CWP No. 7761 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 7761 of 2010 (O&M) Date of Decision: 27.08.2010 The Sikh Educational Society & Anr. ...Petitioners Vs. The Presiding Officer & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.R.SAhluwalia, Advocate, for the petitioners. Mr.H.S.Hundal, Advocate, for the respondents. Vinod K.Sharma, J . (Oral) This judgment shall dispose of CWP Nos.7761, 7162, 7166 & 7386 of 2010 all titled, The Sikh Educational Society & Anr. Vs. The Presiding Officer & Ors., as common questions of law and facts are involved in these writ petitions. For the sake of brevity facts are being taken from CWP No.7761 of 2010. The Sukhdev Educational Society (for short the Society), i.e. the employer, by invoking the writ jurisdiction of this court, challenged the award dated 30.11.2009. passed by the learned Presiding Officer, Industrial CWP No. 7761 of 2010 2 Tribunal and Labour Court, Union Territory Chandigarh (for short the Tribunal) The petitioner established a school in the year 1992, which is affiliated to Central Board of Secondary Education, New Delhi. The school conducts classes up to 12th standard. The petitioner school is the private school and no grant-in-aid is being paid by the Chandigarh Administration to meet for payment of salary of staff and other expenses. The petitioner Sri Guru Gobind Singh Collegiate Public School for boys Sector 26, Chandigarh, the petitioner in CWP Nos. 7766 and 7385 of 2010 are getting grant in aid to the extent of 95% for its teaching and non-teaching staff since 1.9.1998. In case where the grant-in-aid is being received, the dispute was with regard to employees appointed on non-sanctioned posts against which no grant-in-aid is received by the petitioner. Case of the petitioner is, that the Director Public Instructions of Central Board of Secondary Education has no Administration/financial control over the schools affairs as the funds for running the school including the salary and other benefits to the employees are borne by the Management of the College from its own resources. The case of the petitioner is, that being a private management, the salary and allowances of the employees are determined by the Management which are binding on the employees. It is also the pleaded case, that service conditions of the employees were governed by the terms of the contract/agreement mutually agreed between the parties. The case of CWP No. 7761 of 2010 3 the petitioner further was, that the services of the employees were not governed by any statutory rules. The pleadings referred to above are prima facie not correct, as the service conditions of the employees working in the Colleges run by the petitioner are governed by the Service and Conduct Rules for non-teaching staff of non Government affiliated Colleges, which have statutory force of law, as these were framed under the Punjab University Act. Other employees working in the school affiliated to CBSE are governed by statutory regulations framed by CBSE. Case of the petitioner further was, that all the employees including teaching and non-teaching staff on the rolls of the school were appointed by the Management, and the competent authority is its Management and the post is held by the employee at the pleasure of the Management. This plea again on the face of it is not correct, as the protection is provided to aided teacher by statute or the CBSE regulations. It is not in dispute that all the employees working with the petitioners were in regular pay scales, irrespective of the fact whether the post was aided post or a non- aided post. The Government of India vide order dated 26.5.2004 allowed the meger of 50% DA in the basic pay to its employees and to employees of autonomous bodies. State of Punjab vide its order dated 1.6.2004 also adopted the merger of 50% DA with basic pay w.e.f. 1.4.2004. Chandigarh Administration by following the policy of Punjab Government also merged CWP No. 7761 of 2010 4 50% DA, in the basic pay vide order dated 2.6.2004. Pleaded case of the petitioner was, that the Chandigarh Administration ordered the merger of 50% DA with basic pay to UT employees and to employees of the Punjab Government in UT, in the same terms and conditions as given to the Government of Punjab. It is admitted case of the petitioners, that the petitioner/Management also sanctioned the merger of 50% of the DA with the Basic Pay w.e.f.1.4.2004. The case set up by the petitioner was that this merger was to be allowed only to the incumbents working on the sanctioned/grant-in-aid posts and not to those working on non-sanctioned posts. As the notification was not applicable to the petitioner school, being a private school run by the Management. It was on account of bona fide mistake, that the benefit was extended to the employees working on non- sanctioned posts. Benefit was said to have been granted on wrong advice, as the school was not in financial position to pay this. Further the case set up by the petitioner was, that on coming to know about the mistake, it was rectified, by recalling the benefit granted to the employees working on unaided non-sanctioned posts i.e. the posts which were not governed under 95% grant-in-aid. The workmen being aggrieved by the decision of the petitioner raised a demand under section 2-K of the Industrial Disputes Act (for short the Act) for quashing the order dated 6.8.2005. The State Government in exercise of powers conferred under section 10 of the Industrial Disputes Act, referred to the matter for adjudication to the learned Tribunal/Labour CWP No. 7761 of 2010 5 Court. The workmen filed their claim petition, which was contested by the petitioner/management. Defence raised was, that the relief claimed by the workmen did not rise from any statutory