JUDGMENT V.M. Sahai and Sabhajeet Yadav, JJ.
1. By this petition, the petitioners have challenged the order dated 28.4.2005 (Annexure-10 to the writ petition) passed by respondent No. 2 whereby the proposal of revision of pay scale of employees of Bharat Yantra Nigam Limited (in short B.Y.N.L.) with effect from 1.1.1997 has been rejected and the representation of the petitioners dated 31.5.2004 is disposed of accordingly. A further relief of mandamus was sought for directing the respondent No. 1 and 2 to grant pay revision to the petitioner Board level and below Board level executives including non-unionized supervisors of respondent No. 3 B.Y.N.L. w.e.f. 1.1.1997 as approved by the department of Public Enterprises vide order dated 22.7.2002 (Annexure 7 to the writ petition) and pay the arrears of pay revision to the petitioner w.e.f. 1.1.1997.
2. The relief sought in the writ petition rests on the allegations that the petitioners are officers of respondent No. 3 in different capacity. They are working in the respondent No. 3 company having long experience to the satisfaction of the management and there have been no complaint whatsoever in regard to their work and conduct. The respondent No. 3 B.Y.N.L. is a Government of India undertaking registered under the Companies Act, 1956. The main object of company is to coordinate, control and integrate the working of different subsidiary companies to secure the optimum utilization of resources. It is under direct financial and administrative control of department of Heavy Industry, Ministry of Heavy Industries and Public Enterprises. The Government of India, has deep and pervasive control of its management, functions and day to day business inasmuch as the Chairman and Managing Director of respondent No. 3 is appointed by Union of India and its Directors are also appointed/nominated by Union of India, thus it is a state within the meaning of Article 12 of the Constitution of India and is amenable to the writ jurisdiction of this Court. The respondent No. 3 has six subsidiaries company viz.,(i) Bharat Heavy Plate & Vessels Ltd., (BHPV), Visakhapatnam, Andhara Pradesh. (ii) Bharat Pumps & Compressors Ltd. (BPCL), Naini Allahabad. (iii) Bridge & Roof Co. (I) Ltd. (B&R), Kolkata. (iv) Richardson & Cruddas (1972) Ltd. (R&C), Mumbai, (v) Triveni Structures Ltd. (TSL), Naini, Allahabad, (vi) Tungabhadra Steel Products Ltd., (TSPL), Tungabhadra, Karnataka. However, all the subsidiaries are separate legal entity registered under the Companies Act 1956 and they carrying on their business in different fields. Brief facts in regard to its subsidiaries, their nature of work and performance have been given in Annexure 2 of the writ petition. The department of Public Enterprises Government of India has issued guide-lines/office memorandum being office memorandum No. 2(49)98-BPE (WC) dated 25.6.99 with regard to the revision of pay of Board level posts and below Board level posts including non-unionized Supervisors in Public Sector Enterprises w.e.f. 1.1.97, (Annexure 3 of the writ petition). In the aforesaid guidelines it is provided that the Public Sector Enterprises making profits consistently for the last 3 years i.e. 1996-97, 1997-98 and 1998-99 would be allowed to adopt revision of pay scale for executives holding the posts of Board level, below the board level and non-unionized supervisors strictly in accordance with the said guidelines. It is further alleged that the performance of the respondent No. 3 during the aforesaid 3 years period mentioned in the guidelines and thereafter till the last financial year i.e. 2003-04 is quite satisfactory and company has been making profits continuously as under: -
(Rs. in Lakhs)
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3. It is further stated that Board of Directors of respondent No. 3 in its 63rd meeting held on 30.3.2001 has recommended the pay revision of employees and officers w.e.f. 1.1.1997 based on the scale of pay contained in the aforesaid guidelines/Office Memorandum dated 25.6.1999 (Annexure-III) and authorised the management to take up with Administrative Ministry for necessary approval and issue of directives for implementation of the Revision of Scales of pay. In pursuance thereof the respondent No. 3 forwarded the said proposal for the revision of pay of its employees to the Administrative Ministry i.e. Department of Public Sector Enterprises Ministry of Heavy Industries and Public Sector Enterprises New Delhi the respondent No. 2 for its approval vide letter dated 9.4.2001, a copy of the letter dated 9.4.2001 of the respondent No. 3 to the respondent No. 2 is on record as Annexure 6 of the writ petition. In pursuance of the aforesaid letter some queries were made by the department of Heavy Industry twice to examine the feasibility for grant of pay revision in consonance of guidelines issued by the department of Public Sector Enterprises, which were duly replied by the management, thereupon the department of Heavy Industry considered the proposal of pay revision of the petitioner employees of the respondent No. 3 and its integrated financial wing was also consulted in this regard. It recommended the pay revision of petitioner to the department of Public Sector Enterprises for their approval, which is a competent authority for granting such approval to all the Central Public Sector Undertakings. Thereupon the department of Public Sector Enterprises vide order dated 22.7.2002 approved the pay revision proposal of the Executives of the respondent No. 3, (Annexure 7 of the writ petition). In spite of the aforesaid approval of Secretary of Department of Public Enterprises in respect of the pay revision of the petitioners no consequential order was issued for a considerable long time, therefore some of the executives of the respondent No. 3 approached this Court by means of the writ petition No. 47174 of 2004 for direction to the respondent No. 2 Secretary, Department of Heavy Industries to decide their representation dated 31.5.2004 in the light of DPE's approval dated 22.7.2002 for pay revision. Thereupon vide its judgment and order dated 18.11.2004 this Court has directed the respondent No. 2 to decide the aforesaid representation, but the respondent No. 2, without affording any opportunity of hearing to the petitioners of aforesaid writ petition, has rejected the said representation in a mechanical manner vide impugned order dated 28.4.2005 contained in Annexure-10 to the writ petition, hence this petition.
