Gujarat High Court
Gujarat Bijlee Kamdar Maha Mandal vs Gujarat Urja Vikas Nigam Ltd on 25 April, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/1807/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1807 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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GUJARAT BIJLEE KAMDAR MAHA MANDAL....Petitioner(s)
Versus
GUJARAT URJA VIKAS NIGAM LTD.,THRO' ITS CHIEF ENGINEER, &
1....Respondent(s)
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Appearance:
MR DS CHAUHAN, ADVOCATE for the Petitioner(s) No. 1
MR TR MISHRA, ADVOCATE for the Petitioner(s) No. 1
MS LILU K BHAYA, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
RULE UNSERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 25/04/2017
ORAL JUDGMENT
1. The challenge is made to the award of the Industrial Tribunal, Nadiad (for short, 'the Tribunal') dated 06.11.2004 passed in Reference Page 1 of 50 HC-NIC Page 1 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT (ITN) No. 100 of 2003 in the following factual background.
2. The petitioner is the Gujarat Bijli Kamdar Maha Mandal to be referred to as 'the Union' herein after), which had filed Statement of Claim with the request that they were working on the permanent posts with the Vanakbori Thermal Power Station with the Gujarat Electricity Board (for short, 'the Board'). The term of the Reference was whether the workmen working and handling the plant as contract labourer can claim to be the regular employees and are entitled to the benefits which the regular employees are being granted.
3. The petitioner workmen had earlier preferred a petition before this Court being Special Civil Application No. 5861 of 2003 with a request to refer the dispute as an industrial dispute along the line of the earlier reference made to the Tribunal. This Court on 02.05.2003 dismissed that petition which had aggrieved the petitioner and therefore, an appeal being Letters Patent Appeal No. 5731 of 2003 had been preferred and the same came to be disposed of in favour of the workmen. The dispute was referred for adjudication. Yet, another demand was raised by the Union serving a notice for strike and the Page 2 of 50 HC-NIC Page 2 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT matter was attempted for conciliation. It was alleged that the Management of the Board colluded with the Contractor and initially there was delay in payment to harass the workmen and thereafter the Union made certain representations to the Board and also to the Government when the payment of wages had not been released despite the repeated requests. It was also urged that it was a legal obligation where the contractor had failed to make such a payment. The payment was made by the office of the Time Keeper of the Board but in a separate register of the contractor. It was the case of the petitioner that they continued to work and abruptly 64 workmen were discontinued and another labour contract was deployed on the establishment on the ground that existing contract labourers resorted to strike. The Board discontinued 64 workmen and the Union went on sending messages. Eventually the reference was made.
4. The statement of claim made by the petitioner has been detailed in the award seeking a declaration that the contract of M/s. Chanakya Security Services was totally sham and bogus and the members of the petitioner are the workmen of the Board with a further direction that the Management of Vanakbora Thermal Power Station to treat them as the regular employees of the Board and to grant them all the consequential benefits Page 3 of 50 HC-NIC Page 3 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT at part with watch and ward staff of the Board.
5. Written statement came to be filed by the other side and extensively permitting both the sides to adduce documentary as well as oral evidences the Tribunal passed a detailed award on 06.11.2004, which is challenged in this petition with the following reliefs:
"9. ...
(A) That Your Lordship be pleased to issue an order, direction or writ in the nature of certiorari and / or an appropriate writ, order or direction, quashing and setting aside the impugned award marked ANN.A to this petition, being illegal, perverse and contrary to record;
(B) Direct the respondent GEB to reinstate the workmen except those against whom the G.E.B. has filed FIR before the police, for production of false certificate;
(C) Pending admission and final disposal of this petition, Your Lordship be pleased to direct the respondent to restore the status quo and take the workmen involved in the said reference, on duty;
(D) ... "
6. Affidavit-in-reply is filed by
respondent No.1-Board through Industrial
Relations Officer according to whom the
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respondent Board has various power stations and Vanakbora is one of the biggest thermal power stations generating 1470 M.W. Of electricity. It is spread over an area of about 628 hectares of the land. The installation has 7 generating units of 210 M.W. Each. The total power generated is fist received at Jambuwa near Vadodara for onward distribution within the State of Gujarat. It is located near Kuni village near the West bank of river Mahi. It being a very sensitive thermal power station it can be the target of sabotage by enemy agents or terrorist groups so also for the growing activities of anti-social elements, and therefore, it requires the protection round the clock. Considering the possibilities of damage to the installation by any mob during the civil commotion and by disgruntled ideological employees during the strike or agitation also cannot be ruled out. Further to dislodge the possibility of theft and pilferage, it has been declared as a prohibited space under the Official Secrets Act, 1933. Therefore, the security is very vital and essential and it needed to also appoint the security persons in wake of the official report from the Intelligence Bureau, Ministry of Home Affairs, Government of India, New Delhi, which specifically said that since the security personnels are the members of the trade union in the event of their joining strike, security may may get jeopardized and therefore, alternative arrangement for security was needed Page 5 of 50 HC-NIC Page 5 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT to be made.
