Punjab-Haryana High Court
Samayojit Karamchari Sangathan ... vs State Of Haryana And Others on 8 April, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:047225
CWP-9862-2010(O&M) -1- 2024:PHHC:047225
218
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-9862-2010(O&M)
Date of decision: 08.04.2024
Samayojit Karamchari Sangathan Haryana (Regd.)
...Petitioner
VERSUS
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Shivam Malik, Advocate, for the petitioner.
Mr. Narinder Singh Behgal, AAG, Haryana.
Mr. Amit Jaiswal, Advocate, for respondent No.3.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present writ petition has been filed under Article 226 of the
Constitution of India seeking issuance of a writ in the nature of certiorari for
quashing the impugned instructions dated 12.10.1998 (Annexure P-3) only to
the extent to which it denies the benefit of revision of pay scale w.e.f.
01.01.1996 to the surplus employees and also quashing the impugned order
dated 26.04.2010 (Annexure P-13).
2. Learned counsel appearing on behalf of the petitioner submitted
that it is a case where the petitioner which is a Union had earlier also filed a
petition before this Court and vide Annexure P-12 the same was disposed of
on the basis of the statement given by the State counsel that the case of the
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petitioner will be considered by the concerned authority in the light of the
judgment of the Hon'ble Supreme Court in Haryana State Minor Irrigation
Tubewell Corporation and others Vs. G.S. Uppal and others, 2008(7) SCC
375. He submitted that in pursuance of the aforesaid order dated 11.01.2010, the
impugned order (Annexure P-13) was passed on 26.04.2010 whereby it has
been so stated by the Managing Director of the respondent-Federation that the
case of the petitioner was considered in the light of the instructions issued by
the Government dated 12.10.1998 (Annexure P-3) and no benefit can be
granted to the petitioner in view of the aforesaid instructions which clearly
spell out that the employees who were declared as surplus will not be granted
benefit of revision of pay scale pursuant to 5th Pay Commission. He submitted
that apart from the above it was also so stated in the aforesaid impugned order
that the case titled HMITC Vs. G.S. Uppal and others (Supra) is not
applicable to the present case and the facts were totally different and in this
way, by way of the impugned order (Annexure P-13), the claim of the petitioner
was rejected.
3. Learned counsel submitted that the claim of the petitioner-Union
which has filed the present petition in a representative capacity on behalf of
the employees is that they were working as Salesmen in the respondent-
Federation and the respondent-Federation had taken a decision that since they
are surplus, they will be declared as surplus and appropriate procedure under
the Industrial Disputes Act will be followed. He submitted that after being
declared as surplus in the year 1989, they continued to work in the respondent-
Federation till the year 2001-2002 and they were paid their salaries on the post
where they were discharging their duties. They have been granted the benefit of
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the Pay Commission Report uptil 4th Pay Commission Report but when it came
to the implementation of 5th Pay Commission Report, they have been declined
the benefit on the ground that the Government of Haryana vide Annexure P-3
has issued a Notification dated 12.10.1998 whereby it has been so decided that
for those employees who have been declared as surplus, they will not be
granted the benefit of revision of pay scale. Para No.3 of the aforesaid
Annexure P-3 is reproduced as under:-
"3. The revised pay scales should be implemented w.e.f. 1.1.1996. In
case of the employees of State Enterprises/Institutions which incurred
losses for 3 years or more out of preceding 5 years i.e. from 1993-94 to
1997-98 the matter is being considered separately and for the
employees who have been declared surplus, the pay scales of such
employees should not be revised at present.
The arrears of pay from 1.1.96 to 31.12.97 for the employees of
State Enterprises/Institutions should be deposited in the Provident
Fund Accounts of the respective employee's and the arrers deposited
should not in any case be allowed to be withdrawn by them atleast for
one year from the date on which it was so deposited. The arrear w.e.f.
1.1.98 should be paid in cash."
4. Learned counsel submitted that there were other Salesmen also and
other employees working in the same Organization i.e. the respondent-
Federation to whom the benefit of revision of pay scale of 5th Pay
Commission Report has been granted but the only reason as to why those
Salesmen who were declared as surplus in the year 1989 were deprived of the
aforesaid benefit of revision of pay scale of 5th Pay Commission Report was
that they have been declared as surplus. He submitted that the aforesaid
amounts to wrongful discrimination and there is no intelligible criteria with
regard to the same and there is no nexus with the object sought to be achieved.
