IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8280 of 1997 with SPECIAL CIVIL APPLICATION No 8729 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus SAURASHTRA MAZDOOR SANGH -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8280 of 1997 MR. S.N.SHELAT, ADVOCATE GENERAL WITH MR. DIPEN A. DESAI, ADVOCATE for Petitioner No. 1-2 MRS D.T. SHAH for the Respondent 2. Special Civil Application No. 8729 of 1997 MRS D.T. SHAH, ADVOCATE for the Petitioner MR.S.N.SHELAT, ADVOCATE GENERAL WITH MR. DIPEN A. DESAI, ADVOCATE for the Respondentd No. 1 & 2 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE KUNDAN SINGH Date of decision: 14/07/2003 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI for the Court) 1. Both these petitions are directed against the award dated 28th April 1997 passed by the Industrial Tribunal in Reference No. (ITR) 297 of 1990. 1.1 The State of Gujarat and the Government Printing Press owned by it who are the petitioners of Special Civil Application No.8280 of 1997 have challenged the award, by which, allowing the reference, the Tribunal declaring that the Compositors in the Government Press are entitled to the pay-scale of Rs.350 - 560 instead of Rs.290 - 480 from 1-1-1973, directed the Government Press, Rajkot to carry out pay fixation of the Compositors accordingly and work out the amount of arrears payable to the Compositors together with dearness allowance payable thereon and to pay 50% of such amount to the them. 1.2 The Special Civil Application No. 8729 of 1997 filed by the Employees Union is directed against the award to the extent that it denies 50% of the amount of arrears payable as per the pay fixation directed by the Tribunal. 2. The dispute referred to the Industrial Tribunal, which was the subject matter of the said reference, was in the following terms : "Whether the workmen working in Government Press as Compositors should be given pay-scale of Rs.350 - 560 instead of the pay-scale of Rs.290-480 from 1-1-1973 with arrears?" According to the Union, in Gujarat University, Sardar Patel University, South Gujarat University and Ayurved University, as also in Maharaja Sayajirao University, the pay-scale for the post of Compositors was Rs.350 - 560, and since these institutions were getting full grant from the government, no different treatment could have been meted out to the government employees working in the government press as compositors by giving them a lower pay-scale of Rs.290 - 480. According to the Union, the disparity pointed out by it, resulted in violation of their right to equality due to infringement of the principle of "equal pay for equal work". Referring to the historical background, the Union contended that, initially, the pay-scales of Proof Readers and Compositors were the same and it was only after the recommendations of the Desai Pay Commission that the Proof Readers were given a higher pay-scale of Rs.350-560, resulting in an anomaly against the Compositors. When the Third Pay Commission was constituted, the Union had filed a petition being Special civil Application No.4559 of 1987 in which a direction was given on 12-4-1990 as a result of which the government had referred this dispute to the Industrial Tribunal. 2.1 The Government Printing Press, Rajkot, in its defence exh.12, contended before the Tribunal that the demand was frivolous, and that the government press was not covered under the definition of "industry", nor was it a trade or business. It was contended that the provisions of the Industrial Disputes Act, 1947 were not applicable to such dispute, and that the Tribunal had no jurisdiction to try the reference. It was contended that, for any dispute between the government press belonging to State and its employees, the Tribunal constituted under the Gujarat Civil Services Tribunal Act, 1972 had jurisdiction to decide the dispute. It was then contended that the Desai Pay Commission had recommended the pay-scale of Rs.260-400 after hearing the Union's office bearers and the Head of Department and examining all the relevant aspects. The expert committee thereafter recommended the pay-scale of Rs.290-480 to Compositors, which was higher than the scale recommended recommended by the Commission. It was pointed out that, accordingly, the pay-scale of Rs.290 - 480 was prescribed for them under the Gujarat Civil Services (Pay Revision) Rules, 1975. It was also pointed out that, under these Rules, pay-scale of Rs.360 - 560 was approved for "Assistant Composed Foreman" and as per the rules of recruitment for the post of Assistant Composed Foreman, the Compositors, who had put in ten years' service and possessed proved merits, could be promoted to the post of Assistant Composed Foreman. Thus, the demand of the Union for the pay-scale of Rs.360 - 560 which was applicable to the higher post of Assistant Composed Foreman, was not justified. As regards the pay-scales of Compositors in different universities, it was contended by the Government Press that the pay-scale of Rs.350 560 was given after re-designating the post of Compositors as Assistant Composed Foreman in the Universities. However, since in the Government Press, the Assistant Composed Foremen are given the pay-scale of Rs.350 - 560, the Compositors who are in the lower posts were not entitled to the same pay-scale. In the universities, since the posts of Compositors were upgraded to the post of Assistant composed Foreman, their responsibility had also increased. 