rules or regulations, as the employees working on non-sanctioned posts were not governed under the grant-in-aid scheme, therefore, did not fall within the purview of notification. Learned Tribunal in view of the respective pleadings of the parties framed the following issues: 1. Whether the demand raised in the demand notice dated 25.10.2005 by the workmen to the management are genuine and justified. If so, to what effect and to what relief the union/workers is entitled to, if any? OPW 2. Whether the reference is not maintainable? OPM 3. Relief. Learned Tribunal on appreciation of pleadings and evidence held, that all the workmen were working on non-teaching posts with the Management i.e. the Society, and that the School/College under the management was a recognized School of Chandigarh Administration, affiliated to Board of Secondary Education, New Delhi. On an earlier occasion a non-teaching employees Union of Guru Gobind Singh College, had raised a demand for grant of equal pay for equal work to all the employees. Vide award dated 2.2.1995 their demand CWP No. 7761 of 2010 6 was accepted. Copy of the award was placed on record as Annexure A.5. Notification dated 1.6.2004 by the State of Punjab for merger of 50% DA in basic pay w.e.f 1.4.2004, was placed on record as Annexure A.1 which was followed by the Chandigarh Administration vide agreement Annexure A.2, and the decision of the Principal for merger of 50% DA in basic pay of teaching and non-teaching staff w.e.f.1.4.2004 was placed on record as Annexure A.3. On the basis of evidence referred to above stand of the workmen was, that the salary was being paid according to decision Annexure A.3, thereafter without any notice and without giving opportunity of hearing the benefits were withdrawn by the Management on 6.8.2005 vide Annexure A.6, which further provided that the amount already paid was to be recovered in intalments from the salary of the employee. The order was said to be in violation of Section 9-A of the Act. It was also the case of workmen that as per Annexure A.5 al the workmen were entitled to equal pay for equal work, whether they were working on sanctioned or non-sanctioned posts. Though the factual position was not disputed by the Management, the contentions raised before the learned Tribunal was, that all the employees mentioned in the demand notice were working on non- sanctioned posts, and the salaries etc. of these employees were being paid by the Management from its own resources, as the Society was not getting grant-in-aid with respect to these posts. It was also the stand of the Management that it was a religious CWP No. 7761 of 2010 7 charitable Society engaged in providing quality education to students, on non-commercial basis, and that the State Government has no control over the employees working on non-sanctioned posts. It was also the case of the Management, that the employees working on non-sanctioned posts were appointed without inviting applications by advertisement nor proper selection process were adopted before appointing them. The case of the management was, that the concession which was voluntary given could be withdrawn. Plea was also raised, that the references were not competent, since the demand of employees was neither espoused by any employee Union nor the substantial number of employees. Learned Tribunal in view of the admitted position held, that the employees who were working against the non-sanctioned posts were doing the same job and duties which were being done by the employees working against sanctioned posts. Learned Tribunal by placing reliance on the judgment of Surinder Singh Vs. Engineer0in0Chief (69) FJR 421, held that casual daily wager and temporary employees were entitled to same wages which were being paid to regular employees. Learned Tribunal also took note of the admission made by MW 1, that all employees were working in a regular pay scale, and that the non- teaching employees were being paid grade as per the Chandigarh Administration. He had also admitted that the scale fixed by the Chandigarh Administration were being paid to employees who were working against sanctioned or non-sanctioned posts. There was also admission by the witness of Management that CWP No. 7761 of 2010 8 the Chandigarh Administration adopted pay scales of Punjab Government, and that 50% of the DA was merged in the basic pay as per Annexure A.3 and that all the employees were paid arrears. He further admitted that subsequently benefit was directed to be withdrawn, and the amount paid was directed to be recovered from the salary of the concerned employees. Learned Tribunal in view of Section 9-A of the Industrial Disputes Act, held that any change in condition of service could not be made without issuing notice in prescribed manner to the workman. Under section 9-A of the Act notice of 25 days was mandatory. Notice was not required in case, if change was effected in pursuance to the settlement or award, or in case of employees governed by the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Services) Rules etc. Wages including period and mode of payment is a condition of service, recognized by the Act. The learned Tribunal held, that as no notice was given, before reviewing the order, the impugned order was bad being in violation of Section 9-A of the Act. The learned Tribunal also held, that on the principles of parity of pay, demand raised deserved to be accepted. Accordingly, reference was answered in favour of the workmen/respondents. Mr.R.S.Ahluwala, learned counsel appearing on behalf of the CWP No. 7761 of 2010 9 petitioners, challenged the impugned award by contending, that the learned Tribunal failed to take notice of the fact that the respondent/workmen were governed by the service