Delhi High Court
Municipal Corpn. Of Delhi vs Presiding Officer, Industrial ... on 24 December, 1999
Equivalent citations: 2000IIAD(DELHI)442, 84(2000)DLT12, 2000(52)DRJ654
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. This writ petition is preferred by Municipal Corporation of Delhi (MCD for short) against award dated 30.11.1995 passed by respondent No.1 in ID 114/81-41 of 1984. The challenge is confined to the terms of reference of No. 3 and obviously so, as other two terms of reference of No. 3 and obviously so, as other two terms of reference are decided in favour of MCD by the Industrial Tribunal.
2. Delhi Administration, Delhi through its Secretary, Labour referred the industrial dispute for adjudication by the Industrial Tribunal No.II vide order dated 26.8.1981 with the following terms of reference:
1. "Whether the mates in the Engineering Deptt. of the Corporation are entitled to the scale of Garden Chaudharies, and if so, from what date and what directions are necessary in this respect?
2. Whether the mates in Engineering Deptt. of the Corporation are entitled to be designated as Supervisors and if so, what directions are necessary in this regard?
3. Whether the daily wages/muster roll mates in the Engineering Deptt. of the Corporation are entitled to be treated as regular employees and placed in the proper pay scale and if so, what directions are necessary in this regard?
3. Terms of reference No.1 & 2 above have been decided against the workmen. However, while deciding terms of reference No.3 the learned Industrial Tribunal, in the impugned award has directed as under :
"As far as the third term of reference is concerned I hold that the daily wage/casual/muster roll mates working in the Engineering Department of Municipal Corporation of Delhi are entitled to pay/allowances in regular pay scale from the date of their respective initial appointments as have been enjoyed by the regularly recruited Mates in the said department."
4. Thus aggrieved against this part of the award MCD has filed this writ petition. Therefore, as we have to deal with only this aspect of the matter, the factual matrix would be confined to this terms of reference only.
5. Municipal Employees Union, which is respondent No. 3 in the present writ petition, had raised the industrial dispute on behalf of its members, who were engaged as daily wages/casual labors/muster roll mates in the Engineering Department of MCD. The case of the union was that the Delhi Municipal Corporation Act, 1957 and the Central Civil Services (Temporary Service) Rules, 1965 nowhere provide the Corporation with powers to employ persons and treat them as daily wagers/casual/muster roll workers and to pay them lesser remuneration than those treated as regular/temporary/permanent employees, for the same and similar nature of work. The persons so appointed are deemed to be temporary or permanent as has been held by various courts in India. It was further pleaded by the Union that the action of the Corporation in treating them as daily rated Mates and making payment of lesser remuneration than their counterparts for the same or similar nature of work is violative of Equal Remuneration Act, 1976 and treating them as casual/muster-roll/daily rated and paying less remuneration than their counterparts is also violative of Article 39(a) of the Constitution of India. The Union also submitted in its statement of claim that the Mates who are treated as casual/daily wagers/muster roll employees are in fact regular/permanent employees; having being employed against regular nature of work. It was also averred that the Corporation has adopted IInd and IIIrd Pay Commission's recommendations without any alteration or modifications; the IIIrd Pay Commission has recommended equal pay for equal work and also advocated for fair comparison in the matter of remuneration. That the Mates who are being treated as daily wager/casual/muster roll employees be declared emporary/permanent employees in proper pay scale w.e.f. the initial date of joining into service as such and they be paid all arrears due to them in this respect with all other consequential benefits.
6. In the written statement filed by the petitioner before the Industrial Tribunal, the case of petitioner was that the daily wager/muster roll labourers are of different cadre/class and they are being paid as per notification issued by the Delhi Administration. It was averred that the regular mates are in the pay scale of Rs. 200-250 with usual allowances admissible under the rules. The Mates engaged on muster roll were being paid Rs. 8/-per day, which were wages fixed by the Delhi Administration under the Minimum Wages Act. For regular nature of work regular staff is already there in the graded scale and the daily wages are engaged on muster roll basis for temporary nature of work.
7. Both the parties thereafter led evidence and matter was argued before the Industrial Tribunal which culminated in the impugned award as already pointed above.
8. A perusal of the impugned award given by the learned tribunal would indicate that learned Tribunal was influenced by the following factors which persuaded it to apply doctrine of "Equal pay for equal work" .