3. The Tribunal took note of the fact that the recruitment rules for the posts of Compositors and Assistant Composed Foremen were different. However, in paragraph 9 of its award, it observed that the Union had never demanded the pay-scale of Assistant Composed Foreman, but its demand was that the Compositors and Proof Readers had enjoyed similar pay-scales and therefore, the Compositors should be given the pay-scale of Rs.350 - 560, which was given to the Proof Readers, with effect from 1-1-1973. In paragraph 11 of the award, the Tribunal held that, through oral evidence, the Union had made out a case that the Compositors and the Proof Readers were getting similar pay-scales upto the period when the Sarela Commission Report was in vogue and for the first time, different pay-scales were prescribed by the Desai Pay Commission w.e.f. 1-1-1973. The Desai Pay Commission had recommended that the Proof Readers should be given a pay-scale of Rs.350 - 560, while for the post of Compositors, it recommended the pay-scale of Rs.260 400, which was revised by the Expert Committee to Rs.290 - 480. Relying upon the statement produced at Annexure "B" by the Union, the Tribunal held that it showed the nature of work by the Compositors and the Proof Readers and held that the Union had also made out a case that the job evaluation for the post of Compositors was assessed at 325, while that of the Proof Readers at 310 by the Maharashtra Government. It was held that, Annexure "B" showed that the duties of the Compositors were greater than those of the Proof Readers. The Tribunal considered that as the pivotal reason for granting the pay-scale of Rs.350 - 560 to the Compositors working in the Government Press on parity with the post of Proof Readers. It was held that the Report of the Desai Pay Commission, in so far as it related to recommendation for the post of Proof Readers and Compositors was concerned (exh.30), showed that there was lack of representation on the part of the Compositors. It was held that the Compositors did not appear to have made any representation before the Pay Commission. After referring to certain excerpts from the report of the Desai Pay Commission, the Tribunal went on to observe that the Desai Pay Commission was not apprised of the fact that the Proof Readers and the Compositors were earlier getting similar pay-scales. It was also not brought to the notice of the Pay Commission that the duties of the Compositors were greater than those of the Proof Readers. It was held that, had this fact been placed before the Pay Commission, perhaps this dispute may not have arisen. The Tribunal undertook the task of examining the parity between the posts of Proof Readers and Compositors prior to 1969 and after 1969 and held that, injustice was done to the Compositors. It also examined the pay-scales of different universities, prepared tables and found that the Compositors had been put at par with the Proof Readers in the Universities in the matter of pay-scales by changing their designation as Assistant Composed Foreman. It was observed that, ".... This Tribunal feels that there should not be dissimilarity in the pay-scale scales of Proof Readers and the Compositors even in the Government Press and it should be equalized as done in the case of Universities' ....". The Tribunal accordingly directed that the pay-scale of Rs.350 - 560 be given to the compositors in the Government Press instead of Rs.290 480 from 1-1-1973 and 50% of the arrears be paid to them, together with admissible dearness allowance, from 1-1-1973. 4. The learned Advocate General appearing for the petitioners (in Special Civil Application No.8280 of 1997) contended that the Tribunal had no jurisdiction to amend or modify the pay-scales awarded to the government employees under the Rules framed under Article 309 of the Constitution of India. It was submitted that the statutory rules were as much binding on the Tribunal as they were on the Civil Court and so long as the rules remained valid and operative, no conflicting award or decision could be given by the Tribunal. It was submitted that, in the hierarchy of posts in the government press, the posts of Compositors and Proof Readers were different and were governed by separate statutory rules of recruitment. It was argued that, having regard to the vertical and horizontal relativities, the Desai Pay Commission had made its recommendations and the Expert Committee considering the relevant aspects applicable to the post of Compositors, in fact, awarded a higher pay-scale to them than the one which was recommended by the Desai Pay Commission. The Compositors cannot claim pay-scale of the higher post which was governed by separate rules, because, giving them the pay-scale of Rs.350 - 560 as done by the Tribunal under the impugned award would disturb the vertical relativity of the post of Assistant Composed Foreman and Compositors. He referred to the relevant recruitment rules to point out the difference between various posts in the government press. It was also contended that running of government press by the State was not an "industry". 