Central Administrative Tribunal - Allahabad
Ram Sagar & Ors vs Union Of India on 18 December, 2023
Reserved on 13.12.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 18th day of December, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 06 of 2011
1. Ram Sagar aged about 54 years S/o Shri Harbansh working as
Helper Grade - I/Chlorinator Operator, R/o - Railway Quarter
No. 2-G/OH, Railway Colony, Mirzapur.
2. Bal Mukund aged about 54 years S/o Late Shri Dukh Haran
Prasad, Helper Grade - I / Chlorinator Operator working under
SEE (Works) / N.C. Railway, Mirzapur, R/o - Mohalla Ratanganj,
Post: Ganeshganj, District : Mirzapur.
3. Krishna s/o Doodhnath Helper Grade - I / Chlorinator Operator,
under SEE (Works) / N.C. Railway, Mirzapur, R/o - Railway
Quarter No. 6-C/OH Mirzapur.
........... APPLICANTS
By Advocate: Shri Santosh Kumar Kushwaha and Shri Sudama
Ram
Versus
1. Union of India through General Manager, North Central Railway,
Headquarter Office, Subedarganj, Allahabad.
2. Divisional Railway Manager, North Central Railway, Allahabad.
3. Principal Chief Engineer, North Central Railway, HQ Office,
Allahabad.
4. Senior Divisional Engineer (I) / N.C. Railway, DRM's Office,
Allahabad.
5. Divisional Engineer / ADEN, N.C. Railway, Mirzapur.
6. IOW / SEE (Works), N.C. Railway, Mirzapur.
..........RESPONDENTS
By Advocate: Shri Vidyapati Tripathi
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ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (Judicial) Shri S K Kushwaha, learned counsel for the applicants and Shri Vidyapati Tripathi, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
i. The Hon'ble Tribunal may be pleased to impugned letter dated 15.3.2005 issued by the Sr. Divisional Engineer (I)/N.C. Railway, Allahabad (Annexure A-1), Order dated 5.5.2005 passed by the Sr. Divisional Engineer (I), N.C. Railway Allahabad (Annexure A-2), Order dated 15.3.2010 passed by the Sr. Divisional Engineer (I), N.C. Railway, Allahabad (Annexure A-3) and Order dated 6.7.2010 passed by General Manager (Engg.)/C.E. (Works), N.C. Railway, Headquarter Office, Allahabad (Annexure A-4) and direct the respondents to give similar benefits of scale of pay to the applicants of chlorinator operator as given in other cases of the Railways. ii. The Hon'ble Tribunal may further be pleased to direct the respondents to allow the fixation of pay with retrospective effect i.e., from the date applicants are working as Chlorinator Operator Grade Rs. 3050-4590 / 5200-20200 GP 1900/- iii. Any other writ or order or direction which the Hon'ble Tribunal deems fit and proper in the circumstances of the case may also kindly be issued in the interest of justice.
iv. Cost of the Application may also be awarded."
3. A compendium of the brief facts as narrated in the instant original application is that the applicants are seeking fixation of pay with retrospective effect from the date they claim to have discharged the services of Chlorinator Operator in the respondents' department.
Applicants seek quashing of the order dated 15.03.2005 and
2|Page 05.05.2005 issued by the Sr. Divisional Engineer (I) / N.C. Railway, Allahabad which was passed in compliance of the order dated 25.11.2004 passed by the Allahabad Bench of the Tribunal in OA No. 1613 of 2002 titled Ram Sagar and Others Vs Union of India; order dated 15.03.2010 passed by the same respondent in compliance of the judgment dated 07.12.2009 passed by the Allahabad Bench of the Tribunal in OA No. 1099 of 2006 titled Ram Sagar and others Vs Union of India; order dated 06.07.2010 passed by the General manager (Engg.) / C.E. (Works), N.C. Railway, Headquarter Office, Allahabad affirming the respondents order dated 15.03.2010.
4. We have heard learned counsels appearing for the parties and gone through the records.
5. Disclosing brief history of the case, learned counsel for the applicants has submitted that the applicants were initially engaged as Khalasis with the status of temporary railway employees on 15.7.1978 and were further promoted as Helper Khalasi Grade - I w.e.f. 1.9.1989. The applicants have been performing the duties of Chlorinator Operator Grade Rs. 950-1500 RPS / 3050 - 4590 RSRP from the dates as mentioned below:
S.No. Name of the Date of Date from which
applicant Appointment working as Chlorinator
1. Ram Sagar 15.7.1978 01.01.1990
2. Bal Mukund 15.7.1978 15.04.1982
3. Krishna 15.7.1978 17.07.1996
Learned counsel for the applicant has argued that the applicant Ram Sagar has been working as Chlorinator w.e.f. 01.01.1990 and not since 04.07.1996 as wrongly claimed by the respondents. This can be confirmed from the letter dated 12.01.1992 issued by the respondents and as per Duty Roster issued on 14.02.1994.
