Introduction:

A contract-employee claims pay parity. For the regular employees, the employer revised the pay, retrospectively. It has, in fact, applied the pay revision to the contract-employee, too, but prospectively. Is the contract-employee entitled to pay parity retrospectively?

Facts:

2. Joseph Didakose K.G., an engineering graduate, joined the Cochin Port Trust as an Engineer-in-Charge on a contract basis. The Port Trust, the employer, issued the appointment proceedings on 02.09.2008 through Ext.P1. Joseph actually joined the service on 09.09.2008. As his appointment was contractual and on a consolidated pay of Rs.27,000/-, he had his contract renewed yearly until he resigned on 17.03.2012.

3. While Joseph was in service, the Port Trust had Ext.P5 pay revision dated 26.07.2010, which was, however, made applicable retrospectively from 01.01.2007. Indeed, the revision of pay concerns the regular employees.

4. As seen from the record, with effect from 01.05.2011, Joseph was given the benefit of the pay revision. Later, Joseph, after ceasing to be an employee, claimed that he ought to have been extended the benefit of the pay revision from the date he had joined the services because the pay revision was retrospectively implemented from the date beyond his joining the Port Trust. His claim rejected, Joseph has filed this writ petition.

Submissions:

Petitioner's:

5. Smt. Sreekala T.N., the learned counsel for Joseph, has straight away drawn my attention to Ext.P1 appointment order, which contains Joseph's service conditions. Though it specifically fixes the consolidated pay, Clause 55 of the order, according to her, specifies that the other terms will be as per BR. No. 17 dated 09.06.2006. In that context, she has drawn my attention to Ext.P8, the agenda, dated 09.06.2006, of the Board of Trustees of the Port Trust. It records that "the terms and conditions are being fixed for remunerating the Engineers appointed on a contract basis on the principle that people doing the same work with the same responsibilities must be given equal remuneration."

6. Smt. Sreekala, then, has drawn my attention to Ext.P7, which contains the terms for engaging contract Engineers-in-Charge at the Port Trust. In fact, Clause 2, dealing with the consolidated salary, expressly records that the pay will be revised if there is any revision in the salary of Engineers-in-Charge "such that the pay will be based on the total emoluments in the scale of Engineer-in-Charges in Cochin Port Trust." Therefore, in the end, Smt. Sreekala contends that the Port Trust ought to have paid Joseph the revised pay from the day he joined the service. To support her contentions, Smt. Sreekala has relied on State of Punjab v. Jagjit Singh (2017) 1 SCC 148.

Respondent-Port Trust's:

7. Per contra, Sri K. Ananad, the learned Senior Counsel for the Port Trust has, with equal vehemence, contended that Ext.P1 reveals that Joseph was appointed only on a consolidated pay, and that pay stood fixed. According to him, the principle of equal pay for equal work is a discarded principle–a legal assertion beyond its sell-by date. In elaboration, the learned Senior Counsel would contend that many factors will influence the fixation of pay. For example, the mode and manner of appointment or the source of appointment will have an impact and an employee, having consciously agreed to abide by the terms of the contract, cannot negate them once he secured the employment. He is estopped.

8. As to the stipulation by the Board of the Port Trust in Ext.P7 that the consolidated employees would also be entitled to the pay revision benefits, the learned Senior Counsel has contended that the contractual appointment is annual. Every year, the Port Trust contracted with Jospeh. The pay revision was actually declared on 01.05.2011. So, after that date, Jospeh had been paid the consolidated pay as per the revised pay-scale. He, therefore, contends that Jospeh cannot be heard saying that he has been discriminat