Jharkhand High Court
M/S Damodar Valley Corporation vs Their Workmen Represented By The Dvc ... on 28 March, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No. 4307 of 2006
M/S Damodar Valley Corporation, through Sri P. R. Bhagat, Joint Director of
Personnel and Deputy Secretary, D.V.C, Ranchi ..... Petitioner
Versus
1. Their workmen represented by the DVC Karamchari Sangh, Hazaribagh Unit,
Hazaribagh
2. The State of Jharkhand, through the Additional Secretary (State of Jharkhand)
..... Respondents
With
W.P.(L) No. 3533 of 2011
The Management of M/S Damodar Valley Corporation, through Bishnu Kumar
Kashyap, Joint Director (Personnel), Hazariabgh and Ranchi
..... Petitioner
Versus
1. Shri Basudeo Prasad Verma
2. Shri Nikhil Dey
3. Shri Durga Nand Jha
4. Shri Satendra Nath Bhattacharya
5. Shri Ram Lakhan Ram
6. Shri Nawal Kishore Singh
7. Shri Kartik Rakshit
8. Shri Goverdhan Lal
9. Shri Satendar Tiwary
10. Shri Nagendra Prasad Singh
11. Shri Binod Kumar
12. Syed Mohammed Ayub Alam
13. Shri Shambhu Ram
14. Shri Sukhdeo Pandey
15. Shri Nripandra Nath Ghosh
16. Shri Rajendra Ram
17. Shri Kailash Pati
18. Yaqub Ansari
19. Shri Sheo Prasad Ram
20. Shri Kuldeep Singh
21. Shri Ram Parwesh Singh
22. Shri Ramchandra
23. Shri Rishi Kesh Ghosh
24. Shri Ajeet Kumar Verma
25. Shri Girja Nand Agarwal
26. Shri Bishwa Nath Mahto
27. Mobin Akhtar
28. Shri Naveen Kumar Sinha
29. Most. Tabassum Parween
30. Shri Arun Kumar Singh
31. Shri Ashok Kumar Singh
32. Shri Sudhir Kumar Verma
33. Shri Sabrulal Yadav
34. Shri Narendra Kumar Mishra
35. Shri Madan Kumar Bathak
36. Shri Bahadur Prasad
37. Shri Balmiki Jha
38. Shri Ganesh Prasad Sinha
39. Shri Krishna Murari Prasad
40. Quiyam Ansari ..... Respondents
2
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CORAM HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners: Mr. R. N. Sahay, Sr. Adv.
For the Respondents: Mr. Satish Bakshi, Advocate
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23/28.03.2018 W.P.(L) No. 4307 of 2006 has been filed for quashing the award dated 31.07.2004 [Annexure-9 to W.P.(L) No. 4307 of 2006] passed by the Presiding Officer, Industrial Tribunal, Ranchi (hereinafter referred to as 'the learned Tribunal') in Reference Case No. 81 of 1996 whereby it has been held that the Gauge Readers working in the petitioner-Corporation at Soil Conservation Department (SCD), Hazaribagh are entitled to get the pay and other facilities equal to the Gauge Readers working in DVC, Maithon from the date of the notification of the reference.
2. W.P.(L) No. 3533 of 2011 has been filed against the order dated 30.03.2011 [Annexure-3 to W.P.(L) No. 3533 of 2011] passed by the Presiding Officer-cum-authority, Labour Court, Hazaribagh under Section 33-C(2) of the Industrial Dispute Act, 1947 (hereinafter referred to as 'the Act, 1947') in M.J. Case No. 6 of 2010 whereby the claim of the respondents has been allowed with a direction to the petitioner-Management to pay the amount so computed to the concerned workmen within a period of three months. The operation of the order dated 30.03.2011 passed under Section 33-C(2) of the Act, 1947 was stayed vide order dated 25.02.2013. Subsequently, vide order dated 24.07.2017, the interim order dated 25.03.2013 was vacated. Aggrieved by the order dated 24.07.2013, the petitioner-Management preferred L.P.A. Nos. 281 of 2013 and 282 of 2013. The learned Division Bench of this Court vide order dated 03.10.2013, directed not to take any coercive steps against the petitioner-Management, if the total amount, as directed in the impugned award, is deposited before the Presiding Officer, Labour Court, Hazaribagh by 28.10.2013 with further observation that if the concerned workmen pray for release of the amount, the Presiding Officer, Labour Court, Hazaribagh may release 50% of the awarded amount to the individual workman on proper identification and verification in presence of the 3 officials of the petitioner-DVC on filing an undertaking to refund the amount in case the impugned award is reversed at any stage.
3. It is jointly submitted by the learned counsel for the parties that 50% of the awarded amount deposited before the learned Labour Court, Hazaribagh has been disbursed to the individual workman. However, rest 50% of the awarded amount is still lying before the learned Labour Court, Hazaribagh. The Order dated 03.10.2013 was put to challenge by the petitioner-Management before the Hon'ble Supreme Court in Special Leave to Appeal (C) No. 36457 of 2013. However, the same was dismissed vide order dated 09.12.2013 with a liberty to the petitioner-Management to request the High Court for expeditious disposal of the present writ petition being W.P.(L) No. 4307 of 2006.
