Administrator, Krishi Upaj Mandi Samiti, Doongargarh, And Another v. Gauri Shankar

Arora, J.:— These two revision petitions arise out of the judgment, dated March 13, 1992, passed by the District Judge, Churu, by which the learned District Judge allowed the two appeals filed by workman Gauri Shanker and directed the employer (present petitioners) to make payment of Rs. 10,000 to respondent Gauri Shanker for the period from July 1, 1981 to August 31, 1982, and Rs. 1,000 for the period from September 1, 1984 to December 18, 1984, and fix him in the regular pay-scale admissible to the Class IV employee and after fixation, made the payment of the balance amount to Gauri Shanker within the period of three months. The learned District Judge further directed that if the payment is not made within the stipulated period then the workman will be entitled to interest at 12 per cent per annum of this amount. Since both the revision petitions arise out of the same judgment and raise the same controversy between the same parties, though for different period, they are, therefore, being disposed of by this common judgment.

2. The facts, in brief, which led to the present litigation, are that respondent Gauri Shanker was appointed in the office of the Krishi Upaj Mandi Samiti, Doongargarh (District Churu) on May 6, 1980, on daily wages basis at the wages of Rs. 240 per month. His services were terminated on June 30, 1981. Sri Gauri Shanker challenged this order of termination of his services before the Labour Court. The Labour Court, while adjudicating the dispute, vide its judgment, dated March 30, 1984, held that the action of the Administrator-cum-Secretary, Krishi Upaj Mandi Samiti, Doongargarh (District Churu), terminating the services of Gauri Shanker with effect from March 30, 1981, was illegal and void and deserves to be quashed and set aside. While setting aside the termination order of Gauri Shanker, the Tribunal directed the respondents to reinstate the workman with full wages and to grant him to consequential benefits.

3. The petitioner though filed a writ petition challenging the award, dated March 30, 1984, and, also reinstated respondent Gauri Shanker on December Page: 37019, 1984; Sri Gauri Shanker, on September 18, 1984, moved an application under S. 15(2) of the Payment of Wages Act (for short, the Act) before the Authority under the Payment of Wages Act, Bikaner, for the payment of wages relating to the period between July 1, 1981 to August 31, 1984. He also, moved another application under S. 15(2) of the Act before the same authority on September 18, 1984 for the payment of wages relating to the period from September 1, 1984 to December 18, 1984. It was averred in these applications that the applicant has not been paid the wages in the regular pay-scale of Rs. 350-5-430 and the non-applicants have, thus, illegally deducted the amount of Rs. 18,552 (for the period from July 1, 1981 to August 31, 1984) and Rs. 2160 for the period from September 1, 1984 to April 1, 1985, which should be paid to him along with the compensation.

4. The claim petitions were opposed on behalf of the Krishi Upaj Mandi Samiti on the ground that the applications under S. 15(2) of the Act are not maintainable as the applicant has prayed for the payment of wages in accordance with the regular pay-scale and for the fixation of regular pay, which claim falls within the purview of potential wages and this question cannot be determined by the Authority under the Act under S. 15(2) of the Act. The Authority under the Payment of Wages Act, Bikaner, by its two separate orders, both, dated July 28, 1989, accepted the objections raised by the non-applicants and held that the dispute raised cannot be adjudicated by the authority under S. 15(2) of the Act in the absence of any order passed by the competent Court in favour of the applicant for the grant of wages in the regular pay-scale.

5. Dissatisfied with the orders passed by the Authority under the Payment of Wages Act, Bikaner, workman Gauri Shanker filed two appeals before the District Judge, Churu, who, by his judgment, dated March 13, 1992, allowed both the appeals and, also both the applications filed by Gauri Shanker under S. 15(2) of the Act. It is against this judgment that the petitioners have preferred these two revision petitions.

6. Both the revision petitions came-up for consideration before Hon'ble the Chief Justice, who, by his order, dated April 18, 1994, referred the revision petitions for adjudication before the Division Bench as they involved an important question of law with regard to the scope and extent of jurisdiction of the authority under S. 15(2) of the Act. This is how that these two revision petitions have come up for adjudication before this Bench.

