IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1969 of 2009 (O&M) Date of Decision: 12.5.2009 Punjab State Electricity Board. ....... Appellant through Shri Sukhbir Singh, Advocate. Versus Rameshwar Kumar. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.5779-C of 2009 The application is allowed and delay of nine days in refiling of the appeal is condoned. R.S.A.No.1969 of 2009 & C.M. No.5780-C of 2009 This Regular Second Appeal is directed against judgments and decrees dated 13.6.2007 and 18.12.2008 passed respectively by the Civil Judge (Senior Division), Bathinda (hereinafter described as `the trial Court') and the District Judge, Bathinda (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-respondent has been decreed and the appeal of the defendant-appellant has been dismissed. C.M. R.S.A.No.1969 of 2009 (O&M) -2- .... No.5780-C of 2009 has been moved for staying the operation of the impugned judgments and decrees during the pendency of the appeal. The respondent filed a suit for declaration to the effect that he is entitled to the pay scale of Rs.4300-7500 with effect from 1.1.1996, ((initial start of Rs.4775/-), which pay scale is at par with that of Computer Operator as he was performing the duties similar to those performed by the Computer Operator even though he was appointed as Machine -cum- Key Punch Operator in the pay scale of Rs.510-800 in October,1981 at Guru Nanak Dev Thermal Plant, Bathinda owned by the appellant. It was pleaded by him that despite the fact that his appointment was as Machine -cum-Key Punch Operator, the authorities of the appellant were taking work of a Computer Operator from him. It was further pleaded that some Computer Operators were appointed by the appellant in the year 1986 to run computers installed at Patiala and Ludhiana in the pay scale of Rs.510-800 at part with that of the respondent and after revision of pay scales with effect from 1.1.1986, Machine -cum- Key Punch Operators and Computer Operators were given the same pay scale of Rs.1200-2200, except special pay of Rs.80/- allowed to the Computer Operators. The special pay was also demanded by the Machine -cum- Key Punch Operators,but the same was declined, which forced them to file a civil suit for declaration that they were entitled to special pay of Rs.40/- w.e.f. 19.10.1985 and Rs.80/- with effect from 1.1.1986 as was given to the Computer Operators, who performed the same duties which were being discharged by them. That suit was decreed vide judgment and decree dated 5.9.1992. However, no appeal R.S.A.No.1969 of 2009 (O&M) -3- .... was preferred against the said judgment and decree and the directions of the Court were implemented. It was averred that Machine-cum- Key Punch Operators and Computer Operators were granted the same revised promotional scale of Rs.1500-2640 after completion of 9 years' service and that of Rs.1800-3200 after completion of 16 years' service vide circular dated 23.4.1992. The pay scales were again revised with effect from 1.1.1996 and the employees of both these cadres were given the equal pay scale of Rs.4300-7500, but vide circular dated 20.2.2003, Computer Operators were granted initial start of Rs.4775/-, whereas Machine -cum- Key Punch Operators were denied the same benefit. On 24.4.2003, the respondent made a detailed representation to the authorities of the appellant, but no action was taken thereon. The appellant had granted first time bound promotional scale of Rs.5300-9100 to Machine- cum-Key Punjch Operators vide circular dated 13.11.2003, whereas Computer Operators were given the promotional scale of Rs.5900-10000. However, the second time bound promotional scale Rs.6300-10700 was allowed to both the categories of employees, which shows that Machine -cum- Key Punch Operators and Computer Operators were kept at par. However, the Machine -cum- Key Punch Operators are senior in length of service and are being discriminated from the start, firstly they were not allowed special pay and further the first time bound promotional scale was given differently. It was, thus, prayed that as detailed in the head note of the plaint, the appellant be granted the requisite pay scale with effect from 1.1.1996 and arrears of pay along with other benefits be allowed to him with interest at the rate of 18% per R.S.A.No.1969 of 2009 (O&M) -4- .... annum. Upon notice, the appellant appeared through counsel and filed written statement taking legal objections that the suit was hopelessly time barred; that the respondent was estopped from filing it by his act and acquiescence; that it was not maintainable in the present form and that it was false, frivolous and vexatious. On merits, the averments of the respondent were denied and dismissal of the suit was prayed for. The appellant had averred that it was within the executive domain of the authorities to frame a policy for proper and better administration and cannot be interfered with by the Court. The passing of the judgment and decree dated 5.9.1992 whereby special pay to the respondent and other Machine -cum- Key Punch Operators was allowed, was not denied. It was pleaded that on account of duties and responsibilities being different from Machine -cum- Key Punch Operators, the Computer Operators were allowed initial start of Rs.4775/- and they were also granted higher first time bound promotional scale. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is entitled for declaration for the reasons mentioned in the plaint?OPP 2. Whether suit is within limitation?OPP 3. Whether plaintiff is estopped by his act and conduct from filing the present suit?OPD 4. Whether suit is not maintainable in the present form?OPD R.S.A.No.1969 of 2009 (O&M) -5- .... 5. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit of the respondent and held that there was no distinction between the duties of Machine -cum- Key Punch Operators and Computer Operators for the reason that the appellant was extracting similar work from the former. Reliance was also placed on judgment dated 5.9.1992, Exhibit P1, wherein a categoric finding to that effect was recorded. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant contended that since nature of duties being performed by the Machine -cum- Key Punch Operators and the Computer Operators was different, same pay scale could not be granted to them and, therefore, the findings recorded by the Courts below were erroneous and are liable to be set aside. According to the learned counsel for the appellant, the following question of law arises for determination in this appeal:- “Whether the principle of `equal pay for equal work' can be applied to the persons, who are having different educational qualifications and are discharging different kinds of duties and responsibilities?” After hearing the learned counsel for the appellant and perusing the record, I am of the opinion that there can be no quarrel with the proposition of law which has been propounded by him that if the nature and R.S.A.No.1969 of 2009 (O&M) -6- .... responsibilities performed by two different sets of employees is not similar, then the employer is very well within his right to prescribe separate pay scales for each of them. But, in the instant case, if the facts are to be seen, the matter has been clinched by the judgment dated 5.9.1992, Exhibit P1, passed by the Civil Court. The relevant extract of the same is reproduced below:- “8. On the other hand, it has been argued by learned counsel for the plaintiffs that though plaintiffs were appointed as Key Punch Operators, but they are performing the duties of Computer Operators. It has been contended that post of Computer Operator carried a special pay of Rs.40/- earlier to1.1.1986 and w.e.f. 1.1.86 it has special pay @ 80/- per month. It has been contended that though plaintiffs are not posted as Computer Operators, but because they are performing duties of Computer Operators, therefore, they are entitled to special pay admissible to a Computer Operator. I agree with this contention of learned counsel. Defendants are taking duties of Computer Operators from the plaintiffs and they must pay to the plaintiffs all the allowances admissible to the Computer Operators. Therefore, issue no.1 is decided in favour of the plaintiffs and it is held that they are entitled to special pay at the rate of Rs.40/- per month w.e.f. 19.10.1985 and @ Rs.80/- per month w.e.f. 1.12.1986. They shall be entitled to draw this special pay till they are asked to perform the duties of R.S.A.No.1969 of 2009 (O&M) -7- .... Computer Operators.” The aforesaid judgment has assumed finality having been rendered in the year 1992 and not being assailed by the appellant. It is apparent that the authorities of the appellant were treating both these sets of employees equally and, therefore, it does not lie in their mouth to say that they are performing separate duties. There is no evidence on record which could point out to the different kinds of responsibilities being discharged by these two sets of employees. Accordingly, the plea of the appellant which has been raised has remained un-established as there was no evidence before the Courts below. Hence, in view of the fact that a judicial finding has been recorded to the aforesaid effect, which remained unchallenged and was accepted by the appellant in the year 1992, I am of the view that the plea which has been now raised in the present appeal does not merit acceptance and the question of law posed by the learned counsel for the appellant is answered against the appellant and in favour of the respondent for the aforestated reasons.. Consequently, the appeal, being devoid of any merit, is dismissed. May 12,2009 ( Mahesh Grover ) “SCM” Judge