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1984 DIGILAW 126 (SC)

Delhi Veterinary Association v. Union Of India

1984-04-12

D.P.MADAN, E.S.VENKATARAMIAH

body1984
JUDGMENT ORDER :— The Delhi Veterinary Association is the petitioner in the above case. It is an association of veterinary doctors who are residing in the Union Territory of Delhi. By this petition under Article 32 of the Constitution, the petitioner is seeking relief in respect of Veterinary Assistant Surgeons working in the office of the Development Commissioner, Delhi Administration, Delhi, who are its members. It is alleged that these Veterinary Assistant Surgeons have been denied the benefit of the principle of equal pay for equal work incorporated in Art. 39 (d) of the Constitution and that there has been violation of their fundamental rights guaranteed under Article 14 and Article 16 of the Constitution because their scale of salary is lower than the pay scale of Veterinary Assistant Surgeons employed by the Union Territory of Chandigarh or by the Central Government in the Indo-Tibetan Border Police (I. T. B. P.) and in the Border Security Force (B. S. F.). It is also alleged that the Veterinary Assistant Surgeons are persons who have obtained Bachelors Degree in Veterinary Science and Animal Husbandry (B. V. Sc. & A. H.) from colleges of Veterinary Medicine and the minimum qualifications for entering the said course are more or less the same as those prescribed for M. B. B. S. or B. D. S. Examinations. They would be taught in the colleges of veterinary medicine inter alia subjects like Biochemistry, Pharmacology and Toxicology, Bacteriology, Pathology, Hygiene, Parasitology, Surgery, Radiology, Clinical & Preventive Medicine, Obstetric, Gynaecology and additionally Animal Husbandry. Some of them, it is stated, have also undergone some special courses after their degree. Having regard to the period of study in the college and the subjects taught they claim that they are almost equal to those who have obtained M. B. B. S. and . B. D. S. Degrees. 2. It is alleged that whereas the Veterinary Assistant Surgeons in the Union Territory of Chandigarh were paid salary in the pay scale of Rs. 850-1700 on the basis of the pay scale prevailing in the adjoining State of Punjab and the Veterinary Assistant Surgeons in the Union Territories of Arunachal Pradesh and Mizoram were paid in the pay scale of Rs. 550-900, the Veterinary Assistant Surgeons of the Union Territory of Delhi were given pay in the pay scale of Rs. 425-750 from Jan. 850-1700 on the basis of the pay scale prevailing in the adjoining State of Punjab and the Veterinary Assistant Surgeons in the Union Territories of Arunachal Pradesh and Mizoram were paid in the pay scale of Rs. 550-900, the Veterinary Assistant Surgeons of the Union Territory of Delhi were given pay in the pay scale of Rs. 425-750 from Jan. 1, 1973 and on a representation being made by them, their pay scale was modified to Rs. 550-900 with effect from November 2, 1977 as was being paid in the Union Territories of Arunachal Pradesh and Mizoram with effect from Jan. 1, 1973 even though the Ministry of Agriculture had recommended that their pay scale should be revised to Rs. 650-1200. The petitioner contends that even now the disparity between their pay scale and the pay scale of the Veterinary Assistant Surgeons of the Union Territory of Chandigarh and of I. T. B. P. and B. S. F. which is fixed at Rs. 650-1200 persists. On the basis of the above allegations the petitioner prays that a direction should be issued to the respondents to treat the Veterinary Assistant Surgeons of the Delhi Administration at par with the Veterinary Assistant Surgeons of Chandigarh, I. T. B. P. and B. S. F. 3. A counter-affidavit is filed on behalf of the Union Government denying many of the allegations in the petition and in particular the recommendation said to have been made by the Ministry of Agriculture. 4. The Development Commissioner, Delhi has filed a counter-affidavit justifying the impugned pay scale and at the same time he has pleaded that this is a matter which should be allowed to be examined by the Fourth Pay Commission. In view of the latter plea, we feel that it is not appropriate to deal with the merits of the claim, of the Veterinary Assistant Surgeons of Delhi in the course of this order although we feel that prima facie their grievance appears to be a legitimate one. In view of the latter plea, we feel that it is not appropriate to deal with the merits of the claim, of the Veterinary Assistant Surgeons of Delhi in the course of this order although we feel that prima facie their grievance appears to be a legitimate one. Since any alteration in their pay scale would involve modification of the pay scales of officers in the higher cadres in the same department and in the corresponding cadres in other departments, the work of refixation of the pay scale should not ordinarily be undertaken by the Court at this stage because the Fourth Pay Commission 5 required to consider the very same question after taking into consideration all the relevant aspects. 