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2006 DIGILAW 1018 (DEL)

UNION OF INDIA v. THAKUR SINGH

2006-06-02

SHIV NARAYAN DHINGRA, T.S.THAKUR

body2006
T. S. THAKUR, J, J. ( 1 ) EQUAL pay for equal work? is no longer an abstract principle or an unenforceable Directive Principle of State Policy. A long line of pronouncements by the Apex Court has, by judicial expansion, added content to that doctrine and read the same as part and parcel of Articles 14 and 16 of the constitution. These decisions show a marked shift from the view expressed by their Lordships in Kishori Mohanlal Bakshi Versus Union of India, AIR 1962 SC 1139 that the principle of ?equal pay for equal work? was an abstract doctrine which had nothing to do with Article 14. The decisions rendered by the Supreme court in Randhir Singh Vs. Union of Indiaand Ors. , (1982) 1 SCC 618 , Dhirendra chamoli Vs. State of U. P. (1986) 1 SCC 637 , Surinder Singh Vs. Engineer-in- chief, (1986) 1 SCC 639 , Bhagwan Dass Vs. State of Haryana, (1987) 4 SCC 634 , jaipal and Ors. Vs. State of Haryana and Ors. (1988) 3 SCC 354 , P. Savita and ors. Vs. Union of India, 1985 (Supp) SCC 94, V. Markendeya and Ors. Vs. State of andhra Pradesh and Ors. (1989) 3 SCC 191 , State of Tamilnadu Vs. M. R. Alagapan and Ors. , AIR 1997 SC 2006 and Garhwal Jal Sansthan Marmachari Union Vs. State of UP and Ors. , AIR 1997 SC 2143 , have authoritatively settled the proposition that denial of equal pay for equal work would tantamount to denial of equality before the law and equality of opportunity in matters relating to employment guaranteed under Articles 14 and 16 of the Constitution. The Court has at the same time cautioned that equation of posts and pay scales is not for the courts to embark upon. That is the job of the government and expert bodies. The Court has also held that the burden to prove that there is unequal pay for equal work is upon the petitioners and it is for them to establish and place on record material that would constitute inequality in the matter of emoluments upon proof of equality in the work performed by the employees. The Court has also recognised the principle that the principle of ?equal pay for equal work? has no application where qualitative difference in functions and responsibilities is established. The Court has also recognised the principle that the principle of ?equal pay for equal work? has no application where qualitative difference in functions and responsibilities is established. The Court has held that equality of work may vary from post to post and from institution to institution. Consequently, the petitioners must establish that their duties, responsibilities and functions are similar to those with whom they seek parity in pay scales. Similarly, the Court has, in State of tamilnadu Vs. M. R. Alagapan and Ors. , AIR 1997 SC 2006 , recognised that educational qualifications and the method of selection could constitute distinguishing features where the principle would have no application to justify parity of pay scales. ( 2 ) IN State of Haryana Vs. Jasmer Singh, 1997 (1) SCC 137, their lordships indicated the difficulties inherent in comparing and evaluating the quality of work done by different persons in different organisations or even in the same organisation. The Court observed:"it is, therefore, clear that the quality of work performed by different sets of persons, holding different jobs will have to be evaluated. There may be difference in educational or technical qualifications which may have a bearing on the skills which the holder bring on their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify difference in pay-scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay-scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This court has repeatedly observed that evaluation of such jobs for the purpose of pay-scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted. " ( 3 ) WE may also refer to the observations made by their Lordships in state of Madhya Pradesh Vs. Pramod Bhartiya, (1993) 1 SCC 539 , while discussing the parameters on which a comparison shall have to be drawn in the matters of nature and duties, responsibilities and functions before the principle of ?equal pay for equal work? can be applied and relief granted. Pramod Bhartiya, (1993) 1 SCC 539 , while discussing the parameters on which a comparison shall have to be drawn in the matters of nature and duties, responsibilities and functions before the principle of ?equal pay for equal work? can be applied and relief granted. The Court observed:"it would be evident from this definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further as pointed out by Mukharji, J. (as he then was) in Federation of All india Customs and Excise, Stenographers v. Union of India, 1988 (3) SCC 91 : ( AIR 1988 SC 1291 ), the quality of work may vary from post to post. It may vary from institution to institution. We cannot ignore or overlook this reality. It is not a matter of assumption but one of proof. The respondents (original petitioners) have failed to establish that their duties, responsibilities and functions are similar to those of the non-technical lecturers in Technical colleges. They have also failed to establish that distinction between their scales of pay and that of non-technical lecturers working in Technical Schools is either irrational and that it has no basis, or that it is vitiated by mala fides, either in law or in fact (see the approach adopted in Federation case ). It must be remembered that since the plea of equal pay for equal work has to be examined with reference to Article 