4. The factual background of the case, as stated in the writ petitions, is that during monsoon season, the SCD, Hazaribagh of the petitioner-Management used to engage some Gauge Readers from the local villages purely on casual basis as and when required for gauging the flow of water and siltation effect for soil conservation purposes in nalas, streams etc. The Gauge Readers working in the SCD, Hazaribagh made representation before the Management for (a) regularization and (b) equal pay and facilities to those of the Gauge Readers engaged at Maithon during monsoon season under the Manager, Reservoir Wing of the Chief Engineer (Civil). During the pendency of the said representation, they preferred a writ petition being C.W.J.C No. 13 of 1993 (R) with the same prayer which was disposed of on 14/19.08.1994 with a direction to the Management to dispose of the said representation by passing a reasoned order after giving opportunity of hearing to the concerned workmen. Thereafter, the respondent No.2-the Additional Secretary, State of Jharkhand passed an order rejecting the claim of regularization and equal pay to the Gauge Readers employed in Manager Reservoir Wing of the Chief Engineer (Civil) i.e. at Hazaribagh as the responsibility, nature of jobs, transmission of datas so collected and financing were found different and the said order was communicated vide forwarding letter No. SC/HRD/CWJC-13/93(R) dated 16.04.1995. Aggrieved thereby, the 4 concerned workmen preferred another writ petition being C.W.J.C No. 1306 of 1995 (R) which was subsequently withdrawn with a liberty to the workmen to agitate their grievance before the appropriate Forum. The Department of Labour, Employment & Training, Government of Bihar vide order of Reference as contained in Notification No. 3-D1-18050/96-L.E & T-804 dated 17.09.1996, referred the dispute to the learned Tribunal for adjudication. The terms of the reference is as follows:-
"Whether the Gauge Reader working in DVC Soil Conservation Department, Hazaribagh are entitled to pay and other facilities equal to Gauge Readers working in DVC Maithon? If so, from what date?"
5. The Industrial Tribunal vide impugned award dated 31.07.2004 allowed the said reference holding, inter alia, that the Gauge Readers working in DVC Soil Conservation Department, Hazaribagh are entitled to get the pay and other facilities equal to the Gauge Readers working in DVC, Maithon from the date of notification of the Reference, which gives rise to filing of the present writ petitions.
6. Mr. R. N. Sahay, the learned Sr. Counsel for the petitioner-Management, submits that the Gauge Readers engaged in Maithon were gauging water in the river Damodar, Barakar, Konar and its tributaries for the purpose of safety of the dams and also collecting data for longevity and increase of life span of the dams. The learned Tribunal has committed an error by making an observation in the impugned award that the duty chart of the Gauge Readers, Hazaribagh and those of Maithon were not produced as exhibited documents by the Management. In fact, the onus of proving the fact that the Gauge Readers of Hazaribagh vis-à-vis of Maithon were engaged in the same nature of job, was upon the respondent- Union. For claiming equal pay, the work is also required to be the same and any difference in the nature of work, would not entitle a person for claiming same pay being paid to the others. The Gauze Readers in DVC, Maithon were temporarily engaged after observing due process of recruitment and obtaining the names sponsored by the Employment Exchange against the sanctioned posts and those who got the required educational qualification prescribed by the Corporation, were also placed in the sanctioned scale of pay. The impugned award is bad in 5 law, as the learned Tribunal failed to appreciate the fact that equal pay and facilities is a concept which requires for its applicability the complete and wholesome identity between a group of employees who are claiming and other group of employees who are enjoying. When the works performed by two categories of the employees and the qualifications for their recruitments are different, they cannot claim equal pay. The burden of proof is not on the employer who denies equality, rather it is upon the workmen to prove the equality. The conclusion drawn regarding performing similar nature of work is based on surmises, as the learned Tribunal after accepting the fact that the work performed by the Gauge Readers of SCD, Hazaribagh may not be exactly identical with the work performed by the Gauge Readers in Maithon, erred in concluding that the works of both sets of Gauge Readers are same and similar to a great extent. The Union did not produce any document before the learned Tribunal to show that the Gauge Readers working in SCD, Hazaribagh were performing similar nature of work to those of Mathon. On the other hand, the petitioner-Management clearly proved that the workmen of the respondent-Union were appointed as casual labours engaged under the Soil Conservation Department, Hazaribagh for gauging the flow and siltation effect for soil conservation purpose in the nalas, streams etc. The learned Tribunal has failed to consider the fact that in absence of any permanent post, the question of continuous employment to any casual labour like the Gauge Readers working in SCD, Hazaribagh does not arise. The casual labours and/or Gauge Readers in SCD, Hazariabgh were employed from the available local youths without following the procedure of recruitment and the sanctioned posts, whereas the Gauge Readers engaged at Maithon were appointed against the sanctioned posts during monsoon period from June to October after following the prescribed procedure of recruitment i.e. inviting names from the Employment Exchange and the conditions as laid down in their appointment offer. The educational qualification for the casual Gauge Readers, SCD, Hazaribagh was different from the seasonal/temporary Gauge Readers in Maithon. The educational qualification for the casual Gauge Readers working at SCD, 6 Hazaribagh was non-Matriculation whereas the educational qualification for the season/temporary Gauge Readers working at Maithon was Matriculation or School final.
