H.P. State Small Industries and Export Corporation Limited vs Kapil Dev and Others

Arun Kumar Goel, J.—Petitioner, aggrieved by the Award passed by the Respondent No. 2 i.e. Presiding Officer, Labour Court, Himachal Pradesh, Shimla Annexure-PC dated 25.7.1992 has preferred this writ petition whereby it has prayed for quashing the same being illegal, arbitrary, unconstitutional and void with a further prayer that the Respondents may be restrained and prohibited from making or enforcing the said Award.

Brief facts giving rise to this writ petition are that the Petitioner is a Company incorporated u/s 619 of the Companies Act, 1956 and has got its registered office at Kishore Bhawan, Ground Floor, The Mall, Srnmla and it sent a requisition for the post of Store Keeper in the pa> scale of Rs. 160-400 plus usual allowances as per Corporation''s rules to District Employment Exchange, Solan. Amongst other things, it was mentioned in the requisition slip sent by the Petitioner that the place of work would be Chambaghat and the nature of vacancy was temporary (one). Essential qualification was I.T.I. Diploma in Electronics with atleast two years experience in components store. It appears that in response to the requisition sent, the name of the Respondent No. 1 was sponsored by the District Employment Exchange, Solan and pursuant to which the Respondent No. 1 was called for interview to be held on 17.7.1980 as is evident from letter dated 12.7.1980 at page-26 of the file. Petitioner appeared in response to the said letter and was selected. It may not be out of place to mention here that in the interview letter, it was stated by the Petitioner that the scale of pay for the post of Store-Keeper is Rs. 160-400 plus allowances. However, while issuing the appointment letter dated 29.7.1980, which is at page-27 of the writ petition, the pay mentioned therein was Rs. 4.00/- in the pay scale of Rs. 400-20-500-EB-25-650 plus dearness allowance plus compensatory allowance (D.A. Rs. 108 per month fixed and CA. Rs. 20/- per month and no other allowances). Pursuant to this appointment letter, Respondent No. 1 joined the services of the Petitioner at Chambaghat (Solan) in one of its units known by the name of ''Himtron''. It appears that the Respondent No. 1 was not satisfied with the pay scale allowed to him vide appointment letter dated 29.7.1980. As such, he started representing and according to him, at the time when he was called for interview, pay scale mentioned was Rs. 160-400 plus allowances, which was subsequently revised to Rs. 570-1080 and at present this pay scale has been further revised from Rs. 570-1080 to Rs. 1800-3200. Petitioner made various representations from time to time claiming these revised pay-scales.

In the meantime, as it is revealed during tne course of hearing of this writ petition, Respondent No. l was transferred from Himtron Factory, Chambaghat to Head Office at Shimla and he was re-designated as Clerk-cum-Store Keeper in the pay scale of Rs. 400-650 which was revised to the employees of Himtron Factory to Rs. 400-600. It may be clarified that according to Respondent No. 1 in the original nay scale of Rs. 400-650, wherein he was appointed in terms of appointment letter dated 29.7.1980, he was getting fixed dearness allowance and compensatory allowance amounting to Rs. 108 and Rs. 20/- per month, respectively and no other allowance was admissible to him. Total emoluments in this pay scale at that time were Rs. 528/- per month, whereas in the new pay scale offered to him of Rs. 400-600, his emoluments worked out to Rs. 1054.20-. Thus, it is evident that in the revised pay scale, the emoluments of the Respondent No. 1 had substantially increased. As is revealed from the record of the case, the representations as made by Respondent No. 1 for the grant of pay scale of Rs:160-400, revised to Rs. 570-1080 and then again revised to Rs. 1800-3200 did not meet any favourable response from the Petitioner. As such, he raised an industrial dispute. The matter appears to have come up before the Conciliation Officer, who submitted failure report. Respondent No. 3 thereafter referred the matter u/s 12(5) of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act'') vide Annexure PE. Reference made was to the following effeet:

That whether appointment of Shri Kapil Dev, Store Keeper to the post of Clerk by the Managing Director, H.P. Small Industries and Export Corporation, on 2.2.1984 is legal and valid ? If it is legal, to what reliefs the applicant Shri Kapil Dev, is entitled to ?