It is further their say that the Board gave an advertisement in a local newspaper on 13.01.2001 and therefore the dispute was raised by the Akhil Gujarat Vidhyut Kamdar Sangh on behalf of the supernumerary watchmen that they should be treated as regular watchmen and should be given all the benefits. Said Union also filed an application for interim stay in Reference (IT) No. 42 of 1998 before the Tribunal. The Tribunal granted interim relief and therefore Special Civil Application No. 5643 of 2001 was preferred. The Board received the report of the Intelligence Bureau which had necessitated the engagement of ex-servicemen, retired police personnel for looking after the installations of the Board. The Court on 31.08.2001 gave directions to the Board to employ through contract labour system the persons who can look after the security of the power station.
7. An application being Misc. Civil Application No. 1741 of 2001 for modification of the order was passed by the Court permitting to engage either ex-servicemen, ex-police personnel or ex-home guards or ex-gram rakshak dal personnels. The respondent No.1-Board gave work order to Respondent No.2-Chankya Security Services, Vadodara, as per the direction of the Gujarat High Court. Since, the Misc. Civil Page 6 of 50 HC-NIC Page 6 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Application No. 1741 of 2001 came to be allowed on 08.10.2001 with a specific direction that only in case of sufficient ex-servicemen, ex-police personnel etc. were not available, such kind of watchmen may be engaged by the Board. Respondent No.1-Board entered into a contract with Respondent No.2 and some of the clause pressed into service according to the Board were necessary for adjudication of this petition. The earlier contract expired and on 11.12.2002 the Board invited tenders and till the new contract was finalized the old contractor was given extension. One of the terms which was necessary was of providing of ex-servicemen and retired police personnels since was not feasible the Board made limited tender inquiry. One of the parties preferred Special Civil Application No. 5861 of 2003 as the contractor had infomred the workmen that their services would come to an end with effect from 02.05.2003. The High Court granted ex-parte order and permitted the petitioner to raise an industrial dispute and directed the Respondent No.1-Board and the Contractor to maintain status quo.
8. Against the same Letters Patent Appeal No. 573 of 2003 was preferred and on hearing both the sides the Division Bench was disinclined to interfere and observed that the Conciliation Officer shall decide the matter as early as possible. Then the failure report was submitted Page 7 of 50 HC-NIC Page 7 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT by the Conciliation Officer and eventually the Tribunal rejected the Reference (IT) No. 100 of 2003.
9. In substance what has been contended in the affidavit-in-reply is that the Tribunal has rightly appreciated the intelligence report and has specifically observed that the contract labourers themselves stopped work and there cannot be any breach of Section 33 of the ID Act.
10. This Court has extensively heard the learned Advocate, Mr. Mishra, on behalf of the petitioner who fervently urged that the Tribunal has not appreciated the factum that the contract which had been pressed into service by the Board was sham and bogus. He urged that the petitioner had reiterated that those of the employees who had given the incorrect or allegedly forged certificate while getting the employment under the guise of they being the members of the Gram Rakshak Dal only 26 in numbers and therefore the rest 64 employees could not have been punished because of those 26 employees. He urged that the remaining 64 employees have nothing to do with the alleged bogus certificates and the entire premise of the award is bogus certificate of only minimum number of employees. He further urged that all the parameters which are otherwise applicable for establishing the employer and employee relationship existed so far as the Page 8 of 50 HC-NIC Page 8 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT members of the present petitioner and the respondents are concerned. The evidence that has been adduced by the petitioner were sufficient enough for the Tribunal to hold that such a relationship was emerging and was established by the documentary as well as the oral evidences. He further urged that the supervision all throughout was of the officers of the Board and therefore right from the engagement of the workers till final notice of termination of services of the members of the petitioner the decision the decision was entirely of the respondent No.1- Board and therefore the Tribunal's award deserves interference.
11. Learned Advocate, Ms. Bhaya, appearing for Respondent No.1-Board has urged that no interference is desirable. She has urged that in exercise of powers under the Articles 226 and 227 of the Constitution of India there is no reason to permit such an interference as this is an extensive and elaborate award passed by the Tribunal with sound reasoning and there is no error which deserves any indulgence.
12. At the outset this Court would like to refer to on hearing the learned Advocates for the parties the decision of the Apex Court in 'SHALINI SHYAM SHETTY AND ANOTHER VS. RAJENDRA SHANKAR PATIL' (2010) 8 SCC 329, where the Apex Court has considered at length the scope of Page 9 of 50 HC-NIC Page 9 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT interference by this Court to hold and observe that Article 227 can be invoked by the High Court suo motu as a custodian of justice. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. The power is discretionary and has to be exercised very sparingly on equitable principle.
13. The Apex Court in the case of 'SAMEER SURESH GUPTA THROUGH P.A. HOLDER VS. RAHUL KUMAR AGARAWAL', (2013) 9 SCC 374, while considering the scope of Articles 226 and 227 of the Constitution of India observed and hold as under:
"6. In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai vs. Ram Chander Rai and others (2003) 6 SCC 675. After considering various facets of the issue,the two Judge Bench culled out the following principles:
"(1) Amendment by Act No.46 of 1999 with effect from 01-07-2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 Page 10 of 50 HC-NIC Page 10 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT and Page 10 of 23 HC-NIC Page 10 of 23 Created On Sat Aug 06 06:03:08 IST 2016 R/SCR.A/2267/2011 JUDGMENT 227 of the Constitution.
