IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  318         OF 2009 (Arising out of S.L.P. (Civil) No. 6019 of 2007)

U.P. State Electricity Board & Anr. …. Appellants

Versus

Aziz Ahmad    …. Respondent

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. The  issue  which  arises  for  consideration  in  this  appeal  is

whether the post of Boiler Overhauling Mechanic is equivalent to that

of  the post  of  Boiler  Mistry or Fitter  so as  to enable the workman,

respondent herein to draw higher pay scale than what is being given

to him.  There is no dispute with regard to the fact that the post of

Boiler Overhauling Mechanic is a different post than that of the post of

Boiler  Mistry  which  is  equivalent  to  that  of  Fitter  in  ‘Skilled  –  A’

Category.

3. The workman, respondent herein was appointed as coolie in the

service of  the appellant  Board with effect  from 1.4.1969 in the pay

scale of Rs. 55-90.   He was thereafter  designated as Helper in the

same pay scale of coolie and worked in the said post till 13.9.1977.

Thereafter  he  appeared  before  the  Selection  Committee  No.  2  for

being promoted to the post  of Boiler Overhauling Mechanic.  In the

said selection, by order dated 13.9.1977 the respondent was declared

successful consequent upon which he was offered the post of Boiler

Overhauling  Mechanic  in  the  then  pay  scale  of  Rs.  80-145.  The

aforesaid pay scale, however, has been revised with the passage of

time.   He  joined  the  duties  of  Boiler  Overhauling  Mechanic  on

14.9.1977 and since then he performed his duties accordingly.  It is

stated that he was also looking after the work of Fitter in addition to

the work of Boiler Overhauling Mechanic.  In terms of the policy his

employment in the Board was confirmed as against the post of coolie

with  effect  from  1.4.1976  under  order  issued  by  the  competent

authority on 14.9.1978.

4. The allegation was that one Shri  Jogeshwar Prasad, who was

working  at  Sohawal  Power  House,  Faizabad  as  Boiler  Mistry  was

given the status of ‘Skilled-A’ worker and was given the pay scale of

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Rs.  150-285  with  effect  from  1.4.1969.   The  respondent-workman

claimed that the same pay scale which has been given to Jogeshwar

Prasad should also be given to him.  In terms thereof he raised an

industrial  dispute contending inter  alia that  since the work of  Boiler

Overhauling Mechanic and Boiler Mistry are identical and the nature

and responsibilities are also similar, he is entitled to get the same pay

scale on the principle of equal pay for equal work.  He claimed that his

pay should be fixed in the pay scale of Rs. 150-285 with effect from

1.4.1977, as revised from time to time.  

5. The aforesaid industrial dispute raised by the Union on behalf of

the respondent-workman was referred to the Tribunal for adjudication

under the following terms:  

“Whether the employers should give pay scale of Skilled Category  –A  to  Shri  Aziz  Ahmad,  son  of  Shri  Rashid Mohammad, Boiler Overhauling Mechanic? If  yes,  then from which date and with what other details?”

6. The  Tribunal,  on  receipt  of  the  aforesaid  reference,  issued

notices to the parties upon which the parties appeared and filed their

respective pleadings.  The evidence was also led by the parties by

producing  witnesses  in  support  of  their  case.   The  Tribunal,  after

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hearing the parties, passed an award on 17.2.1999 holding that the

work being done by the workman Aziz Ahmad as Boiler Overhauling

Mechanic is the same as the work of Fitter and that the pay scale of

the posts of Boiler Mistry and the fitter was Rs. 150-285 and that on

the settled principle of equal pay for equal work, workman Aziz Ahmad

is entitled to the same pay scale as that of the Fitter.  The Tribunal

held that the said workman Aziz Ahmad would be entitled to the pay

scale  of  ‘Skilled-A’  category as admissible  to Fitter  with effect  from

14.9.1977, but however, as he appeared before the Conciliation Board

in 1989,  it  was held that  he would be entitled to the benefit  of  the

aforesaid pay scale only with effect from 1.1.1989.  

