P. Aliyaru Kunju & Others v. State of Kerala & Others

_**WP(C).2806/22**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 29[TH] DAY OF APRIL 2022 / 9TH VAISAKHA, 1944** ## **WP(C) NO. 2806 OF 2022** ## **PETITIONER/S:** 1 P. ALIYARU KUNJU, AGED 55 YEARS S/O. PAREETHU KUNJU, THARAYIL PUTHEN VEEDU, KARIKKODU P.O., KOLLAM-691001. 2 V. RAJU, AGED 54 YEARS S/O. VASUDEVAN, KALLINKARA THAZHATHIL, PERUMPUZHA P.O., KERALAPURAM, KOLLAM-691504. 3 P. MOHANAN, AGED 54 YEARS S/O. PURUSHOTHAMAN, KAPPITHARA, SRPM, KUTTIPPURAM, THAZHAVA P.O., KARUNAGAPPALLI, KOLLAM-690523. 4 A. ABDUL AZIZ, S/O. ABDUL RAHIMAN KUNJU, VILAVUKATHU VEEDU, KARIKKODU P.O., KOLLAM-691001. BY ADV A.S.SHAMMY RAJ ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY IS SECRETARY, DEPARTMENT OF EXCISE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAPURAM-695033. 3 THE MANAGING DIRECTOR, KERALA STATE BEVERAGES CORPORATION LIMITED, BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAPURAM- _**WP(C).2806/22**_ 2 695033. 4 THE MANAGER (WAREHOUSE), KERALA STATE BEVERAGES (MANUFACTURING AND MARKETING) CORPORATION, KOLLAM WARE HOUSE DEPOT, KARIKKODE P.O., KOLLAM-691001. ## **OTHER PRESENT:** SC FOR BEVCO T. NAVEEN; SR.GP.PREMCHAND R. NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.2.2022, THE COURT ON 29.04.2022 DELIVERED THE FOLLOWING: _**WP(C).2806/22**_ 3 ## **V.G.ARUN, J. ----------------------------------------------W.P(C).No. 2806 of 2022 ----------------------------------------------Dated this the 29[th] day of April, 2022** ## **JUDGMENT** The petitioners are permanent labelling workers at the Kollam Warehouse of the Kerala State Beverages (Manufacturing and Marketing) Corporation Ltd. ('KSBC', for short). They had entered service as temporary employees on 01.04.1984 and got regularised in service on 02.06.1990 pursuant to the award of the Industrial Tribunal Kollam in ID.No.16/1987 and Exhibit P2 Memorandum of Settlement entered into between the management and workers Unions. As per Clause 9 of the Memorandum of Settlement, the regularised employees are entitled for all benefits granted to the other employees. As labelling workers, the petitioners' job is to paste hologram security labels on liquor bottles, as mandates under the Abkari Act. Based on the terms of settlement, the petitioners are being paid salary on piece rate basis, depending on the number of bottles affixed with stickers. Despite repeated demands and favourable judgments, the petitioners were not granted fixed salary. Instead, their piece rate wages was enhanced periodically. While matters stood thus, the petitioners filed Exhibit P13 application dated 09.10.2021, seeking information _**WP(C).2806/22**_ 4 regarding the condition of service of the other labelling workers, whose service was also regularised like the petitioners. By Exhibit P14 reply, the petitioners were informed that the service of 437 temporary labelling workers was regularised by Exhibit P15 order dated 07.06.2018 and they are being paid fixed salary, pursuant to Exhibits P16 and P17 orders. This writ petition is filed aggrieved by the refusal to pay fixed salary to the petitioners, while contending that benefit to the labelling workers in other Ware Houses. 2. Advocate A.S.Shammy Raj, learned counsel for the petitioners, drew attention to the statement in Exhibits P16 and P17 orders to the effect that the regularised labelling workers will be entitled to fixed salary in accordance with the revision brought about through the orders. Learned counsel contended that the petitioners are also entitled for the same benefit, since the duties and responsibilities of the petitioners and the labelling workers regularised under Exhibits P16 and P17 orders are identical. Reliance is placed on the Apex Court decision in _**Randhir Singh v. Union of India and Others**_ [(1982) 1 SCC 618] and _**Union of India and Others v. Rajesh Kumar Gond**_ [(2014)13 SCC 588], to highlight the principle 'equal pay for equal work'. 