Delhi High Court
Union Of India (Uoi) vs P.O. Central Govt. Labour Court And Anr. on 18 December, 2007
Equivalent citations: 2008 LAB. I. C. 495, 2008 (2) AJHAR (NOC) 382 (DEL.) = 2008 LAB. I. C. 495, (2008) 4 SERVLR 609, (2008) 2 SCT 643
Author: Hima Kohli
Bench: Hima Kohli
JUDGMENT Hima Kohli, J.
1. By this common judgment and order, this Court proposes to dispose of both the writ petitions, being WP(C) No. 2423/1989 and WP(C) No. 2425/1989.
2. The present writ petitions are directed against the order dated 9.7.1987 and 16.7.1987 respectively passed by the Central Government Labour Court allowing the applications filed by the respondent No. 2/workman in WP(C) No. 2423/1989 and the respondents No. 2 to 5 in WP(C) No. 2425/1989 under Section 33-C(2) of the Industrial Disputes Act, 1947 (in short 'the Act'), partly in the former case and totally in the latter case and directing the petitioner, Northern Railways, to pay a sum of Rs. 1,640.50 (rounded off to Rs. 1,640/-) to the respondent No. 2/workman in WP(C) No. 2423/1989 and Rs. 3,942.85 (rounded off to Rs. 3,943/-), Rs. 6083/-, Rs. 4363.55 (rounded off to Rs. 4,364/-), Rs. 5,223/- and Rs. 4,336/- each to respondents No. 2, 3,4,5 and 6 respectively in WP(C) No. 2425/1989, within two months. For the sake of convenience, facts of WP(C) No. 2423/1989 are taken note of.
3. As per the averments made in the application filed by the respondent/workman before the Central Government Labour Court, he was appointed as a casual labour, Gangman with the Northern Railways on 1.1.1970 on daily rate of wages of Rs. 4.50 per day. The contention of the respondent/workman was that in accordance with the terms of employment as contained in Chapter XXV of the Indian Railway Establishment Manual, on completion of six months of continuous service, the respondent/workman acquired a temporary status and became entitled for payment of wages in the regular pay scale. On the said basis, the respondent/workman claimed a sum of Rs. 18,135/- as difference between the wages received and the amount due and payable to him for the period w.e.f. 1.7.1970 to 28.2.1978. The aforesaid amount was claimed on the ground that after 28.2.1978, the petitioner/management had not provided any work to the respondent/workman without following the due process of law and thus, he continued to remain in service and was entitled to payment of wages for each month, and an amount of Rs. 22,500/- was claimed by the respondent/workman against the petitioner/management on account of wages payable from 28.2.1978 to 28.2.1983, totalling to Rs. 40,635/-.
4. The aforesaid claim was resisted by the petitioner/management and it was stated in its reply that the respondent/workman was appointed as a casual labour on 15.1.1974 @ Rs. 4.50 per day and not from 1.1.1970 as claimed by the respondent/workman. It was further stated that as per the records, the respondent/workman did not complete six months of continuous service during the period from 15.1.1974 to 11.3.1978 and hence he was not entitled to be paid any amount. Lastly, it was stated that the respondent/workman left the service w.e.f. 12.3.1978 of his own accord and did not turn up for any further appointment, and hence the question of making payment of any wages to him after 28.2.1978 did not arise.
5. The application filed by the respondent/workman was sought to be amended by him in the year 1986. The respondent/workman claimed entitlement to payment of equal wages as paid to the permanent employees of the petitioner/management on the ground that he performed the same duties and worked as a permanent employee, but was paid wages at a lower rate. He therefore sought to recover the difference of wages paid at casual daily rate of wages and those payable at regular pay scale, for the period w.e.f. 1.1.1970 to 28.2.1978. The aforesaid amended statement of claim was disputed by the petitioner/management and it was submitted that as per the Railway in force, the respondent/workman being a casual workman, was not entitled to payment of wages under the regular pay scale from the date of his engagement as claimed by him.