7. Per Contra, the learned counsel for the respondent-Union submits that the petitioner-Management had constituted a Soil Conservation Department in the year 1949 with its Headquarters located at Hazaribagh to tackle the problems of reservoir siltation and soil detrition in the catchment area of Damodar river. Four multipurpose dams were constructed at Konar, Tilaiya, Panchat and Maithon respectively and at each dam, Gauge Readers were employed by the petitioner DVC since 1949. The number of the Gauge Readers at SCD, Hazaribagh where the workmen of the respondent-Union were engaged, was 40 and they had been working for several years ranging from 8 to 32 years. The Gauge Readers at SCD, Hazaribagh had been rendering the same service as those at Maithon, however, they were not being paid the salaries, wages, perquisites and the other benefits, as were being paid to the Gauge Readers at Maithon. Thus, the petitioner-DVC had adopted discriminatory practice by treating the Gauge Readers at SCD, Hazaribagh different from the Gauge Readers at Maithon and depriving them of regular scale of pay and other allowances which were being paid to the Gauge Readers at Maithon. The learned Tribunal has passed the impugned award after taking into consideration the rival submissions of the parties, the evidences on record and all the relevant materials and facts and as such the same needs no interference. The post of Gauge Readers at SCD, Hazaribagh was advertised on the Notice Board of the petitioner-Management and all the workmen applied for the said posts and they were called for interview and thereafter they were appointed to the posts of Gauge Readers. The procedure prescribed for employment of Gauge Readers at Maithon was almost the same as that of the Gauge Readers employed at SCD, Hazaribagh. For two sets of the workmen, the mode of engagement, the nature of work, the responsibilities, the tenure of the employment and the purpose of engagement was the same i.e. collection and transmission of data, however, as has been mentioned in the paragraph 4(c) of 7 the counter affidavit, the nature of payment was definitely different. The Gauge Readers at SCD, Hazaribagh had been unfairly discriminated by not being paid requisite pay scale and had been made to work as daily wagers on meagre wages. The admitted background of the facts, as recorded by the learned Tribunal, is that (i) both sets of employees were Gauge Readers (ii) both sets of employees were of DVC (iii) both sets of employees worked on dam by the side of the rivers and (iv) both works were for five months in a year.
8. Heard learned counsel for the parties and perused the relevant materials placed on record. The petitioner-Management has challenged the impugned award dated 31.07.2004 whereby the reference has been answered in favour of the concerned workmen observing that the Gauge Readers working in DVC Soil Conservation Department, Hazaribagh are entitled to get the pay and other facilities which are being paid to the Gauge Readers working in DVC, Maithon from the date of the notification of the reference. The petitioner-Management has claimed that the qualification, nature of duty, responsibility, mode of appointment of the Gauge Readers working at Hazaribagh were different from those of the Gauge Readers working in the DVC Maithon. On the other hand, the learned counsel for the respondent-Union submits that the concerned workmen were doing the similar work with the same responsibility and they were also holding the same qualification as the Gauge Readers of DVC Maithon.
9. The learned counsel for the respondent-Union puts reliance on a judgment of the Hon'ble Supreme Court in the case of Management of Madurantakam Coop. Sugar Mills Ltd. Vs. S. Viswanathan, reported in (2005) 3 SCC 193 on the scope of judicial review by the High Court under Article 226/227 of the Constitution of India in a writ petition filed against an award. Paragraphs 12 and 13 of the said judgment read as under:-
"12. Normally, the Labour Court or the Industrial Tribunal, as the case may be, is the final court of facts in these types of disputes, but if a finding of fact is perverse or if the same is not based on legal evidence the High Court exercising a power either under Article 226 or under Article 227 of the Constitution can go into the question of fact decided by the Labour Court or the Tribunal. But before going into such an 8 exercise it is necessary that the writ court must record reasons why it intends reconsidering a finding of fact. In the absence of any such defect in the order of the Labour Court the writ court will not enter into the realm of factual disputes and finding given thereon. A consideration of the impugned order of the learned Single Judge shows that nowhere has he come to the conclusion that the finding of the Labour Court was either perverse or based on no evidence or based on evidence which is not legally acceptable. Learned Single Judge proceeded as if he was sitting in a court of appeal on facts and item after item of evidence recorded in the domestic enquiry as well as before the Labour Court was reconsidered and findings given by the Labour Court were reversed. We find no justification for such an approach by the learned Single Judge which only amounts to substitution of his subjective satisfaction in the place of such satisfaction of the Labour Court.
13. The Division Bench too in appeal, in our opinion, has committed the same error. Maybe, there was some justification, since if it had to allow the appeal, then it had to consider the points on facts decided by the learned Single Judge. In that process it also took up for consideration every bit of evidence that was considered by the Labour Court as well as by the learned Single Judge and disagreed with the finding of the learned Single Judge."
10. In the aforesaid judgment, the Hon'ble Supreme Court has held that normally, the Labour Court or the Industrial Tribunal is the final Court of facts and the High Court cannot sit in appeal to the finding of Industrial Courts. However, if a finding of fact is perverse or if the same is not based on legal evidence, the High Court exercising the power either under Article 226 or under Article 227 of the Constitution of India can go into the question of fact decided by the Labour Court or the Industrial Tribunal. The High Court has the jurisdiction to enquire as to whether a finding arrived at by the Industrial Tribunal was based on evidence and to correct an error apparent on the face of the record.
