1. Though all the appeals are filed assailing the order sated 1-3-2000 passed by the learned Single Judge in W.P.Nos.14293 and 14294 of 1996 (S), the appeals in W.A.Nos.1004 and 1497 of 2001 are filed by the petitioners in the writ petition, who would hereinafter be referred to as ‘Employees’ for the purpose of convenience and clarity. The appeals in W.A.Nos.5783 and 5784 of 2001 are filed by the second respondent in the writ petition, who would hereinafter be referred to as ‘Employer’.
2. In a petition where the ‘Employees’ had prayed for parity in pay scales, the learned Single Judge though granted the relief, the same is with effect from 1-4-1996. The ‘Employees’ are in appeal praying that the same be granted from the year 1985. On the other hand the ‘Employer’ is assailing the order of the learned Single Judge in its entirety as according to them the ‘Employees’ are not entitled to the relief in the present facts and circumstances. At the first instance, the instant appeals were heard and disposed of by a Division Bench of this Court by the judgment dated 27-3-2004. By the said judgment, the relief prayed by the ‘Employees’ for benefit from the year 1985 had been granted. Consequently, the appeals of the ‘Employer’ were dismissed. The ‘Employer’ carried the same in appeal before the Hon’ble Supreme Court in Civil Appeal Nos.783 to 786 of 2005. The Hon’ble Supreme Court by its order dated 20-4-2010 has set aside the judgment of this Court and remitted the appeals so as to decide the matter afresh in the light of the decision of the Hon’ble Supreme Court in the case of State of Punjab and Another v Surjit Singh and Others ((2009) 9 SCC 514: 2009 AIR SCW 6759). That is how these appeals have arisen for consideration before us.
3. In the above backdrop, we have Sri K. Ramachandran, learned Counsel for the ‘Employer’ and Sri K.Subba Rao, learned Senior Counsel for the ‘Employees’ and perused the appeal papers.
4. The factual matrix which has given rise to the instant dispute between the parties is to be noticed at the outset.
The ‘Employer’ herein viz., Hutti Gold Mines Company Limited, is a company which is registered under the Companies Act, 1956 and is engaged in gold mining. There were two other companies viz., Chitradurga Copper Company Limited and Karnataka Copper Consortium Limited, engaged in Copper mining. The Copper mining companies had incurred huge losses and was heading towards closure. However, the Central Government with a view to keep the same afloat, in exercise of its power under Section 396 of the Companies Act, by its order dated 12-7-1985 amalgamated the said copper mining companies in Hutti Gold Mines Company Limited in “as is where is” condition specifying the modalities and terms relating to the amalgamation. Clause 9 of the said order specified the provisions respecting existing Officers and employees of the dissolved companies viz., the copper mining companies. Thereafter the employees were under the single management of the ‘Employer’ herein. The employees of the dissolved copper mining companies continued to receive their salaries at the same scale as it prevailed prior to amalgamation with the consequential increments and revisions thereafter. On the other hand, the employees of the Hutti Gold Mines Limited, continued with their own pay scales. There is no dispute wit regard to the fact that there was difference in the pay scales between the two sets of employees. When this was the position, due to continued loss suffered by the copper mining units, the ‘Employer’ around the year 1995-96 decided to close down the copper mining units and started gold mining. Though common pay scale was introduced with effect from 1-4-1996, there was no complete parity in the pay scale since according to the ‘Employer’, the two sets of employees were not similarly placed and there were several differences in the terms and conditions as also nature of work.
5. It is in this background, the ‘Employees’ approached this Court in W.P.Nos.14293 and 14294 of 1996. The ‘Employer’ opposed the petition by firstly relying on the amalgamation order itself to contend that the same merely protects the service condition as it existed in the copper units, but does not order the integration of the services in parity with the employees of the gold unit. It was their further contention that the source of recruitment, the qualification as well as the nature of work to be performed were not similar and therefore, the parity in pay scale cannot be granted. It was their contention that the copper unit though had been converted into gold unit in the year 1996, the nature of duties still differed and except for training and for adopting to the techniques of gold mine, there was no inter unit transfers. Therefore, they were not entitled to parity in pay scale, but however, common pay scales were fixed with effect from 1-4-1996 and the same was also revised on 1-4-1998.
