Karnataka High Court
The Workmen Of Mysore Paper Mills ... vs The Management Of Mysore Paper Mills Ltd on 14 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 14012 of 2008
C/W WP No. 13284 of 2008
WP No. 36195 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 14012 OF 2008 (L-TER)
C/W
WRIT PETITION NO. 13284 OF 2008 AND
WRIT PETITION NO. 36195 OF 2009
IN W.P.NO.14012/2008
BETWEEN:
THE WORKMEN OF MYSORE PAPER MILLS LIMITED
REP BY MYSORE PAPER MILLS
FOREST EMPLOYEES ASSOCATION,
TRADE UNION REGD. UNDER THE
PROVISIONS OF THE INDIAN TRADE UNION ACT,
NO 21-B, S.N MARKET B.H ROAD
SHIMOGA, BY ITS GENERAL SECRETAY
...PETITIONER
(BY SRI. V S NAIK, ADVOCATE)
AND:
SUJATA
SUBHASH 1. THE MANAGEMENT OF
PAMMAR MYSORE PAPER MILLS LTD
Digitally signed
by SUJATA BHADRAVATHI SHIMOGA DISTRICT
SUBHASH
PAMMAR
Date: 2022.12.15
BY ITS MANAGING DIRECTOR
14:49:51 +0530
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WP No. 14012 of 2008
C/W WP No. 13284 of 2008
WP No. 36195 of 2009
2. THE PRINCIPAL SECRETARY
DEPT. OF COMMERCE AND INDUSTRIES
GOVERNMENT OF KARNATAKA
VIKAS SOUDHA, DR. AMBEDKAR ROAD
BENGALURU 560 001.
3. THE PRINCIPAL SECRETARY
DEPT. OF FOREST AND ECOLOGY
GOVT. OF KARNATAKA
DR. B. R. AMBEDKAR ROAD
BENGALURU 560 001.
4. THE GOVT. OF KARNATAKA
VIDHAN SOUDHA
DR. B. R. AMBEDKAR ROAD,
BENGALURU 560 001
BY ITS CHIEF SECRETARY
...RESPONDENTS
(BY SRI.SUDHAKAR B., ADVOCATE FOR R1;
SRI. ARUN SHYAM, AAG FOR R2 TO R4)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE AWARD PASSED BY THE ADDITIONAL
INDUSTRIAL TRIBUNAL, BANGALORE, IN AID NO.16/2005
DT. 25.7.2008, VIDE ANX-L, SINCE THE SAME IS UNJUST,
ILLEGAL AND OPPOSED TO THE SCHEME OF INDUSTRIAL
DISPUTES ACT, 1947, AS WELL THE SCHEME OF
CONSTITUTION OF INDIA; DIRECT THE RESPONDENT TO
REGULARIZE THE SERVICES OF 529 FOREST FIELD
WORKERS WORKING IN THE MILLS WITH REGULAR PAY
FIXATION, ARREARS OF SALARY AND OTHER
CONSEQUENTIAL BENEFITS WITH RETROSPECTIVE
EFFECT TO MEET THE ENDS OF JUSTICE.
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WP No. 14012 of 2008
C/W WP No. 13284 of 2008
WP No. 36195 of 2009
IN W.P.NO.13284/2008
BETWEEN:
WORKMEN OF MYSORE PAPER MILLS LTD
REP BY SHIVMOGA ZILLA M.P.M.NOUKARA SANGHA,
ARAGA 577414
THIRTHAHALLI, SHIVAMOGA DISTRICT
REP BY ITS PRESIDENT
SRI K.G.GIRIYAPPA, AGED 46 YEARS
...PETITIONER
(BY SRI. T S ANANTHARAM.,ADVOCATE)
AND:
MANAGMENT OF
M/S MYSORE PAPER MILLS LIMITED
PAPER TOWN,BHADRAVATHI
SHIVMOGA DISTRICT
REP. BY ITS MANAGING DIRECTOR
...RESPONDENT
(By SRI. SUDHAKAR B., ADVOCATE)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE AWARD DATED25.07.2018 DAY OF JULY 2008
IN A.I.D.NO.16/05, OF THE ADDL. INDUSTRIAL TRIBUNAL,
BANGALORE, ANN-F, SO FAR AS THE OBSERVATION OF
THE TRIBUNAL THAT THE PETITIONER WORKMEN ARE
NOT ENTITLED FOR BEING ABSORBED AGAINST THE
POSTS OF FOREST PLANTATION WATCHERS AND DRIVERS
AND ETC..
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WP No. 14012 of 2008
C/W WP No. 13284 of 2008
WP No. 36195 of 2009
IN W.P.NO.36195/2009
BETWEEN:
MANAGEMENT OF
MYSORE PAPER MILLS LTD
PAPER TOWN, BHADRAVATHI
REP. BY ITS GENERAL MANAGER (HRD & A)
...PETITIONER
(BY SRI.SUDHAKAR B., ADVOCATE)
AND:
1. MYSORE PAPER MILLS FOREST
EMPLOYEES' UNION
C/O. MURUGENDRAPPA
5TH CROSS, JAIL ROAD (CHANNEL'S LEFT SIDE)
SHIMOGA 577 201
REP. BY ITS GENERAL SECRETARY
2. SHIMOGA ZILLA M.P.M.
ARANYA NOUKARARA SANGHA
ARAGA 577 414
THIRTHAHALLI
REP. BY ITS PRESIDENT.
...RESPONDENTS
(By SRI. V. S. NAIK, ADVOCATE FOR R1;
SRI. T. S. ANANTHARAM, ADVOCATE FOR R2)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
SET ASIDE THE FINDING ARRIVED AT BY THE
INDUSTRIAL TRIBUNAL IN PARA NOS. 20, 30, 31 AND 58
OF THE AWARD DATED 25.07.2008 IN AID NO.16/2005 BY
THE INDUSTRIAL TRIBUNAL, BENGALURU VIDE
ANNEXURE-A AND ETC.
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WP No. 14012 of 2008
C/W WP No. 13284 of 2008
WP No. 36195 of 2009
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 15.11.2022, COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
COMMON ORDER
1. The petitioner who is the Association of the workmen of Mysore Paper Mills Limited Forest Employees is before this Court seeking for the following reliefs:
In W.P.No.14012/20081.1. Issue a writ of certiorari or any other appropriate writ, order or direction quashing the award passed by the Additional Industrial Tribunal, Bengaluru, in AID No.16/2005 dated 25.07.2008, the certified copy of which is produced herewith and marked as Annexure-L, since the same is unjust, illegal and opposed to the Scheme of Industrial Disputes Act, 1947, as well the Scheme of Constitution of India;
1.2. Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to regularize the services of 529 Forest Field Workers working in the Mills with regular pay fixation, arrears of salary and other consequential benefits with retrospective effect to meet the ends of justice.
1.3. Grant such other relief or reliefs as this Hon'ble Court may be pleased to grant including the cost of this writ proceedings in the interest of justice and equity.-6- WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009 In W.P.No.13284/2008
1.4. Issue a writ of certiorari and or any writ or order and quash the award dated 25.07.2008 in AID No.16/2005 of the Additional Industrial Tribunal, Bangalore, Annexure-F so far as the observation of the Tribunal that the petitioner workmen are not entitled for being absorbed against the posts of Forest Plantation Watchers and Drivers.
1.5. Direct the respondent management to absorb and regularize the services of the petitioner workmen on permanent rolls of the company and pay wages and all other benefits to these Forest Field Watchers (Workmen) on par with the wages and other benefits according to the services of the permanent workmen of the other Divisions, Branches, Departments of the company of similar categories with retrospective effect.
2. The petitioner Management of Mysore Paper Mills Limited is before this Court in W.P.No.36195/2009 seeking for the following reliefs:
2.1. Setting aside the finding arrived at by the Industrial Tribunal in para Nos. 20, 30, 31 and 58 of the award dated 25.07.2008 in AID No.16/2005 by the Industrial Tribunal, Bengaluru.
2.2. Issue any other appropriate writ or direction, as this Hon'ble Court deems fit and proper to grant in the circumstances of the case.
2.3. for cost of this proceedings.
-7- WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20093. The facts of the case are that;
3.1. The petitioner Mysore Paper Mills Forest Employees Association, who is a registered Union registered under the Indian Trade Unions Act, 1926, raised an Industrial Dispute demanding regularization of 529 Forest Field Workers by the Management of Mysore Paper Mills Limited (hereinafter referred to as 'the MPM' for short).
3.2. The Government of Karnataka referred the dispute to the Industrial Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal', for short) as per the order dated 22.09.2005, in terms of Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the ID Act', for short).
3.3. One other Union namely, Shimoga District Mysore Paper Mills Forest Employees -8- WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009 Association also having demanded similar relief from the Management, no conciliation having occurred, the said dispute was also referred to the Industrial Tribunal for adjudication.
3.4. The contention of the petitioner is that, all the members of the petitioner are daily wage employees, the first payment having been made in the year 1980 and thereafter the respondent continued to engage the services by employing new persons and by the year 1990 there were 529 workers appointed in the above category.
3.5. There being a demand made for regularization of daily wage workers, it is alleged that the Management started making payment of wages on consolidated basis at Rs.500/- per month for the first batch of the year 1991. Slowly and -9- WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009 steadily all the daily wage workers were converted to consolidated wages.
3.6. Though this consolidation occurred, the main claim for regularisation of services and fixation of pay scale remained unresolved. The services of such persons were engaged by the respondent Company, the workmen remained exploited group having been paid meager wages and not being provided with other service benefits.
3.7. It is contended that the work which was being carried out by the workmen is perennial in nature and is directly linked to the social activities of the respondent-Management, which manufactures various varieties of paper. The workmen safeguard the forest and the nursery which has been set up. It is from there that the raw material for the purpose of manufacture of
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009pulp is purchased. Suffice it to say that these workmen discharge the essential function in the Company.
3.8. On reference to the Tribunal, the petitioner filed a claim statement seeking for a direction to the second party Management to immediately absorb 529 Forest Field Workers as permanent employees and further direction to the second party Management to fix the pay scale and other consequential benefits.
3.9. Counter statement was filed thereto objecting to the claims made, evidence was led of the witnesses and finally the Tribunal by the impugned award dated 25.07.2008 held that, though the first party workmen had been engaged by the MPM to work in forest division prior to 1992, they are not entitled to be absorbed against the post of Forest Plantation
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Watchers and Drivers and held that they are entitled for wages and other benefits available to the workmen under the ID Act, as provided from time to time for settlement raised between the workmen and second party Management.
3.10. This being the facts on the ground, the work being carried out by the workmen would come within the definition of the word 'manufacturing process' in terms of Section 2(k) of the Factories Act, they being workmen in terms of Section 2(s) of the ID Act, it is further held that the services cannot be terminated by the Management except in accordance with law.
3.11. It is challenging the said order that the petitioners are before this Court.
4. Sri. V.S.Naik, learned counsel for the petitioner Association would submit that;
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20094.1. Though the petitioner had sought for absorption and regularisation of its members, the said prayer has not been insisted upon and he would only seek for payment under the principle of 'equal pay for equal work' to the members of the petitioner, since the members of the petitioner are discharging the same work as done by the Forest Watchers under the Forest Department.
