Civil No 548 of 1987
Under Article 32 of the Constitution of India
MC Dhingra for the Petitioners
Kapil Sibal KG Bhagat AK Ganguli Ms Kamini Jaiswal 664 Ms Aruna Mathur A Mariarputham Harminder Lal and Naresh K Sharma for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
The petitioners are carpenters 1st and 2nd grade employed at the Wood Working Centre of the Himachal Pradesh State Handicrafts Corporation the Corpo ration
They are termed as daily rated employees
In this petition under Article 32 of the Constitution they are seeking enforcement of their fundamental right to have equal pay for equal work
They demand payment in terms paid to their counterparts in regular services
They want the same pay of the regular employees as carpenters or in the alternative the minimum wages prescribed by the Deputy Commissioner for like categories of workmen
They also seek regularisation of their services with the benefits of pen sion gratuity etc
The Corporation has resisted the petitioners  claim
The case of the Corporation is that the unit where the petition ers are working is a factory registered under the Factories Act
The petitioners are treated as industrial workmen and are given all benefits due to them under the various labour legislations
The Government has not fixed the mini mum wages payable to the petitioners engaged in the Corpora tion or other like industries but the Corporation has adopted the minimum wages payable for similar work in the construction industry
They are being paid the same wages as are payable to carpenters painters and carpenters  helpers engaged in the construction industry
They are given bonus under the Bonus Act and provident fund benefits under the Employees  Provident Fund Act
It is also stated that the petitioners are supplied with the necessary tools for carry ing out their work and also working uniforms like aprons and overalls
The Corporation has clearly stated that there are no regular employees of the petitioners  categories in its establishment and as such the question of payment to the petitioners the pay admissible to regular employees does not arise
A little more information about the purpose and object of the Corporation would be useful for proper understanding of the case
The Corporation is a company which has been incorporated under the 
The main object of the Corporation as seen from the Memorandum of Associa tion is to preserve the traditional arts and crafts and also to popularise handicrafts and handloom items 665 in the State of Himachal Pradesh and other parts of the country and abroad
In order to achieve this primary objec tive the Corporation gives training to artisans weavers and craftsmen in various traditional arts and crafts
During the period of training the trainees are paid a stipend by the Corporation
Upto 31st March 1987 the Corporation has imparted training to as many as 1662 persons in different areas like carpet weaving handloom weaving painting metal crafts wood carving etc
Apart from giving training the Corporation also ensures marketing support to the artisans and craftsmen by purchasing their products at remunerative prices and sell them through the marketing network of the Corporation
It is thus a service oriented organisation helping the village artisans and craftsmen to produce and market their products on remunerative prices
It is said that the village artisans and craftsmen make different items on a piece rate basis and in some cases they execute the work in their own homes
The financial aspect of the Corporation is stated to be not encouraging and indeed it is disappointing
It has suffered huge loss and the total losses accumulated hitherto is Rs6977 lakhs
Nonetheless for the purpose of preserv ing and promoting traditional arts and crafts the Corpora tion has been kept alive
But to avoid or minimise further loss it is stated that the Corporation has reduced its overheads and maintained only the administrative staff in the production centers at different parts of the State and no permanent craftsmen are employed
With these facts we may now turn to the principle upon which the petitioners  case is rested
The principle of equal pay for equal work is not one of the fundamental rights expressly guaranteed by our Constitution
The princi ple was incorporated only under Article 39d of the Consti tution as a Directive Principle of State Policy
Perhaps for the first time this Court in Randhir Singh vs Union of India  has innovated that it is a constitu tional goal capable of being achieved through constitutional remedies
There the Court pointed out that that principle has to be read into Article 14 of the Constitution which enjoins the State not to deny any person equality before the law or the equal protection of the law and also to Article 16 which declares that there should be equality of opportu nity for all citizens in matters relating to employment or appointment to any office under the State
Randhir Singh case was concerned with a driver constable in the Delhi Police Force under the Delhi Administration
He claimed equal salary for equal work at that of other drivers
