Allowed

K. Cheriyakoya v. Administrator Utl

Kerala HC8 Mar 2018WP(C)/9242/2013

Case brief

AI extract

What is this about?

This writ petition concerned a Junior Signalman aggrieved by the denial of a pay scale granted to co-workers with similar duties after completing 5 years of service. The High Court applied the equal pay for equal work principle under Article 141 to direct the respondents to grant the petitioner the same pay scale and consequential benefits.

What did the court decide?

Directing the respondents to grant the petitioners the scale of pay of Rs.3200-85-4900 with effect from the date of completion of 5 years of service and all consequential benefits.

K. Cheriyakoya Vs Administrator Utl — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 8TH DAY OF MARCH 2018 / 17TH PHALGUNA, 1939

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WP(C).No. 9242 of 2013

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PETITIONER(S)

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K. CHERIYAKOYA, AGED 41 YEARS, S/O.ABDUL KHADER, JUNIOR SIGNAL MAN, PORT CONTROL TOWER, LAKSHADWEEP DEVELOPMENT CORPORATION LTD.(LDCL) AMINI ISLAND, UNION TERRITORY OF LAKSHADWEEP PERMANENT ADDRESS: KOILAM HOUSE, KADAMAT ISLAND, UNION TERRITORY OF LAKSHADWEEP, KADAMAT.

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BY ADVS.SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ

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RESPONDENT(S):

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1. ADMINISTRATOR , UNION TERRITORY OF LAKSHADWEEP & CHAIRMAN, LAKSHADWEEP DEVELOPMENT CORPORATION KAVARATTI ISLAND, KAVARATTI-682555, UNION TERRITORY OF LAKSHADWEEP.

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2. THE MANAGING DIRECTOR, LAKSHADWEEP DEVELOPMENT CORPORATION LTD., ( A GOVERNMENT OF INDIA UNDERTAKING), BOTANICAL GARDENS, KAVARATTI ISLAND-682555, UNION TERRITORY OF LAKSHADWEEP.

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3. THE GENERAL MANAGER, LAKSHADWEEP DEVELOPMENT CORPORATION LTD., ( A GOVERNMENT OF INDIA UNDERTAKING), G.406, PANAMPILLY NAGAR, KOCHI-682036.

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4. THE DIRECTOR, PORT, SHIPPING & AVIATION, DIRECTORATE OF PORT, SHIPPING AND AVIATION, KAVARATTI-682555.

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5. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110 001.

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R1 TO R4 BY ADVS. SRI.MANU.S, CGC SRI.S.RADHAKRISHNAN,SC R5 BY SRI.N.NAGARESH,ASG OF INDIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2018, ALONG WITH WPC.NO.23228/2013,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 9242 of 2013 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 : TRUE COPY OF THE PANEL AS PUBLISHED BY 3RD RESPONDENT ] UNDER F.NO.1/1/2005/LDCL-CTOD DT.17-9-2005.

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EXHIBIT P2 : TRUE COPY OF THE LETTER BEARING F.NO.1/1/2007-CTOD DT.11-12-2007 ISSUED BY 3RD RESPONDENT.

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EXHIBIT P3: TRUE COPY OF THE ORDER BEARING F.NO.8/2/96 PORT (OPB) (VOL.II) DATED 25 FEBRUARY 2008, ISSUED BY R4.

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EXHIBIT P4: TRUE COPY OF THE JUDGMENT DT.30TH MARCH 2012, IN WPC 15080/2009 RENDERED BY THIS HON'BLE COURT.

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EXHIBIT P5 : TRUE COPY OF THE ORDER BEARING F.NO.8/2/96-PORT (OPB) DT.24-3-2011,ISSUED FROM THE OFFICE OF 4TH RESPONDENT.

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EXHIBIT P6 : TRUE COPY OF THE REPRESENTATION DT.25-11-2011 ADDRESSED TO R2.

