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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