Delhi High Court
Mcd vs Smt. Ajudhiya And Anr. [Along With Wp(C) ... on 11 October, 2006
Author: Shiv Narayan Dhingra
Bench: Shiv Narayan Dhingra
JUDGMENT Shiv Narayan Dhingra, J.
1. These writ petitions raises a question of law whether the Labour Court on an application under Section 33-C(2) of Industrial Disputes Act(herein after referred to as 'the Act'), award to the workman the difference in wages which the workman is getting as a daily wager and the wages other regular employee doing same work was getting in the department. In all the cases, workmen had approached the Labour Court under Section 33-C(2) of the Act with the prayer that the workman was a daily wager and he was getting minimum wages whereas other regular employees of the petitioner, doing the same work, were getting more wages. The Labour Court relying upon the judgment in MCD v. Ganesh Razak, of this Court, allowed the applications under Section 33-C(2) of the Act and directed that the applicants be given difference in wages for the period for which the application was made, between minimum wages and the wages being paid to the regular employees.
2. The decision in MCD v. Ganesh Razak was challenged by MCD by way of an SLP before Supreme Court and the decision of this Court was reversed by the Supreme Court in MCD v. Ganesh Razak and Anr. The Supreme Court observed as under:
In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. The workmen's claim of doing the same kind of work and their entitlement to be paid wages at the same rate as the regular workmen on the principle of equal pay for equal work being disputed, without an adjudication of their dispute resulting in acceptance of their claim to this effect, there could be no occasion for computation of the benefit on that basis to attract Section 33-C(2). The mere fact that some other workmen are alleged to have made a similar claim by filing writ petitions under Article 32 of the Constitution is indicative of the need for adjudication of the claim of entitlement to the benefit before computation of such a benefit could be sought. Respondents' claim is not based on a prior adjudication made in the writ petitions filed by some other workmen upholding a similar claim which could be relied on as an adjudication enuring to the benefit of these respondents as well. The writ petitions by some other workmen to which some reference was casually made, particulars of which are not available in these matters, have, therefore, no relevance for the present purpose. It must, therefore, be held that the Labour Court as well as the High Court were in error in treating as maintainable the applications made under Section 33-C(2) of the Act by these respondents.
Where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to that Labour Court's power under Section 33-C)(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. The power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the workman's right rests. (Paras 12 and 8) In Central Inland Water Transport Corpn. Ltd. v. Workmen it was held with reference to the earlier decisions that a proceedings under Section 33-C(2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of re-employment is outside its scope and the Labour Court exercising power under Section 33-C(2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of re-employment. Distinction between proceedings in a suit and execution proceedings thereafter was pointed out. It was indicated that the plaintiff's right to relief against the defendant involves an investigation which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution proceedings. This distinction is clearly brought out in that decision as under:(SCR p.159:SCC pp.701-02).
In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of (i) the plaintiff's right to relief;(ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; and (iii) the extent of the defendant's liability, if any. The working out of such liability with a view to give relief is generally regarded as the function of an execution proceeding. Determination No. (iii) referred to above, that is to say, the extent of the defendant's liability may sometimes be left over for determination in execution proceedings. But that is not the case with the determinations under heads(i) and (ii). They are normally regarded as the functions of a suit and not an execution proceeding. Since a proceeding under Section 33-C(2) is in the nature of an execution proceeding it should follow that an investigation of the nature of determinations(i) and (ii) above is, normally, outside its scope. It is true that in a proceedings under Section 33-C(2), as in an execution proceeding, it may be necessary to determine the identity of the person by whom or against whom the claim is made if there is a challenge on that score. But that is merely 'Incidental'. To call determinations (i) and (ii) 'Incidental' to an execution proceedings would be a perversion, because execution proceedings in which the extent of liability is worked out are just consequential upon the determinations (i) and (ii) and represent the last stage in a process leading to final relief. Therefore, when a claim is made before the Labour Court under Section 33-C(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say on an Industrial Tribunal which alone is entitled to make adjudications in the nature of determinations (i) and (ii) referred to above, or proceed to compute the benefit by dubbing the former as 'Incidental' to its main business of computation. In such cases, determinations (i) and (ii) are not 'Incidental' to the computation. The computation itself is consequential upon and subsidiary to determinations (i) and (ii) as the last stage in the process which commenced with a reference to the Industrial Tribunal. It was, therefore, held in State Bank of Bikaner and Jaipur v. R.L. Khandelwal (1968) 1 LLJ 589 that a workman cannot put forward a claim in an application under Section 33-C(2) in respect of a matter which is not based on an existing right and which can be appropriately the subject-matter of an industrial dispute which requires a reference under Section 10 of the Act
3. In view of the fact that decision on which the Tribunal's order has been passed, has been reversed, I consider, the order of the Tribunal cannot stand and has to be set aside. Even otherwise, it is now settled law that a Labour Court can entertain an application under Section 33-C(2) of the Act, only in respect of settled rights of the applicant. Where the rights are disputed, an application under Section 33-C(2) of the Act cannot be entertained. In A.P.S.R.T. Corporation v. B.S. David Paul (2006) 1 LLJ 999, the Supreme Court held that the Labour Court under Section 33-C(2) of the Act can entertain only those claims which arise out of a pre-existing benefits.
The principle of law on point; is no more res integra. This Court in A.P.S.R.T.C. and Anr. v. S. Narsagoud , succinctly crystallized the principle of law in the judgment We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service.
