CWP No.4641 of 1990 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4641 of 1990 (O&M) DATE OF DECISION: April 20, 2011 PUNJAB KHAND UDYOG MAZDOOR UNION ...PETITIONER VERSUS STATE OF PUNJAB & ANOTHER ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? Yes/No 2. To be referred to the reporters or not? Yes/No 3. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. ASHWANI BAKSHI, ADVOCATE FOR THE PETITIONER. MS. REETA KOHLI, ADDL.A.G., PUNJAB. MR. RAHUL SHARMA, ADVOCATE FOR RESPONDENTS NO.2. K.KANNAN, J. 1. The writ petition has been filed in at the instance of the Punjab Khand Udyog Mazdoor Union seeking for parity of wages as applicable to the Government servants in the Punjab Government. The basis of the claim is that Punjab Khand Udyog Ltd. (For short ‘PKUL’) is controlled essentially by the State Government by 99.3% shares being held by the State through Punjab State Industrial Development Corporation and only 0.7% shares are with the private individuals. The 2nd respondent is an instrumentality of State within the definition of Article 12 of the Constitution of India. Referring to the fact that there had been periodical revisions of pay scales for the State of Punjab through Pay Commission CWP No.4641 of 1990 (O&M) -2- recommendations, the grievance of the petitioner is that no such revision of pay was ever made so far as the employees of the Khand Udyog are concerned. The 2nd respondent would object to the maintainability of the petition stating that Punjab State Industrial Development Corporation does not own any share with it, but all the shares of the company are being held by Gurdaspur Co-operative Sugar Mill Society and Zira Co-operative Sugar Mill Society. Refuting the plea that Government has any control, it is stated in response that the Registrar, Co-operative Societies has no say in the appointment of Managing Director and that as per Articles of the 2nd respondent company, the Managing Director has to be appointed by the Board of Directors of the company. It is also denied that the Common Cadre Rules are applicable to the answering respondent. The employees, on the other hand, are governed by the rules framed by the respondent- company as well as by Sugar Wage Board. It is contended by the respondent that the recommendations of the Sugar Wage Board alone are being followed for employees falling within the category governed by the Sugar Wage Board. Responding to the contention that the employees of the petitioner-union have suffered stagnations since the year 1990, the respondent gives details of the various revisions that have taken place in basic pay as well as dearness allowances from the year 1981, 1982, 1984, 1985, 1986 and 1987. Since the ultimate control by the State is denied, the respondent No.2 also denies that there could be any parity in wages for the members of the petitioner-union being employees of 2nd respondent. 2. A belated rejoinder is filed by the petitioner trying to explain the degree of control of the State over 2nd respondent. The petitioner refers to a CWP No.4641 of 1990 (O&M) -3- Memorandum of Association of the respondent that says that so long as the PSIDC holds not less than 26% of the subscribed capital, it would be entitled to nominate at least 3 Directors on the Board of Directors. It appears that a petition had been filed before the Company Court under Section 393(i)(A) of the Companies Act, 1956 in Company Petition No.98 of 1990 where the transferor company, namely, PKUL was stated to be wholly owned subsidiary of Punjab State Industrial Development Corporation, a State Government Financial institution and referring to Gurdaspur Co-operative and Zira Co-operative Sugar Mills Ltd. as the Member-shareholders. The petitioners would state that 2nd respondent has adopted varying criteria for different sets of employees in the matter of pay scales which are totally irrational, arbitrary, discriminatory and unjustified. It admits the fact that PKUL is no more in existence and the employees of the Mills under the erstwhile PKUL become the employees of Sugarfed on dissolution of the PKUL in 1991. It states that there are 3 sets of employees in Sugarfed. The first category of the employees who are called Mill cadre, are being granted pay scales as per the recommendations of the Sugar Wage Board; the second category, being the employees who are given company scales and also called as common cadre employees and the third category is of those employees who are posted in the head office of Sugarfed and called Sugarfed cadre. Illustrative of the contention that classification has been arbitrary, the petitioner would contend that the persons who had been initially appointed as Manufacturing Chemist in PKUL had reached to the level of Deputy Chief Chemist or Chief Chemist, because persons in the said cadre got the benefit of time bound promotional policy applicable to the common cadre employees, but on the other hand, a person who was CWP No.4641 of 1990 (O&M) -4- appointed as Lab Chemist continues as a Lab Chemist just because the Wage Board award is made applicable to him. 3. It could be noticed that the reply actually makes a deviation from what is originally stated in the writ petition. In the writ petition, the complaint was that the employees must be paid on par with the Government employees and when it was alleged by the respondents that all the employees of the Mills were being paid wages as per the Wage Board, the petitioner delineated from the original pleading and has contended that there is irrational classification of workers who are absorbed in three different streams. I am of the view that it is a complete departure from the basis on which the original prayer in the writ petition was sought. If there had been any change in terms of the service at the time when the persons who were absorbed in three different streams that ought to have been a ground for grievance elsewhere and not through the writ petition with the reliefs as couched therein. Again at the time of settling a new scheme when the 2nd respondent company was dissolved and the employees were taken as Sugarfed employees in three categories as mentioned above, it could not have been done without their concurrence. If there had been any grievance for the workers in the manner that they were absorbed or they had suffered any discrimination or put on scales which were seriously hampering their terms of service, those contentions would give rise to a different cause of action which is not germane to the relief sought in the writ petition. If there are inter se issues within the same establishment of how different scales have been drawn up for same work, the parties whose scales are sought to be brought on par shall be made parties or specific instances shall be given to enable the management to join issues on the area of controversy. CWP No.4641 of 1990 (O&M) -5- 4. Further, if the case has to be decided only on the entitlement of the petitioners to securing Government scales of pay, the extent of judicial review itself is exceedingly limited. The issue of ‘equal pay-equal work’ does not work like a mathematical formula of characterizing all the persons working in a sugar factory to be treated on the same scales as Government employees. It is an exercise in human resource planning and the petitioners have not addressed any specific argument as to how the various categories of workmen in the erstwhile 2nd respondent company could be fitted correspondingly to categories of persons in Government service and how the parity in scales are to be worked out. While laying down exceptions to the principle, the Supreme Court held in Haryana SEB vs. Gulshan Lal, (2009) 12 SCC 231, at page 246 : “It is a trite law that the doctrine of equal pay for equal work cannot be applied automatically. Application of the said doctrine involves several factors. Referring to its own earlier ruling, the Supreme Court continued: “40. In Deb Narayan Shyam v. State of W.B. (2005) 2 SCC 286 this Court held: (SCC p.305, para 15) “15. … A large number of decisions have been cited before us with regard to the principle of ‘equal pay for equal work’ by both sides. We need not deal with the said decisions to overburden this judgment. Suffice it to say that the principle is settled that if the two categories of posts perform the same duties and functions and carry the same qualification, then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are CWP No.4641 of 1990 (O&M) -6- different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work.” (See also Union of India v. Mahajabeen Akhtar (2008) 1 SCC 368.) 41. Same or similar nature of work, by itself, does not entitle an employee to invoke the doctrine of equal pay for equal work. Qualification, experience and other factors would be relevant for the said purpose.” 5. The prayer in the writ petition under the circumstance is, therefore, untenable and the petition ought to fail. The writ petition is dismissed. April 20, 2011 (K.KANNAN) Gulati JUDGE