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He submitted that when two sets of employees are working in the same
Organization, then the mere fact that some of them have been declared surplus
but have been already directed to continue on their post and they have
discharged their duties on that post, then such kind of discrimination under the
head of one and same Organization is not permissible under the law. He
submitted that when the impugned order (Annexure P-13) was passed, then the
basic reason for rejecting the claim of the petitioner was that the respondent-
Federation had to implement the instructions (Annexure P-3) issued by the
Government of Haryana. He submitted that in this way the instructions
(Annexure P-3) are also challenged in the present petition on the ground of
discrimination and on the ground of equal pay for equal work.
5. Learned counsel also brought to the notice of this Court a
judgment of the Hon'ble Supreme Court in HMITC Vs. G.S. Uppal and others
(Supra) (Annexure P-14) wherein some of the employees who were working in
the HMITC were seeking parity with the similarly situated employees of
PWD Department in the State of Haryana and they were granted the same
benefit on the basis of doctrine of 'equal pay for equal work' and they were
also granted the benefit of revision of pay. He submitted that by way of the
aforesaid judgment it was also observed by the Hon'ble Supreme Court that
mere paucity of funds or financial difficulty cannot come in the way for the
grant of financial benefits when there is a discrimination among two sets of
employees. He submitted that the case of the present petitioner is at much
better footing than that of the aforesaid of HMITC Vs. G.S. Uppal and others
(Supra) in view of the fact that in that case the employees of a Corporation
were seeking parity with that of the employees of the Government, whereas in
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the present case the employees under the same Organization are seeking parity
with the employees who were discharging the same duties on the same post and
the only point of discrimination was that some of the employees were declared
as surplus and the Government decided not to grant the benefit of 5 th Pay
Commission to the employees who were declared as surplus notwithstanding
the fact that they were already working and they discharged the duties on the
post. He submitted that once an employee works and discharges his duties on a
particular post, then at least till the time he is declared as surplus he cannot be
discriminated. He also referred to another judgment of Hon'ble Supreme Court
in State of Punjab and others Versus Jagjit Singh and others, (2017) 1 SCC
148 which is an authoritative judgment which pertains to the law relating to
the equal pay for equal work in this regard. He submitted that in this way those
salesmen who were declared as surplus but continued to work on their
respective posts till the time they were retrenched, they were entitled for the
grant of the benefit of the revision of pay scale in pursuance of the 5 th Pay
Commission Report and necessary directions may be issued in this regard.
6. On the other hand, Mr. Narinder Singh Behgal, learned AAG,
Haryana and Mr. Amit Jaiswal, learned counsel appearing on behalf of
respondent No.3 have submitted that revision of pay scale in pursuance of 5th
Pay Commission Report was based upon a differential criteria and it
amounts to a reasonable classification under the law. They submitted that those
salesmen who were not required, they although continued to discharge their
duties as salesmen but that was only a kind of benefit conferred upon them as to
earn their livelihood and the reason as to why they were declared as surplus was
that most of the outlets of the respondent-Federation were closed but certainly
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they continued in service at least till the year 2001-2002 and this was the
reason as to why in the impugned instructions issued by the Government of
Haryana vide Annexure P-3 it was so decided that those who were declared
surplus will not be granted the benefit. They submitted that the same formula
also applies to all the other Organization within the State of Haryana because it
was a common instruction issued by the State of Haryana.
7. I have heard the learned counsels for the parties.
8. It is a case where the petitioner is a Union and has filed the present
petition in representative capacity. Earlier also they had filed a petition before
this Court and a Co-ordinate Bench of this Court has disposed of the petition
vide Annexure P-12. The aforesaid order is reproduced as under:-
"This judgment will dispose of CWP No.16790 of 2000 and CWP
No.15961 of 2000 as similar question of law is involved in both the writ
petitions.
The only prayer made in the instant petition preferred by the
Haryana CONFED Employees Welfare Union (Regd.) is for the
issuance of a writ in the nature of mandamus to grant revised pay scale
to all salesmen in the same manner as other similarly placed salesmen
in the service of the Haryana State Federation of Consumers Co-
operative Wholesale Stores Limited.
