THE HONOURABLE MR v. The Central Administrative Tribunal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 01.08.2007CORAM:THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLAandTHE HONOURABLE MR.JUSTICE S.TAMILVANANW.P.20948 of 2002 andWPMP No.28966 of 20021. The Director Administration(D) Directorate-General of Health Services, Ministry of Health and Family Welfare (Lep. Division), Nirman Bhavan, New Delhi 110 011.2. The Director, Central Leprosy Teaching and Research Institute, Chengalpattu 603 001.3. The Union of India, rep. by its Secretary to Govt., Min. of Finance, New Delhi. .. PetitionersVersus1. The Central Administrative Tribunal, Rep. by its Registrar, High Court Buildings, Chennai 104.2. V.Ekambaram3. E.Vasudevan4. K.krishnamurthy .. Respondents Writ Petition filed under Article 226 of The Constitution of India toissue a Writ of certiorari to call for the records of the firstrespondent dated 23.08.2001 pertaining to O.A.No.1186 of 2000 andquash the same. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.S.M.Deenadayalan,ACGSC For R2 to R4 : Mr.S.Silambanan,S.C. For Mr.N.Umapathy O R D E R(Order of the Court was made by F.M.IBRAHIM KALIFULLA,J.)The petitioners are aggrieved against the order of the firstrespondent – Tribunal dated 23.08.2001 passed in O.A.No.1186 of 2000.The respondents 2 to 4 who were employed as Cooks in the secondpetitioner Organisation preferred the Original Application prayingfor the relief to set aside the order passed by the first respondentin O.A.No.12034/13/99–Lep dated 17.12.1999 and direct the respondentsto fix the scale of pay of the respondents 2 to 4 in the scale of payof Rs.950-1500 with retrospective effect from 01.01.1986 and pay allthe arrears to them.2. According to the contesting respondents 2 to 4, they were allworking as Cooks in the second petitioner Organisation, that thereare various research institutes under the control of the firstpetitioner in various parts of India, that they were placed in thescale of pay of Rs.750-940, that the Fourth Pay Commissionrecommended the pay scale of Rs.950-1500 for the post of Cooks andtherefore, they should also be placed in the scale of pay of Rs.950-1500 with effect from 01.01.1986. It was also claimed by thecontesting respondents 2 to 4 that the Cooks working in the otherresearch institutes under the control of the first petitioner werebeing placed in the scale of pay of Rs.950-1500 and therefore, theirscale of pay should also be fixed in that scale. The claim wasresisted by the petitioners herein by contending that the Fourth PayCommission recommended replacing pay scale to Cooks in differentOrganisations, that there were as many as six scales of payapplicable to Cooks in different Organisations depending upon thenature of work load and other attending circumstances and therefore,the parity in wages claimed by the contesting respondents 2 to 4cannot be granted.3. The Tribunal took the view that the second petitioner in itsletter dated 05.01.1994 strongly recommended for revision of scale ofpay of the Cooks in its Organisation on par with the scale of payapplicable to the Cooks in the Central Health Institutions, whichscale was Rs.775-1025 and since the second petitioner who is theAdministrative Head has recommended for such parity in payment, itshould be taken that the applicants were also similarly situatedpersons. On that basis, the Tribunal ultimately declared that theapplicants were entitled to the scale of pay of Rs.950-1500 and to https://hcservices.ecourts.gov.in/hcservices/ the corresponding pay scale as per the recommendations of the FifthPay Commission. The Tribunal also directed that the grant ofmonetary benefits should be limited for a period of one year prior tothe date of the application, though they were notionally entitled tothe higher pay with effect from 01.01.1986 based on the Fourth PayCommission's recommendation. The petitioners were directed toimplement the order within a period of two months from the date ofthe order.4. Assailing the order of the Tribunal, Mr.Deenadayalan, learnedcounsel appearing for the petitioners placed before us the FirstSchedule containing Part-A of the recommendations of the Fourth PayCommission which has provided the revised scales for the postscarrying the present scales in Groups 'D', 'C' and 'B' except theposts for which different revised scales were separately notified.The learned counsel contended that as per the Fourth Pay Commissionrecommendation, even amongst Group 'D' employees to which categorythe contesting respondents 2 to 4 belong, there were different levelsof scales provided and that for such pre-revised scales, thenecessary revised scales of pay have been prescribed which vary fromcase to case and therefore, the claim of the applicants by merelystating that their counterparts in some other Central HealthInstitutions were being paid higher scale of pay cannot alone be thebasis for ordering pay parity as has been done by the Tribunal.According to the learned counsel, in the absence of any acceptablematerial evidence to state that the nature of work and dutiesperformed by the applicants are identical in all respects with thecomparable establishments, there was no scope for granting the payparity as claimed by the contesting respondents 2 to 4. The learnedcounsel therefore