3. Advocate T.Naveen, learned Standing Counsel for the KSBC submitted that service of the labelling workers of Kollam Ware House was regularised based on Exhibit P2 Memorandum of Settlement. The _**WP(C).2806/22**_ 5 Settlement provides for payment of wages to the labelling workers on piece rate basis. On the other hand, service of the 437 labelling workers mentioned in Exhibits P16 and P17 orders was regularised on the basis of a decision by the Cabinet, pursuant to which the Government fixed their time scale pay at Rs.16500-35700. The basis for appointment of the two sets of workers being different, the petitioners cannot seek pay parity with the workers regularised on the basis of a Cabinet decision. 4. Learned Senior Government Pleader Sri. V.Venugopal contended that the prayer for mandamus is not maintainable against the Government, since the petitioners had not approached the Government before filing the writ petition. 5. In reply, Advocate A.S.Shammy Raj submitted that Exhibit P2 Memorandum of Settlement has no relevance in view of the subsequent judgments of this Court. It is pointed out that Exhibits P16 and P17 orders were issued, pursuant to those judgments. Hence, it is preposterous to contend that the labelling workers at the Kollam Warehouse alone are governed by the Terms of Settlement. It is submitted that in abundant caution, the petitioners have submitted Exhibit P19 representation before the 1[st] respondent seeking a direction to the KSBC to grant scale of pay to the labelling workers at the Kollam Warehouse also. 6. The fact that regularisation of labelling workers at the _**WP(C).2806/22**_ 6 Kollam Warehouse was effected on the strength of Exhibit P2 settlement is not disputed. As per Clause 9 of Exhibit P2, the regularised labelling workers are eligible for all benefits applicable to other regularised employees. More importantly, even the Corporation has no case that the work rendered by the petitioners is in any manner different for that rendered by the other regularised labelling workers. As such, the principle of 'equal pay for equal work' enunciated in Article 39(d) of the Constitution of India has to apply with all force. In this context, the following exposition of the Apex Court in _**Randhir Singh (supra)**_ assumes relevance; _“8. It is true that the principle of “equal pay for equal work” is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims “equal pay for equal work for both men and women” as a directive principle of State Policy. “Equal pay for equal work for both men and women” means equal pay for equal work for everyone and as between the sexes. directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons_ _**WP(C).2806/22**_ 7 _and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word “socialist” must mean something. Even if it does not mean ‘to each according to his need’, it must at least mean “equal pay for equal work”. “The principle of “equal pay for equal work” is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance” (vide International Labour Law by Istvan Szaszy, p. 265). The Preamble to the Constitution of the International Labour Organisation recognises the principle of ‘equal remuneration for work of equal value’ as constituting one of the means of achieving the improvement of conditions “involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled”. Construing Articles 14 and 16 in the light of the Preamble and Article 39 (d), we are of the view that the principle “equal pay for equal work” is deducible from those_ _**WP(C).2806/22**_ 8 _Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.”_ In _**Rajesh Kumar Gond**_ (supra), the Apex Court refused to interfere with an order equating two posts, in the absence of material to prove the functional distinction between the posts. 