Learned counsel for the petitioner submits that during the
pendency of this writ petition a similar matter CA No.9244 of 2003
titled as Haryana State Minor Irrigation Tubewell Corporation and
others Versus G.S. Uppal and others came up before the Apex Court,
which was decided on 16.04.2008. According to him, members of the
petitioner union are entitled to relief in the same terms.
Learned counsel for the respondents federation submits that a
communication was sent to the State Government vide letter dated
18.01.2000 (Annexure P-8) followed by similar letters dated 01.03.2000
and 07.08.2000 (Annexure P-9 and P-10 respectively) but no response
was received from the State Government.
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Mr. Kulvir Narwal, Addl. A.G.Haryana, appearing on behalf of
the State of Haryana submits that the case of the petitioners shall be
considered by the concerned authority in the light of the judgment
referred to by the counsel for the petitioner and a speaking order
thereon shall be passed within three months.
In view of statement made by the learned State Counsel, no
further ordered are called for at this stage. Disposed of.
However, it is made clear that in case still aggrieved, it will be
open to the petitioner to avail the remedy available to it under the law.
9. A perusal of the aforesaid order would show that on the basis of
the statement made by the learned State counsel, the petition was disposed of
and a stand was taken by the State that the case of the petitioner will be
considered by the concerned authority. However, when the impugned order
(Annexure P-13) was passed in pursuance of the aforesaid order passed by this
Court two reasons were given by the Managing Director of the respondent-
Federation for rejection of the claim. The first reason which was given was that
since there are instructions by the Government which have not been challenged
and they have the force of law, the petitioners were not entitled for the benefit
of the 5th Pay Commission since they were declared as surplus and the second
reason which was given by the Managing Director of the respondent-Federation
was that the ratio of the case of HMITC Vs. G.S. Uppal and others (Supra) is
not applicable to the present case because the aforesaid judgment was
different on facts.
10. So far as the second reason given by the Managing Director is
concerned, this Court is of the view that as far as the facts of the aforesaid
judgment of HMITC Vs. G.S. Uppal and others (Supra) are concerned, they
were different because in that case the writ petition was filed before this Court
by some of the employees of the HMITC seeking parity with that of the
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similarly situated employees of the Government in the department of PWD.
The learned Single Judge had allowed the petition which was assailed in LPA
which was also dismissed. Thereafter, an SLP was filed by the HMITC which
was also dismissed and the aforesaid judgment is Annexure P-14. A perusal of
the aforesaid judgment would show that a proposition of law has been discussed
in the aforesaid judgment. It was observed that so long as the value judgment is
made bona fide, reasonably on an intelligible criteria which has a rational
nexus with the object of differentiation, such differentiation will not amount to
discrimination. The judgment of administrative authorities concerning the
responsibilities which are attached to the post, and the degree of reliability
expected of an incumbent would be a value judgment of the authorities
concerned which, if arrived at bona fide, reasonably and rationally, is not open
to interference by the Court. It was further observed that there was no dispute
nor can there be any principle as settled in the aforecited decisions that
fixation of pay and determination of parity in duties is the function of the
Executive and the scope of judicial review of administrative decisions in this
regard is very limited. However, it is also equally well-settled that the Courts
should interfere with the administrative decisions pertaining to pay fixation
and pay parity when they find such a decision to be unreasonable, unjust and
prejudicial to a section of employees and taken in ignorance of material and
relevant factors. It was further observed that it is well-settled that the State can
make reasonable classification if it has a nexus with the object sought to be
achieved. The Hon'ble Supreme Court also discussed the issue with regard to
the paucity of funds and financial difficulties of an Organization. It was
observed that the plea of the Corporation that it was running into losses and it
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cannot meet the financial burden on account of revision of pay scale has been
rejected by the High Court and rightly so. Whatever may be the factual
position, there appears to be no basis for the action of the appellants in
denying the claim of revision of pay scales to the respondents. If the
Government feels that the Corporation is running into losses, measures of
economy, avoidance of frequent writing off of dues, reduction of posts or
repatriating deputationists may provide the possible solution to the problem.