7. It is contended by the learned counsel for the petitioners that the Authority, under S. 15(2) of the Act, cannot adjudicate any dispute relating to the fixation of the applicant in regular pay-scale. The determination and computation of the workman's claim for computation of wages at certain rate on the principle of “equal pay for equal work” is beyond the scope of S. 15(2) and the judgment passed by the learned District Judge, Churu, therefore, deserves to be quashed and set aside.

8. Learned counsel for the respondent, on the other hand, has submitted that the authority under S. 15(2) of the Act, has jurisdiction to entertain such claim and can adjudicate the matter applying the doctrine of “equal pay for equal work”.

9. We have considered the submissions made by the learned counsel for the parties. The question which requires consideration in the present case is: whether in view of the limited jurisdiction of the authority under S. 15(2) of the Act, the authority was competent to deal with such question and pass an order applying the doctrine of “equal pay for equal work”?

10. Sub-section (2) of S. 15 of the Act authorises the employee to approach the Authority under the Payment of Wages Act—

(i) where contrary to the provisions of the Act, any deduction has been made from the wages of an employed person; or

(ii) any payment has been delayed.

The authority, under this section, has jurisdiction only to determine the actual wages payable as per the terms of the employment and has no jurisdiction to decide or determine the question of entitlement of the applicant under the doctrine of “equal pay for equal work” because that matter can be decided only by the competent forum other than the authority under the Payment of Wages Act. The dispute concerning the wages and fixation of pay is outside the scope of jurisdiction under S. 15(2) of the Act. Section 15(2) of the Act postulates that wages payable by a person for payment under S-3 are certain and undisputed. The authority, under this section, can adjudicate the cases where the facts arising are admitted or which cannot be disputed and which, by reason of falling the same under the definition of “wages,” the authority must have jurisdiction to try and determine it.

11. In A.V.D'. costa, Divisional Engineer, G.I.P Railway v. B.C Patel, [A.I.R 1955 S.C 412], respondent 2 was employed as a carpenter on daily wages basis with the Railway Administration. The Railway Administration subsequently introduced a scheme, which created a cadre of skilled labourers on the scale of monthly rated pay and admitted to it only those persons who passed the Test. The employee did not pass the test and continued to serve as an employee on daily wages. He filed an application under S. 15(2) of the Act before the authority under the Payment of Wages Act to recover the additional amount of wages that would have become payable to him had he been taken on the cadre of monthly rated employee. The Supreme Court, after considering the scheme of the Act, held:

“If the parties entered into the contract of service, say by correspondence and the contract is to be determined with reference to the letters that passed between them, it may be open to the authority to decide the controversy and find out what the terms of contract with reference to these letters were. But if an employee were to say that his wages were Rs. 100 per month, which he actually received as and when they fall due, but that he would be entitled to higher wages, if his claims to be placed on the higher wages scheme had been recognised and given effect to, that would not, in our opinion, be a matter within the ambit of jurisdiction.

The authority had the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages; but the authority has no jurisdiction to determine the question of potential wages…

The appellant is responsible to pay the respondent only such wages as are shown in the relevant register of wages presumably maintained by the department under the provisions of the Act, but he cannot be directed to pay the respondent higher wages as determined by the authority what he should have been placed on the monthly wages scheme”

(emphasis supplied.)

12. The scope of S. 15(2) of the Act again came up for consideration before the Supreme Court in; Shri Ambica Mills Company, Ltd. v. S.B Bhatt, [A.I.R 1961 S.C 970], and the Supreme Court, after examining the scheme of the Act, held:

“The only claims which can be entertained by the authority under S. 15 are claims arising out of dedications or delay made in payment of wages. The jurisdiction thus conferred on the authority to deal with these two categories of claims is exclusive. In dealing with claims arising out of deductions or delay made in payment of wages the authority inevitably would have to consider questions incidental to the said matters. In determining the scope of these incidental questions care must be taken to see that under the guise of deciding incidental matters the limited jurisdiction is not unreasonably or unduly extended. Care must also be taken to see that the scope of these incidental questions is not unduly limited so as to affect or impair the limited jurisdiction conferred on the authority. It would be inexpedient to lay down any hard and fast or general rule Page: 372which would afford a determining test to demarcate the field of incidental facts which can be legitimately considered by the authority and those which cannot be so considered”

The Supreme Court, though held that the authority under the Payment of Wages Act can consider the incidental question but declined to lay down any guideline which would afford a determining test to demarcate the field of incidental facts which could be considered by it and those which could not be so considered.