4. Two counter affidavits have been filed one on behalf of the respondent Nos. 1 and 2 and another on behalf of the respondent No. 3, the respondent No. 3 has virtually supported the petitioners' claim in the writ petition. However, the stand taken by the respondent No. 1 and 2 in their counter affidavit has been stated in para 4 and 8 of the counter affidavit filed by Sri V.P. Singh Deputy Director, Department of Heavy Industries Government of India, is as under:
4. That in reply to contents of paragraph No. 18 of the writ petition, it is submitted that as per the Office Memorandum dated 25.06.1999, the Public Sector Enterprises were to revise their pay scales w.e.f. 01.01.1997 in consultation with their administrative Ministries. It is wrong to say that the department of Public Sector Enterprises with the approval of the Secretary had issued the order of pay revision. The ultimate presidential directive for revision of pay scale had to be issued by the Administrative Ministries/Departments after getting it approved with their Minister-in-charge. The financial situation of BYN Group of companies underwent a substantial change during the period when the salary/pay revision of BYNL was being considered. One of its subsidiary Public Sector Undertaking, which had achieved a turnover of Rs. 234.09 crores and a profitability of Rs. 1.72 Crores during the year 2001-02, experienced a sudden downfall in performance and it achieved a turnover of Rs. 147.50 crores and a loss of Rs. 187.63 Crores during the year 2002-03. Similarly Tungbhadra Steel Projects Ltd. (TSPL) Karnataka, which had achieved a turnover of Rs. 15.60 crores and a loss of Rs. 66 lakhs also experienced sudden downfall in their performance. It achieved a turnover of Rs. 11.33 crores and a loss of Rs. 2.63 crores during the year 2002-03 during the year 2003-04 TSPL achieved a turnover of Rs. 12.90 crores and a staggering loss of Rs. 99.98 crore. These developments necessitated the administrative Ministry i.e. Department of Heavy Industry, respondent No. 1, to take a cautious look at the entire proposal and not to agree to the same Bharat Yantra Nigam Limited (BYNL) as an holding company is not engaged in any manufacturing activity and running its expenses based on the service charges it receives from its subsidiaries. The financial position of all the subsidiaries barring Bridge & Roof are precarious and. none of them are in position to pay the service charges to BYNL. The holding company BYNL is deducting the service charge from out of the budgetary support which the Government of India, extend to its subsidiaries. In such a back drop, it would not be proper for the head of a family i.e., BYNL to reap the benefits of pay revision and the others remain deprived of it as they are not eligible.
8. That in reply to the contents of paragraph Nos. 23 to 29 of the writ petition; it is submitted that the Department of Heavy Industry have tried to take a holistic view on the Pay Scale revision proposal of BYNL by keeping into consideration the financial position of the subsidiaries/Public Sector Undertakings. It is fact that Pay Revision based on 01.01.1997 scale of pay has been implemented in one of the subsidiary/Public Sector Undertaking of BYNL i.e., Bridge & Roof, Kolkata. The said revision had taken place vide an Order dated 10.08.2000 at a point of time when the company was making profit and a financial restructuring proposal of the company was under consideration of the Government, which would have cleaned the balance sheet of the company. The position to day is that Bridge & Roof has ended the year 2004-05 with a loss of Rs. 29.80 crores (provisional) and till date the financial restructuring of the company is still to see the light of the day. One wrong done in the past cannot be used as a justification to do a further wrong by carrying out the revision of pay scale of the employees of BYNL based on 01.01.1997 scale of pay.
5. We have heard Sri Shashi Nandan, Senior Advocate assisted by Sri Namit Srivastava, Advocate for the petitioners, Sri K.C. Sinha appearing for the respondent No. 1 and 2 and Sri P.N. Roy for the respondent No. 3.
6. On the strength of various assertions made in several paragraphs of writ petition, the learned Counsel for the petitioner has submitted that in the impugned order only one reason has been mentioned that subsidiary companies are running in heavy accumulated loss. The respondent No. 3 is a holding company. It was incorporated in the year 1986, as one of the Government company and holding company of aforesaid subsidiary companies, whereas the aforesaid six subsidiary companies were incorporated long back. For example one of the subsidiary company viz. Richardson and Cruddas Ltd. was incorporated in the year 1886 and it was nationalized in 1972, it carries on business of structural fabrications etc. and the details of holding company and all subsidiary companies have been given in para 23 of the writ petition. From bare perusal of which it is clear that all the subsidiary companies were incorporated much earlier to the incorporation of holding company and when these subsidiary companies were not working to the satisfaction of Government of India, it decided to incorporate the respondent No. 3 as a holding company in the year 1986 to coordinate, control and integrate the working of its subsidiary companies to secure optimism utilization of resources and further the recital contained in the impugned order that respondent No. 3 has failed to repay Government loan in tune of Rs. 883.74 crores as on 31.1.2005 is wholly incorrect and non existent fact. The aforesaid amount of loan pertains to the six subsidiary companies and in regard to B.Y.N.L., the loan amount is only Rs. 1.10 crores. Further the paid up capital has no relationship with the profit and losses. As a matter of fact, respondent No. 3 is separate company registered under Companies Act 1956, and it has consistently been making profit from its inception, these profits have been arrived after taking into account of the impact of pay revision of its employees. More over the respondent No. 3 is also paying corporate income tax on the profits, therefore, assertions made in the counter affidavit and recitals made in the impugned order is perverse and without any factual basis.
7. It is further submitted that in Bridge and Roof Company, one of the subsidiary company of respondent No. 3, situated at Kolkata, the pay revision has been implemented even though it has not refunded the Government loan along with interest thereon amounting Rs. 42.47 crores upto 31.3.2004. And on account of aforesaid pay revision, an anomaly has also been created between the officers working in the holding company and subsidiary company. For example as pay scale of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/- which was pay scale before 1.1.1997 and the pay scale of Managing Director of Bridge and Roof Company Ltd. (1) before 1.1.1997 was Rs. 12000-400-14000/- and after pay revision, the pay scale of Managing Director of Bridge and Roof has become Rs. 25750-650-30950/-. Thus the Managing Director of subsidiary company whose performance is appraised by Chairman and Managing Director of respondent No. 3 is drawing more salary than his reporting officer. Even salary of the below Board level officers of the Bridge and Roof Company is higher than Chairman and Managing Director of B.Y.N.L.. The scale of pay of General Manager of the Bridge and Roof Company is Rs. 18500-450-23900/- whereas at present scale of pay of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/-. The anomalous situation is so extreme as the salary of Chairman and Managing Director in B.Y.N.L. is in un-revised scale matches nine scale lower in Dy. Manager's scale in Bridge and Roof in revised scale of Rs. 13000-350-18250/-.
8. It is further submitted that at present there are only 31 employees in B.Y.N.L. that include 16 executives whose pay revision is due in line in consonance with DPE office memorandum dated 25.6.99. It is significant to mention that the respondent No. 3 had never sought any Budgetary support from Government of India for payment of salary and wages to its employees and also implemented V.R.S. scheme in the year 2003 without seeking any financial support from the Government of India, as BYTSTL is a profit making company since inception and only skeleton staff is working at present. The respondent No. 3 has also created a provision for Rs. 136 lacs in its account to take care of impact of pay revision from 1.1.97 to 31.3.2004 and not seeking any budgetary support from Government of India. The petitioners are at the stagnation stage for the last 13 years and on account of their stagnation in the pay scale their efficiency and performance is adversely affected. Their counterparts in other Public Sector Undertakings and even in the subsidiary company Bridge & Roof pay revision have been implemented from 1.1.1997. Also the pay revision of petitioners have already been approved by the competent authority (DPE) on 22.7.2002, therefore, in given facts and circumstances of the case it is submitted that the petitioners are entitled to revision of their pay scale in view of office Memorandum dated 25.6.99 and recommendation of department of Public Enterprises dated 22.7.2002.
