Dismissed

Pratap Singh S/O Late Shri Khuba Ram v. Hindustan Coppeer Ltd.

Rajasthan HC24 May 2023SAW/1386/2019

Case brief

AI extract

What is this about?

This Special Appeal Writ challenged the dismissal of a petition seeking equal pay and allowances for workmen compared to executives at Hindustan Copper Ltd. The High Court dismissed the appeal, finding the Single Judge correctly held that workmen and executives belong to different categories with distinct service conditions, rendering the Equal Pay principle inapplicable.

What did the court decide?

The writ petition and review petition were dismissed with no interference from the High Court.

Pratap Singh S/O Late Shri Khuba Ram Vs… — Pension and Retirement Benefits | Rajasthan HC (2023)

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[2023/RJJP/010751]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 1386/2019

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Pratap Singh S/o Late Shri Khuba Ram, Aged About 64 Years, D- 128 Kolihan Nagar, Tehsil, Khteri, Distt. Jhunjhunu

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----Appellant

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Versus

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Hindustan Copper Ltd., Through Its Cmd, Tmar Bhawan, 1 Ashutosh Choudhary Marg, Avenue, Kolkata

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Executive Director, Khetri Copper Complex, Khteri Nagar, Distt. Jhujhunu

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Government Of India, Through Its Secretary Mines, Shastri Bhawan, New Delhi

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Rashtriya Copper Majdoor Congress (INTUC), Khetri Nagar, Joint General Secretary, Kishan Lal Sharma S/o P R Sharma (Since Deceased) So Now Through Its General Secretary, Intuc Office, At Khteri Nagar, Distt. Jhujhunu

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----Respondents

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For Appellant(s)	:	Mr.Mangal Chand Taylor, Adv. with Mr.R.M.Bairwa, Adv.
For Respondent(s)	:	Mr.Abhay Kumar Bhandari, Sr. Adv. with Mr.Vaibhav Bhargava, Adv. Mr.Rajendra Prasad, Sr. Adv. with
		Mr.Sanju Sain, Adv. & Mr.Abhimanyu Singh, Adv.

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR HON'BLE MR. JUSTICE ASHUTOSH KUMAR

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Order

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24/05/2023

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The instant appeal has been filed by the appellant challenging the judgment dated 25.04.2017 passed by the learned Single Judge and the order dated 10.07.2019 passed in Review

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Petition No.265/2017 dismissing the review petition filed by the appellant.

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The respondent No.4 i.e. the Union of Workmen and the present appellant being Union Activist jointly filed a writ petition before the learned Single Bench mainly raising the grievance in respect of granting allowances to the workmen on the same rate, as granted to the Officers of the respondent-employer; sought a direction to pay ‘Performance Related Pay’ (PRP) to the workmen; revised pay of the workmen with effect from 01.01.2007 like Officers and in the alternative, direction was sought to pay arrears of 25 months, said to be illegally withheld by the respondentemployer.

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The learned Single Judge by the order dated 25.04.2017 dismissed the said writ petition, as the same was found to be not having any substance.

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The petitioners preferred review petition i.e. S.B.Review Petition (Writ) No.265/2017 and the said review petition also came to be dismissed by the learned Single Judge vide order dated 10.07.2019 and only clerical mistake/correction in the order passed in the writ petition was made and the writ petition was treated to have been decided on 25.05.2017 instead of 25.04.2017.

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Learned counsel appearing for the appellant has referred to the grounds raised in the memo of appeal and following grounds, in brief, have been raised in the pleadings by the appellant.

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5.1. Learned Single Judge has erred in dismissing the writ petition on the ground that the Workmen and the Executives of the respondent-company constitute a different category and wrongly applied the principle of “Equal Pay for Equal Work”.

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Learned Single Judge did not consider the arbitrariness and discrimination by granting Dearness Allowance from two different dates i.e. in the case of Executives (Officers) w.e.f. 01.01.2007 and in the case of Workmen w.e.f. 01.11.2007.

