Himachal Pradesh High Court
Punjab Electricity Board vs Darshan Singh Rana And Ors. on 15 January, 1993
Equivalent citations: (1993)IILLJ893HP
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Devinder Gupta, J.
1. Learned Counsel for the parties state that decision in Civil Writ Petition No. 421 of 1987 will also decide the fate of the other four petitions. Consequently, we propose to dispose of the aforementioned five writ petitions by this common judgment. However, reference hereunder is being made to the facts in Writ Petition No. 421 of 1987.
2. Petitioner-Board constituted under the Indian Electricity (Supply) Act, 1948 has number of Power Projects, one of which is located at Shanan in Jogindernagar of District Mandi, Himachal Pradesh, known as Shanan Power House. Respondents No. 1 to 12 have been working as Machine Attendants and Assistant Machine Attendants. There has been revision of pay-scales applicable for numerous categories of employees of the petitioner Board effective from January 1, 1978. Respondents felt aggrieved due to the alleged anomalies in their pay-scale. Prior to January 1, 1978, Machine Attendants and Assistant Machine Attendants were in the pay scale of 130-51-50/6-190/10-200 and 110-4-122/5-142/6-190, respectively. The Machine Attendants claimed that they had been performing the duties like Auxiliary Plant Attendants and ought to have been put in the pay-scale of Rs. 1000-1200 instead of Rs. 400-600 and consequently the Assistant Machine Attendants also ought to have been put in the higher pay-scale admissible to Junior Plant Attendants. A dispute was raised. The State Government through Notification dated March 4, 1985 referred the following dispute to the Industrial Tribunal:-
"Whether there are anomalies in the pay scales revision of the Machine Attendants/ Assistant Machine Attendants of the Shanan Project of Punjab State Electricity Board at Jogindernagar, District Mandi (H.P.) with other category of workers. If so, the relief the workers are entitled to in this respect."
3. The Respondents filed their claim Annexure-F before the Industrial Tribunal. In reply to this, Annexure-G was filed by the petitioner. The Tribunal formulated the following issues for determination on October 6, 1985.
"1. Whether there are anomalies in pay-scale revision of the Machine Attendants and Assistant Machine Attendants of the Shanan Power House of the Punjab State Electricity Board, Jogindernagar vis-a-vis other categories of workers. If so, to what scales of pay, the petitioners are entitled to? (OPP)
2. Whether this Tribunal has no territorial powers to entertain and answer this reference (OPR)
3. Relief."
4. After recording findings the Tribunal made its award Annexure P on April 5, 1987. The Tribunal held that there were anomalies in the grant of pay-scale to respondents No. 1 to 12 and concluded that Machine Attendants were entitled to the pay-scale allowed to the category of Diesel Engine Drivers and Assistant Machine Attendants to the pay-scale allowed to the category of unqualified Diesel Engine Drivers, namely, Rs. 700-1200 and Rs. 600-1200, respectively w.e.f. January 1,1978. Issue of jurisdiction was not pressed before the Tribunal. It is this award made by the Presiding Officer of the Industrial Tribunal, Himachal Pradesh, which is under challenge at the behest of the petitioner-Board.
5. The main basis for the challenge to the Award is that the conclusions reached by the Tribunal are entirely arbitrary and perverse. The Tribunal assumed an erroneous fact that Diesel Engine Drivers, both qualified and unqualified, were in the same pay-scale prior to January 1, 1978 as that of the petitioners. Due to this erroneous assumption, the entire award is vitiated. There is no basis for coming to this erroneous conclusion.