11. Further, in the case of Ishwarlal Mohanlal Thakkar Vs. Paschim Gujarat Vil Co. Ltd. reported in (2014) 6 SCC 434, the Hon'ble Supreme Court has held as under:-
"18. The power of judicial review of the High Court has to be alluded to here to decide whether or not the High Court has erred in setting aside the judgment and order of the labour court. In the case of Heinz India Pvt. Ltd. & Anr. v. State of UP & Ors. [(2012) 5 SCC 443], this Court referred to the position held on 9 the power of judicial review in the case of Reid v. Secretary of State for Scotland [(1999) 1 All ER 481], wherein it is stated that: -
"Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decisions itself it may be found to be perverse or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of evidence."
12. After taking into consideration the above circumspection as has been held by the Hon'ble Supreme Court, it would be appropriate to examine the impugned award to see as to whether the learned Tribunal has made any patent illegality while passing the impugned award which necessitates interference by this Court.
13. In the industrial adjudication, five witnesses were examined on behalf of the concerned workmen and all were the Gauge Readers working in SCD, Hazaribagh. They deposed that the nature of work performed by the Gauge Readers of Maithon and SCD, Hazairbagh were similar. They deposed that the Gauge Readers of Maithon did the work of gauge reading, measurement of flow of water, collection of data and sending information thereof and worked for the safety of the dams. Likewise, the Gauge Readers of SCD, Hazaribagh were also performing the work of gauge reading, measurement of flow of water, collection of data, collection of sample and they also worked for safety of the dams. They 10 further deposed that the notice for appointment was published on the Notice Board whereupon they made applications and after being successful in interview, they were appointed. They further deposed that the minimum qualification required for appointment of both sets of Gauge Readers was Matriculation. In the suggestion put to them on behalf of the Management that the fund for payment of the wages to them was managed 50% by the Central Government and 50% by the DVC, the witnesses deposed that they did not know the source of the fund, however, the payment was being made by the DVC.
14. The petitioner-DVC produced one witness before the learned Tribunal who deposed that the Gauge Readers engaged under S.C.D, Hazaribagh were gauging the flow and siltation effect for soil conservation purposes in the nalas, streams, rivers etc. in the valley of Damodar and Barakar system whereas the Gauge Readers at Maithon were gauging Damodar, Barakar and Konar rivers and its tributaries for the purpose of the safety of the dams. They also used to collect data for the longevity and the lives of the dams. It has further been deposed that no procedure was adopted to appoint the Gauge Readers at SCD, Hazaribagh. The fund of the scheme used to come from the Agriculture Ministry, Central Government. On the other hand, according to the respondent-Union, the Gauge Readers controlled by the SCD, Hazaribagh and the Gauge Readers engaged at Maithon, were employed for the same purposes and used to do the same work of gauge reading and collection of data. Both sets of Gauge Readers worked for the purpose of safety of dams and reservoirs and their place of work was near the rivers and the period of their work was also the same.
15. For better appreciation of the issue involved, the submissions of learned counsel for the parties on each point as well as the findings of the learned Tribunal are being dealt with head wise.
Nature of work
16. So far as the nature of work of the Gauge Readers engaged by the SCD, Hazaribagh and the Gauge Readers employed at Maithon is concerned, the Management has contended before the learned Tribunal that the Gauge Readers 11 in SCD, Hazaribagh were gauging the flow and siltation effect for soil conservation purposes in the nalas, stream, rivers etc. in the valley of Damodar and Barakar system whereas the Gauge Readers at Maithon were gauging the rivers Damodar, Barakar, Konar and its tributaries for the purpose of safety of the dams and they also used to collect data for the longitivity and lives of the dams. From the side of the concerned workmen, it was stated that the concerned workmen were doing the work similar to the work of the Gauge Readers of Maithon.
17. The learned Tribunal held that the witness produced by the Management had admitted during cross-examination that he had no knowledge about the Gauge Readers employed at Maithon. However, the witnesses produced on behalf of the concerned workmen deposed that there was no difference between the work of the Gauge Readers of SCD, Hazaribagh and the Gauge Readers of Maithon. The learned Tribunal also held that the Management did not produce the duty charts of the Gauge Readers of Hazaribagh and those of Maithon in support of its claim with regard to the difference in the nature of work. The Management had produced one certificate issued by the Executive Engineer, Hydraulic Data Division, DVC, Maithon in respect of one Gauge Reader Md. Alam, which was marked as Ext. M-7. The said workman was posted at the observation site and was engaged in the works of river/reservoir gauge observation, rain fall observation, discharge observation, sediment sampling and analysis, flood warning communication through VHF, maintenance of battery and battery charger. On the other hand, Ext. W-4 exhibited on behalf of the Union of the concerned workmen is the list of the casual labourers employed during 1982-1992 issued by the Joint Director of Soil Conservation (Engg.), D.V.C Hazaribagh which reflects that the Gauge Readers in Hazaribagh were doing the work of collection of hydrological data during rainy season and recording the same in the register. The works performed were taking stage readings (depth of water) every three hours at normal times and at every 30 cms rise or fall at flood times, take velocity of flow by stop watch at every three hours at normal times and of flood peaks 12 recording rain fall by ordinary rain gauge. They were also taking the reading of water level during flood.
18. After going through the evidence of both the parties, the learned Tribunal came to the finding that the work performed by the Gauge Readers of Hazaribagh may not be exactly identical with the work performed by Maithon Gauge Readers, but to a great extent, the work of both sets of Gauge Readers was same and similar.