4.2. MPM has availed the services of officers from the Forest Department on deputation basis. It is the same function which are discharged by those persons that are discharged by the workmen of the petitioner Association. The requirement of the workmen of the Association being established in view of the continuous engagement and recruitment thereof, it is required that the payments are also to be made similarly. The payment of minimum wages
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009would amount to Unfair Labour Practice resorted to by the Company which is a 'State' in terms of Article 12 of the Constitution of India, which is expected to be a model employer.
4.3. During the pendency of the above matter, the company was brought into liquidation, as such, the Government of Karnataka represented by the Chief Secretary, the Principle Secretary, Department of Commerce and Industries and the Principal Secretary, Department of Forest and Ecology, were brought as respondents No.2, 3 and 4 respectively.
4.4. After the judgment being rendered by the Hon'ble Apex Court in State of Karnataka Vs. Umadevi1, the Government of Karnataka had promulgated enactment by name, the Karnataka Daily Wage Employees Welfare Act, 2012 (hereinafter referred to as the 'Act of 1 (2006) 4 SCC (1)
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20092012', for short), as also the Karnataka Daily Wage Employees Welfare Rules, 2013 (hereinafter referred to as 'the Rules of 2013', for short), in terms of which the pay scale of daily wages employees were revised from time to time to.
4.5. The Government of Karnataka had also issued a notification bearing No.CI 06 CPM 2016 dated 20.02.2018 published in the Karnataka Gazette dated 01.03.2018, where the names of 328 daily wage employees were mentioned with details of their service particulars, father's name, age, category, date of appointment, qualification at the time of appointment, designation, rate of daily wage being paid etc. 4.6. Having notified 328 names, it is the contention of Sri V. S. Naik, learned counsel for the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009petitioner that the Act of 2012 and the Rules of 2013 would be applicable to the said persons.
4.7. When the above was brought to the notice of this Court, this Court vide order dated 08.02.2022 had permitted the petitioner Union/Association to submit a representation to the Government seeking for necessary action in that regard. Hence a representation has been submitted on 14.02.2022, where it was stated that the basic pay for the 279 workers was Rs.4400/- per month, whereas in terms of the Act of 2012, the basic pay was fixed at Rs.18,600/-, which benefit had been extended to the Forest Workers working in the Forest Department, but was not made available to the members of the petitioner Association.
4.8. The daily wage Watchers and other category of employees/workmen working in the Forest
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Wing of MPM and similarly situated ought to be treated equally having put in more than 30 years of service. Therefore a request is made for payment in terms of the Act of 2012 and Rules of 2013. The same came to be rejected by the Under Secretary, Commerce and Industries Department vide its order dated 20.02.2018.
4.9. Therefore Sri. V. S. Naik, learned counsel for the petitioner contended that the State ought to have considered the same and directed the benefits under the Act of 2012 and Rules of 2013 be made available. Not having done so, it is highly discriminative and violative of Article 14 of the Constitution of India.
4.10. In support of his contentions, he has relied upon the following decisions:
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009 4.10.1. Western India Automobile Association Vs. The Industrial Tribunal, Bombay and Ors.
Respondents, Governor- General of India- Intervener2. The relevant paragraghs 29, 30 and 31 are extracted below for easy reference:
29. It was argued that the Industrial Disputes Act should be interpreted so as to avoid repugnancy with the provisions of the Contract Act. In our opinion, no question of repugnancy arises, as the question before the Court is what disputes were covered by the definition of "industrial dispute" in Act XIV [14] of 1947.
Once a particular dispute is found to fall under the definition of industrial dispute in the Act, the jurisdiction to decide the same rested with the Tribunal.
30. On behalf of the appellants it was also urged that the contention of the labour unions was that the Industrial Disputes Act was framed to prevent victimization and to prevent the employers from interfering with workmen forming unions so as to be in a position to do collective bargaining. It was pointed out that the Legislature had made ample provision in Act XIV [14] of 1947 to prevent this mischief. Act XIV [14] of 1947 was an Act to amend the 2 AIR 1949 FC 111
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Trade Unions Act of 1926. In S. 28 (k) of the Amending Act, unfair practices by employers were enumerated and by S. 32 (a), Amending Act it was provided that any employer found guilty of unfair practice as defined in S. 28 (k) shall be punishable with fine which may extend to Rs. 1000. A closer examination of the Indian Trade Unions Act of 1926, read with the Amending Act, however, shows that the main object of these enactments was the registration and formation of trade unions and not for the purpose of defining the relations between the employers and the employees. Section 28 (k) of the Amending Act XIV [14] of 1947 was enacted to prevent employers from interfering with the formation of trade unions and against preventing workmen from joining or helping in forming or working such unions. Reading the two Acts together, it is clear that they were not made to protect against the victimization of workmen as a result of an industrial dispute and this contention is repelled.
31. It was contended that the reinstatement of the discharged workmen was not an industrial dispute because if the union represented the discharged employees, they were not workmen within the definition of that word in the Industrial Disputes Act. This argument is unsound. We see no difficulty in the respondents (union) taking up the cause of the discharged workmen and the dispute being still an industrial dispute between the employer and the workman, The non-employment "of any person" can amount to an industrial dispute between the employer and the workmen, falling under the definition of that word in the Industrial Disputes Act. It was
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009argued that if the respondents represented the undischarged employees, there was no dispute between them and the employer. That again is fallacious, because under the definition of industrial dispute, it is not necessary that the parties to the proceedings can be the discharged workmen only. The last words in the definition of industrial dispute, viz., "any person" are a complete answer to this argument of the appellants.
4.10.2. Maharashtra State Road Transport Corporation and Another Vs. Casteribe Rajya Parivahan Karmchari Sanghatana3. The relevant paragraghs 34, 35, 31 and 36 are extracted below for easy reference:
34. It is true that Dharwad Distt. PWD Literate Daily Wages Employees' Assn. arising out of industrial adjudication has been considered in Umadevi (3) and that decision has been held to be not laying down the correct law but a careful and complete reading of the decision in Umadevi (3) leaves no manner of doubt that what this Court was concerned in Umadevi (3) was the exercise of power by the High Courts under Article 226 and this Court under Article 32 of the Constitution of India in the matters of public employment where the employees have been engaged as contractual, temporary or casual workers not based on proper selection as recognised by the rules or 3 (2009) 8 SCC 556
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procedure and yet orders of their regularisation and conferring them status of permanency have been passed.
35. Umadevi (3) is an authoritative pronouncement for the proposition that the Supreme Court (Article 32) and the High Courts (Article 226) should not issue directions of absorption, regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees unless the recruitment itself was made regularly in terms of the constitutional scheme.
36.Umadevi (3) does not denude the Industrial and Labour Courts of their statutory power under Section 30 read with Section 32 of the MRTU and PULP Act to order permanency of the workers who have been victims of unfair labour practice on the part of the employer under Item 6 of Schedule IV where the posts on which they have been working exist. Umadevi (3) cannot be held to have overridden the powers of the Industrial and Labour Courts in passing appropriate order under Section 30 of the MRTU and PULP Act, once unfair labour practice on the part of the employer under Item 6 of Schedule IV is established.
4.10.3. Sheo Narain Nagar & Ors. Vs. State of Uttar Pradesh & Ors4. The relevant paragraghs 8, 9 and 10 are extracted below for easy reference:
8. When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and 4 Civil Appeal No.18510/2017 (Arising out of SLP(C) No.6183/2015)
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rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with Article 34 (1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in UmaDevi (supra).
9. Coming to the facts of the instant case, there was a direction issued way back in the year 1999, to consider the regularization of the appellants. However, regularization was not done. The respondents chose to give minimum of the pay scale, which was available to the regular employees, way back in the year 2000 and by passing an order, the appellants were also conferred temporary status in the year 2006, with retrospective effect on 2.10.2002. As the respondents have themselves chosen to confer a temporary status to the employees, as such there was requirement at work and posts were also available at the particular point of time when order was passed. Thus, the submission raised
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009by learned counsel for the respondent that posts were not available, is belied by their own action. Obviously, the order was passed considering the long period of services rendered by the appellants, which were taken on exploitative terms.
10. The High Court dismissed the writ application relying on the decision in Uma Devi (supra). But the appellants were employed basically in the year 1993; they had rendered service for three years, when they were offered the service on contract basis; it was not the case of back door entry; and there were no Rules in place for offering such kind of appointment. Thus, the appointment could not be said to be illegal and in contravention of Rules, as there were no such Rules available at the relevant point of time, when their temporary status was conferred w.e.f. 2.10.2002. The appellants were required to be appointed on regular basis as a one-time measure, as laid down in paragraph 53 of Uma Devi (supra). Since the appellants had completed 10 years of service and temporary status had been given by the respondents with retrospective effect in the 2.10.2002, we direct that the services of the appellants be regularized from the said date i.e. 2.10.2002, consequential benefits and the arrears of pay also to be paid to the appellants within a period of three months from today.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20094.10.4. State of Punjab and others Vs. Jagjit Singh and others5. The relevant paragraghs 5, 42, 43, 44, 45, 58, 59, 60, 61 are extracted below for easy reference:
42. All the judgments noticed in paras 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of "equal pay for equal work". The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them were against the same post for which a higher pay scale was being allowed in other government departments. Or alternatively, their duties and responsibilities were the same as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of "equal pay for equal work" was invoked and considered, it would be just and appropriate to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of "equal pay for equal work". Our consideration, has led us to the following deductions:
42.1. The "onus of proof" of parity in the duties and responsibilities of the subject 5 (2017) 1 SCC 148
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post with the reference post under the principle of "equal pay for equal work" lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post (see Orissa University of Agriculture & Technology case, UT Chandigarh, Admn. v. Manju Mathur, SAIL case and National Aluminium Co. Ltd. case).
42.2. The mere fact that the subject post occupied by the claimant is in a "different department" vis-à-vis the reference post does not have any bearing on the determination of a claim under the principle of "equal pay for equal work". Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government (see Randhir Singh case and D.S. Nakara case).
42.3. The principle of "equal pay for equal work", applies to cases of unequal scales of pay, based on no classification or irrational classification (see Randhir Singh case). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers case, Mewa Ram Kanojia case, Grih Kalyan Kendra Workers' Union case and S.C. Chandra case).
42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of "equal
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009pay for equal work" (see Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. and Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature.
42.5. In determining equality of functions and responsibilities under the principle of "equal pay for equal work", it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see Federation of All India Customs and Central Excise Stenographers case and SBI case. The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of "equal pay for equal work" (see State of U.P. v. J.P. Chaurasia and Grih Kalyan Kendra Workers' Union case).
42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology case).
42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009different pay scales. Such as -- "selection grade", in the same post. But this difference must emerge out of a legitimate foundation, such as -- merit, or seniority, or some other relevant criteria (see State of U.P. v. J.P. Chaurasia ).
42.8. If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia case and State of W.B. v. Tarun K. Roy). In such a case the principle of "equal pay for equal work" cannot be invoked.
