Punjab-Haryana High Court
Pardeep Kumar And Others vs State Of Punjab And Others on 31 October, 2008
CWP No.8671 of 1987 :1:
In the High Court of Punjab and Haryana at Chandigarh.
Date of decision:31.10.2008.
Pardeep Kumar and others ... Petitioners
Versus
State of Punjab and others ... Respondents.
Present: Mr.K.L. Arora, Advocate, for the petitioners.
Mr.Yatinder Sharma, D.A.G., Punjab,for the respondents.
PERMOD KOHLI, J. (Oral):
The petitioners are working as Class-IV and Class-III on daily wage basis. They were engaged between the year 1980 to1987 and posted at various places in different Sub Divisions indicated in paragraph 3 of the writ petition. It is alleged that they are being paid on daily wage basis whereas their counterparts working on regular basis are in the pay scale of Rs.300-430/- and Rs.400-600/- as Class-IV and Class-III, respectively. It is also alleged that the petitioners are not being provided any other facilities, like, Uniform, shoes, washing allowance, medical allowance, H.R.A., casual leave, earned leave, sick leave, cycle allowance, CCA, ADA, weekly rest etc. It is further alleged that it is violation of Article 14 of the Constitution of India. The petitioners have, accordingly, filed this petition seeking a direction for regularization of their services from the date of their initial engagement and also for payment of regular pay scale meant for such Class- IV and Class-III employees. The petitioners have also demanded arrears of salary with interest at the rate of 18% per annum.
CWP No.8671 of 1987 :2:
In the reply filed, the claim of the petitioners have been denied. It is contended that petitioners being daily wagers, cannot be equated with the regular employees who were selected and appointed in accordance with rules. Respondents have also disputed the right of the petitioners for regularization.
I have perused the paper-book and heard the learned counsel for the respondents at length.
In this case two issues have been raised: (i) regularisation of the services of the petitioners and (ii) grant of regular pay scale.
On the question of regularisation, Mr. K.L. Arora, Advocate, appearing on behalf of the petitioners states that according to his instructions, all the petitioners stand regularised. He further submits that even if any of the petitioner has not been regularised, he will make a representation to the respondents seeking relief in accordance with law.
The only question now remains to be considered by this Court is the right of the petitioners for equal pay for equal work.
Mr. Arora has relied upon Division Bench judgments of this Court in the cases of State of Punjab Vs. Kulbir Singh and others, (LPA No.8 of 1999) decided on 14.01.1999 and other connected matters as also Balwinder Singh and others Vs. State of Punjab and another, CWP No.7807 of 1999, decided on 04.02.2000,whereby a direction was issued to pay the petitioners minimum of the regular pay scale prescribed for the post held by them as daily wagers. They were also granted relief of Dearness Allowance and other allowances as admissible to such regular government employees under the rules. The judgment of the Division Bench in Kulbir Singh's case (supra) was confirmed by the Hon'ble Supreme Court in Civil Appeal CWP No.8671 of 1987 :3: No.2532 of 1999. Further reference is made to CWP No.4412 of 1999 (Gurmukh Singh and others Vs. State of Punjab and others), decided by a Division Bench of this Court on 28.07.1999 relying upon earlier judgment of Kulbir Singh Vs. State of Punjab, CWP No.10017 of 1995 decided by learned Single Bench of this Court on 20.008.1998. Even this judgment was upheld by the Hon'ble Supreme Court of India vide judgment dated 04.02.2000.
To the contrary, Mr.Sahu, learned Assistant Advocate General, Punjab, appearing for the respondents has referred to a latest judgment of this Court in the case of Baljit Singh Vs. State of Haryana (CWP No.17306 of 2000) decided by a Division Bench of this Court on 30.09.2008, wherein the following observations have been made:-
"Having heard learned counsel at a considerable length, we are of the considered view that the instant petition lack merit and is, thus, liable to be dismissed. A daily wage employee cannot seek parity in the matter of payment of wages with a regular employee because the employment of a daily wager commences every day in the morning and comes to an end in the evening. He cannot be proceeded against for absence of duty if he does not report on the next day, whereas a regular employee is subjected to the discipline of office hours and conduct worthy of a public servant. He is governed invariably by Punishment and Appeal Rules and Conduct Rules of the Department. CWP No.8671 of 1987 :4: Therefore, no parity in the matter of pay scale and other allowances could be claimed by a daily wager with a regular employee. Moreover, a daily wager is employed without going into details of his antecedents and even qualification. As and when opportunity of regular employment comes such daily wager could always apply and screen through the test laid by the employer. It is also well settled that employer can terminate the services of a daily wagers as long as it comply with the principles laid down by Section 25-F of the Industrial Disputes Act, 1947. In the present case, the petitioner has already gone to the Tribunal which has allowed only 25% of the back wages from the date of demand notice. The prayer which is now being made before this Court could have easily been made by the petitioner before the Tribunal and the 25% amount of the back wages, which has been paid from the date of termination i.e. 10.1.1997 to the date of his reinstatement i.e. 4.7.2002 also shows that similar relief is being sought in the instant petition. It is, thus, obvious that such a relief cannot be granted once the adjudication has been undertaken by the Tribunal in respect of the same period and the plea was available to the petitioner. In so far as the Full Bench judgment in CWP No.8671 of 1987 :5: Vijay Kumar's case (supra) is concerned, we do not wish to enter into any detailed discussion because the petitioner does not have requisite qualification of Matric for the post of Peon and in any case the Full Bench judgment will not apply once the matter has been adjudicated by the Tribunal. Even otherwise, the law laid down by the Constitution Bench of Hon'ble the Supreme Court in Umadevi's case (supra) would affect the view taken by the Full Bench in Vijay Kumar's case (supra). There is, thus, no merit in the instant petition, which does not warrant admission. Accordingly, the same is dismissed."