Nature of appointment
19. The Management had claimed before the learned Tribunal that the Gauge Readers appointed by SCD, Hazaribagh were casual workers and they were appointed for short period from the place of work whereas the duration of appointment of Gauge Readers of Maithon was for a fixed period on a sanctioned post.
20. The learned Tribunal has held that from the evidences of all the witnesses examined on behalf of the concerned workmen, it is obvious that the Gauge Readers of SCD, Hazaribagh had been working for more than 20 years. It has further been held that admittedly the Gauge Readers of SCD, Hazaribagh used to work for five months every year in rainy season from 1st June to 31st October and the Gauge Readers of Maithon were also engaged every year for five months during the said period. Therefore, though the soil conservation posts may not be permanent, yet at least the same Gauge Readers of SCD, Hazaribagh had been continuously employed every year for more than 20 years. It has been further observed by the learned Tribunal that as per the case of the Management itself, new posts were started after closure of the old one and as such on the score that the soil conservation posts are not permanent and are shifting in nature, the Gauge Readers of SCD, Hazaribagh cannot be discriminated. Mode of appointment
21. The case of the Management is that the Gauge Readers of SCD, Hazaribagh were appointed from the local youths who could read or write without following any rule whereas the Gauge Readers of Maithon were appointed through the 13 Employment Exchange and the minimum qualification for being appointed as Gauge Readers in Maithon was Matriculation.
22. The learned Tribunal has held that almost all the witnesses examined on behalf of the Union have stated that the procedure for appointment of two sets of the Gauge Readers was the same. They deposed that suitable candidates were appointed as Gauge Readers under Soil Conservation after inviting applications and publishing vacancies on the Notice Board and the call letters were issued for interview and after holding interview, the successful candidates were offered the letters of appointment in writing.
23. The learned Tribunal has held that the nature of work of both sets of the Gauge Readers is almost the same/similar. The Gauge Readers of Maithon and those of SCD, Hazaribagh are engaged every year during rainy season for 5 months from 1st June to 31st October. It has also been observed that in the procedure of appointment and the required minimum qualification also, there did not appear any apparent difference. However, the Gauge Readers of Maithon were paid Rs.5100/- per month whereas the Gauge Readers working under SCD, Hazaribagh used to get daily wages of Rs.80.74 per day only. The Gauge Readers of Maithon also enjoyed other facilities such as medical allowance, leave etc. but the Gauge Readers of Hazaribagh were deprived of the same.
24. The learned counsel for both the parties put reliance on a judgment rendered by the Hon'ble Supreme Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & Ors. reported in (2017) 1 SCC 148 wherein Their Lordships have laid down the parameters to understand the principle of 'equal pay for equal work' after going through various earlier judgments on this point. Para 42 of the said judgment is quoted as under:-
"42. All the judgments noticed in paras 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of "equal pay for equal work". The claim raised by such employees was premised on the ground that the duties and responsibilities rendered by them were against the same post for which a higher pay scale was being allowed in other government departments. Or alternatively, their duties and responsibilities were the same as of other 14 posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of "equal pay for equal work" was invoked and considered, it would be just and appropriate to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of "equal pay for equal work". Our consideration, has led us to the following deductions:
42.1. 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 Orissa University of Agriculture & Technology case, UT Chandigarh, Admn. v. Manju Mathur, SAIL case and National Aluminium Co. Ltd. case).
42.2. The mere fact that the subject post occupied by the claimant is in a "different department" vis-à-vis the reference post does not have any bearing on the determination of a claim under the principle of "equal pay for equal work". Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government (see Randhir Singh case7 and D.S. Nakara case).
42.3. The principle of "equal pay for equal work", applies to cases of unequal scales of pay, based on no classification or irrational classification (see Randhir Singh case). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers case, Mewa Ram Kanojia case, Grih Kalyan Kendra Workers' Union case and S.C. Chandra case).
42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of "equal pay for equal work" (see Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. and Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature.
42.5. In determining equality of functions and responsibilities under the principle of "equal pay for equal work", it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of 15 responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see Federation of All India Customs and Central Excise Stenographers case and SBI case). The nature of work of the subject post should be the same and not less onerous than the reference post.
Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of "equal pay for equal work" (see State of U.P. v. J.P. Chaurasia and Grih Kalyan Kendra Workers' Union case).
42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology case).
42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay scales. Such as -- "selection grade", in the same post. But this difference must emerge out of a legitimate foundation, such as --
merit, or seniority, or some other relevant criteria (see State of U.P. v. J.P. Chaurasia).
42.8. If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia case11 and State of W.B. v. Tarun K. Roy). In such a case the principle of "equal pay for equal work" cannot be invoked.
42.9. The reference post with which parity is claimed under the principle of "equal pay for equal work" has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey and Hukum Chand Gupta case).
42.10. A comparison between the subject post and the reference post under the principle of "equal pay for equal work" cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator v. Dayanand).
42.11. Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are 16 more onerous, or are exposed to higher nature of operational work/risk, the principle of "equal pay for equal work" would not be applicable. And also when the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see SBI case).
42.12. The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of "equal pay for equal work" would not be applicable (see State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.).
42.13. The parity in pay, under the principle of "equal pay for equal work", cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post, were placed in the same pay scale. The principle of "equal pay for equal work"
is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see State of W.B. v. Minimum Wages Inspectors Assn.).
