Supreme Court of India
U.P. STATE ELECTRICITY BOARD & ANR.versusAZIZ AHMAD
- Citation
- 2009 INSC 41
- Decided
- 20 January 2009
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The employee bears the burden of proving that his post is identical or substantially similar to a higher‑pay post, and in the absence of objective evidence the Tribunal’s conclusion of equivalence was erroneous, warranting set‑aside of the award and remand for fresh adjudication.
Summary
The respondent, a Boiler Overhauling Mechanic employed by the U.P. State Electricity Board, claimed that his post was equivalent to the Boiler Mistry/Fitter posts and therefore entitled to the higher 'Skilled‑A' pay scale under the principle of equal pay for equal work. The Industrial Tribunal and the Allahabad High Court had held in his favour, relying on the parties' pleadings without any objective job‑evaluation evidence. On appeal, the Supreme Court examined whether the burden of proof for establishing post equivalence lay with the employee and whether the Tribunal could base its decision solely on pleadings. It held that the employee must produce cogent documentary evidence to prove equality of duties, responsibilities and qualifications, and that the Tribunal erred by shifting the burden to the employer and by deciding the matter without such evidence. Consequently, the Court set aside both the Tribunal award and the High Court judgment and remitted the case to the Industrial Tribunal for fresh adjudication with an opportunity for both parties to lead evidence. The appeal was disposed of, directing a re‑examination of the post equivalence issue.
Issues considered
- Whether the post of Boiler Overhauling Mechanic is equivalent to the post of Boiler Mistry/Fitter for the purpose of equal pay.
- Who bears the burden of proof in establishing equality of work and pay under the principle of equal pay for equal work.
- Whether the Industrial Tribunal erred by deciding the case solely on pleadings without objective evidence of job evaluation.
- Whether the award and the High Court judgment should be set aside and the matter remitted for fresh adjudication.
Subjects
equal pay for equal workburden of proofindustrial tribunaljob evaluationpost equivalencelabour lawpay scaleArticle 14
Judgment
(2009] 1 S.C.. R. 373
~ U.P. STATE ELECTRICITY BOARD & ANR. A
v.
AZIZ AHMAD
-<. (Civil Appeal No. 318 of 2009)
JANUARY 20, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
.... SHARMA, JJ.]
Labour Law - Equal pay for equal work - Respondent, a
Boiler Overhauling Mechanic, claimed higher pay scale on c
the ground that post of Boiler Overhauling Mechanic was
equivalent to the post of Boiler Mistry or Fitter - Burden of
proof - Held: Was on the respondent-workman - He was
required to prove that the three posts were identical and
.... similar- Tribunal erred in placing the burden on the employer
to prove the job requirements of the three posts, and in
D
coming to the conclusion that the posts were identical on basis
of pleadings alone - Pleadings were required to be proved -
In absence of evidence, Tribunal was not justified in coming
to a conclusion that the nature, duties and responsibilities of E
the three posts were identical and similar- Matter remanded
to Industrial Tribunal for fresh adjudication.
Respondent, a Boiler Overhauling Mechanic in
,. "' Appellant-Board, claimed higher pay scale on the ground
that the post of Boiler Overhauling Mechanic was F
equivalent to that of the post of Boiler Mistry or Fitter.
