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2017 DIGILAW 1477 (JHR)

State of Jharkhand v. Bhaskar Nandan

2017-08-19

D.N.PATEL, RATNAKER BHENGRA

body2017
ORDER : D.N. Patel, J. This Letters Patent Appeal has been preferred against the judgment and order delivered by learned Single Judge in W.P. (S) No. 97 of 2014 dated 16th May, 2014, whereby, the learned Single Judge has allowed the petition preferred by the respondents and granted equal pay, which is at Rs. 14,748/- to the respondents (original petitioners), which is at par with the other similarly situated contractual Data Entry Operators/Computer Operators, in the State of Jharkhand. Being aggrieved and dissatisfied with by this judgment and order delivered by learned Single Judge, the State of Jharkhand has preferred the present Letters Patent Appeal. 2. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that the respondents are the original petitioners. They instituted W.P. (S) No. 97 of 2014 for getting equal pay, which the other similarly situated contractual Data Entry Operators/Computer Operators were getting in Sachivalay/ Offices attached of different Departments with Sachivalay. 3. The respondents (original petitioners) are working as Data Entry Operators/Computer Operators since 2008 and 2010. 'These respondents (original petitioners) are working in Commercial Taxes Department in various districts including the District of Ranchi, within the State of Jharkhand. Their computer work in different Districts within the State of Jharkhand is well connected with the work of Sachivalay through computers. Their work is exactly similar to the work which is being done by Data Entry Operators/Computer Operators who are working in the Sachivalay. There is not an iota of difference except big building of Sachivalay and smaller buildings in the districts. Otherwise, their nature of duty is same and their working hours and recess hours are also same. Neither there is any difference in the nature of work, nor, there is any difference in their duties, nor there is any difference in working hours and recess hours and all the work of the Commercial Taxes Department of all the Districts in the State of Jharkhand is absolutely well connected with the work which is being done by similarly situated Data Entry Operators/Computer Operators who are working at Sachivalay and their work is connected with each other. 4. There cannot be difference of salary amongst those who are working in the nearby vicinity of Ranchi and those who are working at far away places from Ranchi. 4. There cannot be difference of salary amongst those who are working in the nearby vicinity of Ranchi and those who are working at far away places from Ranchi. There cannot be difference in salary for these Data Entry Operators/Computer Operators who are working on contractual basis in other Departments of Sachivalay which are well connected with the districts. 5. Much has been argued out by the counsel for the appellants on the basis of circular issued by the Finance Department, State of Jharkhand dated 20th April, 2013 [Annexure 9 to the memo of W.P. (S) No. 97 of 2014] which enhances the monthly emoluments of the Data Entry Operators/Computer Operators. It is argued out by the counsel for the appellants that these enhancements of emoluments of Data Entry Operators/Computer Operators are only for those who are working in Sachivalay / Attached offices of different Departments. We are not agreeing this contention because the words used in the aforesaid circular of Finance Department dated 20th April, 2013 are even applicable to those Data Entry Operators/Computer Operators who are working in Sachivalay and those who are working with the attached offices of different departments in the State of Jharkhand. The whole circular is meant for contractual workers. Thus, there cannot further classification amongst the contractor Data Entry Operators/Computer Operators. 6. Moreover, looking to the aforesaid circular of the Finance Department dated 20th April, 2013, the said circular is applicable to all the Data Entry Operators/Computer Operators : (a) who are working in the Sachivalay, and (b) those who are working in attached offices of different Departments within the State of Jharkhand. 7. The respondents (original petitioners) are working as Data Entry Operators/Computer Operators on a contractual basis in Commercial Taxes Department in various districts including Ranchi district. Thus, they are working in the attached offices of different Departments. 8. Even otherwise also, the respondents (original petitioners) are working on Computer in Commercial Taxes Department in different districts and their work is connected with the work of Sachivalay through Computers. In this manner also, they are working in attached offices of different departments. 9. Even otherwise also, there cannot be different emoluments for similarly situated contractual employees, especially those who are Data Entry Operators/Computer Operators, who are working in Ranchi and who are working in the different districts of the State of Jharkhand. 10. In this manner also, they are working in attached offices of different departments. 9. Even otherwise also, there cannot be different emoluments for similarly situated contractual employees, especially those who are Data Entry Operators/Computer Operators, who are working in Ranchi and who are working in the different districts of the State of Jharkhand. 10. "Equal pay for equal work" principle is applicable in the facts of the present case, because : (a) Other Data Entry Operators/Computer Operators on a contractual basis working in Sachivalay are getting higher emolument, which is at Rs.14,778/- for the year 01.04.2013 ends as on 31st March, 2014 and their duties are the same to that of the respondents (original petitioners). (b) There cannot be any difference of emoluments in Data Entry Operators / Computer Operators when their work is well connected with each other i.e. the work done by the Data Entry Operators/Computer Operators at Sachivalay and the work done by Data Entry Operators/Computer Operators in the different districts within the State of Jharkhand especially in Commercial Taxes Department. (c) In fact, Commercial Taxes Department is the one Department in the whole State of Jharkhand. (d) There is no difference of work between the Data Entry Operators/Computer Operators working in Sachivalay and the Data Entry Operators/Computer Operators working attached offices of different departments, especially of Commercial Taxes Department. Same work is being done, at both places and their work is connected with each other. 