42.14. For parity in pay scales under the principle of "equal pay for equal work", equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see U.T. Chandigarh, Admn. v. Manju Mathur27). 42.15. There can be a valid classification in the matter of pay scales between employees even holding posts with the same nomenclature i.e. between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see Hukum Chand Gupta case), when the duties are qualitatively dissimilar.
42.16. The principle of "equal pay for equal work"
would not be applicable, where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see Hukum Chand Gupta case).
42.17. Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principle of "equal pay for equal work", even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different entities which are independent of one another, the principle of "equal pay for equal work"
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would not apply (see S.C. Chandra case and National Aluminium Co. Ltd. case)."
25. In the aforesaid judgment, the Hon'ble Supreme Court has held that it is the duty of a person who claims pay parity to plead and adduce sufficient evidence with regard to the fact that all things between the concerned posts are equal. Persons discharging identical duties cannot be treated differently in the matter of their pay merely because they belong to different department of the Government. Further, the persons holding the same rank/designation in different departments but having dissimilar powers, duties and responsibilities can be placed in different scales of pay and cannot claim the benefit of the principle of 'equal pay for equal work'. The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of the work should be the same and also the level of responsibility. If the qualifications for recruitment to the subject post vis-a-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable. There can be valid classification in the matter of pay scales between employees even holding posts with same nomenclature i.e. between those discharging duties at the headquarters and others working at institutional/sub-office level.
26. The Hon'ble Apex Court in the case of Jagjit Singh (Supra) has further held thus:-
"46.2. First and foremost, it is necessary to emphasise, that in the course of its consideration in State of Haryana v. Jasmer Singh, this Court's attention had not been invited to the judgment in Bhagwan Dass case, wherein on some of the factors noticed above, a contrary view was expressed. In the said case, this Court had held, that in a claim for equal wages the manner of selection for appointment would not make any difference. It will be relevant to notice, that for the posts under reference in Bhagwan Dass case, the selection of those appointed on regular basis, had to be made through the Subordinate Selection Board, by way of open selection. Whereas, the selection of the petitioners as daily wagers was limited to candidates belonging to a cluster of villages, and was not through any specialised selection body/agency. Despite thereof, it was held, that the benefit under the principle of "equal pay for equal work", could not be denied to the petitioners.18
The aforesaid conclusion was drawn on the ground that as long as the petitioners were performing similar duties, as those engaged on regular basis (on corresponding posts) from the standpoint of the doctrine of "equal pay for equal work", there could be no distinction on the subject of payment of wages. 46.3. Having noticed the conclusion drawn in State of Haryana v. Jasmer Singh, it would be relevant to emphasise that in the cited judgments (noticed in para 26 onwards, up to para 41), the employees concerned, could not have been granted the benefit of the principle of "equal pay for equal work" (in such of the cases, where it was so granted), because temporary employees (daily-wage employees, in the said case) are never ever selected through a process of open selection by a specialised selection body/agency. We would therefore be obliged to follow the large number of cases where pay parity was granted rather than the instant singular judgment recording a divergent view.
46.4. Temporary employees (irrespective of their nomenclature) are also never governed by any rules of disciplinary action. As a matter of fact, a daily wager is engaged only for a day, and his services can be dispensed with at the end of the day for which he is engaged. Rules of disciplinary action are therefore to the advantage of regular employees, and the absence of their applicability, is to the disadvantage of temporary employees, even though the judgment in State of Haryana v. Jasmer Singh, seems to project otherwise.
46.5. Even the issue of transferability of regular employees referred to in State of Haryana v. Jasmer Singh, in our view, has not been examined closely. Inasmuch as, temporary employees can be directed to work anywhere, within or outside their cadre, and they have no choice but to accept. This is again, a further disadvantage suffered by temporary employees, yet the judgment projects as if it is to their advantage.
46.6. It is also necessary to appreciate that in all temporary appointments (work charge, daily wage, casual, ad hoc, contractual, and the like), the distinguishing features referred to in State of Haryana v. Jasmer Singh, are inevitable, yet in all the judgments referred to above (rendered before and after the judgment in State of Haryana v. Jasmer Singh), the proposition recorded in the instant judgment was never endorsed.
46.7. It is not the case of the appellants that the respondent employees do not possess the minimum qualifications required to be possessed for regular appointment. And therefore, this proposition would not be applicable to the facts of the cases in hand.
46.8. Another reason for us in passing by, the judgment in State of Haryana v. Jasmer Singh is, that the Bench deciding the matter had in mind, that daily wagers in the State of Haryana, were entitled to regularisation on completion of 3/5 years of service, and therefore, all the employees concerned, would in 19 any case be entitled to wages in the regular pay scale, after a little while. This factual position was noticed in the judgment itself.
46.9. It is not necessary for us to refer the matter for adjudication to a larger Bench because the judgment in State of Haryana v. Jasmer Singh, is irreconcilable and inconsistent with a large number of judgments, some of which are by the larger Benches, where the benefit of the principle in question was extended to temporary employees (including daily wagers).
46.10. For all the above reasons we are of the view that the claim of the respondent employees cannot be considered on the basis of the judgment in State of Haryana v. Jasmer Singh.