That whether Shri Kapil Dev''s demand to the benefit of the pay scale of Rs. 570-1080 w.e.f. 4.8.1980 (date of appointment) to 1.2.1984 (upto which time he worked as Store Keeper), from the Managing Director, HP Small Industries and Export Corporation is legal and valid ? If yes, to what scale the workman is entitled ?

It is in this background that the matter came up for consideration and adjudication before Respondent No. 2. Parties joined issue before Respondent No. 2 during the course of proceedings under the Act and on the basis of the pleadings of the parties, the following issues were framed by Respondent No. 2 on 7.12.1991:

Whether the transfer of Shri Kapil Dev, Petitioner from the post of storekeeper to the post of clerk w.e.f. 2.2.1984 is illegal and unjustified ? (O.P. Parties)

Whether the Petitioner is entitled for the pay of Storekeeper w.e.f. 4.8.1980 to 1.2.1984 ? (OPP).

Whether the petition is not maintainable as alleged ? (OPR).

Relief.

Respondent No. 2, while deciding issues No. 1 and 2, invoked the doctrine of ''Equal pay for equal work'' has also placed reliance on the judgment of the Hon''ble Apex Court reported in AIR 1991 SC 1397 (Employees of Tannery and Footwear Corporation of India Ltd. and Anr. v. Union of India and Ors.). While recording such findings under issues No. 1 and 2, Respondent No. 2 held that the transfer of the Petitioner from the post of Store Keeper to the post of Clerk by the present Petitioner-management to lower scale is not justified and legal and it was further held that the pay scale of Respondent No. 1 could not be changed arbitrarily by the management to his prejudice and it was accordingly quashed and set aside. It was further held that the Respondent No. 1-Workman could not be shown in the seniority of Clerks and he shall be deemed to have been appointed as Store Keeper in the pay scale of Rs. 160-400 (pre-revlsed) and subsequently in the revised pay scales of Rs. 570-1080 and Rs. 1800-3200 w.e.f. 4.8.1980 i.e. the date of joining by Respondent No. 1 in the service of the Petitioner-Corporation and accordingly these issues were decided in favour of Respondent No. 1-Workman ana against the Petitioner. Issue No 3 was decided against the Petitioner-management and while awarding the relief to Respondent No. 1, the Presiding Officer i.e. Respondent No. 2 passed an Award in favour of Respondent Mo. 1-Workman and against the Petitioner-management allowing his claim to pay scale of Rs. 160-400 (pre-revised) w.e.f. 4.8.1980 with all subsequent revisions from time to time and arrears were ordered to be paid to Respondent No. 1 within one month from the date of the publication of the said Award in the official Gazette of the State Government. Reference was ordered in the affirmative.

In the aforesaid background, present writ petition has been filed by the Petitioner-Corporation against the said Award (Annexure PC) and according to it, the Award is liable to be set aside, intei-alia, for the reasons (a) when reference was made on two specific points, those" having not been properly and specifically answered as envisaged under law, therefore, Respondent No. 2 has erred in passing Annexure PC; (b) Respondent No. 2- Workman having been appointed in the pay scale of Rs. 400-650 with fixed allowances and nothing else and as such nothing else was due and payable to him. After the said scale earlier requisitions sent to Employment Exchange were of no significance and the same could not be binding on the Petitioner, more especially when the offer of appointment made vide letter dated 29.7.1980 referred to supra and which finds place at page-27 of the wr-it file. For ready reference, the contents of the letter dated 29.7.1980 are reproduced be low:

Ref. No. HPSSIEC-6-140/77 Dated:29.7.1980.

Shri Kapil Dev Sharma, S/o Shri Bal Krishan, C/o Shri Shived Bhanet, T.V. Factory, Chambaghat, Distt. Solan (HP).

Subject: APPOINTMENT FOR THE POST OF STOREKEEPER. ---------------------

Dear Sir/Madam,

With reference to your interview held on 17th July, 80 you are hereby offered a temporary post of Store-Keeper of the T.V. Tuner Unit, Solan (HP) on the following terms and conditions:

Pay Rs. 400/- in the pay scale of Rs. 400-20-500-EB-25-650 + DA + CA (DA Rs. 108/- p.m. fixed, CA Rs. 20/- p.m. and no other allowances).

