Form No. J (2)

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Debangsu Basak And The Hon’ble Justice Smita Das De MAT 2019 of 2023 IA NO: CAN/2/2023 CAN/3/2024 Union of India & Ors.

vs.

Supriyo Kumar Mondal & Ors.

For the Appellants : Ms. Chandreyi Alam, Advocate Mr. S. N. Dutta, Advocate For the Respondents Petitioners : Mr. Swapan Dutta, Senior Advocate Mr. Anindya Lahiri, Senior Advocate Mr. Sambuddha Dutta, Advocate Ms. Pranati Das, Advocate Heard on : 18.03.2025 Judgment on : 18.03.2025 DEBANGSU BASAK, J.:-

1. Appeal is at the behest of Union of India and directed against the judgment and order dated July 14, 2023 passed in W.P.A. 20201 of 2022.

2. By the impugned judgment and order, learned Single Judge, set aside the decision of the Under Secretary, Government of India dated November 2, 2021 and directed Union of India to release the benefits as per the recommendations of the 5th Pay Commission and other consequential benefits which the private respondents before us are entitled to as expeditiously as possible.

3. Learned advocate appearing for the appellants submits that, the learned Single Judge erred in issuing such direction. She points out that, the private respondents were employees of the National Instruments Limited (N.I.L). NIL became sick company and was referred to the Board For Industrial and Financial Reconstruction (BIFR) established under the Sick Industrial Establishment (Special Provision) Act, 1985 for revival.

4. Learned advocate appearing for the appellants submits that, since NIL was a sick company and was not making any profit, the recommendations made by the 5th Pay Commission were not applicable so far as the private respondents are concerned. She submits that, the recommendations of the 5^th Pay Commission in respect of public sector undertakings which were not profit making were not applicable. Since NIL was a non profit making public sector undertaking at the relevant point of time, the employees of NIL were not entitled to the benefits of the 5^th Pay Commission. She submits that, a section of employees of NIL were extended the benefits of 5^th Pay Commission erroneously. Immediately, on detection of such erroneous pay being disbursed by NIL appropriate authorities directed NIL not to do so.

5. Learned advocate appearing for the appellants submits that, the respondents cannot claim negative equality in the sense that, the respondents cannot seek pay parity with the other employees who were erroneously extended the benefits under the 5^th Pay Commission more particularly when, such employees were not entitled to the same as NIL was non profit making public sector undertaking.

6. Learned advocate appearing for the appellants submits that NIL was subsequently transferred to Jadavpur University. Till the date of transfer, the Jadavpur University, NIL never made any profits for the recommendations of the 5^th Pay Commission to be extended to the private respondents herein.

7. Learned Senior Advocate appearing for the private respondents submits that, issue as to the entitlement of the private respondents stood settled between the parties in the earlier rounds of litigation between the parties. He submits that, this issue was considered and settled in three writ petitions and appeals preferred against orders passed in such writ petition as also Special Leave Petition.

8. Private respondents approached the writ court by way of W.P.A. 20201 of

2022 seeking a direction upon the authorities to release the benefits as per the recommendations of 5^th Pay Commission and other consequential benefits after setting aside and cancelling the order dated November 2, 2021.

9. The order dated November 2, 2021 of the Under Secretary of the Government of India who rejected the prayer of the private respondents for grant of the recommendations of the 5^th Pay Commission.

10. Private respondents are employees of the NIL. At the relevant point of time NIL was a public sector enterpris