Madhya Pradesh High Court
Satyanarayana Sharma And Ors. vs National Mineral Development ... on 2 September, 1987
Equivalent citations: (1993)IIILLJ472MP
ORDER C.P. Sen, J.
1. These 54 petitioners, working as daily rated employees, have filed this petition for regularisation of their services. Respondent No. 1, National Mineral Development. Corporation Ltd. is a Government company registered under the Companies Act. It is wholly owned and controlled by the Government of India. The company has establishments at various places, including Bailadila Iron Ore Project, Diamond Mining Project, Panna and Donimalai Iron Ore Project, Karnataka. About 10 Trade Unions are functioning in these projects. All these Unions have formed themselves into a federation, called "All India NMDC Workers' Federation". Respondent No. 2, Diamond Mining Project, Panna is one of the establishments of Respondent No. 1 and is engaged in mining and processing of diamond by open cast system, with the development of earth moving machineries. Diamond bearing rock is processed in an ore dressing plant through the system of crushing, grinding and winning of diamond with gravity concentration. Prior to 1981, the project was operating two mines at Ramkheria and Majhgawan. Due to uneconomical operations, Ramkheria mine was closed on 16-1-1981 and 68 of its regular and 25 daily rated workers were transferred to Majhgawan mine. According to the petitioners, they are working as daily rated workers with Respondent No. 2 since 1970-71 and they have put in 9 to 15 years of service. The nature of work performed by them is similar to the work done by the regular workers. While the petitioners are paid daily wages of Rs. 11.60 to Rs. 13.50 per day, the regular workers are paid salary of Rs. 1,281/- to Rs. 1,355/- per month. Besides, the regular workers are entitled to certain other benefits, like dearness allowance, house rent allowance, L.T.C., medical allowance, conveyance allowance, festival allowance, benevolent provident fund, group insurance scheme, family pension and leave encashment facilities, which are denied to the daily rated workers. In a social welfare State, injustice is being done to the petitioners and they are being discriminated by treating them as daily rated workers, although they are discharging the same duties as are being done by the regular workers and there is violation of the principle of equal pay for equal work.
2. The petition is being opposed by the respondents, firstly, by saying that it being an industrial dispute, there is an alternative remedy available under the Industrial Disputes Act, 1947. Besides, the disputed questions of fact cannot be gone into in a writ petition. The All India NMDC Workers' Federation gave a strike notice on 24-4-1974 and there was a conciliation and a settlement was arrived at on 15-2-1976 in respect of daily rated workers also. This settlement was terminated by the Federation and afresh settlement was arrived at on 23-8-1980 in respect of daily rated workers also. There was subsequent settlement on 17-9-1983. As per the last settlement, the daily rated workmen, on the date of signing of the settlement, would be eligible for an increase of Rs. 2.50 per day over their daily rates of wages and the wages would be further increased by 45 paise per day on 1-9-1983, 1-9-1984 and 1-9-1985 and depending upon the needs and requirements of the Corporation, the existing daily rated workmen would be considered for regularisation for jobs other than those in which they are engaged on daily wages, provided they fulfill the job specifications and necessary tests. In pursuance of this settlement, higher daily wages have been paid to the daily rated workmen and the respondents are gradually absorbing the daily rated workmen as regular workmen depending upon the availability of the posts. The diamond project is running at a loss and there is surplus staff since 1970. The management made a voluntary retirement scheme, transfer to sister projects and appointments in Central Industrial Security Force, to reduce the surplus staff. In all 530 of them have taken voluntary retirement in 1979. As on 1-1-1979, the project had 406 regular and 688 daily rated workmen against the sanctioned strength of 548 workmen. The petitioners are being kept on the rolls of the company from 1970 onwards on humanitarian ground and they are not being given any regular work. The petitioners are not regular employees and they have no specific job to do. They are surplus to the establishment. The management has already incurred a loss of rupees four crores during the last 3 years. There is no exploitation by the management, which had taken extremely sympathetic view and tried to regularise as many daily rated workmen as possible, depending upon the number of vacancies available. The respondents are prepared to pay wages to the petitioners even if they stay at home and do no work. However, the respondents cannot bear the loss indefinitely and ultimately the project will have to be closed down.
