LPA No.71 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: LPA No.71 of 2006
DATE OF DECISION: March 10, 2009
THE PUNJAB STATE CO-OPERATIVE ...APPELLANT AGRICULTURAL DEVELOPMENT BANK LTD.
PUNJAB STAE CO-OPERATIVE AGRICULTURAL ...RESPONDENTS DEVELOPMENT BANK PENSIONER'S ASSOCIATION
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MS. JUSTICE NIRMALJIT KAUR.
PRESENT: MR. R.N. RAINA, ADVOCATE FOR THE APPELLANT. MR. GAURAV CHOPRA, ADVOCAE
FOR RESPONDENTS NO.1 TO 3.
MS. AMBIKA LUTHRA, AAG, PUNJAB.
ASHUTOSH MOHUNTA, J.
This order shall dispose of L.P.A. No. 71 of 2006, filed by the Punjab State Cooperative Agricultural Development Bank Ltd. and L.P.A. No. 137 of 2006, filed by State of Punjab against order/judgment, dated 14.12.2005 [reported as 2006 (1) SCT 633], passed by a learned single Judge of this Court, allowing CWP No. 899 of 2000 filed by present respondent Nos. 1 to 3 in both the appeals. In view of same order/ judgment being under challenge in both the appeals, we dispose of both the appeals by a common order.
The brief facts of the case are that on the recommendations of the 3rd Pay Commission, the appellant - State of Punjab revised the pay scales of its employees on 21.05.1989, w.e.f. 01.01.1986. The appellant - LPA No.71 of 2006 -2- Bank also, vide resolution No. 37 dated 06.07.1989, revised the pay scale of its employees, on the pattern of Punjab Government after obtaining the approval of the Registrar Cooperative Societies, Punjab. The Punjab Government issued a notification dated 24.12.1992, where by the Government amended and revised the Master pay scale in order to remove certain anomalies in pay scales. The appellant bank also introduced the amended master pay scale w.e.f. 01.01.1986 vide order dated 09.12.1997 in order to remove the anomalies. However it was clarified that the arrears of pay to the affected employees on account of the amended master pay scale will be allowed only w.e.f. 01.04.1996. As per the stand of the appellant bank the arrears were paid to the employees w.e.f. 01.01.1993. Feeling aggrieved by the restriction on the payment of the arrears of pay only w.e.f. 01.04.1996, even though anomaly was removed w.e.f. 01.01.1986, the present respondent Nos. 1 to 3, one of which is the Pensioner's Association of the appellant - bank, filed the aforementioned writ petition challenging the order dated 09.12.1997 to the extent it restricted the payment of arrears only w.e.f. 01.04.1996. The only short question which arose for the consideration of learned single Judge and now we are required to examine in these appeals is as to whether the employees of the appellant-bank are entitled to arrears of pay w.e.f. 01.01.1986 i.e. the date from which the anomaly was removed or the same could be restricted to payment w.e.f. 01.04.1996. In other words the dispute is regarding the payment of arrears of pay w.e.f. 01.01.1986 to 31.03.1996 or 31.12.1992 as the case may be.
The learned single Judge held that the order dated 09.12.1997 was violative of Article 14 and 16 (1) of the Constitution of India to the LPA No.71 of 2006 -3- extent it denies the arrears to the present respondent Nos. 1 to 3 and other affected employees with effect from the date of removal of anomaly i.e. 01.01.1986. The present respondent Nos. 1 to 3 were held entitled to the arrears of salary arising on account of revision of pay scale w.e.f. 01.01.1986 upto 31.03.1996. The learned single Judge further directed that if any employee has been paid the arrears w.e.f. 01.01.1993, the same shall be adjusted. The learned single Judge also held the present respondent Nos. 1 to 3 entitled to the consequential benefits in the form of revised pension and allowances, wherever the said direction was applicable. While arriving at the aforesaid conclusion the learned Single Judge relied on the decision of the Hon'ble Supreme Court in State of Punjab vs. Dr. Dharampal (C.A. No. 10549 of 1996 decided on 25.08.1998) and earlier decisions of this court in Joginder Singh Saini vs. State of Punjab [1999 (1) SCT 520] and Prem Parkash Nayar vs. Punjab State Electricity Board [2003 (2) SCT 550].