Respondent claimed that the persons holding the post
of Boiler Overhauling Mechanic, Boiler Mistry or Fitter
were doing identical or similar nature of work and
discharged the same functions and responsibilities. G
-- " The Industrial Tribunal held in favour of Respondent
holding that he was entitled to the pay scale of 'Skilled-
A' category as admissible to the Fitter. The order was
373 H
374 SUPREME COURT REPORTS [2009] 1 S.C.R.
A upheld by the High Court. Hence the present appeal. •
Disposing of the appeal, the court -
HELD: 1.1. The Tribunal went on to record a finding
that none of the parties had filed an objective data with
B regard to the work assessment of the aforesaid posts
and thereafter erroneously put the burden on the
employer to record the job requirements of the three
posts in question and to prove and establish that they are
not identical. [Paras 12 and 13) [380-B-D]
c
1.2. The burden to prove a particular fact is always
on, the person who alleges the same. In the present case
it was the contention of the respondent-workman, who
claimed that the job requirements, nature and
D responsibilities of the post of Boiler Mistry/Fitter are ,. -
identical and similar with that of the Boiler Overhauling
Mechanic. The burden, therefore, was on the workman to
prove and establish the aforesaid facts by leading cogent
and reliable evidence. He was required to place
documentary evidence in support of the same. The
E
Tribunal as also the High Court while affirming the award
changed the rule of the game by placing the entire burden
of proof on the management that the posts are not
identical. [Paras 13 and 15) [380-D-E; 381-G] "' ~
F 1.3. The Industrial Tribunal committed a manifest error
of law and of fact initially by placing the burden on the
employer to prove and establish the job requirements of
the said three posts, and thereafter, again committed an
error in coming to the conclusion that the posts are
G identical on the basis of the pleadings of the parties
alone. Pleadings are required to be proved and so long
evidence is not led in support of the pleadings no
" -
reliance can be placed only on the pleadings without
there being any cogent evidence in support of the
H
U.P. STATE ELECTRICITY BOARD & ANR. v. AZIZ 375
AHMAD
pleadings. The Tribunal expressly stated in its findings A
that none of the parties have filed any objective data in
regard to the work assessment of the posts of Boiler
Overhauling Mechanic, Boiler Mistry or Fitter. In absence
of such evidence the Tribunal was not justified in coming
to a conclusion that the nature, duties and B
responsibilities of the three posts are identical and similar.
(Para 17] (384-D-G]
1.4. The matter is remanded to the Industrial Tribunal
for fresh adjudication in accordance with law. The parties C
are however allowed an opportunity to lead further
evidence in support of their claims and counter claims
regarding the status and position of the aforesaid three
posts. The Tribunal should see to it that the claims and
the rebuttal of the said claim should be supported by
cogent and reliable evidence. For that matter the Tribunal D
shall render an opportunity to the parties to lead their
evidence in support of their case and on the basis of the
records, as available, the Tribunal would decide afresh
the issue whether the nature, duties and responsibilities
of the said three posts are identical, and thereafter, the E
Tribunal should answer the reference. Consequently,
both the award passed by the Tribunal as also the
judgment passed by the High Court are set aside and the
matter is remitted back to the Industrial Tribunal for
decision in terms of the aforesaid observations. [Paras F
18 and 19] [384-G-H; 385-A-D]
State of M. P. v. Pramod Bhartiya, [(1993) 1 SCC 539];
Union of India v. Tarit Ranjan Da [(2003) 11 SCC 658]; State
of Haryana v. Charanjit Singh, (2006) 9 SCC 321; G
Secy.,Finance Deptt. v. W B. Registration Service Assn., 1993
[Supp (1) SCC 153] and Gyan Prakash v. Union of India
[(1997) 11 sec 670], relied on.
' H
376 SUPREME COURT REPORTS [2009) 1 S.C.R.
A Case Law Reference: •
((1993) 1 sec 539] relied on Para 14
((2003) 11 sec 658] relied on Para 14
(2006) 9 sec 321 relied on Para 14
B
1993 [Supp (1) SCC 153] relied on Para 15
((1997) 11 sec 6701 relied on Para 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 318
C of 2009.
From the Judgment and Order dated 27.10.2005 of the
High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow in Writ Petition No. 336 (S/S) of 2000.
D
Pradeep Misra, T. Mahipal and Manoj Kr. Sharma for the
Appellants.
A.P. Mohanty for the Respondent.
E The Judgment the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
2. The issue which arises for consideration in this appeal
1 ..
is whether the post of Boiler Overhauling Mechanic is equivalent
F to that of the post of Boiler Mistry or Fitter so as to enable the
workman, respondent herein to draw higher pay scale than what
is being given to him. There is no dispute with regard to the
fact that the post of Boiler Overhauling Mechanic is a different
post than that of the post of Boiler Mistry which is equivalent to
G that of Fitter in 'Skilled - A' Category.
