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Akil Abdul Hamid Kureshi, J.—The State Government has filed this petition calling in question the award dated 26.12.2003 of the Industrial Tribunal, Ahmedabad in Reference Case (IT) No. 77 of 1998.
Brief facts are as under:
2.1 The respondent-Union has taken-up the cause of workmen employed in the Employees State Insurance Scheme (''ESIC'' for short) as Packers-cum-Coolies in the pay scale of Rs. 196-232 (pre-revised) which was revised to Rs. 750-940 pursuant to 4th Pay Commission recommendations. The case of Union is that the said scale was prescribed for peons in Class IV posts. The duties and responsibilities of the packers were higher. In other Government departments, the posts carried the pay scale of Rs. 200-250. The workmen in question, therefore, should be in the same scale.
2.2 The reference was, therefore, made to decide whether the workmen mentioned in the list employed as packers-cum-coolies should be placed in the pay scale of Rs. 200-250 from the date of their appointment and be also paid the difference in salary on such basis.
2.3 The employer i.e. the Director of Medical Services in response to such reference, filed a reply opposing the demand of the Union. It was contended that the employees are employed in the Workman State Insurance Scheme functioning under the Director of Health Services. They are thus Government employees covered by the Government Rules and Regulations. Some of these employees were directly recruited as packers-cum-coolies whereas many of them, who were engaged as peons, were at their written request, transferred to such posts. They are receiving pay and allowances as per the Government Rules.
2.4 Before the Industrial Tribunal, on behalf of the Union one Laxmanbhai Patni, deposed at Exh. 29. He was engaged as a packer w.e.f. 03.03.1972 in the pay scale of Rs. 196-232. He was discharging his duties at Central Medical Stores. The other workmen also were discharging similar duties. Their duties involved segregating the medicines from the store as per the demand and packing such medicines item wise after verifying the expiry date, batch number, manufacturing date etc. Such duties cannot be performed by an illiterate person. He further deposed that the post of packer, in other departments, carried the pay scale of Rs. 200-250. When his pay scale of Rs. 196-232 was revised to Rs. 750-940, the pay scale of packers in other departments was revised to Rs. 850-950. Such post exists in other departments under the State Government such as Government Press Department, Central Medical Stores Organization.
2.5 On behalf of the employer, one Dr. Jayendrabhai Somnath Sukla was examined at Exh. 39-A. He was Assistant Director of Medical, ESI Scheme. According to him, the workmen Nos. 2-6, 8 and 14 were posted as packer-cum-coolie by way of transfer under their own consent letters. They were previously working as peons in Class IV posts. They were posted as packer-cum-coolie as per their requests. Minimum qualification required for such post was SSC pass. In the cross-examination, he was confronted with the correspondence initiated by his department with the Government for revising the pay scale of the packers since they were discharging higher responsibilities.
2.6 Besides such oral evidence, we also have certain documents on record. Only relevant documents being the correspondence pertaining to the suggestion for revising the pay scales of the packer-cum-coolies in the department which suggestion, however, was not accepted by the State.
2.7 On the basis of such evidence, the Industrial Tribunal, in the impugned award, came to the conclusion that the fixation of pay scale of Rs. 190-232 to the packers was not justified primarily on two counts viz. they were discharging the higher responsibilities than the peons, who carried the same pay scale of Rs. 190-232 and the pay scale of packers in other department was Rs. 200-250. The learned Presiding Officer was persuaded to accept the claim of the Union. It was directed that the concerned workmen would be in the pay scale of Rs. 200-250 from the date of their appointments and would be fitted in the corresponding revised pay scale w.e.f. January 1997 and be paid arrears of salary on such basis with effect from 1997. The basis of the cut off date of January 1997 was taken since the dispute was raised around the said period. The demand for arrears for the earlier period was, however, turned down.
2.8 It is this, award that the State Government has challenged in this writ petition.
Learned AGP Mr. Pujara raised following contentions:
(1) The Industrial Tribunal had no jurisdiction since the employees were Government servant governed by Bombay Civil Services Rules. A separate Tribunal was set up for such employees. The Industrial Tribunal, therefore, ought not to have entertained the reference.
