C.W.P No.15022 of 1993 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.15022 of 1993 Date of Decision: 10.07.2009 The Ropar District Co-operative Milk Producers Union Limited, Milk Plant, Mohali .....Petitioners Versus The Presiding Officer, Industrial Tribunal, Punjab, Chandigarh and others ....Respondents Present: Mr. D.S. Patwalia, Advocate for the petitioners. Mr. U.K. Agnihotri, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ?Yes -.- K. KANNAN J. (ORAL) 1. A reference to the Industrial Tribunal was on the issue of an adjudication relating to two distinct classes namely of one “workman" (Smt. Amrjit Kaur Walia), who claimed to be entitled to be promoted as a Clerk w.e.f. 21.01.1984 with consequential benefits and the other class that represented the persons, who as Heavy Tanker Drivers claimed as entitled to a higher scale of pay, consequent on the revision of pay scales who held pay at par with other classes of workers at the stage of pre-revised scales but whose scales fell below those other classes after pay revision. 2. The reference was answered in favour of the workman whereby Smt. Amarjit Kaur Walia was found entitled to the grade of a Clerk at Rs.400-600/- w.e.f. 21.01.1984. The four drivers, for whom Union was espousing the cause, were also found entitled to the scale of C.W.P No.15022 of 1993 -2- pay at Rs.510-800/- from 01.01.1978, when it was given to the Junior Scale Stenographers in the revised pay scales with all consequential benefits. 3. Sh. Patwalia, learned counsel appearing for the petitioner- management contends that as regards Smt. Amarjit Kaur Walia, she was a Dairy Helper-cum-Cleaner having been appointed on 22.01.1982 and later regularized on 27.09.1982. She held the post as a Clerk from 06.04.1983 on ad hoc basis and on 31.01.1984, she was reverted to her parent cadre as Dairy Helper-cum-Cleaner. The management sought to fill up the posts of Clerk when vacancies arose, by advertising for applications from 'in service' candidates to which Smt. Amarjit Kaur Walia did not apply and when the selection process was complete and some persons who were previously working as Dairy Helpers-cum- Cleaners had been appointed as Clerks, Smt. Amarjit Kaur Walia made a demand that she was also entitled to be promoted to the higher post from the day when the others were promoted on the posts as Clerks. According to learned counsel for the management, a person that worked only on ad hoc basis was not entitled as a matter of right to the promotion post and she cannot canvas for being promoted only by virtue of the fact that some other persons, who had worked as Dairy Helpers-cum-Cleaners had been promoted. He made pointed reference to the fact that she had not even applied to the post of Clerk when advertisement had been issued and that she was not entitled to make such a demand. The demand notice itself came after nearly a period of 5 years and there was no justification for making the claim. 4. Learned counsel for the respondent stoutly contested the position but I have to merely point out that it is not possible to sustain C.W.P No.15022 of 1993 -3- the award of the Tribunal, in so far as it directs the promotion and fixing her pay in higher scale by the only fact that some other persons had been promoted from the lower post to the post of Clerk. All that the 2nd respondent would be entitled, would be admission to the scales of Clerk during the period that she worked as a Clerk on ad hoc basis. Learned counsel for the respondent submits that even for the period when she was working as a Clerk, she had not been allowed the higher scale of pay. I have no difficulty in accommodating such a prayer that if it were to be found that the 2nd respondent had not been paid the scale of pay that a Clerk was entitled to during the time when she held the post on ad hoc basis, the same shall be reckoned appropriately and paid to the 2nd respondent forthwith. This exercise shall be done by the petitioner within two weeks from the date of receipt of the copy of order. The award of the Labour Court granting her request for promotion for the post as Clerk and allowing her the higher scale of pay is set aside. 5. As regards the claims of other respondents namely respondent Nos.3 to 6 whose cause the Union was espousing for, the Industrial Tribunal was pleased to observe that the nature of works which the Tanker Drivers were performing were more arduous than Junior Scale Stenographers and therefore, providing for a higher pay for Stenographers and still retaining the Tanker Drivers at a lower scale was unjust. Learned counsel appearing for the petitioner points out that the learned Tribunal had no power to enter into such an adjudication and it was only in the realm of expert bodies who could decide on the nature of work, the productivity and other relevant factors for determining the scales of pay that each category of workers C.W.P No.15022 of 1993 -4- was entitled to. 6. Learned counsel for the petitioner refers me to the decision of the Hon'ble Supreme Court in State of U.P. and others Vs. J.P. Chaurasia and others AIR 1989 SC 19 where the Hon'ble Supreme Court held as follows: “The answer to the question whether two posts are equal or should carry equal pay depends upon several factors. It does not just depend upon either the nature of work or volume of work done. Primarily, it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.” 