6. The learned Single Judge on considering the rival contentions by the order dated 1-3-2000 granted parity of pay-scale from 1-4-1996. The ‘Employer’ is aggrieved by the same while the ‘Employee’ contends that the same is to be granted with effect from 1985 when the amalgamation took place. As such it is further contended that the order of the learned Single Judge is to be modified to that extent.
7. At the outset, the Clause 9 as contained in the amalgamation order dated 12-7-1985 is to be noticed since reliance is placed on the same. It reads as hereunder:
“9. Provisions respecting existing Officers and Employees of the dissolved companies.- Every whole time officer or other employee (other than the Managing Director and Deputy Managing Director) employed immediately before the appointed day in the dissolved companies shall as from the appointed day become an officer of employee as the case may be, of HGML and shall hold his office or service therein by the same tenure and upon the same terms and conditions as he would have under the dissolved companies if this order had not been made and shall continue to do so unless and until, his employment in HGML is duly terminated or until his remuneration and other terms and conditions of employment are duly altered by HGML by mutual consent”.
Having noticed the circumstances under which the copper units were amalgamated with the ‘Employer’ herein and a perusal of Clause 9 as contained in the order of amalgamation would no doubt prima facie indicate that by the said clause what has been protected is the service conditions which such of those employees in the copper unit enjoyed at the time of amalgamation. It indicates that it will remain so until they are duly altered by the ‘Employer’ by mutual consent. The fact that the alteration of the terms and conditions has been reserved to the ‘Employer’ to be done by mutual consent would indicate that the same refers to the alteration, of any of the existing terms to the detriment of the employees. However, what requires consideration in the instant facts is that since there has been certain alterations in the situation subsequently, inasmuch as the copper units were also converted into gold units and subsequently with effect from 1-4-1996 a common pay scale was drawn in respect of all employees, but the parity had not been granted, whether parity as granted by the learned Single Judge is justified. If so, the period from which they are entitled to parity.
8. Before adverting to consider these aspects of the matter, what is also to be kept in view is that at the first instance, this Court had held that the ‘Employees’ are entitled to the benefit from 1985, but the Hon’ble Supreme Court on setting aside the judgment has directed reconsideration keeping in view the decision in the case of Surjit Singh. Before referring to the said decision, it is also necessary to notice the decisions relied on by the learned Senior Counsel for the ‘Employees’. In the case of Mohd. Shahabuddin and Others v Union of India (AIR 1975 SC 929: (1975(4) SCC 203:1975 (1) SLR 345), the integration of the services arose for consideration in the context of the States Reorganisation Act, 1956 wherein the equation of the posts was considered in the background of the officers who were working in the different parts which were integrated to the State. The factual matrix on which the benefit was extended to the employees therein would not be relevant to the instant case except that the tests that have been laid down for consideration with regard to the nature and duties of the posts, the responsibilities and powers exercised by the officer, the minimum qualifications, if any prescribed for recruitment, the salary of the posts etc., which would have to be kept in view while considering the claim for parity. In the case of State of West Bengal v Subal Chandra Das and Others ((1996)7 SCC 191: 1996 SCC (L and S) 486), the situation had arisen in the circumstance where due to Court orders and recommendations made by the pay commission, the post in question was redesignated as LDC and were fused into the posts of Lower Division Clerks whereby there was only one cadre. Accordingly, parity was to be granted.
9. In the case of State of Gujarat and Another v Raman Lal Keshav Lal Soni and Others (AIR 1984 SC 161: 1983 SCC (L and S) 231: (1983)2 SCC 33), the Bench consisting of five Hon’ble Judges of the Supreme Court has held that the employees who had been allocated to the panchayat service had achieved the status of Government servants. It is held that once they had joined the common stream of service to perform the same duties, it is clearly not permissible to make any classification on the basis of their origin. The integrated service was created under legislative enactment and a retroactive amendment to create a differential classification was held not permissible. In the case of The General Manager, South Central Railway, Secunderabad and Another v A.V.R. Siddhanti and Others (AIR 1974 SC 1755: 1974 SCC (L and S) 290: (1974)4 SCC 335), it is stated that the fundamental right of equality means that persons in like situation, under like circumstances are entitled to be treated alike.