13. The scope of S. 15(2) of the Act again came up for consideration before the Supreme Court: Payment of Wages Inspector, Ujjain v. Suraj Mal Mehta, Director, Barnagar Electric Supply and Industrial Company, Ltd., [A.I.R 1969 S.C 590]. The question for consideration before the Supreme Court in this case was: Whether on the footing that compensation payable under S. 25-FF and S. 25-FFF of the Industrial Disputes Act, 1947, being wages within the meaning of S. 2(vi)(b) of the Act, 1947, a claim for it on the ground that the due payment was delayed by an employer, should be entertained under S. 15(2) of the Act? After considering the scheme of the Act and, also taking into consideration the two judgments of the Supreme Court in D'costa case (vide supra), as well as in Ambica Mills case, the Supreme Court held:

“It is true, as stated above, that the authority has the jurisdiction to try matters which are incidental to the claim in question. Indeed S. 15(1) itself provides that the authority has the power to determine all matters incidental to the claim arising from deductions from or delay in Payment of wages. It is also true that while deciding whether a particular matter is incidental to claim or not, care should be taken neither to unduly expand nor curtail the jurisdiction of the authority. But it has at the same time to be kept in mind that the jurisdiction under S. 15 is a special jurisdiction”.

The Supreme Court further observed that this claim cannot be entertained under S. 15(2) of the Act because—

(i) the claim made is not a simple case of deduction having been unauthorisedly made or payment having been delayed beyond the wage period;

(ii) in view of the defence taken by respondent 1, the authority would inevitably have to enter into the question arising under the proviso to S. 25-FF of the Industrial Disputes Act, 1947. The Supreme Court further held:

“But we do not think that a claim for compensation under S. 25-FF which is denied by the employer on the ground that it was defeated by the proviso to that section, of which all the conditions were fulfilled is one such claim which can fall within the ambit of S. 15(2). When the definition of wages was expanded to include cases of sums payable under a contract, instrument or a law it could not have been intended that such a claim for compensation which is denied on grounds which inevitably would have to be inquired into and which might entail prolonged inquiry into questions of fact as well as of law was one which should be summarily determined by the authority under S. 15. Nor could the authority have been intended to try as matters incidental to such a claim questions arising under the proviso to S. 25-FF. In our view it would be the Labour Court in such cases which would be the proper forum can determine such questions under S. 33-C(2) of the Industrial Disputes Act which also possesses power to appoint a commissioner to take evidence where question of facts require detailed evidence”.

The Supreme Court in Para. 8 of this judgment, also, set-out the guidelines for the entertainment of application under S. 15(2) of the Act, which reads as:

“It is explicit from the terms of S. 15(2) that the authority appointed under Sub-sec. (1) has jurisdiction to entertain applications only in two classes of cases, namely, of deductions and fines not Page: 373authorised under Ss. 7 to 13 and of delay in payment of wages beyond the wage periods fixed under S. 4 and the time of payment laid down in S. 5. This is clear from the opening words of Sub-sec. (2) of S. 15, namely where contrary to the provisions of this Act any deduction has been made or any payment of wages has been delayed. These being the governing words in the sub-section the only applications which the authority can entertain are those where deductions unauthroised under the Act are made from wages or there has been delay in payment beyond the wage period and the time of payment of wages fixed or prescribed under Ss. 4 and 5 of the Act. Section 15(2) postulates that the wages payable by the person responsible for payment under S-3 are certain and such that they cannot be disputed”.

14. In Divisional Personnel Officer, Western Railway, Ajmer v. Brij Lal Khanna, [A.I.R 1964 Raj. 66], the question for consideration before the Division Bench of this Court was: Whether the question regarding fixation of the salary would fall within the scope of S. 15? The Division Bench of this Court held:

“Fixation of pay in accordance with the rules is in fact determining the terms of employment of a person and the question of fixation of pay pure and simple does not fall within the purview of S. 15. The authority under the Payment of Wages Act has, therefore, no jurisdiction to issue directions in a case where the payment had been fixed and the arrears of excess payment were being collected by the authorities as no deductions whatsoever were being made in the wages”.