3. By a rejoinder, the petitioners further contended that the respondents have recently recruited about 21 persons in their Bailadila iron ore project and that the respondents are unnecessarily spending large amount for the maintenance of guest houses, air travel by its officers and by keeping top heavy management. Loss has been sustained because of lavish expenditure by the management over its officers and indiscriminate purchase of machineries to benefit the officers. But in the year 1985, the target of mining of diamond was achieved and as a reward tiffin carriers were distributed to the workers. By way of reply, the respondents submitted that recruitment to each establishment is done on the basis of local requirement and not on All India basis. The management is dealing with the federation of the Trade Unions, which has not agreed for transfer of appointment of surplus staff from one establishment to another establishment. But the management cannot do away with the guest houses and other establishments and there is no unnecessary expenditure over air travel and other expenditure over the officers of the respondents. They are all necessary in the interest of administration. In the absence of any details being furnished about the 21 persons as employed, the respondents are not in a position to reply.
4. As has been mentioned earlier, there were settlements between the All India NMDC Workers' Federation and the management on 15.2.1976, 23.8.1980 and 17.9.1983. The settlement included payment of higher daily wages to the daily rated workmen and about regularisation of the daily rated workmen, depending upon the needs and requirements of the respondent, on the workmen fulfilling the job specifications and necessary tests.. The Supreme Court, in G.M. Security Paper Mill, Hoshangabad v. R.S. Sharma (1986) 1 LLJ 432 has held:
"Industrial Disputes Act (14 of 1947). Sectiopns 2(p), 18. - Settlement - Binding nature -Settlement in course of conciliation proceeding - It is binding on all parties to industrial dispute, i.e. in case of employer, on his heirs, successors or assigns and in case of workmen, all persons employed in the establishment - Settlement by agreement between employer and workmen otherwise than in course of conciliation proceeding -Not binding on workmen not parties to it''.
The Supreme Court further observed that Sub-section (3) of Section 18 of the Industrial Disputes Act provides that a settlement arrived at in the course of conciliation proceeding under the Act shall be binding on (i) all parties to the industrial dispute, (ii) where a party referred to in Clause (i) is an employer, his heirs and successors, and (iii) where the party is comprised of workmen, all persons, who are employed in the establishment and all persons who subsequently become employed in the establishment. The Supreme Court, in LIC of India v. D.J. Bahadur, 1980 Lab IC 1218 has held that the Industrial Disputes Act is a special statute, devoted wholly to investigation and settlement of industrial disputes. Therefore, with reference to industrial disputes between employers and workmen, the Industrial Disputes Act is a special statute and the Life Insurance Corporation Act does not speak at all with specific reference to workmen. The workmen qua workmen and industrial disputes between workmen and the employer as such are beyond the orbit of and have no specific or special place in the scheme of the Life Insurance Corporation Act. It is not the petitioners' case that the settlements arrived at with the respondents have not been implemented. From the return, it is evident that the management has been making sincere efforts to regularise the daily rated workmen in the regular cadre of workmen, depending upon the availability of posts. 68 daily rated workmen were regularised in 1979, 51 in 1981, 81 in 1982 and 3 in 1983. Besides, 10 daily rated workmen were absorbed as LDC and LVD and electricians. There was also voluntary retirement scheme, under which 33 daily rated workmen opted for voluntary retirement in 1979 and 36 in 1980. Under the circumstances, the settlement arrived at is binding on the petitioners and they cannot force the respondents to regularise them in the absence of availability of posts and their suitability for those posts. The decision of the Supreme Court in Surya Narain Yadav v. B.S.E. Board, AIR 1985 S.C. 941 : 1980 Lab DL 1218 is clea-rly distinguishable. There the trainee engineers were given an assurance that on completion of their training, they will be absorbed in regular employment by the Board and those trainee engineers have stood by the Board to keep up the generation and distribution of electricity at the time of strike. So the Supreme Court, held that the Board could not refuse to absorb them as permanent employees. In that case, assurance was given to absorb them in regular employment. That is not the case here. A Single Bench of this Court in Bijlee Kar-machari Sangh, M.P. v. M.P.E.B. 1986 M.P.L.J. 285, held :
