IN THE HIGH COURT OF JUDICATURE AT BOMBAY
WRIT PETITION NO. 3045 OF 2005
1. Janta Shikshan Prasarak Mandal,
Pusad, Tq. Pusad, District -
Yavatmal, through its President.
2. The Principal,
B.N. Engineering College,
Pusad, Tq. Pusad, District -
Yavatmal. ... PETITIONERS Versus
1. The Industrial Court,
Maharashtra, Bench at Yavatmal.
2. Smt. Chandrabai wd/o Punam
Charawande, aged about 37 years,
occupation - Service, r/o Nawalbaba
Ward, Pusad, Tq. Pusad,
District - Yavatmal.
3. Smt. Kamlabai wd/o Gulab Chaware,
aged about 34 years, occupation -
Service, r/o Nawalbaba Ward,
Pusad, Tq. Pusad, District - Yavatmal. ... RESPONDENTS Shri A.M. Gordey with Mrs. R.D. Raskar, Advocate for the petitioners.
Mrs. T.D. Khade, AGP for respondent No. 1.
CORAM : B.P. DHARMADHIKARI, J.
JANUARY 06, 2010.
ORAL JUDGMENT :
By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioners seek to challenge the judgment dated 04.03.2005 delivered by the Industrial Court, Yavatmal, in Complaint ULP No. 11 of 2003. Petitioner No.1 before this Court is the institution which runs B.N. Engineering College and Petitioner No.2 is the Principal of that College. Respondents No. 2 & 3 before this Court filed that Complaint before the Industrial Court under items 5 & 9 of Scheduled IV of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971, (hereinafter referred to as MRTU & PULP Act), contending violation of equal pay for equal work, shortly stated, they claimed salary in pay scale as was being paid to two male sweepers. By the impugned judgment, the Industrial Court has directed the petitioners to pay them salary in pay scale of Rs.750-940 accordingly with arrears from 07.02.2003.
2. The facts are not much in dispute. The husbands of both the complainants were earlier in employment of the petitioners and after their death, the petitioners appointed the complainants on consolidated salary mentioning that their appointment is purely temporary. The appointment orders are signed by the Principal i.e. Petitioner No.2. The Complainant No.1 - Chandrabai came to be appointed on 10.11.1995 while Complainant No.2 has been appointed on 12.09.2000. They filed above mentioned ULP Complaint on 30.01.2003 pointing out that they have been given employment on compassionate ground and though they are working for full eight hours i.e. between 8 AM to 12 AM and from 2 PM to 6 PM, they were being paid consolidated pay of Rs.1,000/- per month. Their work was of cleaning toilets, sweeping etc. in Hostel for Girls. They pointed out that one Shri Shriram Tak and Deepak Tak were working in Boys Hostel and doing same work but they were receiving their salary in the pay scale of Rs.750-940. They further pointed out that their deceased husbands were permanent employees working as sweepers in hostel and in 4
college respectively. This complaint was opposed by the petitioners by filing their reply. They contended that the work was only for four hours per day and the comparison with Shri Shriram Tak and Deepak Tak was not legally permissible. They pointed out that both male sweepers were working in hostels run by Respondent No.2 i.e. Petitioner No.2 and they had no connection or concern with petitioner No.1. It was further argued that as the appointment and terms and conditions were accepted by the complainants, their grievance of unfair labour practice was unsustainable.
3. In this back ground, after perusal of evidence led by the parties and after hearing respective arguments, the Industrial Court found that the complainants established that they were engaged in service on compassionate ground and they were entitled to time scale pay.
4. I have heard Shri Gordey with Mrs. Raskar, learned counsel for the petitioners and Mrs. Khade, learned AGP for 5
respondent No.1. Nobody has appeared for respondents No. 2 &
3. There was no appearance for them even yesterday.
5. Shri Gordey, learned counsel has contended that the appointment orders issued by Petitioner No.2 reveal that the appointment was in purely temporary capacity and hence the question of extending to complainants pay scale was not involved in the matter at all. He points out that Shriram Tak and Deepak Tak were male sweepers working in Boys hostel and as they were regular/ permanent in service, salary in pay scale was being paid to them. According to him, burden was upon the complainants to show their entitlement to same pay scale and as that burden has not been discharged, the impugned judgment delivered by the Industrial Court is unsustainable. He has invited attention of the Court to respective pleadings, evidence on record and to the impugned judgment. In support of his contentions, he has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Budhan Choudhry vs. State of Bihar, reported at AIR 1955 SC 191, State of Andhra Pradesh vs. G. Sreenivasa Rao, 6
reported at (1989) 2 SCC 290 and in Director of Education (Secondary) vs. Pushpendra Kumar, reported at AIR 1998 SC 2230. He argues that the complainants were provided with work on humanitarian ground to meet with sudden crisis in the family because of death of bread winner and regular procedure for recruitment was not followed. According to him, in these circumstances, writ petition deserves to be allowed.