15. In Kunjbehari Lal v. Regional Assistant Labour Commissioner, Jaipur, [A.I.R 1970 Raj. 265], the scope of S. 15(2) of the Act in awarding the minimum wages, came up for consideration before a Single Bench of this Court and the learned Single Judge, after considering the scheme of the Act, held:

“In view of the definition of wages under S. 2(vi) of the Payment of Wages Act the authority under that Act has the jurisdiction to decide what actually the terms of the contract between the parties were, that is to say, to determine the actual wages of the employees but it had no jurisdiction to determine the question of the potential wages which the employee ought to have got.

Therefore, the authority appointed under the Payment of Wages Act has no jurisdiction to decide a claim that the employer has not paid to its employees the minimum wages fixed under the Minimum Wages Act which according to claimant amounts to deduction of wages”.

16. In Rajasthan State Warehousing Corporation v. Authority appointed under Payment of Wages Act, Jaipur, [1988 (2) L.L.N 437] the Rajasthan State Warehousing Corporation deposited the arrears of dearness allowance admissible to its employees in the General Provident Fund or in some similar account and did not pay in cash to the employees. The question came-up for consideration before the learned Single Judge of this Court was Whether such deduction can be made and whether such dispute can be entertained by the authority under S. 15(2) of the Act? The Single Bench of this Court, held that, in Para. 12, at page 442:

“this case clearly falls within the purview of S. 15 of the Act as it is a matter concerning delay in payment of wages and deduction from salary and in determining this question, the Court can, also, adjudicate whether the deduction is authorised and permissible under the provisions of the Payment of Wages Act.”.

In this case, the amount was an ascertained sum which was admittedly not paid to the applicant and was deducted From the wages and deposited in General Provident Fund. The question of deduction was, therefore, incidental to the matter and was rightly considered by the learned Single Judge. This case has no application to the present case looking to the facts and circumstances of the case.

17. Learned counsel for the respondent has relied upon a Single Bench judgment Page: 374of this Court in the matter of Smt. Gaindi Devi v. Secretary, Community Development and Panchayat Department, [1988 (1) R.L.R 510]. This judgment is of no avail to the petitioners as the scope of S. 15(2) of the Act was not under consideration before the learned Single Judge in that case and the case was decided purely on the principles of “equal pay for equal work” in a regular civil suit.

18. In: Rajasthan State Electricity Board v. Fateh Chand, [1988 (2) R.L.R 629], the scope of the Labour Court under S. 33-C(2) or the Act, 1947 to grant emoluments claimed by the workman on the basis of principles of “equal pay for equal work was considered. The Division Bench of this Court held that “in view of the proposition of the law laid down by the Supreme Court in the above referred case, we are of the opinion that the right to claim wages for the work done is based on existing rights and, thus, respondent 1 was entitled to file an application before the Labour Court for computation of his wages”.

19. The remedy provided under S. 33-C(2) of the Act, 1947, is wider in scope and more favourable to the workman than the remedy under S. 15 of the Payment of Wages Act, which is restricted only to the cases where any deduction has been made from the wages of an employed person or any payment has been delayed. In view of the limited scope of S. 15 and in view of the judgment of the Supreme Court in A.I.R 1969 S.C 590, the ratio of this case does not apply to the present case.

20. Learned counsel for the respondent-employee has, also, placed reliance over several judgments laying down the proposition that the respondent is entitled to the same wages as the other permanent employees in the department employed on the identical posts, are getting. Learned counsel for the respondent has based the claim of the respondent on the doctrine of “equal pay for the equal work”.

21. It has been held by the Supreme Court in Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India, [1988 (2) L.L.N 145], in Para. 7, at page 150:

“… ‘Equal pay for equal work’ is a concomitant of Art. 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right. Equal pay must depend upon the nature of the work done; it cannot be judged by the mere volume of the work; there may be qualitative difference as regards the reliability and responsibility. Functions may be the same but the responsibility make a difference…”

The principle of “equal pay for equal work” is attracted only when two sets of employees are similarly situated and are discharging the similar functions but yet are getting different scales of pay. The daily wages employees employed on a temporary basis for meeting the urgent need cannot be equated with a permanent employee employed after due selection. However, it is not necessary to go into this question as this question can be gone-into by the competent authority in accordance with law if so approached by the respondent-employee. The judgments relied upon by the learned counsel for the respondent do not deal with the controversy regarding the scope or power of the authority under S. 15(2) of the Act, and, therefore, it is not necessary to embellish this judgment with those judgments cited and relied-upon by the learned counsel for the respondent.

