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2020 DIGILAW 142 (UTT)

AMIT SINGH v. BHUPENDRA KAUR ALULAK

2020-02-26

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J. It could be one of the examples of a malicious intent of the State counsel, to defend the contemnor, where an endeavour has been made by the learned Standing Counsel for the State to brutally assassinate the valuable time of the Court. The writ Court in the writ petition, which was preferred by the petitioner had by an order dated 08.11.2017, directed the respondent to consider the aspect of remittance of minimum of pay scale to the petitioner based upon the criteria as it has been laid down by the Hon'ble Apex Court in the judgement rendered in State of Punjab & Others Vs. Jagjit Singh & Others [ (2017) 1 SCC 148 ]. Meaning thereby, the consideration which was directed to be made by the respondent was strictly in adherence to the principles and norms as laid down by the judgement of Jagjit Singh's case (supra). 2. On its non-compliance, the contempt was filed by the petitioner on 15.12.2019, the reference of the said date of filing of contempt is being deliberately made in the order in order to answer the question which has been raised by the learned counsel for the respondent, in relation to the embargo of Section 20 of the Contempt of Courts Act. On the said contempt petition, the notices were issued on 03.01.2020 to the respondents, and in compliance thereto, the steps was taken on 08.01.2020, and the respondents have filed their compliance affidavit on 14.02.2020, wherein since there was a non-compliance of the judgement dated 08.11.2017, a direction was further issued on 04.02.2020, for the Executive Engineer to appear before this Court in order to show cause as to why the order has not been strictly complied with as directed. The Executive Engineer had placed on record an affidavit of compliance dated 12.02.2020, wherein he has annexed an order dated 23.01.2020, contending thereof that the direction as issued by the writ Court by the interim order dated 08.11.2017 has been complied with. 3. After having heard the learned counsel for the parties at length, this Court during course of arguments was called upon to answer few arguments, which have been extended by the learned Counsel for the State, while defending the contemnor with regards to the tenability of the contempt itself. 3. After having heard the learned counsel for the parties at length, this Court during course of arguments was called upon to answer few arguments, which have been extended by the learned Counsel for the State, while defending the contemnor with regards to the tenability of the contempt itself. He submits that at the first instance that the contempt proceedings would be barred by Section 20 of the Act, because the compliance has been sought for of an interim order has been passed in 2017. 4. There are two fold reasoning as per the opinion of this Court, to answer the said argument, as extended by the learned Standing Counsel for the State. (1) The nature of interim order for the determination of minimum pay scale which would have been payable to the petitioner has got a recurring act, the cause to comply accrues each day till the person is rendering his services with the respondent on a daily wages basis, hence the compliance was required to be made by the respondents consistently to the interim order passed by this Court. (2) The plea of Section 20 is not available to the respondent for the reason being that the said plea is not agitated in the pleadings of the response submitted by him rather to the contrary the compliance of the same has been filed. (3) The respondents cannot be permitted to take the benefit of their own lethargy, of not taking decision for a long time and sitting over it, because a daily wage employee will always till last would avoid to attract the wrath of employer due to filing of the contempt against him which may be quite reasonable a reason for delayed filing of the contempt. 5. After filing of the compliance affidavit by respondents, now the contempt Court has only to see as to whether the interim order passed by this Court happens to be strictly complied with by the respondent or not. 6. In answering to the said question, the learned Standing Counsel for the State has placed reliance on a Division Bench's judgement as rendered in bunch of Special Appeals; with leading Special Appeal No. 302 of 2019, State of Uttarakhand and Others Vs. Pankaj Prasad, particularly the reference is made by the learned Standing Counsel to para 29, 31 and 32 of the said judgement which are quoted hereunder:- “29. Pankaj Prasad, particularly the reference is made by the learned Standing Counsel to para 29, 31 and 32 of the said judgement which are quoted hereunder:- “29. Holding that the State was justified in relying on these two decisions, Justice U.U. Lalit further observed that the subsequent judgments had not noted the decisions of the Supreme Court in Joginder Singh[2] and Zabar Singh[3]; they would proceed on the basis that, even when the teachers from both the cadres were discharging similar duties and responsibilities, the decision of the State Government to maintain different identities of these two cadres was not objectionable, and there could be an inter se distinction between the two cadres; even where both the cadres were enjoying the same pay structure, the Supreme Court, in Joginder Singh[2] and Zabar Singh[3], had not accepted the submission that the chances of promotion ought to be similar; if a pay structure was normally to be evolved keeping in mind factors, such as “method of recruitment" and “employer's capacity to pay", and if the limitations or qualifications to the applicability of the doctrine of ‘equal pay for equal work' admitted distinction on the ground of the process of recruitment, the stand of the State Government was not unreasonable or irrational; how best to use or utilise the resources, and what emphasis should be given to which factors, were all policy matters; in the light of the decisions of the Supreme Court in Joginder Singh[2] and Zabar Singh[3], the State was justified in having two different streams or cadres; if by process of judicial intervention any directions were issued to make available the same salaries and emoluments to Niyojit Teachers, it would create tremendous imbalance and cause great strain on budgetary resources; and the modalities in which expert teachers could be found, whether by giving them better scales and/or by insisting on threshold ability which would be tested through examinations such as TET Examination, were for the Executive to consider. 