Punjab-Haryana High Court
Union Of India vs Ram Avtar on 25 March, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
Regular Second Appeal No. 2608 of 1989 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 2608 of 1989(O&M)
Date of decision: 25.03.2010
Union of India ...Appellant
Versus
Ram Avtar ...Respondent
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Jagjit Singh, Advocate for Mr. C.M. Sharma, Advocate for the Union of India/applleant.
Mr. N.D. Kalra, Advocate for the respondent.
RANJIT SINGH J.
This order will dispose of 4 appeals i.e. Regular Second Appeals No. 2608, 2609, 2610 and 2611 of 1989 filed by Union of India to impugn the judgment passed by the First Appellate Court allowing the minimum of the pay scale to the respondents-plaintiffs in respective cases on the ground that they are performing the same or identical duties with those who are employed on regular basis.
The respondents-plaintiffs, who are working as casual labourers with General Reserve Engineering Force (GREF), had filed a suit for seeking declaration that they are entitled to pay as admissible to other counterpart doing the same job in the Department on the principle of 'Equal Pay for Equal Work'. The respondents- plaintiffs were working as causal labourers with GREF since 1978-
79. The GREF being an integral part of the armed forces, the provisions of the Army Act has been applied to this force. The force Regular Second Appeal No. 2608 of 1989 2 has thus employed pioneers in its organization and they are doing the job of construction and maintenance of roads and buildings and loading/unloading of stores. The same duties or jobs are being assigned to the respondents-plaintiffs but they were being paid much less as compared to the regular employees i.e. the pioneers.
The respondents-plaintiffs thus filed the suit by praying for grant of 'Equal Pay for Equal Work' and pleaded that they would be entitled to receive same salary as was being paid to the pioneer employed to the force.
All the suits filed by the respondents-plaintiffs were seriously contested. It was pointed out that the respondents-plaintiffs were employed as causal labourers on six months basis and were given one day break on completion of 179 days of service. It was accordingly pleaded that they were not entitled to get the same salary as was given to the members of the GREF who were integral part of the force. It is also stated that the causal labourers are employed on daily/monthly basis and their salaries are regularized by the local civil authority. It is also stated that the pioneers are the trained personals and in addition to their duties, they are also required to perform security duties. On the basis of pleadings, the following issues were framed by the trial Court:-
1. Whether the plaintiff is entitled to the declaration as prayed for and also arrears of pay?OPD
2. Whether the notice under Section 80 CPC is not legal?
OPD
3. Whether the plaintiff has got no locus standi to file this suit? OPD Regular Second Appeal No. 2608 of 1989 3
4. Whether the suit is under stamped?OPD
5. Relief Finding issues No. 1 and 2 against the appellant, the suits were dismissed. The respondents-plaintiffs filed an appeal against the same, which was allowed and thus these orders were impugned through the present Regular Second Appeal.
The First Appellate Court has well analyzed the legal as well as the factual position. The counsel for the respondents has drawn my attention to the finding given by the First Appellate Court as recorded in the impugned judgment to show that the court had found that the respondents-plaintiffs were working as casual labourers and that it was not disputed that they were performing the same duties as were being performed by the pioneers but were being paid much less than the pioneer. Finding that this system of giving breaks was deprecated by the Hon'ble Supreme Court, the Court came to view that the respondents-plaintiffs would be entitled to minimum of the scale though not all other benefits that may be available to the pioneers, who were the regular employees.
The observation made by the Hon'ble Supreme Court in the case of Daily Rated Casual Labour employed under P& T Department versus Union of India and others AIR 1987 Supreme Court 2342 was referred to in extenso to say that this act on the part of the appellant-UOI would amount to exploiting the poverty suffered by the person like respondents-plaintiffs. It is also observed that the Government should act as model employer and classification of the employees into regular recruited employees and causal employees doing same work and being paid less than the minimum pay scales Regular Second Appeal No. 2608 of 1989 4 of the employees, would not be tenable. It would be appropriate to repeat the anguish conveyed by the Hon'ble Supreme Court in this judgment as would clearly emerge from the following observations made by the Court:-
"The State cannot deny at least the minimum pay in the pay scales of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. We are of the view that such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice. It is poverty that has driven him to that State. The Government should be a model employer. We are of the view that on the facts and in the circumstances of this case the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. The further classification of casual labourers into three categories namely (i) those who have not completed 720 days of service; (ii) those who have completed 720 days of service and not completed 1200 days of service and (iii) Regular Second Appeal No. 2608 of 1989 5 those who have completed more than 1200 days of service for purpose of payment of different rates of wages is equally untenable. There is clearly no justification for doing so. Such a classification is violative of Articles 14 and 16 of the Constitution. It is also opposed to the spirit of Article 7 of the International Covenant on Economic, Social and Cultural Rights, 1966 which exhorts all States parties to ensure fair wages and equal wages for equal work. It may be true that the petitioners have not been regularly recruited but many of them have been working continuously for more than a year in the Department and some of them have been engaged as casual labourers for nearly ten years. They are rendering the same kind of service which is being rendered by the regular employees doing the same type of work. Clause (2) of Article 38 of the Constitution of India which contains one of the Directive Principles of State Policy provides that "the State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vacations."