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5.2. The learned Singe Judge has wrongly refused to grant Performance Related Pay (PRP) to the workmen on a wrong premise that Executives and Workmen constitute a different category.

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The arbitrariness and discrimination by granting Performance Related Pay (PRP) in the Scheme of 2009 specifically provided that ‘Performance Related Pay’ (PRP) was neither part of pay nor allowances nor wages. The Performance Related Pay (PRP) was meant to be granted to all the employees including the workmen and the same was not dependent on any profit being earned by the respondent-Company.

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5.3. The learned Single judge has wrongly recorded a finding that the petitioners did not challenge the award. The award since was not reached before the Conciliation Officer – Labour Court – Labour Tribunal and as such it was not binding on the persons, who were not party to the award.

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The settlement, if infringes upon the fundamental rights of the workmen, the same cannot came in the way of the workmen,

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who were not party to it and moreover, there was no settlement in respect of ‘Performance Related Pay’ (PRP).

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5.4. The learned Single Judge has erroneously dismissed the review petition when specific grounds were raised to recall the order passed by the learned Single Judge on a wrong legal premise as well as on factual aspects.

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Learned counsel Mr.M.C.Taylor appearing for the appellant has made following submissions, challenging the orders passed by the learned Single Judge:-

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6.1. The learned Single Judge could not have dismissed the writ petition by applying the principle of “Equal Pay for Equal Work” on the contrary, the case of the appellant-workmen was in respect of discrimination as compared to the benefits, which were extended to the Executives (Officers) and as such the very premise of the judgment of the learned Single Bench, is not legally sustainable.

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6.2. The learned Single Judge failed to consider that the allowances, which were paid to the workmen and the Executives were made effective from different dates and if the allowance were to be given, the employer had to give the same from the same day irrespective of their cadre and as such Article 14 of the Constitution of India has been violated.

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6.3. The learned Single Judge has failed to consider that in respect of grant of Dearness Allowance, the date and rate were differently prescribed for the Workmen and for the Executives and in the matter of grant of Dearness Allowance, no two yardsticks can apply.

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Learned counsel submitted that the Dearness Allowance is granted to the employees on account of Price Index, where different parameters are kept in mind of rising cost of certain prescribed yardsticks/pointers and only on account of two different categories of employees under the same employer, no different rate and date can be prescribed.

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6.4. The grant of performance allowance linked to the profit, cannot be a valid criterion and the same has to be granted to all the employees including the Workmen as well as the Executives.

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6.5. The learned Single Judge has wrongly applied the doctrine of estoppel against the workmen for not challenging the award and since the conciliation proceedings were not conducted before the Competent Court, no binding effect could have been attached, directing the workmen to be bound by the same.

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Learned counsel for the appellant has placed reliance on a judgment passed by the Orissa High Court in WPC No.28343/2011 (Coal Mines Officer’s Association Vs. Chairman-cum Managing Director, Coal India Ltd.) decided on 08.10.2012.

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The respondents-employer Hindustan Copper Limited has also filed reply to the Special Appeal apart from the reply, which was filed before the learned Single Bench. 9. The respondents have pleaded that the learned Single Judge has dealt with each and every aspect of the case and has rightly dismissed the writ petition as well as the review petition.

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The respondents have pleaded that the pay scale, allowances, etc. of the Executives and the Workmen are granted

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by invoking provisions having a statutory backing and there has been no discrimination, as has been alleged by the appellant.

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The respondents have pleaded that for the Executives, the guidelines with regard to the pay scale and allowances are framed by the Central Government keeping in mind the mandatory Presidential directives. The directives were further issued by the Department of Public Enterprises (DPE) regarding pay revision of Executives, as contained in the Office Memorandum dated 26.11.2008 read with Office Memorandum dated 02.04.2009.

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The respondents have pleaded that in case of the Workmen, the pay scale and allowances were outcome of the protracted negotiations with recognized Unions with the Management in bipartite forum called “National Joint Committee for Copper (NJCC)” within broad framework laid down by the Government of India.

