Smt. Swatantar Munjal & Ors. vs The Presiding Officer, ...
2010 Latest Caselaw 2412 Del

           *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:

"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.

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

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

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.

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

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

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

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