4.1 In support of his contentions, the learned Advocate General placed reliance on the following decisions : [a] The decision of the Supreme court in State of Haryana v. Haryana Civil Secretariat Personal Staff Association, reported in AIR 2002 SC 2589, was cited for the proposition that fixation of pay and determination of parity in duties and responsibilities is a complex task which was for the executive to discharge. While taking a decision in the matter several relevant factors, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. Priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, Courts have taken the view that ordinarily Courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. (paragraph 10 of the judgement). [b] The decision of the Supreme Court in State of U.P. v. J.P.Chaurasia, reported in AIR 1989 SC 19, was cited for the proposition that the answer to the question whether two posts are equal or should carry equal pay depends upon several factors, and did not just depend upon either the nature of work or volume of work done. The equation of posts or equation of pay must be left to the Executive Government and must be determined by expert bodies like Pay Commission, who would be the best judge to evaluate the nature of duties and responsibilities of posts. It was held that, if there is any such determination by a Commission or Committee, the court should normally accept it, and not try to tinker with such equivalence unless it is shown that it was made with extraneous considerations. [c] The decision of the Supreme Court in Mullikarjuna Rao v. State of A.P., reported in AIR 1990 SC 1251, was cited for the proposition that, it was neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which was exclusively within the domain of the executive under the Constitution. It was held that power under Article 309 of the Constitution to frame rules is the legislative power, and the High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution. It was also held that the Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule-making power in any manner. [d] The decision of the Supreme Court in Dinesh Chandra Sangma v. State of Assam, reported in AIR 1978 SC 17, was cited for the proposition that it was well settled that, except in the case of a person who has been appointed under a written contract, employment under the Government is a matter of status and not of contract, even though it may be said to have started, initially, by a contract in the sense that the offer of appointment was accepted by the employee. [e] The decision of the Supreme Court in R.L.Bansal v. Union of India, reported in AIR 1993 SC 978, was cited for the proposition that the rules made under the proviso to Article 309 of the Constitution being legislative in character cannot be struck down merely because the Court thinks that they are unreasonable. They can be struck down only on the grounds upon which a legislative measure can be struck down. [f] The decision of the Supreme Court in State of Haryana v. Haryana Civil Secretariat Personal Staff Association, reported in (2002)6 SCC 72, was cited for the proposition that a "claim for equal pay for equal work" is not a fundamental right vested in an employee, and that, fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. It was held that the Court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. [g] The decision of the Supreme Court in Secretary, Finance Department v. West Bengal Registration Service Association, reported in AIR 1992 SC 1203, was cited for the proposition that it was well settled that equation of posts and determination of pay-scales is the primary function of the executive and not the judiciary and therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay commissions. [h] The decision of the Supreme Court in State of W.B. v. Hari Narayan Bhowal, reported in (1994)4 SCC 78, was cited for the proposition that the principle of "equal pay for equal work" can be enforced only after the persons claiming satisfy the court that not only the nature of work is identical but in all other respects they belong to the same class and there is no apparent reason to treat equals as unequals. [i] The Full Bench decision of the Kerala High Court in Director of Postal Services (South) Kerala Circle v. K.R.B.Kaimal, reported in 1984 LAB. I.C. 628, was cited for the proposition that the rights and liabilities of the temporary government servants in the P & T Department are to be found in the Rules framed under Article 309 of the Constitution, and that the duration of the temporary service, the mode of termination, the conditions under which they can claim any monetary benefit on termination of their services, were all contained in those Rules. It was held that the Courts cannot ignore the rules nor efface them from the statute book simply because there was the Industrial Disputes Act. The Court relied upon the decision of the Supreme Court in Bangalore Water Supply & Sewerage Board v. A. Rajappa, reported in (1978)2 SCC 213, in which it was held that, the rules under Article 309 of the Constitution may expressly or by necessary implication, exclude the operation of the Industrial Disputes Act, and that if express rules under other enactments govern the relationship between the State as and employer and its servant as employees, it may be contended, on the strength of such provisions, that a particular set of employees are outside the scope of the Industrial Disputes Act, for that reason. The special Act excludes the applicability of the general. [j] The decision of Madras High Court in General Secretary, Madras Harbour Workers' Union v. The Industrial Tribunal, Madras, reported in 1972(1) LLJ 8, was cited for the proposition that if the scheme which had all the characteristics of a subordinate legislation, was to be amended by the Tribunal, the Tribunal would be arrogating to itself too much power, which it did not have, because, under Section 4(1) of the Madras Dock Workers (Regulation of Employment) Act, 1948, the Central Government alone had the jurisdiction to amend and modify the provisions of the scheme and not the Industrial Tribunal. 