6. Smt. Khade, learned AGP has supported the impugned order. She has also invited attention to provisions of Equal Remuneration Act, 1976, to urge that violation of that Act in present matter is also established.
7. Shri Gordey, learned counsel, in brief reply has urged that the provisions of The Equal Remuneration Act, 1976, are not relevant in present case because Section 4 thereof itself permits distinction to be made between male employees and female employees in certain circumstances. He further argues that the requirement of identity of work has not been established 7
on record in present matter and hence when basic ingredient for application of doctrine of Equal Pay for Equal Work is missing, the provisions of the Equal Remuneration Act, 1976, cannot apply.
8. The perusal of Complaint under Section 28 of the MRTU & PULP Act as filed by present Respondents No. 2 & 3 shows that they had invoked items 5 and 9 of Schedule IV of MRTU & PULP Act. Item 5 of Schedule IV deals with unfair labour practice of showing favouritism or partiality to one set of workers, regardless of merits. Item 9 deals with failure to implement award, settlement or agreement. The complainants before the Industrial Court urged that there was discrimination practiced by their employer by paying salary in pay scale to male sweepers and by paying them consolidated salary. The comparison, therefore, has been made between male sweepers and female sweepers by complainants and this fact and comparison has been appreciated by the Industrial Court in the impugned judgment. The evidence shows that regular sweepers 8
in time scale i.e. male sweepers were getting total salary of about Rs.5,000/- per month while the complainants were getting consolidated (fixed) salary of Rs.1,000/- only. They have pointed out that Petitioner No.1 - Society is running Boys hostel as also Girls hostel and in cross examination, they have accepted that the management of College and Hostel are different. They have also accepted that the male sweepers were regular sweepers and, therefore, they were getting wages as per pay scale. The perusal of evidence of In-charge Principal examined by the petitioners shows that he stated that the complainants were working from 8.00 AM to 10.00 AM and 4.00 PM to 6.00 PM. He has further stated that male sweepers were regular employees on establishment of hostel of petitioner No.1. In cross examination, he accepted that he was also looking after the Hostel administration as he was Administrative in-charge of Hostel under Petitioner No.1. He further accepted that Petitioner No.1 was running Petitioner No.2 College and he was Head of that College in his capacity as In charge Principal. He accepted that both the complainants were appointed by the then Principal 9
and he further accepted that the husbands of complainants were working as Sweepers in Petitioner No.2 - College. It has been brought on record in his cross examination that the Girls hostel has got arrangement for 200 girls and the complainants have to attend the hostel at 8.00 AM and they have to sign the register maintained by the Rector of Hostel. He accepted that both the complainants were working as wet sweepers. He accepted that Girls hostel was in two buildings of three stories. He also accepted that male sweepers were also working as wet sweepers. His cross examination further reveals that work in hostel is of continuous and regular nature except in vacation period. He also accepted that for appointment of any workers, the consent of Petitioner No.1 is required to be obtained and he was not aware whether at the time of appointment of complainants, such sanction was taken or not taken. The evidence above, therefore, clearly shows that the petitioners have got two hostels meant for Girls and they needed two female sweepers for those hostels. Thus, the need is permanent and work is available except during vacation period.
9. In this back ground, the appointment orders issued to complainants show that they were appointed in Girls hostel as sweepers on consolidated salary. However, it has been clarified that this appointment is of purely temporary status. Why the appointment has been made in temporary nature is not clarified. On the contrary, it is admitted position that complainants have been appointed on compassionate ground after death of their respective husbands and finding in this respect recorded by the Industrial Court against issue No.1 has not been challenged before this Court. Thus permanent workload was available and there was nobody else to take care of that work, are the facts which have been brought on record by the complainants. The complainants were, therefore, appointed to take care of that workload and this is also admitted in his cross examination by In-charge Principal. In this situation, the purely temporary nature of appointment is not very relevant while adjudicating the claim of the complainants.