5. In addition to the principle of equal pay for equal work, the pay structure of the employees of the Government should reflect many other social values, Apart from being the dominant employer, the Government is also expected to be a model employer. It has, therefore, to follow certain basic principles in fixing the pay scales of various posts and cadres in the Government service. The degree of skill, strain of work, experience involved. training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task. hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors. 6. At the same time while fixing the pay scales, the paying capacity of the Government, the total financial burden which has to be borne by the general public, the disparity between the incomes of the Government employees and the incomes of those who are not in Government service and the net amount available for Government at the current taxation level, which appears to be very high when compared with other countries in the world. for developmental purposes after paying the salaries and allowances to the Government servants have also to be borne in mind. These are, however. for developmental purposes after paying the salaries and allowances to the Government servants have also to be borne in mind. These are, however. not exhaustive of the various matters which should be considered while fixing the pay scales. There may be many others including geographical considerations. 7. Above all, it should be noted that the work of a Pay Commission does not really mean an increase of Rs. 100/- here or recommending an additional allowance of Rs. 50/- there. It does not also mean a mere reduction of the number of pay scales or an attempt at the reduction of the gap between the highest pay scale and the lowest pay scale. It is a big exercise in gearing up the national economy to secure the highest good to the millions of our countrymen. In an egalitarian society based on planned economy it is imperative that there should be an evolution and implementation of a scientific national policy of incomes, wages and prices which would be applicable not merely to Government services but also to the other sectors of the national economy. As far as possible the needs of a family unit have to be borne in mind in fixing the wage scales. The needs are not static. They include adequate nutrition, medical facilities, clothing, housing, education, cultural activities etc. Any provision made while fixing the pay scales for the development of a society of healthy and well educated children irrespective of the economic position of the parents is only an investment and not just an item of expenditure. In these days of galloping inflation care should also be taken to see that what is fixed today as an adequate pay scale does not become inadequate within a short period by providing an automatic mechanism for the modification of the pay scale. 7-A. The duties of a Pay Commission are really onerous. But we have no doubt that the Fourth Pay Commission will keep in view all the relevant considerations, some of which are referred to above, while dealing with the complex problem of determining the equitable pay scales for the vast number of employees of the Central Government and of the Union Territories. We have also no doubt that the Fourth Pay Commission will not just be another Pay Commission as in the past but will lay down sound principles regarding the salary structure of the public services. 8. We have also no doubt that the Fourth Pay Commission will not just be another Pay Commission as in the past but will lay down sound principles regarding the salary structure of the public services. 8. In the above situation, we do not feel called upon to decide in isolation the question of discrimination raised before us. This is a matter which should be left to be decided by the Government on the basis of the recommendations of the Fourth Pay Commission. 9. It was, however, urged that since the Fourth Pay Commission would not be making any recommendation in respect of the period between 1973 and the date on which the new pay scale to be fixed on the recommendation of the Fourth Pay Commission would come into force. The Court should consider whether the Veterinary Assistant Surgeons were entitled to any retrospective benefit in respect of the said past period. Having regard to the long delay in approaching this Court after the fixation of their pay scale earlier, we do not propose to grant any relief in respect of that period. 10. The petition is, therefore, dismissed. The petitioner is at liberty to make its representation before the Fourth Pay Commission to determine the pay scale of the Veterinary Assistant Surgeons of Delhi. We are sure that the Fourth Pay Commission which is presided over by a former Judge of this Court would consider their representation sympathetically. Petition dismissed. For citation: AIR 1984 SC 1221 (From : Punjab and Haryana)* Decided on 11-4-1984. Y.V. CHANDRACHUD, C.J.I. AND SABYASACHI MUKHARJI, J. Smt. Surinder Kaur Sandhu, Appellant Versus Harbax Singh Sandhu and another, Respondents. Criminal Appeal No. 183 of 1984 Decided on 11-4-1984. Constitution of India, Art.136, Art.226 - Custody of minor son - Spouses made England their home - Order of (English) High Court for custody in favour of mother - Father removing boy to India - Jurisdiction of English Court, not ousted - Welfare of minor son, held, would be served by handing over custody to mother. Criminal Petn. No. 392 of 1983, D/- 26-8-1983 (Punj & Har,) Reversed. Hindu Minority and Guardianship Act (32 of 1956), S.6, S.13; Civil P.C. (5 of 1908), S.9, S.13, S.14; SC Act (1981 C.54) (English Act), S.41; International Law - Conflict of laws. Criminal Petn. No. 392 of 1983, D/- 26-8-1983 (Punj & Har,) Reversed. Hindu Minority and Guardianship Act (32 of 1956), S.6, S.13; Civil P.C. (5 of 1908), S.9, S.13, S.14; SC Act (1981 C.54) (English