Delhi Jal Board Thru It???S Chief ... vs Dr. Anil Kumar
2011 Latest Caselaw 2796 Del

*     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

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.

4 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.

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:-

"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

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

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."

13 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

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.

No 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