Delhi High Court
Municipal Corporation Of Delhi vs Ganesh Razak & Anr. on 26 November, 1993
Equivalent citations: 52(1993)DLT594, 1994(28)DRJ30, [1994(68)FLR997], ILR1994DELHI21, 1994LABLC733, 1994RLR234, 1994(1)SLJ240(DELHI)
Author: Arun Kumar
Bench: Arun Kumar
JUDGMENT Sunanda Bhandare, J.
1. This bunch of writ petitions filed by the Municipal Corporation of Delhi raises a common question of law. The respondent-workmen moved an application under Sec. 33-C(2) of the Industrial Disputes Act (hereinafter referred to as the Act) claiming arrears of wages at the same rate paid to the regular employees working in the same category on the principle of Equal Pay for Equal Work. The petitioner challenges the maintainability of this claim in proceedings under Sec. 33-C(2) of the Act.
2. Learned counsel for the parties agreed that the jurisdiction of the Labour Court in proceedings under Section 33-C(2) of the Industrial Disputes Act is limited. It is a proceeding in the nature of execution and the workman is entitled to apply provided he is entitled to a benefit whether monetary or non-monetary which is capable of being computed in terms of money.
3. Learned counsel for the petitioner submitted that the respondents who are daily rated/casual workers though may be doing the same type of work as the regular employees, their nature of appointment being different were not entitled to equal pay as the regular employees and the claim being disputed the Labour Court erred in granting equal pay to the daily rated/casual workers in proceedings under Sec. 33-C(2) of the Act.
4. The Labour Court in the award has observed as follow :
"As regards the nature of work and working hours, the Corporation has not traversed the assertion of the applicant. Thus, it is an undisputed fact that the casual worker does the same work as his regularly appointed counterpart and the working hours for the two are also the same".
Learned counsel for the petitioner submitted that though they may be doing the same type of work the nature and responsibility of daily rated/casual workers is much less compared to those who are regularly appointed and, therefore, the nature of their appointment puts them in a different category and they are not entitled to get the same remuneration and emoluments as their regularly appointed counterparts. Learned counsel submitted that Equal Pay for Equal Work may be granted only to the daily rated/casual workers in a writ petition or in a reference under Sec. 10 of the Act. It was further submitted by the learned counsel for the petitioner that in any event the Labour Court could not have granted the relief prayed for by the workmen w. e. f. 23rd November, 1981 simply because the Supreme Court in Delhi Municipal Karmachari Ekta Union v. P. L. Singh & Ors. AIR 1988 I CLR 985 had awarded Equal Pay for Equal Work to employees of the Corporation from the date. He submitted that the Supreme Court in Delhi Municipal Karmachari Ekta Union's case (supra) did not grant relief from the date of appointment but granted the relief from the date of reference. Thus, if at all the Labour Court could have granted the relief only from the date the application was filed by the respondent under Sec. 33-C(2) of the Act or prospectively from the date of the Award. Learned Counsel further submitted that the Labour Court erred in granting not only wages but also other benefits and allowances like DA, HRA, CCA etc.
5. On the other hand, it was submitted by the learned counsel for the respondent-workman that simply because the manner of appointment of daily rated/casual workers is different, Equal Pay for Equal Work cannot be denied to the workmen if the same type of work is performed as the regular employees in the same category. Learned counsel submitted that the Supreme Court has held that the daily rated/casual workers are also entitled to the same wages as regular employees on the principle of Equal Pay for Equal Work and thus their entitlement cannot be disputed. Learned Counsel submitted that in fact the petitioner itself has applied this principle in respect of these very workmen and granted them same wages as regular employees from a later date. This itself proves that it was accepted by the petitioner that the daily rated/casual workers and the regular employees were doing the same type of work. Learned counsel for the respondent further submitted that the Labour Court ought to have given relief to the workmen from the date of the appointment as daily rated/casual workers and the artificial fixation of the date is not correct.
6. The principle of Equal Pay for Equal Work is not well established. The doctrine of Equal Pay for Equal Work envisaged in Article 39(d) of the Constitution of India is exalted to the position of fundamental right by reading it Along with Article 14 of the Constitution. Thus, the right of equal pay of the daily rated/casual employees as their regular counterparts doing the same type of work is their constitutional right.
