Bombay High Court
Municipal Council Latur vs Shivaji Vaijnath Kamble on 31 August, 1994
Equivalent citations: 1995(3)BOMCR8, [1995(70)FLR608], (1995)ILLJ1195BOM, 1994(2)MHLJ1844
Author: T.K. Chandra Shekhara Das
Bench: T.K. Chandra Shekhara Das
JUDGMENT T.K. Chandra Shekhara Das, J.
1. Common issues emerge from these writ petitions and, therefore, I heard these writ petitions jointly and I am disposing of the same by a common judgment.
2. Respondents in these writ petitions are the Sweepers of the street of the Municipality, Latur. They are employed on daily wages as Sweepers by the Municipality. It is disclosed during the hearing that there are another set of Sweepers under the said Municipality who are known as regular sweepers and who are drawing time scale of pay and other attended benefits like National Holiday benefits and other better services benefits like regular employees of the Municipality. These respondent-Sweepers individually made applications before the Labour Court at Latur under section 33-C(2) of the Industrial Disputes Act, 1947 (hereinafter called as the Act), claiming that they were serving as Sweepers for 8 years or more on daily wages under the Latur Municipality and the wages are being paid at the end of the every month and that they are discharging the same duties and responsibilities of the regular categories of Sweepers who are paid in time scale of pay by the Municipality. They further allege that there are no differences in working hours and nature of the work etc. from that of the regular Sweepers. With these allegations they approached the Labour Court praying for an equal treatment with that of the regular Sweepers employed by the Municipality in terms of their remunerations following the principle of 'Equal Pay for Equal Work'. The evidence was adduced before the Labour Court by the respective parties.
3. On appreciation of evidence, the Labour Court was accepting the contentions of the respondents-Sweepers and directed the Municipality, Latur, to apply principle of equal pay for equal work in the case of the Sweepers who are paid daily wages. The Labour Court found that they are entitled to the time scale of pay. The Labour Court has granted the following reliefs in its judgment dated 14-12-1992 :-
(1) The difference between the actual payment made to the applicant and the scale of salary prescribed for the post of Sweepers;
(2) That the amount of salary for the holidays on which the applicant has performed the duties and the amount of salary for the period of the leave for which the applicant is entitled according to law and all these computations are to be made for the whole tenure of service of 8 years and the amount so computed and calculated which the respondents are indebted is directed to be paid;
The prayer for the entitlement for the salary of leave period has been rejected by the Labour Court. Therefore, the Labour Court was partly allowing the petitions of the applicants by passing common orders in three or four sets of applications.
4. The Writ Petition No. 1666/1994, which I refer for the purpose of the facts, is with regard to I.D.A. No. 81/1992 and I.D.A. Nos. 84/1992 to 88/1992.
5. Aggrieved by the judgments of the Labour Court, Latur, the Latur Municipality field these writ petitions challenging the individual orders passed by the Labour Court. Therefore the short question to be decided in these writ petitions is whether the judgment of the Labour Court declaring that the Sweepers who are appointed on daily wages by the petitioner are entitled to the same salary and allowances for which any regular Sweeper is employed by the petitioner following principles of equal pay for equal work.
6. On behalf of the petitioner-Municipality in all these proceedings, its Deputy Chief Officer has been examined before the Labour Court. He admitted in cross-examination that the nature of work, the duty hours and other responsibilities of the respondents herein and also that of the regularly appointed Sweepers are one and the same. He also adds that the respondents are liable to work even on holidays in which case they will be paid the wages on that particular day. He further stated that these respondents are deployed to do the work along with regular Sweepers.
7. The Labour Court has strongly relief upon these specific admissions made by the Deputy Chief Officer of Municipality, Latur, to come to its conclusion. It is disclosed in the evidence before the Labour Court that all these workers are required to attend from 6.00 a.m. to 11.00 a.m. at the place of duty and they are again to work from 2.00 p.m. to 5.00 p.m. All these daily wage Sweepers and regularly employed Sweepers are to work for eight hours in a day on the time table mentioned above.
