Full Judgment Text
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PETITIONER:
HARBANS LAL & ORS.
Vs.
RESPONDENT:
STATE OF HIMACHAL PRADESH & ORS.
DATE OF JUDGMENT01/08/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
AHMADI, A.M. (J)
CITATION:
1989 SCR (3) 662 1989 SCC (4) 459
JT 1989 (3) 296 1989 SCALE (2)200
ACT:
Constitution of India, 1950: Articles 32, 39(d)--Equal
pay for equal work--Carpenters in Wood Working Centre,
Himachal Pradesh State Handicrafts Corporation--Whether
entitled to claim wages payable to their counterparts in
regular service.
HEADNOTE:
The petitioners employed as daily rated carpenters at
the Wood Working Centre of the Himachal Pradesh State Handi-
crafts Corporation sought enforcement of their fundamental
right to have "equal pay for equal work" in terms paid to
their counterparts in regular services, or in the alterna-
tive, the minimum wages prescribed by the Deputy Commission-
er for like categories of workmen.
The petitioners’ claim was resisted by the respondents.
Their case was that the unit where the petitioners were
working was a factory registered under the Factories Act,
that they were treated as industrial workmen and given all
benefits due to them under the various labour legislations,
that the Government had not fixed the minimum wages payable
to the workmen engaged in the Corporation or other like
industries but the Corporation had adopted for its workmen
the minimum wages payable for similar work in the construc-
tion industry, and that there were no regular employees of
the petitioners’ categories in its establishment and, as
such, the question of payment to them the pay admissible to
regular employees does not arise.
Dismissing the writ petition,
HELD: 1. Unless it is shown that there is a discrimina-
tion amongst the same set of employees by the same master in
the same establishment, the principle of "equal pay for
equal work" cannot be enforced. A comparison cannot be made
with counterparts in other establishments with different
management, or even in establishments in different geograph-
ical location though owned by the same master. [668B]
In the instant case, the petitioners were employed by a
company incorporated under the Companies Act. They cannot
claim wages pay-
663
able to their counterparts in government service. [668C]
Meva Ram Kanojia v. All India Institute of Medical
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Sciences & Anr., [1989] 2 SCC 235, referred to.
Randhir Singh v. Union of India, [1982] 1 SCC 618, ex-
plained.
2. The principle of ’equal pay for equal work’ has no
mechanical application in every case of similar work. No two
jobs by the mere nomenclature or by the volume of work
performed can be rated as equal. It is not just a comparison
of physical activity. It requires the consideration of
various dimensions of the job. The accuracy required by the
job and the dexterity it entails may differ from job to job.
It cannot be evaluated by the mere averments in the self-
serving affidavits or counter-affidavits of the parties. It
must be left to be evaluated and determined by expert body.
[666D, 668D-E]
In the instant case, however, the Corporation had no
regularly employed carpenters. Even assuming that the peti-
tioners’ jobs were comparable with the counterparts in
Government service they could not enforce the right to equal
pay for equal work. [667G, 668A]
State of U.P. v. J.P. Chaurasia, [1989] 1 SCC 121; Meva
Ram Kanojia v. All India Institute of Medical Sciences &
Anr., [1989] 2 SCC 235 and Federation of All India Customs
and Central Excise Stenographers (Recognised) v. Union of
India, [1988] 3 SCC 91, referred to.
3. The order issued by the Deputy Commissioner on March
20, 1986 in exercise of his powers under the H.P. Financial
Rules prescribing minimum wages was applicable only to
skilled and unskilled workers in Class IV employees in
Government service. The benefit of the rates prescribed
under that order cannot be extended to the petitioners
unless the Government makes it applicable to the employees
of the Corporation. [668F-G]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 548 of
1987.
(Under Article 32 of the Constitution of
India).
M.C. Dhingra for the Petitioners.
Kapil Sibal, K.G. Bhagat, A.K. Ganguli, Ms.
Kamini Jaiswal,
664
Ms. Aruna Mathur, A. Mariarputham, Harminder Lal and Naresh
K. Sharma for the Respondents.
The Judgment of the Court was delivered by
K. JAGANNATHA SHETTY, J. The petitioners are carpenters
1st and 2nd grade employed at the Wood Working Centre of the
Himachal Pradesh State Handicrafts Corporation (the "Corpo-
ration"). They are termed as daily rated employees. In this
petition under Article 32 of the Constitution, they are
seeking enforcement of their fundamental right to have
"equal pay for equal work". They demand payment in terms
paid to their counterparts in regular services. They want
the same pay of the regular employees as carpenters or in
the alternative, the minimum wages prescribed by the Deputy
Commissioner for like categories of workmen. They also seek
regularisation of their services with the benefits of pen-
sion, gratuity etc.