42.9. The reference post with which parity is claimed under the principle of "equal pay for equal work" has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey and Hukum Chand Gupta case).
42.10. A comparison between the subject post and the reference post under the principle of "equal pay for equal work"
cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator v. Dayanand ).
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42.11. Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of "equal pay for equal work"
would not be applicable. And also when the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see SBI case).
42.12. The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of "equal pay for equal work" would not be applicable (see State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.).
42.13. The parity in pay, under the principle of "equal pay for equal work", cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post, were placed in the same pay scale. The principle of "equal pay for equal work" is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see State of W.B. v. Minimum Wages Inspectors Assn.).
42.14. For parity in pay scales under the principle of "equal pay for equal work", equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see U.T. Chandigarh, Admn. v. Manju Mathur).
42.15. There can be a valid classification in the matter of pay scales between employees even holding posts with the same nomenclature i.e. between those discharging duties at the headquarters, and others working at the institutional/sub- office level (see Hukum Chand Gupta case), when the duties are qualitatively dissimilar.
42.16. The principle of "equal pay for equal work" would not be applicable, where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see Hukum Chand Gupta case).
42.17. Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principle of "equal pay for equal work", even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different entities which are independent of one another, the principle of "equal pay for equal work" would not apply (see S.C. Chandra case and National Aluminium Co. Ltd. case).
43. We shall now venture to summarise the conclusions recorded by this Court, with reference to a claim of pay parity, raised by temporary employees (differently designated
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009as work-charge, daily-wage, casual, ad hoc, contractual, and the like), in the following two paragraphs.
44. We shall first outline the conclusions drawn in cases where a claim for pay parity, raised at the hands of the temporary employees concerned was accepted by this Court by applying the principle of "equal pay for equal work" with reference to regular employees:
44.1. In Dhirendra Chamoli case this Court examined a claim for pay parity raised by temporary employees for wages equal to those being disbursed to regular employees. The prayer was accepted. The action of not paying the same wage despite the work being the same was considered as violative of Article 14 of the Constitution. It was held that the action amounted to exploitation -- in a welfare State committed to a socialist pattern of society.
44.2. In Surinder Singh case this Court held, that the right of equal wages claimed by temporary employees emerged, inter alia, from Article 39 of the Constitution.
The principle of "equal pay for equal work"
was again applied, where the subject employee had been appointed on temporary basis, and the reference employee was borne on the permanent establishment. The temporary employee was held entitled to wages drawn by an employee on the regular establishment. In this judgment, this Court also took note of the fact that the above proposition was affirmed by a Constitution Bench of this Court, in D.S. Nakara case.
44.3. In Bhagwan Dass case this Court recorded that in a claim for equal wages, the duration for which an employee would remain (or had remained) engaged, would
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not make any difference. So also, the manner of selection and appointment would make no difference. And therefore, whether the selection was made on the basis of open competition or was limited to a cluster of villages, was considered inconsequential, insofar as the applicability of the principle is concerned. And likewise, whether the appointment was for a fixed limited duration (six months, or one year), or for an unlimited duration, was also considered inconsequential, insofar as the applicability of the principle of "equal pay for equal work" is concerned. It was held that the claim for equal wages would be sustainable, where an employee is required to discharge similar duties and responsibilities as regular employees, and the employee concerned possesses the qualifications prescribed for the post. In the above case, this Court rejected the contention advanced on behalf of the Government, that the plea of equal wages by the employees in question, was not sustainable because the employees concerned were engaged in a temporary scheme, and against posts which were sanctioned on a year-to-year basis.
44.4. In Daily Rated Casual Labour case this Court held, that under the principle flowing from Article 38(2) of the Constitution, the Government could not deny a temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, along with dearness allowance and additional dearness allowance, as well as, all the other benefits which were being extended to casual workers. It was also held, that the classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories for payment of wages at different rates, was not tenable. It was also held, that such an act
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of an employer would amount to exploitation. And further that the same would be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution.
44.5. In State of Punjab v. Devinder Singh this Court held that daily wagers were entitled to be placed in the minimum of the pay scale of regular employees working against the same post. The above direction was issued after accepting that the employees concerned were doing the same work as regular incumbents holding the same post by applying the principle of "equal pay for equal work".
44.6. In State of Karnataka case, a Constitution Bench of this Court set aside the judgment of the High Court, and directed that daily wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made a very important distinction between pay parity and regularisation. It was held that the concept of equality would not be applicable to issues of absorption/regularisation. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity -- if the work component was the same. The judgment rendered by the High Court was modified by this Court, and the daily-wage employees concerned were directed to be paid wages equal to the salary at the lowest grade of the cadre concerned.
44.7. In State of Haryana v. Charanjit Singh, a three-Judge Bench of this Court held that the decisions rendered by this Court in State of Haryana v. Jasmer Singh, State of Haryana v. Tilak Raj [State of Haryana v. Tilak Raj, Orissa University of Agriculture & Technology case and State of
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009W.B. v. Tarun K. Roy laid down the correct law. Thereupon, this Court declared that if the daily-wage employees concerned could establish that they were performing equal work of equal quality, and all other relevant factors were fulfilled, a direction by a court to pay such employees equal wages (from the date of filing the writ petition), would be justified.
44.8. In State of U.P. v. Putti Lal, based on decisions in several cases (wherein the principle of "equal pay for equal work" had been invoked), it was held, that a daily wager discharging similar duties as those engaged on regular basis would be entitled to draw his wages at the minimum of the pay scale (drawn by his counterpart, appointed on regular basis), but would not be entitled to any other allowances or increments.
44.9. In U.P. Land Development Corpn. case this Court noticed that the respondents were employed on contract basis on a consolidated salary. But, because they were actually appointed to perform the work of the post of Assistant Engineer, this Court directed the employer to pay the respondents wages in the minimum of the pay scales ascribed for the post of Assistant Engineer.
45. We shall now attempt an analysis of the judgments, wherein this Court declined to grant the benefit of "equal pay for equal work"
to temporary employees in a claim for pay parity with regular employees:
45.1. In Harbans Lal case, daily-rated employees were denied the claimed benefit under the principle of "equal pay for equal work", because they could not establish that the duties and responsibilities of the post(s) held by them were
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similar/equivalent to those of the reference posts under the State Government.
45.2. In Grih Kalyan Kendra Workers' Union case, ad hoc employees engaged in the Kendras were denied pay parity with regular employees working under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India, because of the finding returned in the report submitted by a former Chief Justice of India that duties and responsibilities discharged by employees holding the reference posts were not comparable with the posts held by members of the petitioner Union.
45.3. In State of Haryana v. Tilak Raj, this Court took a slightly different course, while determining a claim for pay parity raised by daily wagers (the respondents). It was concluded that daily wagers held no post, and as such, could not be equated with regular employees who held regular posts. But herein also, no material was placed on record to establish that the nature of duties performed by the daily wagers was comparable with those discharged by regular employees. Be that as it may, it was directed that the State should prescribe minimum wages for such workers and they should be paid accordingly.
45.5. It is, therefore, apparent that in all matters where this Court did not extend the benefit of "equal pay for equal work" to temporary employees, it was because the employees could not establish that they were rendering similar duties and responsibilities as were being discharged by regular employees holding corresponding posts.
58. In our considered view, it is fallacious to determine artificial parameters to deny fruits
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
59. We would also like to extract herein Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:
"7. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
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(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."
(emphasis supplied) India is a signatory to the above Covenant having ratified the same on 10-4-1979. There is no escape from the above obligation in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of "equal pay for equal work" constitutes a clear and unambiguous right and is vested in every employee--whether engaged on regular or temporary basis.
60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work" summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200961. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, in the present bunch of cases would be entitled to draw wages at the minimum of the pay scale (at the lowest grade, in the regular pay scale), extended to regular employees holding the same post.
5. In the meanwhile, the matter having come up before this Court on several occasions, on 03.03.2022, the respondent - State had filed a report stating that 5.1. in all 251 employees were presently working in MPM under the Act of 2012. The benefits under the Act of 2012 are being funded out of the loan issued by the Government to the Company, since the Company was being run on the loans given since the year 2012, if at all there is any grievance, it is the Company which has to redress the grievance and not the Government.
5.2. In terms of the notification which has been issued on 20.02.2018, the pay scale of the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Forest Field Workers is fixed at the minimum of the scale running in the Company and all statutory benefits were extended to them. The company has implemented the Act of 2012 and Rules of 2013 in the light of the memorandum of settlement entered into by the Company in the year 2009. The pay scale of all the Forest Field Workers has been fixed in line with the scale of the permanent employees of the Company as per the memorandum of settlement of the year 2010 and the pay scale from 01.03.2007 to 29.02.2012 is Rs.4400-80- 4400-100-600-125-6500-150-7100-175-7800- 200-8600-225-9500, which is being paid to the said daily wage workers. The abstract of the calculation sheet is also enclosed along with the said report.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20096. In reply there to, a reply memo was filed by the petitioner and in the reply memo it is contended that:
6.1. Since the company is closed and the forest is the property of the Government, the Forest Watchers, who continue to work are in fact working for the Government and are being paid wages based on the memorandum of settlement dated 07.07.2010, which was in force for a period of 5 years from 01.04.2007 to 31.03.2012 and thereafter has not been reworked, instead the minimum wages as per the Government Notification dated 20.02.2018 is sought to be paid, the daily wage workers have been classified as skilled and unskilled.
6.2. The settlement having expired on 31.03.2012, they are being paid basic salary of Rs.4400/- + DA of Rs.4,831/-, including of HRA and etc., the
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total payment being made is Rs.12,033/-. It is again stated that, in terms of the daily wage notification dated 20.12.2018, the minimum wage fixed for the Forest Workers is Rs.18,600/-, apart from HRA etc., which has not been paid.
6.3. Thus it was contended that, in respect of Forest Field Workers, the salary paid cannot be less than that being paid by the State Government under the notification dated 20.12.2018 and they ought to be paid on par with each other.
The settlement having been expired in the year 2012, no enhancement having been made there from, the interest of the workers has suffered from then.
7. The respondent - State filed its objection to the said reply on 18.07.2022 once again contending that;
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20097.1. The wage notification of 2009 is applicable to all employees and workmen. The Company stopped production in the year 2015 with financial burden accumulated from 2008 onwards, closure orders being passed by Labour Authorities on 07.10.2021, the benefit which had been extended to the Forest Field Workers under the Minimum Wages Act was not applicable to Forestry and Timbering Industries, that the enhancement of Rs.60/- per day above the notification under the Minimum Wages Act and a special allowance of Rs.100/- for month is extended. It is stated therein that average total loss to the company for each Forest Field Worker is Rs.1,534/- per month who are covered under the Act of 2012 and for the remaining it is Rs.14,700/- per month, which is inclusive of PF, ESI, gratuity, leave encashment etc., and these benefits have been extended by
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009the company from time to time to the said workers.
7.2. There being no revision of the memorandum of settlement of the year 2009, it is the said terms which would still continue to apply and payments are being made in terms thereof.
There being a revision sought to the wages, the same being sub judice before the Industrial Tribunal, until the decision is arrived at no additional benefit can be claimed.
