* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 25.05.2011
+ R.S.A.No. 37/2009
DELHI JAL BOARD thru It‟s Chief Executive Officer
...........Appellant
Through: Mr.Karunesh Tandon,
Advocate.
Versus
DR. ANIL KUMAR . ..........Respondent
Through: Mr.Shalabh Gupta, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated 22.09.2008 which has modified the finding of the trial Judge dated 03.07.2006. Vide judgment and decree dated 03.07.2006, the suit of the plaintiff had been dismissed on the applicability of Section 41 (h) of the Specific Relief Act, 1963; the court was of the view that the suit (which was a suit seeking his salary dues on the doctrine of equal pay for equal work) had been dismissed; the trial Judge had however returned a finding that the doctrine of equal pay for equal work is attracted; however in view of the provisions RSA No.37/2009 Page 1 of 10 of Section 41 (h) of the Specific Relief Act, suit is not maintainable in the present form. The impugned judgment had modified this finding. It was held that the suit is maintainable; further the plaintiff is entitled to his dues of `1,87,000/-.
2 The plaintiff was appointed as a medical officer under the Jal Board. His initial appointment was for a period of three month vide appointment letter dated 16.09.1998 @ `8,000/- per month.
His services were continuously extended from time to time; he was also put on the duty of pulse polio; he was discharging his duties efficiently and honestly; appreciation letters had also been sent to him; the plaintiff had prayed for the applicability of doctrine of equal pay for equal work which as per the averments in the plaint was a constitutional mandate; suit was accordingly filed on the ground that the persons of the same cadre and doing the same job as him were getting salaries much higher than him;
the plaintiff should also be accorded the same treatment. Present suit seeking the difference of emoluments qua him and other regular employees amounting to `1,87,000/- had been prayed for.
3 In the course of the present suit, the plaintiff had given up his prayer from seeking regularization; he had also superannuated.
RSA No.37/2009 Page 2 of 104 In the written statement, the claim of the plaintiff was not entitled to the relief claimed by him. It was stated that doctrine of equal pay for equal work was not attracted.
5 On the pleadings of the parties, the following five issues were framed:-
1. Whether notice under Section 478 of the DMC Act was served upon the defendants? OPP
2. Whether the suit of the plaintiff is not maintainable u//s 41 (1)(h) of Specific Relief Act? OPP
3. Whether the plaintiff is entitled to the difference of salary as claimed? OPP
4. Whether the plaintiff is entitled to the declaration as to the regular Medical Officer of the Jal Board w.e.f. September 1998 as claimed? OPP
5. Relief.
6 On the basis of oral and documentary evidence as aforenoted the concept of equal pay for equal work was recognized qua the plaintiff but the suit had been dismissed under Section 41 (h) of the Specific Relief Act; the court was of the view that there was an alternate remedy available; present suit was not maintainable.
RSA No.37/2009 Page 3 of 10
7 The impugned judgment had modified this finding; suit of the plaintiff was decreed; bar of Section 41 (h) of the Specific Relief Act had not been adhered to.
8 This is a second appeal. It is yet at the stage of admission.
Substantial questions of law have been embodied on page 3 of the body of the appeal.
9 Learned counsel for the appellant has vehemently argued that in view of judgment reported in State of Haryana & others Vs. Charanjit Singh & others (2006) 9 SCC 321, the plaintiff in this case being a contractual employee could not have been granted this relief. Various paragraphs of the said judgment have been highlighted.
10 Arguments have been rebutted. It is pointed that the finding in the impugned judgment calls for no interference.
11 Since the whole case was bordered on the applicability of law as laid down by the Apex court in State of Haryana (Supra) it would be relevant to extract the relevant portions thereon. While dealing with a similar contention and the applicability of this doctrine, the observations of the Apex Court noted hereinbelow are relevant; they read as under:-
RSA No.37/2009 Page 4 of 10"Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture & Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. 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. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a RSA No.37/2009 Page 5 of 10 writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regards. In any event the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective Writ Petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors. "
12 Oral and documentary evidence had been led in the court below. The trial Judge had noted the testimony of PW-1. This finding was arrived at while dealing with issue No. 3.