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6. Learned counsel for the applicant further submitted that on 26.11.1992, the Inspector of Works (IOW), Mirzapur wrote to Divisional Engineer, N. Railway, Mirzapur to fill up 8 posts of Chlorinator Operators. Consequently, on 05.03.1993, the IOW/Mirzapur asked the Assistant Engineer N. Railway / Mirzapur to hold trade test for the post of Chlorinator. On 24.07.1993, the Assistant Engineer N. Railway / Mirzapur fixed the date for holding trade test and applications were invited. Applicant No. 1 and 2 applied for the same but on 26.07.1993, the Assistant Engineer / Mirzapur postponed the trade test which was subsequently cancelled on 08.11.1993 and also cancelled the sanction of ELA for 8 posts.
7. Learned counsel for the applicants further argued that applicants also made their claim on the basis of award granted by the CGIT/Kanpur in LCA No. 137 of 1991 in an identical case of Chlorinator Operators filed by Sri Inder Bahadur Singh, who was performing the similar duties like the applicants, decided on 22.12.1992. Inder Bahadur Singh was put to work as Chlorinator Operator Grade Rs. 260-400 RS / 3050-4590 RSRP at Kanpur after giving 3 months practical training and despite his representations he was not allowed the wages of the post of Chlorinator Operator Grade Rs. 260-400 RS / 950-1500 RPS. Aggrieved with the denial of wages of the post of Chlorinator Operator, the aggrieved person filed LCA No. 137 of 1991 before the Central Government Industrial Tribunal and Labour Court, Kanpur and his claim was allowed by the presiding officer, CGIT and it was directed that the petitioner shall be paid the difference of wages for the work done by him along with interest. The judgment was challenged by the respondents before the Hon'ble High Court of Allahabad vide Civil Misc. Writ Petition No. 27210 of 1998 and the same has been dismissed by the Hon'ble Court thereby affirming the order of the Labour Court passed in favour of the applicant therein.
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8. Learned counsel for the applicants has also argued that aggrieved with the denial of promotion and wages for the post of Chlorinator Operator Grade Rs. 3050-4590, applicants had filed OA No. 1613 of 2002 which was disposed of directing the respondents to decide pending representations of the applicants. The said representations were rejected by way of an unreasoned and cryptic order dated 15.03.2005. Contesting the order dated 15.03.2005, applicants preferred another representation dated 04.04.2005 before the respondents but the same was also rejected on frivolous grounds by way of a non-speaking order dated 05.05.2005. Aggrieved still, the applicants preferred a representation dated 05.04.2006 which was rejected by the respondents by way of a cryptic order pursuant to the direction given by the Tribunal in OA No. 1099 of 2006. Learned counsel for the applicants has further submitted that although the applicants have already been retired from service, they are liable to be granted pay fixation for the simple reason that they have discharged their duties in the capacity of chlorinator operator for a very long period of time and denying them the same would amount to grave violation of principles of natural justice and also the principle of equal pay for equal work.
9. Learned counsel for the respondents vehemently opposed the contentions of the applicants and by way of his counter affidavit, he has submitted that the applicants were granted the benefit of ACP Scheme on the dates it fell due so much so that all the financial upgradation as covered under the Scheme have already been granted to the applicants. Learned counsel further argued that the post of chlorinator operator was never sanctioned in the office of the respondents where the applicants were working and for this simple reason, there was no point of conducting trade test.
10. Referring to the case of Indra Bahadur, learned counsel for the respondents argued that the case of the applicant is not similar to that of Indra Bahadur who was posted at Kanpur because the place where
5|Page the applicant is posted, there is no machine regarding mixing of chlorine and on the contrary three months of practical training was given to Indra Bahadur at his place of working in Kanpur and a chlorination machine was installed there but no such machine is installed at the place where the applicant is working. The statement of the applicants that they have done the work of a chlorinator operator is incorrect as chlorinator operator and chlorination, both are different things, the meaning of chlorination is only to put chlorine and bleaching powder in the water tank which can be done by any person whereas working of the chlorinator operator is to operate the chlorination machine which is an altogether different thing. Thus, learned counsel for the respondents submitted that the instant original applications is liable to be dismissed being devoid of merits.
11. Rejoinder has been filed by the applicant reiterating the same facts and grounds as have been mentioned in the original application. To strengthen his case, learned counsel for the applicants has placed reliance upon the judgment of the Hon'ble Supreme Court of India dated 26.10.2016 passed in Civil Appeal No. 213 of 2013 titled State of Punjab & Ors Vs Jagjit Singh & Ors submitting that the case of the applicants is squarely covered with the relied upon case.