14, the burden is upon the petitioners to establish their right to equal pay, or the plea of discrimination, as the case may be. This burden, the original petitioners, (respondents herein) have failed to discharge. " ( 4 ) IN Garhwal Jal Sansthan Karamchari Union Vs. State of UP and ors. , AIR 1997 SC 2143 the petitioners, who were employed in the Jal Sansthan, were demanding parity with the pay scales of employees working in Jal Nigam. The Supreme Court on a comparison of duties performed by the Nigam and Sansthan held that the same were to some extent similar. State of UP and ors. , AIR 1997 SC 2143 the petitioners, who were employed in the Jal Sansthan, were demanding parity with the pay scales of employees working in Jal Nigam. The Supreme Court on a comparison of duties performed by the Nigam and Sansthan held that the same were to some extent similar. Their Lordship then framed the following question:"can the principle of equal pay for equal work be applied to the two sets of employees in different organisations who are discharging the duties and functions to some extent similar without reference to the qualitative commonality thereof" ( 5 ) THE Court answered the question in the negative holding that there was a qualitative difference in the duties and functions discharged by the jal Nigam and Jal Sansthan and therefore claim for ?equal pay for equal work? on the plea of discrimination under Articles 14 and 16 was without any foundation. Their Lordships observed:"from the scheme of the Act, the duties and functions assigned to the employees of Jal Nigam and Jal Sansthan, are in many respects qualitatively different. Jal Nigam is a corporation fully controlled by the State and extending the jurisdiction all over the territory of Uttar Pradesh whereas the duties and functions of Jal Sansthans are restricted to local area and under the control of local bodies. From the material produced before us, we are constrained to say that there is qualitative differences in the duties and functions discharged by the employees of Jal Nigam and Jal Sansthan and, therefore, the claim of equal pay for equal work on the plea of discrimination under Articles 14 and 16 (1) of the Constitution is without any foundation. The principle of equal pay for equal work would not be applicable where qualitative difference in functions and responsibilities is apparent. . " ( 6 ) THE question that falls for consideration in the present appeal does not involve any disparity in the pay scales admissible to the writ petitioners and those working in the MTNL. The pay scales admissible to both sets of employees are the same. What appears to have provoked the filing of the petition is an order by which the MTNL Board had decided to pay Rs. The pay scales admissible to both sets of employees are the same. What appears to have provoked the filing of the petition is an order by which the MTNL Board had decided to pay Rs. 3,000/- p. m. extra to the Junior Telecom Officers (JTOs) in view of certain other benefits like quarterly incentive and lunch allowance for attending office on Saturdays and holidays, that stood withdrawn from the date of the order granting the lump sum compensation. ( 7 ) BEFORE we refer to the said order we may briefly set out the facts giving rise to the filing of the present appeal. The Government of India, ministry of Telecommunication appears to have advertised 275 posts of JTOs against the direct recruitment quota. A merit list was prepared of candidates who were successful in the said examination and orders of appointment issued. On completion of the prescribed training the selected JTOs were required to report to the office of CGM, MTNL, New Delhi, who gave them postings. Some of those selected were placed under CGM, Northern Telecom Region (NTR), but some others were placed in the Northern Telecom Project (NTP ). Subsequent appointments made in the years 1993, 1994, 1997 followed the same pattern. ( 8 ) IN October, 2000 another company called ?bharat Sanchar Nigam ltd. ? (BSNL) was formed to take over NTR and the NTP. The writ petitioners who were working in the NTR and NTP were also transferred to BSNL and were treated as employees on deputation. The result, therefore, was that some of the JTOs recruited by the Department of Telecom were treated to be on deputation with mtnl while others were treated to be so with BSNL. Thus there was no difficulty, which arose when MTNL issued a circular dated 5th June, 2000 granting a lump sum payment of Rs. 3,000 p. m. to all Group A and B Officers working in MTNL, subject to the conditions stipulated in the circular to which we shall presently refer. BSNL, however, did not follow suit with the result that the writ petitioners working with it filed CWP No. 4606/2000 and claimed a mandamus directing the respondents to extend the benefit of the circular to all those working as JTOs with the NTR and NTP Delhi (now with BSNL ). BSNL, however, did not follow suit with the result that the writ petitioners working with it filed CWP No. 4606/2000 and claimed a mandamus directing the respondents to extend the benefit of the circular to all those working as JTOs with the NTR and NTP Delhi (now with BSNL ). ( 9 ) IN the meantime, employees working in MTNL and BSNL were all given an option for absorption in MTNL and BSNL at their choice. It is not in dispute that consequent upon the said options the JTOs joined the said organisation from 1st October, 2000 onwards. It was fairly conceded by counsel appearing for the writ petitioners in this appeal that the dispute regarding disparity in emoluments was limited to the period between 1. 