C.W.P No.18412 of 2002 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No.18412 of 2002 (O&M) Date of Decision:24 .07.2009 State of Haryana through Director-Principal, Chhotu Ram State College of Engineering, Murthal, District Sonepat .....Petitioner Versus Santro Devi and others ...Respondents Present: Mr. D.S. Nalwa, Advocate, Addl. A.G., Haryana. for the petitioner. Mrs. Abha Rathore, Advocate for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers 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 ? -.- K. KANNAN J. 1. The dispute raised by the workmen through the demand notice was that they had been performing duties as Lab Attendants in as many as 31 different labs in the Chhotu Ram State College of Engineering and being cast on a pay scale of Rs.750-940/-, which was lower than the scale of Lab Attendants in other Government Engineering Colleges. According to them, they were entitled to higher scales of pay and they were entitled also to be re-designated as Lab Attendants. 2. The management contended that Peons-cum-Attendants, to which designation the workmen had been assigned, held Class IV C.W.P No.18412 of 2002 (O&M) -2- posts and a re-designation that they were seeking as Lab Attendants was Class III posts carrying higher scales of pay and the Labour Court had not the competency to change the cadre and admit to the workmen a higher scale of pay. The Labour Court found on evidence let in before it that the persons who had been designated as Peons-cum- Attendants were actually performing the duties as Lab Attendants at the various labs in the Engineering College and hence they were entitled to be re-designated as Lab Attendants and they were also entitled to a higher scale of pay w.e.f. 01.05.1990 with a direction that no further recruitment of non-matrics as Lab Attendants shall be made by the management institution. 3. Learned Counsel, Sh. Nalwa appearing on behalf of the State represented through the Director Principal of the College had filed some additional documents before this Court, which referred to the actual sanctioned strength as ordered by the Governor of Haryana vide his letter dated 06.05.1987. As per the said communication, there were three Lab Technicians in the pay scale of Rs.480-760/- (pre- revised), three Lab Attendants (Non Matric/Matric) in the pay-scale of Rs.350-500/- and Rs.400-660/- respectively. The sanctioned posts of Peons were 4. By a subsequent communication dated 03.08.1988, sanction had been accorded for 7 Attendants in the pay scale of Rs.750-940/-, amongst other posts. Under a communication dated 19/24.10.1988, the nomenclature of the Lab/Workshop Attendants (Matric) became Laboratory Assistants and Lab Attendants (non- matric) became merely Attendants. These documents were objected to by the learned counsel appearing for the respondent that they had not C.W.P No.18412 of 2002 (O&M) -3- been filed before the Labour Court and no reliance could be made. However, I find that these communications are merely details regarding the sanctioned posts and the various designations that were available. It is not as if the workmen could complain that they were being taken by surprise. After all along the contention on behalf of the management was that the Labour Court did not have jurisdiction to upgrade the Peons-cum-Attendants, who were Class IV employees to higher class namely of the Lab Attendants, who are Class III employees. I, therefore, receive those documents as relevant in this case. 4. It is not denied that the Peons-cum-Attendants were Class IV employees and Lab Attendants presently designated as Lab Assistants are Class III employees. The Labour Court had examined the evidence of the witnesses on both sides and found that the Peons- cum-Attendants were actually assisting the Lab Technicians and that they were employed to help the Lab Technicians for maintenance and work in the class. The Foreman examined on the side of management had specifically admitted that when the claimants-workmen worked in the Lab, they did work of Lab Attendants. He explained on his own that they did the work of cleaning tool equipments, furniture etc., giving tools to students and helped the technicians in maintenance and other help. Through the Registrar, the management sought to contend that AICTE had prescribed norms for affiliation and stated that while they had followed the norms set by AICTE for teaching staff, they did not follow the norms for Laboratory staff. He admitted that there were 84 laboratories but said that they did not have any posts as Lab C.W.P No.18412 of 2002 (O&M) -4- Attendants. He also admitted that Peons-cum-Attendants, who had been so employed actually worked in the Labs. In view of the specific admission made by the Registrar that they had not complied with the norms of the AICTE and they had the Peons-cum-Attendants working also in the Labs, the Labour Court applied the scales that were applicable to Lab Technicians in Engineering College Kurukshetra where they held the higher scales of pay of Rs.950-1500/- and accorded to them such a higher scale on the principle of equal pay for equal work and directed the higher scales of pay to be given. 