conditions as per contract/agreement, and that the services of the workmen were not governed by any statutory rules or regulations as applicable to the incumbents working on the sanctioned posts. Therefore, the learned Tribunal could not order the merger of 50% DA in their basic pay, as the workmen had no legal right to claim parity in pay scales and other benefits as admissible to other employees working on sanctioned posts in the schools/colleges. It was also the contention of the learned counsel of the petitioners, that private schools were not bound by the Pay Scales and other benefits being paid to the employees working in the autonomous bodies or under the Government. It was also the contention of the learned counsel for the petitioners, that the notifications of the State Government, was not applicable to the employees working on non-sanctioned posts and those working in unaided schools. The impugned award, therefore, deserved to be set aside. It was also the contention of the learned counsel that the appointment of these workmen was not as per the regular procedure prescribed. It was not disputed, that the workmen were working since more than 10 years with the petitioners. CWP No. 7761 of 2010 10 It was also the contention of the learned counsel for the petitioners that the workmen formed a separate class from the persons employed on sanctioned posts, therefore, could not claim equality. It was also contended by the learned counsel for the petitioners that workmen could not claim equal pay for equal work without making necessary averments and proved the facts which could entitle them to claim equal pay for equal work. On the contentions referred to above, learned counsel for the petitioners questioned the jurisdiction of the learned Tribunal to grant pay scales to private employees, at par with employees working on the Sanctioned/created posts by invoking the principles of equal pay for equal work. It was finally contended that the workmen working on non- sanctioned posts did not fulfill educational qualification and were not recruited, through the valid selection process, therefore, could not claim parity with the employees working on the sanctioned posts and that the learned Tribunal could not accept the reference on the principles of equal pay for equal work. It was also contended that no notice was required to be issued before withdrawing concession given to employees, to which they were not entitled to. In support of the contentions, referred to above, learned counsel for the petitioners placed reliance on the judgment of Hon'ble Supreme Court in the case of M.Raja Vs. CEERI Educational Society Pilani & Anr. 2007 (2) Service Law Reporter, 676, judgment of Hon'ble CWP No. 7761 of 2010 11 Supreme Court in the case of State of Orissa and Ors. Vs. Balaram Sahu & Ors. (2003) I SCC 250; judgment of Hon'ble Supreme Court in the case of Government of West Bengal Vs. Tarun K.Roy & Ors. (2004) 1 SCC 347; Orissa University of Agriculture & Anr. Vs. Manoj K.Roy (2003) 5 SCC 188, State of Haryana and Ors. Vs. Jasmer Singh & Ors. (1996) 11 SCC 77; State of Haryana & Ors. Vs. Chiranjit Singh & Ors. (2006) 9 SCC 321; State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (6) SCC 73; State of Haryana & Anr. Vs. Tilark Raj & Anr. (2003) 6 SCC 123. On consideration, I find no force in this writ petition. Taking the last point first that as per the schedule, wages, being the service condition, could only be changed after complying with the provisions of Section 9-A of the Act. The order passed by the petitioner, in withdrawing the benefit given to the respondents workmen could not be withdrawn in violation of the provisions of Section 9-A of the Act. The learned Tribunal, therefore, was right in setting aside the resolution of the petitioners as it amounted to change of service conditions, as the wages being paid to workmen were ordered to be reduced, by withdrawing the benefit earlier granted in pursuance to notification issued by Chandigarh Administration. There is also no force in the contention of the learned counsel for the petitioner, that principle of equal pay and equal work could not be applied to the persons working on non-sanctioned posts. There is no evidence on record, showing that the educational CWP No. 7761 of 2010 12 qualifications of the persons working on non-sanctioned posts and those on sanctioned posts were different. The petitioners also did not place on record any material, showing as to how the persons were appointed in violation of procedure. This ground was plea of desperation, the workmen have been working for the last more than 10 years with the petitioner in regular pay scale. The workmen, in fact, did not claim equal pay for equal work, as as admittedly the employees working on the sanctioned posts and non- sanctioned posts were placed in the same grade and were performing the same duties. It is only in pursuance to the notification stipulating that 50% of the DA be merged with the basic pay. The discriminatory treatment was meted out to the respondents/workmen, by asserting that the workmen were working on non- sanctioned posts. The contention of the management that service conditions of the employees working on non-sanctioned posts were governed by contract of service is also misconceived as all employees working in recognized schools are governed by the regulations which have statutory force of law. No agreement or terms of appointment of these workmen was placed on record. In view of the admitted facts and circumstances, the learned Tribunal, was right in coming to the conclusion, that the employees CWP No. 7761 of 2010 13 working on the sanctioned posts and non-sanctioned posts formed the one class, therefore, could not be treated differently merely for the