(a) Duties being performed by daily wager and regular mates were the same with same working hours thereby establishing similarity of work being performed by both the classes of mate.
(b) MCD have been engaging mates on daily wage basis and retaining them for years together without treating at par with regularly appointed mates in the matter of service benefits such as salary in proper pay scale, leave uniform etc.
9. The Industrial Tribunal then referred to the following judgments of Supreme Court on the principle of Equal Pay for Equal Work.
1. Dhirendra Chamoli & Another Vs. State of U.P. .
2. Surinder Singh & An others Vs. The Engineer-in-Chief CPWD & Ors. reported in 1986 (4) Epitomised Legal Judgments (Labour & Service) 136.
3. Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and Ors. .
4. Jaipal and Ors. Vs. State of Haryana & Ors., reported in 1988 Supreme Court Cases (L & S) 785.
5. Delhi Municipal Karamchari Ekta Union (Regd.) Vs. P.L. Singh and Ors., .
6. The Dharwad Distt. P.W.D. Literate Daily Wages Employees Association and Ors. Vs. State of Karnataka and Ors., .
10. After extensively quoting from the aforesaid judgments, the learned tribunal observed as under:
"The legal position which emerges on a reading the above referred judgments on the question of applicability of the doctrine of 'Equal Pay for Equal Work' between Daily Wage/Casual employees and regularly recruited employees and of regularisation/permanent absorption of daily wage/casual employees is thus: in case daily wage/casual employees are engaged for permanent nature of work and they perform the same work which the regularly recruited employees do for the same employer then the daily wage/casual employees are entitled to be paid salary/allowances as is paid to the regularly recruited employees and the Central Government/Statutory Bodies cannot deny that benefit to the daily wage/casual employees on the ground that the daily wage/casual employees and the regularly recruited employees for a different class as has been the contention of the employer in the present case i.e. Municipal Corporation of Delhi.
11. Mr. Rajeev Nayyar, learned Sr. counsel appearing on behalf of the petitioner contended that the tribunal fell in error in granting same pay scale to the daily rates mates which was being given to the regular employees. He submitted that the judicial trend in this respect is clear from various judgments of Supreme Court as well as High Court. In support of his submission he relied upon the observations of Supreme Court in the case of State of Haryana Vs. Jasmer Singh :
"The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subject to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Not can they claim the minimum of the regular pay-scale of the regularly employed."
12. He also drew my attention to the observations of Supreme Court in the case of State of Haryana Vs. Surinder Kumar and Ors., :
"Shri Manoj Swarup, learned counsel for the respondents, contends that the posts held by the respondents are interchangeable and in fact they have been interchanged to enable them to hold the posts. That contention cannot be given acceptance for the reason that since the respondents were appointed on contract basis on daily wages, they cannot have any right to a post as such until they are duly selected and appointed. Merely because they are able to manage to have the posts interchanged, they cannot become entitled to the same pay-scale which the regular clerks are holding by claiming that they are discharging their duties are regular employees. The very object of selection is to test the eligibility and then to make selection in accordance with rules prescribed for recruitment. Obviously the respondents recruitment was not made in accordance with the rules."
13. Mr. Rajeev Nayyar then relied upon the full Bench judgment of Punjab & Harayana High Court in the case of Ranbir singh & Anr. Vs. State of Haryana & Ors., reported in 1998(4) SLR page 11.
"After noticing the aforesaid authorities, the Apex Court went to observe as under :
"8. It is, therefore, clear that the quality of work performed by different sets of persons holding different jobs will have to be evaluated. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre,so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various other similar considerations which may have a bearing on efficient performance in a job. This court has repeatedly observed that evaluation of such jobs for the purpose of pay scale must be left to expert bodies and, unless there are any mala fides, its evaluation should be accepted.
9. XXX XXX XXX
10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfill the requirement relating to age. They are not selected in the manner in which regular employees are selected. In other works the requirements for election are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed."