8. Based on these facts, admitted in this case, the Labour Court rightly came to the conclusion that there is no difference in the duties and functions and the nature of work done between the Sweepers appointed on daily wages and the Sweepers appointed on regular basis. When these proved facts stare at a Court of Law, the Court cannot ignore the principle of equal pay for equal work. The Supreme Court in various decisions approved the concept of equal pay for equal work as an implementation of the Article 39(d) of the Directive Principle of State Policy enshrined in the Constitution of India. Now Courts will have to implement Article 39(d) as a fundamental right, as the principle is in built in Article 14. The Supreme Court in its recent decision in , Markandya v. State of A.P., has held that the purpose of the directive principles, though they are not enforceable through a Court of Law, but to ensure that doing justice the principles contained in directive principles so State policy are maintained. The Supreme Court has held that the fundamental rights and the directive principles constitute "conscience" of the Constitution. In fact the Constitution aims at bringing about a synthesis between fundamental rights and directive principles of State policy. The Supreme Court in the above decision at paragraph No. 9, referring to particularly Article 39(d), holds thus :-
"The purpose of the Article 39(d) is to fix certain social and economic goals for avoiding any discrimination amongst the citizens doing similar work in matters relating to pay. If the Court finds that discrimination is practised amongst two sets of employees similarly situated in matters relating to pay, the Court must strike down discrimination and direct the State to advert to the doctrine of equal pay for equal work as enshrined in Article 39(d) of the Constitution."
This principle has been reiterated by the Supreme Court in a later decision in Supreme Court Employees' Welfare Association v. Union of India reported in 1990 (4) SCC 334, and it has been held that if on facts, it is found that if unequal pay is paid to the employees who are doing equal work, then Court can immediately strike down that practice as violative of Article 14 of the Constitution of India. In other words, if any employer does not follow the concept of equal pay for equal work, it can be assailed that such practice is in violation of Article 14 of the Constitution of India. The Supreme Court in the above decision at paragraph No. 38 observes as follows :-
"It follows from the above decisions that although doctrine of equal pay for equal work does not come within the Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay-scales and such classification is unreasonable and/or if equal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, when unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of equal pay for equal work, as envisaged by Article 14 of the Constitution."
Viewing the facts at hand in the light of the unambiguous and unequivocal pronouncement of the Supreme Court on the subject. I have no hesitation to hold that the Labour Court is fully justified in awarding the reliefs 'equal pay for equal work' to the respondents herein.
9. The learned counsel for the petitioner advanced an argument, though faintly, that the Labour Court has no jurisdiction to grant the reliefs in the petitioners under section 33-C(2) of the Industrial Disputes Act. I am at a loss to understand that what is the relevance of this argument of the counsel, particularly in the background of the decisions of the Supreme Court. As I indicated earlier, when there is disclosure of facts that unequal treatment is meted out towards the employees who are doing same duties and responsibilities, then principle of equal pay for equal work should step in automatically to remove inequalities. It is the duty of any authority, both judicial or quasi-judicial to obviate the instances of unequal treatment wherever it is noticed. That apart, in the instant case, the Labour Court under section 33-C(2) has power to go into question of equal pay for equal work, because it is incidental to the computation of respondents' wages that they are entitled to receive under law. In other words, the right to claim equal pay for equal work should be treated as an implied term of an engagement or appointment as it is a principle enshrined under the Constitution of India under Article 14 of the Constitution. Therefore, the right of the respondents in this case is already there to claim equal wages for equal work. Only thing is that the said right has crystalled into one based on which computation of the wages in terms of money is called for. The Labour Court is, therefore. Wholly justified in crystallising rights of the respondents-Sweepers which were underlying under the terms of appointment. Here in this case, the Labour Court only crystallised the rights of the respondents on the basis of facts proved and declared that they are entitled to equal pay for equal work. I hold, in such circumstances that the Labour Court has power to go into the rights of the employees to receive equal remuneration, besides the quantification of their wages.
