Shyamal Kumar Sarkar and Others vs Eastern Coalfields Limited

Sambuddha Chakrabarti, J.—By this writ petition the petitioners have inter alia prayed for a writ in the nature of Mandamus directing the respondents to place the petitioners in the higher Technical ''B'' grade and to fix their pay above the juniors and for other reliefs. The case of the petitioners inter alia is that they are all employees of the Eastern Coalfields Limited, the respondent No. 1. Although since the year 1989 they were all in Grade I they have not been granted promotion to the next higher grade. Consequently juniors to the petitioners have been promoted and they were enjoying higher scale of pay than the petitioners. The problem of the petitioners had been taken up by the concerned union who held meeting with the respondents on many occasions and although the benefit of the claim of the petitioners had been admitted no positive step has been taken for extending any relief to the petitioners.

The respondents have denied the allegations by filing an affidavit-in-opposition. According to the answering respondents the writ petition is not maintainable as disputed questions of fact are involved in this case which cannot be decided by a writ court. That apart the petitioners are all workmen within the meaning of Industrial Disputes Act and as such they should have approached the Industrial Tribunal which is the proper forum for the adjudication. National Coal Wage Agreement has been made between all the operative unions and the management of the company. The petitioners being the members of that union cannot raise any issue individually. According to the respondents in the National Coal Wage Agreement all the unions took operative part and had given their consent. The respondents say that the scale of pay of the juniors had become higher than that of the petitioners because of the National Coal Wage Agreement. The respondents, therefore, have prayed for the dismissal of the writ petition.

The petitioners have filed an affidavit-in-reply largely reiterating their stand taken in the writ petition.

The stand of the respondents that the writ petition should be dismissed on the ground of alternative remedy is not a very convincing one. This writ petition was admitted on 22nd December, 2003 and from the order passed by a learned single judge it does not appear that the learned advocate for the respondents who was present had raised this objection about the maintainability of the writ petition. As such about 10 years after the admission of the writ petition it will not be proper to dismiss a petition on the ground of alternative remedy, particularly after the exchange of affidavits.

After going through the petition and after hearing the learned advocates it does not appear that the writ petition raises any disputed question of fact which cannot be decided by a writ court. The petitioners have mentioned the names of three employees junior to them who were getting higher scale of pay. The respondents have not controverted this allegation. As such it may be taken to have been admitted by them.

On the contrary the respondents have tried to approach the National Coal Wage Agreement as the principal cause for the anomalies and discrepancies in the supersession of the seniors by the juniors. It is not clear why they have blamed the agreement as the source of the anomaly. The respondents could not cite any provision in the National Coal Wage Agreement which permits the juniors to be placed in higher grades than that of the seniors and to give them higher scale of pay.

In fact, I find substance in the submission of the petitioner that the agreement does not empower the respondents to lower the salary of the seniors vis-a-vis the juniors. On the contrary Mr. Ganguly, learned advocate for the petitioner, has produced the National Coal Wage Agreement IX. In clause 12.6.1 it has been provided that it was agreed that while granting promotions basic wages and increments which the employees were getting on upgradation under SLU/SLI would be protected over and above the normal promotional benefit. In clause 12.6.2 it was provided that if any anomaly was found in the fitment of SLU upgradation and if the senior was getting less it should be rectified. It was specifically provided that senior should not get less than the juniors at any time.

The judicial pronouncement on the point is well settled. A junior should not ordinarily be allowed the higher scale of pay than the seniors or that unless there are reasons justifying the upgradation of the juniors to a higher scale of pay the same should not be unnecessarily encouraged. As such the decision of the respondents deserve to be reexamined.

In this regard the court has a well settled limitation. The court cannot direct promotion, except in very rare cases. I am not quashing the promotion of anybody for that is not the prayer in the writ petition. But simultaneously the right of the petitioners to get the promotion should also be considered in the light of the fact that juniors to them have been promoted.

The writ petition is disposed of by directing the respondents to reconsider the case of the petitioners and to pass a reasoned order after giving a representative of the petitioner an opportunity of being heard. Needless to say that if it is found that the petitioners have been unjustly denied their promotion the respondents shall place them in their appropriate scales of pay and shall pay them the arrear of salary and other allowances which are admissible to them. The entire exercise should be completed within 12 weeks from the date of the communication of the order. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.