3. The workman, respondent herein was appointed as
coolie in the service of the appellant Board with effect from
1.4.1969 in the pay scale of Rs. 55-90. He was thereafter
H designated as Helper in the same pay scale of coolie and
U.P. STATE ELECTRICITY BOARD & ANR. v. AZIZ 377
AHMAD (DR. MUKUNDAKAM SHARMA, J.]
worked in the said post till 13.9.1977. Thereafter he appeared A
before the Selection Committee No. 2 for being promoted to
the post of Boiler Overhauling Mechanic. In the said selection,
by order dated 13.9.1977 the respondent was declared
successful consequent upon which he was offered the post of
Boiler Overhauling Mechanic in the then pay scale of Rs. 80- B
145. The aforesaid pay scale, however, has been revised with
the passage of time. He joined the duties of Boiler Overhauling
Mechanic on 14.9.1977 and since then he performed his duties
accordingly. It is stated that he was also looking after the work
of Fitter in addition to the work of Boiler Overhauling Mechanic. C
In terms of the policy his employment in the Board was
confirmed as against the post of coolie with effect from
1.4.1976 under order issued by the competent authority on
14.9.1978.
4. The allegation was that one Shri Jogeshwar Prasad, D
who was working at Sohawal Power House, Faizabad as Boiler
Mistry was given the status of 'Skilled-A' worker and was given
.the pay scale of Rs. 150-285 with effect from 1.4.1969. The
respondent-workman claimed that the same pay scale which
has been given to Jogeshwar Prasad should also be given to E
him. In terms thereof he raised an industrial dispute contending
inter alia that since the work of Boiler Overhauling Mechanic
and Boiler Mistry are identical and the nature and
responsibilities are also similar, he is entitled to get the same
pay scale on the principle of equal pay for equal work. He F
claimed that his pay should be fixed in the pay scale of Rs. 150-
285 with effect from 1.4.1977, as revised from time to time.
5. The aforesaid industrial dispute raised by the 'Union on
behalf of the respondent-workman was referred to the Tribunal G
for adjudication under the following terms: .
."Whether the employers should give pay scale of Skilled
Category -A to Shri Aziz Ahmad, son of Shri Rashid
Mohammad, Boiler Overhauling Mechanic? If yes, then
from which date and with what other details?'; H
378 SUPREME COURT REPORTS [2009} 1 S.C.R.
A 6. The Tribunal, on receipt of the aforesaid reference,
issued notices to the parties upon which the parties appeared
and filed their respective pleadings. The evidence was also led
by the parties by producing witnesses in support of their case.
The Tribunal, after hearing the parties, passed an award on
8 17.2.1999 holding that the work being done by the workman
Aziz Ahmad as Boiler Overhauling Mechanic is the same as
the work of Fitter and that the pay scale of the posts of Boiler
Mistry and the fitter was Rs. 150-285 and that on the settled
principle of equal pay for equal work, workman Aziz Ahmad i~
C entitled to the same pay scale as that of the Fitter. The Tribun1.
held that the said workman Aziz Ahmad would be entitled to
the pay scale of 'Skilled-A' category as admissible to Fitter with
effect from 14.9.1977, but however, as he appeared before the
Conciliation Board in 1989, it was held that he would be entitled
to the benefit of the aforesaid pay scale only with effect from
0 1.1 .1989.
7. Being aggrieved by the aforesaid award passed by the
Industrial Tribunal, the appellant Board preferred a writ petition
in the High Court of Allahabad which was entertained and was
E heard on merit. The learned Single Judge by his judgment and
order dated 27.10.2005 dismissed the writ petition holding that
no interference was called for. It was held by the learned Single
Judge that the Tribunal rightly came to the conclusion that the
workman had actually worked as Boiler Mistry and had
F discharged superior functions of the post which was equal to
that of Fitter.
8. The appellant being aggrieved by the order passed by
the learned Single Judge and award passed by the Tribunal filed
the present appeal on which notice and stay order were issued.
