*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5562/1997
% Date of decision: 5th May, 2010
SMT. SWATANTAR MUNJAL & ORS. ..... Petitioners
Through: Mr. C.K. Sharma, Advocate
Versus
THE PRESIDING OFFICER, INDUSTRIAL
TRIBUNAL NO.III & ORS. ..... Respondents
Through: Mr. Gagan Mathur, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported NO
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The 29 petitioners, all employed as Key Punch Operators in Indian Agricultural Statistics Research Institute (IASRI) by this petition impugn the award dated 12th July, 1996 of the Industrial Tribunal. As many as six disputes were referred at the instance of the petitioners to the Industrial Tribunal. The counsel for the petitioners has however confined the arguments in this writ petition only to the award on reference no.3 to the Industrial Tribunal. The said reference no.3 was as under: W.P.(C)5562/1997 Page 1 of 9
"Whether the pay-scale of Key Punch Operator of Indian Agricultural Statistics Research Institute be brought at par with the Key Punch Operators of Indian Agricultural Research Institute, if so, from which date and what directions are necessary in this respect?"
2. The petitioners were appointed as Key Punch Operators in IASRI (earlier known as Institute of Agricultural Research Statistics (IARS) since the year 1958-59. The said IASRI is an institute under the administrative control of the Indian Council of Agricultural Research (ICAR). The said ICAR, besides IASRI has another institute namely Indian Agricultural Research Institute (IARI) also under its administrative control since the year 1965.
3. The petitioners as Key Punch Operators in IASRI were getting a pay-scale of Rs.110-200 plus Rs.15/- as Special Pay, which was revised to Rs.260-430 with effect from 1st January, 1973.
4. It is the case of the petitioners that in or about the year 1969, three posts of Key Punch Operators were created in IARI in the pay-scale of Rs.130-300 without any Special Pay, despite the fact that nature of duties to be performed by the Key Punch Operators in IARI were less onerous than the duties being performed by the petitioners working as Key Punch Operators in IASRI. It is further the case of the petitioners that prior to the creation of posts of Key Punch Operators in IARI, all the work relating to Key Punch Operators of IARI was also being done by the petitioners. W.P.(C)5562/1997 Page 2 of 9
5. The petitioners thus demanded the higher pay-scale as was being paid to Key Punch Operators in IARI on the principle of "equal pay for equal work". Upon the said representations not yielding any result, conciliation proceedings were initiated and ultimately the reference aforesaid came to be made to the Industrial Tribunal.
6. The petitioners admit in the writ petition itself that IARI as well as IASRI both denied before the Industrial Tribunal that the petitioners were performing the same duties as the Key Punch Operators in IARI or that the petitioners for the said reason were entitled to the same pay-scale as being paid to the Key Punch Operators employed in IARI. It is further the case of the petitioners in the writ petition itself that since the dispute remained pending before the Industrial Tribunal for long, the petitioners made an application before the Industrial Tribunal stating that they did not want to cross examine the witnesses of the Management and the case may be decided on the basis of the record.
7. The Industrial Tribunal has in the award dated 12 th July, 1996 with respect to the reference aforesaid held that the available evidence showed that the nature of work and duties being performed by Key Punch Operators in IASRI and IARI are not similar and identical and hence the question of petitioners being entitled to the same pay-scale did not arise. The Tribunal has held that the witnesses examined by the petitioners had W.P.(C)5562/1997 Page 3 of 9 stated that they had no knowledge of the duties being performed by Key Punch Operators of IARI. Another witness of the petitioners was found to have admitted that the duties of Key Punch Operators in the two Institutes are different. The Industrial Tribunal therefore held the claim of equal work to have not been made out and accordingly held that the question of paying similar pay-scale to the petitioners as being paid to Key Punch Operators in IARI did not arise.
8. Aggrieved from the award aforesaid, the present petition was filed. Rule was issued on 27th January, 1998. No counter affidavit has been filed by the respondents. On 6th January, 2010, when the matter was last listed, it was adjourned to have the counter affidavit and the rejoinder, stated to have been filed, placed on record. Today also the counsels stated that they had filed the counter affidavit and the rejoinder but the same is not on record. The matter being old, it is not deemed expedient to adjourn the same any further and the counsels have been heard.
9. The counsel for the petitioners has argued only on the basis of the principle of "equal pay for equal work". It is informed that many of the petitioners have died and their legal representatives have been substituted and most of them have already retired from service; they are now not claiming any promotion or post but only seek monetary consequence of parity in pay-scale. It is contended that the petitioners have received a lower pay-scale for the same if not more work for most of their service W.P.(C)5562/1997 Page 4 of 9 span and should now at least be compensated therefor. It is further contended that though the difference in pay in 1969 was Rs.5/- only but over the years it became substantial and as per the economic status of the petitioners, the monetary relief on the principle of equal pay for equal work will provide substantial relief to the petitioners.