9. The submissions of learned Counsel for the petitioners appears to have some substance and requires to be examined by this Court but before such inquiry is made, we would like to refer some decisions of Hon'ble Apex Court, wherein some what similar controversy involved in the case have been considered in a slightly different context.
10. In A.K. Bindal v. Union of India and Ors. , the questions as to whether the employees of Public Sector Enterprises have any legal right to claim that though the industrial undertaking or the companies in which they are working did not have the financial capacity to grant revision in pay scale, yet the Government should give financial support to meet the additional expenditure, incurred in that regard; as to whether non-revision of pay scales of such employees, violates their right to livelihood, particularly when, there is no material to show that salary paid currently to them is wholly inadequate to lead life with human dignity, and as to whether the financial condition of employer can be relevant consideration for denial of benefit of revision of pay scale, were under consideration. While taking note of earlier decisions in para 18 to 22 Hon'ble Apex Court observed as under:
18. We are unable to accept the contention of Shri Venkataramani that on account of non-revision of pay scales of the petitioners in the year 1992, there has been any violation of their fundamental rights guaranteed under Article 21 of the Constitution, Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The scope and content of this Article has been expanded by judicial decisions. Right to life enshrined in this Article means something more than survival or animal existence. It would include the right to live with human dignity. Payment of very small subsistence allowance to an employee under suspension which would be wholly insufficient to sustain his living, was held to be violative of Article 21 of the Constitution in State of Maharashtra v. Chandrabhan , Similarly, unfair conditions of labour in People's Union for Civil Liberties v. Union of India . It has been held to embrace within Us field the right to livelihood by means which are not illegal, immoral or opposed to public policy in Olga Tellis v. Bombay Municipal Corporation . But to hold that mere non-revision of pay scale would also amount to a violation of the fundamental right guaranteed under Article 21 would be stretching it too far and cannot be countenanced. Even under the industrial law, the view is that the workmen should get a minimum wage or a fair wage but not that his wages must be revised and enhanced periodically. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that the salary currently being paid to them is wholly inadequate to lead a life with human dignity. What should be the salary structure to lead a "life with human dignity" is a difficult exercise and cannot be measured in absolute terms. It will depend upon nature of duty and responsibility of the post, the requisite qualification and experience, working condition and a host of other factors. The salary structure of similarly placed persons working in other Public Sector Undertakings may also be relevant. The petitioners have not placed any material on record to show that the salary which is currently being paid to them is so low that they are not able to maintain their living having regard to the post which they are holding. The observations made in paragraphs 276 and 277 in Delhi Transport Corporation v. D.T.C. Mazdoor Congress , strongly relied upon by learned Counsel for the petitioners, should not he read out of its context. In the said case the Court was called upon to consider the constitutional validity of Regulation 9 of Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, which gave power to terminate the services of an employee after giving one month's notice or pay in lieu thereof. The termination of services of some of the employees on the ground that they are inefficient in their work by giving one month's notice was set aside by the High Court as in its opinion Regulation 9(b) gave absolute unbridled and arbitrary powers to the management to terminate the service of any permanent or temporary employee and, therefore, the same was violative of Article 14 of the Constitution. It was in this context that the aforesaid observations were made by one Hon'ble Judge in his separate opinion. The issue involved was not of revision of pay scale but that of termination of service which has an altogether different impact on an employee.
19. The contention that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees, does not appeal to us. The question of revision of wages of workmen was examined by a Constitution Bench in Express newspapers Ltd. and Ors. v. Union of India and Ors. , having regard to the provisions of Industrial Disputes Act and Minimum Wages Act and the following principles for fixation of rates of wages were laid down:
(1) that in the fixation of rates of wages which include within its compass the fixation of scales of wages also, the capacity of the industry to pay is one of the essential circumstance to be taken into consideration except in case of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity;
(2) that the capacity of the industry to pay is to be considered on an industry-cum-region basis after taking a fair cross section of the industry; and (3) that the proper measure for gauging the capacity of the industry to pay should take into account the elasticity of demand for the product, the possibility of tightening up the organization so that the industry could pay higher wages without difficulty and the possibility of increase in the efficiency of the lowest paid workers resulting in increase in production considered in conjunction with the elasticity of demand for the product - no doubt against the ultimate background that the burden of the increased rate should not be such as to drive the employer out of business.
(Emphasis supplied).
20. The same question was again examined in Hindustan Times Ltd. v. Their Workmen and the Court recorded its conclusion in following words in para 7 of the Report:
While industrial adjudication will be happy to fix a wage structure which would give the workmen generally a living wage, economic considerations make that only dream for the future. That is why the Industrial Tribunals in this country generally confine their horizon to the farget of fixing a fair wage. But there again, the economic factors have to be carefully considered. For these reasons, this Court has repeatedly emphasised the need of considering the problem on an industry-cum-region basis, and of giving careful consideration to the ability of the industry to pay.
(Emphasis supplied).
21. It may be noticed that in these cases the Court was considering the question of wage structure for workmen who belong to economically poor section of society and providing them even living wage was held to be a distant dream on account of economic considerations and also the capacity of the industry to pay.