(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate court is found to have acted
(i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a Page 11 of 50 HC-NIC Page 11 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, Page 11 of 23 HC-
NIC Page 11 of 23 Created On Sat Aug 06 06:03:08 IST 2016 R/SCR.A/2267/2011 JUDGMENT i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.
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(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the above said two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
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(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place Page 12 of 23 HC-NIC Page 12 of 23 Created On Sat Aug 06 06:03:08 IST 2016 R/SCR.A/2267/2011 JUDGMENT thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
7. The same question was considered by another Bench in Shalini Shyam Shetty and another vs. Rajendra Shankar Patil (2010) 8 SCC 329, and it was held:
"(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Page 14 of 50 HC-NIC Page 14 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or courts inferior to it. Nor can it, in exercise of this power, act as a court of appeal over the orders of the court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court.
In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh and the principles in Waryam Singh have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
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(e) According to the ratio in
Waryam Singh, Page 13 of 23 followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, "within the bounds of their authority".
(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the Page 16 of 50 HC-NIC Page 16 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate Page 14 of 23 HC-NIC Page 14 of 23 Created On Sat Aug 06 06:03:08 IST 2016 R/SCR.A/2267/2011 JUDGMENT case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is Page 17 of 50 HC-NIC Page 17 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
14. In the case of 'PEPSICO INDIA HOLDING (P) LTD. VS. KRISHNA KANT PANDEY', (2015) 4 SCC 270, the Apex Court hold that the High Court while exercising powers under Article 226 of the Page 18 of 50 HC-NIC Page 18 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Constitution is not sitting as an appellate Court. The relevant observations reads thus:
"14. While discussing the power of the High Court under Articles 226 and 227 of the Constitution interfering with the facts recorded by the courts or the tribunal, this Court in the case of Chandavarkar S.R. Rao vs. Ashalata S. Guram, (supra) held as under :-
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court [pic]was not competent to correct errors of facts by examining the evidence and reappreciating.
Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at p. 1301 of the report as follows: (SCC p. 864, para 7) "The special civil application preferred by the appellant was admittedly an application under Article 227 Page 19 of 50 HC-NIC Page 19 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court?
It is well settled by the decision of this Court in Waryam Singh v. Amarnath that the ... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose v. Commr. of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of Page 20 of 50 HC-NIC Page 20 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority."
15. In the case of Birla Corpn. Ltd.. vs. Rajeshwar Mahato and Others, (2001) 10 SCC, the question of validity of termination of services of the respondent by the appellant- Corporation was referred to the Industrial Tribunal. On evidence, the Industrial Tribunal found that the duties of the respondent were mainly managerial or administrative. The Tribunal held that the respondent was not a workman and the reference was therefore not maintainable against the decision of the Tribunal. The Tribunal relying on Section 2(s)(iv) (as amended in West Bengal W.B.) held that as the respondent was drawing salary less than Rs.1600/- per month, he had to be regarded as a workman. The Corporation moved this Court against the order of the High Court. This Court while setting aside the decision of the High Court held as under :-
Page 21 of 50HC-NIC Page 21 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT "4. It was not in dispute that at the time of the termination of services of Respondent 1, he was receiving Rs 1185 per month by way of salary. The Tribunal recorded the evidence as well as took into consideration documentary evidence which was produced by the parties. On the basis of the evidence which was adduced before it, the Tribunal observed that: "The main duties of Shri Rajeshwar Mahato were both supervisory and administrative in nature.
In the instant case, Shri Mahato's functions were mainly of a managerial nature. He had control as well as supervision over the work of the jute mill workers working under him."
11. As we have also noticed hereinabove, the Tribunal had given a categorical finding to the effect that Respondent 1's function was mainly of managerial nature. His duties were both supervisory and administrative and therefore he was regarded as not being a workman. Though the Tribunal did not specifically state so, it is evident that it is because of Section 2(s)(iii) that Respondent 1 was regarded as not being a workman.
12. Neither the Single Judge nor the Division Bench of the Page 22 of 50 HC-NIC Page 22 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT High Court, as we have already noticed, referred to this aspect of the matter. Even assuming that the West Bengal amendment was applicable, that would still not help to hold Respondent 1 as a workman if the finding of the Tribunal with regard to the nature of the duties performed by him, as arrived at by the Tribunal, is not set aside as being frivolous or without any evidence. As long as the finding of the Tribunal stands, namely, that the respondent was an employee mainly in a managerial or administrative capacity, the award of the Tribunal could not have been set aside. As we have already observed the Single Judge or even the Division Bench could have come to the conclusion that the finding so arrived at by the Tribunal was either frivolous or not based on any evidence. But this aspect of the case was completely overlooked by the High Court. The emphasis of the Single Judge as well as the Division [pic]Bench was only with regard to applicability of the amendment of the State of West Bengal to Section 2(s) of the Industrial Disputes Act. In our opinion, therefore, the High Court erred in allowing on this ground the writ petition filed by Respondent 1. The decision of the High Court is set aside and the writ petition filed therein by the respondent Page 23 of 50 HC-NIC Page 23 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT stands dismissed."
