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HIGH COURT OF CALCUTTA
H. K. BOSE,G. K. MITTER, JJ.
Benukar Mahata
Versus
State of W.B.
A.F.O.O. No. 214 of 1960
Decided On : 27-03-1963
CONSTITUTIONAL LAW - ARTICLE 226 - WRIT OF MANDAMUS - CONDITIONS OF SERVICE - ADMINISTRATIVE ORDER - LEGALITY - ARTICLE 311 - REDUCTION IN RANK - PENALTY - RECTIFICATION OF ERROR.
Fact of the Case:
The appellant, employed as a Junior Accountant, was promoted to the rank of Accountant on a temporary basis. Initially, he was paid on a time scale basis, but later, the authorities fixed his pay at a fixed rate and stopped further increments. The appellant challenged this order under Article 226 of the Constitution, alleging that it was illegal and discriminatory.
Finding of the Court:
The court held that the appellant had no legal right to a revised scale of pay and that the order fixing his pay and depriving him of the benefit of the time scale was a result of an administrative determination that was binding on him. The court also held that the procedure adopted by the trial judge in calling a witness and asking him to explain the facts without giving the appellant an opportunity to controvert the statements or cross-examine the witness was irregular.
Issues: 1. Whether the appellant had a legal right to a revised scale of pay. 2. Whether the order fixing the appellant's pay and depriving him of the benefit of the time scale was illegal and discriminatory. 3. Whether the procedure adopted by the trial judge in calling a witness and asking him to explain the facts without giving the appellant an opportunity to controvert the statements or cross-examine the witness was irregular.
Ratio Decidendi: 1. The court held that the appellant had no legal right to a revised scale of pay because there was no valid or enforceable contract or enforceable legal right in respect thereof. 2. The court held that the order fixing the appellant's pay and depriving him of the benefit of the time scale was not illegal or discriminatory because it was a result of an administrative determination that was binding on him. 3. The court held that the procedure adopted by the trial judge in calling a witness and asking him to explain the facts without giving the appellant an opportunity to controvert the statements or cross-examine the witness was irregular.
Final Decision: The appeal was dismissed, and each party was ordered to bear its own costs.
BOSE, C. J. :- This is an appeal from an order of J. P. Mitter, J. dated the 22nd of April 1959 discharging a Rule issued under Art. 226 of the Constitution.
2. The facts giving rise to this appeal are shortly as follows :
On 5th April, 1948 the appellant was employed as a Junior Accountant under the Assistant Regional Controller of Procurement at a monthly pay of Rs. 60/-. On 5th July, 1949 he was promoted to the rank of an Accountant and according to the appellant the scale of pay of the appellant was on the time scale basis of Rs. 80/- per month in the scale of Rs. 80-85-5/2-120. The details of the time scale of pay are given in paragraph 4 of the petition and the appellant alleges that he got his pay on the said scale up to 31st January, 1954; but he was informed by the Assistant Director of Procurement and Supply (Personnel), Food and Supply Department, by a memorandum dated 30-1-54 that the appellant would get a fixed pay of Rs. 80/- instead of his salary of Rs. 120/-. The memorandum also contained a direction that the drawing of the increment by the Accountants in the scale of pay of Rs. 80-85-5/2-120 should be stopped immediately. It is said that by reason of the said order the appellant got a much lesser amount than he was entitled to on the original time scale basis and he suffered a total loss of about Rs. 552/- between the period of 1st February 1954 and 4th July 1956 and further loss would be sustained by him in future. The appellant thereupon made several appeals and representations to the authorities concerned between 16th February 1954 and 30th June 1956 challenging the legality of the order of reduction of the pay and stoppage of further increments and also complaining about the discrimination made between the post of Accountant and the Upper Division Clerks although they were initially treated as being in the same cadre and entitled to the same time scale of pay of Rs. 80-85-5/2-120 and although in or about September 1954 and thereafter hopes had been held out of recalling the order of reduction of pay, ultimately the appellant was informed that the order would stand. Thereafter the appellant moved this Court under Art. 226 of the Constitution and a Rule Nisi was issued by Sinha, J. on the 31st July 1956. This Rule finally came up for hearing before J. P. Mitter, J. who by his judgment delivered on the 22nd April, 1959 discharged the Rule as already stated. It is against this order that the present appeal has been preferred.
3. In the affidavit-in-opposition which was filed in answer to the petition under Art. 226 and which was affirmed by one Khagendra Bhusan Chandra, the Assistant Director of Procurement and Supply, it is stated that the Food Department which was a temporary department in which the appellant was employed was originally established on a fixed scale basis, but in 1946 by virtue of the Chief Ministers Department Establishment Memo No. 2062 dated 2-7-46 such temporary posts, which were created on a fixed pay basis, being equal to the minimum pay of a time scale were deemed to have been created on the time scale of corresponding permanent posts. As a result of this the pay of Upper Division Clerks in the Food Department which was originally created on a fixed pay of Rs. 80/- was deemed to have been created on a time scale of Rs. 80-85-5/2-120 inasmuch as the fixed pay of such Clerks was equal to the minimum pay of the time scale of the permanent Upper Division posts in the district executive; but in the case of the Accountants their posts though created on a fixed pay of Rs. 80/- per month could not be deemed to be on a time scale as the pay of the Accountant was not equal to the minimum of a time scale of the corresponding permanent posts in the district executive. It is pointed out in the affidavit that prior to 1931 the time scale of pay of Accountants was Rs. 125-5-1/5/-but after 1931 it was Rs. 110-10/2-130-5/2-140-15/2-155; but in respect of the Upper Division Clerks the time scale
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