(2) The task of equation of posts and pay scales is to be performed by special expert bodies such as Pay Commission. The Industrial Tribunal ought not to have lightly interfered with the prescribed pay scales that too in absence of sufficient material.
(3) The conclusion of the Industrial Tribunal that the packers in other departments performing the same duties is not supported by any evidence on record. The question of pay parity was, therefore, incorrectly held in favour of the workman.
On the other hand, Mr. Mishra for the respondent opposed the petition contending that the award of the Industrial Tribunal is based on evidence on record. This Court in exercise of writ jurisdiction would not interfere with findings of facts. The employees were discharging their duties as packers which was higher responsibility requiring special skills as compared to the duties of a peon. Prescribing same pay scales of both the posts was thus wholly illegal. Comparing the pay scale of packers in the present department with those in other departments was, therefore, fully justified.
Having thus heard learned advocates for the parties and having perused evidence on record, it emerges that the packers in the ESI Scheme were placed in the pay scale of Rs. 196-232 which was prescribed for the post in question. Many of the packers were originally employed as peons. They were merely transferred on their request to such posts. Some of them of course were directly recruited. Nevertheless, the post of peon and that of the packer in the department was interchangeable. The duties and responsibilities of course would differ, however, the pay scales prescribed were identical. It is not in the case of the Union that those of the packers which were previously already in the department, were granted promotions.
That being the position, the packers can claim the salary and allowances only in the pay scale prescribed for their posts which, in the present case, happened to be Rs. 196-232. Merely because the duties and responsibilities differ from that of the peons, would not by itself justify prescription of a difference or a higher pay scale.
The equation of post and prescription of different pay scales is an extremely complex task requiring to take into account voluminous materials and post under the Government in different categories. This tasks are therefore primarily performed by expert bodies as Pay Commissions and implemented by the Government after due deliberations. The Court''s power in prescribing different or higher pay scales for a given posts is always by very nature of things extremely limited. There are endless number of judgments to this effect. One may, however, for ready reference refer to the case Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, cited by the learned AGP. In such judgment, the Apex Court held and observed as under:
"12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well-settled that equation of posts and determination of pay-scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commission, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (I) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharges of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay-scales to a reasonable number. Such reduction in the number of pay-scales has to be achieved by resorting to broad banding of posts by placing different posts having comparable job-charts in a common scale. Substantial reduction in the number of pay-scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualification required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer''s capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the registration service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court''s interference is absolutely necessary to undo the injustice."
Bearing in mind such settled legal position, the question is, did the Industrial Tribunal have sufficient materials at its command to direct placement of the packers of ESI scheme in the higher scale of Rs. 200-250? We may recall there were two grounds on which the Tribunal based its conclusions. Firstly, that the packers in the department carried higher responsibility than that of the peons and secondly, the packers in Government Printing Department where post of packer carried the pay scale of Rs. 200-250. In my opinion, neither of these two grounds with the evidence on record was sufficient to give direction for upgradation of pay scale. Firstly, there was insufficient evidence of the nature of duties performed by the peons vis-a-vis the packers. Even if the packers were performing nature of duties which was of higher responsibility, what should be the matching pay scale could not have been judged by the Tribunal. As noted, the department did recommend revision of pay scale of the packers, however, the Government did not accede to such request. In absence of sufficient materials, it was not open for the Tribunal to recommend higher pay scale. Equally there was simply no material to equate the post of a packer in the ESI Scheme as compared to other department of the Government. What was the nature of work and the duties performed by packers in other departments, the mode of recruitment, the minimum educational qualification and experience required for the post in question and the workload were some of the relevant considerations, on which, the Tribunal simply had no evidence on record. It was only the word of the representative of the workmen that in other departments packers were placed in the scale of Rs. 200-250 and that therefore, the packers of the present department should also be fitted in the same scale. Besides that, there was simply no evidence to compare the duties, required qualification and other relevant parameters of the incumbent of the two posts. Merely because the nomenclature of the post was identical by itself would not justify pay parity.
Quite apart from a serious question of jurisdiction in view of the fact that the employees were regular Government servants and were governed by BCSR and other services Rules framed by the Government even on merits according to me, the Industrial Tribunal committed serious error in allowing the reference.
In the result, the impugned award is quashed. The petition is allowed. Rule is made absolute.