Rajiv Narain Raina, J. - (1.) THIS petition has been filed by the petitioner -Management under Articles 226/ 227 of the Constitution of India praying for setting aside of the order dated 20.09.1993 (P -4) passed by the Presiding Officer, Labour Court, Ambala on an application preferred by respondent No. 1/workman under Section 33C(2) of the Industrial Disputes Act, 1947 (for short 'the Act'). The management remained ex -parte before the Labour Court after filing its written statement. The facts in brief are that the respondent -workman was engaged by the petitioner -Society by a resolution dated 27.04.1985 as a chowkidar/ peon. He was granted the pay of Rs. 200/ -per month w.e.f. 27.04.1985. It was a condition laid down in the resolution that he would sleep at night in the office of the society to protect their property and that in case "He will not sleep in the office, then he will be responsible for any loss " occasioned by his absence.
(2.) IT appears that after five years of service, the respondent -workman filed an application under Section 33C(2) of the Act in 1990 (P -2) claiming overtime from 27.04.1985 to 3.11.1989 at rates proportionate to the increase in salary during the period from Rs. 200/ - to Rs. 542/ - to Rs. 625/ - per month. In this manner, the total claim of Rs. 15,433/ - was made. The management filed a written statement before the Labour Court taking the defence that he had consented and agreed to do the work of peon -cum -chowkidar together at a monthly pay of Rs. 200/ - and that there was no work at all for the workman to do at night except sleeping in the premises of the society. Still further that he was a resident of the village where the premises of the employer were situate and therefore had agreed to do this job. In response to the writ petition, the workman has filed a written statement stating that the management made no effort to get the ex -parte proceedings set aside before the Labour Court, nor has the order by which ex -parte proceedings were ordered against the management been assailed in this petition. It is stated that there is a difference between pleading and proof. It was the workman's case in the Section 33C(2) application that he was not monetarily compensated for work as chowkidar during the night.
(3.) I have heard Mr. GS. Sandhu, Advocate for the petitioner and have examined the record with his assistance. Learned counsel may be right that the doctrine of equal pay for equal work would not apply to the present case since there is no other employee whose work could be compared with. The doctrine would come into operation only where similarly situated employees are getting different emoluments. The only case pleaded against the order of the Labour Court in the writ petition is that the Labour Court was incorrect in applying the principle of equal pay for equal work and for making an order which doubled up the salary. The core issue with regard to jurisdiction under Section 33C(2) has not been touched in the pleadings; that such proceedings being in the nature of execution proceedings ought to be preceded by a pre -existing right; and that the resolution dated 27.04.1985 (Annexure P -1) was in fact the appointment order of the workman which did not create such pre -existing right.;