Even though the above Directive Principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have Regular Second Appeal No. 2608 of 1989 6 been subjected to hostile discrimination."
Question here also is not whether a regular or daily wager can be equated with a regular employee. Issue is, if a person can ask for to be paid minimum of the scale on the basis of equal pay for equal work. In fact, a larger issue would arise in this case and it would relate to the right to life and liberty of an individual. Would not it amount to taking away the right of the respondent-plaintiff to life when he is not allowed wages of his labour which are essential to subsist. Choice for majority of people like the plaintiff is either to starve or take employment on whatever terms it is offered. Can the State avoid the mandate of the Constitution of equality of life and liberty clauses? Right to life includes right to livelihood. In Olga Tellis and others Vs. Bombay Municipal Corporation and others, AIR 1986 Supreme Court 180, the Supreme Court has held:-
"The sweep of the right of life conferred by Art.21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its Regular Second Appeal No. 2608 of 1989 7 effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life."
Long ago, the Hon'ble Supreme Court deprecated this attitude on the part of the Central Government, when it was urged by the Government that they would pay only daily wages and not the same wages, though all did identical work. Let us note what was said in Dhirendra Chameli & Anr. v. State of U.P., (Civil Writ Petition No.4817 of 1983). The Court said that it is an all too familiar argument with the exploiting class and a welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. In Surinder Singh and another Vs. The Engineer in Chief, C.P.W.D., and others, AIR 1986 Supreme Court 584, the Court repelled the contention that doctrine of equal pay for equal work was a mere abstract doctrine and that it was not capable of being enforced in a Court of law. It is observed:-
".......The Central Government like all organs of the State is committed to the Directive Principles of State Policy and Art.39 enshrines the principle of equal pay for equal work. In Randhir Singh V. Union of India, (1982) 3 SCR 298: (AIR 1982 SC
879), this court had occasion to explain the observations in Regular Second Appeal No. 2608 of 1989 8 *Kishori Mohan Lal Bakshi v. Union of India (supra) and to point out how the principle of equal pay for equal work is not an abstract doctrine and how it is a vital and vigorous doctrine accepted throughout the world, particularly by all socialist countries. For the benefit of those that do not seem to be aware of it, we may point out that the decision in Randhir Singh's case has been followed in any number of cases by this court and has been affirmed by a Constitution Bench of this court in D.S.Nakara v. Union of India, (1983) 2 SCR 165: (AIR 1983 SC 130). The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which are advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill come from the mouths of the State and State Undertakings."
* AIR 1962 SC 1139 In the case of Vivek Singh Vs. Maharshi Dayanand University and others, 2006(4) S.C.T.820, it is held that daily wagers could also not be denied equal pay for equal work.
The principle of 'Equal Pay for Equal Work' gets attracted in all those cases where one is able to establish that the work performed is same or identical but is being differently compensated or paid. Once it was found as a matter of fact that the respondents- plaintiffs were performing the same duties, they would become entitled to receive the minimum of the pay scales though not all the facilities and benefits that would be available to the regularly appointed employees.
The substantial question of law has also not been formulated in this case. The substantial question of law regarding grant of 'Equal Pay for Equal Work' do arise in this case. This question of law has been rightly decided by the First Appellate Court on the basis of law laid down by the Hon'ble Supreme Court that respondents-plaintiffs would be entitled to minimum of the scale. This Regular Second Appeal No. 2608 of 1989 9 view has subsequently been reiterated in number of judgments.
The Regular Second Appeals, therefore, are dismissed.
March 25, 2010 ( RANJIT SINGH ) rts JUDGE