7.3. The Government Notification dated 20.02.2018 is not applicable to the petitioner- Union but to the Forest Staff working under the regular Forest Department under the control of the State Government.
7.4. In the present case the Forest Field Workers are not under the control of the State Government, but under the control of MPM.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Thus it is for them to raise a grievance with MPM and not with the State Government. The pay scale etc., having been published in the notification dated 20.02.2018, the payment made on that basis is proper and correct.
7.5. It is further contended, the Department of Public Industries, Government of Karnataka vide its circular dated 02.06.2022 has prohibited any increase in pay revision allowance or other benefits in respect of the companies which are continuously not earning profit for last 3 years. The total financial loss of MPM being Rs.1244 crores, the Company being dependent on the funds drawn from the Government of Karnataka, no payment is required to be made and no enhancement can be made.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 20098. The State has filed a reply to the notes filed by the petitioner on 27.08.2022 again reiterating the above facts and stating that the settlement shall continue to be in force and binding between the parties and no question of any violation of the principle of equal pay for equal work.
9. On 10.10.2022, another memo has been filed by the petitioner furnishing the salary/wage particulars of the Forest Workers working in the Government, those were notified under the Act of 2012 and lastly, the wages prevailing in respect of Forest Workers working in the forest land of MPM. Relying on the same it is submitted that, as per the Government Order dated 19.04.2018, the revised pay scale is Rs.17000-400-18600-450-20400-500-22400-550- 24600-600-27000-650-28950. In terms of the official memo issued by the Principal Chief Conservator of Forest, it is stated that the gross salary is
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Rs.30,579/- and what is paid to the Forest Watchers is Rs.12,033/- per month.
10. Another memo was filed on 27.10.2022 by the petitioner stating that the salary/wages payable to the Forest Workers working in the Government Department as per Government Order dated 19.04.2018 with effect from 01.07.2017 is Rs.25,156/- and in terms of the circular dated 20.12.2018, it is Rs.24,501/- and what is being paid to the Forest Workers is Rs.11,658/-.
11. The State on 03.11.2022 filed a memo-cum-
comparative statement of wages being paid and by relying upon the same Sri. Arun Shyam, learned Additional Advocate General would submit that the wages paid by the Company is in accordance with the memorandum of settlement and non-Vidheyaka as for the period from 01.04.2022 to 31.03.2023, The total amount paid is Rs.11,024/-, but in terms of
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009the Minimum Wages Act, the amount payable is Rs.13,821/-, which is Rs.2,797/- more than that payable under the memorandum of settlement. It is this payment which the State is willing to make and making. Thus there is a benefit of Rs.2,797/-
accruing in favour of members of the petitioner.
12. On that basis no further payments are required to be made by the State since payments now being made are more than what is required to be made in the memorandum of settlement.
13. Shri Aruna Shyam Learned Additional Advocate General submits that:
13.1. Even temporary, ad hoc or daily-wage service for a number of years, let alone service for one or two years will not entitle such employee to claim regularization if he is not working against a sanctioned post. In this regard he relies upon the decision of the Hon'ble Apex Court in the
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case of Union of India and Ors. Vs. Ilmo Devi and Another.6 The relevant paragraphs 27, 28, 29 and 30 are extracted below for easy reference:
27. In the case of Daya Lal & Ors. (supra) in paragraph 12, it is observed and held as under:-
"12. We may at the outset refer to the following well- settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles
14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
62021 SCC Online SC 899
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
28. Thus, as per the law laid down by this Court in the aforesaid decisions part-time employees are not entitled to seek regularization as they are not working against any sanctioned post and there cannot be any permanent continuance of part-time temporary employees as held. Part-time temporary employees in a Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work.
29. Applying the law laid down by this court in the aforesaid decisions, the directions issued by the High Court in the impugned judgment and order, more particularly, directions in paragraphs 22 and 23 are unsustainable and beyond the power of the judicial review of the High Court in exercise of the power under Article 226 of the Constitution. Even otherwise, it is required to be noted that in the present case, the Union of India/Department subsequently came out with a regularization policy dated 30.06.2014, which is absolutely in consonance with the law laid down by this Court in the case of Umadevi (supra), which does not apply to the part-time workers who do not work on the sanctioned post. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. Therefore, in absence of any sanctioned post and considering the fact that the respondents were serving as a contingent paid part-time Safai Karamcharies, even otherwise, they were not entitled for the benefit of regularization
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009under the regularization policy dated 30.06.2014.
30. Though, we are of the opinion that even the direction contained in paragraph 23 for granting minimum basic pay of Group 'D' posts from a particular date to those, who have completed 20 years of part-time daily wage service also is unsustainable as the part-time wagers, who are working for four to five hours a day and cannot claim the parity with other Group 'D' posts. However, in view of the order passed by this Court dated 22.07.2016 while issuing notice in the present appeals, we are not quashing and setting aside the directions contained in paragraph 23 in the impugned judgment and order so far as the respondents' employees are concerned.
13.2. The High Courts in exercising power under Article 226 of the Constitution will not issue directions for regularization absorption or permanent continuance unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. In this regard, he relies upon the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009decision of the Hon'ble Apex Court in the case of State of Rajasthan Vs. Daya Lal.7 The relevant paragraph 12 is extracted below for easy reference:
12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into 7 (2011) 2 SCC 429
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service, as such service would be `litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work.
Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200913.3. The Tribunal while answering any reference has to confine its inquiry to the questions referred and has no jurisdiction to travel beyond the questions and the terms of reference sought for. In this regard, he relies upon the decision of the Hon'ble Apex Court in the case of Oshiar Prasad and Ors. Vs. Employers in relation to Management of Sudamdih Coal Washery of M/s. Bharat Coking Coal Ltd, Dhanbad, Jharkhand8. The relevant paragraphs 19, 20, 21, 22 and 25 are extracted below:
19. Mitter, J., speaking for the Bench, held as under: (Delhi Cloth and General Mills case, AIR p.472 paras 8-9) "8........... Under section 10(1)(d) of the Act, it is open to the appropriate Government when it is of opinion that any industrial dispute exists to make an order in writing referring ''the dispute or any matter appearing to be connected with, or relevant to the dispute,.....to a Tribunal for adjudication' 8 (2015) 4 SCC 71
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Under Section 10(4):
'10.(4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto.'
9. From the above it therefore appears that while it is open to the appropriate Government to refer the dispute or any matter appearing to be connected therewith for adjudication, the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary :
'happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated :' 'Something incidental to a dispute' must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct [to it]."
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20. The same issue came up for consideration before three Judge Bench in a case reported in Pottery Mazdoor Panchayat vs. Perfect Pottery Co. Ltd. and Another, (1979) 3 SCC 762.
Justice Y.V. Chandrachud - the learned Chief Justice speaking for the Court laid down the following proposition of law:
"10. Two questions were argued before the High Court: Firstly, whether the tribunals had jurisdiction to question the propriety or justification of the closure and secondly, whether they had jurisdiction to go into the question of retrenchment compensation. The High Court has held on the first question that the jurisdiction of the Tribunal in industrial disputes is limited to the points specifically referred for its adjudication and to matters incidental thereto and that the Tribunal cannot go beyond the terms of the reference made to it. On the second question the High Court has accepted the respondent's contention that the question of retrenchment compensation has to be decided under Section 33- C(2) of the Central Act.
11. Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the propriety and justification of the respondent's decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references, the Tribunals were not
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called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references [pic]being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management."
21. The above said principle of law has been consistently reiterated in M/s Firestone Tyre & Rubber Co. of India (P) Ltd. vs. The Workmen Empoloyed, represented by Firestone Tyre employees' Union AIR 1981 SC 1626, National Engineering Industries Ltd. vs. State of Rajasthan & Ors., (2000) 1 SCC 371, Mukand Ltd. vs. Mukand Staff & Officers' Association, (2004) 10 SCC 460 and State Bank of Bikaner & Jaipur vs. Om Prakash Sharma, (2006) 5 SCC 123.
22. It is thus clear that the appropriate Government is empowered to make a reference under Section 10 of the Act only when "Industrial dispute exists" or "is apprehended between the parties". Similarly, it is also clear that the Tribunal while answering the reference has to confine its inquiry to the question(s) referred and has no jurisdiction to travel beyond the question(s) or/and the terms of the reference while answering the reference. A fortiori, no inquiry can be made on those questions, which are not specifically referred to the Tribunal while answering the reference.
25.It is a settled principle of law that absorption and regularization in the service
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009can be claimed or/and granted only when the contract of employment subsists and is in force inter se employee and employer. Once it comes to an end either by efflux of time or as per the terms of the Contract of employment or by its termination by the employer, then in such event, the relationship of employee and employer comes to an end and no longer subsists except for the limited purpose to examine the legality and correctness of its termination.
13.4. The Industrial/Labour Court is a creature of the Industrial Disputes Act and acquires jurisdiction on the basis of the reference made to it. The Tribunal has to confine itself within the scope of the subject matter of reference and cannot travel beyond the same. In this regard he relies upon the decision of the Hon'ble Apex Court in the case of Tata Iron and Steel Company Ltd., Vs. State of Jharkhand and Ors.9 The relevant paragraphs 12 and 16 are extracted below:
12. We would hasten to add that, though the jurisdiction of the Tribunal is confined to the terms of reference, but at the same time it is 9 2014 (1) SCC 536
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empowered to go into the incidental issues. Had the reference been appropriately worded, as discussed later in this judgment, probably it was still open to the appellant to contend and prove that the Respondent workmen ceased to be their employees. However, the reference in the present form does not leave that scope for the appellant at all.
16. The Industrial Tribunal/ Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject matter of reference and cannot travel beyond the same. This is the view taken by this Court in number of cases including in the case of National Engineering Industries Limited v. State of Rajasthan & Ors. 2000 (1) SCC 371. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/ exact nature of "dispute" between the parties.
13.5. Candidates selected, but not by a regular Selection Committee, their appointment with the stipulation that the appointment was by way of stopgap arrangement for a specific period would not entitle them to claim regular appointment. In this regard he relied upon the decision of the Hon'ble Supreme Court in the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009case of Kendriya Vidyalaya Sangathan Vs. L. V. Subramanyeshwara and Another10.
The relevant paragraphs 12 to 16 and 18 are extracted below for easy reference:
12. It is true that they had continued in service for such a long time, but they have been thrust upon the appellant by reason of interim orders passed by the High Court. The Constitution Bench of this Court in Umadevi (supra) held:-
15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V. Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa v. T. Thimmiah this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp. 416-17, para 26) "Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are 10 (2007) 5 SCC 326
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fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.
13. It is therefore, not correct to contend that in the aforementioned backdrop of events, respondents satisfy the tests of equality, reservation or rule of law as adumberated in Umadevi (supra). Reliance placed on paragraph 53 of Umadevi (supra) is also mis- placed. What would be meant by the term irregularity must be understood in the context of the decision of this Court in Punjab Water Supply and Sewerage Board v Ranjodh Singh & Ors [2006 (13) SCALE 426]. The said paragraph has been explained by this Court in Punjab State Warehousing Corp., Chandigarh v Manmohan Singh & Anr. [2007 (3) SCALE 401].