10. In the above background, it is appropriate at this juncture to refer to the decision in the case of Surjit Singh. The employees therein were appointed in different capacities by the Public Health Department of the State of Punjab as daily wagers. The recruitment process was not followed. They were being paid wages as per the terms of the appointment order. The employees who had however put in a number of years of service considered that they were entitled to ‘equal pay for equal work’. On the writ petitions being filed, the High Court granted the relief. It is in that context, the matter was before the Hon’ble Supreme Court. The Hon’ble Supreme Court, in that regard with reference to all its earlier decisions on the subject, has no doubt reiterated the position that the doctrine of ‘equal pay for equal work’ is valid in view of Article 39(d) read with Article 14 of the Constitution of India. The earlier decisions as noticed in this case by the Hon’ble Supreme Court stated about several aspects that would be relevant for the purpose of determining the pay scale. The various considerations such as responsibility, educational qualification, mode of appointment, financial capacity are few among such considerations. It was therefore held that the principle cannot have mechanical application. In the decisions referred therein, it was held that even though persons may do the same work, their quality of work may differ and that the nomenclature designating a person alone is not sufficient. The earlier decision wherein it was held that ‘equal pay for equal work’ is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales was also noticed. It was also held that the problem about ‘equal pay for equal work’ cannot always be translated into a mathematical formula. Taking into consideration the different requirements that had been enunciated earlier in the various decisions, the Hon’ble Supreme Court presently held that the principle has undergone sea change and what is insisted for its applicability is strict pleadings and proof of the various factors which were noticed from the earlier decisions. The burden of proof to establish these aspects would be on the employees who claim the benefit.
11. The learned Counsel for the ‘Employer’ further placed reliance on the decision of the Hon’ble Supreme Court in the case of Hindustan Lever Employees’ Union v Hindustan Lever Limited and Others (AIR 1995 SC 470: 1995 Supp. (1) SCC 499: (1995)88 FJR 154 (SC)). The opinion of the Court that the amalgamation had not caused any prejudice to the workers of TOMCO nor was the stand of the employees of HLL valid, was referred to by the learned Counsel to contend that there was no prejudice in the instant case. In that regard, the issue had arisen for consideration as there was resistance to the amalgamation. However, in the instant case, the issue relates to the status of the employees subsequent to amalgamation and the amalgamation in itself is not an issue. The learned Counsel for the ‘Employer’ has further referred to certain other decisions of the Hon’ble Supreme Court with regard to the manner of determination of ‘Equal pay for equal work’ and parity in employment. It is unnecessary to refer to each of the decisions inasmuch as the entire conspectus of the said principle has been considered in the case of Surjit Singh.
12. The cumulative effect of the different decisions of the Hon’ble Supreme Court and decisions summarised in the case of Surjit Singh, on the issue relating to ‘equal pay for equal work’ would ultimately establish the position of law that the said doctrine is imminent in view of Article 39(d) read with Article 14 of the Constitution of India. However, the said doctrine would not have mechanical application. The grant of the benefit under the said doctrine depends on a large number of factors including equal work, equal value, resource and manner of appointment, equal identity of group and wholesale or complete identity. The applicability of the principle therefore would depend on the fact situation in each case.
13. If the above principle of law is kept in view, in our opinion, in the present facts the case would have to be examined in two different situations viz., for the period from 1985 to 31-3-1996 and the position thereafter from 1-4-1996 onwards. Insofar as the periods subsequent to 1985, there is no dispute on the fact that in order to rehabilitate the loss making copper mining companies, the same were amalgamated with the ‘Employer’ company from 12-7-1985. Though the employees contend that the copper units had merged to have a single identity with the ‘Employer’ company on amalgamation and that they were carrying out similar work, keeping in view the test indicated by the Hon’ble Supreme Court relating to pleading and proof, the material on record is not sufficient to hold that they were performing similar work when evidently the nature of work would be different in copper mining as against the work to be performed in a gold mining industry though an employee may be called by the same designation. For example, one may be designated as a metallurgist, in two different types of employment but to claim parity, there should be more specific details about similar work. Be that as it may, to the said extent, the Clause 9 in the amalgamation order becomes relevant inasmuch as the ‘Employer’ was only required not to alter the service conditions which existed as on the date of amalgamation without mutual consent. The said clause does not provide for grant of parity at that stage though it would not bar the ‘Employer’ from providing parity or integrating the services. Hence, the question of integration and period when it took place is no doubt relevant. However, to claim from the period 1985, there is no material on record except for the contention of the ‘Employees’ that they were similarly placed and were doing similar work.