reason, that source of salary being paid to these workmen was different i.e one where 95% grant was given by the Government and only 5% was paid by the employer, and in other cases cent per cent was contributed by the employer. The judgments relied by the learned counsel for the petitioner also do not advance the case of the petitioner. In the case of M.Raja Vs. CEERI Educational Society Pilani & Anr. (supra), the question for consideration was, that private school teacher/private employees had no right to claim revised pay scales recommended by the Pay Commission by equating them with the State employees. This is not the point in this case, as admittedly employees working on sanctioned posts and non-sanctioned posts are the employees appointed by the Management, and were placed in the same pay scale. The workmen, therefore, were not claiming parity, with the State Government employes or employees under a different employer. The judgment, therefore, has no relevance to the mater in dispute. In the case of State of Orissa and Ors. Vs. Balaram Sahu & Ors. (supra), Hon'ble Supreme Court was pleased to lay down that principles of equal pay for equal work, depends not only on the nature and volume of work, but also on qualitative, reliability, and responsibility as well. It was also held that it was for the claimants to substantiate a clear- cut base of equivalent and proof of hostile discrimination. CWP No. 7761 of 2010 14 Principles laid down in this judgment, stand fulfilled, as the witnesses appearing on behalf of the Management admitted that the employees working on sanctioned posts and non-sanctioned posts were appointed by the Management, and were performing the duties which were similar, and were also placed in the same pay scale, as per directions of the Chandigarh Administration. The respondent/workmen, had proved beyond doubt that the order passed was an act of hostile discrimination, between similarly situated employees, merely on the ground of source of payment of salary. In the case of Government of West Bengal Vs. Tarun K.Roy & Ors. (supra), Hon'ble Supreme Court had laid down that Article 14 read with Article 39 (D) is not automatically applicable merely on the basis of identicalness of work, irrespective of the educational qualification, source of recruitment and other relevant consideration. In the present case it is proved that qualification was same and both categories of employees were employed by the Management. In the case of Orissa University of Agriculture & Anr. Vs. Manoj K.Roy (supra), Hon'ble Supreme Court held, that for claiming equal pay for equal work, there should be necessary averments and material relating to qualification, nature of work and responsibility etc. This judgment cannot advance the case of the- petitioners, as the workmen were not being discriminated on account of qualification, nature of work or responsibility etc. but only on the basis of source of salary. This cannot be a ground for hostile discrimination. CWP No. 7761 of 2010 15 In the case of State of Haryana and Ors. Vs. Jasmer Singh & Ors. (supra), the Hon'ble Supreme Court, held that the principles of equal pay for equal work cannot be applied to persons holding different posts. This judgment again has no application, as there was no dispute that the work performed by the persons appointed on sanctioned posts and non- sanctioned posts is the same and furthermore, they were working in similar pay scale. In the case of State of Haryana & Ors. Vs. Chiranjit Singh & Ors. (2006) 9 SCC 321 (supra), Hon'ble Supreme Court was pleased to lay down relevant factors for determining permissible bases for classification i.e. merit, experience, incentivisation, mode of selection/recruitment, qualifications, quality, nature, reliability of work done, responsibility entailed, regardless of nomenclature/job description or volume of output. This judgment has no relevance. As already referred to above, there is no dispute on any of the points referred in the judgment except that the appointment was made by the Management nor by inviting application but there was no proof of this on record. It was admitted by the Management witnesses that he workmen was in the same grade as other employees. The benefit was granted by the Management to the workmen which was subsequently withdrawn, the reason being that no grant-in-aid was provided for the post held by the workmen. In the case of State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association (supra), the Hon'ble Supreme CWP No. 7761 of 2010 16 Court has laid down that the court can interfere in administrative decision, pertaining to pay fixation, and pay parity only when such a decision is pertinently irrational, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors. In this case it was proved beyond doubt before the learned Tribunal that withdrawal of benefit, was not only violative of statutory provisions of Industrial Disputes Act but was irrational, being based on source of salary being paid. In the case of State of Haryana & Anr. Vs. Tilak Raj & Anr. (supra), Hon'ble Supreme Court held, that daily wage workers hold no post and therefore, they cannot claim parity with the regular employees and would also be entitled to only minimum of the wages. Reliance on this judgment is again misconceived, firstly for the reason that workmen were not claiming parity with regularly appointed employees, but had challenged the arbitrary decision to withdraw the benefits granted to them, to which they were entitled to in view of the decision of merger 50% DA in the basic pay as they were working in the regular pay scales. For the reasons stated, finding no merit in these writ petitions, these are dismissed, but with no order as to costs. (Vinod K.Sharma) 27.08.2010 Judge rp