6. It is the Petitioner's case that with effect from February 20, 1973, there had been revision in the pay-scales of Diesel Engine Drivers. Those holding diploma with three years experience in the line of Diesel Engine Operation or Matriculation with I.T.I. in the trade with minimum experience of five years were put in the scale of Rs. 200-10- 250/270-15-450. Due to this revision in pay-scale, two categories of Diesel Engine Drivers came into being: One who were qualified and the other who were unqualified. The unqualified continued to remain in the pay-scale of Rs. 130-5-150/6-190/10-200. As on January 1, 1978 there were three categories of Diesel Engine Drivers. The two categories who were put prior to January 1, 1978 in the pay scale of Rs. 200-450 and the third category of unqualified Diesel Engine Drivers in the pay scale of Rs. 130-200. The first two categories were diploma holders in Electrical/Mechanical Engineering with three years experience having been recruited directly w.e.f. January 1, 1978 were put initially in the pay-scale of Rs. 570-1080, which later on was further enhanced with effect from the same date to Rs. 700-1200. Whereas the second category of non-diploma holders, who were prior to January 1, 1978 in the pay-scale of Rs. 200-450 were put in the higher pay-scale of Rs. 620-1200. The unqualified Diesel Engine Drivers were put in the pay-scale of Rs. 400-660 w.e.f. January 1, 1978 which was later on enhanced w.e.f. April 1, 1981 to Rs. 570-1080. IT has also been pleaded that the post of Diesel Engine Drivers were converted to Foreman/J E. II and in fact there is absolutely no comparison either in qualification or in the nature of duties and responsibilities being discharged on one hand by the Assistant Machine Attendants and on the other by the Diesel Engine Drivers. The Tribunal fell in error by confusing the entire issue and assumed for granted that Diesel Engine Drivers, prior to January 1, 1978 were in the pay-scale of Rs. 130-200. By this erroneous approach, the entire decision is arbitrary and perverse. It has further been contended that respondents No. 1 to 12 had rightly been classified and put in the separate category of Machine Attendants and Assistant Machine Attendants, keeping in view the relevant instructions, namely, qualification, skill and work. There was absolutely no anomaly in the pay-scale, the same had rightly been provided by the petitioner. Providing different pay-scales for different posts by the petitioner was on the basis of report of the Pay Commission, extract of which has also been placed on record as Annexure-B.
7. The writ petition has been contested by respondents No. 1 to 12, who filed their reply on the affidavit of Shri Darshan Singh Rana. It has been pleaded that there is absolutely no reason to interfere with the findings of fact recorded by the Industrial Tribunal, which decision has been arrived at on the basis of the material on record. They have also, by placing reliance upon number of documents which were placed before the Industrial Tribunal, urged that the duties and qualification of Diesel Engine Drivers. Machine Attendants and Head Mistris were same and similar. They had been put in different pay-scales. Assistant Machine Attendants who have no technical qualification and are not even matriculates are successfully working as Machine Attendants because of long experience in this line at their back and as such they are entitled to be equated with unqualified Diesel Engine Drivers. Machine Attendants besides having qualification of I.T.I. have also long experience at their back which was also the position regarding the unqualified Diesel Engine Drivers, who although have no diploma but have got experience of work as Diesel Engine Drivers. Respondents have further contended that the pay-scale of Diesel Engine Drivers and Machine Attendants were same before February 20, 1973, when such pay-scales were revised but there was no revision in the pay- scales of the category of Machine Attendants who had been continuously agitating. Since the claim of Machine Attendants had been ignored in the year 1973, petitioner cannot be allowed to derive any strength or benefit due to its own wrong especially when it has been brought on record that the duties of Machine Attendants were more onerous as compared to Diesel Engine Drivers.
8. It is in the light of these averments that we heard the learned Counsel for the parties, who have placed reliance upon number of judgments delivered by the Supreme Court. We proceed to examine the manner in which the Tribunal approached the issue before it.
9. The Tribunal in this Award Annexure P, considered the submissions made on behalf of the petitioner that Head Mistris and Machine Attendants were drawing the same pay-scale with effect from January 1, 1978 and the same were in order since the duties of Machine Attendants were comparable with that of Head Mistris. This contention was negatived by making a reference to a decision of the petitioner-Board dated June 23, 1968 wherein it had been stated that in future, no recruitment shall be made for the post of Head Mistry and Head Electrical Mistry. Those in the workshop may be adjusted as Assistant Foreman of the Trade provided they are qualified for the work. After discarding this submission made on behalf of the petitioner, the Tribunal proceeds to compare the posts held by respondents No. 1 to 12 and held that the same were comparable with the posts of Diesel Engine Drivers and unqualified Diesel Engine Drivers respectively. Diesel Engine Drivers were found to be performing the following duties:
(a) Checking of available diesel in diesel tank with dip stick;
(b) Watch lubrication of diesel engines and its accessories; and
(c) Start engine with the help of additional auxiliary i.e. compressor unit.