11. It has been held by Hon'ble Supreme Court in the case of Mewa Ram Kanojia v. A.I.I.M., reported in (1989) 2 SCC 235 , in paragraph 4 as under :- "4. The doctrine of "Equal pay for equal work" is not expressly declared a fundamental right under the Constitution. But Article 39(d) read with Articles 14 and 16 of the Constitution declares the constitutional goal enjoining the State not to deny any person equality before law in matters relating to employment including the scales of pay. Article 39(d) read with Articles 14 and 16 of the Constitution enjoins the State that where all things are equal, persons holding identical posts, performing identical and similar duties under the same employer should not be treated differently in the matter of their pay. Article 39(d) read with Articles 14 and 16 of the Constitution enjoins the State that where all things are equal, persons holding identical posts, performing identical and similar duties under the same employer should not be treated differently in the matter of their pay. The doctrine of "Equal pay for equal work" is not abstract one, it is open to the State to prescribe different scales of pay for different posts having regard to educational qualifications, duties and responsibilities of the post. The principle of "equal pay for equal work" is applicable when employees holding the same rank, performing similar functions and discharging similar duties and responsibilities are treated differently. The application of the doctrine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay. The principle of "Equal pay for equal work" has been enforced by this Court in Randhir Singh v. Union of India; Dhirendra Chamoli v. State of U.P.; V.J. Thomas v. Union of India; P. Savita v. Union of India; Bhagwan Dass v. State of Haryana and Jaipal v. State of Haryana. In all these cases this Court granted relief on the application of the doctrine of "Equal pay for equal work"." (Emphasis supplied) 12. It has further been held by Hon'ble Supreme Court in the case of State of Haryana v. Charanjit Singh, reported in (2006) 9 SCC 321 , in paragraph 19 as under :- "19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of Agriculture and Technology and Tarun K. Roy lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ Court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors. (Emphasis supplied) 13. It has further also held by Hon’ble Supreme Court in the case of State of Punjab v. Jagjit Singh, reported in (2017) 1 SCC 148 , in paragraphs, 57, 58 and 59 as under :- "57. There is no room for any doubt that the principle of "equal pay for equal work" has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the Courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarised by us in para 42 hereinabove. The principle of "equal pay for equal work" has also been extended to temporary employees (differently described as work-charge, daily wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees has been summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again. 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. 59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below : "7. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular : (a) Remuneration which provides all workers, as a minimum, with : (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays." (Emphasis supplied) India is a signatory to the above Covenant having ratified the same on 10-4-1979. There is no escape from the above obligation in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of "equal pay for equal work" constitutes a clear and unambiguous right and is vested in every employee-whether engaged on regular or temporary basis. (Emphasis supplied) 14. (Emphasis supplied) 14. It further appears that the whole dispute involved in the writ petition is only for the year 01.04.2013 to 31st March, 2014 i.e. for 12 months. The respondents (original petitioners) are demanding Rs. 14,748/-, whereas, the State Government is giving Rs. 8,750/- per month. Thus, per month difference per petitioner comes to Rs. 6,000/- approximately and annually it is around Rs. 72,000/-. The total respondents are 58 and, hence, the total difference will be Rs. 41,76,000/-. 15. Much has been argued based upon the Finance Department's circular dated 20th April, 2013 (Annexure 9 to the memo of the writ petition), free-hand translation of Paragraph 2 of which is as under :- "2. The contractual employees of Secretariat/attached offices are demanding remuneration with dearness allowance as per the superannuated Government employees, which is against the admissible dearness allowance of 22% as contemplated in Resolution No.965/Vi. Dated 25.03.2009, issued by Finance Department and also against the amount fixed vide Resolution No. 157/Vi. Dated 20.01.2012 issued by the Finance Department." 16. In view of the aforesaid Clause, these respondents (original petitioners) are working as Data Entry Operators/Computer Operators in Commercial Taxes Department in the different districts of the State of Jharkhand. Hence, they are covered by the phraseology, "............... / Attached Offices of different Departments ............. ....", especially when the original petitioners are working in Commercial Taxes Department, which is one Department in the State and from Sachivalay it covers all the offices in the different districts of the State of Jharkhand. 17. Be that as it may, as per the Government circular of Finance Department dated 20th April, 2013 (Annexure 9 to the memo of writ petition), the said circular is applicable to the respondents (original petitioners), as they are working in the attached offices of Commercial Taxes Department, as sated in paragraph 2 of the said circular. 18. Thus, no error has been committed by the learned Single Judge in deciding the writ petition being W.P. (S) No. 97 of 2014 and we see no reason to take any other view than what is taken, by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.