16. In the case of Indian Overseas Bank vs. I.O.B. Staff Canteen Workers' Union and Another, (2000) 4 SCC 245, this Court considered a similar question with regard to the power of the High Court under Article 226 against the findings recorded by the Industrial Tribunal. Reversing the decision of the Single Judge and restoring the fact finding decision of the Tribunal this, Court held :-
"17. The learned Single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a tribunal, presided over by a judicial officer. The findings of fact recorded by a fact-finding authority duly [pic]constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ court to warrant those findings, at any Page 24 of 50 HC-NIC Page 24 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can reasonably and possibly be taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned Single Judge and in ordering restoration of the award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned Single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was to find out the satisfaction or otherwise of the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-
finding authority and not embark upon an exercise of reassessing the evidence and arriving at findings of one's own, altogether giving a complete go-by even to the facts specifically found by the Page 25 of 50 HC-NIC Page 25 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Tribunal below."
15. This brings this Court to the award passed by the Tribunal which is impugned in this petition. This Court notices that not only the award gives an elaborate description of the statement of claim and the written statement but also extensively deals with the documentary as well as oral evidences. The Tribunal also threadbare discussed the entire gamut of evidence and arrived at the conclusion that the reference deserves dismissal. The moot question that needed to be addressed by this Court is as to whether there exists any jural relationship of employer and employee and the contract which has been entered into with the Respondent No.2 security agency is sham and bogus making the members of the petitioner employees of the Respondent No.1-Board.
16. The test conducted by the Apex Court in the case of 'NATIONAL ALUMINIUM COMPANY LIMITED AND OTHERS VS. ANANTA KISHORE ROUT AND OTHERS', (2014) 6 SCC 756, has been reiterated by the Apex Court in the case of 'STATE OF PUNJAB AND OTHERS VS. JAGJIT SINGH AND OTHERS', AIR 2016 SC 5176. Certain tests have been applied and there are certain criteria which have been determined by the Apex Court to decide as to whether there exists any jural relationship of employer and employee.
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"21.Union Territory Administration, Chandigarh v. Manju Mathur[15], decided by a two-Judge bench: In the above matter, the respondents were working as Senior Dieticians and Dieticians in the Directorate of Health Services of the Chandigarh Administration. They were posted in the General Hospital, Chandigarh, under the Union Territory Administration of Chandigarh. They were placed in the pay-scale of Rs.1500-2540 and Rs.1350- 2400, respectively. They moved the Chandigarh Administration, seeking the pay-scale extended to their counterparts, employed in the State of Punjab. The posts against which they were claiming equivalence, were those of Dietician (gazetted) and Dietician (non-gazetted) in the Directorate of Research and Medical Education, Punjab. The posts with which they were seeking equivalence, were sanctioned posts in the Rajindera Hospital (Patiala) and the Shri Guru Teg Bahadur Hospital (Amritsar). These posts were in the pay-scale of Rs.2200-4000 and Rs.1500-2640, respectively. After the State Government declined to accept their claim, they approached the High Court of Punjab and Haryana, which accepted their claim. Dissatisfied with the judgment rendered by the High Court, the Union Territory Administration of Chandigarh, approached this Court.
(ii) During the pendency of the proceedings before this Court, a direction was issued to the Union Page 27 of 50 HC-NIC Page 27 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Territory Administration of Chandigarh, to appoint a 'High Level Equivalence Committee', to examine the nature of duties and responsibilities of the post of Senior Dietician working under the Union Territory Administration of Chandigarh, vis-a-vis, Dietician (gazetted) working under the State of Punjab. And also to examine the nature of duties and responsibilities of the post of Dietician, working under the Union Territory Administration of Chandigarh, vis-a-vis, Dietician (non- gazetted) working under the State of Punjab, and submit a report. A report was accordingly submitted to this Court (which is extracted in the above judgment).
(iii) In its report, the 'High Level Equivalence Committee' arrived at the conclusion, that the duties and responsibilities of the posts held by the respondents, and the corresponding reference posts with which they were claiming parity, were not comparable or equivalent. As such, this Court recorded the following observations:-
"9. We have heard the learned Counsel for the parties. We find from the report of the High Level Equivalence Committee extracted above that the Directorate of Research and Medical Education, Punjab, is a teaching institution in which the Dietician has to perform multifarious duties such as teaching the probationary nurses in subjects Page 28 of 50 HC-NIC Page 28 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT of nutrition dietaries, control and management of the kitchen, etc., whereas, the main duties of the Dietician and Senior Dietician in the Government Multi-Specialty Hospital in the Union Territory Chandigarh are only to check the quality of food being provided to the patients and to manage the kitchen." Based on the above determination, the prayer for parity under the principle of 'equal pay for equal work' was declined to the respondents, and accordingly the judgment of the High Court, was set aside.