We have heard the learned counsel for the parties at great length. Mr Raina, Learned Counsel appearing on behalf of the appellant - Bank has vehemently argued that the learned single Judge erred in entertaining the writ petition and the writ petition was liable to be dismissed at the threshold on ground of availability of alternative remedy. The respondent Nos. 1 to 3 failed to avail the alternative remedy of revision as provided under Section 69 of the Punjab Cooperative Societies Act, 1961. He contended that the respondent Nos. 1 to 3 should have filed a revision petition before the State Government against the order dated 09.12.1997 in the first instance under the aforesaid provision. We are not impressed by the argument of the learned counsel LPA No.71 of 2006 -4-
for the appellant - bank. It is by now well settled that the existence of a remedy by way of revision does not bar the jurisdiction of the High Court to entertain a petition under Art. 226 as the remedy to file revision is not an efficacious remedy. Reference can be made to the decision of the Hon'ble Supreme Court in the case of Collector of Customs and Excise, Cochin v. M/s. A. S. Bava [ AIR 1968 SC 13] and L. Hirday Narain v. Income-Tax Officer, Bareilly [AIR 1971 SC 33] and this court in the case of Bhagwant Singh Dhanao Vs. Punjab State Agricultural Marketing Board, [1996 (3) SCT 757]. Even otherwise we do not find it proper to interfere in the facts and circumstances of the present case merely on ground of availability of alternative remedy in view of law laid down by Hon'ble Supreme Court in para 21 of the judgment titled, L.K. Verma v. HMT Ltd. [ 2006(1) SCT 601 ], to the following effect:-
"21. In any event, once a Writ Petition has been entertained and determined on merit of the matter, the Appellate Court, except in rare cases, would not interfere therewith only on the ground of existence of alternative remedy. (See Kanak v. U.P. Avas Evam Vikas Parishad, 2003(4) RCR(Civil) 562 : 2003(7) SCC 693). We, therefore, do not see any justification to hold that the High Court wrongly entertained the writ petition filed by the respondent."
The learned counsel for the appellant bank has further contended that the State of Punjab has revised the master pay scale for its employees w.e.f. 01.01.1993 and not w.e.f. 01.01.1986. The appellant bank has also decided to follow the State Government and amended the pay scale on the pattern of the State Government and the appellant - Bank cannot be LPA No.71 of 2006 -5- forced to pay arrears w.e.f. 01.01.1986. The learned counsel contended that the learned Single Judge has erred in not properly considering this aspect of the matter. Again we do not find merit in contention raised by the learned Counsel for the appellant - bank. The date from which the State of Punjab granted the revised master pay scale is immaterial, once a decision has already been taken by the appellant - bank to grant the revised master pay scale to its employees w.e.f. 01.01.1986.
The learned counsel for the respondent Nos. 1 to 3 on the other hand tried to support the judgment of the learned single Judge by contending, that as per settled law, once there is anomaly in the pay scales, the benefits are to be paid form the date of creation of the anomaly and no artificial and arbitrary date can be fixed by the appellants in this regard. He has relied upon the decision of this court in Gurmail Singh Dahdli and others vs. Union of India and others [2008 (3) SCT 235]; Joginder Singh Saini's case supra; Jai Narayan Jakhar vs. Union of India and another [CWP No. 15400 of 2006 decided on 14.01.2008] and Mrs. Suveena Chaudhary vs. Chandigarh Industrial and Tourism Development Corporation Limited [1998 (4) SCT 620], in support of his argument. In Joginder Singh Saini's case supra, which has also been relied upon by the learned single Judge while deciding the writ petition, this Court held that having accepted the factum of anomaly and having taken a decision to remove the same, the Government cannot arbitrarily fix the date with effect from which the benefit of revised pay scale is to be given to the petitioners.
In Jai Narayan Jakhar's case supra, a Division bench of this Court held as under:-
LPA No.71 of 2006 -6- "Having heard the learned counsel for the parties, we are of the opinion that the stand of the respondents that the petitioner is not entitled to the benefit of removal of anomaly in the Pay Commission is wholly unjustified. It was during the implementation of 5th Pay Commission report, it was found by the respondents that there is anomaly in the pay scales. Once the anomaly in the pay scales is found and sought to be removed then it has to be removed from the implementation of the recommendation of the Pay Commission i.e. 01.01.1996. There is no explanation as to why the said anomaly is sought to be removed from 10.10.1997. In the absence of any explanation of removal of anomaly from 10.10.1997, we do not find the action of the respondents fixing such date as justified. Consequently, we hold that the petitioner is entitled to revised pay scale of Rs 5220-140-8140/- w.e.f. 01.01.1996. Thus the petitioner shall be entitled to the retiral benefits on the said pay scale."
In Suveena Chaudhary's case supra , the court held to the following effect :-
".......It is true that it is always open to an employer to revise the salaries / pay scales of its employees and also specify a date from which the revision of pay scales shall take effect but where an anomaly if pointed out in the revision of pay scales of any post and that anomaly is sought to be removed then it cannot be allowed to be removed from the date when the employer decides to remove it. In the very nature of things it LPA No.71 of 2006 -7- must relate back to the date when it existed. There would be no meaning in removing an anomaly from a date subsequent to the date when the grades were revised. In other words if new grades had to be given by way of removing an anomaly such grades should take effect from the date when the grades were originally revised."
In Gurmail Singh Dahdli's case supra, a division bench of this court, cited with approval the observations made by the learned single Judge in judgment impugned in the present case and held as under in para 8 of the judgment :-
"8...........Once there was anomaly in respect of pensionary benefits, pensionary benefits are payable from the date of creation of anomaly and that interpretation will alone serve the purpose and the object of removing anomaly." In view of the above, we are of the considered opinion that the order/ judgment of the Learned Single Judge is sound in law. There is no error in the view taken by the Learned Single Judge and we do not find any valid ground to upset the order passed by the learned single Judge. The appeals filed by the appellant - bank and the appellant - State of Punjab are without merit and the same are accordingly dismissed. (ASHUTOSH MOHUNTA)
March 10, 2009 (NIRMALJIT KAUR) Gulati JUDGE