However, so long as the posts do exist and are manned, there appears to be no
justification for granting the respondents a pay scale lower than that of the
sanctioned for those employees who are brought on deputation. In this way, the
Hon'ble Supreme Court came to the conclusion that when the employees are
manning the posts and they are continuing with the posts, then mere paucity
of funds and financial difficulties would not come in the way.
11. In this way, the reason given by the Managing Director of the
respondent-Federation that the aforesaid judgment was on different facts is not
sustainable in view of the fact that proposition of law of the aforesaid judgment
would certainly apply to the present case on the ground of grant of benefit of
pay scale. In the aforesaid judgment of HMITC Vs. G.S. Uppal and others
(Supra), the petitioners were employees of a public sector undertaking and
they were claiming parity with that of the employees of the Government which
was allowed, whereas in the present case the employees who were declared as
surplus but are claiming parity with that of the similar employees on the same
posts who were not declared as surplus and therefore, rather the present case
appears to be on a better footing than that of the aforesaid judgment of HMITC
Vs. G.S. Uppal and others (Supra).
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12 The law with regard to equal pay for equal work is now no longer
res integra. The Hon'ble Supreme Court has also dealt with this issue in a
judgment of State of Punjab and others Versus Jagjit Singh and
others(Supra). The relevant portion of the aforesaid judgment is reproduced as
under:-
"55. In our considered view, it is fallacious to determine artificial
parameters to deny fruits of labour. An employee engaged for the
same work, cannot be paid less than another, who performs the same
duties and responsibilities. Certainly not, in a welfare state. Such an
action besides being demeaning, strikes at the very foundation of
human dignity. Any one, who is compelled to work at a lesser wage,
does not do so voluntarily. He does so, to provide food and shelter to
his family, at the cost of his self respect and dignity, at the cost of his
self worth, and at the cost of his integrity. For he knows, that his
dependents would suffer immensely, if he does not accept the lesser
wage. Any act, of paying less wages, as compared to others similarly
situate, constitutes an act of exploitative enslavement, emerging out of
a domineering position. Undoubtedly, the action is oppressive,
suppressive and coercive, as it compels involuntary subjugation.
56. We would also like to extract herein Article 7, of the International
Covenant on Economic, Social and Cultural Rights, 1966. The same is
reproduced below:-
"Article 7
The States Parties to the present Covenant recognise the right of
everyone to the enjoyment of just and favourable conditions of work
which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women being guaranteed
conditions of work not inferior to those enjoyed by men, with equal
pay for equal work;
(ii) A decent living for themselves and their families in accordance
with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment
to an appropriate higher level, subject to no considerations other than
those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and
periodic holidays with pay, as well as remuneration for public
holidays."
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India is a signatory to the above covenant, having ratified the same on
10.4.1979. There is no escape from the above obligation, in view of
different provisions of the Constitution referred to above, and in view of
the law declared by this Court under Article 141 of the Constitution of
India, the principle of 'equal pay for equal work' constitutes a clear and
unambiguous right and is vested in every employee - whether engaged
on regular or temporary basis.
57. Having traversed the legal parameters with reference to the
application of the principle of 'equal pay for equal work', in relation to
temporary employees (daily-wage employees, ad-hoc appointees,
employees appointed on casual basis, contractual employees and the
like), the sole factor that requires our determination is, whether the
concerned employees (before this Court), were rendering similar duties
and responsibilities, as were being discharged by regular employees,
holding the same/corresponding posts. This exercise would require the
application of the parameters of the principle of 'equal pay for equal
work' summarized by us in paragraph 42 above. However, insofar as the
instant aspect of the matter is concerned, it is not difficult for us to
record the factual position. We say so, because it was fairly
acknowledged by the learned counsel representing the State of Punjab,
that all the temporary employees in the present bunch of appeals, were
appointed against posts which were also available in the regular
cadre/establishment. It was also accepted, that during the course of
their employment, the concerned temporary employees were being
randomly deputed to discharge duties and responsibilities, which at
some point in time, were assigned to regular employees. Likewise,
regular employees holding substantive posts, were also posted to
discharge the same work, which was assigned to temporary employees,
from time to time. There is, therefore, no room for any doubt, that the
duties and responsibilities discharged by the temporary employees in the
present set of appeals, were the same as were being discharged by
regular employees. It is not the case of the appellants, that the
respondent-employees did not possess the qualifications prescribed for
appointment on regular basis. Furthermore, it is not the case of the
State, that any of the temporary employees would not be entitled to pay
parity, on any of the principles summarized by us in paragraph 42
hereinabove. There can be no doubt, that the principle of 'equal pay for
equal work' would be applicable to all the concerned temporary
employees, so as to vest in them the right to claim wages, at par with the
minimum of the pay-scale of regularly engaged Government employees,
holding the same post.