22. In South Malabar Gramin Bank v. Co-ordination Committee of South Malabar Gramin Bank Employees Union and South Malabar Gramin Bank Officers' Federation and Ors. , relied upon by the learned Counsel for the petitioners. The Central Government had referred the dispute regarding the pay structure of the employees of the Bank to the Chairman of the National Industrial Tribunal headed by a former Chief Justice of a High Court. The Tribunal after consideration of the material placed before it held that the officers and employees of the Regional Rural Banks will be entitled to claim parity with the officers and other employees of the sponsor banks in the matter of pay scale, allowances and other benefits. The employees of nationalized commercial banks were getting their pay scales on the basis of 5th bipartite settlement and by implementation of the award of the national Industrial Tribunal the employees of the Regional Rural Banks were also given the benefits of the same settlement. Subsequently, the pay structures of the employees of nationalized commercial hanks were further revised by 6th and 7th bipartite settlements but the same was not done for the employees of the Regional Rural Banks who then filed writ petitions. It was contended on behalf of the Union of India and also the Banks that financial condition of the Regional Rural Banks was not such that they may give their employees the pay structure of the employees of the nationalized commercial banks. It was in these circumstances that this Court observed that the decision of the National Industrial Tribunal in the form of an award having been implemented by the Central Government, it would not be permissible for the employer bank or the Union of India to take such a plea in the proceedings before the Court. The other case namely All India Regional Rural Bank Officers Federation and Ors. v. Government of India and Ors. arose out of interlocutory applications and contempt petitions which were filed for implementation of the direction issued in the earlier case namely South Malabar Gramin Bank (supra). Any observation in these two cases to the effect that the financial capacity of the employer cannot be held to be a germane consideration for determination of the wage structure of the employees must, therefore, be confined to the facts of the aforesaid case and cannot be held to be a general application in all situations. In Associate Banks Officers' Association v. State Bank of India and Ors. it was observed that many ingredients go into the shaping of the wage structure of any organization which may have been shaped by negotiated settlements with employees' unions or through industrial adjudication or with the help of expert committees. The economic capability of the employer also plays a crucial part in it as also its capacity to expand business or earn more profits. It was also held that a simplistic approach, granting higher remuneration to workers m one organization because another organization had granted them, may lead to undesirable results and the application of the doctrine would be fraught with danger and may seriously affect the efficiency and at times, even the functioning of the organization. Therefore, it appears to be the consistent view of this Court that the economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves. The material on record clearly shows that both Food Corporation of India and HFC had been suffering heavy losses for the last many years and the Government had been giving considerable amount for meeting the expenses of the organization. In such a situation, the employees cannot legitimately claim that their pay scales should necessarily be revised and enhanced even though the organizations in which they are working are making continuous losses and are deeply in red.
11. Again in Officers and Supervisors of I.D.P.L. v. Chairman and M.D., A.D.P.L. and Ors. , the view taken in A.K. Bindal's case (supra) has been reiterated by Hon'ble Apex Court, the pertinent observations made in para 8 and 11 of the decision are as under:
8. We have carefully gone through the pleadings, the Annexures filed by both sides and the orders passed by the BIFR and the judgments cited by the counsel appearing on either side. Learned Counsel for the contesting respondent drew our attention to a recent judgment of this Court in A.K. Bindal and Anr. v. Union of India and Ors. in support of her contention. We have perused the said judgment. In our opinion, since the employees of Government companies are not Government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scales should be met by the Government. Being employees of the companies, it is the responsibility of the companies to pay them salary and if the company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance the pay scale, the petitioners, in our view, cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. We are unable to countenance the submission made by Mr. Sanghi that economic viability of the industrial unit or the financial capacity of the employer cannot be taken into consideration in the matter of revision of pay scales of the employees.
11. In our view the economic capability of the employer also plays a crucial part in it; as also its capacity to expand business or earn more profits. The contention of Mr. Sanghi, if accepted, that granting higher remuneration and emoluments and revision of pay to workers in other Governmental undertakings and, therefore, the petitioners are also entitled for the grant of pay revision may, in our opinion, only lead to undesirable results....
12. Thus from the aforesaid settled legal position it is clear that even under Industrial law, the view is that workman should get a minimum wage or fair wage but not that his wages must be revised and enhanced periodically and mere non-revision of pay scale of employees has not been regarded as violative of fundamental right of employee under Article 21 of the Constitution. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that salary currently being paid is wholly inadequate to lead a life with human dignity. What should be salary structure to lead a life with human dignity is a difficult exercise and cannot be measured in absolute terms. It will depend upon nature of duty and responsibility of the post, the requisite qualification and experience, working conditions and host of other factors. The salary structure of similarly placed persons working in other Public Sector undertakings may also be relevant. The principles which are relevant having regard to the provisions of Industrial Disputes Act and Minimum Wages Act, inter alia are that in the fixation of rates of wages, which includes within its compass the fixations of scales of wages also, the capacity of industry to pay is one of the essential circumstance to be taken into consideration except in case of bare subsistence or minimum wage where the employer is bound to pay the same irrespective of such capacity. In other words it appears that many ingredients go into shaping of wage of an organization but it appears to be the consistent view of the Hon'ble Apex Court, that the economic viability or the financial capacity of the employer is an important factor, which cannot be ignored while fixing the wage structure otherwise the unit itself may not be able to function and may have to close down which will inevitably have disastrous consequences for the employees themselves.
13. Now coining to the facts of the case again vis-a-vis rival submissions of the parties, it is noteworthy to mention here that the department of Public Enterprises Govt. of India has issued guidelines contained in the office memorandum dated 25.6.1999 pertaining to the revision of pay scale of employees of Public Sector Undertakings of Central Government, which deals with the revision of pay of Board level posts and below board level post including non unionized supervisors w.e.f. 1.1.1997. The aforesaid guidelines inter alia provides that Public Sector Enterprises making profits consistently for the last 3 years i.e. 1996-97, 1997-98 and 1998-99 would be allowed to adopt revision of pay scale for Executives holding the posts of the Board level and below the Board level and for non-unionized supervisors strictly in accordance with the said guidelines. For better appreciation of controversy the relevant text of the said office Memo dated 25.6.1999 containing the aforesaid guidelines contained in Annexure-3 of the writ petition is reproduced as under:
No.2(49)/98-CPE(WC) Government of India Ministry of Industry Department of Public Enterprises Block 14, CGO Complex, Lodi Road, New Delhi-114003.
Dated, the 25th June, 1999 OFFICE MEMORANDUM Subject: Board level posts and below Board level posts including non-Unionized supervisors in Public Enterprises - Revision of scales Of pay w.e.f. 1.1.1997.
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The last revision of the scale of pay of non-unionised supervisors, below Board level executives and executives holding Board level posts in Central Public Sector Undertakings was made effective from 1.1.92 for a period of five years. As the next pay revision fell due from 1.1.97, the Government had set up a high level Committee under the Chairmanship of Justice S. Mohan, Retd. Supreme Court Judge, to recommend revision of pay and allowances for these executives following IDA pay scales. Based on the recommendations of the Committee, the Government have decided that the scale of pay attached to these Board level posts and below Board level posts would stand revised w.e.f. 1.1.1997 as indicated in Annexure-1.
2. In enterprises, where the scales of pay are different from those prescribed in the DPE guidelines or where rates of increments higher that those provided had been adopted in the past, it may be necessary for such enterprises to introduce certain intermediary scales or modify the scales to be provided in the guidelines with appropriate adjustments in their span and rate of increments. In doing so, it should be ensured that the minimum and the maximum of the individual scales prescribed herein are not altered. Such enterprises shall introduce these modifications only in consultation with their administrative Ministries and the DPE.