7. Being aggrieved by the aforesaid award passed by the Industrial

Tribunal, the appellant Board preferred a writ petition in the High Court

of  Allahabad which was entertained and was heard on merit.   The

learned Single  Judge by his  judgment  and order  dated 27.10.2005

dismissed the writ petition holding that no interference was called for.

It was held by the learned Single Judge that the Tribunal rightly came

to  the  conclusion  that  the  workman  had  actually  worked  as  Boiler

Mistry and had discharged superior functions of the post which was

equal to that of Fitter.

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8. The  appellant  being  aggrieved  by  the  order  passed  by  the

learned  Single  Judge  and  award  passed  by  the  Tribunal  filed  the

present  appeal  on  which  notice  and  stay  order  were  issued.

Consequent thereupon this appeal was listed for hearing.  

9. Mr. Pradeep Misra, learned counsel appearing for the appellant

Board submitted before us that  the respondent-workman was made

aware of his status and position through the appointment letter issued

to him making it clear that he had been appointed to the post of Boiler

Overhauling  Mechanic  in  the  pay  scale  of  Rs.  80-145  which  he

accepted and had also received all  the benefits on the basis of the

said pay scale.  It was submitted that having accepted the aforesaid

position the respondent cannot turn back and claim for change in his

pay scale on the ground of  equal  pay for  equal  work.   It  was also

submitted by him that the duties and responsibilities attached to the

post of Fitter or Boiler Mistry are much more higher than that of the

duties and responsibilities attached to the post of Boiler Overhauling

Mechanic,  and  therefore,  the  Tribunal  as  also  the  learned  Single

Judge were not justified in holding that the duties and responsibilities

of the aforesaid posts are similar.  

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It  was further  submitted  that  there  is  no evidence or  material

placed  on  record  to  substantiate  that  duties  and  responsibilities

attached with the post of Fitter or Boiler Mistry are similar and identical

in all respects to that of the duties and responsibilities attached to the

post of Boiler Overhauling Mechanic and in absence of clear evidence

in  that  regard  it  was inappropriate  on the part  of  both  the  learned

Single  Judge  of  the  High  Court  as  also  of  the  learned  Industrial

Tribunal to pass an award in favour of the workman.    

10. Mr.  A.P.  Mohanty,  learned  counsel  appearing  for  the

respondent-workman,  however,  sought  to  justify  both  the  award  as

also the judgment and order of the learned Single Judge upholding the

award contending inter alia that from the pleadings of the parties and

depositions recorded by the Labour Court, if it is possible to come to

the  conclusion  that  both  the  posts  carry  the  same  duties  and

responsibilities  or  identical  responsibilities  and  status,  then  the

Tribunal could have and accordingly has rightly passed the award in

favour of the workman.   

11. In  order  to  appreciate  the  aforesaid  contentions  we  have

carefully  scrutinised  the  records  including  the  documents  and  the

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depositions.  We have carefully analysed the findings recorded by the

Tribunal  in  paragraph 12 of  the award.   In  the  said  paragraph the

Tribunal  recorded  that  the  issue  to  be  determined  is  whether  the

workman Aziz Ahmad is doing similar work as that of the work of Fitter

or Boiler Mistry.

12. Having  framed  the  aforesaid  issue  for  consideration,  the

Tribunal  immediately  went  on  to  record  a  finding  that  it  was

unfortunate that none of the parties had filed an objective data with

regard to the work assessment of the aforesaid posts.  The learned

Tribunal  put  the  burden  on  the  employer  to  record  the  job

requirements of the aforesaid posts and to prove and establish that

they are not identical.  The aforesaid findings of the learned Tribunal

were also upheld by the learned Single Judge.  