58. In view of the position expressed by us in the foregoing paragraph,
we have no hesitation in holding, that all the concerned temporary
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employees, in the present bunch of cases, would be entitled to draw
wages at the minimum of the pay-scale (- at the lowest grade, in the
regular pay- scale), extended to regular employees, holding the same
post".
13. The argument which has been raised by the learned counsel for the
respondent-Federation that it was on humanitarian grounds and granting of
benefit to the employees who were declared as surplus to continue on the same
post till the time when actually they were retrenched and therefore, they
cannot claim the benefit of 5th Pay Commission is concerned, the same prima
facie appears to be misconceived.
14. The challenge in the present petition is also to the instructions
(Annexure P-3) issued by the Government which is not only applicable to the
present respondent-Federation but it is applicable to all the public sector
undertakings/instrumentalities of the State and therefore, it will have a huge
financial impact upon the State exchequer. However, at the same time the
settled law and the rights of employees also cannot be sacrificed only because
of the aforesaid reason of paucity of funds and impact on the State exchequer. A
balance has to be maintained in this regard.
15. During the course of arguments, the learned counsel for the
respondents-Federation has referred to a judgment of a Co-ordinate Bench of
this Court in Nafe Singh Vs. Haryana State Federation of Consumers Coop.
Wholesale Stores Ltd. 2016(2) SCT 35 to contend that in a similar situation
relief was not granted to some of the employees on the ground that they were
declared as surplus. The aforesaid judgment also pertains to the same
Organization which is the present respondent. However, a perusal of the
aforesaid judgment would show that although relief was not granted but in
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that case the claim of the petitioner was that the junior has been granted the
benefit of pay scale but the petitioner of that case was not granted the benefit
because he was declared as surplus and a Co-ordinate Bench of this Court
observed that no case for grant of revision of pay scale as per the
recommendation of the 5th Pay Commission is made out. In this way, the
aforesaid petition was dismissed because of the fact that the benefit was not
granted to the petitioner of that case because of the existence of the aforesaid
instructions dated 12.10.1998. However, it appears that the aforesaid
instructions were never under challenge in the aforesaid judgment. Therefore,
it cannot be said that there was any declaration of law made in the aforesaid
judgment but it was a judgment in personam.
16. After hearing the learned counsel for the parties and giving
thoughtful consideration to the subject matter of the present case, this Court is
of the considered view that the instructions dated 12.10.1998 (Annexure P-3)
issued by the Government of Haryana need to be re-considered by the State of
Haryana especially in view of the fact that it has an effect not only upon
present respondents but also on the many other public sector undertakings
/instrumentalities of the State.
17. In view of the above, it is directed that the Chief Secretary of the
State of Haryana shall consider the aforesaid issue in its totality and afresh by
associating all the affected stake-holders/public sector undertakings
/instrumentalities of the State and shall take a conscious decision on the basis
of the well established principles of law and also in the light of the judgment of
the Hon'ble Supreme Court in HMITC Vs. G.S. Uppal and others (Supra),
State of Punjab and others Versus Jagjit Singh and others (Supra), and
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other such judgments pertaining to equal pay for equal work. The Chief
Secretary may also take assistance from the concerned Legal Remembrancer or
from the learned Advocate General, Haryana especially on the proposition of
law and thereafter to pass a well-reasoned speaking order within a period of six
months from today.
18. In view of the above, the present writ petition is disposed of .
19. Copy of this order be sent to the Chief Secretary, Haryana for
compliance.
(JASGURPREET SINGH PURI)
08.04.2024 JUDGE
rakesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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