4. In (2006) 1 LLJ 431 State of Haryana and Ors. v. Charanjit Singh and Ors. the issue before the Supreme Court was of equal pay for equal work. The Supreme Court surveyed the earlier decisions and noted:
In the case of Government of West Bengal v. Tarun K. Roy a three Judges Bench of this Court has also considered the doctrine of equal pay for equal work in the following terms at pp.425 and 426 of LLJ:
Equal Pay for Equal Work
14. Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective or their source or recruitment or other relevant considerations the said doctrine would be automatically applied. the holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.
20. Question of violation of Article 14 of the Constitution of India on the part of the State would arise only if the persons are similarly placed. Equally Clause contained in Article 14, in other words, will have no application where the persons are not similarly situated or when there is a valid classification based on a reasonable differentia. Doctrine of 'equal pay for equal work', therefore is not attracted in the instant case.
23. In Chairman-Cum-Managing Director, National Textiles Corporation Ltd. v. N.T.C. (WBAB & O) Ltd. Employees Union , this Court, held at p.1106 of LLJ.
9. In view of the fact that the nature of duties of the staff in the two categories has been found to be not at par, parity in pay scales may not be possible
24. In Orissa University of Agriculture and Technology v. Manoj K. Mohanty 2003-II-LLJ-968 this Court noticed at p.970:
10. It is clear from the averments made in the writ petition extracted above, nothing is stated as regards the nature of work, responsibilities attached to the respondent without comparing to the regularly recruited Junior Assistants. It cannot be disputed that there was neither necessary averments in the writ petition nor any material was placed before the High Court so as to consider the application of principle of equal pay for equal work.
13. Yet, in another decision in State Bank of India v. M.R. Ganesh Babu a Bench of three learned Judges of this Court, while dealing with the same principle, has expressed that:
...It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference....
In Tarun Roy's case (supra) an argument that relief should be given as in an earlier matter objection was not taken was rejected in the following terms at pp. 426 & 427:
25. In a case of this nature, the Courts are required to determine the issue having regard to larger public interest. It is one thing to say that in a given case the High Court or this Court may not exercise an Article 136 of the constitution of India, but it is another thing to say that the Courts shall grant relief to a party only on the ground that a contention which is otherwise valid would not be raised on the ground that the same was not done in an earlier proceedings.
26. in the instant case, the appellant has explained under what circumstances the order of the learned single Judge of the Calcutta High Court had to be obeyed. If rule of law is to be followed, judicial discipline demands that the Court follows its earlier binding precedent. The Calcutta High Court itself has rejected such a plea. The matter is pending in appeal. An order passed to the contrary by another learned single Judge in ignorance of the earlier binding precedent by itself would not constitute a binding precedent and may be held to have been rendered per incuriam.
27.Furthermore, in the order dated October 1, 1991, the learned Judge categorically directed that the same would be subject to any order that may be passed in the appeal which is pending before the Division Bench from the Judgment and order dated January 20, 1989 passed in Nemai Chand Ghosh's case(supra). The said order, therefore, did not attain finality. '
28.In the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the appellant on their own merit, particularly, when the question as regard difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment of this Court in Debdas Kumar's case(supra). If the judgment of Debdas Kumar's case (supra) is to be followed a finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kuamr (supr) which in turn would mean that they are also holders of diploma in engineering. They admittedly, being not, the contention of the appellants could not be rejected, non filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits State of Maharashtra v. Digambar .
29.In State of Bihar v Ramdeo Yadav wherein this Court noticed Debdas' Kumar's case(supra) holding:
Shri B.B. Singh the learned Counsel for the appellants contended that though an appeal against the earlier Order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In similar circumstances, this Court in State of Maharashtra v. Digamber and State of West Bengal v. Debdas Kumar 1991 Suppl(1) SCC 138 : 1995-III-LLJ(Suppl.)-294 had held that though an appeal was not filed against an earlier order, when public interest in involved in interpretation of law, the Court is entitled to go into the question The three Judges Bench decision of this Court is binding on this Court. Even otherwise we are in full agreement with what has been stated therein.
5. The Supreme Court, in the above case, after considering all the previous judgments and surveying the law, observed as under:
Thus, it is clear that persons employed on contract cannot claim equal pay on basis of equal pay for equal work. Face with this situation it was submitted that all these persons were in fact claiming that their respective appointments were regular appointments by the regular process of appointments but that instead of giving regular appointments they were appointed on contract with the intention of not paying them regular salary. It was admitted that the petitions may be badly drafted and such a contention not put forth specifically. The High Court has disposed of these petitions also on the footing that the principle of equal pay for equal work applied. We therefore set aside the impugned orders in these cases also and remit the matters back to the High Court for disposal. The High Court shall permit these petitioners to amend their petitions to make necessary averments and will also permit the respondents in these cases to file replies to the amended petitions
6. In my opinion, a daily wager cannot claim regular pay scale attached to the post. A daily wager holds no post and no responsibility. He is at liberty to come and work as and when he likes. He can leave work without any notice. He is not given responsible work. Daily wagers are normally engaged only due to exigency of work. They are a class apart and cannot be equated with regular employees. I, therefore, consider that daily wager cannot claim pay at the same scale as regular employees.
7. Accordingly, the writ petition is allowed. Order of the Tribunal is set aside. No orders as to cost.