Full Judgment Text
$~2 & 3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 04.10.2018
+ W.P.(C) 340/2011 & CM APPL. 634/2011
NDMC & ORS. ..... Petitioners
Through: Mr.Jagdeep Kr. Sharma, Standing
Counsel for Mr.Gyanendra Kumar,
Advocate.
versus
NDMC AUTO WORKSHOP EMPLOYEES ASSOCIATION
..... Respondent
Through: Mr.Ankur Chhibbar and Ms.Roshini
Chopra, Advocates.
3
+ W.P.(C) 2337/2013 & CM APPL. 4421/2013
NDMC THR DIRECTOR ..... Petitioner
Through: Mr.Jagdeep Kr. Sharma, Standing
Counsel for Mr.Gyanendra Kumar,
Advocate.
versus
M.P.DWIVEDI & ORS ..... Respondents
Through: Mr.Ankur Chhibbar and Ms.Roshini
Chopra, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K.CHAWLA
S.RAVINDRA BHAT, J.(ORAL)
1. The New Delhi Municipal Council (NDMC) in its writ petitions
challenges two orders of the Central Administrative Tribunal (CAT),
which had for almost identical reasons, directed benefit of pay parity
W.P.(C) Nos.340/2011 & 2337/2013
Page 1 of 8
to the applicants before it (who are the respondents before the Court)
with the employees working in erstwhile DESU/DVB, in its Auto
Workshop (in W.P.(C) No.340/2011) and draftsmen (in W.P.(C)
No.2337/2013) in the Electrical Department.
2. The brief facts necessary to decide these writ petitions are that
one Shiv Shankar Committee (S.S. Committee) was constituted to
recommend the appropriate pay scales to A.C. Operators as well as
other class of employees (in the cadre of draftsman etc.) having regard
to the counterparts in erstwhile DESU/DVB. The recommendations
led to resolution no . 154, to extend the benefit of pay and allowances
in terms of the report to the employees of DVB/DESU. Subsequent
resolution of 07.01.1974 extended the benefit to the employees
working in the electrical department w.e.f 01.04.1972. The pay scales
of employees in erstwhile department of NDMC, which was merged
with the NDMC establishment, were revised in the year 1986 w.e.f .
1978 however they were not at par with their counterparts in
DVB/DESU. By a resolution no.37, NDMC revised the pay scales
applicable to the drivers of the electricity department on the pattern of
DVB/DESU employees. By a resolution no.24 on 17.09.1982,
NDMC adopted the report of S.S. Committee in respect of workers of
Electricity and C & TO departments as well as ministerial staff. By
subsequent resolution (No.15 dated 17.01.1989) revision of pay scales
of Shift In-charge on the lines of DESU employees was also affected.
Subsequently, the posts of A.C. Operators and Air Conditioning
Mechanics were merged into Assistant A.C. Operator-cum-Mechanic
W.P.(C) Nos.340/2011 & 2337/2013
Page 2 of 8
(Air Conditioning) w.e.f 11.05.1994. The applicants in W.P.(C)
No.340/2011, who belonged to the Auto Workshop Division of
NDMC, approached the CAT complaining that pay parity was not
given and the applicants in WP(C) 2337/2013, who belonged to the
cadre of draftsmen (Junior Draftsmen, Senior Draftsmen and Head
Draftsmen) made identical complaints and approached the CAT.
3. Before the CAT, the applicants relied upon the previous
resolutions of NDMC which accorded the pay parity with various
classes of employees in other units/departments such as DVB/ DESU.
It is argued that once the applicants were directed to accord pay scales
recommended by S.S. Committee, which was with respect to
DESU/DVB employees, they were at complete pay parity and that
later disparity on account of denial of replacement of pay scales over
th
to the implementation of 6 Pay Commission was unwarranted and
arbitrary.