12. We have considered the rival contentions advanced by the learned counsel appearing for the parties and gone through the documents on record.
13. As the facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. Since all the three applicants have already been retired from service, the limited issue to be decided here is whether they are liable to be granted the benefit of pay fixation thereby paying them the difference of wages / salary, if any, accrued regarding the work done by them in the capacity of chlorinator operator. Applicants counsel has argued that all the three applicants have worked in the capacity of chlorinator operator for
6|Page some duration of time as is depicted by the table illustrated in para 5 of this judgment. Applicants' counsel has further contended that denying the applicants their pay for the work done by them as chlorinator operator is tantamount to violation of principle of natural justice as well as principle of 'equal pay for equal work'. To substantiate this argument, applicants' counsel has relied upon the case of Indra Bahadur as has been discussed in previous paragraphs submitting that applicants' case is similar to that of Indra Bahadur and hence they must be granted the benefit of difference of wages / salary for the work done by them in the capacity of chlorinator operator. Respondents' counsel has contended that the case of Indra Bahadur has no relevance to the instant controversy involving the applicants as Indra Bahadur was posted in Kanpur where the chlorinator machine was installed and a training of three months was also given to him before he was appointed to do the job of Chlorinator Operator. On the contrary, no such training was ever imparted to the applicants nor was there any chlorinator machine installed in the office of the respondents where the applicants had worked nor did they appear to pass trade test in that regard. As regards to the pay discrepancy, respondents' counsel has submitted that applicants have been granted the benefit of MACPs as and when it accrued and thus, there is no point in refixing their pay when they have already been retired from service and all the retiral dues have been advanced in their favour.
14. The case of Indra Bahadur Singh was filed before the Labour Court vide LCA No. 137 of 1991 and the judgment in the same was passed in favour of the aggrieved person. Respondents therein challenged the judgment of the Labour Court before the Hon'ble High Court of Allahabad vide Civil Misc. Writ Petition No. 27210 of 1998 titled Union of India and another Vs I.B. Singh and another decided on 13.03.2013 thereby affirming the order of the Labour Court. Applicants' counsel has argued that the applicants herein are liable to be granted the benefit in view of the law laid down by the
7|Page Hon'ble High Court in above Writ as the applicants herein are similarly placed to Indra Bahadur Singh and their case is squarely covered by the said judgment. However, it is pertinent to mention that in the said case, the applicant therein had participated and subsequently passed the trade test which is not the case with the applicants herein. The fact that Indra Bahadur Singh had passed the trade test was taken into cognizance by the Hon'ble High Court in the fourth paragraph of the above judgment when it ruled that: "Before the Labour Court, the workman filed documents to prove that he had passed the trade test of Chlorinator Operator and also proved the difference of wages, which the Chlorinator Operator was getting and which he was being paid. The Labour Court, after considering the material evidence brought on record, in the absence of any document being filed by the petitioner, allowed the claim holding that the petitioner has been able to prove that he was working on the post of Chlorinator Operator. The Labour Court accordingly allowed the application and directed that the workman was entitled to the difference of wages from February 1982 to June 1991." The quotation vividly implies that present case of the applicants cannot be compared with that of Indra Bahadur Singh as in that case, Indra Bahadur Singh had passed the trade test whereas the applicants herein had never appeared in any such test. It may be the case that the trade test was once scheduled to be organised when the applicants had also applied but the same never came to fruition and the fact that remains true is that no such trade test was ever conducted nor any post regarding the same was ever sanctioned. Furthermore, the Tribunal also cannot turn a blind eye to the fact that no chlorination machine was installed in the respondents' office where the applicants were working but one such machine was installed in the office where Indra Bahadur Singh had worked. Similarly, the Tribunal also cannot overlook the fact that applicants have already been retired from service and granting any monetary / financial benefit at this belated stage by way of refixation of pay would open a Pandora's Box advancing an unwarranted invitation to many such candidates to
8|Page approach before the judicial forums with their needless litigations simply for the fact that once in a while during their service period, they were made to do the work of some other grade on absolute temporary basis and not given the pay benefit of the same.