4. 99 to 30. 9. 2000. In other words the claim for parity is made between employees who were working with the Department of Telecom in NTP and NTR on the one hand and those who are working on deputation with MTNL. The learned single Judge who heard the petition noted that on absorption of the employees with effect from 1. 10. 2000 in MTNL or bsnl the arrears due according to the IDA pay scales shall be disbursed to the employees which would in other words mean that there was no difficulty in so far as the payment of salary and emoluments for the period following 1. 10. 2000 was concerned. It was also noted that till BSNL finalised the absorption of the jtos fitted in the IDA pay scales such officials will be paid Rs. 2,000 p. m. on an ad-hoc basis by BSNL to be treated as advance payment against arrears receivable by them on fitment in the IDA pay scales. Having said so, the Court went on to hold that there was no difference between JTOs who are working with mtnl or BSNL/dot in terms of their service condition, promotional avenues etc. They could not, therefore, be denied the benefits which their counterparts in mtnl were getting. The Court further held that since JTOs had been alloted on a random basis to MTNL, NTR, NTP (now with BSNL), there was no justification for denying to those working in NTR and NTP similar emoluments. The Court rejected the contention that Rs. They could not, therefore, be denied the benefits which their counterparts in mtnl were getting. The Court further held that since JTOs had been alloted on a random basis to MTNL, NTR, NTP (now with BSNL), there was no justification for denying to those working in NTR and NTP similar emoluments. The Court rejected the contention that Rs. 3,000/- p. m. being paid was an advance payment liable to be adjusted out of the arrears of pay due to the JTOs on the basis of IDA pay scales. ( 10 ) WE have heard, learned counsel for the parties and perused the record. The precise question that arises for consideration is whether the writ petitioners could claim parity with their colleagues who are working on deputation with MTNL and who are entitled to certain facilities or allowances over and above their salary. The incidental question would be whether the nature of duties and the terms and conditions on which the said additional payment was being made to the deputationists were analogous to the nature of duties of the writ petitioners and the service conditions applicable to them. The question can be answered better if we extract the circular issued by the mtnl in extenso. It reads : "sub: Grant of compensation of Rs. 3,000/- p. m. to Group a and b Officers working in MTNL. In supersession of this Officer Orders of even no. dated 25th May, 2000 and 26th may, 2000, the Board or Directors of MTNL have decided to pay a compensation of rs. 3,000/- p. m. to all Group a and b officers working in MTNL. This compensation shall be payable with effect from 1. 4. 99 or from their date of joining MTNL whichever is later, till the IDA pay scale become operative for group a and b officers, subject to the following conditions : i)This compensation will not have any link with the pay of the officers. ii)With the grant of this compensation, the payment of other benefits like quarterly incentive with effect from 1. 4. 2000 and scheme for payment of Lunch allowance for attending office on Saturdays and holidays will stand withdrawn from the date of issue of this office order in respect of Group a and b officers working in MTNL. iii)All Group a and b officers will switch over to six days a week working with immediate effect. 4. 2000 and scheme for payment of Lunch allowance for attending office on Saturdays and holidays will stand withdrawn from the date of issue of this office order in respect of Group a and b officers working in MTNL. iii)All Group a and b officers will switch over to six days a week working with immediate effect. This issue with the approval of CMD MTNL. (H. L. Malik) principal Central Manager (O) mtnl Corporate Officer ? ( 11 ) A careful reading of the above would show that MTNL has, in terms of the above, decided to pay a compensation of Rs. 3,000/- p. m. This compensation, it is evident, has no connection whatsoever with the pay of the officer. More importantly, the compensation is in lieu of other benefits mentioned in paras (i), (ii) and (iii) of the above order. One of those conditions is that the officers in Group A and B switch over to six days a week with immediate effect. It is also noteworthy that the payment will dis-entitle the employees to benefits like quarterly incentive with effect from 2. 4. 2000. ( 12 ) THERE is nothing on record to suggest whether anyone of the benefits in lieu whereof the MTNL has decided to pay Rs. 3,000/- p. m. was or is admissible to the writ petitioners, who are working with the Department of telecommunication in NTP and NTR at the relevant time. That apart, it is evident from the very scheme of the circular that payment is in lieu of officers lunch allowance, for attending office on Saturdays and Sundays. There is no foundation laid in the writ petition nor was any averment pointed out to us to suggest that the writ petitioners were similarly working on Saturdays and holidays to be entitled to a similar compensatory payment towards lunch allowance or any other allowance for that matter. It is also not clear whether group A and B employees working in NTP and NTR (now BSNL), were required to attend duties six days a week as is contemplated under the circular mentioned above for employees working on deputation with the MTNL. It is