3. The grant of one increment in the revised scale against every three increments drawn in the pre-revised scales. The fitment benefit and fitment method would be as indicated in Annexure-II.
4. There will be a provision for grant of upto a maximum of three stagnation increments for those who reach the maximum of their scales.
5. 100 per cent DA neutralization may be adopted for all employees covered by the Committee's recommendations who are on IDA scales of pay with effect from 1st January, 1997. The periodicity of adjustment should be once in three months, as per existing practice for these categories.
The Industrial DA at AICPI-1708 as on 1.1.97 admissible to the incumbents in these posts in the revised scale would be 'nil', as the amount of IDA as on 1.1.97 has been merged in the revised basic pay. The DA payable from 1.1,97 to the incumbents of these posts would be as per new DA scheme (Annexure-III).
6. In respect of sick enterprises referred to the BIFR, revision of pay scales would be strictly in accordance with rehabilitation packages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages.
7. Presidential directives would be issued by all the administrative Ministries/Departments indicating these scales as a ceiling, as the actual payments would depend on the capacity to pay of the enterprises. The resources for meeting the increased obligation for salaries and wages must be internally generated and must come from improved performance in terms of productivity and profitability and not from Government subvention. The Presidential directives would also cover guidelines relating to dearness allowance and ceilings on perquisites. A format of the Presidential directive is suggested in Annexure-IV.
8. The next pay revision would be after 10 years.
14. There should be no notional revision of pay for the purpose of determining of VRS in sick enterprises.
15. The administrative Ministries are requested to fix the pay of the incumbents of the Board level posts who were in employment in their enterprises as on 1.1.97 in the manner indicated above and forward their files to the DPE for vetting as required under the existing instructions contained in BPE's D.O. letter No. 1/1/89-BPE (S&A) Cell dated 14.2.89 and DOPT's OM. No. 27(14)/EO/89 (ACC) dated 6.12.89, and as per procedure indicated in Annexure-VI.
16. A copy of the direction issued to the Public Enterprises may be endorsed to the Department of Public Enterprises.
(S. Talwar) Joint Secretary to the Govt. of India To, All the administrative Ministries/Departments of the Govt. of India. Copy to:
1. Chief Executives of Central Public Enterprises.
2. All Financial Advisers in the administrative Ministries/Departments.
3. Deptt. Of Expenditure, E-1I Branch, North Block, New Delhi.
4. C&AG of India, 10, Bahadur Shah Zafar Marg, New Delhi.
5. Secretary (PESB).
6. Cabinet Secretariat (Shri S. Sasi Kumar, Under Secretary).
(Dr. S. Banerjee) Joint Adviser.
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Pay Scales for Public Sector Executives
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b) PSEs which did not make profit during the last 3 years viz. 1996-97, 1997-98 and 1998-99 or had incurred net loss during any of these financial years would also be allowed to adopt these scales of pay or their executives holding posts at and below the Board level and non-unionised supervisors with the approval of the Govt. i.e. the administrative Ministry acting in consultation with the DPE, provided they give an estimate as to how resources would be generated by them to meat the extra expenditure.
c) In respect of sick enterprises referred to BIFR, revision of pay scales for all employees following IDA pattern would be strictly in accordance with the rehabilitation plackages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages.
d) PSEs under construction or new Public Sector Enterprises should submit their proposals for adoption of revised scales of pay and DA pattern for their executives holding posts at the Board level, below Board level and non-unionised supervisors, to their administrative Ministries for appropriate approval in consultation with the DPE, giving details of their likely date of going on commercial production, etc.
e) The conditions prescribed for Sixth Wage Negotiations of Unionised workers in DPE's Oms No. 2(11)/96-DPE/WC dated 14.1.99 shall be applicable for the above pay revisions.
f) DPE will issue detailed instructions, wherever necessary regarding the matters dealt with in the Note.
14. It is alleged that the performance of the respondent No. 3 during the aforesaid 3 years was quite satisfactory that is why the Board of Directors of Company/respondent No. 3 in its 63rd meeting held on 30.3.2001 considered the pay revision of employees and officers w.e.f. 1.1.97 based on scale of pay recommended in the aforesaid guidelines/office memo dated 25.6.99 and passed resolution approving the pay scale of Executives Employees of B.Y.N.L. Board level, below Board level and non-unionized supervisors according to terms and conditions stipulated in the aforesaid guidelines and authorised the management to take up the matter with the administrative Ministry for necessary approval and issue of directives for implementation of revision of scales of pay. In pursuance thereto the respondent No. 3 forwarded the said proposals of revision of pay of its employees to the Administrative Ministry i.e. Department of Public Sector Enterprises Ministry of Heavy Industries. New Delhi i.e. the respondent No. 2 for its approval vide letter dated 9.4.2001. In pursuance of the aforesaid letter some queries were made by Department of Heavy Industry to examine the feasibility for grant of pay revision in response to which the queries were duly replied by the Management. The Department of Heavy Industry considered the proposal of pay revision of the petitioner employees of the respondent No. 3 and its integrated financial wing was also consulted in this regard. It recommended the pay revision of the petitioner to the department of Public Sector Enterprises for their approval, which is a competent authority for granting such approval of all Central Public Sector Undertakings. Thereupon the Department of Public Enterprises vide order dated 22.7.2002 approved the pay revision proposal of executives of the respondent No. 3 but in spite of the aforesaid approval of Secretary of Department of Public Enterprises, no consequential order was passed for considerable long time compelling the employees of respondent No. 3 to file the writ petition before this Court. In pursuance of order passed in the writ petition the proposal for revision of pay scale of the petitioners has been rejected and representation has been disposed of accordingly. These facts have been alleged in para 8 to 18 of the writ petition. In the counter affidavit filed on behalf of the respondents No. 1 and 2, the contents of paragraph Nos. 1 to 17 of the writ petition were not disputed whereas the contents of paragraph 18 of the writ petition have been replied in para 4 of the counter affidavit filed on behalf of the respondent No. 1 and 2.