Before joining duty in the service of''the corporation, you will have to produce the following certificates:

i) Medical Certificate from a Medical Officer certifying his sound constitution and fitness for the post.

ii) Character and antecedents certificates acceptable to the Managing Director.

iii)Certificate to the effect that Shri Kapil Dev Sharma has not been dismissed from any public or private employment so far.

iv) He will have to take the oath of allegiance/affirmation to the Corporation.

v) He will have ''to take the oath of secrecy.

vi ) A declaration regarding his not contracted bigamous marriage.

vii)Declaration of his Home Town.

vi i i particulars of his family members.

ix) An attested copy of Matriculation Certificate in support of Shri Kapil Dev Sharma and copies of other certificates in support of his qualification.

x) Shri Kapil Dev Sharma will be required to execute the enclosed bond on non-judicial paper of Rs. 15/- (of Himachal Pradesh) to serve the Corporation for a period of at least three years effective from the date of his joining.

Liability of Service:

Shri Kapil Dev Sharma will be liable to serve any place in Himachal Pradesh or outside without payment of additional allowances except as may be admissible under the H.P. State Small Industries & Export Corporation Ltd., Employee''s Service Bye-laws.

Rules of service:

Shri Kapil Dev Sharma''s Service in the Corporation shall be governed by the H.P. State Small Industries & Export Corporation Ltd., Service Bye-Laws in force now or as may be amended from time to time.

If the above terms and conditions are acceptable to Shri Kapil Dev Sharma, he may report for duty at his own expenses to the Manager, T.V. Turner, Solan (HP) on or before 9th August, 1980 failing which it will be presumed that he is not interested in the offer.

Yours faithfully, Sd/- MANAGING DIRECTOR

CC:

The Manager, HIMTRON, Chambaghat, Distt. Solan (HP).

All the Branches.

Personal File of the incumbent.

Accounts Section.

Not only this, Respondent No. 1 - Workman had submitted bond in terms of the said appointment letter, while accepting the pay scale offered to him in unequivocal and in no uncertain terms. However, all these matters were not taken note of by Respondent No. 2; (c) There was no question of transferring Respondent No. 1 either to the lower post or in a lower pay scale. In fact by putting him in the pay scale of Rs. 400-650 plus fixed allowances, the Petitioner was entitled to higher emoluments instead of Rs. 528/- per month that he was getting under the terms of appointment letter in the pay scale of Rs. 400-650. However, this aspect has also been ignored by the Respondent No. 2, while passing Annexure-PC and according to the learned Counsel for the Petitioner, the Award was liable to be set aside; (d) Petitioner further points out that the pay scale admissible to a Clerk-cum-Store Keeper in the Head Office was Rs. 400-600 which was allowed to Respondent No. 1 by the Petitioner and as such, there was no question of invoking the doctrine of ''Equal pay for equal work'', more especially when there was no material before the Respondent No. 2 to show the nature and functions of the Petitioner which would entitle the Petitioner to higher pay scale and according to the Petitioner, the matter of equivalence was exclusively in the domain of the employer and the same cannot be changed; (e) Estoppel was also pleaded and it was further pointed out by the Petitioner that the findings to the effect that the Petitioner is bound by the doctrine of promissory estoppel are also liable to be set aside; (f) other persons, would be effected by virtue of grant of pay scale to Respondent No. 1 from a back date, being necessary parties have not been impleaded as such and, therefore, on this ground also, the quashing of the impugned Award was prayed for.

Respondent No. 3, while justifying the Reference has further pleaded that the Award made vide Annexure PC on 25.7.1992 stands published in the official Gazette i.e. H.P. Rajpatra on 23.1.1993 and has prayed for dismissal of the writ petition as the Petitioner has no cause of action to maintain the same.

