U.P. Work Charge and Muster Roll IV Class Employees Union and Another vs State of U.P. and Others

R.A. Sharma, J.—All the above appeals involve same question of facts and law and are, therefore, being disposed of by a common Judgment. We have heard learned Counsel for both the parties.

Appellants in these appeals filed writ petitions before this Court challenging the order dated 21.1.1994 of the U.P. Government fixing the pay scale of the work charge employees of the U.P. Jal Nigam. Writ Petitions having been dismissed by the learned Single Judge, they have filed these appeals. Learned Counsel for the Appellants have made two submissions in support of these appeals, namely, (i) Government of U.P. has no Jurisdiction to fix the pay scale of the employees of the Jal Nigam and (ii) Government has no power to reduce the salary of the employees of Jal Nigam by executive order and the impugned order is, thus, violative of Article 300A of the Constitution of India. Learned Counsel for the Jal Nigam has disputed the above contentions.

U.P. Water Supply and Sewerage Act, 1975 (hereinafter referred to as the Act) has been enacted by the State of U.P. in order to provide for the establishment of statutory authority for the development and regulation of water supply and sewerage services and for the matters connected therewith. U.P. Jal Nigam is a statutory body having been constituted under the Act. Section 89 of the Act, which empowers the State Government to issue directions to Jal Nigam on question of policy is reproduced below,--

Direction to the Nigam on questions of policy.--(1) In the discharge of its functions, the Nigam shall be guided by such directions on questions of policy as may be given to it by the State Government.

(2) If any question arises whether any matter is or is not a matter as respects which the State Government may issue a direction under Sub-section (1). The decision of the State Government shall be final.

The contention of the learned Counsel for the Appellants, however, is that the Government can issue directions to the Jal Nigam regarding the discharge of Us functions, which have been enumerated in Section 14 of the Act and the conditions of the service of the employees of Jal Nigam, being not one of such functions, Government lacks the power to fix the pay scale of its employees. This contention is devoid of merit.

Clause (i) and (xii) of Section 14 of the Act enumerate the specific functions of the Nigam. Clauses (xiii) and (xiv) of the said section relate to the functions, which may be entrusted to the Nigam by or under the Act or by the Government. These clauses are reproduced below:

Functions of the Jal Nigam--The functions of the Nigam shall be the following namely--

(xiii) any other functions entrusted to the Nigam by or under this Act, and

(xiv) such other functions as may be entrusted to the Nigam by the State Government by notification in the Gazette.

Section 8 of the Act, which deals with the appointment of the employees of the Jal Nigam is as under:--

Appointment of employees.--(1) Subject to the provisions of Sub-section (2), the Nigam may appoint such employees as it considers necessary on such terms and conditions as it thinks fit for the efficient performance of its functions:

Provided that the appointment of such employees as the State Government may, by general or special order, specify shall be made in their terms and conditions shall be determined with the approval of the State Government.

(2) The Nigam may, with the previous approval of the State Government, appoint a servant of the Central Government or the State Government as an employee of the Nigam on such terms and conditions as it thinks fit.

Under Section 8 of the Act, the Jal Nigam has the power to appoint its employees on such terms and conditions as it thinks fit. Under the proviso appended thereto, the appointment of such employee as the State Government may, by order, specify shall be made in the terms and conditions with the approval of the State Government. Appointment of the employees u/s 8 is one of the functions entrusted to the Jal Nigam by the Act. The contention of the learned Counsel for the appeal acts that the appointment of the employees and fixation of their terms and conditions of service is the power of the Jal Nigam and is not its function, cannot be accepted. Functions include power. In this connection reference may be made to Mohinder Singh Gill and Anr. v. The Chief Election Commissioner New Delhi and Ors. AIR 978 SC 851, wherein it was laid down as under:

Functions include powers as well as duties (see Stroud''s Judicial Dictionary p. 1196). It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with functions.

Laying down pay scale of the employees is a matter of policy regarding which the State Government can issue directions to the Jal Nigam u/s 89 of the Act. The State Government was thus fully competent to issue the impugned order fixing the pay scale of work charge employees of the Jal Nigam. The first contention is accordingly rejected.

Second submission raised by the learned Counsel for the Appellants before us has not been dealt with by the learned Single Judge. Grievance of the Appellants is that this question was raised before the learned Judge in two writ petitions, which have given raise to Special Appeal Nos. 902 of 1994 and 231 of 1995 ; but it has not been decided. If a question raised by the party is not decided by the Court, it is open to it to apply for review of the Judgment. Non-consideration of one of the pleas by a Court is a ground for review of the judgment. The Appellants, as such, should ask for review of the Judgment. The Appellants, as should have made an application for review of the judgment before the learned Judge, who has decided the writ petition. The fact that the Hon''ble Judge, who has decided the writ petitions is not available now, cannot defeat the right of review.

That apart, the second plea is a mixed question of fact and law and is not a pure question of law. In paragraphs 6 and 8 of the Writ Petitions No. 43082 of 1992 and 5937 of 1993, which have given rise to Special Appeal Nos. 902 of 1994 and 231 of 1995, it has been stated by the Petitioners-Appellants that some of them were placed in the pay scale of Rs. 305 to Rs. 390, which was revised to Rs. 750 to 940 and others were placed in the pay scale of Rs. 320 to 390 which was revised to Rs. 775 to Rs. 1,047 with effect from 1.1.1986. By order dated 6.2.1992, the pay scale was fixed at Rs. 1,200 per month by the Government and by the order dated 22.1.1994 their pay scale has been revised from Rs. 1,200 to Rs. 1,700 and from Rs. 1,600 to Rs. 2,200 per month. It has further been averred in those writ petitions that some of the work charge employees are getting more pay than the pay scale fixed for them by the impugned Government order and in paragraph 9 of the said petitions, it has been stated that they will be losing Rs. 85 to Rs. 138 per month. How the amount of alleged loss has been worked out, has not been specified in the writ petitions. Learned Counsel for the Appellants while arguing the case has orally stated that the loss may be on account of the Dearness Allowance, but it has not been so pleaded. The allegations made in the writ petitions in this connection are vague, lacking particulars. We, therefore, do not consider it proper to permit the Appellants to raise this plea specially then, as stated by the learned Counsel for the Appellants, such a plea has been raised in large number of other writ petitions which are still pending in this Court. If we decide this question on the basis of inadequate pleadings, it may affect the fate of the pending writ petitions.

These appeals are accordingly dismissed. In view of the facts and circumstances of the case, there shall be no order as to costs.