15. The stand taken by respondents No. 1 and 2 in para-4 of the counter affidavit in nut shell are that although as per Office Memorandum dated 25.6.1999 the Public Sector Enterprises were to revise the pay scale of employees/executives of board level post, below board level post and non-unionized supervisors w.e.f. 1.1.1997 in consultation with their administrative Ministries but it is wrong to say that department of Public Enterprises with the approval of Secretary had issued the order of pay revision. The ultimate presidential directive for revision of pay scale had to be issued by administrative Ministries/Departments after getting it approved with their Minister-in-charge. The financial situation of B.Y.N.L. Group of companies underwent a substantial change during the period when salary/pay revision of B.Y.N.L. was being considered. One of its subsidiary Public Sector Undertaking, which had achieved a turnover of Rs. 234.09 crores and a profitability of Rs. 1.72 crores during the year 2001-02, experienced a sudden downfall in performance and it achieved a turnover of Rs. 147.50 crores and a loss of Rs. 187.63 crores during the year 2002-03. Similarly Tungbhadra Steel Projects Ltd. (TSPL) Karnataka, which had achieved a turnover of Rs. 15.60 crores and a loss of Rs. 66 lakhs also experienced sudden down fall in their performance. It achieved a turnover of Rs. 11.33 erores and a loss of Rs. 2.63 crores during the year 2002-03. During the year 2003-04 TSPL achieved a turnover of Rs. 12.90 crores and a staggering loss of Rs. 99.98 crores. These developments necessitated the administrative Ministry i.e. Department of Heavy Industry, respondent No. 1, to take a cautious look at the entire proposal and not to agree to the same. Bharat Yantra Nigam Limited (BYNL) as a holding company is not engaged in any manufacturing activity and running its expenses based on service charges it receives from its subsidiaries. The financial position of all the subsidiaries barring Bridge & Roof are precarious and none of them are in a position to pay the service charges to BYNL. The holding company BYNL is deducting the service charges from out of budgetary support which the Government of India extend to its subsidiaries. In such a back drop, it would not be proper for the head of a family i.e. BYNL to reap the benefits of pay revision and other members i.e. employees of subsidiaries Company remain deprived of it as they are not eligible for such pay revision.
16. Similarly in reply to the contents of para 23 to 29 of the writ petition in para 8 of the counter affidavit it is stated that the Department of Heavy Industry have tried to take a holistic view on the pay scale revision proposal of BYNL by keeping into consideration the financial position of subsidiaries/Public Sector Undertakings. It is fact that pay revision based on 1.1.1997 scale of pay has been implemented in one of the subsidiary/Public Sector Undertaking of BYNL i.e. Bridge & Roof, Kolkata. The said revision had taken place vide an order dated 10.8.2000 at a point of time when the company was making profit and a financial restructuring proposal of the company was under consideration of the Government, which would have cleaned the balance sheet of the company. The position today is that Bridge & Roof has ended the year 2004-05 with a loss of Rs. 29.80 crores (provisional) and till the date financial restructuring of the company is still to see the light of the day. One wrong done in the past cannot be used as a justification to do a further wrong by carrying out the revision of pay scale of employees of BYNL based on 1.1.1997 scale of pay.
17. Besides this, while deciding the representation of employees of respondent No. 3 dated 31.5.2004 in pursuance of directions issued by this Court dated 28.11.2004 in a writ petition No. 47174 of 2004 Sri P.C. Tiwari v. Union of India regarding revision of their pay scale w.e.f. 1.1.1997 vide impugned order dated 28.4.2005 the respondent No. 2 held as under:
Bharat Yantra Nigam Ltd., is a holding company which has six subsidiary companies under its hold. These companies are (i) Bharat heavy Plate & Vessels Ltd. (BHPV); (ii) Bharat Pumps & Compressors Ltd. (BPCL); (in) Rechardson & Cruddas (1972) Ltd. (R&C); (iv) Bridge & Roof Co. (I) Ltd. (B&R); (v) Triveni Structural Ltd. (TSL); (vigilance inquiry) Tungabhadra Steel Products Ltd. (TSPL). Out of these six companies, five have been referred to Board for Industrial Finance & Reconstruction (BIFR) on complete erosion of their net worth. Out of these five, in case of two companies namely Triveni Structurals Ltd. (TSL) and Richardson & Cruddas Ltd. (R&C), BIFR has recommended winding up.
Further, out of the above six subsidiary companies only Bridge & Roof Company Ltd., is in marginal profit and profit in 2003-04 was Rs. 3.15 crores rest of the five subsidiaries are incurring heavy losses. The pay scale of employees in Bridge & Roof Company Ltd. was revised to 1.1.1997 as the company is making profit and not taking budgetary support for discharging the dues of their employees, hence pay revision from 1.1.1997 has not been implemented in these subsidiaries. An amount of Rs. 81.06 crores was released to these five companies on 15.10.2004 for payment of salaries and statutory dues, which should normally be paid by the company itself from its surpluses. Besides the above, the BYNL has failed to repay the government loan and interest of Rs. 883.74 crores as on 31.1.2005 thereon till date.
The claim of the petitioner that their company BYNL is in profit is not tenable as the paid up capital of the BYNL holding company is in reality the sum total of paid up capital of all the subsidiaries. Similarly, the profit or loss of BYNL holding company should be reckoned from the sum total of loss/profit of all the subsidiary companies, which is presently showing a huge accumulated loss of Rs. 953.73 crores. BYNL takes service charges from the subsidiaries and from this amount meets the salary requirements of its employees. As such, it cannot be said that BYNL, is in profit. Hence what BYNL, is showing as profit is not actually profit but basically a surplus of income from service charges over its expenditure. The revision of pay scale for employees holding company will clearly create an anomalous situation.
Keeping in view the above, there is no justification in the proposal of revision of pay scale of employees of Bharat Yantra Nigam Ltd. (BYNL) from 1.1.1997. The representation dated 31.5.2004 is disposed off accordingly.
18. We have carefully examined the submissions of learned Counsel for the parties and assertions made in their respective affidavits inasmuch as statement of facts made in the impugned order. The statement of facts made in the counter affidavit clearly stipulates that financial position of BYNL Group of companies underwent a substantial change during the period when the salary/pay revision of employees of BYNL was being considered and except one almost all subsidiary companies are running in continuous loss and out of which two have been recommended for winding up and paid up capital of B.Y.N.L. holding company is in reality the sum total of paid capital of all subsidies and the profit or loss of B.Y.N.L. should be reckoned from the sum total of loss/profit of all the subsidiary companies and it is very difficult to accept that their company is earning profit. In this connection it is pertinent to mention here that it is not in dispute that the respondent No. 3 is holding company incorporated in the year 1986 as one of the Government company and holding company of aforesaid subsidiary companies, which were incorporated long back much earlier to the incorporation of holding company. The incorporation of holding company was made to coordinate, control and integrate the working of its subsidiary companies to secure optimism utilization of resources. As a matter of fact respondent No. 3 is a separate company registered under Companies Act 1956. The total paid up capital of all subsidiary companies have no direct relationship with profit and loss. In such facts and circumstances of the case, in absence of any material placed by the respondents it cannot be said at all that paid up capital of the B.Y.N.L. holding company is in reality the sum total of paid up capital of all the subsidiaries and it is correlated with its profit and loss. Similarly, the observations in the impugned order that the profit or loss of BYNL holding company should be reckoned from the sum total of loss/profit of all subsidiary companies, which are presently sustaining huge accumulated loss of Rs. 953.73 crores, appears to be wholly misconceived and perverse and cannot be sustained.
