C.W.P No.18412 of 2002 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.W.P No.18412 of 2002 (O&M)
Date of Decision:24 .07.2009
State of Haryana through Director-Principal, Chhotu Ram State
College of Engineering, Murthal, District Sonepat
.....Petitioner
Versus
Santro Devi and others ...Respondents
Present: Mr. D.S. Nalwa, Advocate, Addl. A.G., Haryana.
for the petitioner.
Mrs. Abha Rathore, Advocate
for the respondents.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
-.-
K. KANNAN J.
1. The dispute raised by the workmen through the demand
notice was that they had been performing duties as Lab Attendants in
as many as 31 different labs in the Chhotu Ram State College of
Engineering and being cast on a pay scale of Rs.750-940/-, which was
lower than the scale of Lab Attendants in other Government
Engineering Colleges. According to them, they were entitled to
higher scales of pay and they were entitled also to be re-designated as
Lab Attendants.
2. The management contended that Peons-cum-Attendants, to
which designation the workmen had been assigned, held Class IV
C.W.P No.18412 of 2002 (O&M) -2-
posts and a re-designation that they were seeking as Lab Attendants
was Class III posts carrying higher scales of pay and the Labour Court
had not the competency to change the cadre and admit to the workmen
a higher scale of pay. The Labour Court found on evidence let in
before it that the persons who had been designated as Peons-cum-
Attendants were actually performing the duties as Lab Attendants at
the various labs in the Engineering College and hence they were
entitled to be re-designated as Lab Attendants and they were also
entitled to a higher scale of pay w.e.f. 01.05.1990 with a direction that
no further recruitment of non-matrics as Lab Attendants shall be made
by the management institution.
3. Learned Counsel, Sh. Nalwa appearing on behalf of the
State represented through the Director Principal of the College had
filed some additional documents before this Court, which referred to
the actual sanctioned strength as ordered by the Governor of Haryana
vide his letter dated 06.05.1987. As per the said communication, there
were three Lab Technicians in the pay scale of Rs.480-760/- (pre-
revised), three Lab Attendants (Non Matric/Matric) in the pay-scale of
Rs.350-500/- and Rs.400-660/- respectively. The sanctioned posts of
Peons were 4. By a subsequent communication dated 03.08.1988,
sanction had been accorded for 7 Attendants in the pay scale of
Rs.750-940/-, amongst other posts. Under a communication dated
19/24.10.1988, the nomenclature of the Lab/Workshop Attendants
(Matric) became Laboratory Assistants and Lab Attendants (non-
matric) became merely Attendants. These documents were objected to
by the learned counsel appearing for the respondent that they had not
C.W.P No.18412 of 2002 (O&M) -3-
been filed before the Labour Court and no reliance could be made.
However, I find that these communications are merely details
regarding the sanctioned posts and the various designations that were
available. It is not as if the workmen could complain that they were
being taken by surprise. After all along the contention on behalf of
the management was that the Labour Court did not have jurisdiction to
upgrade the Peons-cum-Attendants, who were Class IV employees to
higher class namely of the Lab Attendants, who are Class III
employees. I, therefore, receive those documents as relevant in this
case.
4. It is not denied that the Peons-cum-Attendants were Class
IV employees and Lab Attendants presently designated as Lab
Assistants are Class III employees. The Labour Court had examined
the evidence of the witnesses on both sides and found that the Peons-
cum-Attendants were actually assisting the Lab Technicians and that
they were employed to help the Lab Technicians for maintenance and
work in the class. The Foreman examined on the side of management
had specifically admitted that when the claimants-workmen worked in
the Lab, they did work of Lab Attendants. He explained on his own
that they did the work of cleaning tool equipments, furniture etc.,
giving tools to students and helped the technicians in maintenance and
other help. Through the Registrar, the management sought to contend
that AICTE had prescribed norms for affiliation and stated that while
they had followed the norms set by AICTE for teaching staff, they did
not follow the norms for Laboratory staff. He admitted that there were
84 laboratories but said that they did not have any posts as Lab
C.W.P No.18412 of 2002 (O&M) -4-
Attendants. He also admitted that Peons-cum-Attendants, who had
been so employed actually worked in the Labs. In view of the specific
admission made by the Registrar that they had not complied with the
norms of the AICTE and they had the Peons-cum-Attendants working
also in the Labs, the Labour Court applied the scales that were
applicable to Lab Technicians in Engineering College Kurukshetra
where they held the higher scales of pay of Rs.950-1500/- and
accorded to them such a higher scale on the principle of equal pay for
equal work and directed the higher scales of pay to be given.
