* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 25.05.2011
+ R.S.A.No. 37/2009
DELHI JAL BOARD thru It‟s Chief Executive Officer
...........Appellant
Through: Mr.Karunesh Tandon,
Advocate.
Versus
DR. ANIL KUMAR . ..........Respondent
Through: Mr.Shalabh Gupta, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated
22.09.2008 which has modified the finding of the trial Judge dated
03.07.2006. Vide judgment and decree dated 03.07.2006, the suit
of the plaintiff had been dismissed on the applicability of Section
41 (h) of the Specific Relief Act, 1963; the court was of the view
that the suit (which was a suit seeking his salary dues on the
doctrine of equal pay for equal work) had been dismissed; the trial
Judge had however returned a finding that the doctrine of equal
pay for equal work is attracted; however in view of the provisions
RSA No.37/2009 Page 1 of 10
of Section 41 (h) of the Specific Relief Act, suit is not maintainable
in the present form. The impugned judgment had modified this
finding. It was held that the suit is maintainable; further the
plaintiff is entitled to his dues of `1,87,000/-.
2 The plaintiff was appointed as a medical officer under the
Jal Board. His initial appointment was for a period of three month
vide appointment letter dated 16.09.1998 @ `8,000/- per month.
His services were continuously extended from time to time; he
was also put on the duty of pulse polio; he was discharging his
duties efficiently and honestly; appreciation letters had also been
sent to him; the plaintiff had prayed for the applicability of
doctrine of equal pay for equal work which as per the averments
in the plaint was a constitutional mandate; suit was accordingly
filed on the ground that the persons of the same cadre and doing
the same job as him were getting salaries much higher than him;
the plaintiff should also be accorded the same treatment. Present
suit seeking the difference of emoluments qua him and other
regular employees amounting to `1,87,000/- had been prayed for.
3 In the course of the present suit, the plaintiff had given up
his prayer from seeking regularization; he had also
superannuated.
RSA No.37/2009 Page 2 of 10
4 In the written statement, the claim of the plaintiff was not
entitled to the relief claimed by him. It was stated that doctrine of
equal pay for equal work was not attracted.
5 On the pleadings of the parties, the following five issues
were framed:-
1. Whether notice under Section 478 of the DMC Act was served upon the
defendants? OPP
2. Whether the suit of the plaintiff is not maintainable u//s 41 (1)(h) of
Specific Relief Act? OPP
3. Whether the plaintiff is entitled to the difference of salary as claimed?
OPP
4. Whether the plaintiff is entitled to the declaration as to the regular
Medical Officer of the Jal Board w.e.f. September 1998 as claimed? OPP
5. Relief.
6 On the basis of oral and documentary evidence as
aforenoted the concept of equal pay for equal work was
recognized qua the plaintiff but the suit had been dismissed under
Section 41 (h) of the Specific Relief Act; the court was of the view
that there was an alternate remedy available; present suit was not
maintainable.
RSA No.37/2009 Page 3 of 10
7 The impugned judgment had modified this finding; suit of
the plaintiff was decreed; bar of Section 41 (h) of the Specific
Relief Act had not been adhered to.
8 This is a second appeal. It is yet at the stage of admission.
Substantial questions of law have been embodied on page 3 of the
body of the appeal.
9 Learned counsel for the appellant has vehemently argued
that in view of judgment reported in State of Haryana & others Vs.
Charanjit Singh & others (2006) 9 SCC 321, the plaintiff in this
case being a contractual employee could not have been granted
this relief. Various paragraphs of the said judgment have been
highlighted.
10 Arguments have been rebutted. It is pointed that the finding
in the impugned judgment calls for no interference.
11 Since the whole case was bordered on the applicability of
law as laid down by the Apex court in State of Haryana (Supra) it
would be relevant to extract the relevant portions thereon. While
dealing with a similar contention and the applicability of this
doctrine, the observations of the Apex Court noted hereinbelow
are relevant; they read as under:-
RSA No.37/2009 Page 4 of 10
“Having considered the authorities and the submissions we are of the view that
the authorities in the cases of Jasmer Singh, Tilak Raj, Orissa University of
Agriculture & Technology and Tarun K. Roy lay down the correct law.
