(Civil) No. 548 of 1987.

(Under Article 32 of the Constitution of India).

M.C. Dhingra for the Petitioners.
Kapil Sibal, K.G. Bhagat, A.K. Ganguli, Ms. Kamini Jaiswal, 664 Ms. Aruna Mathur,
A. Mariarputham, Harminder Lal and Naresh K. Sharma for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The petitioners are carpenters 1st and 2nd grade employed at the Wood Working
Centre of the Himachal Pradesh State Handicrafts Corporation (the "Corpo ration").
They are termed as daily rated employees.
In this petition under Article 32 of the Constitution, they are seeking enforcement
of their fundamental right to have "equal pay for equal work".
They demand payment in terms paid to their counterparts in regular services.
They want the same pay of the regular employees as carpenters or in the
alternative, the minimum wages prescribed by the Deputy Commissioner for like
categories of workmen.
They also seek regularisation of their services with the benefits of pen sion,
gratuity etc.
The Corporation has resisted the petitioners ' claim.
The case of the Corporation is that the unit where the petition ers are working is
a factory registered under the Factories Act.
The petitioners are treated as industrial workmen and .are given all benefits due
to them under the various labour legislations.
The Government has not fixed the mini mum wages payable to the petitioners engaged
in the Corpora tion or other like industries, but the Corporation has adopted the
minimum wages payable for similar work in the construction industry.
They are being paid the same wages as are payable to carpenters, painters and
carpenters ' helpers engaged in the construction industry.
They are given bonus under the Bonus Act and provident fund benefits under the
Employees ' Provident Fund Act.
It is also stated that the petitioners are supplied with the necessary tools for
carry ing out their work and also working uniforms like aprons and overalls.
The Corporation has clearly stated that there are no regular employees of the
petitioners ' categories in its establishment and, as such, the question of payment
to the petitioners, the pay admissible to regular employees does not arise.
A little more information about the purpose and object of the Corporation would be
useful for proper understanding of the case.
The Corporation is a company which has been incorporated under the .
The main object of the Corporation as seen from the Memorandum of Associa tion is
to preserve the traditional arts and crafts and also to popularise handicrafts and
handloom items 665 in the State of Himachal Pradesh and other parts of the country
and abroad.
In order to achieve this primary objec tive, the Corporation gives training to
artisans, weavers and craftsmen in various traditional arts and crafts.
During the period of training, the trainees are paid a stipend by the Corporation.
Upto 31st March, 1987, the Corporation has imparted training to as many as 1662
persons in different areas like carpet weaving, handloom weaving, painting, metal
crafts, wood carving, etc.
Apart from giving training, the Corporation also ensures marketing support to the
artisans and craftsmen by purchasing their products at remunerative prices and sell
them through the marketing network of the Corporation.
It is thus a service oriented organisation helping the village artisans and
craftsmen to produce and market their products on remunerative prices.
It is said that the village artisans and craftsmen make different items on a piece
rate basis and in some cases, they execute the work in their own homes.
The financial aspect of the Corporation is stated to be not encouraging, and
indeed, it is disappointing.
It has suffered huge loss and the total losses accumulated hitherto is Rs.69.77
lakhs.
Nonetheless, for the purpose of preserv ing and promoting traditional arts and
crafts, the Corpora tion has been kept alive.
But to avoid or minimise further loss, it is stated that the Corporation has
reduced its overheads and maintained only the administrative staff in the
production centers at different parts of the State and no permanent craftsmen are
employed.
With these facts, we may now turn to the principle upon which the petitioners '
case is rested.
The principle of "equal pay for equal work" is not one of the fundamental rights
expressly guaranteed by our Constitution.
The princi ple was incorporated only under Article 39(d) of the Consti tution as a
Directive Principle of State Policy.
Perhaps, for the first time, this Court in Randhir Singh vs Union of India, ; has
innovated that it is a constitu tional goal capable of being achieved through
constitutional remedies.
There the Court pointed out that that principle has to be read into Article 14 of
the Constitution which enjoins the State not to deny any person equality before the
law or the equal protection of the law and also to Article 16 which declares that
there should be equality of opportu nity for all citizens in matters relating to
employment or appointment to any office under the State.
Randhir Singh case was concerned with a driver constable in the Delhi Police Force
under the Delhi Administration.
He claimed equal salary for equal work at that of other drivers.
The Court found that the petitioner therein performed the same func 666 tions and
duties as other drivers in the service of Delhi Administration.
The Court, therefore, directed the Central Government to fix the pay scale of the
petitioner on par with his counterparts doing identical work under the same
employer.
In the immediate aftermath of the decision in Randhir Singh case, there were bumper
cases filed in this Court for enforcement of the right to "equal pay for equal
work", perhaps little realising the in built restrictions in that principle.
It may not be necessary here to refer to all those decisions since almost all of
them have been consid ered and explained in the recent two decisions to which one
of us was a party (K. Jagannatha Shetty, J.).
Reference may be made to: (i) State of U.P. vs J.P. Chaurasia, ; and (ii) Meva Ram
Kanojia vs All India Institute of Medical Sciences and Anr., ; In Chaurasia case
the question arose whether it was permissible to have two different pay scales in
the same cadre of Bench Secre taries of the Allahabad High Court who were for all
practi cal purposes performing similar duties and having same responsibilities.
The Court held that the principle of "equal pay for equal work" has no mechanical
application in every case of similar work.