22. The question, which, now, requires consideration is: whether in view of the limited jurisdiction of the authority under S. 15(2) of the Act, the learned District Judge, Churu, was right in applying the doctrine of “equal pay for equal work and directing the employer Krishi Upaj Mandi Samiti for fixation of pay of the employee in the regular pay-scale of Class IV employee and make payment of the amount in accordance with the regular pay-scale?

23. The Authority, under this section, has only limited jurisdiction. From the governing words “where contrary to the provisions of this Act” used in S. 15(2) of the Act, it is clear that the Authority under Page: 375this section had the jurisdiction to entertain the applications only in the cases where—

(i) any unauthorised deduction has been made from the wages; or

(ii) any payment has been delayed beyond the period prescribed under Ss. 4 and 5 of the Act.

No claim under S. 15(2) of the Act on the footing of the doctrine of “equal pay for equal work” can be entertained on the ground that the claim is for wages within the meaning of S. 2(vi)(d) of the Act and the payment has been delayed by the employer. It is only the ascertained sum which can be ordered to be paid under this section. There must be pre-existing right or corresponding obligation of the employer for such payment. The applications under this section cannot be entertained when there is no pre-determination of the question regarding the entitlement of the applicant the entitlement of the applicant (respondent Gauri Shanker) on the basis of the doctrine of “equal pay for equal work” has to be determined by the competent forum and this enquiry is beyond the scope of the authority acting under S. 15(2) of the Act. Failure to pay according to the doctrine of “equal pay for equal work” by the employer cannot be said to be either a deduction which is unauthroised under the Act or a failure under the class of delayed wages as envisaged under Ss. 4 and 5 of the Act. In view of the limited jurisdiction under S. 15(2) of the Act, the District Judge, exercising the appellate powers in the matter relating to S. 15(2) of the Act, was not authorised to deal with such questions. Respondent Gauri Shanker's grievance in the applications under S. 15(2) of the Act was only that he had not been paid the wages in the regular pay-scale applicable to the Class IV employee, to which he would have been entitled on the basis of the doctrine of “equal pay for equal work”. The controversy, thus, relates to the dispute concerning the wages and fixation of pay in the regular pay-scale. This question can be decided only by the competent authority in a detailed enquiry and the adjudication of this controversy is not within the scope and ambit of S. 15(2) of the Act. No adjudication regarding the dispute in respect of wages and fixation of pay in the regular pay-scale could have been made by the authority or by the District Judge under S. 15 of the Act.

24. The learned District Judge, in ordering for fixation of the pay of the respondent on the principle of “equal pay for equal work” and directing the employer to make payment to the employee in the regular pay-scale, has encroached upon the jurisdiction not vested in him. He has power under this section only for the purpose of enforcement of the payment of wages already agreed upon as per the contract and not for the purpose of making payment on the principle of “equal pay for equal work”. The learned District Judge, therefore, committed material illegality and irregularity in the exercise of the jurisdiction in passing the order, dated March 13, 1992, and directing the petitioners to make payment of salary to respondent Gauri Shanker in the regular pay-scale. The judgment passed by the learned District Judge, therefore, deserves to be quashed and set aside. However, the respondent-employee was entitled to wages which were agreed upon but not paid to him.

25. In the result, the revision petitions filed by the petitioners are partly allowed. The judgment, dated March 13, 1992, passed by the learned District Judge, Churu, is quashed and set aside and the orders, dated September 28, 1989, passed by the authority under the Payment of Wages Act are restored as the Payment of Rs. 9980 at the rate of daily wage of Rs. 240 per month has already been made to the respondent-employee. The respondent-employee will, however, be free, if he so likes, to get the matter for the grant of wages in the regular pay-scale on the basis of the doctrine or “equal pay for equal work” decided by the competent authority. In the facts and circumstances of the case, we leave the parties to bear their own costs.