15. Furthermore, the argument of the applicants' counsel that the case of the applicants is liable to be considered under the principle of 'equal pay for equal work' does not hold water because at the first place, no cogent proof or evidence has been brought forward which may speak for the fact that the applicants had actually worked in the absolute capacity of chlorinator operator and discharged all those functions as done by a chlorinator operator especially appointed for the said job. In this regard, respondents' argument that the job and nature of service of a chlorinator operator is different from what the applicants used to do. Equal pay for equal work does not simply mean that all the persons doing the same type of job can be granted similar pay benefits irrespective of the nature of service, source of recruitment (whether engaged temporarily or on permanent basis) and various other incidents of service. The differentia on these grounds would be based on intelligible criteria which has rational nexus with the object sought to be achieved. To clear the air on this controversy, it would be in the fitness of things to refer to the law laid down by the Apex Court in the case of Federation of All India Customs & Central Excise Stenographers (Recognised) and others Vs. The Union of India and others reported in JT 1998 2 S.C. 5 19, wherein the Court had examined the issue meticulously and held that:
"Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities 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 scales of pay and other conditions of service. So long as such value judgment is made bonafide, reasonably on an intelligible criteria which
9|Page has a rationale nexus with the object of differentiation such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right."
16. Learned counsel for the applicants has referred to the judgment of the Apex Court passed in the case Jagjit Singh (supra) in which specific reliance to paragraph no. 5, 56, 57 and 58 has been placed. For the sake of clarity, the relied upon paragraphs are quoted herein below:
"5. The issue which arises for our consideration is, whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts. The full bench of the High Court, while adjudicating upon the above controversy had concluded, that such like temporary employees were not entitled to the minimum of the regular pay-scale, merely for reason, that the activities carried on by dailywagers and the regular employees were similar. However, it carved out two exceptions, and extended the minimum of the regular pay to such employees. The exceptions recorded by the full bench of the High Court in the impugned judgment are extracted hereunder:-
"(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.
(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons. Their claim for regularization, if any, may have to be considered separately in terms of legally permissible scheme.
10 | P a g e (3) In the event, a claim is made for minimum pay scale after more than three years and two months of completion of 10 years of continuous working, a daily wager, ad hoc or contractual employee shall be entitled to arrears for a period of three years and two months."
56. We would also like to extract herein Article 7, of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:-
"Article 7 The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."
India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of 'equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned 11 | P a g e counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.
58. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.
59. Disposed of in the above terms."
A bare perusal of the above quotation reveals that the instant case of the applicants cannot be held as identical to the case law cited upon. This is because the applicant(s) in the above cited case were temporarily engaged (daily wage, ad hoc, casual, contractual, etc.) employees however, in the instant case, the applicants were holding a permanent post. Furthermore, the controversy in the above cited case specifically revolved around the fact that despite being appointed on casual basis, the employees were made to discharge their duties which were similar to what discharged by regular employees holding sanctioned posts but not accorded the likewise pay benefits and for this reason, the Apex Court ruled in favour of those temporarily engaged employees. The instant case is dissimilar to the relied upon case also because at the first place, it has not been cogently proved 12 | P a g e that the applicants did actually perform the duties of a chlorinator operator in the exact definition of the word. Secondly, they had never appeared nor passed any trade test. Thirdly, the applicants never operated the chlorination machine because no such machine was installed in the office where applicants worked and it's not an intricate thing to understand that in the absence of a chlorination machine, no post of chlorinator operator was ever sanctioned. It would not be a fancy deduction that just because the applicants never operated any chlorination machine, they cannot be said to have performed the duties of a chlorinator operator.
17. Furthermore, it would be in the fitness of things to refer to paragraph 42 of the judgment passed by the Apex Court in the case of Jagjit Singh (supra) wherein the Hon'ble Court had summarised the principle of 'equal pay for equal work' and in the very first sub- paragraph, the Hon'ble Court held that:
"(i) The 'onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of 'equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case, Union Territory Administration, Chandigarh v. Manju Mathur, the Steel Authority of India Limited case, and the National Aluminum Company Limited case)"
Taking note of the above paradigm, the Tribunal is of the view that nowhere it has been adequately and cogently establish that the applicants had actually performed the duties and functions of a chlorinator operator in the exact same context and meaning of the word.
18. Thus, in view of the above deliberations and analysis, we are of the considered opinion that the instant case holds no merit and is liable to be dismissed accordingly. The Tribunal cannot overlook the fact that the applicants have never participated nor passed the trade test. Further, the resemblance made with the case of Indra Bahadur 13 | P a g e Singh cannot be accepted because in the said case, the candidate had qualified the trade test and he was operating at Kanpur Division of the respondents' office where the chlorinator machine was installed. For that purpose, the said employee was given a three months training. However, in the instant case of the applicants, they never passed any trade test and no such training was ever given nor was there any such machine installed. Furthermore, no cogent explanation has been provided on the part of the applicants to substantiate their argument for allowing their case adhering to the principle of 'equal pay for equal work'.
19. Accordingly, OA No. 06 of 2011 is dismissed being devoid of merits.
20. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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