contended that the order of the Tribunal in issuingdirections for the revision of the scale of pay of respondents 2 to 4is liable to be set aside. The learned counsel also relied upon thedecision reported in (2003)5 SCC 188 [Orissa University ofAgriculture and Technology and another vs. Manoj K. Mohanty] insupport of his submissions.5. As against the above submissions, Mr.S.Silambanan, learnedSenior Counsel appearing for respondents 2 to 4 contended that sincethe second petitioner was their immediate employer who had certifiedthat they were entitled for the pay on par with the similar Cooksemployed in the other Central Health Institutions, there was nothingmore to be examined by the Tribunal for granting the relief andtherefore, the order of the Tribunal does not call for interference.6. Having heard the learned counsel for the respective parties,we are constrained to state that if the claims of respondents 2 to 4were to be countenanced, there should have been necessary materialevidence to support their claim that they were performing the verysame nature of duties as a Cook as is being performed by their https://hcservices.ecourts.gov.in/hcservices/ counterparts in any other comparable establishments working under thecontrol of the first petitioner. At the outset, it will have to bestated that when respondents 2 to 4 claimed parity with theircounterparts in the other Central Health Institutions, the burden wasupon respondents 2 to 4 to have established before the Tribunal thatsuch a parity claimed by them, both on work basis as well as salarywise was fully established and that they are entitled for beingtreated on par with their counterparts.7. In the case on hand, we find from the order of the Tribunal areference to an attempt made by the second petitioner who sought forthe details about the nature of the work of the Cooks in the NationalTuberculosis Institute, Bangalore and who informed them that in theirInstitute, there is no post of Kitchen Assistant and that the pre-revised pay scale of Cooks was Rs.200-250 and the revised pay scalewas Rs.775-1025. As far as the duties are concerned, it was statedtherein that cooking and looking after other messing necessities inthe Head Quarters as well as in the field are the nature of dutiesperformed by such Cooks. Apart from the above reference found in theorder, the only other reliance placed upon by the Tribunal was on theletter of the second petitioner dated 05.01.1994 addressed to thefirst petitioner, wherein the second petitioner strongly recommendedfor the revision of scales of the Cooks to the revised scale ofRs.775-1025 with effect from 01.01.1986. Merely based on the abovereferences, we are at a loss to understand as to how the Tribunal hascome to a conclusion that the nature of duties performed by theCooks, namely, respondents 2 to 4 in the second petitionerOrganisation was identical in all respects with the Cooks in theother Central Health Institutes functioning under the control of thefirst petitioner. Such an abstract conclusion reached by theTribunal without any basic evidence placed before it at the instanceof respondents 2 to 4 cannot be sustained. In this context, when werefer to the First Schedule and Part A of the Fourth Pay Commissionrecommendation, we find that for the pre-revised scale of Rs.196-232and Rs.200-240 in which the pre-revised scale of respondents 2 to 4were fitted, the corresponding revised scale of pay under the FourthPay Commission recommended was Rs.750-940. The scale of Rs.196-232as well as Rs.200-240 was thus clubbed together while recommendingthe revised common scale of Rs.750-940. That apart, we also findthere were posts carrying seven other scales of pay. In fact, withthe starting scale of pay of Rs.200/- there were three scales whichwere as under:(a) 200-3-206-4-234-EB-4-250(b) 200-3-212-4-232-EB-4-240-5-250(c) 210-4-226-EB-4-250(d) 200-3-212-4-232-EB-4-240The above four scales of pay had common revised scale of Rs.775-1025.A perusal of the four different scales mentioned above disclose that https://hcservices.ecourts.gov.in/hcservices/ there were slight variations in the rate of increment both before andafter the stage of Efficiency Bar (EB). That apart, there were threeother pre-revised scales with the starting basic of Rs.210/-, namely,(a) 210-4-250-EB-5-270(b) 210-4-250-EB-4-270(c) 210-4-226-EB-4-250-EB-5-290 with a common revised scale of Rs.800-1150. Only in groups 'C' and'B', there were certain other scales of pay consisting of Rs.225-308,Rs.225-350, Rs.260-350, Rs.260-400 and Rs.290-350 which had thecorresponding revised scale of pay of Rs.825-1200, Rs.950-1400 andRs.950-1500. Thus a perusal of the Fourth Pay Commissionrecommendation disclose that even in the same category falling underGroups 'D', 'C' and 'B', there were different pre-revised scales ofpay, for which after clubbing certain scales of pay, common revisedscales of pay came into being, which only disclose that even amongstcommon categories, by virtue of the nature of duties performed andvarious other distinguishing features, such different scales of paywere recommended by the pay commission in their recommendations.8. In such circumstances, in our considered opinion, it is forrespondents 2 to 4 to establish before the Tribunal with acceptablematerial evidence to show that the nature of duties, responsibilitiesand other factors existing in the second petitioner establishment aswell as other comparable establishments working under the control ofthe first petitioner were identical in all respects and therefore,respondents 2 to 4 while working as Cooks in the second petitionerestablishment are fully entitled for the pay parity on the basis of"equal pay equal work" concept on par with the Cooks working in someother Central Health Institutes functioning under the firstpetitioner. As stated by us earlier, the reference to either theletter of the second petitioner dated 05.01.1994 or the merestatement of the National Tuberculosis Institute, Bangalore, cannotform the basis for the grant of the relief as has been directed bythe first respondent – Tribunal. 