10. Same view has been taken by the Delhi High Court in its recent two decisions, which have been cited by the counsel for the respondents. In Indian Airlines v. The Presiding Officer, Labour Court, reported in 1988 L.I.C. 848, the Delhi High Court held that Labour Court has power to grant equal pay for equal work under section 33(c)(2) of the Industrial Disputes Act. Another latest decision by a Division Bench of the Delhi High Court reiterated the same view. In Municipal Corporation of Delhi v. Ganesh Razak and another reported in 1994 I CLR 370, it has been held by that Court that doctrine of equal pay for equal work envisaged in Article 39(d) of the constitution is exalted to the position of fundamental right by reading it along with Article 14 and, therefore, Labour Court can go into that question under Section 33-C(2) of the Act.
11. Another pertinent point to be noticed in this case is that the respondents are not directed to be regularised by the Labour Court. Their claim of regularisation of service and equal pay for equal work is entirely on different plains. If claim for regularisation of their job has been made and the Labour Court has directed regularisation of their service, definitely I would have held that the Labour Court has overstepped the jurisdiction and it cannot be permitted to arrogate to itself the functions of the Industrial Tribunal.
Regularisation of daily wage-rated labour is entirely pertaining to policy. It is a matter not in the competence of the Labour Court under section 33-C(2). But what the Labour Court has done in this case is that it has only crystallised the rights of the respondents to receive the equal pay for equal work in consonance with the principles enshrined under the Constitution of India under Article 14 read with Article 39(d) and computed the payment of wages that are being paid to similar regular employees of the Council. Therefore, contention of the counsel for petitioner regarding jurisdictional aspect cannot be countenanced to.
12. The learned counsel for the petitioner further strenuously argued that the finding to the Labour Court that respondents are doing the same job as that of the regular worker in perverse. He contended that there was no material for the Labour Court to hold so. I am afraid if I can reappreciate the evidence in exercising the power under Article 227 of the Constitution. That apart, I find that conclusions are arrived at by the Labour Court mainly on the admission made by the witness examined on behalf of the petitioner. Therefore, that contention of the counsel for the petitioner regarding finding facts by the Labour Court is unsustainable.
13. Yet another contention raised by the counsel is that the Labour Court was wrong in awarding the scale of Rs. 750-940 from 1-1-1986. I think there is some substance in this submission. The Labour Court, while discussing the evidence states that both sides did not adduce any evidence regarding what was the payment made to the regular employees and daily rated workers, and in that case what are the materials on which the Labour Court awarded the scale of Rs. 750-940 from 1-1-1986. At the same time, the Labour Court directed the petitioner to compute the amounts due to the respondents. This is abdication of the responsibilities. Main duty of the Labour Court is the compute the amounts due to respondents under section 33-C(2). Without doing the same, it directed the Municipality to do that job and this, in fact resulted in this case a very award situation. Even today parties are in dispute regarding actual amounts due to the respondents. It is disclosed across the Bar that the Labour Commissioner has calculated the amount which has been disputed by the Municipality. All these confusion and uncertainty have been caused because the Labour Court did not compute the actual amount due to these respondents. Therefore, all such computations are treated as cancelled. This part of the judgment of the Labour Court requires modification.
14. I, therefore, direct the Labour Court, Latur, to compute the actual amount due to the respondents calling for relevant documents from the parties or any other authorities which the Labour Courts seems necessary, and fix the same within 3 months from the date of receipt of this judgment. On such computation, petitioner should make the payment within one months thereafter. I modify the judgment of the Labour Court to the extent it directs the Municipality to compute the amounts due to the respondents. In all other respects, Labour Court's judgment is upheld. Subject to such modification, writ petitions are disposed of with no order as to costs.
15. Order accordingly.