5. A Division Bench of this court, in which one of us (R.S. Mongia, J.) was a member in C.W.P. No. 9766 of 1995, decided on November 8, 1995, after noticing the judgment of the Apex Court in Ghaziabad Development Authority's case (Supra) had held that a daily wage employee cannot be equated with a regular employee for the purpose of pay scale. It was observed that "a daily wage employee is not subject to disciplinary control of the employer inasmuch as he may come for work on a particular day or may not come and still the employer would have no right to take any disciplinary action against such an employee who may be absent for a day or for a longer period. He is not required to take any leave from the employer for a particular day on which he does not wish to come."
6. In view of the authoritative pronouncement of the Apex Court, we are of the opinion that the view expressed by the Division Bench in C.W.P. No. 17741/1991 and C.W.P. No. 9192 of 1995 and in any other judgment to the same effect would be not longer good law and would stand over-ruled. Consequently, the petitioner would not be entitled to claim the same salary as is being paid to a regular Ticket Verifier.
14. He also relied upon the judgment of Supreme Court in the case of Associated Banks Officers Association Vs. State Bank of India & Ors., for the proposition that principle of equal pay for equal work was not justifiable as per Article 37. Stretching of doctrine was to be done with caution and unless there is identifiable discrimination, doctrine should not be applied as mere difference is not discrimination. He also referred to another judgment of Apex Court in the case of Chief Superintendent, Government Livestock farm Hissar Vs. Ramesh Kumar reported in (1997) 11 SCC 363 to buttress his submission that in absence of regular post in the establishment, daily wager could not invoke the principle of equal pay for equal work to claim parity in the pay and allowances with regular employee.
15. On the other hand, Mr. Rajeev, learned counsel appearing on behalf of workmen, relied upon the reasoning given and judgments quoted by the tribunal to support the conclusion. He contended that the judgments cited by the petitioner are not applicable as they do not arise out of industrial law. He submitted that power of the Tribunal was wide enough and it could even create rights in favour of the workmen and in support of this submission, he relied upon the judgment of this Court in the case of Delhi Administration Vs. Yogender Singh & Ors., . It was further submitted that on the facts of the instant case particularly when these workmen were engaged for number of years and were doing the same work as was being done by regular employees, the approach of the Tribunal in applying the principle of equal pay for equal work was correct and should not be interfered with.
16. I have given my utmost consideration to the respective submissions of counsel for both the parties. Nodoubt in the various cases relied upon by the counsel for the respondent and as noticed by the Industrial Tribunal in the impugned award, principle of equal pay for equal work is applied and daily rated workers are given the same pay as admissible to regular employees. However, the recent trend in various pronouncements of the Supreme Court is to the contrary which is clearly discernible from the judgments cited by the petitioner. These judgments clearly show the prevailing mind of the Apex Court. In fact one can usefully bank upon the observation of the Apex Court in the case of Associated Bank Officers Association (supra). the court, speaking through Sujata V. Manohar, J., summarised the exposition of the principle of equal pay for equal work most candid manner. To quote:
"Equal pay for equal work for both men and women" is one of Directive Principles of State Policy laid down in Article 39(d) of the Constitution. Article 37 makes it on-justiciable. Yet it must be borne in mind by the legislature while making laws. In Randhir Singh Vs. Union of India and Ors. , this court construed Articles 14 and 16 in the light of the preamble to the Constitution to read into their scheme the principle of equal pay for equal work. The principle has since been applied in cases of irrational discrimination in the pay-scales of workers doing the same or similar work in an organization. It has not been applied when there is a basis or an explanation for the difference."
Historically, equal pay for work of equal value has been a slogan of the women's movement. Equal pay laws, therefore, usually deal with sex-based discrimination in the pay-scales of men and women doing the same or equal work in the same organization. For example, the equal Remuneration Act, 1976 provides for payment of equal remuneration to men and women workers and is meant to prevent discrimination on the ground of sex against women in the matter of employment. The Equal Pay Act, 1970 and the Equal Pay (Amendment) Regulations, 1983 in Great Britain are for a similar purpose. The same doctrine has also sought to protect disadvantaged groups against similar discrimination. We have interpreted and applied the doctrine even more widely to prevent discriminatory pay-scales within an organization which is owned by or is an instrumentality of the state, provided that the different payscales exist in one organisation, are applied to employees doing work of equal value, and there is no rational explanation for the difference."