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The tripartite agreement between the Management – the respondent No.1, NJCC Members and Chief Labour Commissioner (Central) was signed and as such the pay scale and allowances for the workman, had been reached after negotiations with the recognized Union of the company and the workmen of the company were duly recognized by the Unions operating at different establishments of the Company and the settlement dated 28.03.2011 was arrived at after taking into account various objections and negotiations.

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The respondents have pleaded that as far as grant of Dearness Allowance is concerned, the settlement dated

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28.03.2011 clearly provided that in case of the workmen, a higher Dearness Allowance component of 79.2% was contemplated in fixation of basic pay in Revised 2007 scales in place of 78.2%, which had been taken in case of the Executives considering the fact that the pay scales in case of the Executives were revised w.e.f. 01.01.2007 and of the Workmen w.e.f. 01.11.2007, moreover settlement granted an additional allowance of half increment i.e. 1.5% of basic pay of workmen.

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The respondents have pleaded that the wage revision of the Executives and the Workmen are not comparable and they are based on different parameters.

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The respondents have pleaded that the Performance Related Pay Scheme (PRP) does not apply to the Workmen and the said scheme forms part and parcel of the Executive Performance Management Scheme (PMS) and the same is aimed at assessment of performance of an Executive with respect to defined performance parameters as well as the performance of an Executive comparable to other Executive in an Appraisal Year – Financial Year.

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The respondents have pleaded that for workmen there exists a Performance Reward Scheme, which exclusively provides for payment of Performance Reward to the workmen based on the physical performance of the company and Performance Reward of Rs.11,000/- has been paid to each workman on the Rolls of Company as on 01.09.2011 for the Financial Year 2011-12 and as such allegation pertaining to discrimination is baseless.

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The respondents have pleaded that the petitioners did not come with clean hands before the Court and concealed the material fact, as they concealed the existence of settlement dated 28.03.2011, as the same was culmination of all orders issued in the matter of revision of Pay scales & Allowances etc. relating to the workmen, to which the petitioner No.1 was a party.

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The respondents have specifically pleaded that the respondent No.4 – Union of Workmen was party to the settlement, as it was related to INTUC, which was the party to the settlement and as such the appellant and the respondent No.4 were bound by the settlement dated 28.03.2011 and the material facts were concealed in the writ petition filed by the petitioners.

¶72

Learned Senior counsel Mr.Abhay Kumar Bhandari appearing on behalf the respondent-employer submitted that the appellant cannot be permitted to raise a grievance of discrimination, as service conditions have always been different for the Workmen and the Executives. The benefits, which are extendable to the Workmen are of different nature and various incentives are given to the Workmen, which are not given to the Executives.

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Learned counsel for the respondent further submitted that the allegation of paying less Dearness Allowance is also incorrect. Learned counsel submitted that the Dearness Allowance is linked with the pay of an employee and if the pay would be higher then accordingly, the Dearness allowance will also be higher.

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Learned counsel submitted that the different dates, which have been prescribed are according to the decision taken by the

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Central Government and the negotiations, which have been held with the different Unions of the Company.

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Learned counsel for the respondents has placed reliance on the following judgments passed by the Apex Court. (a) State of Orissa and Ors. Vs. Balaram Sahu and Ors. reported in (2003) 1 SCC 250 ;

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(b) State of Haryana and Ors. Vs. Jasmer Singh & Ors. reported in (1996) 11 SCC 77 ;

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We have heard learned counsel for the parties and perused the material available on record. 25. This Court finds that the learned Single Judge, after considering the contentions of the parties, recorded a finding on the basis of the facts and material placed on record that Workmen (petitioners) and Executives belong to two different categories and they could not be considered equal. The service conditions have been found to be governed by different provisions and as such there has been no violation of Articles 14 & 16 of the Constitution of India, as was convassed by the appellant before the learned Single Judge.