10. Though the learned Member of Industrial Court has 11
not considered the provisions of the Equal Remuneration Act, 1976, the said Act has been given overriding effect by Section 3. The said section states that the provisions have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act. Its Section 4 sub-section (1) restrains employer from paying remuneration at rates less for this purpose than those at which remuneration is paid by him to workers of opposite sex in such establishment or employment for performing the same work or work of similar nature. Thus, when complainants are performing "same work or work of similar nature", said section 4 prohibits employer from paying remuneration at different rate/ less rate than the rate at which remuneration is paid to male sweepers. As already mentioned above, because of receipt of salary in time scale of Rs.750-940, male sweepers get monthly salary of Rs.5,000/- while both complainants were earning only Rs.1,000/-. Section 4(1) of the Act specifically prohibits this. In view of Section 3 of the Equal 12
Remuneration Act, 1976, as it has overriding effect, the contract of employment pressed into service by Shri Gordey, learned counsel stands superimposed by mandate of Section 4(1) of the Act. "Same work or work of a similar nature" has been defined in Section 2(h) of the Equal Remuneration Act, 1976, to mean work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the difference, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment. Here, the persons of opposite sex are working as wet sweepers in Boys hostel and Girls hostel. It is, therefore, apparent that there is no difference in their skill, effort or responsibility. The words contemplated same work or work of similar nature. Here, the work is same. The question of quantum of work, therefore, is not very relevant. The petitioners have not approached the Industrial Court with defence that work being discharged by male sweepers was much more than the female sweepers. Hence 13
that question is really not very relevant in present matter. The provisions of Section 1(3) of the Act shows that it applies to such establishments or employments as Central Government may by Notification specify and it comes into force on said dates as may be mentioned therein but then that date cannot be a date later than three years from the passing of the Act. The Act has been passed on 11th February, 1976 and the employment in educational, teaching, training and research institutions has been notified on 05.04.1976. The petitioners are running an Educational institution i.e. Petitioner No.2 - College and Hostel facility for Boys and Girls taking education therein. It is thus clear that the provisions of the Equal Remuneration Act, 1976, squarely govern the controversy which has been looked into by the Industrial Court.
11. As already observed above, the workload is available and for taking care of that workload, the complainants came to be appointed. For taking care of similar workload in Boys hostel, male sweepers Shriram Tak and Deepak Tak have been 14
appointed. The work being done by wet male sweeper or wet female sweeper is same work of similar nature. The difference in salary is also apparent and hence the Industrial Court cannot be said to have committed any error in holding that the complainants are also entitled to receive salary in the pay scale of Rs.750-940. It has arrived at that finding after noticing that because of doctrine of equal pay for equal work, the payment of less salary to complainants constituted unfair labour practice under item 9 of Schedule IV of MRTU & PULP Act. It has also found that when work performed by both male employees and female employees was identical, there could not have been any classification between them for payment of salary and because of this, it found that the said worker viz., female wet workers were discriminated regardless of merits. Its finding that there was unfair labour practice under items 9 and 5 of Schedule IV of MRTU & PULP Act, cannot be said to be either erroneous or perverse.
12. The judgment cited by the learned counsel for the 15
petitioners in the case of Budhan Choudhry vs. State of Bihar (supra) show that there can be a classification in the matter and classification can be said to be violative of Article 14 of Constitution of India, if it is not founded on intelligible differentia, if that differentia has no rational relation with the objects sought to be achieved because of classification. State of A.P. vs. G. Sreenivasa Rao, (supra) deals with question of parity in employment and doctrine of Equal pay for equal work. It has been held that higher pay to junior is not per say bad if it is based on justifiable grounds. Thus, the issue required to be considered by this Court is not the subject matter of consideration in both these judgments of the Hon'ble Apex Court. Director of Education (Secondary) vs. Pushpendra Kumar (supra) is the judgment which deals with issue of compassionate appointment. It cannot be debated that grant of employment by showing compassion is an exception to normal mode of recruitment. Here, in view of the Equal remuneration Act, it is apparent that the moment it is shown that the complainants performing same work or work of similar nature have been paid 16
less wages, because of Section 3 of said Act, the other arguments sought to be raised by Shri Gordey, learned counsel, become redundant.
13. I, therefore, find no case made out warranting any interference in writ jurisdiction. Writ Petition is dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.