The Cooperative Store Ltd. (Super ... vs Bimla Devi And Ors.
2005 Latest Caselaw 866 Del

JUDGMENT

Mukundakam Sharma, J.

CM 14102/2004

For the reasons stated in the application, delay of eleven days in filing the appeal is condoned. The application stands disposed of.

LPA 1052/2004

1. This appeal is directed against judgment and order dated 13th August 2004, passed by the learned single Judge in WP(C) No. 2794/89, whereby the order passed by the appellate authority on 6th March 1989 was set aside and order dated 13th May, 1988, passed by the authority under the Equal Remuneration Act, 1976 was restored.

2. In order to properly appreciate the contentions raised before us, some reference to the facts leading to the filing of the present proceeding is required to be mentioned. The respondents herein are the ladies who are employed with the Cooperative Store Limited/Super Bazar. According to them, they were working as packers from some time in 1978 and that subsequent thereto, by an order dated 8th October 1984, they were appointed to a regular pay scale with effect from 1st September 1984 as Packing Cleaners. The grievance of the said respondents are that their male counterparts who were doing same or similar work were appointed in the pay scale of Rs. 185-305-440 whereas they are being kept in the pay scale of Rs. 150-240-360. They allege that they are being treated unfairly vis-a-vis their male counterparts insofar as their pay scales are concerned even though they are doing the same kind of work. This, they further allege, violates the provisions of the Equal remuneration Act, 1976.

3. Accordingly, a claim was filed by the respondents under Section 7(1)(b) of the Act. The said provision provides that the appropriate government shall appoint such officers not below the rank of a Labour Officer for the purpose of hearing and deciding claims arising out of non-payment of wages at equal rates to men and women workers. Since the plea taken was non-payment of wages at equal rates to men and women workers of Cooperative Stores Limited, the said complaint filed by the respondents were laced before the authority under the Act, who heard the parties and perused the evidence adduced by them. The said authority, on the basis of the pleadings of the parties, framed the following two issues for consideration:

(i) "whether the issue involved in the plaint proceedings are sub judice before the Hon'ble Supreme Court in CWP No. 9161 of 1982 and if so, to what effect ? and

(ii) whether the applicants are entitled to relief sought for and if so, what directions are necessary in this regard ?".

The authority held the first issue in the negative and, therefore, admittedly the said issue is set at rest by the said findings and does not arise for our consideration in this proceeding.

4. Therefore only the second issue falls for our consideration, in respect of which the authority recorded evidence of the parties and has given his findings and conclusions holding that the said claim of the respondents is justifiable. The authority noted that prior to October 1984, the remuneration that was being paid to men and women workers was the same because they were doing the same or similar work and that the difference in the pay scale of men and women workers was brought in only after their regularisation in October 1984. The authority under the Act recorded a finding that the nature of the work performed by men and women was the same and similar and it was held that respondent No. 2 has failed to produce any evidence to show that nature of the work performed by men and women workers was different. While recording the aforesaid findings, the case of Smt. Sujjan was highlighted by the primary authority. Though a lady, but she was included in the list of men workers and was getting higher remuneration. When it was shown that she was a lady it was held that she was wrongly designated as a male worker and thereafter her remuneration was reduced.

5. The explanation that was sought to be brought in by the Super Bazar was that the respondents herein were Packing Cleaners whereas the male workers are appointed as Packers. The authority, on appreciation of the evidence, recorded a finding that the nature of work performed by the female and male workers, whether they are working as Packers or as Packing Cleaners, is the same and similar which they have been doing from 1978 onwards although upon regularisation of the services, the female workers were put in a lower scale than the male workers. In terms of the aforesaid findings the claim was allowed.

6. Being aggrieved by the said order the appellant herein filed an appeal which was heard by the appellate authority under the Act, designated as Joint Labour Commissioner. The learned appellate authority however allowed the appeal by order dated 6th March 1989 holding that the respondents are Packing Cleaners and not Packers and since there is a difference in their designation there could be a difference in the pay scale also. The aforesaid decision of the appellate authority was challenged by the respondents before this Court by filing a writ petition which was registered as WP(C) 2794/1989. The learned single Judge considered the issue raised before him as to whether or not there is non-payment of wages at equal rates to men and women workers and on appreciation of the entire facets of the issue, particularly in the light of the provisions of the Act and various conventions governing the field as also a decision of the Supreme Court, held that the nature of the work performed by the respondents was similar to the work performed by their male counterparts and it is only the designation which was the determining factor for fixing different pay scales, which, according to the learned single Judge, was not permissible both under the constitutional scheme as well as under the provisions of the Act.

7. We have heard learned counsel appearing for the parties on this appeal. Our attention was also drawn to the provisions of the Act, the conventions and the decision referred to in the impugned judgment. The law on the subject is settled by the decision of the Supreme Court in Mackinnon Mackenzie and Co. Ltd v. Audrey D'Costa and Anr. (1987) 2 SCC 469. In that case lady stenographers were given a lesser scale than male stenographers which was found by the Supreme Court as violative of the provisions of the Act. In the present case also a scrutiny of the evidence on record would prove and establish that the designation of the female workers and male workers are different as the female counterparts are regularised with the designation "Packing Cleaners", whereas, the male workers are designated as "Packers". A different designation would not empower the appellant herein to pay wages at different rates to men and women workers when it is established that they are doing almost the same and similar kind of work. The learned single Judge, on consideration of the evidence on record and also on appreciation of the findings recorded both by the authority under the Act and the appellate authority, found that the nature of work which was being performed by the respondents was similar to the work being performed by their male counterparts and, therefore, designation cannot be held to be the determining factor for fixing different pay scales if the nature of the work is the same, which is more important than the designation. We find justification in the aforesaid findings recorded by the learned single Judge. Designation would be immaterial and irrelevant, if it is proved that both the categories are doing the same or similar work. Therefore, as to whether or not the respondents were Packing Cleaners or Packers, they would still be entitled to the same pay scale as that of their male counterparts, when it is established from the records and evidence that they are doing similar nature of work. We find no error or infirmity in the order of the learned single Judge. The said order also cannot be said to be unreasonable and, therefore, we find no reason to set aside the same. We accordingly uphold the order of the learned single Judge and dismiss this appeal, leaving the parties to bear their own costs.

CM 14100/2004

In view of the fact that the main appeal has been dismissed, this application seeking for interim relief is rendered infructuous and is dismissed accordingly.