"When the same principle is sought to be extended to compare payscales in one organisation with pay-scales in another organisation although between employees doing comparable work, the stretching of the doctrine, if at all it is done, must be done with caution lest the doctrine snaps. Many ingredients go into the shaping of wage structure in any organisation. Historically it may have been shaped by negotiated settlements with employees' unions, or through industrial adjudication. It may have been revised or reshaped with the help of expert committees. The economic capability of the employer also plays a capability of the employer also plays a crucial part in it; as also its capacity to expand business or earn more profits. If the employing organisation functions in a competitive area, it may, if it is economically strong, offer higher wages than its co petitioners doing similar work to attract better talent. Or it may offer higher wages to the better qualified. A simplistic approach, granting higher remuneration to other workers in other organisations because another organisation has granted them may lead to undesirable results. Even within the same organisation, when the differential wage structure is based on similar considerations, the application of the doctrine would be fraught with danger, and may seriously affect the efficiency, and at times, even the functioning of the organisation. The doctrine is designed to correct irrational and inexplicable pay differentiation which can be looked upon as discrimination against an employee or a given set of employees. It is easier to identify such discriminated groups when the discriminated group is sex-based (women) or color-based (Blacks in USA) or caste-based (Scheduled Castes Etc.) and more difficult to identify in other cases. But unless there is such identifiable discrimination, the doctrine should not be applied. Mere difference is not discrimination."
17. The question to be determined is as to whether there is a basis or an explanation for the difference in not giving the same salary to the daily rated worker, which is given to regular employee. Answer to that is provided by the Apex Court itself in the case of State of Haryana Vs. Jasmer Singh(Supra) and State of Haryana Vs. Surinder Kumar & Ors., (Supra) wherein it is held that daily wagers cannot claim same pay-scale as regular employees as there are qualitative and other differences between the two types of employees.
18. Further a perusal of Full Bench judgment of Punjab & Haryana High Court in Ranbir Singh's case(Supra) would show that Division Bench had held that daily wagers were entitled to the same salary as regularly appointed person on the principle of equal pay for equal work and the Division Bench had referred to almost same judgments as referred to by the Industrial Tribunal in the instant award. However applying the ratio laid down in the case of Jasmer Singh (supra) the Full Bench over-ruled the judgment of Division Bench and dismissed the petition of the petitioners i.e. the daily wagers who were claiming same pay as was given to regular employees.
19. From the aforesaid discussion it is clear that the daily wagers are not entitled to the salary and the increments etc. Payable to the employees working on regular basis. Therefore, the impugned award by which the Industrial Tribunal has held that these daily wage/casual/muster roll mates working in the Engineering Department of Municipal Corporation of Delhi are entitled to pay/allowances in regular pay scale from the date of their respective initial appointment as has been enjoyed by the regularly recruited mates in the said departments cannot be sustained and therefore direction contained in the award to the aforesaid effect is hereby set aside.
20. However, in view of certain peculiar facts in this case I am not also inclined to agree to the submission of the petitioner that these mates should be paid only the minimum daily wage as prescribed by the Government by issuing a notification under the Minimum Wages Act. These mates have been working, undisputedly, for long years. Further for becoming regular employees they would not have to undergo any selection process but they would attain this status of a regular employee in due course as per the scheme of the petitioner as and when regular vacancies are there and turn of these mates for regularisation comes as per their seniority. Therefore, I am inclined to adopt middle path so that the position in law is also taken care of and at the same time these workers are also not denied their legitimate due. Both the purposes can been achieved by directing the petitioner to pay these daily wage/casual/muster roll mates working in Engineering department of Municipal Corporation of Delhi, in respect of whom this dispute was espoused by the union, by paying them the salary at the minimum of the pay-scale+ DA+ADA in the pay scale of regular employees without any increment and other allowances. This course adopted by me is not unprecedented. Such directions are given by Supreme Court earlier also, keeping in view the peculiarity of a given case. Further instead of paying the wages in the aforesaid manner from the date of their initial appointment, the same would be made w.e.f. 26.8.1981 when the reference was made to Industrial Tribunal. The award of the Industrial Tribunal is substituted by these directions. It is made clear that this direction is giving in view of the peculiar facts of this case, without in any way diluting the principle that normally daily wagers are not to be allowed the same pay as given to regular employees.
21. The writ petition is accordingly disposed of. There shall however be no order as to costs.