31. While Mr. Anil Kumar Bisht, learned Standing Counsel, may be justified in his submission that the learned Single Judge has not undertaken the exercise of factually determining, in the order under appeal, whether the respondents-writ petitioners, who seek payment of the minimum of the regular pay scales as are being extended to employees appointed in regular posts, are entitled for such benefits; we cannot also ignore the submission of Mr. Amar Murti Shukla, learned counsel for the respondents-writ petitioners, that the State Government had implemented the order, passed in Manwar Singh Rawat & Others Vs. State of Uttarakhand and others (Order in Writ Petition (S/S) No. 949 of 2017 and batch dated 12.05.2017), by issuing Government Order dated 08.10.2018; the petitioners in Manwar Singh Rawat were similarly situated as that of the respondents-writ petitioners herein; and some of them, holding the very same posts which are being held by the respondent-writ petitioners, were granted the benefit of the minimum of the regular pay scales. 32. This Court would not, in proceedings under Article 226 of the Constitution of India, undertake a factual determination as to whether the functions discharged by the respondents-writ petitioners are identical or similar to those holding regular posts, as this exercise is required to be undertaken, in the first instance, by the authorities concerned. Consequently this Court would, ordinarily, not issue a mandamus directing the appellants to extend the benefit of the minimum of the regular pay scales to the respondents-writ petitioners. The appellant-State should, however, undertake such an exercise, and determine whether the respondents-writ petitioners herein satisfy the various tests laid down by the Supreme Court, in Jagjit Singh[1] and The Bihar Secondary Teachers Struggle Committee, Munger[4], to claim the benefit of being paid the minimum of the regular pay scales applicable to employees holding regular posts." 7. This Court is agonized to observe that the reference made to the Special Appellate Court's judgement was a determination which was made by the Division Bench on merits of the matter wherein in the writ petition, the claim was made for regularization of services and for the payment of minimum of pay scale. The nicety of the argument as extracted has been based on the findings recorded in paras 29, 31 and 32 (already referred above) the said ratio could have been relied by the respondent only for the purposes of deciding the writ itself involving an identical issue or question and not the contempt proceedings where only interim order is intended to be directed to be complied with. Hence, this plea is not available at this stage of the proceedings, though it might be open for him to place reliance on Division Bench judgement when the writ petition itself is adjudicated on merits. 8. Hence, this plea is not available at this stage of the proceedings, though it might be open for him to place reliance on Division Bench judgement when the writ petition itself is adjudicated on merits. 8. He further submits that the order of compliance dated 23.01.2020, since is based upon the parameters laid down by the Government Order dated 04.12.2010, laying down the manner in which the determination of the benefits of minimum of pay scale is to be made in relation to the compassionate appointment, appointed on daily wages has to be done, hence he is drawing an inference as if the said reference of the Government Order would entail a consideration of the ratio as laid down by the Hon'ble Apex Court in Jagjit Singh's case (supra). 9. This Court is not in agreement with the arguments of the learned Standing Counsel for the reason being that if the judgement of Jagjit Singh's case (supra) itself is taken into consideration in its entirety and particularly the reference of which has been made by the learned Standing Counsel to para 60 by referring that para 60 parameters, is only required to be followed for determining equal pay for equal work, which is required to be paid to an employee for equal work rendered by him or her. This Court is not in agreement for the reason being that para 60 is not the wider principles laying down the parameters of determination in Jagjit Singh's case (supra) but rather it is the conclusion which is required to be followed. 10. The principal condition which is required to be followed are those which has been laid down by the Hon'ble Apex Court, as provided in para 42 of the said judgement which is quoted hereunder:- 42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of ‘equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of ‘equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of ‘equal pay for equal work'. Our consideration, has led us to the following deductions:- 42.1 The ‘onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of ‘equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see – the Orissa University of Agriculture & Technology case10, Union Territory Administration, Chandigarh v. Manju Mathur15, the Steel Authority of India Limited case16, and the National Aluminum Company Limited case18). 