10. The question whether the two categories of workmen / employees were / are performing equal duties / work or not is a question of fact. The petitioners rightly approached the Industrial Adjudicator in this regard before whom evidence of the petitioners performing equal work as the Key Punch Operators in IARI could be led. However, the said Industrial Adjudicator has not found the petitioners to have established / proved that they were performing equal work as that of Key Punch Operators in IARI. The Legislature has not deemed it appropriate to provide the remedy of appeal against the award of an Industrial Adjudicator. The said award is final subject to judicial review under Article 226 of the Constitution. However, the said judicial review has its constraints and cannot take the place of the appeal which has not been provided for. In judicial review under Article 226 of the Constitution of India, findings of the Industrial Adjudicator, especially on facts can be interfered with only if the same are based on no evidence or have been arrived at in disregard of relevant evidence or are so perverse which no reasonable person on the basis of material before him could have reached.
W.P.(C)5562/1997 Page 5 of 9
11. The petitioners have not made out any such case. The Industrial Adjudicator has held that the witnesses of the petitioners showed ignorance of the work being performed by Key Punch Operators in IARI. It was the case of the petitioners that they were performing the same / equal work as Key Punch Operators in IARI. The said fact was disputed by IARI & IASRI. It was thus for the petitioners to prove their said claim. However, as aforesaid rather than proving the said claim, the witnesses of the petitioners deposed that they had no knowledge / idea of the work performed by Key Punch Operators in IARI. The said reasoning of the Industrial Tribunal has not been challenged by the petitioners. It is not their case that the testimony of their witnesses has been misread or that their witnesses have not so deposed.
12. The argument of the counsel for the petitioners is that the Chief Administrative Officer of IASRI has in his two communications of July, 1978, copies whereof have been filed as Annexure-B and Annexure-C to the writ petition, has admitted that the Key Punch Operators in the two Institutes were performing the same work or rather that the work of the petitioners was more onerous than that of Key Punch Operators in IARI. I have enquired from the counsel for the petitioners whether the said documents form part of the record of the Industrial Tribunal. The counsel states that he has no knowledge. Without the said documents being part of the record of the Industrial Tribunal, this Court in a writ petition W.P.(C)5562/1997 Page 6 of 9 challenging the award cannot consider the same. No ground of the Industrial Tribunal having ignored any relevant evidence is made out. Moreover, Annexure B and Annexure-C are typed copies without any signatures and their authenticity is also not admitted; further the said documents contain the views of the Chief Administrative Officer communicated to the Under Secretary of ICAR and even if genuine do not constitute any admission on the part of the respondents. The Chief Administrative Officer was a colleague of the petitioners and merely because he had supported the petitioners cannot entitle the petitioners to have the factual finding arrived at by the Industrial Adjudicator set aside. The said Chief Administrative Officer is not the decision making authority of the respondents. There is nothing to show that the views expressed by the said Chief Administrative Officer were accepted by the decision making authority of the respondents. Rather from the admitted fact of the respondents having not accepted the representations of the petitioners, having contested the claim of the petitioners before the Industrial Adjudicator and the contest of the present writ petition, it is evident that the views expressed by the Chief Administrative Officer are not the views of the respondents.
13. The Supreme Court in State of Haryana Vs. Charanjit Singh (2006) 9 SCC 321 after consideration of a catena of past judgments held that the doctrine of "equal pay for equal work" is not an abstract doctrine but equal W.P.(C)5562/1997 Page 7 of 9 pay must be for equal work of equal value. It was held that the principle of "equal pay for equal work" has no mechanical application in every case of similar work; Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out; the very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. It was further held that where persons are selected by a Selection Committee on the basis of merit with due regard to seniority, a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. It was further held that nomenclature cannot be determinative and the quality of work produced may be different and even the nature of work assigned may be different. It was further held that the application of the principle of equal pay for equal work requires consideration of various dimensions of a given job before any direction can be issued by a Court and the Court must first see that there are necessary averments and proof thereof.
14. In the present case, the Industrial Adjudicator has on the basis of evidence before him held the petitioners to have not proved applicability of the principle of "equal pay for equal work". This Court in the exercise of writ jurisdiction cannot re-appraise evidence. There was at least some evidence before the Industrial Tribunal for the conclusion drawn by him. Whether that evidence was sufficient for drawing the said conclusion or not W.P.(C)5562/1997 Page 8 of 9 and / or whether that evidence has not been properly weighed against other evidence does not fall within the domain of judicial review under Article
226. If that exercise were to be permitted, no difference would remain between an appeal and judicial review and the very purpose of appeal being not provided against an award of the Industrial Adjudicator would be lost.
15. The counsel for the petitioners relies on Randhir Singh Vs. Union of India (1982) 1 SCC 618. The said judgment is of no assistance to the petitioners. There the Court had found the petitioner therein to be performing equal work.
16. The counsel for the respondent relies on V. Markendeya Vs. State of Andhra Pradesh (1989) 3 SCC 191 in which case a disparity in the two classes of employees was found. This judgment is also based on its own facts.
17. There is no merit in the present petition. The same is dismissed. No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) 5th May, 2010 gsr W.P.(C)5562/1997 Page 9 of 9