7. A more emphatic pronouncement that is apposite to the facts of the case obtains through a judgment of the Hon'ble Supreme Court in State Bank of India Vs. M.R. Ganesh Babu AIR 2002 (SC) 1955 where the Hon'ble Supreme Court held that a principle of equal pay for C.W.P No.15022 of 1993 -5- equal work must depend upon the nature of work done. It cannot be adjudged merely by volume of work. There may be qualitative difference as regards reliability and responsibility. Even functions may be the same but the responsibilities make a difference. Quality of duties and responsibilities of Rural Development Officers and Specialist Officers of the Banks cannot be equated so as to apply doctrine of equal pay for equal work. The decision in Grih Kalyan Kendra Workers' Union Vs. Union of India and others AIR 1991 (SC) 1173 was to lay down a proposition that where the similarity of jobs, nature of duties, service conditions were altogether different, there was no question of treating them all as being similarly situated employees and the principle of equal pay for equal work would not apply. 8. In the first judgment in State of U.P. and others Vs. J.P. Chaurasia and others (supra) the Hon'ble Supreme Court also pointed out that if there were anomalies in fixing of pay-scales, Courts would not normally make any interference and it shall be left to the determination by expert bodies like the Pay Commission. 9. Learned counsel for the respondent vehemently urged that the discrimination and the arbitrary fixation of pay scales could be seen in the manner in which revision of pay scales was undertaken and employed by the Punjab Dairy Development Corporation Limited. He referred me to several classes of persons such as Steno Typist, Junior Scale (pre-revised pay scale Rs.140-300) and Dairy Helper-cum- Cleaner, Mechanics, Electricians, Welder, Fitter, Operator, Liquid Mitrogen, Auto Electrician, Carpender (pre-revised pay scale Rs.140- 300) had been fixed at higher scales of pay than Tanker Drivers, who C.W.P No.15022 of 1993 -6- were already in pre-revised scale drawing higher amounts at Rs.170- 300 but in the revised pay scale, they had been granted scales, which were lower to the above mentioned categories. Learned counsel for the respondent refers me to a decision of the Hon'ble Supreme Court in Haryana State Minor Irrigation Tubewells Corporation and others Vs. G.S. Uppal and others 2008(4) RSJ 178, where the Hon'ble Supreme Court dealt with a case where a claim for parity was sought for Engineer of HMIT Corporation vis-a-vis engineers of State PWD Irrigation Department. While accepting the claim of the workmen, the Hon'ble Supreme Court held: “.....There is no dispute nor can there be any to the principle as settled in the above-cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the Executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well-settled that the Courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. [see K.T. Veerappa & Ors. Vs. State of Karnataka & Ors., 2006(9) SCC 406]. 10. He also relied on a decision of this Hon'ble Court in Rajinder Pal Gautam & others Vs. State of Punjab and others 2008 (4) RSJ 355 and Harbhajan Singh and others Vs. State of Punjab and another 2005(4) RSJ 59 to bring home the point that where the pay scales before revision of pay scale of a particular category of C.W.P No.15022 of 1993 -7- workmen were higher than another category, the revision of pay-scales undertaken, cannot be result in placing persons who were drawing higher pay at a lower scale than persons who were drawing lower pay scale or at par at the pre-revised stage. 11. In my view, it will be difficult for the Court to enter into the realm of what would appropriately be an administrative exercise requiring a certain technical expertise. It is difficult to adjudge as to whether the administration was at all aware of the anomalies that came about and it was merely a case of accidental omission to note that persons who held a higher pay scale were being placed at a lower scale after the pay scale revision. It is again not possible to discern from the statement whether any conscious decision was made by the administration to put them at a lower scale after considering the nature of duties, hours of work and responsibilities etc. The Labour Court could not have directed a parity in scale by its own subjective judgment that the duties of one class of persons who had been paid higher scale were less onerous than the claims made on behalf of the workmen. The appropriate procedure, to my mind, would be to direct the petitioner to examine a seemingly anomalous situation as regards the scales of pay that were admitted to the Tanker Drivers, who are parties before the Court and the other classes of persons, who were previously drawing lower scales of pay to put them on higher bracket after the revision of scales of pay was made. The petitioner shall undertake the exercise without any further representation on the part of the workmen and take a decision within a period of eight weeks from the date of receipt of the copy of order. Learned counsel appearing for the respondent points out that some of the workmen have died and some have been C.W.P No.15022 of 1993 -8- superannuated. The award of the Tribunal itself was passed as early as on 30.06.1993 and it is contended by Sh. Patwalia that it would be great hardship if the exercise was to be opened again. The delay that has been occasioned is the delay that is inevitable which is neither the fault of the litigants nor of the personnel manning the judiciary. What is appropriate cannot be substituted for the sake of convenience of parties to what is less efficacious. The exercise of examining the grievance made by the workmen shall be undertaken expeditiously and if they are found entitled, it will give effect from the date when the higher scales of pay were put in operation for other classes. All the consequential benefits will be reckoned, if they are found so entitled and for a different eventuality that might not assist the cause of workmen, there is no need for any other direction. 12. The award of the Industrial Tribunal is set aside and the writ petition is, accordingly, disposed of in terms what is stated above. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE July 10, 2009 Pankaj*