4. NDMC on the other hand, relied upon the directions in
Narendra Kumar & Anr. vs. Dharam Dutt & Anr., (1993) Supp. (3)
SCC 205 and contended that it was only Auto Workshop employees
of the DVB/DESU who are entitled to S.S. Committee’s
recommendations, which cannot be claimed by the other
departments/wings. The Tribunal in its earlier decision (which is
impugned by NDMC in W.P.(C) No.340/2011), allowed the
applications, on the basis of following reasoning :
“ 8. We have carefully considered the rival
contentions of the parties and perused the material on
W.P.(C) Nos.340/2011 & 2337/2013
Page 3 of 8
record. In our considered view when the Apex Court in
Narender Kumar (supra) has clearly ruled parity
between the Auto Workshop staff of NDMC with their
counterparts in Delhi Vidyut Board/DESU, it does not
lie within the jurisdiction of the administrative
authority to come to a conclusion different from it, by
stating that they are pitted differently in functional
requirements. It amounts to infiltrating into an area
occupied by judicial dicta, which cannot be
countenanced in law.
9. As we find that in an identical situation when in
the case of Mr.Beg the respondents have admitted to
have erroneously fixed his pay scale under the
S.S.Committee at par with counterparts in DVB/DESU
and what has been allowed is the revised pay scale, it
holds good for all the categories, which were subject
matter of the decision of the Apex Court and rather as a
model employer the revised pay sales should have been
suo motu granted by the respondents to the applicants.
However, the same has been withheld leading to
unnecessary litigation. In such view of the matter, this
erroneous grant of pay scale holds good for the set of
employees, i.e., applicants in the TAs and we have no
hesitation to hold that the respondents have deprived
applicants S.S.Committee’s pay scales, as revised in
case of their counterparts in DVB/DESU. The Apex
Court in Union of India v. Satyabarth Choudhry
(2010) 1 SCC (L&S) 475 held the differential treatment
in the matter of pay scales amounts to an illegality.
10. In the above view of the matter, we hold that the
applicants are entitled in both the TAs to the revised
pay scales, as recommended by the S.S. Committee, and
revised in the case of their counterparts in DVB/DESU,
with arrears from the date the scales have been
allowed to the applicants in the form of only pay scale
in pursuance of the decision of the Apex Court in
Narender Kumar’s case (supra). The same shall be
W.P.(C) Nos.340/2011 & 2337/2013
Page 4 of 8
disbursed, on implementation, to the applicants, within
a period of three months from the date of receipt of a
copy of this order. No costs.”
5. The subsequent application (TA No.30/2011 filed by the
employees of the draftsmen cadre) with identical grievance, was
allowed by an order dated 23.08.2012. Besides noting previous
decision in the case of the Auto Mechanics cadre, the Tribunal also
nd
took note of the 2 CPC and DESU scales pattern as applicable to
individual working in the draftsmen cadre. The CAT also took note
of DESU’s contention that the pay scales of the several posts in
DESU are on the higher side and that NDMC was not bound to follow
those pay scales. The other anomaly or difference sought to be
highlighted before the CAT was that the draftsman cadre had only
single post and consequently pay parity cannot be directed.
6. The basic reasoning of the Tribunal in its latter decision –
which is the subject matter of W.P.(C) No.2337/2013, is extracted
below :
“ 9. In our considered view, such objections raised by
the Respondents are absolutely unacceptable
particularly in view of the fact that once the Council of
NDMC, vide its Resolution dated 07.01.1974 had
already resolved to extend the benefits of pay scales to
all the categories of its employees at par with the pay
scales of the counterparts in DESU and the NDMC
itself has implemented in the case of all other
categories of Draftsmen working in their own
department, namely, Mechanical (Auto) Department,
the Respondents can not permitted to take a different
view in the case of the Applicants. lt has also been seen
W.P.(C) Nos.340/2011 & 2337/2013
Page 5 of 8
that the issue of parity in pay scale with the
Junior/Senior/Head Draftsmen with their counter parts
in DESU has already been examined by the Finance
and Law Division of the respondent-NDMC and agreed
to grant the same but the Respondents did not
implement it. In our considered view, once the ultimate
Authority of the Respondent-NDMC, namely, the
Council has decided to extend the benefit to the
Applicants, the same cannot be rejected at a lower
level.