49. We have given our thoughtful consideration to the observations recorded by this Court in Uma Devi (3) case, as were relied upon by the Full Bench (as also, by the learned counsel representing the State of Punjab). It is not possible for us to concur with the inference drawn by the Full Bench for the reasons recorded hereunder:
49.1. We are of the considered view, that in para 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity and regularisation in service. It was held, that on the issue of pay parity, the concept of "equality" would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of "equality" could not be invoked for absorbing temporary employees in government service, or for making temporary employees regular/permanent. All the observations made in the above-extracted paragraphs, relate to the subject of regularisation/permanence, and not, to the principle of "equal pay for equal work". As we have already noticed above, the Constitution Bench unambiguously held, that on the issue of pay parity, the High Court ought to have directed that the daily-
wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good by making such a direction.
49.2. Insofar as para 48 extracted above is concerned, all that needs to be stated is that they were merely submissions of the learned counsel, and not conclusions drawn by this Court. Therefore, nothing further needs to be stated with reference to para 48.
49.3. We are therefore of the view that the High Court seriously erred in interpreting the judgment rendered by this Court in Uma Devi (3) case, by placing reliance on paras 44 and 48 extracted above, for drawing its inferences with reference to the subject of pay parity. On the above subject/issue, this Court's conclusions were recorded in para 55 (extracted in para 36, hereinabove), which have already been dealt with by us in the earlier part of this judgment."
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27. In the aforesaid paragraphs, Their Lordships examined another judgment of the Hon'ble Supreme Court rendered in the case of State of Haryana Vs. Jasmer Singh wherein the daily wages employees were denied equal pay for equal work at par with the permanent employee. Finally, the said judgment was declared inconsistent with other judgments of the Hon'ble Supreme Court where the benefit of equal pay has been extended to the temporary employee including daily wagers.
28. Further, in paragraph 58 of Jagjit Singh's case (Supra), the Hon'ble Supreme Court has held as under:-
"58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self- worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
29. After laying down the guidelines for dealing with the cases of 'equal pay for equal work' at paragraph 42, Their Lordships looked into the fact of the case of Jagit Singh (Supra) at paragraph 60 and held as under:-
"60. 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 employees concerned (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" summarised by us in para 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 21 so, because it was fairly acknowledged by the learned 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 temporary employees concerned 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 summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post."
30. Their Lordships took into consideration the fact that the concerned temporary employees were being randomly deputed to discharge the duties and responsibilities which at some point of time were assigned to the regular employees. Likewise, the regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. It has further been observed by Their Lordship that it was not the case of the State Government that the temporary employees were not holding the qualification fixed for the appointment of regular employees and thereby held that since the nature and responsibilities of the work of the concerned workmen and the regular employees were same, irrespective of the fact that the engagement of the concerned workmen were temporary in nature, they were entitled to the pay at par with the regular employees.
31. In the present case, the nature of appointment of both sets of employees was different. The Gauge Readers appointed in SCD, Hazaribagh were casual employees, whereas the Gauge Readers appointed at Maithon were temporary 22 employees. However, in the case in hand, other aspects of the matter are also required to be considered to judge the justification in the claim of Gauge Readers of SCD, Hazaribagh for getting equal pay to those of the Gauge Readers of Maithon.
32. In this case, it is not the claim of the concerned workmen that they have ever been deployed in place of the Gauge Readers of Maithon or the Gauge Readers of Maithon were posted in place of the concerned workmen at any point of time. So far as the qualification of both sets of Gauge Readers is concerned, the petitioner-Management claims that the qualification of the Gauge Readers appointed in Maithon was Matriculation whereas the qualification of the Gauge Readers appointed in SCD, Hazaribagh was non-Matric. The respondent did not adduce sufficient materials before the learned Tribunal to controvert the said stand of the petitioner and to show that the qualification of both sets the Gauge Readers was same. Although the witnesses produced on behalf of the concerned workmen deposed before the learned Tribunal that they were having the qualification of Matriculation, however, Exts. M/1, M-1/1 & M-2 series produced on behalf of the Management reveal that some of the concerned workmen are non-Matric, which falsifies the claim of the concerned workmen that the qualification of Gauge Readers of SCD, Hazaribagh was also Matriculation. The learned Tribunal did not consider the aforesaid exhibits observing that Ext. W-3/1 addressed to the Employment Exchange Officer, Hazaribagh shows that the required qualification for the Gauge Readers of SCD, Hazaribagh on casual roll, was Matriculation. However, on perusal of Ext. W-3/1 which is the letter issued by the Management to the Employment Exchange Officer, Hazaribagh for the employment of casual Gauge readers, it appears that the same is of the year 1992 whereas the specific case of the concerned workmen is that they were engaged from much before. Thus, the learned Tribunal erred in taking into consideration Ext. W-3/1 and ignoring the exhibits filed by the Management which indicate that the qualification for the SCD, Hazaribagh was only to read and write. In Paragraph 42.8 of the judgment rendered in the case of Jagjit Singh (Supra), it has been 23 specifically held that if the qualification for recruitment to the subject post vis-a- vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable.
33. With regard to the mode of appointment also, it is the specific stand of the petitioner-Management that the Gauge Readers in Maithon were appointed on the sanctioned posts after calling the names from the Employment Exchange and their posts were also temporary in nature. The case of the concerned workmen is that they were appointed after publishing advertisement on the Notice Board and after taking interview. Even if the said stand of the concerned workmen is accepted, the modes of appointment of both sets of employees were different. The learned Tribunal has in fact not held that there was no difference in the qualification and mode of appointment of both sets of employees, it has rather been held that no clear difference appeared in the procedure of appointment and minimum qualification of both sets of employees. Thus, there remained the ambiguity on the aforesaid aspects and therefore it cannot be said that the case of the concerned employees was substantially proved before the learned Tribunal on facts.