14. Furthermore, the respondents even did not complete the period of 10 years without intervention by the Court, they would not have been in service for more than 10 years but for intervention of the High Court, they had been continued in service in terms of the interim order passed by the High Court.
15. So far as the submission of the learned counsel that in the case of some of the respondents, the High Court had applied the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009principle of equal pay for equal work. That aspect of the matter has also been considered by a Constitution Bench in Umadevi (supra):-
"44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions
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and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality."
16. Direction to regularize the services of the respondents in view of the authority by Constitution Bench in Umadevi (supra), therefore cannot be said to be of any significance so as to deny the relief to the appellant.
13.6. Daily rated employee cannot equate his status and rights with that of a Government servant.
In the absence of availability of a post such an employee is not entitled to claim permanency or absorption as a regular employee. In this regard, he relied upon the judgment in the case of Hindustan Aeronautics Ltd. Vs. Dan
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Bahadur Singh and Others.11 The relevant paragraphs 10 to 18 are extracted below for easy reference:
10. Para 2 of the settlement dated 26.7.1995 which was arrived at by the parties before the Assistant Labour Commissioner, Faizabad, which is relevant, is being reproduced below :-
"2. Demand No.9 which is related to distribution of working days, both parties agreed that Employer will distribute all the available and approved man days among all the labourers. 67 land losers and two skilled labourers will be given work every month from available working days. In this way remaining man days after utilization form 2106 man days will be equally distributed among the other 20 non land loser labourers. Balance part or fraction of the day will not be taken into account for this purpose."
11. Shri R.N. Trivedi, learned counsel for the appellant, has submitted that Hindustan Aeronautics Ltd. is a Government Company within the meaning of Section 617 of the Companies Act and the persons employed in the factory of the appellant Company at Korwa are not government servants but are mainly governed by the provisions of Industrial Disputes Act and other allied enactments. A government servant enjoys a status on account of constitutional provisions and rules framed under Article 309 of the Constitution, which is not the case with the members of the 11 (2007) 6 SCC 207
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009respondent union. Learned counsel has submitted that the respondent union having entered into settlements with the appellant on 6.3.1989 and 26.7.1995 can claim rights only on the basis of the said settlements and no claim for regularization or permanency in service or grant of pay scale at par with those who are in the regular establishment of the appellant is maintainable. Learned counsel for the respondents has, on the other hand, submitted that the members of the respondent union had worked for more than 240 days in a year for more than 6-7 years before the filing of the writ petition. An artificial break of 2-3 days was deliberately created twice or thrice in a month in their service just to deprive them of continuity in service. He has further submitted that the concerned workmen having worked for a very long period and work being available, they should be given permanent status and also the same pay scale which is being given to those who are in the regular establishment of the appellant.
12. We have considered the submissions made by learned counsel for the parties. The position of a government servant is entirely different from that of a workman who is working in an industrial establishment like the appellant Company. A government servant enjoys a status and a security of tenure on account of certain constitutional provisions. In Union Public Service Commission v. Girish Jayanti Lal Veghela & Ors. (2006) 2 SCC 482 it was held as under :-
"In the case of a regular government servant there is undoubtedly a relationship of master and servant but on account of constitutional provisions like Articles 16,
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309 and 311 his position is quite different from a private employee. Thus, employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by it."
13. An appointment in government may be on probation or in temporary capacity or permanent in nature. A permanent government servant has a right to hold the post and he cannot be dismissed or removed or reduced in rank unless the requirements of Article 311 of the Constitution or the Rules governing his service are complied with.
14. The appellant, Hindustan Aeronautics Ltd., is a government company within the meaning of Section 617 of the Companies Act. What will be the legal position of a Government Company and whether its employees can be treated to be government servants was examined in Heavy Engineering Mazdoor Union v. State of Bihar and Ors. (1969) 1 SCC 765 and it was held as under in para 4 of the reports:
".....It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so
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incorporated which carries on the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in the case of posts and telegraphs or the railways....."
15. In A.K. Bindal v. Union of India (2003) 5 SCC 163 the difference between an employee of a government and an employee of a Government Company was pointed out and it was held : "17. The legal position is that identity of the Government Company remains distinct from the government. The Government Company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire share holding is owned by the Central Government will not make the incorporated company as Central Government. It is also equally well settled that the employees of the Government Company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (See Pyare Lal Sharma v. Managing Director (1989) 3 SCC 448)."
16. An employee working in an industrial establishment enjoys a limited kind of protection. He may lose his employment in various contingencies which are provided under the Industrial Disputes Act such as lay off as provided in Section 25-C, retrenchment as provided in Section 25-F, transfer of industrial establishment or management of an undertaking as provided in Section 25-FF, closure of undertaking as provided in Section 25-FFF. He may be entitled to notice or wages
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009in lieu of notice and monetary compensation depending upon the length of service put in by him. But the type of tenure of service normally enjoyed by a permanent employee in Government Service, namely, to continue in service till the age of superannuation, may not be available to an employee or workman working in an industrial establishment on account of various provisions in the Industrial Disputes Act where his tenure may be cut short not on account of any disciplinary action taken against him, but on account of a unilateral act of the employer. Therefore, the claim for permanency in an industrial establishment has to be judged from a different angle and would have different meaning.
17. In B.N. Nagarajan & Ors. v. State of Karnataka & Ors. (1979) 4 SCC 507, it was held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. Further, when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules. This view has been approved by a Constitution Bench in Secretary, State of Karnataka v. Uma Devi (2006) 4 SCC 1 (para 16). It was emphasized here that only something that is irregular for want of compliance with one of the elements
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
18. The next question which requires consideration is whether completion of 240 days in a year confers any right on an employee or workman to claim regularization in service. In Madhyamik Shiksha Parishad v. Anil Kumar Mishra & Ors. (2005) 5 SCC 122 it was held that the completion of 240 days' work does not confer the right to regularization under the Industrial Disputes Act. It merely imposes certain obligations on the employer at the time of termination of the services. In M.P. Housing Board & Anr. v. Manoj Shrivastava (2006) 2 SCC 702 (paragraph 17) after referring to several earlier decisions it has been reiterated that it is well settled that only because a person had been working for more than 240 days, he does not derive any legal right to be regularized in service. This view has been reiterated in Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC
533. The same question has been examined in considerable detail with reference to an employee working in a Government Company in Indian Drugs and Pharmaceuticals Ltd. v. Workman, Indian Drugs & Pharmaceuticals Ltd. 2007(1) SCC 408 and paragraphs 34 and 35 of the reports are being reproduced below:-
"34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E.
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Ramakrishnan and Ors. v. State of Kerala and Ors. (1996) 10 SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore v. State of Maharashtra (1997) 3 SCC 209 and Union of India and Ors. v. Bishambar Dutt (1996) 11 SCC 341. The direction issued by the Services Tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.
35. In Dr. Surinder Singh Jamwal and Anr. v. State of Jammu & Kashmir and Ors. AIR 1996 SC 2775, it was held that ad hoc appointment does not give any right for regularization as regularization is governed by the statutory rules."
13.7. Nature of rights available to Temporary Employee are distinct from those available to permanent employees. Temporary employees have not right to post, nor to be continued as service, nor to get absorption, far less of being regularized and getting regular pay. In this regard he also relies upon the judgment of the Hon'ble Apex Court in the case of Indian Drugs & Pharmaceutical Ltd. Vs.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Workmen.12 The relevant paragraphs 13, 15, 17, 23, 24, 25 to 28, 31, 34, 37, 38, 41 and 42 are extracted below for easy reference:
13. It may be mentioned that a daily rated or casual worker is only a temporary employee, and it is well settled that a temporary employee has no right to the post vide State of Uttar Pradesh & Anr. vs. Kaushal Kishore Shukla 1991(1) SCC 691. The term 'temporary employee' is a general category which has under it several sub-categories e.g. casual employee, daily rated employee, ad hoc employee, etc.
15.Similarly, no direction can be given that a daily wage employee should be paid salary of a regular employee vide State of Haryana vs. Tilak Raj 2003 (6) SCC 123.
17. Admittedly, the employees in question in Court had not been appointed by following the regular procedure, and instead they had been appointed only due to the pressure and agitation of the union and on compassionate ground. There were not even vacancies on which they could be appointed. As held in A. Umarani vs. Registrar, Cooperative Societies & Ors. 2004(7) SCC 112, such employees cannot be regularized as regularization is not a mode of recruitment. In Umarani's case the Supreme Court observed that the compassionate appointment of a woman whose husband deserted her would be illegal in view of the absence of any scheme providing for such appointment of deserted women.
23. We have underlined the observations made above to emphasize that the Court 12 (2007) 1 SCC 408
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cannot direct continuation in service of a non- regular appointee. The High Court's direction is hence contrary to the said decision.
24. Thereafter in paragraph 33 it was observed:
"It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non- available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment".
The underlined observation in the above passage makes it clear that even if an ad hoc or casual appointment is made in some contingency the same should not be continued for long, as was done in the present case.
25. In paragraph 43, the Court observed:
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the
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Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme".
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200926. The underlined observations above clearly indicate that the casual, daily rated, or ad hoc employees, like the respondents in the present appeal, have no right to be continued in service, far less of being regularized and get regular pay.
27. In paragraph 45 this Court observed :
"While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain not at arm's length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings
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at least some succour to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not (sic) one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution".
The underlined part of the above passage clearly negates the claim of the respondents.
28. As regards the claim of the workmen concerned for being paid salary or regular employment, this claim has been definitely rejected in paragraph 48 of the aforesaid judgment which states as under:
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"It was then contended that the rights of the employees thus appointed, under Article 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant
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recruitment rules. The arguments based on Articles 14 of the Constitution are therefore overruled".
(emphasis supplied)
31. No doubt, there can be occasions when the State or its instrumentalities employ persons on temporary or daily wage basis in a contingency as additional hands without following the required procedure, but this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following the rules, such appointees do not have any right to claim permanent absorption in the establishment.
32. A perusal of the record of the present case shows that the respondents were appointed on purely casual and daily rate basis without following the relevant service rules. Thus they had no right to the post at all, vide State of U.P. vs. Kaushal Kishore 1991 (1) SCC 691.
34. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others vs. State of Kerala & others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India & others vs. Bishambar Dutt 1996 (11) SCC
341. The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.
37. Creation and abolition of posts and regularization are a purely executive function vide P.U. Joshi vs. Accountant General,
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Ahmedabad & others 2003(2) SCC 632. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits.
41. No doubt, in some decisions the Supreme Court has directed regularization of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance, if the Supreme Court directs regularization of service of an employee who had put in 3 years' service, this does not mean that all employees who had put in 3 years' service must be regularized. Hence, such a direction is not a precedent. In Municipal Committee, Amritsar vs. Hazara Singh, AIR 1975 SC 1087, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab vs. Baldev Singh, 1999 (6) SCC 172, this Court observed that everything in a decision is not a precedent. In Delhi Administration vs. Manoharlal, AIR 2002 SC 3088, the Supreme Court observed that a mere direction without laying down any principle of law is not a
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009precedent. In Divisional Controller, KSRTC vs. Mahadeva Shetty 2003 (7) SCC 197, this Court observed as follows:
"..The decision ordinarily is a decision on the case before the Court, while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation. The only thing binding as an authority upon a subsequent Judge is the principle, upon which the case was decided."