5. It should be seen that the principle of equal pay for equal
work is not to be adopted in a mechanical fashion. The burden of
proof that they were doing the same work as was being done
elsewhere by other pesons who held higher scales of pay to merit
claims to parity shall always be on the workmen, as held recently by a
judgment of the Hon’ble Supreme Court in U.P.S.E.B and another
Vs. Aziz Ahmad (2009) 2 SCC 606. The Hon’ble Supreme Court also
enunciated that the principle shall be applied not merely by the same
work that is done but it should be ascertained also that the duties and
responsibilities accompanying such post must been seen as identical
(Director General of Works, CPWD Vs. Regional Labour
Commissioner (Central) and others (2008) 2 SCC 589). The Hon’ble
Supreme Court also illustrated through several examples in another
decision in State of Haryana and others Vs. Charanjit Singh and
others (2006) 9 SCC 321 that cases like special scales to prevent a
stagnation, strict selection process to identify certain classes of
persons of higher merit for performing the same work might still merit
C.W.P No.18412 of 2002 (O&M) -5-
consideration of higher scale of pay. In this case, there was an
admission by the Registrar that the College had not the required
strength of Lab Attendants as prescribed by the AICTE norms and had
allowed the Peons-cum-Attendants to also work as Lab Attendants.
At the same time, there was also evidence through the admission of
the workmen themselves that they also worked in offices and
whenever they worked in the Labs they worked as Lab Attendants.
Learned counsel appearing for the workmen stated as a proposition of
law that a High Court exercising jurisdiction under Artile 226 shall
not interfere with definite findings of the fact and when the Labour
Court had held that the workmen had been doing the work as Lab
Attendants, the same cannot be interfered with and the scale of pay
accorded to them at par with Lab Attendants elsewhere in the
Engineering College, Kurukshetra ought not to be interfered with. I
affirm the finding of the Labour Court that all the workmen were
doing the work of Lab Attendants and they were entitled to a higher
scale of pay of Rs.950-1500/- (pre-revised) and a calculation of the
same upto the date of judgment of the Labour Court is approved by
this judgment.
6. Even while affirming the finding of the Labour Court, I
cannot uphold the direction by the Labour Court re-designating the
Peon-cum-Attendant as Lab Attendant and permanently increasing the
scales of pay to Rs.950-1500/- with a further embargo caused on the
management to recruit non-matriculates Lab Attendants. The order
given by the Labour Court would virtually amount to re-writing the
cadre strength. Creation/abolition of posts, formation/restructuring of
C.W.P No.18412 of 2002 (O&M) -6-
cadres, upgradation of cadres or determining cadre strength are all
matters that fall in employer’s domain that Courts shall be loathe to
make judicial intervention. Please see Union of India Vs. S. Thakur
(2008) 13 SCC 463; Union of India Vs. Pushpa Rani (2008) 9 SCC
242. If the Government had not provided for a higher cadre in Class
III to accord with the AICTE norms, it shall be for the AICTE to make
the institution conform to its regulation. The evidence of the Registrar
making an open defiance that they have not conformed to the norms of
AICTE with reference to the non-teaching staff is as candid as it is
unacceptable. The workmen or any interested party shall have
appropriate remedy through representation also to AICTE to make
them conform to the regulations. The parity of pay that the Labour
Court has ordered, I have restricted it only upto the date of the
judgment of the Labour Court and direct that it would not operate for
any period subsequent to the judgment. Since the judgment has been
rendered on the basis of evidence and on factual considerations which
I am not inclined to interfere, it does not, however, mean all the
Peons-cum-Attendants shall bear a nomenclature as Lab Attendants. I
have already pointed out that the workmen were also working in
offices as Attendants and it would be inappropriate to extend the equal
pay for equal work doctrine without finding that all the workmen are
employed only as Lab Attendants at all times and continue to be
employed as such till date. It has to be seen on a case to case basis
and without any evidence, till date, such an increase in scale of pay by
a permanent arrangement through an order of the Court cannot be
made. In retaining the workmen only in the cadre of Peons-cum-
C.W.P No.18412 of 2002 (O&M) -7-
Attendants in Class IV category, I make it clear that it will also be
open to the affected workmen to make appropriate representation to
the government to have them re-designated appropriately for actual
work done by them on a permanent basis. Independently of what
workmen may opt to do, the Government is hereby directed to
consider the actual condition prevalent now and take a decision about
the feasibility of increasing the cadre strength to conform to AICTE
norms as expeditiously as possible.
7. The order of the Labour Court is set aside and modified to
permit the workmen to obtain a higher scales of pay (pre-revised) at
Rs.950-1500/- only upto the date of the order of the Labour Court and
the direction of the Labour Court re-designating them as Lab
Attendants is set aside. The directon against the management for
recruiting non-matriculates as Lab Attendants is also set aside. The
writ petition is ordered in the above terms.
(K. KANNAN)
JUDGE
July 24 , 2009
Pankaj*