Undoubtedly, the doctrine of “equal pay for equal work” is not an abstract
doctrine and is capable of being enforced in a Court of law. But equal pay must
be for equal work of equal value. The principle of “equal pay for equal work”
has no mechanical application in every case. Article 14 permits reasonable
classification based on qualities or characteristics of persons recruited and
grouped together, as against those who were left out. Of course, the qualities
or characteristics must have a reasonable relation to the object sought to be
achieved. In service matters, merit or experience can be a proper basis for
classification for the purposes of pay in order to promote efficiency in
administration. A higher pay scale to avoid stagnation or resultant frustration
for lack of promotional avenues is also an acceptable reason for pay
differentiation. The very fact that the person has not gone through the process
of recruitment may itself, in certain cases, make a difference. If the educational
qualifications are different, then also the doctrine may have no application.
Even though persons may do the same work, their quality of work may differ.
Where persons are selected by a Selection Committee on the basis of merit with
due regard to seniority a higher pay scale granted to such persons who are
evaluated by competent authority cannot be challenged. A classification based
on difference in educational qualifications justifies a difference in pay scales. A
mere nomenclature designating a person as say a carpenter or a craftsman is
not enough to come to the conclusion that he is doing the same work as another
carpenter or craftsman in regular service. The quality of work which is
produced may be different and even the nature of work assigned may be
different. It is not just a comparison of physical activity. The application of the
principle of “equal pay for equal work” requires consideration of various
dimensions of a given job. The accuracy required and the dexterity that the job
may entail may differ from job to job. 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 made a
difference. Thus normally the applicability of this principle must be left to be
evaluated and determined by an expert body. These are not matters where a
RSA No.37/2009 Page 5 of 10
writ court can lightly interfere. Normally a party claiming equal pay for equal
work should be required to raise a dispute in this regards. 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. If the High Court, is on basis of material placed before it, convinced
that there was equal work of equal quality and all other relevant factors are
fulfilled it may direct payment of equal pay from the date of the filing of the
respective Writ Petition. In all these cases, we find that the High Court has
blindly proceeded on the basis that the doctrine of equal pay for equal work
applies without examining any relevant factors. ”
12 Oral and documentary evidence had been led in the court
below. The trial Judge had noted the testimony of PW-1. This
finding was arrived at while dealing with issue No. 3.
” This is an issue as to whether the plaintiff is entitled to the difference of
salary as claimed, and burden of proof of this issue is again placed on the
plaintiff and it appears that the plaintiff has succeeded in discharging this
burden in his favour as he has clearly and categorically pleaded in his suit that
he was discharging and carrying out all the responsibilities of the same quality
and quantum being discharged by the regular doctors employed under the Jal
Vibhag (Water Board) and he also mentioned specific instances of his attending
“pulse polio” duty on 24.10.1999 and further that he used to write ACR of the
Pharmacist working under him and has so deposed in para no. 2 of his
evidenciary affidavit. There is not much in his cross-examination to shake out
his above testimony. On the other hand, it is noticeable that in his cross-
examination, DW Sh. H.B. Tondon has evasively replied that it might be that the
qualifications of the plaintiff was equal to that of the regular employees of the
DJB and he has accepted it as correct that plaintiff was attending the same
duties in the dispensary as like other doctors of DJB, immediately, he has
volunteered to say, ” our department gives extra duties to regular employees
but those such extra duties were not given to the plaintiff” however, the DW
RSA No.37/2009 Page 6 of 10
has not taken pain to volunteer what were such those extra duties and
therefore, this part of his testimony appears to be unreliable and it is even
apparent by the fact that in the cross-examination, this DW has further
accepted that the plaintiff was deputed on duty of administering “pulse Polio
Drops” and thereafter, this DW has again resorted to feign ignorance to say
that he had no knowledge whether plaintiff used to record the ACR of the junior
doctors or he might be conducting the medical examination of newly recruits of
DJB and the DW had no knowledge whether plaintiff used to verify the medical
