Haryana State Electricity Board vs Onkar Singh

R.L. Anand, J.—The Haryana State Electricity Board and its Chief Engineer have filed the present appeal and it has been directed against the judgment and decree dated 12.1.1999 passed by the Court of Additional District Judge, Faridabad, who reversed the judgment and decree dated 13.6.1999 passed by the Court of Additional Civil Judge (Sr. Division) who dismissed the suit of the plaintiff-respondent for declaration.

The brief facts of the case are that Onkar Singh and 24 others whose names have been mentioned in the head note of the plaim filed a suit for declaration to the effect that they were entitled to the pay scale of Rs. 1400-2600 from the date of their five juniors who have been placed in the said pay scale. It was also pleaded by the plaintiffs that directions be given to the defendants to grant the arrears of difference of pay.

The case set up by the plaintiffs in the trial Court was that they were the employees of the defendants and were working in the capacity of technician Grade-I and they have been promoted from Technicians Grade II. Five persons namely, Suresh, Tejpal Singh, Subash Chander, Om Parkash and Jagdish Chander were much junior to the plaintiffs. The plaintiffs have come to know that the said five persons have been allowed the pay scale of Rs. 1400-2660 w.e.f. 21.5.1992. In these circumstances, the plaintiffs are also entitled to the same very pay scales which were granted to their juniors from different dates. The suit was contested by the defendants on the various pleas such as that the suit is not maintainable in the present form and that the civil court had no jurisdiction to try the suit in as much as the dispute involved fell within the gamut of Industrial Disputes Act, 1947. On merits, it was the stand of the defendants that some posts of senior technicians and technicians were existing in the Panipat Thermal Power Station in the pay scale of Rs. 700-1250 and 600-1100 respectively prior to 1.1.1986. These pay scales were revised to 1640-2900 and 1600-2660 w.e.f. 1.1.1986. However keeping in view the workload in the thermal power station at Faridabad, some posts of senior technicians and technicians were created in the lower scale of Rs. 450-760 and 400-700 in the year 1980. This grade was revised to Rs. 2000-2040 and 900-1500 w.e.f. 1.1.1986. After revision of pay scale w.e.f. 1.1.1986 some of the employees approached the civil Court for issuance of directions to the defendant-Board to give them pay scales at par with the pay scales of their counterparts working in the Thermal Plant, Panipat. This prayer was accepted by the Civil Court. The Board filed an appeal in the District Court which was dismissed. The Board has further gone in R.S.A. No. 800 of 1992 which is still pending. The appeal has been admitted. The payment of arrears has been stayed. In the light of the directions of the High Court, senior technicians and technicians were allowed the pay scale of Rs. 1600-2660 and 1400-2600 respectively w.e.f. 24.10.1991. The plaintiffs were not parties in the said litigation and hence they could not be allowed this pay scale.

From the pleadings of the parties, the trial Court framed the following issues :

Whether the plaintiffs are entitled to the scale of Rs. 1400-2600 as given to this counter parts as alleged ? OPP

Whether the circular No. 384/Finance dated 19.8.1987 of the defendant is also applicable to the plaintiffs regarding grades as alleged, if so, to what effect? OPP

Whether the suit is not maintainable u/s 82 of the Electricity Supply Act, 1948 ? OPD.

Whether the plaintiffs have no cause of action as alleged ? OPD

Whether the plaintiffs have not come to the Court with clean hands, as alleged ? OPP.

Relief.

The parties led evidence in support of their case and vide impugned judgment dated 13.6.1996 the learned trial Court dismissed the suit of the plaintiffs. Aggrieved by the judgment and decree, the first appeal before the Court of Additional District Judge, Faridabad, who allowed the appeal for the reasons given in para Nos. 12 to 18 and decreed the suit of the plaintiffs and it was directed to the defendants that the plaintiffs will be placed in the pay scale of Rs. 1400-2600 i.e. on par with their counterparts working in Panipat Thermal Power House. However, the first appellate Court gave the arrears in the new pay scale only for the period of three years before the filing of the suit. It will be appropriate for me to reproduce paragraphs 12 to 18 of the judgment as follows :