42. In Jammu & Kashmir Public Service Commission vs. Dr. Narinder Mohan AIR 1994 SC 1808, this Court held that the directions issued by the court from time to time for regularization of ad hoc appointments are not a ratio of this decision, rather the aforesaid directions were to be treated under Article 142 of the Constitution of India. This Court ultimately held that the High Court was not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of the respondents for regularization. In that decision this Court observed:
"11. This Court in Dr. A.K. Jain vs. Union of India 1988 (1) SCR 335, gave directions under Article 142 to regularize the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is
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confided only to this Court. The ratio in Dr. P.C.C Rawani vs. Union of India 1992 (1) SCC 331, is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When contempt petition was filed for non implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v Gian Prakash Singh, 1993(5) JT (SC) 681 this Court by a Bench of three Judges considered the effect of the order in A.K. Jain's case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v Hon'ble Chief Justice of Karnataka, AIR 1991 SC 295: (1991 Lab 1 C 235), this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under the Article 142, directed that their appointments as regular, on humanitarian grounds, since they have put in more than 10 years' service. It is to be noted that the recruitment was only for clerical grade
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(Class-III post) and it is not a ratio under Article 141. In State of Haryana v Piara Singh, (1992 AIR SC 2130), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules".
13.8. The identity of the Government company remains distinct from the Government. Is well settled that the employees of the government company are not civil servants and so are not entitled to the protection
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009afforded by Article 311 of the Constitution of India. In this regard he relies upon the judgment of the Hon'ble Apex court in the case of A.K. BINDAL v. UNION OF INDIA13. The relevant paragraphs 17 and 18 are extracted below for easy reference:
17. The legal position is that identity of the government company remains distinct from the Government. The government company is not identified with the Union but has been placed under a special system of control and conferred certain privileges by virtue of the provisions contained in Sections 619 and 620 of the Companies Act. Merely because the entire shareholding is owned by the Central Government will not make the incorporated company as Central Government. It is also equally well settled that the employees of the government company are not civil servants and so are not entitled to the protection afforded by Article 311 of the Constitution (Pyare Lal Sharma v. Managing Director). Since employees of government companies are not government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay scale should be met by the Government. Being employees of the companies it is the responsibility of the companies to pay them salary and if the 13 (2003)5 SCC 163
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company is sustaining losses continuously over a period and does not have the financial capacity to revise or enhance the pay scale, the petitioners cannot claim any legal right to ask for a direction to the Central Government to meet the additional expenditure which may be incurred on account of revision of pay scales. It appears that prior to issuance of the office memorandum dated 12.04.1993 the Government had been providing the necessary funds for the management of public sector enterprises which had been incurring losses. After the change in economic policy introduced in the early nineties, the Government took a decision that the public sector undertakings will have to generate their own resources to meet the additional expenditure incurred on account of increase in wages and that the Government will not provide any funds for the same. Such of the public sector enterprises (government companies) which had become sick and had been referred to BIFR, were obviously running on huge loses and did not have their own resources to meet the financial liability which would have been incurred by revision of pay scales. By the office memorandum dated 19.07.1995 the Government merely reiterated its earlier stand and issued a caution that till a decision was taken to revive the undertaking, no revision in pay scale should be allowed. We, therefore, do not find any infirmity, legal or constitutional in the two office memorandums which have been challenged in the writ petition.
18. We are unable to accept the contention of Shri.Venkataramani that on account of non-revision of pay scales of the petitioners in the year 1992, there has been
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009any violation of their fundamental rights guaranteed under Article 21 of the Constitution. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The scope and content of this article has been expanded by judicial decisions. Right to life enshrined in this article means something more than survival or animal existence. It would include the right to live with human dignity. Payment of a very small subsistence allowance to an employee under suspension which would be wholly insufficient to sustain his living, was held to be violative of Article 21 of the Constitution in State of Maharashra v. Chandrabhan Tale. Similarly, unfair conditions of labour in People's Union for Democratic Rights v. Union of India. It has been held to embrace within its field the right to livelihood by means which are not illegal, immoral or opposed to public policy in Olga Tellis v. Bombay Municipal Corpn. But to hold that mere non-revision of pay scale would also amount to a violation of the fundamental right guaranteed under Article 21 would be stretching it too far and cannot be countenanced. Even under the industrial law, the view is that the workmen should get a minimum wage or a fair wage but not that their wages must be revised and enhanced periodically. It is true that on account of inflation there has been a general price rise but by that fact alone it is not possible to draw an inference that the salary currently being paid to them is wholly inadequate to lead a life with human dignity. What should be the salary structure to lead a "life with human dignity" is a difficult exercise and cannot be measured in absolute terms. It will depend upon the nature
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009of duty and responsibility of the post, the requisite qualification and experience, working condition and a host o other factors. The salary structure of similarly placed persons working in other public sector undertaking may also be relevant. The petitioners have not placed nay material on record to show that the salary which is currently being paid to them is so low that they are not able to maintain their living having regard to the post which they are holding. The observations made in paras 276 and 277 in Delhi Transport Corpn. V. D.T.C. Mazdoor Congress strongly relied upon by learned counsel for the petitioners, should not be read out of its context. In the said case the Court was called upon to consider the constitutional validity of Regulation 9 of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952, which gave power to terminate the services of an employee after giving one month's notice or pay in lieu thereof. The termination of services of some of the employees on the ground that they were inefficient in their work by giving one month's notice was set aside by the High Court as in its opinion Regulation 9(b) gave absolute, unbridled and arbitrary powers to the management to terminate the services of any permanent or temporary employee and, therefore, the same was violative of Article 14 of the Constitution. It was in this context that the aforesaid observations were made by one Hon'ble Judge in his separate opinion. The issue involved was not of revision of pay scale but that of termination of services which has an altogether different impact on an employee."
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200913.9. Even if the principle of "equal pay for equal work" is applicable, a temporary employee shall be entitled to minimum of the pay scale which is attached to the post, but without any increment. Though a permanent employee has a right to receive pay in graded pay scale, he would be getting only minimum of the pay scale with no increments. It is only regularization in service which would entrail grant of increments etc. in the pay scale. In this regard he relied upon the judgment of the Hon'ble Apex Court in the case of RAM NARESH RAWAT V. ASHWINI RAY & OTHERS14. The relevant paragraphs 16, 17, 22, 25 and 26 are extracted below for easy reference:
16. Another significant reason for referring to the judgment of Jagjit Singh is that the Court culled out the principles of "equal pay for equal work" from the earlier judgments on the subject and collated them at one place.
Further, the Court also drew an important distinction between the grant of benefit of "equal pay for equal work" to temporary 14 (2017) 3 SCC 436
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009employees on the one hand and the status of regular employees on the other hand. Insofar as parameters of principles of "equal pay for equal work" deduced by the Court are concerned (para 42), our purpose of deduction stated in sub-para (vi) thereof is important, which is reproduced below: (SCC p. 207) "42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology v. Manoj K. Mohanty.
17. Insofar as distinction between pay parity and regularisation of service is concerned, referring to the Constitution Bench judgment in Umadevi (3), the Court made the following observations: (Jagjit Singh case, SCC p. 216, para 49) "49.1. We are of the considered view, that in para 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity, and regularisation in service. It was held, that on the issue of pay parity, the concept of "equality" would be applicable (as had indeed been applied by the Court, in various decisions), but the principle of "equality" could not be invoked for absorbing temporary employees in government service, or for making temporary employees regular/permanent. All the observations made in the above- extracted paragraphs, relate to the subject of regularisation/ permanence, and not, to the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009principle of "equal pay for equal work". As we have already noticed above, the Constitution Bench unambiguously held, that on the issue of pay parity, the High Court ought to have directed, that the daily-wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good, by making such a direction."
Thus, it follows that even if principle of "equal pay for equal work" is applicable, temporary employee shall be entitled to minimum of the pay scale which is attached to the post, but without any increments.
22. The issue came up again in M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey, wherein this Court held that only because a temporary employee has completed 240 days of work, he would not be entitled to be regularised in service. The Court also reiterated that the Standing Orders categorise the nature of employment and do not classify individual employees in different post according to the hierarchy created in the Department and thus proviso to Rule 2 does not apply to promotions or regularisation in higher grade. We would like to reproduce following paragraphs from the said judgment:
(SCC pp. 721-22, paras 17-18 & 22) "17. The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board v. Manoj Shrivastava wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) a daily-wager does not hold a post as he is
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not appointed in terms of the provisions of the Act and the Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularised in service; (4) if an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof.
18. The said decision applies on all fours to the facts of this case. In Mahendra L. Jain this Court has categorically held that the Standing Orders governing the terms and conditions of service must be read subject to the constitutional and statutory limitations for the purpose of appointment both as a permanent employee or as a temporary employee. An appointment to the post of a temporary employee can be made where the work is essentially of temporary nature. In a case where there existed a vacancy, the same was required to be filled up by resorting to the procedures known to law i.e. upon fulfilling the constitutional requirements as also the provisions contained in the 1976 Regulations. No finding of fact has been arrived at that before the respondent was appointed, the constitutional and statutory requirements were complied with.
22. Such appointments, in our opinion, having regard to the decisions in Mahendra L. and Manoj Shrivastava must be made in accordance with extant rules and regulations. It is also a well- settled legal position that only because a temporary employee has completed
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009240 days of work, he would not be entitled to be regularised in service. Otherwise also the legal position in this behalf is clear as would appear from the decision of this Court in Dhampur Sugar Mills Ltd. v. Bhola Singh apart from Mahendra L. Jain."
25. We may mention, at this stage that this aspect has come up for consideration, in another context, in State of M.P. v. Dilip Singh Patel. That was a case where similarly situated employees, who were classified as "permanent employees" under the Standing Orders Act, were given minimum of the pay scale attached to their posts. However, after the implementation of Sixth Pay Commission, benefits thereof were not extended to these employees. The High Court held that they would be entitled to have their pay fixed as per the revised scales in accordance with the recommendations of the Sixth Pay Commission which were accepted qua regular employees. This Court, though, upheld the orders of the High Court giving them the benefit of revision of pay scale pertained to the Sixth Pay Commission, but at the same time made it clear that they would be entitled to minimum salary and allowances as per the said revised scales and would not be entitled to any increments. It was further held that such increments would be admissible only after regularisation of their services which regularisation was to take place as per the seniority list with due procedure. Following passage from the said judgment, which captures the aforesaid directions, is quoted hereunder:
"We have heard the learned counsel for the parties and perused the records. It appears that the respondents earlier moved before the Administrative Tribunal, Gwalior by filing original applications such
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as OAs Nos. 648 of 1995, 293 of 1991, etc. In compliance with the orders passed in such original applications, the Chief Engineer, Yamuna Kachhar, Water Resources Department, Gwalior (M.P.) by orders issued in between April 2004 and June 2004 provided the minimum wages and allowances to the respondents without increment as per the Schedule of the pay scale from the date of the order of the Tribunal. It was further ordered that the regularisation of the daily-wage employees shall be made as per the seniority list with due procedure and the benefit of increment and other benefits can only be granted after the regularisation as per the Rules. It was ordered that the order of the Court for benefit of minimum wages and allowances shall be....