7. Herein, the only distinction attempted to be drawn is that the petitioners' service condition is governed by Exhibit P2 Memorandum of Settlement while the others were appointed pursuant to a decision by the Cabinet. That distinction is immaterial, as long as there is no functional distinction in the work done by the petitioners and the others. Being so, denial of equal pay to one set of employees alone, amounts to discrimination and unreasonable classification. The facts not being in dispute and the legal position being clear, the petitioners are found entitled for the reliefs sought. In the result, the writ petition is allowed. The 1[st] respondent is directed to take up Exhibit P19 and pass orders thereon, requiring respondents 2 and 3 to extend the benefit of pay scale to the petitioners as in the case of the other labelling workers. While passing the order, the 1[st] respondent shall also consider the petitioners' claim for arrears of scale of pay with effect from the date on which the benefit was extended to the other workers. The order, as directed above, shall be passed within two months of receipt of a copy of this _**WP(C).2806/22**_ 9 judgment. Consequential orders if any, shall be issued by respondents 2 and 3 within one month of receipt of the order passed by the 1[st] respondent. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**WP(C).2806/22**_ 10 ## **APPENDIX OF WP(C) 2806/2022** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE ORDER DATED 21/04/1988 IN| |---|---| ||ID NO. 16/1987 ON THE FILE OF INDUSTRIAL| ||TRIBUNAL, KOLLAM.| |Exhibit P2|TRUE COPY OF THE MEMORANDUM OF| ||SETTLEMENT/REGULARISATION ORDER ISSUED BY| ||THE 2ND RESPONDENT.| |Exhibit P3|TRUE COPY OF THE JUDGMENT DATED 28/06/2000| ||IN OP NO. 2906/2000 OF THIS HON'BLE COURT.| |Exhibit P4|TRUE COPY OF THE JUDGMENT DATED 28/02/2001| ||IN OP NO. 6475/2001 OF THIS HON'BLE COURT.| |Exhibit P5|TRUE COPY OF THE SALARY RE-FIXATION ORDER| ||PASSED BY THE 3RD RESPONDENT DATED| ||17/08/2016.| |Exhibit P6|TRUE COPY OF THE REPRESENTATION DATED| ||20/07/2017 FILED BEFORE THE 3RD RESPONDENT.| |Exhibit P7|TRUE COPY OF THE ORDER DATED 11/02/2019| ||ISSUED BY THE 3RD RESPONDENT.| |Exhibit P8|TRUE COPY OF THE REPRESENTATION DATED| ||12/02/2019 SUBMITTED BEFORE THE 3RD| ||RESPONDENT.| |Exhibit P9|TRUE COPY OF THE REPRESENTATION DATED| ||09/10/2020 SUBMITTED BEFORE THE 3RD| ||RESPONDENT.| |Exhibit P10|TRUE COPY OF THE JUDGMENT DATED 26/03/2021| ||IN WPC NO.11320/2020 ON THE FILE OF THIS| ||HON'BLE COURT.| |Exhibit P11|TRUE COPY OF THE PROCEEDINGS DATED| ||01/07/2021 ISSUED BY THE GENERAL MANAGER OF| ||THE 2ND RESPONDENT CORPORATION.| |Exhibit P12|TRUE COPY OF THE REPRESENTATION DATED| ||05/07/2021 SUBMITTED BEFORE THE 3RD| _**WP(C).2806/22**_ 11 RESPONDENT. |Exhibit P13|TRUE COPY OF THE RIGHT TO INFORMATION| |---|---| ||LETTER DATED 09/10/2021 SUBMITTED BY THE| ||PETITIONERS (THROUGH THEIR ADVOCATE),| ||BEFORE THE 2ND RESPONDENT.| |Exhibit P14|TRUE COPY OF THE REPLY LETTER DATED| ||23/11/2021 ISSUED BY THE PUBLIC INFORMATION| ||OFFICER OF THE 2ND RESPONDENT.| |Exhibit P15|TRUE COPY OF THE ORDER NO. 41/2018 DATED| ||07/06/2018 OF THE 1ST RESPONDENT.| |Exhibit P16|TRUE COPY OF THE SALARY FIXATION ORDER| ||DATED 07/01/2020 ISSUED BY THE 3RD| ||RESPONDENT.| |Exhibit P17|TRUE COPY OF THE SALARY FIXATION ORDER| ||DATED 23/11/2020 ISSUED BY THE 3RD| ||RESPONDENT.| |Exhibit P18|TRUE COPY OF THE SALARY SLIP OF ONE OF THE| ||REGULARIZED LABELLING WORKER OF| ||THRIPUNITHURA WARE HOUSE, FOR THE MONTH OF| ||NOVEMBER 2021.| |EXHIBIT P19|| ||COPY OF REPRESENTATION DATED 14.2.2022| ||SUBMITTED BY THE PETITIONERS BEFORE THE 1ST| ||RESPONDENT.| |Exhibit P20|TRUE COPY OF THE JUDGMENT DATED 18/3/2022| ||IN WPC NO.13623/2021 ON THE FILE OF THIS| ||HON'BLE COURT|