"12 After giving my careful thought to the arguments advanced by both the sides, I find force in the submissions made by the learned counsel for the appellants. This is because the admitted facts are that senior technicians and technicians working in Panipat Thermal Power Station were getting pay scales of Rs. 700-1250 and 600-1100 prior to 1.1.1986 and then w.e.f. 1.1.1986 these pay scales were substituted by pay scales of Rs. 1600-2600 and 1400-2600. The senior technicians and technicians working in Thermal Power Station at Faridabad were earlier placed in the pay scales of Rs. 450-760 and 400-700 which pay scales were raised to pay scales of Rs. 1200-2040 and 950-1500 w.e.f. 1.1.1986. Thus, there was a disparity in the pay scales of technicians and senior technicians working at Thermal Power Stations at Panipat and Faridabad. The technicians working at Panipat were placed in a higher pay scale. There was absolutely no justification for this differential treatment. This disparity was successfully challenged before the civil Court at Faridabad and Mrs. Anita Chaudhary, then Senior Subordinate Judge, Faridabad decreed civil suit No. 1025 of 1988 in favour of 19 technicians/senior technicians working at Faridabad Thermal Power Station and those 19 persons also included the 5 technicians who were junior to the appellants, namely, Suresh Kumar, Tejpaj Singh, Subhash Chancier, Om Parkash and Jagdish Chander. This judgment of the Senior Subordinate Judge at Faridabad was affirmed in appeal by Shri K.C. Oupta, then Addl. District Judge, at Faridabad on 24.10.1991 in civil appeal No. 26/13 of 1991. This judgment dated 24.10.1991 is now under challenge in R.S.A. No. 800 of 1992 before the High Court of Punjab and Haryana and as already noticed by interim order dated May 20, 1992, the High Court has stopped payment of arrears to the successful employees but has directed the respondents to place them on the pay scale granted by the civil courts at Faridabad i.e. on par with the technicians working at Panipat. The sheet-anchor of the case of the successful employees was that there had to be equal pay for equal work. Appellants in the present case are not seeking implementation of the interim order dated May 20, 1992 of the High Court of Punjab and Haryana. They are rather seeking parity of the pay scale on the doctrine of equal pay for equal work on the basis that some of their juniors have already got the desired relief.

There is considerable merit in the plea of the appellants because now the technicians of the two thermal power stations at Panipat and Faridabad are under the same administrative control. They can be transferred from one place to another. J.P. Yadav, Superintendent in the Office of the Chief Engineer, Thermal Power House Faridabad has been examined by the respondents as D.W. 1. He has admitted that the appellants were senior as against the five persons who had been granted the pay scale of Rs. 1400-2600. He has further admitted that the principle of equal pay for equal work was also applicable to the H.S.E.B. He has further admitted that the technicians working in the two thermal powerhouses were under the same Chief Engineer. In the face of these admissions, there is hardly any justification for giving step-motherly treatment to the appellants who are working at Faridabad.

In Randhir Singh Vs. Union of India (UOI) and Others, the final court declared that if Articles 14 and 16 of the Constitution of India were construed in the light of the Preamble and Articles 39(d), it is clear that the principle equal pay for equal work is deductible from those Articles and may be properly applied to case of unequal scale of pay based on no clarification of irrational classification though those drawing the different scales of pay do identical work under the same employer.

In P. Savita and Others Vs. Union of India (UOI), Ministry of Defence (Department of Defence Production), New Delhi and Others, , their Lordships again reiterated that where all relevant considerations are the same, persons holding identical posts and discharging similar duties should not be treated differently.

In Food Corporation of India Workers Union v. F.C.I., 1990(4) SLR 745 there was disparity in the wages between employees posted at FCI depots in Assam, Bihar and Orissa etc, from those employed in West Bengal. Employees were getting higher wages in West Bengal. Nature of work performed by two categories was not different. In this background, their Lordships of the final Court issued directions to remove this disparity.

Again in Shanti Ram and Anr. v. PGI MER Chandigarh, 1994(2) SCT 708 (P&H) : 1994(4) SLR 764 the store-keepers in Post Graduate Institute of Medical Education and Research at Chandigarh were placed in the revised pay scale of Rs. 1400-2300 from the pay scale of Rs. 300-560. They demanded the pay scale of Rs. 1400-2300 which was being paid to their counterparts working in the AIIM, New Delhi. This prayer was accepted by the High Court of Punjab and Haryana on the principle of equal pay for equal work. On the same parity of reasoning, the appellants, who on revision of pay scales were placed in the pay scale of Rs. 950-1500 are demanding the pay scale of Rs. 1400-2600 which is admissible to their counterparts at Thermal Power House, Panipat. There is no reason to differentiate the two categories particularly when they are discharging the same functions and are under the same administrative control.