6. After hearing the parties, the Central Government Labour Court passed the impugned order. While rejecting the claim of the respondent/workman for the period w.e.f. 28.2.1978 to 28.2.1983 on the ground that there was no existing right in favor of the respondent/workman and his claim could not be investigated and determined in the proceedings initiated under Section 33-C(2) of the Act, the claim of the respondent/workman for claiming parity in wages paid to the regular employees of the petitioner/management was allowed by relying on the judgments rendered by the Supreme Court reported as 1986 (I) LLJ 134 entitled Dhirendra Chamoli and Anr. v. State of U.P. and 1986 (I) LLJ 403 entitled Surinder Singh and Anr. v. Engineer-in-Chief PWD and Ors. The Central Government Labour Court took note of the assumed chart Ex.-M-I filed by the petitioner/management on its directions where without admitting the claim of the respondent/workman, the computation of the amount payable as per his claim was worked out which totalled to Rs. 1,640.50. The said amount was directed to be paid to the respondent/workman within two months from the date of the order.
7. Counsel for the petitioner submitted that the aforesaid order is erroneous for the reason that the court below failed to take into consideration the circular dated 12.7.1973 issued by the petitioner/management, containing the directions of the Railway Board in respect of employment of casual labour on Railways, whereunder the recommendations of the Railway Board for incorporating certain rules in the Indian Railway Establishment Manual were exhibited. One of the paras therein being para No. 4.26 (4) (i) stipulates that the period of maximum service for earning temporary status should be fixed at four months instead of six. It is stated on behalf of the petitioner/management that the scheme/rules regarding casual labour was approved by the Supreme Court of India in a judgment rendered in the case of Inder Pal Yadav v. Union of India and Ors. dated 18th April, 1985. Relying on the aforesaid rule, it was submitted on behalf of the petitioner/management that the court below fell into error in determining the pay scale of the respondent/workman from the date of his engagement till attaining of temporary status as the same was beyond its jurisdiction. It was further stated that the court below failed to appreciate that there was a substantial difference between a casual labour/daily wager and a regular employee/workman and no parity could have been sought by the respondent/workman on the doctrine of equal pay for equal work, nor should the same have been granted in his favor, particularly in proceedings under Section 33-C(2) of the Act.
8. There is force in the aforesaid pleas taken by the counsel for the petitioner, particularly in respect of the plea taken by him that proceedings under Section 33-C(2) of the Act was not the appropriate forum for computing the amounts payable to the respondent/workman as it is a settled law that computation under the aforesaid provision ought to be done only where there are existing rights or the mandate of a statute or as per service benefits, settlements, or on the basis of admissions on the part of the petitioner/management. Reference in this regard is drawn to the following judgments rendered by the Supreme Court:
(i) MCD v. Ganesh Razak and Ors. ; and
(ii) State of UP v. Brijpal Singh .
9. Reliance may also be placed on the judgment of this Court in the case of Jeet Lal Sharma v. Presiding Officer, Labour Court-IV and Anr. reported as 2000-I-LLJ 1472, relevant extract of which is reproduced as under:
11. Thus the crux of the matter is that the workman can file an application under Section 33-C(2) only when he is entitled to receive money, claimed by him. His entitlement to receive money is referrable to pre-existing right which would be established if it has been earlier adjudicated upon or provided for i.e. recognised by the employer. This recognition can be either in the form of settlement or as per the service conditions.
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15. The point which is emphasised is that entitlement to receive money i.e. pre-existing right can be based on (1) adjudication (2) settlement (3) service conditions. If the right to get a particular benefit is there, the application under Section 33-C(2) would be maintained and jurisdiction of Labour Court will not be barred merely because employer has denied the same.
10. Admittedly, in the present case, there was no existing right in favor of the respondent/workman by way of any settlement or as part of his service conditions. Nor was such adjudication of rights was sought by the respondent/workman under the Act before the Industrial Adjudicator prior to filing the application under Section 33-C(2) of the Act. Parity of pay scale sought by the respondent/workman with regularly employed workmen was certainly an issue which required adjudication for being crystallized one way or the other.
11. It is no longer res integra that the doctrine of equal pay for equal work is not applicable across the board and is not a fundamental right vested in any employee, particularly, in respect of casually engaged employees in whose case the entire factual backdrop including the nature of work being done, experience, qualification, mode of appointment, etc., prescribed in respect of a particular post has to be examined vis-a-vis that of the regular employees. All such matters, therefore, require proper adjudication before a competent authority under the Act. Reliance is placed on the recent judgment of the Supreme Court in the case of S.C. Chandra and Ors. v. State of Jharkhand and Ors. reported as 2007 AIR SCW 5480, wherein after considering the earlier judgments on the issue, it was held as under:
26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).