22. Steel Authority of India Limited v. Dibyendu Bhattacharya[16], decided by a three-Judge bench: The respondent in the above case, was appointed against the post of Speech Therapist/Audiologist, in the Durgapur Steel Plant, in S-6 grade in Medical and Health Services. After serving for a few years, he addressed a representation to the appellant, claiming parity with one B.V. Prabhakar, employed at the Rourkela Steel Plant (a different unit of the same company). The said B.V. Prabhakar was holding the post of E-1 grade in the executive cadre, though designated as Speech Therapist/Audiologist. In his representation, the respondent did not claim parity in pay, but only claimed change of the cadre and upgradation of his post, and accordingly relaxation in eligibility, so as to be entitled to be placed in the pay-scale of posts in E-1 grade.
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(ii) The appellant did not accept the claim raised by the respondent. He accordingly approached the High Court of Calcutta. A division bench of the High Court, accepted his claim for pay parity. It is in the aforesaid background, that the appellant approached this Court, to assail the judgment rendered by the High Court. The issue of pay parity was dealt with by this Court, by recording the following observations:-
"30. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated Page 30 of 50 HC-NIC Page 30 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT by evaluating the affidavits filed by the parties.
31. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The Expert Committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions, etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work." Based on the above consideration, this Court recorded its analysis, on the merits of the controversy, as under:-Page 31 of 50
HC-NIC Page 31 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT "34. Shri B.V. Prabhakar, had been appointed in E-1 Grade, in the Rourkela unit, considering his past services in the Bokaro Steel Plant, another unit of the Company, for about two decades prior to the recruitment of the respondent. As every unit may make appointments taking into consideration the local needs and requirement, such parity claimed by the respondent cannot be held to be tenable. The reliefs sought by the respondent for upgradation of the post and waiving the eligibility criteria had rightly been refused by the appellants and by the learned Single Judge. In such a fact-situation, there was no justification for the Division Bench to allow the writ petition, granting the benefit from the date of initial appointment of the respondent. The respondent has not produced any tangible material to substantiate his claim, thus, he could not discharge the onus of proof to establish that he had made some justifiable claim. The respondent miserably failed to make out a case for pay parity to the post of E-1 Grade in executive cadre. The appeal, thus, deserves to be allowed." It is, therefore apparent, that this Court did not accept the prayer of pay parity, in the above cited case, based on the principle of 'equal pay for equal work'.
23. Hukum Chand Gupta v. Director General, Indian Council of Agricultural Research[17], decided by a two-Judge bench: In the above matter, the appellant was originally appointed as a Laboratory Assistant Page 32 of 50 HC-NIC Page 32 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT in Group D, in the National Dairy Research Institute. He was promoted as a Lower Division Clerk, after he qualified a limited departmental competitive examination. He was further promoted as a Senior Clerk, again after qualifying a limited departmental competitive examination. At this stage, he was placed in the pay-scale of Rs.1200- 2040. He was further promoted to the post of Superintendent in the pay- scale of Rs.1640-2900, yet again, after passing a departmental examination. Eventually, he was promoted as an Assistant Administrative Officer, on the basis of seniority-cum-fitness. The Indian Council of Agricultural Research revised the pay-scales of Assistants, from Rs.1400-2600 to Rs.1640-2900, with effect from 1.1.1986. However, the pay- scale of the post of Superintendent was not revised.
(ii) The appellant submitted a representation seeking revision of his pay- scale on the ground, that in the headquarters of the Indian Council of Agricultural Research, the post of Superintendent is a promotional post, from the post of Assistant (which carried the pay- scale of Rs.1640-2900). He also claimed parity in pay-scale with one J.I.P. Madan. The claim of the appellant was not accepted by the authorities, whereupon, he first approached the Administrative Tribunal and eventually the High Court of Punjab and Haryana, which also did not accept his contention.
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It is, therefore, that he approached this Court.
(iii) While adjudicating upon the above controversy, this Court relied and endorsed the reasons recorded by the Administrative Tribunal in rejecting the claim of the appellant in the following manner:-
"9. By a detailed order, the Tribunal rejected both the claims. It was observed that the post at headquarters cannot be compared with the post at institutional level as both are governed by different sets of service rules. The second prayer with regard to the higher pay scale given to Shri J.I.P. Madan was rejected on the ground that he had been given the benefit of second upgradation in pay since he had earned only one promotion throughout his professional career. Aggrieved by the aforesaid, the appellant filed a writ petition C.W.P. No. 9595 CAT of 2004 before the High Court. The writ petition has also been dismissed by judgment dated 8- 7-2008. This judgment is impugned in the present appeal." This Court, recorded the following additional reasons, for not accepting the claim of the appellant, by observing as under:-
"15. In our opinion, the explanation given by Mrs. Sunita Rao does not leave any room for doubt that the claim made by the appellant is wholly misconceived. There is no comparison between the appellant and Page 34 of 50 HC-NIC Page 34 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Shri J.I.P. Madan. The appellant had duly earned promotion in his cadre from the lowest rank to the higher rank. Having joined in Group D, he retired on the post of AAO. On the other hand, Shri J.I.P. Madan had been working in the same pay scale till his promotion on the post of AAO. Therefore, he was held entitled to the second upgradation after 24 years of service. He had joined as an Assistant by Direct Recruitment and promoted on 24-8-1990 as a Superintendent. After the merger of the post of Assistant with the Superintendent, the earlier promotion of Shri Madan was nullified, as Assistant was no longer a feeder post for the promotion on the post of Superintendent.