34. It further appears from the record that the places of work of both sets of employees were different. So far as the nature of work performed by both sets of workmen is concerned, the learned Tribunal did not come to a concrete opinion that the work done by both sets of workmen was same, rather it has been held in the impugned award that the work of both sets of Gauge Readers was almost same and similar.
35. One of the claims of the petitioner before the learned Tribunal was that the source of payment of both sets of workmen was also different. It has been submitted by the learned Sr. counsel for the petitioner that the concerned workmen were being paid the wages out of the fund of the Watershed Project of Ministry of Agriculture, Government of India. The said claim of the petitioner was not controverted before the learned Tribunal, however, the learned Tribunal observed that only on the said ground that the Gauge Readers under SCD, 24 Hazaribagh were paid out of the fund received from the Central Government, the discrimination in wages paid to two sets of Gauge Readers cannot be said to be proper. However, in the case of Jagjit Singh (Supra) at paragraph 42.10, it has been held that the persons engaged differently and being paid out of different funds, would not be entitled to pay parity. Thus, for consideration of the claim of pay parity, one of the relevant facts is also the source of fund for the wages of the reference post vis-a-vis the concerned post.
36. I am of the view that the learned Tribunal has committed error in not properly distinguishing/scrutinizing the nature of job/duty being performed by the Gauge Readers of Maithon and those of SCD, Hazaribagh. As per Ext. M/7 which is the work experience certificate of the Gauze Readers engaged at Maithon, they were engaged in the works of river/reservoir gauge observation, rain fall observation, discharge observation, sediment sampling and analysis, flood warning communication through VHF, maintenance of battery and battery charger whereas, Ext. W/4 which is a list of casual labourers working in the Soil Conservation (Engineering) Department, D.V.C, Hazaribagh, would show that the work of the Gauge Readers of the SCD, Hazaribagh was for collection of hydrological data during rainy season and recording the same in the register, taking stage (depth of water) reading in every three hours at normal times and at every 30 cms rise or fall at flood times; to take velocity of flow by stopwatch at every three hours at normal times and at flood peaks and recording rain fall by ordinary rain gauge. Thus, it would be evident that the Gauge Readers of Maithon were assigned the work at big river/reservoir even during night whereas, those of the SCD, Hazaribagh were assigned the work at small rivers, nalas and, therefore, both works cannot be said to be the same. There is also qualitative difference between the works of both sets of Gauge Readers, as those who were engaged at river side had more responsibility and risk in comparison to those who were engaged at small river/nalas/canal. Under the aforesaid facts and circumstances, the learned Tribunal failed to notice the said difference and came to an erroneous conclusion that Gauge Readers of Hazaribagh used to perform 25 the similar duty to those of Maithon. Learned Tribunal itself observed in the impugned award that both works were not exactly identical. Once both works were not found to be identical and equal, the case of the respondent-Union claiming equal pay is not sustainable.
37. Considering all these observations of the learned Tribunal, I am of the view that the nature of work, responsibilities, qualification, mode of appointment, geographical area as well as the source of payment of wages of both sets of workmen were different. Thus, there is no wholesome equality between both sets of workmen. Despite the fact that the learned Tribunal did not come to the concrete conclusion that both sets of workmen fall on the same footing, the impugned award was passed in favour of the concerned workmen claiming pay parity. Thus, the finding of the learned Tribunal appears to be perverse and is not based on legal evidence.
38. In view of the discussions made herein above and the judicial pronouncements, W.P.(L) No. 4307/2006 is allowed and the impugned award dated 31.07.2004 [Annexure-9 to W.P.(L) No. 4307 of 2006] passed by the Presiding Officer, Industrial Tribunal, Ranchi in Reference Case No. 81 of 1996 is, hereby, quashed and set aside. Consequently, W.P.(L) No. 3533/2011 is also allowed by quashing and setting aside the impugned order dated 30.03.2011 [Annexure-3 to W.P.(L) No. 3533 of 2011] passed by the Presiding Officer-cum- authority, Labour Court, Hazaribagh in M.J. Case No. 6 of 2010.
39. Learned counsel for the respondent-Union submits that the concerned workmen have already received 50% of the amount deposited by the petitioner- Management on their undertaking to refund the amount in case the impugned award is reversed at any stage. However, considering the fact that almost all the workmen have crossed the age of superannuation, it would not be in the interest of justice to direct them to refund the said amount at this stage. Though the said submission of learned counsel for the respondents is opposed by the learned Sr. counsel for the petitioner, yet considering the fact that the present reference is of the year 1996 and the impugned award was passed in the year 2004, I think 26 it appropriate to observe in the ends of justice that the workmen who have already received 50% of the amount, need not return the same. Accordingly, the Presiding Officer, Labour Court, Hazaribagh is directed to return the balance amount to the Management of the DVC.
40. Consequently, I. A. No. 1870 of 2014 [W.P.(L) No. 4307 of 2006] also stands disposed of.
(RAJESH SHANKAR, J) High Court of Jharkhand, Ranchi Dated 28.03.2018 Satish/A.F.R