G Consequent thereupon this appeal was listed for hearing.
9. Mr. Pradeep Misra, learned counsel appearing for the
appellant Board submitted before us that the respondent-
workman was made aware of his status and position through
H the appointment letter issued to him making it clear that he had
U.P. STATE ELECTRICITY BOARD & ANR. v. AZIZ 379
AHMAD [DR. MUKUNDAKAM SHARMA, J.]
been appointed to the post of Boiler Overhauling Mechanic in A
.. the pay scale of Rs. 80-145 which he accepted and had also
received all the benefits on the basis of the said pay scale. It·
was submitted that having accepted the aforesaid position the
respondent cannot turn back and claim for change in his pay
scale on the ground of equal pay for equal work. It was also B
submitted by him that the duties and responsibilities attached
to the post of Fitter or Boiler Mistry are much more higher than
.... that of the duties and responsibilities attached to the post of
Boiler Overhauling Mechanic, and therefore, the Tribunal as also
the learned Single Judge were not justified in holding that the c
duties and responsibilities of the aforesaid posts are similar.
It was further submitted that there is no evidence or material
placed on record to substantiate that duties and responsibilities
attached with the post of Fitter or Boiler Mistry are similar and
identical in all respects to that of the duties and responsibilities D
.- f
attached to the post of Boiler Overhauling Mechanic and in .
-1 absence of clear evidence in that regard it was inappropriate .
on the part of both the learned Single Judge of the High Court
as also of the learned Industrial Tribunal to pass an award in
favour of the workman. E
10. Mr. AP. Mohanty, learned counsel appearing for the
respondent-workman, however, sought to justify both the award
~ .... as also the judgment and order of the learned Single Judge
upholding the award contending inter afia that from the F
pleadings of the parties and depositions recorded by the
Labour Court, if it is possible to come to the conclusion that
both the posts carry the same duties and responsibilities or
identical responsibilities and status, then the Tribunal could have
and accordingly has rightly passed the award in favour of the
G
workman .
.- ... 11. In order to appreciate the aforesaid contentions we
have carefully scrutinised the records including the documents
and the depositions. We have carefully analysed the findings
recorded by the Tribunal in paragraph 12 of the award. In the H
380 SUPREME COURT REPORTS (2009] 1 S.C.R.
A said paragraph the Tribunal recorded that the issue to be
determined is whether the workman Aziz Ahmad is doing similar
work as that of the work of Fitter or Boiler Mistry.
12. Having framed the aforesaid issue for consideration,
B the Tribunal immediately went on to record a finding that it was
unfortunate that none of the parties had filed an objective data
with regard to the work assessment of the aforesaid posts. The
learned Tribunal put the burden on the employer to record the
job requirements of the aforesaid posts and to prove and
C establish that they are not identical. The aforesaid findings of .
the learned Tribunal were also upheld by the learned Single
Judge.
13. In our considered opinion the aforesaid findings are
incorrect and cannot be upheld. The burden to prove a particular
D fact is always on the person who alleges the same. In the
present case it was the contention of the respondent-workman,
who claimed that the job requirements, nature and
responsibilities of the post of Boiler Mistry/Fitter are identical
and similar with that of the Boiler Overhauling Mechanic. The
E burden, therefore, was on the workman to prove and establish
the aforesaid facts by leading cogent and reliable evidence. He
was required to place documentary evidence in support of the
same.
14. The principle that the burden of proof is on a person
F who alleges it has been reiterated by this Court innumerable
times. For reference we may extract the following passages
from the judgment of this Court in State of M.P. v. Pramod
Bhartiya, [(1993) 1 sec 539]:
G "13 ............... lt must be remembered that since the plea of
equal pay for equal work has to be examined with reference
to Article 14, the burden is upon the petitioners to establish . ..
~
their right to equal pay, or the plea of discrimination, as
the case may be. This burden the original petitioners
H (respondents herein) have failed to discharge."
U.P. STATE ELECTRICITY BOARD & ANR. v. AZIZ 381
AHMAD [DR MUKUNDAKAM SHARMA, J.]
