifically agreed that there would be revision of pay scales with effect from 1st January, 1978 by the arrers would be payable only from 1st July, 1981. The relevant Clause of the Memorandum of settlement is reproduced below:-

(1)(i) Category 'C' & 'D' Employees of the Undertaking (including the teachers) will be given the sales of pay as appended (Appendix I) to this ageement with effect from 1.1.1978 only. Appropriate and corresponding revision of the apy scales fo DESU employess not specifically covered by this Agreement will also be carried out. However, arrears will be payable from 1.7.1981 only".

16. The order of the respondents dated 22nd June 1982 in fact gives effect to the aforesaid settlement dated 19th Aprial 1982 and accordingly the claim of the petitioners for arrears earlier than 1st July 1981 is wholly misconceived. The claim now made is ex facie beyond the termsof settlement as incoporated in the Memorandum of Settlement and also beyond what is envisaged in the Report submitted by the High Powered Committee.

17. Counsel appering for the petitioners submitted that the aforesaid settlement was not arrived at with the concurrence of he Conciliation Officer and, therefore, cannot be said to be binding on the parties. IIt is ture that he said settlemtn was arrived at between the parities otherwise than it conculiation cas,e buy the said settlement was arrived at after negotiation by a recongised Union with the employer and at that stage when a reconginsed Union negotiates with the employer, the worekrs as individuals do not come into the picture. In the case of Herbertsons Ltd. v. The Workmen of Herbertsons Ltd. and Ors. reported in AIR 1977 Supreme Court 322, the Supreme Court in paragraph 18 held thus:-

When a recognnised union negotiates with an employer the workers as individuals do not come into the picture. It isnot nessary that each individual wroker should know the implicatins of the settlemetn since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement inthe best interets of labour. This would be the noraml rule. We cannot althogether rule out exceptional cases where there may be alleagations of mala fides, fraud or evn corruption or other inducements. Nothing of that kind has bene suggested agianst the President of the 3rd respondent in this case. That being the position, prima faice this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration."

In paragraph 21 thereof itwas held by the Supreme Court that the settlemnet has to be considered in the light of ht e conditions that were in foce at thetime of hte refernce and that it would not be correct to judge the settlement merely in the light of the award which was pending appeal before the Court. It was furher held that when negotiations take place which have to be encouraged particularly between labour and employer in hte interest of general peace and well-being, there is always given and taken and that the settlement has to be taken as a package deal and when labour has gained in the mater of wages and if there is some reduction in the mater of dearness allowance so are the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.

18. In my considered opinion, the ratio fo the aforesaid decision is squarely applicable to the facts and circumstances of the present cae. To the same effect is also the decision of the Supreme Court in the case of The K.C.P. Ltd. v. Presiding Officer and Ors. . Inthe said decision, the SupremeCourt referred to the decision in the Bata Shoes Co. Ltd. v. D.N. Ganglul, relied upon by the counsel for the petitioner and also the decision in Herbertsons, Ltd. (supra) and thereafter, the Supreme Court has held in paragraph 24 as follows:-

"In connection with the justness and fairneess of the settlement, it was onbserved that this has to be considered in the light of the conditions that were in foce at the time of the reference. When therefore, negotiations take place which have to be encoraged, pareticularly between labour and employer in the interst of industrail peace and well-binng, there is always give and take. The settlement has to be taken as a package deal nad when labour ahs gained in the matter of wages and if ther eis soem reductin in the mater of dearness allowance so far the award is cnnecrned, it cannot be said that the settlement as a whole is unfair and unsut. It was further obsrved that it is not possible to scan the settlement in bits and pieces and hold soem parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outwights all the ohter advantagers gained, the Court will be slow to hold a settlement as unfair and unjust. The settlemnt has to be accepted or rejected as a whole."

19. Inthe context of the aforesaid decisions of the Supreme Court, I may examine the decision of the respondents dated 22nd June, 1982. The same is the order issued by the Commiissioner, Municipal Corporation of Delhi in exericse of the powers udner Section 490(2)(b) of the D.M.C. Act, 1957 in which the pay scales of the employees and dearness Allowance and Additinal Dearness Allowance was announced. The benefit of he DearnessAllowance as per the imugned order dated 22nd June, 1982 has been admittedly paid nad there is no controversy in that regard. The issue of Dearness Allowances as announced by the said order is also in accordance with the terms of the Memorandum of Settlement dated 19th April 1982. I also cannot accept the contention fo the counsel for the petitioners that there was any reduction in pay or pay scale. Reliance on Fundamental Rules is misplaced. In the light of the aforesaid position and in the light of the aforesaid deicions of the Supreme Cout, it cannot be said that there is any illegality or arbitariness in grant of Dearness Allowance by the respondents in the aforesaid order dated 22nd June, 1982 whcih is in accordance with the terms of Memorandum of Settlement. The aforesaid aspect was also dealt with by the High Powered Committee and notified by the Ministry of Energy by Memorandum dated 10th December, 1986. In the said Committee, the employees were aslo represented and on the issue of Dearness Allowance, the Committe held as follows:-

"On the first issue of regulation of DA with reference to the pay revision order, the Committe after examining all aspects came to the conclusion that the payment has bene correctly regualted by DESU. The same applies to ad hoc DA also."

Therefore, there is no infirmity in the decision of the respondents in that regad also. With the aforesaid conclusions, I am left with only the issues of claim with regard to interim relief.

20. It should be an acceptable position hat the recommendations i the Pay Commission Report is not automiatically applicable to the employees of Delhi Electric Supply Undertaking/Delhi Vidyut Board as the said employees are not government employees. Their pay and scales are governed by their own agreement and Committee Reports and, therefore, the claim of interim relif on the baiss of the Central Government decision to make interim arragement await 4th Pay Commission Repot is misconceived. It could nt be disputed by the petitionrs thatthe employees of Delhi Elctric Supply Undertaking/Delhi Vidyut Board were granted interim relief with effect for 1st April 1986 in terms of the settlement dated 7th May, 1986 signed between the representatives ofthe Management nad recognised Union. The said amount grante in favor of t he employees was aslo disbursed in terms of the Memorandum of Settlement dated 7th May, 1986. In that view of the matter also, the calim of the petitionners of interim relief is unfounded.

21. In the light of the aforesaid discussions, none of the claims riased by the petitioners in the present writ petition has any basis. The same are held to be not justified in the facts and circumstances of the present case. There is therefore no merit in this petition and the petition is dismissed but without any costs.