The Court found that the petitioner therein performed the same func 666 tions and duties as other drivers in the service of Delhi Administration
The Court therefore directed the Central Government to fix the pay scale of the petitioner on par with his counterparts doing identical work under the same employer
In the immediate aftermath of the decision in Randhir Singh case there were bumper cases filed in this Court for enforcement of the right to equal pay for equal work perhaps little realising the in built restrictions in that principle
It may not be necessary here to refer to all those decisions since almost all of them have been consid ered and explained in the recent two decisions to which one of us was a party K Jagannatha Shetty J
Reference may be made to i State of UP vs JP Chaurasia  and ii Meva Ram Kanojia vs All India Institute of Medical Sciences and Anr  In Chaurasia case the question arose whether it was permissible to have two different pay scales in the same cadre of Bench Secre taries of the Allahabad High Court who were for all practi cal purposes performing similar duties and having same responsibilities
The Court held that the principle of equal pay for equal work has no mechanical application in every case of similar work
Article 14 permits reasonable classification rounded on rational basis
It is therefore not impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority
It was pointed out that in service merit or experience could be the proper basis for classification to promote efficiency in administration and he or she learns also by experience as much as by other means
Apart from that the Court has expressly observed that the higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues may also be allowed
Meva Ram Kanojia is the most recent decision which has exhaustively dealt with all the principles bearing on the question of equal pay for equal work in the light of all the previous decisions of this Court
There the petitioner was a Hearing Therapist in the All India Institute of Medical Sciences
He claimed pay scale admissible to Senior Speech Pathologist Senior Physiotherapist Senior Occupational Therapist Audiologist and Speech Pathologist
His case was based on the allegations that he was discharging same duties and performing similar functions as Senior Speech Therapist Senior Physiotherapist Senior Occupa tional Therapist Audiologist and Speech Pathologist
But the Court held that the principle of equal pay for equal work cannot be invoked invariably in every kind of service particularly in the area of professional services
It was also held 667 that it is open to the State to classify employees on the basis of qualifications duties and responsibilities of the 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
Reference may also be made to the decision in Federation of All India Customs and Central Excise Stenographers Recognised vs Union of India  There the Personal Assistants and Stenographers attached to the Heads of Department in Customs and Central Excise Department of the Ministry of Finance made a claim for parity of wages with the Personal Assistants and Stenographers attached to Joint Secretaries and Officers above them in Ministry of Finance
The Court while rejecting the claim expressed the view at 100 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 bona fide reasonably on an intelligible criterion which has a rational nexus with the object of dif ferentiation such differentiation will not amount to discrimination
It is important to emphasize 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 Thus the law relating to equal pay for equal work has been practically hammered out and very little remains for further innovation
In the light of the aforesaid principles we may now consider whether the equality claims of the petitioners could be allowed
We have carefully perused the material on record and gave our anxious consideration to the question urged
From the averments in the pleadings of the parties it will be clear that the Corporation has no regularly employed carpenters
Evidently the petitioners are claiming wages payable to the carpenters in Government service
We do not think that 668 we could accept their claim
In the first place even assum ing that the petitioners  jobs are comparable with the counterparts in the government service the petitioners cannot enforce the right to equal pay for equal work
The discrimination complained of must be within the same estab lishment owned by the same management
A comparison cannot be made with counterparts in other establishments with different management or even in establishments in different geographical locations though owned by the same master
Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment the principle of equal pay for equal work cannot be enforced
This was also the view expressed in Meva Ram Kanojia vs AIIMS  at 245
In the instant case the petitioners are employed by a company incorporated under the 
They cannot claim wages payable to their counterparts in government service
Secondly it may be noted that the petitioners are carpenters better called as craftsmen