Further in Union of India v. Tarit Ranjan Da [(2003) 11 A
SCC 658] wherein one of us (Dr. Arijit Pasayat) was a member
this Court held:
"9 ................ Further, the Tribunal and the High Court
proceeded as if it was the employer who was to show that B
there was no equality in the work. On the contrary, the
person who asserts that there is equality has to prove it.
The equality is not based on designation or the nature of
work alone. There are several other factors like
responsibilities, reliabilities, experience, confidentiality
involved, functional need and requirements commensurate
c
with the position in the hierarchy, the qualifications required
which are equally relevant:"
The said principle was retreated subsequently in State of
, -+ Haryana v. Charanjit Singh, (2006) 9 SCC 321 wherein it was D
held:
"19 ...... ln any event, the party who claims equal pay for
equal work has to make necessary averments and prove
that all things are equal. Thus, before any direction can be E
issued by a court, the court must first see that there are
necessary averments and there is a proof....... "
20 ......... ln each case the court must satisfy itself that the
burden of proving that the work and conditions are equal
is discharged by the aggrieved employee" F
15. The Tribunal as also the High Court while affirming the
'I award changed the rule of the game by placing the entire
burden of proof on the management that the posts are not
) identical. Whether the aforesaid posts are identical and G
~"
whether the persons holding the post of Boiler Overhal!ling
Mechanic, Boiler Mistry or Fitter are doing identical or similar
nature of work and discharge the same functions and
responsibilities are required to be adjudicated upon and
decided by making an analysis of their nature of duties, H
382 SUPREME COURT REPORTS [2009] 1 S.C.R.
A responsibilities, pay scales and other factors which are required
to be considered for deciding such an issue. This Court in a
number of decisions has laid down the guiding factors and
principles as to how the issue with regard to equation of posts
is to be considered and analyzed. In Secy., Finance Deptt. v.
B WB. Registration Service Assn., 1993 [Supp (1) SCC 153] this
Court enumerated the factors to be taken into consideration for
job evaluation:
"12. We do not consider it necessary to traverse the case
law on which.reliance has been placed by counsel for the
c appellants as it is well settled that equation of posts and
determination of pay scales is the primary function of the
executive and not the judiciary and, therefore, ordinarily
courts will not enter upon the task of job evaluation which
is generally left to expert bodies like the Pay
D Commissions, etc. But that is not to say that the Court has
no jurisdiction and the aggrieved employees have no
remedy if they are unjustly treated by arbitrary State action
or inaction. Courts must, however, realise that job
evaluation is both a difficult and time consuming task which
E even expert bodies having the assistance of staff with
requisite expertise have found difficult to undertake
sometimes on account of want of relevant data and scales
for evaluating performances of different groups of
employees. This would call for a constant study of the
F external comparisons and internal relativities on account
of the changing nature of job requirements. The factors
which may have to be kept in view for job evaluation may
·include (i) the work programme of his department (ii) the
nature of contribution expected of him (iii) the extent of his
responsibility and accountability in the discharge of his
G
diverse duties and functions (iv) the extent and nature of
freedoms/limitations available or imposed on him in the
l.
discharge of his duties (v) the extent of powers vested in
him (vi) the extent of his dependence on superiors for the
H exercise of his powers (vii) the need to co-ordinate with
U.P. STATE ELECTRICITY BOARD & ANR. v. AZIZ 383
AHMAD [DR. MUKUNDAKAM SHARMA, J.]