9. In this context, it will be worthwhile to refer to thedecision of the Hon'ble Supreme Court reported in (2003) 5 SCC 188(cited supra) wherein, the Hon'ble Supreme Court has set out as tohow and what are the relevant considerations to be examined in orderto apply the principle of "equal pay for equal work" and therebygranting pay parity with the concerned claims. Paragraph Nos.10 and12 of the decision of the Hon'ble Supreme Court are relevant for thepresent purpose, which read as under:"10. The High Court before directing to give regularpay scale to the respondent w.e.f. September 1997 on theprinciple of "equal pay for equal work" did not examine thepleadings and facts of the case in order to appreciatewhether the respondent satisfied the relevant requirementssuch as the nature of work done by him as compared to the https://hcservices.ecourts.gov.in/hcservices/ nature of work done by the regularly appointed JuniorAssistants, the qualifications, responsibilities etc. Whenthe services of the respondent had not been regularized,his appointment was on temporary basis on consolidated payand he had not undergone the process for regularrecruitment, direction to give regular pay scale could notbe given that too without examining the relevant factors toapply the principle of "equal pay for equal work". It isclear from the averments made in the writ petitionextracted above, nothing is stated as regards the nature ofwork, responsibilities attached to the respondent withoutcomparing them with the regularly recruited JuniorAssistants. It cannot be disputed that there were neithernecessary averments in the writ petition nor was anymaterial placed before the High Court so as to consider theapplication of the principle of "equal pay for equal work".12. Before giving such direction, the High Court alsodid not keep in mind as to what would be its implicationsand impact on the other employees working in the appellantUniversity. From the averments made in the writ petitionextracted above, it is clear that no details were given andno material was placed before the High Court for comparisonin order to apply the principle of "equal pay for equalwork". This Court in State of Haryana v. Jasmer Singhobserved that the principle of "equal pay for equal work"is not always easy to apply. There are inherentdifficulties in comparing and evaluating work done bydifferent persons in different organizations or even in thesame organization."10. Applying the above said ratio to the case on hand, we areconstrained to state that with the meagre statements placed beforethe first respondent-Tribunal, the Tribunal ought not to haveventured to grant the relief as has been done in the impugned order.A perusal of Section 22 of the Administrative Tribunal Act disclosethat under Sub Clause 3, the Tribunal has got ample powers as isvested in a civil Court under the Code of Civil Procedure, whiletrying a suit, in respect of the matters, namely, summoning andenforcing the attendance of any person and examining him on oath;requiring the discovery and production of documents; receivingevidence on affidavits and such other ancillary powers etc. In suchcircumstances, if really respondents 2 to 4 wish to establish theirclaim that they are entitled to pay parity on par with Cooks in otherestablishments working under the first petitioner – Directorate, itis for respondents 2 to 4 to take necessary steps for proving theircase. Since such an exercise was not made before the firstrespondent–Tribunal and in the interest of justice, we feel that evenwhen we hold that the impugned order of the Tribunal cannot besustained, respondents 2 to 4 should be extended an opportunity to https://hcservices.ecourts.gov.in/hcservices/ let in necessary evidence both oral as well as documentary before thefirst respondent – Tribunal in support of their claim. With thatview, we set aside the order impugned in this writ petition and remitthe matter back to the first respondent – the Tribunal for holding ade nova enquiry, by permitting respondents 2 to 4 as well as thepetitioners to let in necessary evidence both oral as well asdocumentary in support of their respective stand and thereafter passappropriate orders on merits.With the above directions, the writ petition is allowed. Nocosts. Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo The Registrar, Central Administrative Tribunal,High Court Buildings, Chennai -104.+1cc to M/s.Silambanan Associates Sr 47808+1cc to Mr.S.M.Deenadayalan, ACGSC SR 47638BK (CO)km/20.8. W.P.20948 of 2002