The Corporation has resisted the petitioners’ claim. The
case of the Corporation is that the unit where the petition-
ers are working is a factory registered under the Factories
Act. The petitioners are treated as industrial workmen
and .are given all benefits due to them under the various
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labour legislations. The Government has not fixed the mini-
mum wages payable to the petitioners engaged in the Corpora-
tion or other like industries, but the Corporation has
adopted the minimum wages payable for similar work in the
construction industry. They are being paid the same wages as
are payable to carpenters, painters and carpenters’ helpers
engaged in the construction industry. They are given bonus
under the Bonus Act and provident fund benefits under the
Employees’ Provident Fund Act. It is also stated that the
petitioners are supplied with the necessary tools for carry-
ing out their work and also working uniforms like aprons and
overalls.
The Corporation has clearly stated that there are no
regular employees of the petitioners’ categories in its
establishment and, as such, the question of payment to the
petitioners, the pay admissible to regular employees does
not arise.
A little more information about the purpose and object
of the Corporation would be useful for proper understanding
of the case. The Corporation is a company which has been
incorporated under the Companies Act, 1956. The main object
of the Corporation as seen from the Memorandum of Associa-
tion is to preserve the traditional arts and crafts and also
to popularise handicrafts and handloom items
665
in the State of Himachal Pradesh and other parts of the
country and abroad. In order to achieve this primary objec-
tive, the Corporation gives training to artisans, weavers
and craftsmen in various traditional arts and crafts. During
the period of training, the trainees are paid a stipend by
the Corporation. Upto 31st March, 1987, the Corporation has
imparted training to as many as 1662 persons in different
areas like carpet weaving, handloom weaving, painting, metal
crafts, wood carving, etc. Apart from giving training, the
Corporation also ensures marketing support to the artisans
and craftsmen by purchasing their products at remunerative
prices and sell them through the marketing network of the
Corporation. It is thus a service oriented organisation
helping the village artisans and craftsmen to produce and
market their products on remunerative prices. It is said
that the village artisans and craftsmen make different items
on a piece rate basis and in some cases, they execute the
work in their own homes.
The financial aspect of the Corporation is stated to be
not encouraging, and indeed, it is disappointing. It has
suffered huge loss and the total losses accumulated hitherto
is Rs.69.77 lakhs. Nonetheless, for the purpose of preserv-
ing and promoting traditional arts and crafts, the Corpora-
tion has been kept alive. But to avoid or minimise further
loss, it is stated that the Corporation has reduced its
overheads and maintained only the administrative staff in
the production centers at different parts of the State and
no permanent craftsmen are employed.
With these facts, we may now turn to the principle upon
which the petitioners’ case is rested. The principle of
"equal pay for equal work" is not one of the fundamental
rights expressly guaranteed by our Constitution. The princi-
ple was incorporated only under Article 39(d) of the Consti-
tution as a Directive Principle of State Policy. Perhaps,
for the first time, this Court in Randhir Singh v. Union of
India, [1982] 1 SCC 618 has innovated that it is a constitu-
tional goal capable of being achieved through constitutional
remedies. There the Court pointed out that that principle
has to be read into Article 14 of the Constitution which
enjoins the State not to deny any person equality before the
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law or the equal protection of the law and also to Article
16 which declares that there should be equality of opportu-
nity for all citizens in matters relating to employment or
appointment to any office under the State. Randhir Singh
case was concerned with a driver-constable in the Delhi
Police Force under the Delhi Administration. He claimed
equal salary for equal work at that of other drivers. The
Court found that the petitioner therein performed the same
func-
666
tions and duties as other drivers in the service of Delhi
Administration. The Court, therefore, directed the Central
Government to fix the pay scale of the petitioner on par
with his counterparts doing identical work under the same
employer.
In the immediate aftermath of the decision in Randhir
Singh case, there were bumper cases filed in this Court for
enforcement of the right to "equal pay for equal work",
perhaps little realising the in-built restrictions in that
principle. It may not be necessary here to refer to all
those decisions since almost all of them have been consid-
ered and explained in the recent two decisions to which one
of us was a party (K. Jagannatha Shetty, J.). Reference may
be made to: (i) State of U.P. v. J.P. Chaurasia, [1989] 1
SCC 121 and (ii) Meva Ram Kanojia v. All India Institute of
Medical Sciences and Anr., [1989] 2 SCC 235. In Chaurasia
case the question arose whether it was permissible to have
two different pay scales in the same cadre of Bench Secre-
taries of the Allahabad High Court who were for all practi-
cal purposes performing similar duties and having same
responsibilities. The Court held that the principle of
"equal pay for equal work" has no mechanical application in
every case of similar work. Article 14 permits reasonable
classification rounded on rational basis. It is, therefore,
not impermissible to provide two different pay scales in the
same cadre on the basis of selection based on merit with due
regard to experience and seniority. It was pointed out that
in service, merit or experience could be the proper basis
for classification to promote efficiency in administration
and he or she learns also by experience as much as by other
means. Apart from that, the Court has expressly observed
that the higher pay scale to avoid stagnation or resultant
frustration for lack of promotional avenues may also be
allowed.