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EXHIBIT P7 : TRUE COPY OF THE P6 DT.25-11-2011 SUBMITTED TO THE 1ST RESPONDENT.

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EXHIBIT P8: TRUE COPY OF THE ORDER BEARING F.NO.LDCL/EST/2012 DT.3-11-2012 ISSUED FROM THE OFFICE OF 3RD RESPONDENT.

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EXHIBIT P9 : TRUE COPY OF THE REPRESENTATION DT.26-12-2012 ADDRESSED TO 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS

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EXHIBIT R1(A):- A TRUE COPY OF NOTIFICATION F.NO.1/1/2005-CTOD DATED 29.7.2005.

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EXHIBIT R1(B):- A TRUE COPY OF THE AGENDA NOTE OF THE 71ST MEETING OF BOARD OF DIRECTORS ALONG WITH THE LIST OF JUNIOR SIGNALMEN.

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EXHIBIT R1(C) & (D):- TRUE COPIES OF THE ORDER ISSUED BY DEPARTMENT (PORT,SHIPPING & AVIATION) AND GENERAL MANAGER, LDCL.

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EXHIBIT R1(E):- A TRUE COPY OF THE MINUTES OF THE 71ST BOARD MEETING.

/TRUE COPY/

PS TO JUDGE

02/04/2018

P.V.ASHA J.

W.P.(C).Nos.9242 & 23228 of 2013

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-------------------------------------

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Dated this the 8^th day of March, 2018

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JUDGMENT

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Petitioners in both these cases are working as

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Junior Signalmen in the Lakshadweep Development Corporation Limited. The parties and documents referred to in this judgment are as described in W.P.(C) No.9242/2013. They are aggrieved by the denial of scale of pay on par with other Junior Signalmen including those who were appointed along with them.

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Petitioners were appointed as temporary Signalmen on the basis of selection conducted for the post as per Ext.P1 proceedings dated 17.09.2005. At the time of filing this writ petition, they were getting a consolidated pay of Rs.7,500/-.

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The petitioners submitted that there were 43 Junior Signalmen under the Corporation. The Corporation,

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W.P.(C).Nos.9242 & 23228 of 2013

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in its meeting held on 26.03.2007 considered the question of granting scale of pay to the Junior Signalman and it was decided that those who had completed 5 years of continuous service and successfully completed GMDSS Course would be regularised as Junior Signalman in the pay scale of Rs.4000-100-6000. Based on that decision, Ext.P3 order was issued on 25.02.2008 in which it was ordered as follows:

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“(I) All the Junior Signalmen on completion of 5 years regular service will be eligible for regular scale of pay of Rs.3200-85-4900 with effect from the date of the 71^st meeting of the Board of Directors of Lakshadweep Development Corporation held on 18^th June, 2007 at Kochi.

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(II) All the Junior Signalmen under Port Control Tower scheme on completion of 12 years of service from the date of their initial appointment as Junior Signalmen will be given the benefit of ACP scheme to the next scale of pay of Rs.4000-100-6000.”

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Thus the Junior Signalman who completed 5 years regular service became eligible for regular scale of pay of Rs. 3200-85-4900 with effect from the date of 71^st meeting of the Board of Directors viz.

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W.P.(C).Nos.9242 & 23228 of 2013

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18.06.2007. On completion of 12 years of service from the date of initial appointment, the Junior Signalmen became eligible for the benefit of ACP scheme.

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Petitioners submit that one,

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Smt.Fazalu Rahamath K.I, who was appointed along with the petitioners as per Ext.P1 proceedings, approached this Court and this Court in Ext.P4 judgment directed as follows:

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“3. The counsel for the respondents submits that the salary claimed by the petitioner would be paid provided she has completed five years service in the post occupied by her.

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4. In the light of the above submission, this writ petition is disposed of directing the respondents to pay to the petitioner salary at the regular scale of pay of Rs.3200-85-4900 with subsequent modifications provided, the petitioner has completed five years of service as Junior Signalman. The respondent shall take a decision in the matter and make the payment as stated above as expeditiously as possible and at any rate within a period of three months from the date of receipt of a copy of this judgment.”