19. Further observations in the impugned order that BYNL is holding company and is not engaged in manufacturing activities rather it receives service charges from the subsidiaries and from this amount meets the salary requirement of its employees as such it cannot be said that the BYNL is in profit and what BYNL is showing as profit is not actually profit but basically a surplus of income from service charges over its expenditure. This finding also appears to be misconceived and perverse for simple reason that respondent No. 3 is separate company and admittedly does not involved in manufacturing activities. The services charges it receives from its subsidiary companies, no doubt meets the requirement of payment of salary to its employees and other statutory dues and expenditure, but these factors have no material bearing with the profit and loss of respondent No. 3. What is material for determination of such profit and loss is virtually profit and loss accounts of respondent No. 3. The accounts of respondent No. 3 company are audited by statutory auditors/ government auditors i.e. CAG which are then placed before the Board of Directors, Government and the Parliament. It is significant to point out that these profits have been arrived after taking into account of impact of pay revision of its employees and further that respondent No. 3 is also paying corporate income tax on the profit. The figures relating to cash profit, net profit, payment made towards corporate income tax for the period to 1996-97 till 2003-04 are demonstrated from the Photostat copy of profit and loss account of respondent No. 3 for the period from 1996-97 to 2003-04 are on record as Annexure-12 of the writ petition and Photostat copy of corporate income tax return/assessment for the period 1996-97 to 2003-04 are on record as Annexure-13 to the writ petition. These facts have also been clearly stated in para 28 of the writ petition which were neither disputed nor specifically denied by the respondents No. 1 and 2 in reply to the aforesaid averments made in para 8 of their counter affidavit. Therefore, this Court is left with no option but to draw adverse inference against the respondents No. 1 and 2 and can assume the uncontroverted facts of the writ petition as correct. Besides this, it is also not the case of contesting respondents that all the subsidiary companies are either recommended for winding up by B.I.F.R. or have been finally wound up and mere remains no scope for the holding company i.e. respondent No. 3 to receive any service charge from them and earn any money or profit thereby. Thus in view of these facts and circumstances of the case, we have no hesitation to hold that the respondent No. 3 is profit making government company and cannot be held to be sustaining continuous loss as observed in the impugned order. The observations made and findings recorded in this regard in the impugned order are wholly perverse and cannot be sustained.
20. So far as the observation made to the effect that BYNL has failed to repay the government loan and interest of Rs. 883.74 crores as on 31.1.2005 thereon till date is concerned, it is pertinent to be mentioned that the aforesaid amount of loan pertains to six subsidiary companies and in regard to Bharat Yantra Nigam the loan amount is Rs. 1.10 crores only and in para 26 of the writ petition it is stated that against Bridge and Roof Co. Ltd. the standing government loan and interest thereon amounting to Rs. 42.47 crores remains unpaid till date which was one of the subsidiary company of respondent No. 3, yet the respondent No. 2 has cleared the pay revision of Bridge and Roof Co. Ltd. w.e.f. 1.1.97 vide letter dated 10.8.2000. Thus a double standard has been adopted in respect of non-payment of government loan. In reply to the aforesaid paragraph of the writ petition the fact that the aforesaid amount of government loan pertains to subsidiary companies, has not been disputed in the counter affidavit filed on behalf of respondents No. 1 and 2. Therefore, in our opinion, failure to repay the government loan and interest of Rs. 883.74 crores as on 31.1.2005, which pertains to all the subsidiary companies and amount of loan of Rs. 1.10 crores pertaining to the respondent No. 3 cannot be taken into consideration while considering the revision of pay scale of the petitioners because of the simple reason that the Bridge and. Roof Co. has also not refunded its government loan but permitted to adopt pay revision w.e.f. 1.1.97 inspite of failure to repay government loan amounting Rs. 42.47 crores. Besides this, from close scrutiny of Office Memo of DPE dated 25.6.1999 there is nothing to indicate that failure to repay the government loan by Public Sector Undertakings would make the Public Sector Enterprises ineligible to adopt aforesaid pay revisions or employees of such enterprises would be debarred therefrom, therefore, in our considered opinion the failure to repay the government loan amounting to Rs. 1.10 crores by respondent No. 3 cannot be a justification to deny the petitioners' claim of revision of their pay scale w.e.f. 1.1.97 in view of Office Memo of DPE dated 25.6.1999.
21. Apart from it in the office Memo dated 25.6.99 itself, the provisions have been made to the effect that Public Sector Enterprises, which did not make profit during the last three years viz. 1996-97, 1997-98 and 1998-99, or had incurred net loss, during any of these financial years would also be allowed to adopt these scales of pay of their executives holding posts at and below the Board level and non-unionized supervisors with the approval of government, i.e. Administrative Ministry acting in consultation with the DPE provided they give an estimate as to how resources would be generated by them to meet the extra-expenditure. In respect to sick Enterprises, referred to BIFR revision of pay scale for all employees following I.D.A. pattern would be strictly in accordance with the rehabilitation packages approved or to be approved by the BIFR and after providing for the additional expenditure on account of pay revision in these packages. In this connection it is noteworthy to mention here that contesting respondents did neither bring any material before the court, contrary to the materials of profit and loss account of respondent No. 3 showing that holding company did not make any profit during last three years viz., 1996-97, 1997-98 and 1998-99 or had incurred net loss during any of these financial years, nor any such profit and loss account of holding company has been brought on record showing accumulated loss of Rs. 953.73 crores against holding company nor any provisions of law or Articles of company has been shown to us whereby accumulated losses collectively sustained by subsidiary companies would be computed or reckoned towards net loss of respondent No. 3. In such circumstances, it is very difficult for us to accept the submission of learned Counsel for respondents No. 1 and 2 that accumulated loss sustained by subsidiary companies should be computed towards profit and loss of respondent No. 3, thus the same has to be rejected. It is also not the case of respondents No. 1 and 2 that respondent No. 3 is sick company and has been referred to BIFR. Thus the submission of learned Counsel for respondents No. 1 and 2 in this regard is wholly misplaced and has to be rejected.