27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and Ors. .
28. Similarly, in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association , the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and Ors. v. Pradip Kumar Dey .
12. However, the forum provided for under the provision of Section 33-C(2) of the Act was certainly not the one which the respondent/workman ought to have approached. Even if the said forum was approached, the application of the respondent/workman ought to have been rejected by the court below on the same ground as taken to reject his claim for the period from 28.2.1978 to 28.2.1983, namely, absence of existing right in favor of the respondent/workman. This was, however, not done, thus resulting in filing of the present writ petitions.
13. The plea of the petitioner/management is, therefore, upheld and the impugned orders dated 9.7.1987 & 16.7.1987 are set aside.
14. Now coming to the relief, this Court cannot overlook the manner in which the petitioner/management has prosecuted the present writ petitions. Rule was issued in the writ petitions on 22.8.1989. While issuing notice to the respondents on the interim applications, the petitioner/management was directed to deposit the awarded amounts in the Labour Court within four weeks and it was further directed that the said amounts shall be paid to the respondents/workmen upon furnishing security to the satisfaction of the concerned Labour Court. On the next date of hearing, i.e. 3.10.1989, the said interim applications were disposed of in view of the order passed on 22.8.1989, with the observation that no further orders were called for thereon.
15. Thereafter, vide order dated 14th February, 1992, it was directed that service of rule nisi notice be issued to the respondents/workmen. After that, several opportunities were taken by the petitioner to serve the respondents/workmen dusty as it was stated that the respondents/workmen were working under the Divisional Railway Manager, Bikaner Division of the Northern Railway and the fresh place of their posting would be in the knowledge of the petitioner. In spite of the fact that dusty notices were allowed to be taken out, the petitioner failed to file the process fee and consequently, the respondents/workmen have remained unserved. In fact, perusal of the order sheet reflects that none appeared for the petitioner/management on certain dates due to which default notices had to be issued to the counsel for the petitioner as well as the petitioner. Even after entering appearance, the petitioner did not file process fee to serve the respondents. It was recorded in the order dated 3rd February, 1997 that the petitioner/management was unaware of the whereabouts of the respondents/workmen and that an application for substituted service would be filed by it within two weeks. A decade has passed thereafter, but no steps were taken by the petitioner/management in this regard. Finally, the Registry listed the case before the Court on 18th October, 2006 and it took a whole year for the petitioner/management to engage a counsel and reconstruct the case files to argue the case on merits. However, till date, the respondents/workmen remain unserved on account of failure on the part of the petitioner/management to take any steps in this regard, and as a result, the writ petitions have remained lingering on the said account for the past 15 years.
16. Counsel for the petitioner/management was also unable to inform the Court as to whether the order dated 22nd August, 1989 was complied with by the petitioner/management and if so, whether the awarded amount was released in favor of the respondents/workmen, and whether the respondents/workmen in turn, furnished security to the satisfaction of the concerned Labour Court.
17. The applications preferred by the respondents/workmen under Section 33-C(2) of the Act were of the year 1983-84, and the same were decided in the year 1987 leading to the filing of the present writ petitions by the petitioner/management in the year 1989. From the date of institution of the writ petitions till date, no steps whatsoever, much less effective steps were taken by the petitioner/management to effect service on the respondents/workmen. In the aforesaid circumstances, this Court is of the opinion that the petitioner/management is disentitled from claiming restitution of the amount paid to the respondents/workmen in terms of the orders dated 9.7.1987 and 16.7.1987, if at all paid to them, in terms of the order dated 22.8.1989 passed in both the writ petitions, as equity is not in its favor in view of the complete lack of diligence shown by the petitioner/management in prosecuting the present writ petition.
18. Thus, while quashing the impugned orders dated 9.7.1987 & 16.7.1987, passed by the Central Government Labour Court in WP(C) No. 2423/1989 and WP(C) No. 2425/1989 respectively, this Court declines to restitute the petitioner/management in the facts and circumstances of the present case as set out above. The writ petitions are disposed of on the above terms.