From the aforesaid facts, it is clear that the respondents are entitled for minimum wages and allowance as per the fixed Schedule of the pay scale but without any increment. In such case, if the pay scale is revised from time to time including the pay scale as revised pursuant to the Sixth Pay Commission, the respondents will be entitled to minimum wages and allowance as per the said revised scale without increment. Only after regularisation of their service, as per seniority and rules, they can claim the benefit of increment and other benefits."
26. From the aforesaid, it follows that though a "permanent employee" has right to receive pay in the graded pay scale, at the same time, he would be getting only minimum of the said pay scale with no increments. It is only the regularisation in service which would entail grant of increments, etc. in the pay scale.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200913.10. Determination of pay structure comes within the exclusive domain of the executive and the Tribunal cannot sit in appeal over the wisdom of the executive in determining the pay structure unless it is violative of Articles 14 and 16 of the Constitution of India.. Principle of "equal pay for equal work" is not always applicable even if duties and functions of employees are of similar nature. In this regard he relies upon the decision of the Hon'ble Apex Court in the case of UNION OF INDIA v. T.V.L.N. MALLIKARJUN RAO15. The relevant paragraghs 26, 27, 30 and 31 are extracted below for easy reference:
26. The classification of posts and determination of pay structure comes within the exclusive domain of the executive and the Tribunal cannot sit in appeal over the wisdom of the executive in prescribing certain pay structure and grade in a particular service.15
(2015) 3 SCC 653
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009There may be more grades than one in a particular service.
27. The Government on consideration of the report submitted by the Committee issued Office Memorandum dated 11-9-1989 prescribing therein different pay scales and different grades of Data Entry Operators besides the mode and manner of recruitment to and qualifications for each entry grade post as well as eligibility and experience for promotional grades. The Court or the Tribunal, in our opinion, would be exceeding its power of judicial review if it sits in appeal over the decision of the executive in the matter of prescribing the pay structure unless it is shown to be in violation of Articles 14 and 16 of the Constitution of India. Difference in pay scales based on educational qualifications, nature of job, responsibility, accountability, qualification, experience and manner of recruitment does not violate Article 14 of the Constitution of India.
30. In Mewa Ram Kanojia v. All India Institute of Medical Sciences this Court has inter alia held as follows: (SCC pp. 239 & 241, paras 5 & 7) "5. While considering the question of application of principle of 'Equal pay for equal work' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009basis it would be violative of Articles 14 and 16 of the Constitution.
Equality must be among the equals. Unequal cannot claim equality.
7. Even assuming that the petitioner performs similar duties and functions as those performed by an Audiologist, it is not sufficient to uphold his claim for equal pay. As already observed, in judging the equality of work for the purposes of equal pay, regard must be had not only to the duties and functions but also to the educational qualifications, qualitative difference and the measures of responsibility prescribed for the respective posts. Even if the duties and functions are of similar nature but if the educational qualifications prescribed for the two posts are different and there is difference in measure of responsibilities, the principle of 'equal pay for equal work' would not apply."
31. It was further reaffirmed in a three-Judge Bench judgment of this Court in Shyam Babu Verma v. Union of India wherein the Court held: (SCC p. 525, para 9) "9. ... The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009pay for equal work' to them. The principle of 'equal pay for equal work' has been examined in State of M.P. v. Pramod Bhartiya by this Court. Before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. Then only it can be held that there has been a discrimination, within the meaning of Article 14 of the Constitution."
13.11. Daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992.
Under Article 14 of the Constitution, it embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity. In this regard he relies upon the decision of the Hon'ble Apex Court in the case of Rajesh Pravichandra Vs. Gujarat Water Supply and Sewage Board16. The relevant 16 2021 SCC Online 1282
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009paragraphs 39, 40, 46 are extracted below for easy reference:
39. Even being the daily rated employees working with the Respondent - Board they cannot claim the parity with the employees of the State Government. The Respondent -
Board is an autonomous and statutory body created under the Act. It is ultimately for the Respondent - Board to take a conscious decision which can be termed as a policy decision on the pay scales to be adopted and/or certain benefits which would have financial implications. Everything depends upon its economic viability or the financial capacity. As per the settled proposition of law the economic viability or the financial capacity of the employer is an important factor while fixing the wage structure, otherwise the unit itself may not be able to function and may have to close down inevitably and have disastrous consequences for the employees themselves. As per the settled proposition of law the employees cannot legitimately claim that their pay-scales should necessarily be revised and/or they must be granted certain additional benefits/benefits.
40. As per the settled proposition of law equation of posts and salary is a complex matter which should be left to the expert body and undertakings and the court cannot interfere lightly. Granting of pay parity by the court may result in a cascading effect having adverse consequences. There are limitations or qualifications to the applicability of the doctrine of 'equal pay for equal work'.
46. So far as the submission on behalf of the original writ petitioners which was accepted by the learned Single Judge that as number of
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009other daily rated employees of the Board were granted the benefits flowing from the Resolutions of 1991 and 1992, not paying similar benefits to the remaining daily rated employees would be discriminatory and violative of Article 14 of the Constitution of India is concerned, it is required to be noted that as such right from the very beginning it was the case on behalf of the Respondent - Board that the benefits under the Resolutions of 1991 and 1992 were inadvertently and mistakenly given by some of the zonal offices, which subsequently came to be withdrawn and even the recovery is also sought. As observed and held hereinabove the original writ petitioners - daily rated employees of the Board are not entitled to the benefits flowing from the Government Resolutions of 1991 and 1992. Therefore, they cannot invoke Article 14 of the Constitution to claim benefit on the ground of parity if they otherwise are not entitled to such benefit. As per the settled proposition of law Article 14 of the Constitution embodies concept of positive equality alone and not negative equality. It cannot be relied upon to perpetuate illegality and irregularity.
13.12. Claiming parity with their counterparts in different departments on basis of having worked for a considerable time and being similarly situated such principle of equal pay and equal work cannot be applied blindly. In
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009this regard he relies upon the decision of the Hon'ble Apex Court in the case of STATE OF PUNJAB V. SURJIT SINGH17. The relevant paragraghs 26, 32 and 39 are extracted below for easy reference:
26. This brings us to Umadevi. It is accepted at the Bar that Umadevi talks about regularisation. In relation to the employees of the Commercial Taxes Department, however, same directions have been issued. Some observations have also been made in the matter of doctrine of "equal pay for equal work" which we may notice : (SCC pp. 37 & 42-43, paras 44, 53 & 55) "44. The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle.
The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be 17 (2009) 9 SCC 514
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009deemed permanent or issue directions to treat them as permanent. Doing so, would be
negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka.
Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality.
53. One aspect needs to be clarified. There may be cases where
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009constitutional scheme.
(emphasis in original)
55. In cases relating to service in the Commercial Taxes Department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily-wage employees with effect from the date of its judgment."
(emphasis supplied)
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200932. Further contention of Mr Gupta is that his clients had been appointed upon undertaking the due process of recruitment. It was not so, as while making appointments, the recruitment rules had not been followed. There had been no advertisement. How and in what manner the names were called from the employment exchange has not been disclosed. Ordinarily a large number of people would not be interested in applying for appointment against a Class III or Class IV post so long the appointment is contractual. Interviews were also taken by a committee which was not competent therefor as appointments on the post of clerk and above were required to be made by the Public Service Commission.
39. We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour are legal and not illegal. It has a positive concept.
13.13. Doctrine of equal pay for equal work could only be invoked when the employees are similarly circumstanced in every way. Mere similarity of designation or similarity of quantum of work was not determinative of equality in the matter of pay scales. In this regard he relies upon the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009decision of the Hon'ble Apex Court in the case of STATE OF MADHYA PRADESH v. SEEMA SHARMA18. The relevant paragraghs 29, 21 and 24 are extracted below for easy reference:
19. In Ramesh Chandra Bajpai (supra), this Court further held that it was well-settled that the doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. The Court had to consider all the relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved and various other factors.
21. It is also well settled that there can be no equality to a wrong and/or illegality. Just because a librarian may have been erroneously granted the UGC pay scale, that would not entitle others to claim the UGC pay scale, if not applicable under the Rules.
24. The fixation of scales of pay is a matter of policy, with which the Courts can only interfere in exceptional cases where there is discrimination between two sets of employees appointed by the same authority, in the same manner, where the eligibility criteria is the same and the duties are identical in every aspect.18
2022 SCC Online SC 809
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200913.14. The Court should refrain from interfering with the policy decision, which might have a cascading effect and have financial implications.
Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the court should not interfere lightly. Granting of certain benefits may result in the cascading effect, having adverse financial consequences. In this regard he relies upon the decision of the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA v. BHAGAWAN AND OTHERS19. The relevant para 28 is extracted below for easy reference:
28. As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.19
2022 (4) SCC 193
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200913.15. When the project is completed or closed due to non-availability of funds, the employees have to go along with the closed project. The High Court cannot give direction to regularise or continue them in other places as there is no vested right in temporary employment. In this regard he relies upon the decision of the Hon'ble Apex Court in the case of STATE OF HIMACHAL PRADESH v. ASHWINI KUMAR AND OTHERS20. The relevant para 4 is extracted below for easy reference:
4. It is seen that when the project is completed and closed due to non-availability of funds, consequently, the employees have to go along with the closed project.
The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to create posts by the State to a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them in spite 20 1996(1) SCC 773
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009of non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is set aside.
13.16. On the basis of the above Shri Arna Shyam Learned Additional Advocate General submits that the writ petition be dismissed.
14. In the light of the above submissions, made by Shri V S Naik and Shri Aruna Shyam and the further submission of Sri. V.S. Naik, that he does not press for regularization or absorption of the members of the petitioner, the points that would remain for determination by this Court are:
14.1. Whether the members of the petitioner Association would be entitled to the same wages as paid to Forest Watchers by the Forest Department on the principle of equal pay for equal work?
14.2. What order?
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200915. I answer the above points as under
16. Answer to Point No.1: Whether the members of the petitioner Association would be entitled to the same wages as paid to Forest Watchers by the Forest Department on the principle of equal pay for equal work?
16.1. In Western India Automobile Association2 it has been held that the Industrial Disputes Act was framed to prevent victimization of the labour as a result of a Industrial Dispute and that non-employment of any person can amount to an Industrial Dispute between the employer and the workmen.
16.2. It is on that basis that Sri. V. S. Naik, learned counsel appearing for the petitioner would submit that non-adherence to equal pay for equal work is a victimization of the workmen.
16.3. The Hon'ble Apex Court in Casteribe's case3 has categorically held that a misinterpretation
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009is sought to be given Umadevi's case1.. The Hon'ble Apex Court has clarified that, in Umadevi's1 case what was in issue is as regards employees having been engaged as contractual/temporary or casual workers not based on proper selection. The Hon'ble Apex Court has clarified that Umadevi's1 case would not apply in the event of a person being validly appointed to a sanctioned post.