Act), S.41; International Law - Conflict of laws. Soon after their marriage in India in 1975, Smt. S and her husband H left for England where a boy P was born to them in 1976 The spouses, i. e. Smt. S. (a clerk) and H (a bus driver) made England their home. H was a man without character who offered solicitation to the commission of his wifes murder. For this offence, he was convicted and sentenced to a term of three years by English Court. The wife (Smt. S) obtained an order of probation for him but, he abused her magnanimity by running away to India with the boy soon after the probationary period was over. By the order of the English High Court of Justice (Family Court) dated 22-7-1983 under Section 41 of (English) SC Act 1981. H was directed to hand over the custody of the minor boy to Smt. S. or her agent forthwith. Armed with the order of English High Court, Smt. S filed a writ petition in the High Court of Punjab and Haryana, asking for the production and custody of her minor son. The High Court dismissed her petitioner. On appeal by special leave to SC : Held, (1) that the `traumatic experience of a conviction on a criminal charge was not a factor in favour of the father, especially when his conduct following immediately upon his release on probation showed that the experience had not chastened him. The affluence of fathers parents could not be a circumstances of such overwhelming importance as to tilt the balance in favour of the father on the question of what was truly for the welfare of the minor. At any rate. in the circumstances it could not be said that it would be less conductive for the welfare of the minor if he lived with his mother. Hence, the custody of the minor boy must be handed over to the mother. Criminal Writ Petn. No 392 of 1983, D/- 26-8-1983 (Punj & Har). Reversed. At any rate. in the circumstances it could not be said that it would be less conductive for the welfare of the minor if he lived with his mother. Hence, the custody of the minor boy must be handed over to the mother. Criminal Writ Petn. No 392 of 1983, D/- 26-8-1983 (Punj & Har). Reversed. (Paras 8, 11) (2) that Section 6 of Hindu Minority and Guardianship Act, 1956 could not supersede the Paramount consideration as to what was conducive to the welfare of the minor. The boy, from his own point of view, ought to be in the custody of the mother. (Para 9) (3) that the father could not deprive the English Court of its jurisdiction to decided upon childs custody by removing him to India. Not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, established sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State assume jurisdiction to enforce obligations which were incurred therein by the spouses. (1945) 90 L Ed 95, Applied. (Para 10) The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Ordinarily, jurisdiction must follow upon functional lines. In matters relating to matrimony and custody, the law of that palace must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. (Para 10) (4) that it was duty and function of the Court to protect Smt. S. against the burden of litigating in an inconvenient forum which she and H had left voluntarily in order to make their living in England. (Para 10) Mr. C. M. Nayar and Mr. Vijay Jhanji, Advocates, for Appellant; Mr. Puran Chand, Mrs. Naresh Bakshi and Miss Kailash Mehta, Advocates, for Respondents. * Criminal Writ Petn. No. 392 of 1983, D/- 26-8-1983 (Punj & Har). JUDGMENT CHANDRACHUD, C. J. :— The appellant, Surinder Kaur Sandhu, is the wife of respondent 1, Harbax Singh Sandhu. Respondent 2 is the father of respondent 1. Vijay Jhanji, Advocates, for Appellant; Mr. Puran Chand, Mrs. Naresh Bakshi and Miss Kailash Mehta, Advocates, for Respondents. * Criminal Writ Petn. No. 392 of 1983, D/- 26-8-1983 (Punj & Har). JUDGMENT CHANDRACHUD, C. J. :— The appellant, Surinder Kaur Sandhu, is the wife of respondent 1, Harbax Singh Sandhu. Respondent 2 is the father of respondent 1. Appellant and respondent I were married in 1975 at Bodni Kalan, District Faridkot, Punjab, according to Sikh rites. Soon after the marriage they left for England, where a boy named Pritpal Singh was born to them on October 24, 1976. 2. Within a short period after the birth of the boy, the relationship between the spouses came under a strain resulting in a serious episode. The husband was trapped by the Barkshire Police who got the scent that he was negotiating with a hitman to have the wife run over by a car. The husband was convicted and sentenced to a term of three years for that offence. Ironically, it was the wife who intervened and succeeded in obtaining a probation order for the man who had attempted to procure her murder. The husband was released on probation on February 4, 1982. The period of probation expired on December 24, 1982. 3. On January 31, 1983, while the wife was away at work, the husband removed the boy from England and brought him to India. On the same date, the wife obtained an order under Section 41 of the SC Act, 1981 under which the boy became the Ward of the Court with effect from that date. That order was confirmed on July 22, 1983 by Mrs. Justice Booth of the High Court of Justice (Family Division). By the said order, the husband was directed to hand over the custody of the minor boy to the wife or her agent forthwith. 4. The wife came to India in April 1983. On May 5, 1983 she filed a petition under Section 97 of the Criminal P. C. in the Court of the learned Judicial Magistrate, First Class, Jagraon. She asked for the custody of her son, contending that he was in the illegal custody of the respondents. 