13. In  our  considered  opinion the  aforesaid  findings  are  incorrect

and cannot be upheld.  The burden to prove a particular fact is

always on the person who alleges the same.   In  the present

case  it  was  the  contention  of  the  respondent-workman,  who

claimed that the job requirements, nature and responsibilities of

the post of Boiler Mistry/Fitter are identical and similar with that

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of the Boiler Overhauling Mechanic.  The burden, therefore, was

on the workman to prove and establish the aforesaid facts by

leading cogent and reliable evidence.  He was required to place

documentary evidence in support of the same.

14. The principle that the burden of proof is on a person who alleges

it  has  been  reiterated  by  this  Court  innumerable  times.  For

reference  we  may  extract  the  following  passages  from  the

judgment  of this Court  in  State of M.P.  v. Pramod Bhartiya,

[(1993) 1 SCC 539]:  

“13……………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.”

Further in Union of India v. Tarit Ranjan Da  [(2003) 11 SCC 658]

wherein one of us (Dr. Arijit Pasayat) was a member this Court held:  

“9…………….  Further,  the  Tribunal  and  the  High  Court proceeded as if it was the employer who was to show that there  was  no  equality  in  the  work.  On  the  contrary,  the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work  alone.  There  are  several  other  factors  like responsibilities,  reliabilities,  experience,  confidentiality

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involved, functional need and requirements commensurate with the position in the hierarchy, the qualifications required which are equally relevant.”

The said principle was retreated subsequently in State of Haryana v.

Charanjit Singh, (2006) 9 SCC 321 wherein it was held:

“19……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…….”  

20………In each case the court must satisfy itself that the burden of proving that the work and conditions are equal is discharged by the aggrieved employee”

15. The Tribunal as also the High Court while affirming the award

changed the rule of the game by placing the entire burden of

proof  on  the  management  that  the  posts  are  not  identical.

Whether  the  aforesaid  posts  are  identical  and  whether  the

persons holding the post of Boiler Overhauling Mechanic, Boiler

Mistry or Fitter are doing identical or similar nature of work and

discharge the same functions and responsibilities are required to

be adjudicated upon and decided by making an analysis of their

nature of  duties,  responsibilities,  pay scales  and other  factors

which are required to be considered for deciding such an issue.

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This Court in a number of decisions has laid down the guiding

factors  and  principles  as  to  how  the  issue  with  regard  to

equation of posts is to be considered and analyzed. In  Secy.,

Finance  Deptt.  v.  W.B.  Registration  Service  Assn., 1993

[Supp  (1)  SCC 153] this  Court  enumerated  the  factors  to  be

taken into consideration for job evaluation:

“12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it  is well settled that  equation of posts and determination of pay scales is the primary function of the executive  and  not  the  judiciary  and,  therefore,  ordinarily courts will not enter upon the task of job evaluation which is generally left  to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult  to  undertake  sometimes  on  account  of  want  of relevant  data  and  scales  for  evaluating  performances  of different  groups  of  employees.  This  would  call  for  a constant  study  of  the  external  comparisons  and  internal relativities  on  account  of  the  changing  nature  of  job requirements.  The factors  which may have to  be kept  in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge  of  his diverse duties and functions (iv) the extent  and  nature  of  freedoms/limitations  available  or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate  with  other  departments,  etc.  We  have  also