Respondent No. 1 has disputed all the claims of the Petitioner made in the writ petition and according to him, the requisition was sent for the post of Store Keeper in the pay scale of Rs. 160-400 plus usual allowances as per rules of the Petitioner-Corporation and it has further been pleaded by him that he is entitled to this pay scale as also the revised pay scale in this behalf from time to time. According to Respondent No. 1, once the requisition for the post of Store Keeper was sent and he having been called for the said post in terms of interview letter supra, there was no question and/or justification for the management to have put the Petitioner in the pay scale of Rs. 400-650 with fixed allowances. According to the said Respondent, the Petitioner had appointed Respondent No. 1 as a Store Keeper and not as a Clerk. As such it could not be re-designated as Clerk-cum-Store Keeper as has been done by the Petitioner. Further Respondent No. 1 has stated that rationalisation as pleaded by the Petitioner was not to his benefit, rather it was detrimental to his interests. Respondent No. 1 prayed for the up-holding of the Award made vide Annexure-PC by Respondent No. 3 and he prayed for the dismissal of the writ petition. During the course of proceedings, this Court vide orders dated 31.5.1993, while admitting the writ petition, directed the parties to place on record the affidavits giving details of amounts becoming payable to Respondent No. 1 on the basis of the impugned Award i.e. Annexure -PC. Needful was done is evident from the order dated 6.9.1993 and pursuant to the said order, a sum of Rs. 1,26,956.20 was deposited by the Petitioner in the Registry of this Court. Out of this deposited sum, half of -the amount was ordered to be released in favour of Respondent No. 1 subject to his furnishing security to the satisfaction of the Registrar of this Court for refund of the amount or any part thereof in the event of writ petition being allowed and the remaining half of the amount was ordered to be invested in a nationalised bank in a fixed deposit in the name of the Registrar of this Court for a period of 37 months.

In the aforesaid facts and circumstances, pleadings and documents placed on record by the parties, the present case has to be examined.

It has been vehemently argued by Shri D.D. Sood that Annexure-PE, Reference made by Respondent No. 3 has not been answered by the Respondent No. 2 and, therefore, the impugned Award made vide Annexure-PC deserves to be quashed and set aside. He has submitted that unless the points of reference are answered, his client has been materially prejudiced. This plea has further been pressed into service by stating that even issues were not properly framed, which has caused material prejudice to his client. According to the learned Counsel for the Petitioner, the principle of ''Equal pay for equal work'' is not at all attracted and there was nothing on record before Respondent No. 2 while passing the impugned Award vide Annexure-PC to show that there was anything which indicated as to the nature of duty of the Store Keeper by the Petitioner and that of other Corporations owned and controlled by the Government of Himachal Pradesh were identical and same. According to the learned Counsel, the ratio of the judgment pressed into service by Respondent No. 2 in passing the impugned Award, Annexure-PC, Employees of Tannery and Footwear Corporation of India Ltd. and Anr. v. Union of India and others AIR 1991 SC 1397 is not at all attracted as the facts of the said case were totally different and it was wholly inapplicable to the present case. According to Shri Sood, there is no foundation in evidence to invoke the said doctrine for the grant of scales payable in other Corporations like, H.P. Small Scale Industrial Development Corporation etc. for the post of Store Keeper in the Petitioner-Corporation. According to the Petitioner, the post of Store Keeper was not available in its Head Office, where Respondent No. 1 had been transferred from Chambaghat (Solan). With a purpose to accommodate him and to ensure that the said Respondent No. 1 is not on the roads and left high and dry, he was put in the pay scale of Rs. 4-00-600 and was paid higher emoluments instead of Rs. 528/- that he was getting at the relevant point of time.

After going through the record of the case, we are of the view that there is no material on record on the basis of which it can be held that the Respondent No. 1 is entitled to the pay scale of Store Keeper as being admissible in other Corporation like H.P. Small Industries and Development Corporation. Not only this, there i s no material placed on record by Respondent No. 1 during the course of proceedings, before Respondent No. 2 to show that the nature of duties/responsibility of the Store Keeper of Petitioner-Company are comparable to that of the corresponding category of employees working in departments and other undertakings belonging to the Government. Needless to point out that the principle of ''Equal pay for equal work'' has in-built restrictions implanted in it and it has no mechanical application in every case of similar work. Needless to further clarify that Article 14 of the Constitution of India permits reasonable classification founded on rational criteria. It is further permissible to grant two different pay scales in the same cadre having regard to experience, seniority merit etc. and in service, merit of experience could be proper basis for classification so as to promote efficiency in administration. Further for invoking the doctrine of ''Equal pay for equal work'', discrimination complained of if any, must be within the same establishment owned by the same management. A comparison cannot be made with the counter-parts in other establishments with different geographical locations, thougn owned by the same masters.

In the present case during the course of hearing of the present writ petition, the learned Counsel for Respondent No. 1-Workman, Shri Rajiv Sharma has argued that the pay scale of Rs. 160-400 was revised to Rs. 570-1080 and has been further revised to Rs. 1800-3200 to which his client is legally entitled to and the Petitioner could not have offered him lesser pay scale of Rs. 400-650 with fixed allowances in terms of his appointment letter and according to him, in other Govt. owned Corporations, this scale of pay of Rs. 160-400 was also revised to Rs. 570-1080 and then to Rs. 1800-3200 and his client has been rightly awarded this pay scale by Respondent No. 2 vide Annexure PC which deserves to be upheld. According to the learned Counsel for Respondent No. 1, the- Award made vide Annexure -PC does substantial justice and calls for no interference and he has prayed for dismissal of the writ petition.

