Malabar Cements Ltd. and The Secretary, Malabar Cements Ltd. v. Suresh Babu and Bhaskaran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 16TH DAY OF MARCH 2011/25TH PHALGHUNA CRP.No. 1423 of 2004 ( ) -----------------------AS.54/1995 OF I ADDL.DISTRICT COURT,PALAKKAD OS.110/1993 OF ADDL.MUNSIFF COURT, PALAKKAD ## REVISION PETITIONER(S)/APPELLANTS/DEFENDANTS: ------------------------------------------------------------ 1. MALABAR CEMENTS LTD., WALAYAR, PALAKKAD, REP. BY ITS SECRETARY. 2. THE SECRETARY, MALABAR CEMENTS LTD., WALAYAR, PALAKKAD. BY ADVS.SRI.B.S.KRISHNAN(SR.) SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN ## RESPONDENT(S)/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- SURESH BABU, S/O.M.APPU, AMBALAKKADU HOUSE, PALLANCHATHANUR P.O. ALATHUR TALUK, PALAKKAD. BY ADV. SRI.V.CHITAMBARESH (SR.) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-03-2011, ALONG WITH CRP. 1424/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## K.T.SANKARAN, J. --------------------------------------------- ## C.R.P.Nos.1423 & 1424 of 2004 --------------------------------------------Dated this the 16th day of March, 2011 ## **O R D E R** These Civil Revision Petitions are filed by Malabar Cements Ltd. and the Secretary of the said Company challenging the judgments and decrees in A.S.Nos.54 of 1995 and 55 of 1995 on the file of the First Additional District Court, Palakkad. Those appeals arose out of O.S.Nos.110 of 1993 and 112 of 1993 on the file of the court of the Additional Munsiff of Palakkad. 2. The suits were filed by Suresh Babu and Bhaskaran claiming a sum of Rs.13,618.10 each from the defendants. 3. The case of the plaintiffs is that they were appointed as temporary clerks in Malabar Cements Ltd., a public sector company. Suresh Babu, the plaintiff in O.S.No.110 of 1993, was appointed as temporary clerk through the District Employment Exchange. He worked in the Company for the period from 19.5.1992 to 14.8.1992 and from 17.8.1992 to CRP Nos.1423 & 1424/2004 2 13.11.1992. Bhaskaran, the plaintiff in O.S.No.112 of 1993, was appointed as temporary clerk in the first defendant company through the District Employment Exchange. He worked as temporary clerk in the company for the period from 6.4.1992 to 3.7.1992 and from 6.7.1992 to 1.10.1992. The plaintiffs are graduates. The plaintiffs alleged that they were doing the work of a regular Clerk Grade II and they were having the same work load and work of the same nature as that of regular Clerk Grade II. The plaintiffs were paid only a consolidated sum of ` 500/- per month. The plaintiffs contended that the salary of a clerk in the first defendant company at the relevant time was ` 2711.35 per month. They also contended that they are entitled get the same amount as salary for the period they worked. The plaintiffs also claimed festival allowance at the rate at which it was being given to the clerks. According to the plaintiffs, wages for 21 days were deducted from their salary. They are also entitled to 12 days' leave with wages. 4. The defendants contended that the plaintiffs were appointed to learn the clerical job with the assistance of the CRP Nos.1423 & 1424/2004 3 regular clerks. They were not doing the same work of a regular clerk. The plaintiffs were considered as apprentices. The claim of the plaintiffs was denied by the defendants. The service of the plaintiffs was not equal to that of a regular clerk. They had no experience of a regular clerk. The defendants contended that the plaintiffs are not entitled to get wages on the days on which they took leave and that they are not entitled to festival allowance. 5. The trial court, as per separate judgments dated 25th November, 1994 decreed the suits. It was held that the plaintiffs were entitled to equal pay as that of a Clerk Grade II. However, the claim for festival allowance was denied. As regards the leave salary, the trial court held that the plaintiffs are entitled to get six days' salary. Thus, O.S.No.110 of 1993 was decreed for a sum of ` 11,396.41 and O.S.No.112 of 1993 was decreed for a sum of ` 11,470.24, together with interest at 6% per annum from the date of suit till realisation. 6. The defendants filed appeals as A.S.Nos.54 of 1995 CRP Nos.1423 & 1424/2004 4 and 55 of 1995. The appeals were allowed on the ground that the suits were not maintainable. 7. The plaintiffs challenged the judgment of the appellate court in C.R.P.Nos.2477 and 2478 of 2002. This Court held, following the decisions in Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke (1976(1) SCC 496) and Apollo Tyres Ltd. vs. Sebastian (2002(3) KLT 481), that the suits are maintainable. Accordingly, the judgment and decree of the trial court were set aside and the cases were remanded for fresh disposal by the appellate court. 