• other departments, etc. We have also referred to the A
history of the service and the effort of various bodies to
reduce the total number of pay scales to a reasonable
number. Such reduction in the number of pay scales has
to be achieved by resorting to broadbanding of posts by
placing different posts having comparable job charts in a B
common scale. Substantial reduction in the number of pay
scales must inevitably lead to clubbing of posts and
grades which were earlier different and unequal. While
doing so care must be taken to ensure that such
rationalisation of the pay structure does not throw up c
anomalies. Ordinarily a pay structure is evolved keeping
in mind several factors, e.g., (i) method of recruitment, (ii)
level at which recruitment is made, (iii) the hierarchy of
service in a given cadre, (iv) minimum educational/
technical qualifications required, (v) avenues of promotion,
~ ... (vi) the nature of duties and responsibilities, (vii) the
D
horizontal and. vertical relativities with similar jobs, (viii)
public dealings, (ix) satisfaction level, (x) employer's
capacity to pay, etc. We have referred to these matters in
some detail only to emphasise that several factors have
to be kept in view while evolving a pay structure and the E
horizontal and vertical relativities have to be carefully
balanced keeping in mind the hierarchical arrangements,
, .'(
avenues for promotion, etc. Such a carefully evolved pay
structure ought not to be ordinarily disturbed as it may
upset the balance and cause avoidable ripples in other F
cadres as well. It is presumably for this reason that the
Judicial Secretary who had strongly recommended a
substantial hike in the salary of the Sub-Registrars to the
Second (State) Pay Commission found it difficult to
concede the demand made by the Registration Service G
-- ..
'
before him in his capacity as the Chairman of the Third
(State) Pay Commission. There can, therefore, be no
doubt that equation of posts and equation of salaries is a
complex matter which is best left to an expert body unless
there is cogent material on record to come to a firm H
384 SUPREME COURT REPORTS [2009) 1 S.C.R.
A conclusion that a grave error had crept in while fixing the
pay scale for a given post and Court's interference is
absolutely necessary to undo the injustice."
16. Moreover in Gyan Prakash v. Union of India [(1997)
B 11 SCC 670) it was held that application of the principle of
equal pay for equal work cannot be claimed merely because
there was delegation of certain powers. The ratio of the
aforesaid decision is applicable to the facts of the present case
as the claim of the Respondent for a higher pay scale is also
on the ground that he was discharging the duties of a higher
C post also, without however, giving any factual details in that
regard.
17. Being conscious of the aforesaid legal position we are
of the considered opinion that the learned Industrial Tribunal
D committed a manifest error of law and of fact initially by placing
the burden on the employer to prove and establish the job
requirements of the said three posts, and thereafter, again
committed an error in coming to the conclusion that the posts
are identical on the basis of the pleadings of the parties alone.
E Pleadings are required to be proved and so long evidence is
not led in support of the pleadings no reliance can be placed
only on the pleadings without there being any cogent evidence
in support of the pleadings. Pleadings are required to be
proved by leading evidence. The Tribunal expressly stated in
F its findings that none of the parties have filed any objective data
in regard to the work assessment of the posts of Boiler
Overhauling Mechanic, Boiler Mistry or Fitter. In absence of such
evidence the Tribunal was not justified in coming to a
conclusion that the nature, duties and responsibilities of the
G three posts are identical and similar.
18. Therefore, we have no other option but to remand this
matter to the Industrial Tribunal for fresh adjudication in
accordance with law. We, however, allow the parties an
opportunity to lead further evidence in support of their claims
H and counter claims regarding the status and position of the
U.P. STATE ELECTRICITY BOARD & ANR. v. AZIZ 385
AHMAD [DR. MUKUNDAKAM SHARMA, J.]
aforesaid three posts. The Tribunal should see to it that the A
claims and the rebuttal of the said claim should be supported
by cogent and reliable evidence. For that matter the Tribunal
shall render an opportunity to the parties to lead their evidence
in support of their case and on the basis of the records, as
available, the Tribunal would decide afresh the issue whether 8
the nature, duties and responsibilities of the said three posts
are identical, and thereafter, the Tribunal should answer the
reference.
19. Consequently, we set aside both the award passed by
the Tribunal as also the judgment passed by the learned Single C
Judge and remit back the matter to the Industrial Tribunal for
decision in terms of the aforesaid observations. It is needless
to say that since it is an old matter, the Tribunal should render
- a priority in hearing of this matter and would make all endeavour
~ to decide the matter, preferably within a period of six months. D
20. The appeal is disposed of in terms of the aforesaid
order.
8.8.8. Appeal disposed of. E
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