Any embarrassment to the TMC government, which the implementation of the judgment is certain to bring, will benefit the BJP in the state. This is a problem for communist leaders.
New Delhi: The reaction of the Kolkata High Court judgment on 20 May on both the litigant State Government of West Bengal and the respondents, the West Bengal state government employees is curious as of now. While the State Government headquarters Nabanna has been hit by a ton of bricks by the judgment of the division bench and seeking options to recover from the injury, the winners led by CPI(M) Rajya Sabha member Bikash Ranjan Bhattacharya are also unusually quiet. There are good reasons for the silence of the litigants.
The West Bengal government is caught between Scylla and Charybdis by this judgement. Nabanna was avoiding payment of Dearness Allowance to its employees (as well as West Bengal school teachers who are eligible for DA like employees) since the installation of the TMC government led by Mamata Banerjee. The total pending payment is estimated at a massive Rs 23,000 crore—a huge amount for the near bankrupt state exchequer. Payment of the arrear within three months as instructed by the court is apparently not possible by the state. The other option of moving over to the higher court, that is the Supreme Court, is also not politically prudent. All other states in India pay DA to their employees as the court stipulated to Nabanna. It is unlikely that the Apex Court will side with Nabanna’s contention and reverse the High Court judgment citing precedence. By approaching the SC, the West Bengal government will earn national notoriety, which is political suicide for a state ruling party whose supremo Mamata Banerjee is hoping to emerge as a rival opposition candidate to Prime Minister Narendra Modi in 2024. Nabanna is silently seeking an escape option.
How did the state government reach this Catch-22 situation? The seed of this was sown during the Left Front government in 2009. The claim of the employees serving under the Government of West Bengal for Dearness Allowance is based on the recommendation of the 5th Pay Commission of the state which was accepted by the then Buddhadeb Bhattacharya -led government and formulated under “The West Bengal Services (Revision of Pay and Allowance) Rules, 2009 (ROPA Rules 2009)”. The Left Front government, however, did not pay the employees their dues and stopped by accepting their right. The Mamata Banerjee government sat over the decision and never paid any DA as recommended by the 5th Pay Commission.
Aggrieved employees moved the tribunal for the pending DA, which they were entitled to with effect from 1 January 2006. The application made in 2016 was dismissed by the tribunal with the finding that “the payment of dearness allowances falls within the absolute prerogative of the discretionary domain of the State Government and, therefore, no right has accrued into the employee to claim DA.” The tribunal also observed that the state was within its rights to offer higher DA to its employees working at the Banga Bhavan, New Delhi and the Youth Hostel, Chennai. A curious decision of the West Bengal government was to pay such employees DA at higher rate than admissible to its employees in the state and the same quirky decision was adopted during the Left Front rule which TMC government continued with.
The Bench Division found merit in the claim of the employees serving under the State of West Bengal for Dearness Allowance that was based on a legally enforceable right to the extent of the recommendation of the 5th Pay Commission that employees was accepted by the Government of West Bengal by promulgating the ROPA Rules, 2009 and subsequent clarificatory memorandum. The matter was sent to the tribunal to decide. Nabanna pleaded review of the division bench order but the same was dismissed.
The Tribunal directed the state Chief Secretary to evolve norms/principles within a specified time for release of DA on the basic pay of the State Government employees fixed under 2009 ROPA rules. It also directed the state to pay such DA at least twice in a year till the acceptance and/or giving effect to the recommendation of the 6th Pay Commission set up by the Government of West Bengal. The Chief Secretary was further directed to implement the norms/principles within six months of the order and pay arrears within one year. It also found the payment of DA at higher rate to certain persons posted in Delhi and Chennai was irregular. The state moved the Kolkata High Court again and its judgment on 20th May put the state in a fix.
For the state the two options left are to pay the dues to employees as stipulated and that too within the next three months or to challenge the judgment in the Supreme Court. Problem arises in the details of the judgment which said, “…we have no hesitation in our mind to hold that the State Government employees under the ROPA Rules, 2009 has acquired legally enforceable right to get Dearness Allowance at the rate to be calculated on the basis of All India Consumer Price Index as embedded in Rule 3 (c) of the ROPA Rules, 2009.”
The judgment further contended that “apart from acquiring the enforceable legal right to get Dearness Allowance using the methodology of All India Consumer Price Index, such right of the employees to sustain their livelihood with human dignity has been fructified or elevated as fundamental right as enshrined in Article 21 of the Constitution. Such right available to Government Employees who are the main workforce behind the functioning of a Government in right direction cannot be denied by the State.” It is doubtful if the Supreme Court will dismiss this judgment. More so since all other states in the country follow this principle and pay to their employees. Nabanna cannot be condoned for its whimsical decisions. What can the bankrupt Nabanna do?
Coming back to the muted response of the employees—the litigants are mostly backed by the communists who have ceded electoral ground to TMC and even the position of leading opposition to the BJP. Any embarrassment to the TMC government, which the implementation of the judgment is certain to bring, will benefit the BJP in the state. This is a problem for communist leaders like Bikash Ranjan Bhattacharya. For the left the victory in the court is tasteless. But now that the court has spoken there is no option but to enjoy the win. That is what the West Bengal employees having allegiance to the Left are doing quietly. They are hoping that Nabanna will somehow take a rabbit out of its exchequer and contain the issue without giving the hyperactive leader of opposition Suvendu Adhikari yet another opportunity to agitate. Victory for some, on occasions, turn bitter.