Mr.Sahu has also relied upon latest judgment of the Hon'ble Apex Court in the case of State of Punjab and others Vs. Surinder Singh and another, 2007 (4) SCT, 628, wherein the following observations have been made:-
"6. The principle of equal pay for equal work has gone a sea change. Earlier the view of this Court was that if two persons are discharging the same functions, they will be entitled to same wages. Subsequently, this view has been changed and now the view of this Court is that there should be complete and total identity between the two persons similarly situated so as to grant equal pay for equal work. Recently this Court has held that CWP No.8671 of 1987 :6: identity between two persons has to be complete and total. In case of a regular appointee, he has undergone a selection process and his services are regular. Even if a daily wage employee is discharging the same functions as a regular employee the authorities are not bound to grant equal pay to such a person who is appointed on daily wage basis i.e., is appointed for a short term and has not faced the selection process. Thus, the principle of equal pay for equal work has to be granted only if there is a total and complete identity between the two persons. In this view, we are supported by a decision of this Court in the case of S.C. Chandra & Ors. Vs. State of Jharkhand & Ors., 2007 (4) SCT 76: 2007 (9) SCR 130: JT 2007 (10) SC 272, which has referred to earlier decisions of this Court.
8. In view of the legal position, as mentioned above, we are of the opinion that the view taken by the High Court granting pay scale of regular employees to the daily wage employees does not appear to be well founded. Consequently, we allow these appeals and set aside the order of the High Court as also of the Trial Court and dismiss the suits filed by the respondents herein." CWP No.8671 of 1987 :7:
Mr.Sahu has also referred to a judgment of the Hon'ble Three Judges Bench in the case of Sandeep Kumar Vs. State of Uttar Pradesh, 1992 (2) SCT 252, wherein the following observations have been made:-
"Some of the petitioners in these applications under Article 32 of the Constitution are degree- holders in Engineering and are designated as Assistant Engineers while the others are diploma holders in Engineering and are designated as Junior Engineers. They are employed on daily rated basis under the U.P. Bridge Corporation- respondent No.3 which is a public sector undertaking of the State of Uttar Pradesh. The main dispute canvassed in these writ petitions is two fold:- (1) regarding the appropriate salary for the work done; and (2) regularisation of service. From the papers placed before us and submissions advanced at the bar we find that the regular employees are being paid at the rate of Rs.1,400/- for diploma holders and Rs.1,800/- for degree- holders whereas the petitioners who are employed on casual basis are being paid at the rate of Rs.1,800/- (for degree-holders) and Rs.1,280/- (for diploma holders). The distinction maintained has been explained by saying that since they are not regular employees no payment is being made for the holidays when no work is taken. It is difficult CWP No.8671 of 1987 :8: to accept this contention. The petitioner-degree- holders are paid at the same rate as the regular degree-holders. There is no reason to make distinction between petitioner-diploma holders and the regular diploma holders. Besides even under the Minimum Wages Act a paid day of rest in every period of seven days is mandatory. The diploma degree holders among the petitioners should, therefore, be paid Rs.1,400/- p.m."
There is apparent conflict between the aforesaid judgment in Sandeep Kumar's case and the State of Punjab and others Vs. Surinder Singh and another. However, in Surinder Kumar's case (supra), the Hon'ble Apex Court has ruled that the principle cannot be applied unless there is total and complete identity between the two persons. In the present case, on account of various earlier judgment of this Court confirmed by the Hon'ble Supreme Court, daily wagers in almost all the departments are getting the basic salary in the pay scale of equivalent post occupied by the regular employees and this benefit has been allowed to them for the period preceding three years and two months before the filing of the writ petition. The petitioners are similarly situated and, thus, there is complete and total identity between the petitioners and the daily wagers who are working in other departments in the State. The petitioners cannot be denied the similar benefits as has been granted to other daily wagers working in the same and other department in the State of Punjab.
In view of the above, present petition is dispose of with a direction to the respondents to place the petitioners at the basic pay of the CWP No.8671 of 1987 :9: scale of the regular employees performing the same duties like the petitioners. The petitioner shall also be entitled to arrears of pay for a period of three years and two months preceding the filing of the writ petition in accordance with the judgment rendered by this Court in the case of Tehal Singh and others Vs. State of Punjab and others (CWP No.3337 of 1988) decided on 22.09.2004. The minimum salary of time scale of appropriate category with appropriate allowances thereon as revised from time to time shall also be paid to the petitioners so long as they work or have worked as daily wagers. Let the benefits flowing from this order be given to the petitioners within a period of three months from the date of receipt of a certified copy of this order.
31.10.2008 (PERMOD KOHLI) BLS JUDGE
Note: Whether to be referred to the Reporter? NO CWP No.8671 of 1987 : 10 :