By the general description of their job one cannot come to the conclusion that every carpenter or craftsmen is equal to the other in the performance of his work
The two jobs by the mere nomen clature or by the volume of work performed cannot be rated as equal
It is not just a comparison of physical activity
It requires the consideration of various dimensions of the job
The accuracy required by the job and the dexterity it entails may differ from job to job
It cannot be evaluated by the mere averments in the self serving affidavits or counter affidavits of the parties
It must be left to be evaluated and determined by expert body
The principal claim of the petitioners therefore fails and is rejected
The next contention that the petitioners should be paid at least the minimum wages prescribed by the Deputy Commis sioner under Exhibit P 2 dated March 20 1986 cannot also be accepted
exhibit P 2 was issued by the Deputy Commissioner in the exercise of his powers under the HP Financial Rules
It is applicable only to skilled and unskilled work ers in class IV employees in Government service
It has not been extended to employees of the Corporation
The petition ers have been treated as construction workers and they are being paid the minimum wages admissible to such workmen
The Court therefore cannot direct the Corporation to apply the rates prescribed under exhibit P 2 unless the Government makes it applicable to employees of the Corporation
As to the claim for regularisation of services of the peti tioners 669 we express no opinion since the factual data is disputed and is insufficient
We leave the petitioners to work out their rights elsewhere in accordance with law applicable to them
In the result the petition fails and is dismissed
In the circumstances of the case we make no order as to costs
PSS Petition dismissed


Summary:
The petitioners employed as daily rated carpenters at the Wood Working Centre of the Himachal Pradesh State Handi crafts Corporation sought enforcement of their fundamental right to have equal pay for equal work in terms paid to their counterparts in regular services or in the alterna tive the minimum wages prescribed by the Deputy Commission er for like categories of workmen
The petitioners  claim was resisted by the respondents
Their case was that the unit where the petitioners were working was a factory registered under the Factories Act that they were treated as industrial workmen and given all benefits due to them under the various labour legislations that the Government had not fixed the minimum wages payable to the workmen engaged in the Corporation or other like industries but the Corporation had adopted for its workmen the minimum wages payable for similar work in the construc tion industry and that there were no regular employees of the petitioners  categories in its establishment and as such the question of payment to them the pay admissible to regular employees does not arise
Dismissing the writ petition HELD 1
Unless it is shown that there is a discrimina tion amongst the same set of employees by the same master in the same establishment the principle of equal pay for equal work cannot be enforced
A comparison cannot be made with counterparts in other establishments with different management or even in establishments in different geograph ical location though owned by the same master
668B In the instant case the petitioners were employed by a company incorporated under the Companies Act
They cannot claim wages pay 663 able to their counterparts in government service
668C Meva Ram Kanojia vs All India Institute of Medical Sciences  Anr   referred to
Randhir Singh vs Union of India   ex plained
The principle of equal pay for equal work  has no mechanical application in every case of similar work
No two jobs by the mere nomenclature or by the volume of work performed can be rated as equal
It is not just a comparison of physical activity
It requires the consideration of various dimensions of the job
The accuracy required by the job and the dexterity it entails may differ from job to job
It cannot be evaluated by the mere averments in the self serving affidavits or counter affidavits of the parties
It must be left to be evaluated and determined by expert body
666D 668D E In the instant case however the Corporation had no regularly employed carpenters
Even assuming that the peti tioners  jobs were comparable with the counterparts in Government service they could not enforce the right to equal pay for equal work
667G 668A State of UP vs JP Chaurasia   Meva Ram Kanojia vs All India Institute of Medical Sciences  Anr  and Federation of All India Customs and Central Excise Stenographers Recognised vs Union of India   referred to
The order issued by the Deputy Commissioner on March 20 1986 in exercise of his powers under the HP Financial Rules prescribing minimum wages was applicable only to skilled and unskilled workers in Class IV employees in Government service
The benefit of the rates prescribed under that order cannot be extended to the petitioners unless the Government makes it applicable to the employees of the Corporation
668F G