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On implementation of Ext.P4 judgment, the

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W.P.(C).Nos.9242 & 23228 of 2013

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Corporation issued Ext.P8 order dated 03.11.2012, granting the scale of pay of Rs.3200-85-4900 to the petitioner therein, Smt.Fazalu Rahmath. Pointing out the Ext P4 judgment and its implementation in Ext.P8, petitioners submitted representations before the Managing Director of the Corporation on 26.12.2012 requesting for extending similar benefit to them in accordance with Ext.P3 order. It was pointed out that they had been working from 01.10.2005 onwards and are fully qualified with Diploma in Electrical Engineering, MRT (NCVT) Certificate and GMDSS (GOC).

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The petitioner's earlier request for scale of pay and regularisation was once rejected as per Ext.P2 on 11.12.2007, stating that he had completed

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only two years of service and as per the decision of the Board of Directors, only those who had completed 5 years of continuous satisfactory service alone were

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entitled to the benefit of the decision in the meeting held on 18.06.2007. It was thereafter that Ext.P8

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W.P.(C).Nos.9242 & 23228 of 2013

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order was issued based on Ext P4 judgment and petitioners submitted further representations. As the respondents did not take any action, petitioners filed these writ petitions seeking directions to grant them the scale of pay of Rs.3200-85-4900 in the V CPC and to grant Rs.5200-20200 plus GP Rs.2000/- in the VI CPC w.e.f. 01.10.2010, with all consequential arrears of pay and allowances.

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The respondents filed a counter affidavit stating that the petitioners are not entitled to the benefit of the decision in Ext.P3. It was stated that the appointment of the petitioners were purely temporary on contract basis on consolidated pay of Rs.4,000/- per month and petitioners had accepted all the conditions in Ext.R1(a) notification.

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It is further stated that even though there was a suggestion for the regularisation of Junior Signalman in the scale of pay Rs.4000-100-6000, in the 71^st meeting, it was decided that those who had

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W.P.(C).Nos.9242 & 23228 of 2013

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completed 5 years of continuous service can be considered for the same. It is further stated that the Board of Directors of Corporation accepted only the first proposal i.e., granting pay scale of Rs.4000-100-6000 to those who completed 5 years of continuous service as Junior Signalman and successfully completed GMDSS course. It is stated that the case of all the 43 persons were placed before the Board of Directors, with the suggestion that those who had completed 5 years and pass in GMDSS course would be eligible for the scale of pay of Rs.4000-1006000 and those who had not completed 5 years would be granted next lower scale of pay Rs.3200-85-4900 and that the remaining who had not undergone GMDSS course would be awarded regular pay scale of Rs.3200-85-4900 on successful completion of the course.

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According to the respondents, as a one time measure a decision was taken to grant the benefit only for those who have completed 5 years continuous

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W.P.(C).Nos.9242 & 23228 of 2013

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satisfactory service as Junior Signalman and successfully completed GMDSS course. The decision of the Board was forwarded to the Department of Port, Shipping & Aviation and thereafter on 25.02.2008, the Director ordered that all the Junior Signalmen on completion of 5 years of regular service would be eligible for regular scale of pay of Rs.3200-85-4900 with effect from the date of the 71^st meeting of the Board of Directors viz. 18.06.2007.

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Accordingly, the benefit of that decision

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was granted to 40 Junior Signalman as per the list furnished by the Board. According to the respondents, the petitioners are not entitled to the benefit of the decision taken by the Board because they had not completed 5 years of regular service as on the date of the decision. It is also stated that another proposal was made by the Board in the year 2011 for granting regular scale of pay to Junior Signalmen. It is stated that the proposal submitted in 2011 for

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W.P.(C).Nos.9242 & 23228 of 2013

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granting regular scale of pay to petitioners was rejected by the Director of Ports, as per Ext.P5 letter stating that only those who had completed 5 years of service would be eligible for the regular scale of pay.