10. In the above facts and circumstances of the case, we
allow this TA with the direction to the Respondents to
grant pay scale to the various categories of the
Draftsmen working with them in their Electrical
Department at par with the corresponding categories of
draftsman working in DESU w.e.f. 01.04.1972 in terms
of resolution No.1 dated 07.01.1974 passed by the
Council of the Respondent NDMC, within a period of
three months from the date of receipt of a copy of this
order, under intimation to the Applicants with all
consequential benefits. The Respondents shall also re-
fix the pay of the Applicants from the aforesaid date
and accordingly and pay upto-date arrears within the
aforesaid period. There shall be no order as to costs.”
7. Learned counsel for NDMC argued that the CAT fell into error
in both the decisions. He firstly contended that NDMC as an
autonomous statutory corporation was independent to prescribe its
own pay scales, having regard to uniqueness of its functioning and the
relevant cadre, strength, and terms and conditions etc. The mere
superficial parity of the description of work was not sufficient for
CAT to conclude that the discretion needs to be corrected, with
respect to alleged disparity of pay scales vis-a-vis DESU/DVB
employees. It was argued further that the NDMC employees had
W.P.(C) Nos.340/2011 & 2337/2013
Page 6 of 8
approached the Court with a grievance much after the implementation
th
of the 6 Pay Commission which meant that the question of S.S.
Committee report had no relevance. Learned counsel argued that S.S.
Committee was constituted way back in early 1970 and had submitted
its report vis-a-vis revision of pay scales of DESU/DVB employees.
At that point of time, question of any parity between the concerned
employees i.e. individuals working in the Auto Workshop of NDMC
or the predecessors or draftsmen cadre, had never arisen. Therefore,
the directions issued by the CAT, cannot be sustained.
8. It is apparent from the factual narrative that S.S. Committee
was constituted undoubtedly to address the pay scales concern and the
anomalies which then existed in the erstwhile DESU/DVB; to that
extent, the NDMC has a point. But the matter does not stop here.
The pay scales which the DESU/DVB granted to its employees on
various dates in the years 1974, 1986 etc. fueled unrest in other
organisations. One such is erstwhile New Delhi Municipal
Committee, the employment to which the present respondents and
other class belong. Their grievance led NDMC i.e. the petitioners
before the court adopting SS Committee’s recommendations with
respect to various cadres. Thus, parity was something that the NDMC
itself recognized and gave effect to entirely on the basis of SS
Committee. Having done that at the time of fitment and fixation in
the later pay scales, which were prescribed for various classes of posts
in implementation of pay Commission’s recommendation arose, the
NDMC could not have – consistent that its past conduct, ignore the
W.P.(C) Nos.340/2011 & 2337/2013
Page 7 of 8
previous parity and refuse to accord the replacement scales. Both the
orders of the CAT – though they deal with the different cadre in the
NDMC, are premised upon the logic i.e. parity once established,
cannot be ignored except for good and valid reasons. No reasons
were forthcoming in either of the proceedings which the
respondent/applicants initiated before the CAT, to justify disparity
th
which had ensued on account of erroneous implementation of 6 Pay
Commission’s recommendations. Consequent directions by the CAT
were therefore reasonable and justified. The conclusions in the
impugned order are sound and therefore, do not call for any
interference by this Court. The petitioners are therefore directed to
give effect to CAT’s orders within ten weeks from today and pass
individual pay fixation and fitment orders.
9. For the above reasons, the writ petitions along with the pending
applications are dismissed in above terms. No order as to costs.
10. Dasti .
S. RAVINDRA BHAT
(JUDGE)
A.K.CHAWLA
JUDGE)
OCTOBER 04, 2018
ssc
W.P.(C) Nos.340/2011 & 2337/2013
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