8. Thereafter, the appellate court dismissed the appeals by a common judgment dated 19th March 2004, which is under challenge in the Civil Revision Petitions filed by the defendants. ## 9. The trial court held thus : "8. Plaintiff who is examined as PW1 would say that he did the same work of the permanent clerks in the company. Even though DW1 denied this in chief examination he has no direct knowledge what work CRP Nos.1423 & 1424/2004 5 plaintiff did in the company. He does not even know that in which section plaintiff worked. He said that there are other persons in the company who have direct knowledge about the nature of the work done by the plaintiff. They are not examined. Exhibits A6 and A7 are the certificates issued by DW1 certifying that plaintiffs overall performance of the work was good. In such circumstances the evidence given by PW1 that he did the work of a permanent employee shall be accepted. As is admitted the plaintiff was a temporary clerk. So there might not be any difference in the work done by him from that a permanent clerk. It is true that at the initial stage of the work, he could have sought the assistance of the permanent employees. Because of that it cannot be said that he was learning the work. 12. Plaintiff has also produced the Award passed and published in the Gazette of India in respect of the wages and other matters of employees in cement industry. DW1 admitted that the first defendant company is bound to follow it. In paragraph 46 in it is held that the temporary employees also shall be covered by this award. In paragraph 95 the minimum emolument payable to the employee is fixed. In paragraph 127 the salary of employees in different grades are fixed. So it is clear that temporary CRP Nos.1423 & 1424/2004 6 employees are entitled to receive emoluments as fixed and the same amount that is paid to permanent employees who are doing the same work." 10. The appellate court confirmed the findings of the trial court. There is no dispute that the plaintiffs were appointed in the first defendant company as temporary clerks. They were not appointed as trainees or apprentices. There is no case that the work done by the plaintiffs were not satisfactory. In fact, DW1 who was examined on the side of the defendants stated that he had no direct knowledge about the work done by the plaintiffs. On facts, the courts below held that the appointment of the plaintiffs as clerks for temporary period was not as trainees or apprentices. On the basis of these findings of fact, the courts below held that the plaintiffs are entitled to get the difference in salary and as stated above, the suits were decreed in part. 11. The learned counsel for the appellants submitted that the courts below erred in finding that the plaintiffs are entitled to equal pay as that of a Clerk Grade II. The method of appointment CRP Nos.1423 & 1424/2004 7 of the plaintiffs was not like the method of appointment of Clerk Grade II. The plaintiffs cannot claim the status of a Clerk Grade II. 12. Sri.V.Chitambaresh, the learned senior counsel appearing for the respondents submitted that the findings of the courts below are findings of fact and on the basis of those findings of fact, the suits were decreed. In a revision under Section 115 of the Code of Civil Procedure, which were filed only because of the bar under Section 102 of the Code of Civil Procedure, the High Court would not be justified in interfering with the findings of fact. Sri.Chitambaresh also submitted that no questions of law, much less any substantial question of law, is involved in the cases and therefore, no interference is called for. 13. Various decisions were cited by either side. The doctrine of equal pay for equal work is founded on equity and fair pay. In various decisions of the Supreme Court, these principles has been explained and applied. See Bhagwan Dass and others vs. State of Haryana and others (1987(4) SCC 634), State of Haryana and others vs. Charanjit Singh and others (2006(9) SCC CRP Nos.1423 & 1424/2004 8 321), Secretary, State of Karnataka and others vs. Umadevi and others [2006(4) SCC (1)], Kendriya Vidyalaya Sangathan and others vs. L.V.Subramanyeswara and another (2007(5) SCC 326), Surinder Singh and another vs. The Engineer in Chief, CPWD and others (AIR 1986 Supreme Court 584) and Food Corporation of India vs. Shyamal K. Chatterjee and others (AIR 2000 Supreme Court 3554). 