Thus, a financial upgradation, in view of ACP Scheme, was granted to him since he had no opportunity for the second promotion." This Court concluded the issue by holding as under:-
"20. We are also not inclined to accept the submission of the appellant that there can be no distinction in the pay scales between the employees working at headquarters and the employees working at the institutional level. It is a matter of record that the employees working at headquarters are governed by a completely different set of rules. Even the hierarchy of the posts and the channels of promotion are different. Also, merely because any two posts at the headquarters and the Page 35 of 50 HC-NIC Page 35 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT institutional level have the same nomenclature, would not necessarily require that the pay scales on the two posts should also be the same. In our opinion, the prescription of two different pay scales would not violate the principle of equal pay for equal work. Such action would not be arbitrary or violate Articles 14, 16 and 39D of the Constitution of India. It is for the employer to categorize the posts and to prescribe the duties of each post. There can not be any straitjacket formula for holding that two posts having the same nomenclature would have to be given the same pay scale. Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. Neither the Central Administrative Tribunal nor a Writ Court would normally venture to substitute its own opinion for the opinions rendered by the experts. The Tribunal or the Writ Court would lack the necessary expertise undertake the complex exercise of equation of posts or the pay scales.
21. In expressing the aforesaid opinion, we are fortified by the observations made by this Court in State of Punjab vs. Surjit Singh, Page 36 of 50 HC-NIC Page 36 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT (2009) 9 SCC 514. In that case, upon review of a large number of judicial precedents relating to the principle of "equal pay for equal work", this Court observed as follows: (SCC pp.
527-28, para 19) "19. ... '19. ... Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation.....
A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application Page 37 of 50 HC-NIC Page 37 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. 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 make a difference. Thus, normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof.'*" (emphasis supplied) In our opinion, the aforesaid observations would be a complete answer to all the submissions made by the appellant." For the above reasons, this Court rejected the claim of the appellant, based on the principle of 'equal pay for equal work'.
24. National Aluminum Company Limited v. Ananta Kishore Rout[18], decided by a two-Judge bench: The appellant in the above matter, i.e., National Aluminum Company Limited (hereinafter referred to as, NALCO) had established two schools. In the Page 38 of 50 HC-NIC Page 38 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT first instance, NALCO itself looked after the management of the said schools. In 1985, it entered into two separate but identical agreements with the Central Chinmoy Mission Trust, Bombay, whereby the management of the schools was entrusted to the above trust. In 1990, a similar agreement was entered into for the management of the above two schools, with the Saraswati Vidya Mandir Society (affiliated to Vidya Bharati Akhila Bharatiya Shiksha Sansthan). Accordingly, with effect from 1990, the said Society commenced to manage the affairs of the employees, of the above two schools. Two writ petitions were filed by the employees of the two schools before the High Court of Orissa at Cuttack, seeking a mandamus, that they be declared as employees of NALCO, and be treated as such, with the consequential prayer, that the employees of the two schools be accorded suitable pay-scales, as were admissible to the employees of NALCO. The High Court accepted the above prayers. It is, therefore, that NALCO approached this Court.
(ii) In adjudicating upon the above matter, this Court recorded its consideration as under:-
"33. Insofar as their service conditions are concerned, as already conceded by even the respondents themselves, their salaries and other perks which they are getting are better than their counter parts in Page 39 of 50 HC-NIC Page 39 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Government schools or aided/ unaided recognised schools in the State of Orissa. In a situation like this even if, for the sake of argument, it is presumed that NALCO is the employer of these employees, they would not be entitled to the pay scales which are given to other employees of NALCO as there cannot be any comparison between the two. The principle of ''equal pay for equal work'' is not attracted at all. Those employees directly employed by NALCO are discharging altogether different kinds of duties. Main activity of NALCO is the manufacture and production of alumina and aluminium for which it has its manufacturing units. The process and method of recruitment of those employees, their eligibility conditions for appointment, nature of job done by those employees etc. is entirely different from the employees of these schools. This aspect is squarely dealt with in the case of SC Chandra vs. State of Jharkhand, (2007) 8 SCC 279, where the plea for parity in employment was rejected thereby refusing to give parity in salary claim by school teachers with class working under Government of Jharkhand and BCCL. The discussion which ensued, while rejecting such a claim, is recapitulated hereunder in the majority opinion authored by A.K. Mathur, J.: (SCC p. 289, paras 20-
21) "20. After going through the order of the Division Bench we are of opinion that the view taken by the Division Bench of the High Court is correct. Firstly, the school is not being managed by BCCL as from Page 40 of 50 HC-NIC Page 40 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT the facts it is more than clear that BCCL was only extending financial assistance from time to time. By that it cannot be saddled with the liability to pay these teachers of the school as being paid to the clerks working with BCCL or in the Government of Jharkhand. It is essentially a school managed by a body independent of the management of BCCL. Therefore, BCCL cannot be saddled with the responsibilities of granting the teachers the salaries equated to that of the clerks working in BCCL.