42.2 The mere fact that the subject post occupied by the claimant, is in a “different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of ‘equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see – the Randhir Singh case1, and the D.S. Nakara case2). 42.3 The principle of ‘equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see – the Randhir Singh case1). 42.3 The principle of ‘equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see – the Randhir Singh case1). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see – the Federation of All India Customs and Central Excise Stenographers (Recognized) case3, the Mewa Ram Kanojia case5, the Grih Kalyan Kendra Workers' Union case6 and the S.C. Chandra case12). 42.4 Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of ‘equal pay for equal work' (see – the Randhir Singh case1, State of Haryana v. Haryana Civil Secretariat Personal Staff Association9, and the Hukum Chand Gupta case17). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature. 42.5 In determining equality of functions and responsibilities, under the principle of ‘equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see – the Federation of All India Customs and Central Excise Stenographers (Recognized) case3 and the State Bank of India case8). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of ‘equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia4, and the Grih Kalyan Kendra Workers' Union case6). 42.6 For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see – the Orissa University of Agriculture & Technology case10). 42.6 For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see – the Orissa University of Agriculture & Technology case10). 42.7 Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - ‘selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as – merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia4). 42.8 If the qualifications for recruitment to the subject post vis-a- vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see – the Mewa Ram Kanojia case5, and Government of W.B. v. Tarun K. Roy11). In such a cause, the principle of ‘equal pay for equal work', cannot be invoked. 42.9 The reference post, with which parity is claimed, under the principle of ‘equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey7, and the Hukum Chand Gupta case17). 42.10 A comparison between the subject post and the reference post, under the principle of ‘equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see – the Harbans Lal case23). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand13). 42.11 Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand13). 42.11 Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of ‘equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see – the State Bank of India case8). 42.12 The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of ‘equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association9). 42.13 The parity in pay, under the principle of ‘equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay- scale. The principle of ‘equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association14). 42.14 For parity in pay-scales, under the principle of ‘equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur15). Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur15). 42.15 There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see – the Hukum Chand Gupta case17), when the duties are qualitatively dissimilar. 42.16 The principle of ‘equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see – the Hukum Chand Gupta case17). 42.17 Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of ‘equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of ‘equal pay for equal work' would not apply (see – the S.C. Chandra case12, and the National Aluminum Company Limited case18)." 11. Having gone through the order of compliance dated 23.01.2020 and when the same is read in consonance to the parameters laid down in para 42 of the said judgement of Jagjit Singh's case (supra), which was directed to be complied with by the interim order passed by this Court on 08.11.2017, I am of the view that none of the covenants as provided to be adhered to while considering the grant of equal pay for equal work has been followed by the order dated 23.01.2020. Thus, merely because of the fact that respondent while passing the order dated 23.01.2020, has extracted the number of SLPs, which was decided by the Hon'ble Apex Court in the judgement of Jagjit Singh's case (supra), will not amount to be a compliance of the directions issued by the judgement of Jagjit Singh's case (supra) while passing the order dated 23.01.2020. 12. 12. There is another aspect which is remarkable to be considered is that the respondent in the writ petition had filed a counter affidavit; but surprisingly, no stay vacation has been filed by them. Meaning thereby, they themselves have submitted to the interim order as passed thereto, to be complied with by them. Hence, in that view of the matter, the order of 23.01.2020, as passed by the Executive Engineer is not a compliance but rather evasive and a deliberate and intentional attempt to flout the orders of the Court in order to avoid its compliance by making assertions which were irrelevant and contrary to the conditions laid down in para 42 of the judgement of Jagjit Singh's case (supra). 13. In view of the aforesaid reasons, I hold that the order passed by this Court has not been complied with and hence a charge is framed against the respondent in the following manner:- “to show cause within a period of two weeks from today as to why the charge for a deliberate and intentional non-compliance of the order dated 18.11.2017, be framed against him and also with regards to a deliberate attempt to mislead the Court by passing an order which apparently is not in adherence to the principles of Jagjit Singh's case (supra)." The Executive Engineer is directed to appear in person on the next date fixed i.e. 16.03.2020.