High Court Punjab-Haryana High Court

State Of Haryana Through … vs Santro Devi And Others on 24 July, 2009

Punjab-Haryana High Court
State Of Haryana Through … vs Santro Devi And Others on 24 July, 2009
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*