4. The wife came to India in April 1983. On May 5, 1983 she filed a petition under Section 97 of the Criminal P. C. in the Court of the learned Judicial Magistrate, First Class, Jagraon. She asked for the custody of her son, contending that he was in the illegal custody of the respondents. Sec. 97 authorises the Magistrate to direct a search to be made for persons wrongfully confined and, on their being found, to be produced in the Court in order to facilitate the passing of such order as the circumstances of the case may require. The respondents relied upon Section 6 of the Hindu Minority and Guardianship Act, 1956, and opposed the petition on the ground that respondent 1 was the natural guardian of the minor boy. Accepting that contention, the learned Magistrate dismissed the petition, leaving the question of the custody of the child to be decided in an appropriate proceeding. 5. The wife then went back to England to resume her work and obtained the order dated July 22, 1983 to which we have already referred. She came back to India once again, this time armed with the aforesaid order of the English High Court. She then filed the present writ petition in the High Court of Punjab and Haryana, asking for the production and custody of her minor son. 6. The learned single Judge of the High Court who dealt with the petition made an excellent effort to bring about a rapprochement between the spouses but, he did not succeed. He questioned the boy more than once and he even persuaded the spouses to live together for a couple of days in the house, of the Inspector General of Prisons, Haryana. The spouses reported back to him that they were unable to resolve their differences. 7. The learned Judge dismissed the wifes petition on the grounds, inter alia, that her status in England is that of a foreigner, a factory worker and a wife living separately from the husband; that she had no relatives in England; and that, the child would have to live in lonely and dismal surroundings in England. 7. The learned Judge dismissed the wifes petition on the grounds, inter alia, that her status in England is that of a foreigner, a factory worker and a wife living separately from the husband; that she had no relatives in England; and that, the child would have to live in lonely and dismal surroundings in England. On the other hand, according to the learned Judge, the father had gone through a traumatic experience of a conviction on a criminal charge; that he was back home, in an atmosphere which welcomed him; that his parents were in affluent circumstances; and that, the child would grow in an atmosphere of self-confidence and self-respect if he was permitted to live with them. 8. Some of these circumstances mentioned by the learned Judge are not beside the point but, their comparative assessment is difficult to accept as made. For example, the traumatic experience of a conviction on a criminal charge is not a factor in favour of the father, especially when his conduct following immediately upon his release on probation shows that the experience has not chastened him. On the whole, we are unable to agree that the welfare of the boy requires that he should live with his father or with the grand-parents. The father is a man without character who offered solicitation to the commission of his wifes murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over. Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping of his wife. In this background, we do not regard the affluence of the husbands parents to be a circumstance of such over-whelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate, we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. At any rate, we are unable to agree that it will be less for the welfare of the minor if he lived with his mother. He was whisked away from her and the question is whether, there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the loving care of the mother ought not to be denied to him. The father is made of coarse stuff. The mother earns an income of £ 100 a week, which is certainly not large by English standards, but is not so low as not to enable her to take reasonable care of the boy. 9. Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother. 10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. it cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modem theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where. the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing, him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the Courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington, (1945) 90 L Ed 95, which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case). It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy. 11. For these reasons, we set aside the judgment of the High Court and direct that the custody of the child shall be handed over to the appellant-mother. That shall be done during the course of this day. 12. The High Court has referred to the evidence showing that the annual income of the fathers family is in the range of Rs. 90,000/-. That would justify an order directing the respondents to pay a sum of Rs. 3,000/- (three thousand) to the appellant for her costs of this appeal. 13. Order accordingly. Order accordingly. For Citation: AIR 1984 SC 1224 = (1984) 3 SCC 1 = 1984(3) SCR 429 = 1984(2) LLN 46 = 1984(49) FLR 159 = 1984(65) FJR 9 = 1984 LIC 860 = 1984(2) SLR 144 = 1984(1) Scale 663 = 1984 UJ 596 .