"Employees on the nominal muster roll and work charged employees of the M.P. Electricity Board who had put in the requisite period of continuous service of six months under the Standard Standing orders are entitled to be treated as permanent employees and to all benefits of their service as permanent employees without any discrimination"
There, the Standard Standing Order provided that all workmen who have put in continuous service of 6 months are entitled to be treated as permanent employees. There is no such rule, governing the service conditions of these workmen. A Division Bench of this Court in Bherusingh v. State 1986 M.P.L.J. 617, held that if an employee is allowed to continue for years together, then by nomenclature of the order (i.e. 'adhoc') also cannot be construed to be an 'adhoc' appointment, but shall be treated as 'regular' appointment. There were regular vacancies available but the vacancies were filled up by ad hoc appointment. So it was held that merely describing as an ad hoc appointment cannot be treated otherwise than regular. Similary, the Supreme Court in Rattanlal v. State of Harayana, 1985 (1) LLJ 23 directed the State Government to make arrangement as per rules and fill up the vacancies in which the teachers were working on ad hoc basis. In that case also, there were permanent vacancies available, and, therefore, the policy of the State Government making ad hoc appointments was deprecated and the State Government was directed to regularise them.
5. Regarding the principle - equal pay for equal work - the Supreme Court in Randhir Singh v. Union of India 1982 (1) LLJ 344, held that it is true that the principle-equal pay for equal work-is not expressly declared by our Constitution to be a fundamental right, but it certainly is a constitutional goal and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. In that case, the Drivers of the Delhi Police Establishment were not given the same scale of pay as drivers of other departments. Reiterating this principle, the Supreme Court, in P.K. Ramchandra Iyer v. Union of India 1984 (I) LLJ 314 has held that the principle 'equal pay for equal work' is deducible from Articles 14, 16 and 39(d) and can be properly applied in cases of unequal pay for equal work. In that case, the Professors already working in the Indian Council of Agricultural Research were not given the revised pay scale recommended by the U.G.C. although the revised pay scales were given to the newly recruited Professors. Therefore, the Supreme Court held that the case was glaring example of discriminatory treatment accorded to old experienced and highly qualified hands with an evil eye and unequal hand and the guarantee of equality in all its pervasive character must enable the Supreme Court to remove discrimination and to restore fair play in action. Again, in P. Savita v. Union of India, 1985 (2) LLJ 181 the Supreme Court held that where all relevant considerations are the same, persons holding identical posts and discharging similar duties should not be treated differently. In that case, the Third Pay Commission classified the Senior Draughtsmen in the Ministry of Defence Production in two groups and recommended higher pay scale for one group not on any merit-cum-seniority basis, but only on seniority-cum-fitness basis, which was held to be discriminatory. (In the present case, it may be true that the daily rated workmen were actually doing the same type of work as regular workmen, but they cannot be appointed as regular workmen, since there were no posts available for them and additional hands were required to cope up with the work at a given point of time. Regular employees are employed on specific job and they are paid wages for that job. The petitioners are not regular employees; they do not have any specific job to do; they are surplus to the establishment and merely kept on the roll on humanitarian ground. The respondents are also running in heavy losses during the last three years and it is not possible to absorb the petitioners immediately as regular workmen. In fact, the petitioners are being paid their daily wages in spite of there being no work available for them.)
6. Therefore, the petition fails and is dismissed. There shall be no order as to costs. The outstanding security amount be refunded to the petitioners.