14. On the other hand, as noticed, the position indisputably is that the ‘Employees’ were working in the copper company at the time of amalgamation. On amalgamation, the same continued to remain as the copper unit wherein the copper mining was being carried on. The source, manner and qualification for recruitment when they were recruited to the copper company was different which prevents assumption of parity unless the ‘Employer’ conceded. The copper mining and gold mining had its distinct features and except for the fact that all the companies were under one umbrella, the distinction was to the knowledge of the ‘Employees’ and the writ petition was instituted only in the year 1996. In such event to claim ‘equal pay for equal work’ from the date of amalgamation the pleading ought to have been more specific, when on the face of it, the distinction as stated above is evident. There should have been material produced by the ‘Employees’ that though they were working in copper mining, the very same work as done in gold mining was being performed under the same employer. Therefore, to that extent, the test as stated by the Hon’ble Supreme Court in the aforementioned decisions have not been answered. Hence, the claim of parity from the year 1985 cannot be accepted.
15. Notwithstanding the above conclusion, the position from the year 1996 has to be viewed differently due to the admitted change in circumstance. The relevant portions in the objection statement filed by the ‘Employer’ is to be noticed.
“It is observed that the Officers Association did not pursue the matter of grade, Seniority etc., after the amalgamation. It appears that this is being raised after the transfers of some officers of copper unit effected in the year 1996 to the gold unit. Even then, the facilities given to these officers have neither been reduced nor withdrawn. On the contrary they have been given additional facilities.
In regard to para 2: It is true that the Chitradurga Copper Unit has now started mining gold though all these years only mining of copper was going on.
Integration at the officers level has already taken place in the sense that the pay scales are the same in all the units”.
The said portions would indicate, though by the objection statement the similarity has been denied, by the above admissions it is clear that the copper unit was also converted to gold unit and there are inter-unit transfers. In fact the integration and common pay scales at the officers level has been admitted. In the instant appeals, we are only concerned with officers. Insofar as the workmen are concerned, it is stated that their service conditions have been negotiated with the union and settlements have been entered into. With regard to the officers, though it is contended that the qualification for recruitment is different, the same refers to the period to amalgamation and upto 1996. In any event, after the admitted integration in the year 1996 in the case of officers, it has not been pointed out whether recruitments were made and even in such recruitment, the qualifications were being separately prescribed for the erstwhile copper company even after it had started gold mining. The fact that there were inter-unit transfers have also not been convincingly disputed except for the attempt to explain it away. Further, one other justification sought to be put forth to deny parity is about the output of gold in the said two units by contending that it should be 95% while what is extracted in the erstwhile copper unit is only 78% and as such not viable. This could be due to several other factors including the quality of ore available when the units are admittedly in different regions. These cannot be justifications to deny parity as if it is a punitive action by denying remuneration for under performance. In such circumstance, the ‘Employees’ would be entitled to parity from 1996. To the said extent, the learned Single Judge has also arrived at the conclusion that they are entitled to benefits from 1996, though the same has been limited from the year 1996 for different reasons. However, since the ultimate conclusion is that the ‘Employees’ (i.e., the members of the first petitioner) are entitled to parity form 1-4-1996, it is not necessary for us to interfere with the order dated 1-3-2000 which is impugned in these appeals. The prayer of the ‘Employees’ in their appeals to grant the benefit from the year 1985 is however rejected for the reasons stated above.
In view of the above, all these appeals are dismissed. Parties to bear their own costs.