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The case of the petitioners is that out of the 44 persons who were working as Junior Signalmen on contract basis, 40 persons were granted the benefit of scale of pay as early as in 2007 based on Ext.P3 order

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and yet another person got benefit on the basis of Ext.P4 judgment and the petitioners in these cases, are the only persons who are left out, without granting the scale of pay even after completion of about 13 years. All the 40 persons got the benefit immediately on completion of 5 years of service.

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The contention of the respondents in this case is that the Ext.P4 judgment happened to be rendered on the basis of a wrong submission made by the learned counsel who appeared for the respondents

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W.P.(C).Nos.9242 & 23228 of 2013

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and that Ext.P3 order was issued only as a one time measure. However the respondents readily granted him the benefit of the Ext.P3 order, in implementation of the judgment. The respondents submit that this mistake happened to be noticed only while filing the counter affidavit in this writ petition.

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The petitioners are relying on the judgment of the Apex court in State of Punjab and Others v. Jagjit Singh and Others [2017 (1) SCC 148] also, where it was held that an employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Anyone who is compelled to work at a lesser wage does not do so voluntarily. It was held that any act of paying lesser wages as compared to others similarly situated constitutes an act of exploitation, enslavement, emerging out of a domineering position.

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I have considered the contentions raised on either side. Even in the absence of any decision to

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W.P.(C).Nos.9242 & 23228 of 2013

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grant the scale of pay of Rs.3200-85-4900 to all those who completed 5 years of service as per Ext.P2, it is seen that there are only 44 persons working as Junior Signalmen and the cases of all these persons were placed before the Board of Directors with the suggestion of giving them scale of pay on completion of 5 years of service. Out of the 44 persons 41 are in regular scale of pay from 2007 onwards and another one from 2012 onwards whereas the petitioners are compelled to work on consolidated pay of Rs.4,000/which was allowed as Rs.7,500/- subsequently.

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Respondents do not have a case that there is any difference in the nature of duties or responsibilities for those placed in the scale of pay. There is no difference between them except for the number of years of service. When a decision was taken in the case of 40 persons to grant the scale of pay on completion of 5 years of service, even assuming that it was a one time measure and it was applicable only

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W.P.(C).Nos.9242 & 23228 of 2013

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to those who had completed 5 years of service as on the date on which the Director Board meeting was held,

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the respondents cannot deny the scale of pay as given

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to the seniors of the petitioners and to Smt.Fazalu Rahmath on completion of 5 years of service.

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In the above circumstances, I find that the denial of even the scale of pay to the petitioners as in the case of the 40 persons as per Ext.P3 order is arbitrary and discriminatory, in the light of the judgment of the apex court in Jagjit Singh's case (supra) where the apex court held as follows:

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57. There is no room for any doubt that the principle of “equal pay for equal work” has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarised by us in para 42 hereinabove.

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W.P.(C).Nos.9242 & 23228 of 2013

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The principle of “equal pay for equal work” has also been extended to temporary employees (differently described as work-charge, daily wage, casual, ad hoc, contractual, and the like). The legal position, relating to temporary employees has been summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again.

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58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is

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W.P.(C).Nos.9242 & 23228 of 2013

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oppressive, suppressive and coercive, as it compels involuntary subjugation.

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Therefore, there shall be a direction to the

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respondents to see that petitioners are also granted the scale of pay of Rs.3200-4900 with effect from the date on which they completed 5 years of service or as in the case of Ext.P8 order and to grant them all consequential benefits within a period of 'three months' from the date of receipt of a copy of this judgment.

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These writ petitions are disposed of,

accordingly.

Sd/-

P.V.ASHA, JUDGE.

K. Cheriyakoya v. Administrator Utl

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K. Cheriyakoya v. Administrator Utl

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