22. At this juncture it is also noteworthy to mention that on account of pay revision of Bridge and Roof Co., which was one of the subsidiary company of respondent No. 3 w.e.f. 1.1.97 an extreme anomaly has arisen between the officers working in the holding company and subsidiary companies. In this connection detail averments have been made in para 38 of the writ petition to the effect that the pay scale of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/- which was pay scale before 1.1.1997 and the pay scale of Managing Director of Bridge and Roof Company Ltd. (1) before 1.1.1997 was Rs. 12000-400-14000/- and after pay revision, the pay scale of Managing Director of Bridge and Roof has become Rs. 25750-650-30950/-. Thus the Managing Director of subsidiary company whose performance is appraised by Chairman and Managing Director of respondent No. 3 is drawing more salary than his reporting officer. Even salary of the below Board level officers of the Bridge and Roof Company is higher than Chairman and Managing Director of B.Y.N.L.. The scale of pay of General Manager of the Bridge and Roof Company is Rs. 18500-45-23900/- whereas at present scale of pay of Chairman and Managing Director of respondent No. 3 is Rs. 13000-500-15000/-. The anomalous situation is so extreme as the salary of Chairman and Managing Director in B.Y.N.L. is in un-revised scale matches nine scale lower in Dy. Manager's scale in Bridge and Roof in revised scale of Rs. 13000-350-18250/-. Although respondents No. 1 and 2 have not denied and disputed the aforesaid facts in their counter affidavit, but a justification has been given that at the time when the revision of aforesaid subsidiary company was effected vide order dated 10th August 2000. At that point of time the aforesaid subsidiary company was making profit but subsequently there to the aforesaid company has under gone in loss, and any wrong committed in respect of the aforesaid subsidiary company cannot be a justification for doing another wrong by according the benefit of revision of pay scale to the employees of respondent No. 3. In our opinion, the aforesaid assertions of contesting respondents is wholly misconceived and misplaced for simple reason that respondents No. 1 and 2 did not commit any illegality in implementing the pay revision in respect of aforesaid company as the same was not running in loss during aforesaid relevant period, therefore, the assertion in the counter affidavit to the effect mat one wrong should not be remedied by another wrong also seems to have been made as pretext and secondly the view taken by contesting respondents in this regard cannot be looked into too simplistic way. The anomaly in revision of pay scale is very significant in service jurisprudence, which has far reaching consequence in administration of affairs of government or institutions. The holding company is controlling, coordinating and supervising the functioning of subsidiary companies. The officers of the holding company have to appraise the working and functioning of officers of subsidiary companies. In case the officers of holding company who have to appraise the working of officers of subsidiary companies are permitted less pay scale in their respective rank it would be a subversive to the discipline in hierarchy of administration inasmuch as such anomaly would also generate dissatisfaction and frustration among the employees resulting which the efficiency of administration of holding company respondent No. 3 would be adversely affected.
23. In this connection, it is to be pointed out that many ingredients go into shaping of wage structure of an organization. The economic viability or financial capacity of employer is an important factor which can not be ignored except in case of fixation of minimum wages of workmen, which the employer is bound to pay to its employees, irrespective of its financial condition. Similarly the salary structure of similarly placed persons working in other Public Sector Enterprises may also be one of the important factor to be considered in such exercise, but while deciding the representation of employees of respondent No. 3, the respondent No. 2 did not consider this relevant aspect of the matter in correct perspective rather contrary to it has held mat implementation of revision of pay of employees of respondent No. 3 would create anomalous situation without any factual and legal foundation therefor. In our considered opinion, such conclusion drawn by respondent No. 2 is based on irrelevant consideration and also perverse and cannot be sustainable in the eye of law.
24. Now further question arises for consideration mat as to which relief the petitioners are entitled? In this connection it is pointed out mat in a slightly different context of equal pay for equal works Hon'ble Apex Court in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association in para 10 of the decision observed, "that ordinarily Courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the Courts cannot entertain any proceeding against such administrative decision taken by the Government. The Courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the Court holds the order passed by the Government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The Court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same." But here in the case in hand we are not concern with fixation of any pay scale on the basis of job-evaluation of particular post as distinguished from the aforesaid case. The simple question under consideration before this Court is as to whether the respondent No. 3 is entitled to adopt revision of pay of its executives in accordance with the provisions of Office Memo dated 25.6.1999 in given facts and circumstances of the case or not? In this connection it is necessary to point out that in view of foregoing discussions and our finding that petitioners' company is not sustaining loss in the relevant years and till now inasmuch as uncontroverted assertions of petitioners in writ petition to the effect that the respondent No. 3 has already made provision of Rs. 136 lacs to take care of impact of pay revision of its employees w.e.f. 1.1.97 to 31.3.2004 and not seeking any budgetary or financial support from the government to meet the additional liability arising on account of pay revision of its employees and at presently there are only 31 employees in BYNL that includes 16 executives whose pay revision is due in line in consonance with DPE office Memorandum dated 25.6.99 and the petitioners are at stagnation for the last 13 years and on account of their stagnation in the pay scale their performance is adversely effected and their counterparts in other public undertakings and even in the subsidiary company Bridge and Roof have been granted pay revision from 1.1.97 inasmuch as the pay revision of petitioners have already been approved by competent authority of department of Public Enterprises on 22.7.2002, in such circumstances, we do not find any justification to uphold the view taken by the respondents No. 1 and 2 to deny the benefit of revision of pay scale to the petitioners w.e.f. 1.1.97 in view of office Memo dated 25.6.99 for the period often years. Thus in given facts and circumstances of the case, we are of the considered opinion that the view taken by respondents No. 1 and 2 while rejecting the representation of executives of respondent No. 3 and denying the revision of pay scale to the petitioners is wholly erroneous, illegal, arbitrary and can not be sustainable in the eye of law. Accordingly the impugned order dated 28.4.2005 (Annexure-10 to the writ petition) is hereby quashed. In the result, in our considered opinion, the respondent No. 3 is entitled to adopt pay revision of its executives in consonance of Office Memo dated 25.6.1999 and the petitioners are entitled for revision of their pay scale accordingly. 25. In view of aforesaid discussions and observations made herein before, a writ of mandamus is issued directing the respondents No. 1 and 2 to implement the revision of pay scale of petitioners and executives of respondent No. 3 i.e. Board level, below Board level and non-unionized supervisors w.e.f. 1.1.1997 for a period of ten years, strictly in accordance with the scheme underlying in Office memo of DPE dated 25.6.1999 and approval of DPE dated 22.7.2002 given in respect of aforesaid employees of respondent No. 3 within a period of three months from the date of production of certified copy of this order before respondents No. 1 and 2.
26. With the aforesaid observations and directions, the writ petition succeeds and allowed.
27. There shall be no order as to costs. The parties shall bear their own costs.