21. Learned counsel for the appellants have relied on Article 39(d) of the Constitution. Article 39(d) does not mean that all the teachers working in the school should be equated with the clerks in BCCL or the Government of Jharkhand for application of the principle of equal pay for equal work. There should be total identity between both groups i.e. the teachers of the school on the one hand and the clerks in BCCL, and as such the teachers cannot be educated with the clerks of the State Government or of BCCL. The question of application of Article 39(d) of the Constitution has recently been interpreted by this Court in State of Haryana v. Charanjit Singh, (2006) 9 SCC 321, wherein Their Lordships have put the entire controversy to rest and held that the principle, 'equal pay for equal work' must satisfy the test that the incumbents are performing equal and identical work as discharged by employees against whom the equal pay is claimed. Their Page 41 of 50 HC-NIC Page 41 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT Lordships have reviewed all the cases bearing on the subject and after a detailed discussion have finally put the controversy to rest that the persons who claimed the parity should satisfy the court that the conditions are identical and equal and same duties are being discharged by them. Though a number of cases were cited for our consideration but no useful purpose will be served as in Charanjit Singh all these cases have been reviewed by this Court. More so, when we have already held that the appellants are not the employees of BCCL, there is no question seeking any parity of the pay with that of the clerks of BCCL." Based on the above consideration, this Court recorded its conclusion as follows:-
"35. We say at the cost of repetition that there is no parity in the nature of work, mode of appointment, experience, educational qualifications between the NALCO employees and the employees of the two schools. In fact, such a comparison can be made with their counter parts in the Government schools and/or aided or unaided schools. On that parameter, there cannot be any grievance of the staff which is getting better emoluments and enjoying far superior service conditions." It is, therefore apparent, that the principle of 'equal pay for equal work' was held to be not applicable to the employees of the two schools, so as to enable them to claim parity, with Page 42 of 50 HC-NIC Page 42 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT the employees of NALCO.
25. We shall now attempt an analysis of the decisions rendered by this Court, wherein temporary employees (differently designated as work- charge, daily-wage, casual, ad-hoc, contractual, and the like) raised a claim for being extended wages, equal to those being drawn by regular employees, and the parameters determined by this Court, in furtherance of such a claim. Insofar as the present controversy is concerned, the same falls under the present category.
26. Dhirendra Chamoli v. State of U.P.[19], decided by a two-Judge bench: Two Class-IV employees of the Nehru Yuvak Kendra, Dehradun, engaged as casual workers on daily- wage basis, claimed that they were doing the same work as Class-IV employees appointed on regular basis. The reason for denying them the pay-scale extended to regular employees was, that there was no sanctioned post to accommodate the petitioners, and as such, the assertion on behalf of the respondent-employer was, that they could not be extended the benefits permissible to regular employees. Furthermore, their claim was sought to be repudiated on the ground, that the petitioners had taken up their employment with the Nehru Yuvak Kendra knowing fully well, that they would be paid emoluments of casual workers engaged on daily-wage basis, and therefore, they could not claim beyond what they had voluntarily Page 43 of 50 HC-NIC Page 43 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT accepted.
(ii) This Court held, that it was not open to the Government to exploit citizens, specially when India was a welfare state, committed to a socialist pattern of society. The argument raised by the Government was found to be violative of the mandate of equality, enshrined in Article 14 of the Constitution. This Court held that the mandate of Article 14 ensured, that there would be equality before law and equal protection of the law. It was inferred therefrom, that there must be 'equal pay for equal work'.
Having found, that employees engaged by different Nehru Yuvak Kendras in the country were performing similar duties as regular Class-IV employees in its employment, it was held, that they must get the same salary and conditions of service as regular Class-IV employees, and that, it made no difference whether they were appointed on sanctioned posts or not. So long as they were performing the same duties, they must receive the same salary.
27. Surinder Singh v. Engineer-in- Chief, CPWD[20], decided by a two- Judge bench: The petitioners in the instant case were employed by the Central Public Works Department on daily-wage basis. They demanded the same wage as was being paid to permanent employees, doing identical work. Herein, the respondent- employer again contested the claim, by raising the plea that petitioners Page 44 of 50 HC-NIC Page 44 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT could not be employed on regular and permanent basis for want of permanent posts. One of the objections raised to repudiate the claim of the petitioners was, that the doctrine of 'equal pay for equal work' was a mere abstract doctrine and was not capable of being enforced in law.