Article 14 permits reasonable classification rounded on rational basis.
It is, therefore, not impermissible to provide two different pay scales in the same
cadre on the basis of selection based on merit with due regard to experience and
seniority.
It was pointed out that in service, merit or experience could be the proper basis
for classification to promote efficiency in administration and he or she learns
also by experience as much as by other means.
Apart from that, the Court has expressly observed that the higher pay scale to
avoid stagnation or resultant frustration for lack of promotional avenues may also
be allowed.
Meva Ram Kanojia is the most recent decision which has exhaustively dealt with all
the principles bearing on the question of equal pay for equal work in the light of
all the previous decisions of this Court.
There the petitioner was a "Hearing Therapist" in the All India Institute of
Medical Sciences.
He claimed pay scale admissible to "Senior Speech Pathologist", "Senior
Physiotherapist", "Senior Occupational Therapist", "Audiologist", and "Speech
Pathologist".
His case was based on the allegations that he was discharging same duties and
performing similar functions as "Senior Speech Therapist", "Senior
Physiotherapist", "Senior Occupa tional Therapist", "Audiologist" and "Speech
Pathologist".
But the Court held that the principle of equal pay for equal work cannot be invoked
invariably in every kind of service particularly in the area of professional
services.
It was also held 667 that it is open to the State to classify employees on the
basis of qualifications, duties and responsibilities of the posts concerned.
If the classification has reasonable nexus with the objective sought to be
achieved, efficiency in the administration, the State would be justified in
prescribing different pay scales.
Reference may also be made to the decision in Federation of All India Customs and
Central Excise Stenographers (Recognised) vs Union of India, ; There the Personal
Assistants and Stenographers attached to the Heads of Department in Customs and
Central Excise Department of the Ministry of Finance made a claim for parity of
wages with the Personal Assistants and Stenographers attached to Joint Secretaries
and Officers above them in Ministry of Finance.
The Court while rejecting the claim expressed the view (at 100): "But equal pay
must depend upon the nature of the work done, it cannot be judged by the mere
volume of work, there may be qualitative difference as regards reliability and
responsibility.
Functions may be the same but the responsibilities make a difference.
One cannot deny that often the difference is a matter of degree and that there is
an element of value judgment by those who are charged with the administration in
fixing the scales of pay and other conditions of service.
So long as such value judgment is made bona fide, reasonably on an intelligible
criterion which has a rational nexus with the object of dif ferentiation, such
differentiation will not amount to discrimination.
It is important to emphasize that equal pay for equal work is a concomitant of
Article 14 of the Constitution.
But it follows naturally that equal pay for unequal work will be a negation of that
right." Thus the law relating to equal pay for equal work has been practically
hammered out and very little remains for further innovation.
In the light of the aforesaid principles, we may now consider whether the equality
claims of the petitioners could be allowed.
We have carefully perused the material on record and gave our anxious consideration
to the question urged.
From the averments in the pleadings of the parties it will be clear that the
Corporation has no regularly employed carpenters.
Evidently the petitioners are claiming wages payable to the carpenters in
Government service.
We do not think that 668 we could accept their claim.
In the first place, even assum ing that the petitioners ' jobs are comparable with
the counterparts in the government service, the petitioners cannot enforce the
right to "equal pay for equal work".
The discrimination complained of must be within the same estab lishment owned by
the same management.
A comparison cannot be made with counterparts in other establishments with
different management, or even in establishments in different geographical locations
though owned by the same master.
Unless it is shown that there is a discrimination amongst the same set of employees
by the same master in the same establishment, the principle of "equal pay for equal
work" cannot be enforced.
This was also the view expressed in Meva Ram Kanojia vs A.I.I.M.S., ; at 245.
In the instant case, the petitioners are employed by a company incorporated under
the .
They cannot claim wages payable to their counterparts in government service.
Secondly, it may be noted that the petitioners are carpenters; better called as
craftsmen.
By the general description of their job, one cannot come to the conclusion that
every carpenter or craftsmen is equal to the other in the performance of his work.
The two jobs by the mere nomen clature or by the volume of work performed cannot be
rated as equal.
It is not just a comparison of physical activity.
It requires the consideration of various dimensions of the job.
The accuracy required by the job and the dexterity it entails may differ from job
to job.
It cannot be evaluated by the mere averments in the self serving affidavits or
counter affidavits of the parties.
It must be left to be evaluated and determined by expert body.
The principal claim of the petitioners therefore fails and is rejected.
The next contention that the petitioners should be paid at least the minimum wages
prescribed by the Deputy Commis sioner under Exhibit P. 2 dated March 20, 1986
cannot also be accepted.
exhibit P. 2 was issued by the Deputy Commissioner in the exercise of his powers
under the H.P. Financial Rules.
It is applicable only to skilled and unskilled work ers in class IV employees in
Government service.
It has not been extended to employees of the Corporation.
The petition ers have been treated as construction workers and they are being paid
the minimum wages admissible to such workmen.
The Court, therefore, cannot direct the Corporation to apply the rates prescribed
under exhibit P. 2 unless the Government makes it applicable to employees of the
Corporation.
As to the claim for regularisation of services of the peti tioners, 669 we express
no opinion, since the factual data is disputed and is insufficient.
We leave the petitioners to work out their rights elsewhere in accordance with law
applicable to them.
In the result, the petition fails and is dismissed.
In the circumstances of the case, we make no order as to costs.
P.S.S. Petition dismissed.