Meva Ram Kanojia is the most recent decision which has
exhaustively dealt with all the principles bearing on the
question of equal pay for equal work in the light of all the
previous decisions of this Court. There the petitioner was a
"Hearing Therapist" in the All India Institute of Medical
Sciences. He claimed pay scale admissible to "Senior Speech
Pathologist", "Senior Physiotherapist", "Senior Occupational
Therapist", "Audiologist", and "Speech Pathologist". His
case was based on the allegations that he was discharging
same duties and performing similar functions as "Senior
Speech Therapist", "Senior Physiotherapist", "Senior Occupa-
tional Therapist", "Audiologist" and "Speech Pathologist".
But the Court held that the principle of equal pay for equal
work cannot be invoked invariably in every kind of service
particularly in the area of professional services. It was
also held
667
that it is open to the State to classify employees on the
basis of qualifications, duties and responsibilities of the
posts concerned. If the classification has reasonable nexus
with the objective sought to be achieved, efficiency in the
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administration, the State would be justified in prescribing
different pay scales.
Reference may also be made to the decision in Federation
of All India Customs and Central Excise Stenographers
(Recognised) v. Union of India, [1988] 3 SCC 91. There the
Personal Assistants and Stenographers attached to the Heads
of Department in Customs and Central Excise Department of
the Ministry of Finance made a claim for parity of wages
with the Personal Assistants and Stenographers attached to
Joint Secretaries and Officers above them in Ministry of
Finance. The Court while rejecting the claim expressed the
view (at 100):
"But equal pay must depend upon the
nature of the work done, 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.
One cannot deny that often the difference is a
matter of degree and that there is an element
of value judgment by those who are charged
with the administration in fixing the scales
of pay and other conditions of service. So
long as such value judgment is made bona fide,
reasonably on an intelligible criterion which
has a rational nexus with the object of dif-
ferentiation, such differentiation will not
amount to discrimination. It is important to
emphasize that equal pay for equal work is a
concomitant of Article 14 of the Constitution.
But it follows naturally that equal pay for
unequal work will be a negation of that
right."
Thus the law relating to equal pay for equal work has
been practically hammered out and very little remains for
further innovation.
In the light of the aforesaid principles, we may now
consider whether the equality claims of the petitioners
could be allowed. We have carefully perused the material on
record and gave our anxious consideration to the question
urged. From the averments in the pleadings of the parties it
will be clear that the Corporation has no regularly employed
carpenters. Evidently the petitioners are claiming wages
payable to the carpenters in Government service. We do not
think that
668
we could accept their claim. In the first place, even assum-
ing that the petitioners’ jobs are comparable with the
counterparts in the government service, the petitioners
cannot enforce the right to "equal pay for equal work". The
discrimination complained of must be within the same estab-
lishment owned by the same management. A comparison cannot
be made with counterparts in other establishments with
different management, or even in establishments in different
geographical locations though owned by the same master.
Unless it is shown that there is a discrimination amongst
the same set of employees by the same master in the same
establishment, the principle of "equal pay for equal work"
cannot be enforced. This was also the view expressed in Meva
Ram Kanojia v. A.I.I.M.S., [1989] 2 SCC 235 at 245. In the
instant case, the petitioners are employed by a company
incorporated under the Companies Act. They cannot claim
wages payable to their counterparts in government service.
Secondly, it may be noted that the petitioners are
carpenters; better called as craftsmen. By the general
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description of their job, one cannot come to the conclusion
that every carpenter or craftsmen is equal to the other in
the performance of his work. The two jobs by the mere nomen-
clature or by the volume of work performed cannot be rated
as equal. It is not just a comparison of physical activity.
It requires the consideration of various dimensions of the
job. The accuracy required by the job and the dexterity it
entails may differ from job to job. It cannot be evaluated
by the mere averments in the self serving affidavits or
counter-affidavits of the parties. It must be left to be
evaluated and determined by expert body. The principal claim
of the petitioners therefore fails and is rejected.
The next contention that the petitioners should be paid
at least the minimum wages prescribed by the Deputy Commis-
sioner under Exhibit P. 2 dated March 20, 1986 cannot also
be accepted. Ex. P. 2 was issued by the Deputy Commissioner
in the exercise of his powers under the H.P. Financial
Rules. It is applicable only to skilled and unskilled work-
ers in class IV employees in Government service. It has not
been extended to employees of the Corporation. The petition-
ers have been treated as construction workers and they are
being paid the minimum wages admissible to such workmen. The
Court, therefore, cannot direct the Corporation to apply the
rates prescribed under Ex. P. 2 unless the Government makes
it applicable to employees of the Corporation.
As to the claim for regularisation of services of the peti-
tioners,
669
we express no opinion, since the factual data is disputed
and is insufficient. We leave the petitioners to work out
their rights elsewhere in accordance with law applicable to
them.
In the result, the petition fails and is dismissed. In
the circumstances of the case, we make no order as to costs.
P.S.S. Petition
dismissed.
670