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We further find that the learned Single Judge has considered the memorandum of settlement to resolve the issue of wages between the employees and the management of Hindustan Copper Ltd. and on intervention being made by the Chief Labour Commissioner (Central), certain issues were resolved and as such settlement was arrived at during the course of conciliation

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proceedings with recognized majority Unions and the same has been found to be binding on the workmen of the establishment.

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We further find that the learned Single Judge has taken into consideration the law laid down by the Apex Court in respect of “Equal Pay for Equal Work” as same is dependent not only on the nature or volume of the work but also on the qualitative differences as well as liabilities and responsibilities.

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The submission of learned counsel for the appellant that the employer while issuing Office order dated 26.05.2008 had merged 50% of the dearness allowance with basic pay to the employees of Central Public Sector Enterprises and the same was made applicable from 01.01.2007 and in respect of the workman different office order dated 13.01.2011 was issued. This Court, on bare reading of the Office order dated 22.05.2008, finds that the employer i.e. Hindustan Copper Ltd. had issued Office order, as per the Government directives of merger of basic pay to be effective from 01.01.2007 and the same was made applicable to the Executives.

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This Court further finds that the employer-respondents had issued office order dated 13.01.2011 i.e. revision of allowances, etc. of workmen to be effective from 22.10.2009 and certain allowances were discontinued as well like House Rent Allowance and few allowances were also introduced.

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This Court further finds that the Office order dated 02.03.2010 and 16.03.2011 were in respect of revision of pay scale of Executives with effect from 01.01.2007 and the scheme

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for Performance Related Pay (PRP) for Executives was introduced by providing different eligibility conditions.

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This Court finds that the petitioners in their entire writ petition did not make a reference of memorandum of settlement arrived at between the employer – Hindustan Copper Limited and its workmen, represented by recognized Unions. 32. This Court finds that terms of settlement were reduced in writing and the same came to valid for a period of five years w.e.f 01.11.2007 to 31.10.2012.

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This Court finds substance in the submission of learned counsel for the respondents that the petitioners were guilty of concealment of important facts while filing of the writ petition, as there was no whisper in the entire writ petition of any settlement arrived at between the workman and the management.

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This Court also finds that the prayers made by the petitioners were only by way of seeking directions for mandamus, even the different orders, which were passed by the respondents prescribing different service conditions including the pay and other allowance, were not put to challenge.

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The prayer made in the writ petition also sought general directions and if the petitioners are workmen and different pay scales or other benefits were not accorded to them, the filing of writ petition without challenging these orders, also cannot be approved by this Court.

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The submission of learned counsel for the appellant that different date and rate could not have been prescribed by the employer and the same is discriminatory in nature, suffice it to

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say by this Court that if service conditions of the workmen and Executives were altogether different, right from inception of the company and different benefits are extended in different shapes to different employees i.e. Executives & Workmen then comparing and clubbing of such benefits cannot be permitted in the eye of law.

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The service conditions of each cadre, if regulated by different scheme of rules or orders, no comparison can be made in respect of different service conditions prescribed by the employer considering the nature of job, responsibility of job and other relevant considerations like educational qualifications for appointment, mode of recruitment, Status, nature of duties, functions, measure of responsibility and overall duties and responsibilities even outside the duty hours.

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The reliance placed by learned counsel for the appellant on the judgment passed by the Apex Court in the case Coal Mines Officer’s Association Vs. Chairman-cum Managing Director,

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Coal India Ltd. (supra) is not at all applicable in the present facts and circumstances of the case.

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This Court, accordingly finds that the judgment passed by the learned Single Judge does not require any interference and accordingly the appeal is dismissed.

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(ASHUTOSH KUMAR), J

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(ASHOK KUMAR GAUR), J

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Monika/28

Pratap Singh S/O Late Shri Khuba Ram v. Hindustan Coppeer Ltd.

Case brief

What is this about?

What did the court decide?

Pratap Singh S/O Late Shri Khuba Ram v. Hindustan Coppeer Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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