We are of the view that the Respondent No. 1 could have either refused at the time when the offer was made to him in the pay scale of Rs. 400-650 with fixed allowances and after having not only accepted the same and joined the sesrvice, but also having furnished the necessary bond as required by the management, he is not entitled to make any grievance. It is further pointed out that this bond was shown during the course of hearing on behalf of the Petitioner-Corporation and execution and submission thereof was not controverted by Respondent No. 1. Further this submission of the learned Counsel for the Petitioner that since the unit of the Petitioner i.e. Himtron, where Respondent No. 1 was employed at Chambaghat (Solan), has since been closed, as such in order to provide him employment and not to leave him high and dry, the Petitioner had re-designated him as Clerk-cum-Store Keeper keeping in view its social obligation towards its employees like Respondent No. 1. Otherwise since the unit had been closed and there was no post of Store Keeper in the Head Office at Shimla, where Respondent No. 1 had been transferred, his services could be dispensed with at that time in accordance with law.

Even otherwise it is not understood as to on what basis and in what manner Respondent No. 2 has invoked the doctrine of ''Equal pay for equal work'' with whom equivalence in the matter of work and pay has been brought in so as to allow the claim of Respondent No. 1 in the pay scale of Rs. 160-400 in the first instance in terms of requisition seat by the Petitioner to Employment Exchange, Solan for the temporary post of Clerk which was revised to Rs. 570-1080 and subsequently to Rs. 1800-3200. Needless to reiterate here that this doctrine is only attracted when in the same establishments two persons are discharging identical functions and their nature of duties being the same. Similarly, the responsibility and nature of job being identical, that this doctrine can be invoked not in case of an isolated post that was held by the Respondent No. 1 which also came to an end after the closure of the factory at Chambaghat (Solan) and there was no post of Store Keeper in the Head Office at Shimla.

This Court vide judgment dated 17.5.1995 in C.W.P. No. 311 of 1991, titled Himachal Pradesh Small Industries & Export Corporation Limited v. General Secretary, Concrete Poles & Paper Conversion Workers'' Union, Parwanoo and Ors. ILR 1995 (1) H.P. 1149 has, interalia, held that the workmen in that case are not entitled to time scale with Dearness Allowance which are given to the corresponding categories of employees of H.P. State Electricity Board and H.P. Cooperative Societies as was held in the said case by the Industrial Tribunal. In the said case. Workers'' Union of Concrete Poles and Paper Conversion had asked for the grant of time scale with dearness allowance as was admissible to their counter-parts in other Corporations.

The doctrine of Article 39(d) of the Constitution of India invoked by the learned Presiding Officer in Annexure-PC so as to apply the ratio of Employees of Tannery and Footwear Corporation of India Ltd. and another Vs. Union of India and others, . is not at all attracted on the basis of the material on record. Further no basis either in evidence or otherwise has been laid by Respondent No. 1-Workman during the course of proceedings before Respondent No. 2 so as to legally justify Annexure-PC. In this view of the matter, we are of the considered view that Respondent No. 2 has erred in passing Annexure-PC by not only properly answering the reference in terms of Annexure-PE, but has also further fallen into error in invoking the doctrine of ''Equal pay for equal work''. In addition to this, in the facts and circumstances of the case, the impugned Award also fails to stand the test of judicial scrutiny and deserves to be set aside and it is ordered accordingly, as a result whereof, the impugned Award passed by Respondent No. 2 in Reference No. 64 of 1991 titled Kapil Dev v. Managing Director, H.P. State Small Industrial Corporation dated 25.7.1992, Annexure-PC the writ petition is quashed and set aside.

As a result of the aforesaid discussion, the present writ petition is allowed and the impugned Award, Annexure -PC passed by Respondent No. 2 is ordered to be set aside with no order as to costs. The amount deposited by the Petitioner in the Registry of this Court in terms of order dated 31.5.1991 is ordered to be refunded to the Petitioner alongwith interest accrued thereon.