16.4. In Sheo Narain Nagar's case4, again the decision in Umadevi's1 case was interpreted and again the Hon'ble Apex Court came to a conclusion that the decision in Umadevi's1 case is not properly understood and is wrongly applied by various State Governments. The Hon'ble Apex Court held that, what was held in Umadevi's1 case was that there should not be any backdoor entry and every post should be filled up by a regular employment. However,
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009unfortunately, this was not the case and a device of appointing persons on paltry payment is being assorted to on contract or adhoc basis, which the Hon'ble Apex Court has held as being impermissible even as per the decision of the Umadevi's1 case and in that case, the persons employed being conferred temporary status of employees, whether post available or not, was conferred on the employees which would mean that there were posts which were available.
16.5. The Hon'ble Apex Court in Jagjit Singh's case5 has extensively dealt with all aspects relating to regularization, equal pay for equal work etc., After having examined all judgments relevant and pertaining to the said issue, the Hon'ble Apex Court has in para 42 laid down the conditions under which equal pay for equal work was awarded to the temporary employees on parity with regular employees. In para 45,
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009the Hon'ble Apex Court dealt with the situations where the Court refused to grant the benefit of equal pay for equal work. At paras 58 to 61, the Hon'ble Apex Court held that non-payment of equal pay for equal work being demeaning, strikes at the very foundation of human dignity.
So long as the duties and responsibilities discharged by temporary employees were the same as those discharged by regular employees, there can be no doubt that the principle of equal pay for equal work would be applicable to the temporary employees concerned, vesting in them a right to claim wages on par with the minimum of pay scale of the Government employees holding the same post.
16.6. These decisions, more particularly, the decision in Jagjit Singh5 having dealt with the aspect of equal pay for equal work in an extensive
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009manner, the said decision having referred to most of the decisions being cited by the learned Addl. Advocate General, the said decision rendered in Jagjit Singh's case5 would be applicable to the present case also.
16.7. The decision in Ilmo Devi's case6 relied upon by the learned Addl. Advocate General deals with the situation where part time employees were held not eligible for regularization when they were not working against any sanctioned post.
16.8. Similar was the finding in Daya Lal's case7.
Subramanyeshwara's case10 is based on interpretation given to Umadevi's case1, relating to the aspect of equal pay for equal work could not be made, giving a go-bye to the procedure established like in the matter of public employment.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200916.9. As referred to supra in Jagjit Singh's case etc., the interpretation which has been given to Umadevi's1 case is different from that given in Subramanyeshwara's case10.
16.10. Thus, the said decisions would not be applicable to the present facts and circumstances.
1116.11. The decision in Dhan Bahadur Singh's case would also not be applicable since that was a case where a person is employed to a post which is not sanctioned. In the present case, it is no one's case that the post in which the members of the petitioner are employed has not been sanctioned inasmuch as the State Government had issued a notification on 20.02.2018 mentioning the names of 328 daily wage employees with all details.
16.12. It is on that basis it is contended that the appointment and working of the members of
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009the petitioner Union being recognized, it cannot be said that the appointment of the petitioners was to a post which was not sanctioned.
16.13. In the present case, the petitioners have been engaged as Forest Watchers and have been discharging their functions from the year 1980 in as many as 529 Forest Field Workers have been engaged in MPM. Though initially the grievance was as regards the absorption, regularization etc., Sri.V. S. Naik, learned counsel appearing for the petitioner has submitted that he would not be pressing for those reliefs and he would be pressing for the relief of equal pay for equal works on the same terms as that made to the Forest Watchers engaged by the Forest Department.
16.14. The members of the Union were engaged on a daily wage basis from the year 1980 onwards in
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009the MPM Forest Division. They were engaged in connection with forest related activities and considered as Forest Field Workers managing the forest of MPM, wherein bamboo trees etc., were grown whose pulp was used for the purpose of manufacturing paper. Thus, the forest in which the members of the first respondent are employed belonged to the State Government which has been leased to MPM for the purpose of its business activities.
16.15. The submission of Sri. V. S. Naik, learned counsel for the petitioner is that, the persons employed by the Forest department discharge the same role as that done by the members of the petitioner Association and vice versa. It is further to be noted that it is from and out of the said forest that the business of MPM is run or was being run. Inasmuch as if there is no forest there would have been no bamboo trees
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009and other forest produces which could be made use of by the paper mill for production of paper.
The need for the Forest Watchers is stated to have been recommended on the basis of the said report submitted by the Committee in terms of the agreement entered into between the MPM and the National World Development Corporation, United Kingdom, for development of 14742 hectors industrial plantation. The engagement and employment being made in terms of the requirement, it is clear that these Forest Watchers are required for the ongoing business of the MPM.
16.16. The contention of the learned Addl. Advocate General is that, the MPM being under loss for last several years, the State has been making payment of minimum wages to the members of the petitioner Association. The said members cannot now claim for emoluments and/or
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009salaries as paid to others since the payment now being made by MPM is after obtaining loan from the State Government. This in my considered opinion cannot be a reason for making payment violative of the principles of equal pay for equal work, the State and its instrumentalities being a model employer.
16.17. When the work which has been done by the members of the petitioner Association is more or less identical to that done by the Forest Watchers and Drivers employed by the Forest Department, there cannot be any discrimination amongst them. This in my considered opinion would also amount to an Unfair Labour Practice on the part of the State.
16.18. If the Company is under loss, then it is for the Company to decide whether to retain such number of employees or not. A State
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Government Company, which is also an instrumentality of the State cannot get persons to work for it and then contend that because it is undergoing loss it will not pay the minimum wages or the wages paid to the similarly situated Forest Watchers and Drivers by the Forest Department. Once the services of the Forest Watchers and Drivers are utilized and they perform works for the MPM, it is required of MPM to make payment of the due amounts.
16.19. As observed earlier, if the company does not need 529 employees, it would always reduce the said number employers by following due procedure available under law, but cannot deny equal pay for equal work.
16.20. Despite the MPM having suffered losses there are certain activities of MPM which are still being carried out and for this purpose, the
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009forest produce is being used. If that be so, then the forest of MPM is required to be safeguarded by Forest Watches. If the said forest is not taken care of and safeguarded, there would be an adverse effect on the forest and forest produce, thus, putting at risk the activities being carried out by the MPM.
16.21. The Government of Karnataka having continued the services of the employees and having issued a notification indicating the names of 328 Forest Watchers with the date of their appointment etc., it cannot be now contended that they are only daily wage workers who would not be entitled for equal pay for equal work and further that the work carried out by them is different from that carried out by the Forest Watchers employed by the Forest Department.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200916.22. Though broadly it is sought to be contended that the Forest Watchers employed with the Forest Department are also required to deal with wild animals, apart from this, there is no other difference which has been pointed out or placed on record between the works carried out by the Forest Watchers employed by the MPM and Forest Watchers employed by the Forest Department.
16.23. The fact that 328 workmen continue to work in the Forest of MPM indicate the requirement of such number of people. If at all so many people were not required, the Government and/or MPM could not terminate their services which have not been done.
16.24. When there is requirement for Forest Watchers and there being no dispute that the members of the petitioner are discharging their duties as
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009Forest Watchers, it is required that they be paid the same wages as that paid to the forest workers employed by the Forest Department.
16.25. Submission of Sri. V. S. Naik, learned counsel for the petitioner is that, the members of the petitioner Union are paid a gross salary of Rs.12,033/- and after deduction of ESI and PF, an amount of Rs.10,543/- is being paid to them, whereas a Forest Watchers employed by the Forest Department are being paid Rs.18,600/- as a basic salary + an amount of Rs.1,116/- as House Rent Allowance apart from Dearness Allowance thereon.
16.26. I am of the considered opinion that it is the said amount which is required to be paid to the Forest Watchers who are the members of the petitioner Union. The contention that MPM is facing losses and therefore no payment over
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009and above the minimum wages is required to be made, cannot be countenanced either in law or facts.
16.27. The State being a model employer, it is imperative that requisite wages are required to be paid. After making use of the works done by a person, the State cannot say that because there is a loss in a Government Company, the due salary would not be paid and only minimum wages would be paid.
16.28. The learned Addl. Advocate General has relied upon the circular dated 02.06.2022 issued by the Department of Public Enterprise, Government of Karnataka, to contend that there can be a revision of pay and other allowances if the Organization is not making profits for last three years. In the present case, despite the MPM having suffered a loss
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009and the business undertaking as such not functioning for large number of years, MPM and/or the Government has continued the services of the Forest Watchers and it is only from and out of the Forest produce that some business of MPM is being run, the other manufacturing businesses etc., having closed down.
16.29. In view of the above, looked at from any angle, I am of the considered opinion that the work being carried out by the Forest Watchers employed by the MPM more or less rendering the same services as done by the Forest Watchers employed by the Forest Department, the payments required to be made to them would be the same on the principle of equal pay for equal work.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 200916.30. As held by the Hon'ble Apex Court in Jagjit Singh's5 case, an employee engaged for the same work cannot be paid less than another who perform the same duties and responsibilities in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any act of paying lesser wages as compared to others who are similarly situated would constitute an act of exploitative, enslavement, emerging out of a domineering position and therefore by applying the principle of equal pay for equal work, the daily wagers who are termed as temporary employees would also be entitled to claim wages on par with the minimum of the pay scale and regularly engaged Government employees holding the same post.
16.31. Hence I answer point No.1 by holding that the members of the petitioner Union would be
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009entitled to draw wages (at the minimum of pay scale at the lower cadre in the regular pay scale) extended to the Forest Watchers employed by the Forest Department from the date of publication of Vidheyaka on 20.02.2018 till date and going forward, in respect of the persons named in the Vidheyaka unless they having been superannuated.
17. Answer to Point No.2 : What Order?
I pass the following:
ORDER i. W.P.Nos.14012/2008 and 13284/2008 are partly allowed in terms of the answer to point No.1.
a. The award passed by the Additional Industrial Tribunal, Bengaluru in AID
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No.16/2005 dated 25.07.2008 at Annexure-L is quashed.
b. The Respondent State is directed to make payment of wages (at the minimum of pay scale at the lower cadre in the regular pay scale) extended to the Forest Watchers employed by the Forest Department from the date of publication of Vidheyaka on 20.02.2018 till date and going forward, in respect of the persons named in the Vidheyaka unless they having been superannuated.
c. The above payment to be made within a period of three months from the date of receipt of copy of this order.
d. The petitioner is permitted to serve a copy on the respondents. In the event of the respondents having any doubt about the order, the QR code appended to the judgment could be scanned to verify the authenticity or veracity of the judgment as also the contents thereof.
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WP No. 14012 of 2008 C/W WP No. 13284 of 2008 WP No. 36195 of 2009e. It is made clear that there is no opinion expressed as regards the regularization and/or absorption of the members of the petitioner-Union.
ii. W.P.Nos.36195/2009 is dismissed.
Sd/-
JUDGE gab List No.: 19 Sl No.: 1