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referred  to  the  history  of  the  service  and  the  effort  of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts  by  placing  different  posts  having  comparable  job charts  in  a  common  scale.  Substantial  reduction  in  the number of  pay scales must  inevitably lead to clubbing of posts and grades which were earlier different and unequal. While  doing  so care  must  be taken  to  ensure that  such rationalisation  of  the  pay  structure  does  not  throw  up anomalies. Ordinarily a pay structure is evolved keeping in mind  several  factors,  e.g.,  (i)  method  of  recruitment,  (ii) level  at  which  recruitment  is  made,  (iii)  the  hierarchy  of service in a given cadre, (iv) minimum educational/technical qualifications  required,  (v) avenues  of  promotion,  (vi)  the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level,  (x) employer’s capacity to pay, etc.  We have  referred  to  these  matters  in  some  detail  only  to emphasise  that  several  factors  have  to  be  kept  in  view while  evolving  a  pay  structure  and  the  horizontal  and vertical relativities have to be carefully balanced keeping in mind  the  hierarchical  arrangements,  avenues  for promotion,  etc.  Such  a  carefully  evolved  pay  structure ought  not  to  be ordinarily  disturbed  as  it  may upset  the balance  and  cause  avoidable  ripples  in  other  cadres  as well.  It  is  presumably  for  this  reason  that  the  Judicial Secretary  who  had  strongly  recommended  a  substantial hike  in  the  salary  of  the  Sub-Registrars  to  the  Second (State)  Pay Commission  found it  difficult  to  concede  the demand made by the Registration Service before him in his capacity  as  the  Chairman  of  the  Third  (State)  Pay Commission.  There  can,  therefore,  be  no  doubt  that equation  of  posts  and equation  of  salaries  is  a  complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court’s interference is absolutely necessary to undo the injustice.”

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16. Moreover in  Gyan Prakash v. Union of India  [(1997) 11 SCC

670] it was held that application of the principle of equal pay for

equal  work  cannot  be  claimed  merely  because  there  was

delegation of certain powers.  The ratio of the aforesaid decision

is applicable to the facts of the present case as the claim of the

Respondent for a higher pay scale is also on the ground that he

was  discharging  the  duties  of  a  higher  post  also,  without

however, giving any factual details in that regard.

17. Being conscious of  the aforesaid  legal  position we are of  the

considered  opinion  that  the  learned  Industrial  Tribunal

committed a manifest error of law and of fact initially by placing

the  burden  on  the  employer  to  prove  and  establish  the  job

requirements  of  the  said  three  posts,  and  thereafter,  again

committed an error in coming to the conclusion that the posts

are identical on the basis of the pleadings of the parties alone.

Pleadings are required to be proved and so long evidence is not

led in support of the pleadings no reliance can be placed only on

the  pleadings  without  there  being  any  cogent  evidence  in

support of the pleadings.  Pleadings are required to be proved

by  leading  evidence.   The  Tribunal  expressly  stated  in  its

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findings that none of the parties have filed any objective data in

regard  to  the  work  assessment  of  the  posts  of  Boiler

Overhauling  Mechanic,  Boiler  Mistry  or  Fitter.   In  absence  of

such  evidence  the  Tribunal  was  not  justified  in  coming  to  a

conclusion  that  the  nature,  duties  and  responsibilities  of  the

three posts are identical and similar.

18. Therefore, we have no other option but to remand this matter to

the Industrial Tribunal for fresh adjudication in accordance with

law.   We,  however,  allow  the  parties  an  opportunity  to  lead

further evidence in support  of  their  claims and counter  claims

regarding the status and position of the aforesaid three posts.

The Tribunal should see to it that the claims and the rebuttal of

the  said  claim  should  be  supported  by  cogent  and  reliable

evidence.   For  that  matter  the  Tribunal  shall  render  an

opportunity  to  the parties  to  lead their  evidence in support  of

their  case  and  on the  basis  of  the  records,  as  available,  the

Tribunal  would  decide  afresh  the  issue  whether  the  nature,

duties and responsibilities of the said three posts are identical,

and thereafter, the Tribunal should answer the reference.

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19. Consequently,  we  set  aside  both  the  award  passed  by  the

Tribunal  as  also  the  judgment  passed  by  the  learned  Single

Judge and remit  back the matter  to the Industrial  Tribunal  for

decision in terms of the aforesaid observations.  It is needless to

say that since it is an old matter, the Tribunal should render a

priority in hearing of this matter and would make all endeavour to

decide the matter, preferably within a period of six months.

20. The appeal is disposed of in terms of the aforesaid order.

…………………………...J. (Dr. Arijit Pasayat)

……………………………J. (Dr. Mukundakam Sharma)

New Delhi; January 20, 2009

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