5. It should be seen that the principle of equal pay for equal work is not to be adopted in a mechanical fashion. The burden of proof that they were doing the same work as was being done elsewhere by other pesons who held higher scales of pay to merit claims to parity shall always be on the workmen, as held recently by a judgment of the Hon'ble Supreme Court in U.P.S.E.B and another Vs. Aziz Ahmad (2009) 2 SCC 606. The Hon'ble Supreme Court also enunciated that the principle shall be applied not merely by the same work that is done but it should be ascertained also that the duties and responsibilities accompanying such post must been seen as identical (Director General of Works, CPWD Vs. Regional Labour Commissioner (Central) and others (2008) 2 SCC 589). The Hon'ble Supreme Court also illustrated through several examples in another decision in State of Haryana and others Vs. Charanjit Singh and others (2006) 9 SCC 321 that cases like special scales to prevent a stagnation, strict selection process to identify certain classes of persons of higher merit for performing the same work might still merit C.W.P No.18412 of 2002 (O&M) -5- consideration of higher scale of pay. In this case, there was an admission by the Registrar that the College had not the required strength of Lab Attendants as prescribed by the AICTE norms and had allowed the Peons-cum-Attendants to also work as Lab Attendants. At the same time, there was also evidence through the admission of the workmen themselves that they also worked in offices and whenever they worked in the Labs they worked as Lab Attendants. Learned counsel appearing for the workmen stated as a proposition of law that a High Court exercising jurisdiction under Artile 226 shall not interfere with definite findings of the fact and when the Labour Court had held that the workmen had been doing the work as Lab Attendants, the same cannot be interfered with and the scale of pay accorded to them at par with Lab Attendants elsewhere in the Engineering College, Kurukshetra ought not to be interfered with. I affirm the finding of the Labour Court that all the workmen were doing the work of Lab Attendants and they were entitled to a higher scale of pay of Rs.950-1500/- (pre-revised) and a calculation of the same upto the date of judgment of the Labour Court is approved by this judgment. 6. Even while affirming the finding of the Labour Court, I cannot uphold the direction by the Labour Court re-designating the Peon-cum-Attendant as Lab Attendant and permanently increasing the scales of pay to Rs.950-1500/- with a further embargo caused on the management to recruit non-matriculates Lab Attendants. The order given by the Labour Court would virtually amount to re-writing the cadre strength. Creation/abolition of posts, formation/restructuring of C.W.P No.18412 of 2002 (O&M) -6- cadres, upgradation of cadres or determining cadre strength are all matters that fall in employer's domain that Courts shall be loathe to make judicial intervention. Please see Union of India Vs. S. Thakur (2008) 13 SCC 463; Union of India Vs. Pushpa Rani (2008) 9 SCC 242. If the Government had not provided for a higher cadre in Class III to accord with the AICTE norms, it shall be for the AICTE to make the institution conform to its regulation. The evidence of the Registrar making an open defiance that they have not conformed to the norms of AICTE with reference to the non-teaching staff is as candid as it is unacceptable. The workmen or any interested party shall have appropriate remedy through representation also to AICTE to make them conform to the regulations. The parity of pay that the Labour Court has ordered, I have restricted it only upto the date of the judgment of the Labour Court and direct that it would not operate for any period subsequent to the judgment. Since the judgment has been rendered on the basis of evidence and on factual considerations which I am not inclined to interfere, it does not, however, mean all the Peons-cum-Attendants shall bear a nomenclature as Lab Attendants. I have already pointed out that the workmen were also working in offices as Attendants and it would be inappropriate to extend the equal pay for equal work doctrine without finding that all the workmen are employed only as Lab Attendants at all times and continue to be employed as such till date. It has to be seen on a case to case basis and without any evidence, till date, such an increase in scale of pay by a permanent arrangement through an order of the Court cannot be made. In retaining the workmen only in the cadre of Peons-cum- C.W.P No.18412 of 2002 (O&M) -7- Attendants in Class IV category, I make it clear that it will also be open to the affected workmen to make appropriate representation to the government to have them re-designated appropriately for actual work done by them on a permanent basis. Independently of what workmen may opt to do, the Government is hereby directed to consider the actual condition prevalent now and take a decision about the feasibility of increasing the cadre strength to conform to AICTE norms as expeditiously as possible. 7. The order of the Labour Court is set aside and modified to permit the workmen to obtain a higher scales of pay (pre-revised) at Rs.950-1500/- only upto the date of the order of the Labour Court and the direction of the Labour Court re-designating them as Lab Attendants is set aside. The directon against the management for recruiting non-matriculates as Lab Attendants is also set aside. The writ petition is ordered in the above terms. (K. KANNAN) JUDGE July 24 , 2009 Pankaj*