" This is an issue as to whether the plaintiff is entitled to the difference of salary as claimed, and burden of proof of this issue is again placed on the plaintiff and it appears that the plaintiff has succeeded in discharging this burden in his favour as he has clearly and categorically pleaded in his suit that he was discharging and carrying out all the responsibilities of the same quality and quantum being discharged by the regular doctors employed under the Jal Vibhag (Water Board) and he also mentioned specific instances of his attending "pulse polio" duty on 24.10.1999 and further that he used to write ACR of the Pharmacist working under him and has so deposed in para no. 2 of his evidenciary affidavit. There is not much in his cross-examination to shake out his above testimony. On the other hand, it is noticeable that in his cross- examination, DW Sh. H.B. Tondon has evasively replied that it might be that the qualifications of the plaintiff was equal to that of the regular employees of the DJB and he has accepted it as correct that plaintiff was attending the same duties in the dispensary as like other doctors of DJB, immediately, he has volunteered to say, " our department gives extra duties to regular employees but those such extra duties were not given to the plaintiff" however, the DW RSA No.37/2009 Page 6 of 10 has not taken pain to volunteer what were such those extra duties and therefore, this part of his testimony appears to be unreliable and it is even apparent by the fact that in the cross-examination, this DW has further accepted that the plaintiff was deputed on duty of administering "pulse Polio Drops" and thereafter, this DW has again resorted to feign ignorance to say that he had no knowledge whether plaintiff used to record the ACR of the junior doctors or he might be conducting the medical examination of newly recruits of DJB and the DW had no knowledge whether plaintiff used to verify the medical bills received in the office for reimbursement or plaintiff was one of the member of purchasing committee. DW has further accepted that plaintiff used to attend meetings of the doctors and has immediately volunteered that any doctor can attend the meeting of the doctors which used to be held at headquarters, the DW, however, has denied a suggestion as wrong that plaintiff was also entitled to equal pay/salary at par with the regular employees and in this scenario of the cross-examination, I find that the DW has tried to support the stand taken by the defendants faithfully and it is obviously for the reason that he was an employee of the defendants and therefore, his denial of suggestion as wrong that the plaintiff was entitled for equal pay/salary is not credible and it appears that the plaintiff has successfully pleaded and proved on record that he was discharging duties as they were being discharged by the regular employee of the DJB and in the light of decision reported as AIR 2006 SC Page 161, which according to me, correctly spells the position of law applicable on the subject matter and it is even the latest of the decision applicable in the subject matter and it is even the latest of the decision applicable in the subject matter and as such, this issue is decided in favour of the plaintiff and against the defendant and it is held that the plaintiff is entitled to the difference of salary to be calculated and arrived at after taking into consideration the difference of the salary paid to the plaintiff for his working on contract basis with DJB and the salary payable to the regular employees from the date of his suit and till date he worked with DJB as is the mandate of the decision reported as AIR 2006 SC page 161, the case of State of Haryana Versus Charanjit Singh and as such, this issue is decided in these terms accordingly."
RSA No.37/2009 Page 7 of 1013 This fact finding was endorsed in appeal by the first appellate court. This finding on issues No. 3 was returned hereinbelow as under:-
"Equal pay for equal work is a constitutional mandate and Ad hoc employees performing the same duties as the regularized employees cannot be denied equal financial benefits. Employers making ad-hoc appointments and resorting to fictional breaks; subject the employees to arbitrary „hiring and firing policy‟ and deprive them of the various benefits which include Financial, Vacation and Medical benefits etc. which are available to the other government servants and therefore this pernicious system of appointment is exploitative and violative of Articles 14 & 16 of the Constitution of India. Under these circumstances the appellant who was an Ad-hoc employee under the Delhi Jal Board would be entitled to all the benefits on the ground of constitutional directive of equal pay for equal work."
14 There is no perversity in this finding. Relying upon the proposition of law laid down in the case of State of Haryana wherein it was clearly held that for the applicability of this doctrine, a writ petition is not the proper forum; it can only be decided by an expert body where such a dispute is raised; the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal; the Court must first see that there are necessary averments and proof; the Court must be satisfied on the material placed before it that there was equal work of equal quality, all other relevant factors are fulfilled. Both the fact finding courts have returned a positive fact finding in RSA No.37/2009 Page 8 of 10 favour of the plaintiff qua this proposition. Testimony of PW-1 had been adverted to. On no count, the plaintiff was lacking. The Apex Court had also noted that person who had not gone through the process of recruitment, may in itself in certain cases make a difference. Admittedly in this case the plaintiff has not come through the regular recruitment process; he had been employed on an ad-hoc basis which employment was being renewed time and again; this was a factor which has been considered by the court below to arrive at a finding that on all other counts the work of the plaintiff entitled him for the application of this principle of equal pay for equal work; all dimensions and aspects of the case of the plaintiff vis-à-vis other regular employees had been considered by both the fact finding courts; it was not a case that this doctrine had been applied mechanically; it was after the evidence led by the plaintiff had established its case. The defendant has not led any evidence. The terms of the contract of employment of the plaintiff had also been brought on record.
Finding in the impugned judgment calls for no interference.
There is no perversity in the said findings. Substantial questions of law are embodied at page 3 of the body of the appeal.
RSA No.37/2009 Page 9 of 10No such substantial question of law has arisen. There is no merit in this appeal. It is dismissed in limine.
INDERMEET KAUR, J.
MAY 25, 2011 a RSA No.37/2009 Page 10 of 10