also not clear whether group A and B employees working in NTP and NTR (now BSNL), were required to attend duties six days a week as is contemplated under the circular mentioned above for employees working on deputation with the MTNL. Suffice it to say that in the absence of any material to show that the duties in regard to which the additional payment has been sanctioned by the MTNL were similar to those being performed by JTOs working in NTP and NTR or BSNL, there is no question of drawing a parity in the matter of payment of allowances for such duties. As observed by the Supreme Court, the burden of proving that the nature of duties and functions discharged by the two sets of employees is similar, lies entirely upon the writ petitioners. That burden, in our opinion, has not been discharged in the present case. Simply because JTOs were recruited on the basis of a common examination or their qualification is similar or that their cadre management authority was the same at the relevant time is not conclusive. What is important is whether the nature of duties which the employees are performing in the Corporation to which they have been sent on deputation is also similar to those performed by the writ petitioners. Unless the test of similarity of duties and functions is also satisfied, a mandamus directing grant of similar benefits could not have been issued. ( 13 ) THE argument that the affidavit filed by Shri Teja Singh jaiswal establishes similarity in the nature of functions has not impressed us. That affidavit simply asserts that the recruitment rules, service conditions and promotional avenues as well as disciplinary authority was the same for all JTOs whether working in MTNL or NTR and NTP in Delhi circle. The counter-affidavit or the additional affidavit which was filed by the respondents did not acknowledge any invidious discrimination in the matter of payment of allowance by the MTNL to its employees. So also the argument that the posting orders were given at random without reference to merit does not, in our opinion, advance the case of the writ petitioners. The counter-affidavit or the additional affidavit which was filed by the respondents did not acknowledge any invidious discrimination in the matter of payment of allowance by the MTNL to its employees. So also the argument that the posting orders were given at random without reference to merit does not, in our opinion, advance the case of the writ petitioners. If the grievance implicit in that argument is that writ petitioners should have been sent on deputation to MTNL instead of sending others randomly picked up, the same could have been made well in time when the process of posting and allocation was undertaken. It is too late now after so many years for the writ petitioners to argue that the original posting itself was discriminatory. The posting and appointment orders placed the JTOs in a substantive pay scale which was uniformly applicable to all. On account of their posting and by reason of the facilities that may be available in the organisation where they are sent, officers who are given a posting in its parent department, where such facilities are not available, cannot complain. If the facilities and incentives were similar in the Department of Telecommunications and in MTNL and MTNL has now decided to lump them into a payment of Rs. 3,000/- p. m. , there is no juristic principle on which the lending employer can be forced by the employees who had continued with it to introduce a similar policy or scheme. It is not uncommon that an employee who is sent on deputation may on account of the nature of duties which he performs in the borrowing department have certain advantages in terms of allowances which are peculiar to the position which he holds or the duties he discharges. Simply because he enjoys such additional facilities or benefits would not entitle those in the parent department to demand from their employer similar benefits or incentives. The principle of ?equal pay for equal work? could apply to cases where there is in essence a discrimination between one employee and the other that is not justifiable on any rational basis. It will not have any application to cases where by reason of posting of an officer to a department or organisation outside the parent department the officer or employee gets certain advantages which would stop the day he is repatriated to his parent department. It will not have any application to cases where by reason of posting of an officer to a department or organisation outside the parent department the officer or employee gets certain advantages which would stop the day he is repatriated to his parent department. It is true that in such cases where such benefits are available outside the parent department, there may always be certain amount of competition among employees wanting to go on deputation but then the remedy lies in seeking redress against arbitrary deputation and not against the lending employer who cannot be forced to give benefits or alter the scheme of payments qua a large number of employees that still work with him only because one of them sent out on deputation enjoys some better benefits. The learned single Judge was, therefore, in error in having allowed the writ petition and in issuing a mandamus to the appellants to introduce a similar payment for the writ petitioners. ( 14 ) IN the result, this appeal succeeds and is hereby allowed. The judgment and order passed by the learned single Judge is set aside and the writ petition filed by the respondents dismissed but in the circumstances without any order as to costs. .