whereas the Machine Attendants were found not to be performing these duties, but to look after the entire auxiliary equipment of all Power Houses Turbines/generators in the Power House 15 M.W. each capacity i.e. operation of turbines generating panels, Turbines Panels, excitation cubic Panna House set of 3/4 M.W. capacity, controlling of air and lil prepare auxiliary, equipment installed with each machine. After noticing these duties, the Tribunal recorded a finding that duties of Machine Attendants and Assistant Machine Attendants are more onerous than the duties assigned to the Diesel Engine Drivers and unqualified Diesel Engine Drivers.
10. The Tribunal also noticed the fact that before January 1, 1978 the Diesel Engine Drivers (unqualified) were drawing the pay-scale of Rs. 130-200 which was revised to Rs. 400-660 with effect from January 1, 1978. An additional factor which was taken into consideration was that this pay-scale was further revised to Rs. 570-1080 w.e.f. January 1, 1982. The qualified Diesel Engine Drivers were found to be getting Rs. 200-450 prior to revision of pay-scales w.e.f. January 1, 1978 and on and from the said date of revision to Rs. 570-1080 and later on from February 16, 1982 the pay-scale was found to have been further revised to Rs. 700-1200. Assuming the fact that Diesel Engine Drivers (qualified) prior to the revision of pay-scales on January 1, 1978 were getting the same pay-scales as Machine Attendants and Diesel Engine Drivers (unqualified) pay-scale equivalent to the Assistant Machine Attendants, the Tribunal proceeded to make the Award by saying that there is clear anomaly and both these categories of Machine Attendants and Assistant Machine Attendants should get same pay-scale with effect from January 1, 1978 which was payable to Diesel Engine Driver (qualified) and Diesel Engine Driver (unqualified) respectively. Considering the reasons one can notice the glaring mistake which the Tribunal committed in assuming that pay-scales were same and similar or that the duties were also same and similar or that the same in case of Machine Attendants were more onerous than the Diesel Engine Drivers. This mistake on the part of the Tribunal can be highlighted by making reference to number of documents which were available on its record and have also been placed on record of this writ petition.
The duties of Machine Attendants are:
"To look after auxiliary equipment of all Power Houses Turbines/Generators in the Power House 15 M.W. each capacity i.e. separation of Turbines generating panels, Turbines panels, excitations cubic panels, House set of 3/4 M.W. capacity, Controlling of air and lil pressure controlling of Main inlet Water Rotary valves and auxiliary, equipments installed with each machine."
For the post of Machine Attendants, the prescribed qualification is Matriculation Examination or its equivalent with I.T.I. Certificate of Electrician Trade of 1-1/2 years duration and possessing atleast two years experience in the trade. There is also another mode of filling up the post of Machine Attendants, namely, by promotion from the category of Assistant Machine Attendants. The Assistant Machine Attendant is required to assist the Machine Attendant in the discharge of his duties and the required qualification for the post is middle standard examination possessing I.T.I. Certificate with two years experience.
11. The duty of the Diesel Engine Driver as noticed above is to:
(i) Checking of available Diesel in diesel tank with dip stick.
(ii) Watch lubrication of diesel Engines and its accessories.
(iii) To start Engine with the help of additional auxiliary i.e. compression Unit.
The requisite qualification for the post of Diesel Engine Driver is three years diploma in electrical/mechanical engineering for direct recruits or alternatively Matriculates with I.T.I. certificate in the trade with a minimum experience of 5 years. Additional factor which was on record is that the category of Diesel Engine Drivers (qualified) was converted into Fore-man/J. E.-II which admittedly is a higher post as compared to Machine Attendants.
12. Thus looking at the duties as also the qualifications for the two different categories of posts, namely, Diesel Engine Dirvers (qualified) and the Diesel Engine Drivers (unqualified) as also the Machine Attendants and the Assistant Machine Attendants, there is absolutely no comparison or similarity between the two.