5. The learned counsel appearing for the respondent Union belatedly raised a preliminary objection that this Bench should not hear the matter, because, it should go before the learned Single Judge under the Rules. It was submitted that the Union had not challenged any Entry of the Revision of Pay Rules, 1975, and that since the jurisdiction of the Tribunal was not challenged, no new plea can be raised even on the question of jurisdiction before this Court. It was submitted that, despite the recruitment rules being separate, the Compositors were entitled to the same pay-scale as was given to the Proof readers, because, their duties were of similar nature and, in the past, in the Saurashtra Government and even thereafter, prior to the year 1969, parity in pay-scale was maintained between these two posts. It was only after the Desai Pay Commission recommendations that the parity was disturbed. The learned counsel argued that the reference was made to the Tribunal after the High Court had disposed of the earlier petition with a direction that the Government may consider the question of referring the dispute to the Tribunal and therefore, the jurisdiction cannot now be questioned in the present proceedings. It was submitted that whenever a dispute between workman and the employer exists, the industrial dispute would arise, in respect of which, the Tribunal would have jurisdiction under Section 7A of the Act. It was submitted that the Tribunal had all the powers to interfere with the existing service conditions of all workmen, including government employees who were workmen, by modifying, varying or adding to their service conditions. It was argued that the Tribunal can change the terms of the contract of service and pass an award granting just and appropriate relief to such workmen. It was also contended that the government press run by the State was an "industry". 5.1 In support of her contentions, the learned counsel for the Employees Union relied upon the following decisions : [a] The decision of the Supreme Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal, reported in AIR 1970 SC 245, was cited to point out that, it was held by the Supreme Court in paragraph 10 of the judgement that the jurisdiction which was granted to the Industrial Tribunal by the Industrial Disputes Act was not the jurisdiction of merely administering the existing laws and enforcing existing contracts. Industrial Tribunals have the right even to vary contracts of service between the employer and the employees which jurisdiction can never be exercised by a civil court or a Registrar acting under the Co-operative Societies Act. [b] The decision of the Supreme Court in Patel Ishwarbhai Prahladbhai v. The Taluka Development Officer, reported in AIR 1983 SC 336, was cited to point out that the supreme Court held that the tube well operators who were employed in scheduled employment under the local authorities were entitled to minimum wages and other benefits under the Act, it not being disputed that minimum wages were fixed by the State Government in respect of tube well operators generally though the benefit was not extended to, the tube well operators concerned in the appeals. [c] The decision of the Supreme Court in State of Haryana v. Ram Chander, reported in (1997)5 SCC 253, was cited to point out that the Supreme court upheld the claim for parity in pay-scale of teachers in different educational institutes. The Supreme Court observed that the difference in the nomenclature between the two sets of employees, namely language teachers like the respondent in technical institutes and lecturers in higher secondary schools, did not represent any substantial cleavage in the quantity and quality of work done by these sets of employees. [d] The decision of the Supreme Court in The Corporation of the City of Nagpur v. N.H.Majumdar, reported in AIR 1960 SC 675, was cited for the proposition that the definition of "industry" under Section 2(j) of the Industrial Disputes Act was very comprehensive and if any activity falls under either part of the definition, it would be an industry within the meaning of the Act. The Supreme Court held that if a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act. [e] Reliance was placed on the decision of this Court in Gujarat Mineral Development Corporation v. Presiding Officer, Labour Court, reported in XXVII(1) GLR 410, in which, it was held that the pleas which were not taken in the trial court cannot be permitted to be taken for the first time in the writ petition. [f] Reliance was placed on the decision of this Hon'ble Court in Adamji M. Badri v. Labour Officer, reported in (1981)1 LLJ 367, for the proposition that the definition of "industrial dispute" under Section 2(k) of the Industrial Disputes Act, is wide enough to embrace within its sweep any dispute or difference between an employer and his workmen connected with the terms of their employment. [g] The decision of this Court in Kalol Municipality v. Shantaben Kalidas, reported in XXXIV(2) GLR 997, was cited for the proposition that the Gujarat Municipalities Act, 1963 did not deal with the sphere of industrial dispute which was occupied by the Industrial Disputes Act. After the workman raised industrial dispute for changing their existing conditions of employment, the matter would be entirely governed by the Industrial Disputes Act, which provides for settlement of industrial disputes by changing, modifying or altering the existing conditions of service whether under a contract or under a Rule. Once the dispute is raised, the matter would be governed by the Industrial Law. [h]