I, therefore, reverse the findings of the court be-low-on issue Nos. 1 and 2 and direct that the appellants are entitled to be placed in the pay scale of Rs. 1400-2600 on par with their counterparts working in Panipat Thermal Power House.

A fortiori, if follows that the findings of the court below on issue Nos. 3 and 5 are also liable to be reversed. The Law Officer could not explain as to how the suit was barred in view of the bar u/s 82 of the Electricity Supply Act, 1948 and as to how the appellants had no cause of action to bring the suit. He also could not point out as to how the appellants had not approached the court with clean hands. Resultantly, findings of the court below on issue Nos. 3, 4 and 5 are also reversed hereby".

Not satisfied with the judgment and decree of the first appellate Court the present appeal by the Board.

I have heard Shri P.M. Anand, Advocate on behalf of the appellant and Mrs. Abha Rathore, on behalf of the respondents and with their assistance, have gone through the record of the this case.

For me to deliver judgment in favour of the plaintiffs in the present appeal has become easy because of the fact that vide my separate judgment of even date I have disposed on R.S.A. No. 800 of 1992 which has been dismissed by me. I have also allowed the Civil Writ Petition No. 1632 of 1999 of the plaintiffs of R.S.A. No. 800 of 1992, vide which I have granted them the benefit of the higher pay scale which arose to them as per the recommendations of the 4th and 5th pay Commissions.

The entire case set up by the defendants in the present appeal was that some of the employees approached the civil Court for seeking higher grades on the plea that the nature of duties of senior technicians/technicians working at Thermal Power Stations at Faridabad and Panipat were the same, therefore, the decree was granted in their favour. Defence of the Board further is that since it has filed an appeal which was dismissed by the Court of Additional District Judge and that it had filed a regular second appeal in the High Court, therefore, the rights of the present plaintiffs who are admittedly senior to five plaintiffs had been kept deferred. It is a cardinal principle of law that the pay of the seniors cannot be allowed to remain less in comparison to the juniors by virtue of rules of the pay. It is admitted case of the parties that Sarvshri Suresh, Tejpal Singh, Subhash Chander, Om Parkash and Jagdish Chander who are working on the same pay and are discharging the same duties are junior to the plaintiffs and they have been placed in the pay scale of Rs. 1400-2600. When the plaintiffs and these persons are performing the same nature of duties; the management is the same w.e.f. 1st January, 1986 and the posts are inter-changeable, then the plaintiffs could not be put in a disadvantageous position. Such action on the part of the defendants putting the plaintiffs in the disadvantageous position is violative under Articles 14 and 16 of the Constitution of India.

Faced with this difficulty, learned counsel for the appellants submitted that conditions of service of both set of employees are different. According to the appellants, the technicians/senior technicians working at Panipat Plant are performing arduous nature of duties as compared to the technicians/senior technicians of the Faridabad Plant. Therefore, the principle of equal pay for equal work will not be applicable. I am not in a position to subscribe to the submission raised by the learned counsel for the appellant. With effect from 1st January, 1986 the staff of both the plants have come under one command. The duties are inter-changeable and they are performing the same nature of duties.

In these circumstances, the plaintiffs who are senior to five persons are entitled to the same pay scale from the same date on which their juniors started getting higher pay scale. There is no justification to discriminate the employees of Faridabad Thermal Plant. D.W. 1 has admitted that the plaintiffs were senior as against the five persons who were granted the pay scale of Rs. 1400-2600. He further admitted that principle of equal pay for equal work was also applicable to the Board. He also admitted that the technicians working in the two thermal power houses were under the same Chief Engineer.

In this view of the matter, I am of the considered opinion that the first appellate Court has rightly decreed the suit of the plaintiffs. Resultantly, I affirm the findings of the first appellant Court and dismiss the appeal. No order as to costs. For the sake of clarification, I may also state here that the plaintiffs shall be entitled to all consequential grades which have been given to their juniors/counter-parts after 1st January, 1986.

Appeal dismissed.