14. The learned counsel appearing for the petitioners submitted that the doctrine of equal pay for equal work cannot be applied mechanically. Daily wage workers or casual workers are not entitled to parity in pay with the regularly employed staff. The qualification for appointment, nature of work, responsibilities etc. of Clerk Grade II and temporary staff are entirely different. Simply because that the work done by the plaintiffs was identical with that done by the Clerks Grade II would not automatically entitle the plaintiffs for equal pay of that of Clerk Grade II. The learned counsel for the petitioners cited several decisions of the Supreme Court on that point. CRP Nos.1423 & 1424/2004 9 15. The learned counsel for the petitioners (defendants) also raised a contention that the suit is barred under Section 9 of the Payment of Wages Act. Such a contention was not raised in the written statement or in the Civil Revision Petitions. I am of the view that this contention need not be considered, since even in C.R.P.Nos.2477 and 2478 of 2002 (earlier round of revisions), the defendants did not raise such a contention. It was held by the High Court in those revisions that the civil suits are maintainable. At this stage, a belated contention like the one raised by the petitioners need not be considered. 16. On the findings of fact arrived at by the courts below, I do not think that the contentions put forward by the petitioners (defendants) and reliance placed by them on the various decisions of the Supreme Court are unsustainable. On the admitted and proved facts, the courts below concurrently held that the plaintiffs are entitled to the reliefs. The High Court would not be justified in exercising the jurisdiction under Section 115 of the Code of Civil Procedure to upset those findings of fact. CRP Nos.1423 & 1424/2004 10 ## 17. In Vice Chancellor, Calicut University vs. Jaisy K.Joseph (2011(2) KLT 46), it was held thus : "There is yet another reason for not interfering with the judgments of the courts below. A Second Appeal is not maintainable in the present case in view of Section 102 of the Code of Civil Procedure, which reads as follows: _“No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.”_ Section 102 was substituted by the Code of Civil Procedure (Amendment)Act 1999 (Act 46 of 1999) wherein the amendment sought to be introduced was as follows: _“ -_ _**102. No second appeal in certain cases:** No second appeal shall lie from any decree, when the amount or value of the subject matter of the original suit does not exceed twenty-five thousand rupees.”_ Subsequently, by the Code of Civil Procedure ( Amendment ) Act 2002 (Act 22 of 2002) which came into force on 01.07.2002, the amendment proposed to be effected by Act 46 of 1999 was substituted with the CRP Nos.1423 & 1424/2004 11 present Section 102. As per the amendment of Act 1999, irrespective of the nature of the suit, no Second Appeal would lie against the decision in a suit where the value of the subject matter is below Rs. 25,000/-. By the amendment introduced by Act 22 of 2002, the bar under Section 102 is limited to suits where the subject matter is for recovery of money not exceeding twenty five thousand rupees. A Second Appeal is maintainable only on a substantial question of law as provided under Section 100 of the Code of Civil Procedure. A Revision under section 115 of the Code of Civil Procedure lies where the subordinate court appears to have exercised jurisdiction not vested in it by law; or to have failed to exercise jurisdiction so vested; or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The question is whether the High Court would be entitled to entertain a Civil Revision Petition, in a case where a Second Appeal is barred under section 102 of the Code of Civil Procedure, on any ground which is less rigorous than that provided in Section 100 of the Code of Civil Procedure. Even in matters where the valuation exceed Rs.25,000/-, a Second Appeal could be entertained only on a substantial question of law. When Section 102 provides that no Second Appeal would lie in respect of a suit where the subject matter is for recovery of money not exceeding Rs.25,000/-, it cannot be assumed the Parliament thought it fit to take CRP Nos.1423 & 1424/2004 12 such category of cases out of the rigour of Section 100 and to provide a less rigorous remedy in such cases. If so, it is to be taken that a revision under section 115 cannot be entertained on a ground which is less rigorous than that provided in Section 100 of the Code of Civil Procedure. The purpose of substituting Section 102 C.P.C. was to restrict entertaining Second Appeals in cases where the subject matter of the suit is for recovery of money not exceeding Rs.25,000/-. The purpose sought to be achieved cannot be defeated by entertaining a revision under section 115 of the Code of Civil Procedure on a less rigorous test than that provided in Section 100 C.P.C.. I am of the view that in cases where no Second Appeal lies in view of Section 102, a Revision can be entertained only if the court is satisfied that the decision of the subordinate court is vitiated by error of jurisdiction and also that a substantial question of law is involved in the case." I do not find any ground to interfere with the concurrent decisions of the courts below. The Civil Revision Petitions lacks merit and they are accordingly dismissed. No order as to costs. **K.T.SANKARAN** **JUDGE** csl