(ii) The objection raised by the Government was rejected. It was held, that all organs of the State were committed to the directive principles of the State policy. It was pointed out, that Article 39 enshrined the principle of 'equal pay for equal work', and accordingly this Court concluded, that the principle of 'equal pay for equal work' was not an abstract doctrine. It was held to be a vital and vigorous doctrine accepted throughout the world, particularly by all socialist countries. Referring to the decision rendered by this Court in the D.S. Nakara case2, it was held, that the above proposition had been affirmed by a Constitution Bench of this Court. It was held, that the Central Government, the State Governments and likewise, all public sector undertakings, were expected to function like model and enlightened employers and further, the argument that the above principle was merely an abstract doctrine, which could not be enforced through a Court of law, could not be raised either by the State or by State undertakings. The petitions were accordingly allowed, and the Nehru Yuvak Kendras Page 45 of 50 HC-NIC Page 45 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT were directed to pay all daily-rated employees, salaries and allowances as were paid to regular employees, from the date of their engagement.
28. Bhagwan Dass v. State of Haryana[21], decided by a two-Judge bench: The Education Department of the State of Haryana, was pursuing an adult education scheme, sponsored by the Government of India, under the National Adult Education Scheme. The object of the scheme was to provide functional literacy to illiterates, in the age group of 15 to 35, as also, to impart learning through special contract courses, to students in the age group of 6 to 15, comprising of dropouts from schools. The petitioners were appointed as Supervisors. They were paid remuneration at the rate of Rs.5,000/- per month, as fixed salary. Prior to 7.3.1984, they were paid fixed salary and allowance, at the rate of Rs.60/- per month. Thereafter, the fixed salary was enhanced to Rs.150/- per month. The reason for allowing them fixed salary was, that they were required to work, only on part-time basis. The case set up by the State Government was, that the petitioners were not full-time employees; their mode of recruitment was different from Supervisors engaged on regular basis; the nature of functions discharged by them, was not similar to those discharged by Supervisors engaged in the regular cadre; and their appointments were made for a period of six months, because the posts against which they were Page 46 of 50 HC-NIC Page 46 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT appointed, were sanctioned for one year at a time.
(ii) Having examined the controversy, this Court rejected all the above submissions advanced on behalf of the State Government. It was held, that the duties discharged by the petitioners even though for a shorter duration, were not any different from Supervisors, engaged in the regular cadre. Even though recruitment of Supervisors in the regular cadre was made by the Subordinate Selection Board by way of an open selection, whereas the petitioners were selected through a process of consideration which was limited to a cluster of a few villages, it was concluded that, that could not justify the denial to the petitioners, wages which were being paid to Supervisors, working in the regular cadre. It was held, that so long as the petitioners were doing work, which was similar to the work of Supervisors engaged in the regular cadre, they could not be denied parity in their wages. Accordingly it was held, that from the standpoint of the doctrine of 'equal pay for equal work', the petitioners could not be discriminated against, in regard to pay-scales. Having concluded that the petitioners possess the essential qualification for appointment to the post of Supervisor, and further the duties discharged by them were similar to those appointed on regular basis, it was held, that the petitioners could not be denied wages payable to Page 47 of 50 HC-NIC Page 47 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT regular employees. This Court also declined the plea canvassed on behalf of the Government, that they were engaged in a temporary scheme against posts which were sanctioned on year to year basis. On the instant aspect of the matter, it was held, that the same had no bearing to the principle of 'equal pay for equal work'. It was held, that the only relevant consideration was, whether the nature of duties and functions discharged and the work done was similar. While concluding, this Court clarified that in the instant case, it was dealing with temporary employees engaged by the same employer, doing work of the same nature, as was being required of those engaged in the regular cadre, on a regular basis. It was held, that the petitioners, who were engaged on temporary basis as Supervisors, were entitled to be paid on the same basis, and in the same pay-scale, at which those employed in the regular cadre discharging similar duties as Supervisors, were being paid."
17. Thus the tests of control and organization which have been referred to by the Apex Court are as under:
(i) who is the appointing authority;
(ii) who is the paymaster;
(iii) who can dismiss;
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(iv) how long alternative services
lasts;
(v) the extent of control and
supervision;
(vi)the nature of the job, e.g. whether it is professional or skilled work;
(vii) nature of establishment;
(viii) the right to reject.
18. In the opinion of this Court the Tribunal on applying the decision of the Apex Court has categorically examined the issue and rightly arrived at the conclusion rejecting the reference. On independent examination of the material on record also, this Court notices that the conclusion on the part of the Tribunal of the petitioners having produced bogus certificate is based on sound principles of law and the material available on record. Adequate material appears on record to hold that no jural relationship of the employer and employee exists. The stand taken by the employer all throughout on the strength of the oral as well as documentary evidence, deserves to be sustained. No interference is necessary. This petition fails and is DISMISSED. Rule is discharged.
Page 49 of 50 HC-NIC Page 49 of 50 Created On Sun Aug 13 21:03:12 IST 2017 C/SCA/1807/2005 JUDGMENT (MS SONIA GOKANI, J.) UMESH Page 50 of 50 HC-NIC Page 50 of 50 Created On Sun Aug 13 21:03:12 IST 2017