13. The other aspect, namely, whether a Diesel Engine Driver was also in the same pay-scale as Machine Attendant prior to January 1, 1978 may also be looked at this stage. Machine Attendants in the revised pay-scale has been put under Grade-V. There are various categories of employees under Grade-IV such as Lower Division Clerk, Steno-typist, Photophone Projector Operator, Telex Operator/Telex Printer Operator, Telephone Mechanic, Test Mechanic, Telephonist/Complaint Clerk, Time Keeper, Store Munshi, Assistant Store-Keeper, Gauge Reader-cum-Regular Operator, Cinema Operator, Horticulture Supervisor, Winch Driver Grade-I, Head Mistry etc. Diesel Engine Driver is not one of the categories of posts grouped under Grade-V. Similarly Assistant Machine Attendant has been grouped under Grade-IV alongwith 24 other categories. Machine Attendant is shown in pay-scale of Rs. 130-200 (pre-revised) and Rs. 400-600 (revised). Similarly Assistant Machine Attendant is shown in the un-revised scale of Rs. 110-190 revised to Rs. 400-600. All Board employees as per Anne-xure-RB were grouped under nine different categoreis. Machine Attendants and Assistant Machine Attendants as noticed were in Groups V and IV respectively. Diesel Engine Drivers qualified and unqualified on two revisions have been put under Group X and XII in the pay scale of Rs. 700-1200 and Rs. 570-1080 respectively. The pre-revised scale of Diesel Engine Driver as would be appareeant from Annexure-RB in Group X was Rs. 200-450 which admittedly was not un-revised pay-scale of Machine Attendant. Annexure RC is an order passed by the petitioner-Board on April 10, 1981 which shows the un-revised pay-scale of unqualifed Diesel Engine Drivers prior to January 1, 1978 as Rs. 130-200 revised w.e.f. January 1, 1978 to Rs, 400-660 and w.e.f. April 1, 1981 to Rs. 570-1080.
14. From the above it is clear that those categories of workmen who were in the pre-revised scale of Rs. 130-200 were on revision put in the pay-scale of Rs. 400-660 and those in the pay-scale of Rs. 200-450 were put in the pay-scale firstly of Rs. 570-1080 and later on in different pay-scales of Rs. 700-1200 and Rs. 620-1200. Due to this erroneous approach that pay scales were same, the Tribunal reached an incorrect conclusion.
15. There is no doubt that the concept of equality implies and requires equal treatment for those who are situated equally. Equally important is another principle that there cannot be any comparison between unequals. If the facts of a given case fail to establish that the persons who are aggrieved are not situated equally with others, the benefits available to those others cannot ipso facto be given to the former though of course the question as to whether the persons are situated equally has to be determined by the application of broad and reasonable test and not by the application of a mathematical formula of exactitude. The question before the Tribunal was as to whether there was any anomaly or not. In arriving at its conclusion the Tribunal took non-existent factors into consideration. There was absolutely no material on record that immediately prior to January 1, 1978 pay-scales of Diesel Engine Drivers and Machine Attendants were same and similar. There was also no material on record to justify a conclusion that for the two categories the duties and qualification were same and similar. Thus both these categories could not be treated as equal in any respect.
16. Observations of Supreme Court in-Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors., AIR 1988 SC 1291, are that there may be qualitative difference as regards reliability and responsibility. Functions may be same but the responsibility make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scale of pay and other conditions of service. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less it varies from nature and culture of employment.
17. In Randhir Singh v. Union of India 1982-I-LLJ-344 the Court held that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like Pay Commission and not for Courts but where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay. If officers of the same rank perform responsibilities of the post held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and nomenclature is the same.
18. In State of U.P. and Ors. v. J.P. Chaurasia and Ors. 1989-I-LLJ-309, reversing the decision of the High Court allowing same pay-scale to all Bench Secretaries, irrespective of their grades, the Court observed that the answer to the question whether the two posts are equal or should carry equal pay depends upon several factors. It does not just depend upon either the nature of work or volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different, that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission, who would be best Judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it, and not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.