bills received in the office for reimbursement or plaintiff was one of the
member of purchasing committee. DW has further accepted that plaintiff used
to attend meetings of the doctors and has immediately volunteered that any
doctor can attend the meeting of the doctors which used to be held at
headquarters, the DW, however, has denied a suggestion as wrong that plaintiff
was also entitled to equal pay/salary at par with the regular employees and in
this scenario of the cross-examination, I find that the DW has tried to support
the stand taken by the defendants faithfully and it is obviously for the reason
that he was an employee of the defendants and therefore, his denial of
suggestion as wrong that the plaintiff was entitled for equal pay/salary is not
credible and it appears that the plaintiff has successfully pleaded and proved on
record that he was discharging duties as they were being discharged by the
regular employee of the DJB and in the light of decision reported as AIR 2006
SC Page 161, which according to me, correctly spells the position of law
applicable on the subject matter and it is even the latest of the decision
applicable in the subject matter and it is even the latest of the decision
applicable in the subject matter and as such, this issue is decided in favour of
the plaintiff and against the defendant and it is held that the plaintiff is entitled
to the difference of salary to be calculated and arrived at after taking into
consideration the difference of the salary paid to the plaintiff for his working on
contract basis with DJB and the salary payable to the regular employees from
the date of his suit and till date he worked with DJB as is the mandate of the
decision reported as AIR 2006 SC page 161, the case of State of Haryana
Versus Charanjit Singh and as such, this issue is decided in these terms
accordingly.”
RSA No.37/2009 Page 7 of 10
13 This fact finding was endorsed in appeal by the first
appellate court. This finding on issues No. 3 was returned
hereinbelow as under:-
“Equal pay for equal work is a constitutional mandate and Ad hoc employees
performing the same duties as the regularized employees cannot be denied
equal financial benefits. Employers making ad-hoc appointments and resorting
to fictional breaks; subject the employees to arbitrary „hiring and firing policy‟
and deprive them of the various benefits which include Financial, Vacation and
Medical benefits etc. which are available to the other government servants and
therefore this pernicious system of appointment is exploitative and violative of
Articles 14 & 16 of the Constitution of India. Under these circumstances the
appellant who was an Ad-hoc employee under the Delhi Jal Board would be
entitled to all the benefits on the ground of constitutional directive of equal pay
for equal work.”
14 There is no perversity in this finding. Relying upon the
proposition of law laid down in the case of State of Haryana
wherein it was clearly held that for the applicability of this
doctrine, a writ petition is not the proper forum; it can only be
decided by an expert body where such a dispute is raised; the
party who claims equal pay for equal work has to make necessary
averments and prove that all things are equal; the Court must first
see that there are necessary averments and proof; the Court must
be satisfied on the material placed before it that there was equal
work of equal quality, all other relevant factors are fulfilled. Both
the fact finding courts have returned a positive fact finding in
RSA No.37/2009 Page 8 of 10
favour of the plaintiff qua this proposition. Testimony of PW-1 had
been adverted to. On no count, the plaintiff was lacking. The Apex
Court had also noted that person who had not gone through the
process of recruitment, may in itself in certain cases make a
difference. Admittedly in this case the plaintiff has not come
through the regular recruitment process; he had been employed
on an ad-hoc basis which employment was being renewed time
and again; this was a factor which has been considered by the
court below to arrive at a finding that on all other counts the work
of the plaintiff entitled him for the application of this principle of
equal pay for equal work; all dimensions and aspects of the case
of the plaintiff vis-à-vis other regular employees had been
considered by both the fact finding courts; it was not a case that
this doctrine had been applied mechanically; it was after the
evidence led by the plaintiff had established its case. The
defendant has not led any evidence. The terms of the contract of
employment of the plaintiff had also been brought on record.
Finding in the impugned judgment calls for no interference.
There is no perversity in the said findings. Substantial
questions of law are embodied at page 3 of the body of the appeal.
RSA No.37/2009 Page 9 of 10
No such substantial question of law has arisen. There is no merit
in this appeal. It is dismissed in limine.
INDERMEET KAUR, J.
MAY 25, 2011
a
RSA No.37/2009 Page 10 of 10