19. Following the ratio of J.P. Chaurasia's case (supra) the later Judgment of Supreme Court in Umesh Chandra Gupta and Ors. v. Oil and Natural Gas Commission and Ors., 1989-I-LLJ-74 held that the nature of work and responsibilities of the post are matters to be evaluated by the management and not by the Courts and what applies to Government and Government servants must equally apply to any management and its employees. If the management for good reasons have classified the post into two categories with different pay-scales, the Courts generally must accept it unless it is demonstrated that it is patently erroneous either in law or on fact. Chaurasia's judgment (supra) was also followed in Tarsem Lal Gautam and Anr. v. State Bank of Patiala and Ors., 1989-I-LLJ-39 in which the classification of two grades on the basis, of length of service was up-held and found to be not discriminatory.
20. In Mewa Ram Kanojia v. All India Institute of Medical Science and Ors. 1989-11-LLJ-578 the Court held that the principle of "equal pay for equal work" is applicable when employees holding the same rank perform similar functions and discharge similar duties and responsibilities but are treated differently. The application of doctrine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay. The Court also held that while applying the doctrine of "equal pay for equal work" it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of "equal pay for equal work" would not apply. Different treatment to persons belonging to the same class is a permissible classification on the basis of educational qualifications.
21. In V. Markendeya and Ors. v. State of Andhra Pradesh and Ors. 1989-II-LLJ-169 similar principles were reiterated that where two classes of employees perform identical or similar duties and carry out the same functions with the same measure of responsibility having same academic qualification, they would be entitled to equal pay. But when on analysis of relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the Court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus with the objects sought to be achieved, the classification must be upheld.
22. In a more recent judgment in Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors., AIR 1992 SC 1203, placing Sub-Registrars (Registration Service) and Judicial Magistrates (Munsiffs) in the same pay-scale was held to be arbitrary. In holding so, the Court observed that the equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave, error had crept in while fixing the pay-scale for a given post and Court's interference is absolutely necessary to undo the injustice. It was held that one of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post. In other words, the pay scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post. Educational qualification is only one of the main factors which has relevance to pay fixation. The complexity of the job to be performed and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale for the job.
23. In the instant case, the petitioners had placed before the Tribunal extract of the report of the Punjab Pay-Scales which has also been placed on the record of the Writ Petition as Annexure-B pointing that the Pay Commission was charged with a responsibility of fixing pays to various categories of employees and it had taken into consideration all the relevant factors. Paras 5.7 and 5.9 are the relevant paragraphs showing that the Commission took into consideration education, training and skill of all the employees concerned as also the duties and responsibilities attached to the post.
24. Before the Tribunal respondents have not at all demonstrated that there was absolute parity in the post of Machine Attendant and Assistant Machine Attendant with that of Diesel Engine Driver (qualified) and Diesel Engine Driver (unqualified). Neither the educational qualifications were same nor the complexity of the job to be performed and responsibilities attached to the same were same and similar. Neither at the time of revision of pay-scales such relevant factors were same and similar nor were they same when decision came to be arrived at by the Tribunal. Both these categories were also not grouped under the same grade on the basis of the educational qualifications, nature of job, duties to be performed and responsibility to be shared They were put in different grades. The Tribunal assumed an erroneous factor into consideration that they were in the same pay-scale and made the Award, which on the fact of it is not only arbitrary but also perverse and is liable to be quashed. Consequently we allow the Writ Petition C.W.P. No. 421 of 1987 and quash and set aside Award Annexure-P dated April 5, 1987 made by Respondent No. 13.A
25. In so far as the other writ petitions are concerned, as noticed above, learned Counsel for the petitioners stated that the same are dependent upon the validity of Award made by Respondent No. 13 in the case of Respondents No. 1 to 12. Petitioners in CWP No. 134 of 1990 are substation Attendants. In C.W.P. No. 135/90 they are junior attendants, in C.W.P. 151/90 they are Winch Drivers/Crane Drivers and in C.W.P. No. 602 of 1990 they are the Pump Drivers. It is the petitioners case in all these four petitions that in case Award of Respondent No. 13 given in favour of respondents No. 1 to 12 is upheld by this court dismissing C.W.P. 421/87, on the analogy of the award, they would also be entitled to the same pay-scales with effect from January 1, 1978. Since we have quashed and set aside the award of the Industrial Tribunal and it is not shown or demonstrated that the petitioners in these four writ petitions are similarly situated as that of Diesel Engine Drivers, we have no hesitation in dismissing four writ petitions also for the selfsame reasons. Costs on the parties.