7. Though a large number of cases were cited by the learned counsel for the parties, for the sake of brevity we will refer to a few to emphasise the right of daily rated workers to get the same wages and emoluments as the regularly appointed counterparts doing the same type of work.
8. In Randhir Singh v. Union of India & Ors. the Supreme Court has observed :
"It is true that the principle of 'Equal Pay for Equal Work' is not expressly declared by our constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims 'Equal Pay for Equal Work ' for both men and women as a Directive Principle of State Policy.'Equal Pay for Equal Work for both men and women ' means Equal Pay for Equal Work for everyone and as between the sexes. Directive Principles, as have been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any officer under the State. These equalities clauses of the Constitution must mean something to every one. To the vast majority of the people equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance is equal work means equal pay".
9. In Dhirender Chamoli & Anr. v. State of U. P. (1986) 1 SCC the Supreme Court has observed :
"It must be remembered that in this country were there is so much unemployment, the choice for the majority of people is to starve or to take employment whatever exploitative terms are offered by the employer. The fact that these employees accepted employment with full knowledge that they will be paid only daily wages and they will not get the same salary and conditions of service as other Clause IV employees, cannot provide to avoid the mandate of equality enshrined in Article 14 of the Constitution. This Article declares that there shall be equality before law and equal protection of the law and implicit in it is the further principle that there must be equal pay for work of equal value. These employees who are in the service of the different Nehru Yuvak Kendras in the country and who are admittedly performing the same duties as Class IV employees, must therefore, get the same salary and conditions of service as Clause IV employees. It makes n o differences whether they are appointed in sanctioned posts or not. So long as they are performing the same duties, they much receive the same salary and conditions of service as Clause IV employees".
10. In M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa & Anr. the Supreme Court held that no exemption from the Equal Remuneration Act, 1976 can be claimed on the ground of financial incapability of the management and granted female workers equal remuneration as their male counterparts. The Supreme Court in Federation of All India Customs and Central Excise Stenographers (Recognised) & Ors. v. Union of India & Ors. 1988 II CLR 109 observed :
"Equal Pay for Equal Work is a fundamental rights. But 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 make a difference. One cannot deny that often the difference is a matter of degree and that the is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is concomitant of Article 14 of the Constitution. But is follows naturally that equal pay for unequal work will be a negation of that right".
11. The Supreme Court in Delhi Municipal Karmachari Ekta Union's case granted Equal Pay for Equal Work to daily rate workers from the date of the reference under Section 10 of the Act and observed :
"After hearing the learned counsel for the parties we find that the Delhi Municipal Corporation has practically to tenable defense to the claim made by the workmen. There is no justification for the Corporation extracting the same amount of work from the workmen concerned on payment of daily wages at rates lower than the minimum salary which is being paid to other workmen who have been recruited regularly even though the workmen involved in this case have been working for a number of years. Nearly six years have elapsed from the date of the reference but without any change in the attitude of the Corporation.
Following the decision of this Court in Daily Rated Casual Labour employed under P. & T. Department v. Union of India, 1988 I CLR 45 and our decision in U. P. Income-tax Department Contingent Paid Staff Welfare Association v. Union of India, (Writ Petition No. 1670 of 1986) decided on December 4, 1987 () we direct the respondent Delhi Municipal Corporation to pay the Vaccinators/Immunizers involved in this appeal wages at the rate equivalent to the minimum pay in the pay-scale of regularly employed Vaccinators/Immunizers without any increments with effect from the date of the reference i.e., 23.11.1981. The workmen concerned are also entitled to the corresponding dearness allowance. We also direct the Delhi Municipal Corporation to prepare a scheme on a rational basis of absorbing in this case as regular Vaccinators/Immunizers. This order is made in substitution of the award passed by the Tribunal. The arrears of salary and allowance payable under this order shall be paid within four months. The scheme for absorption shall be prepared within six months and the process of absorption shall be completed within eight months from today. The appeal is accordingly allowed with no order as to costs."
12. In Dharwad Distt. PWD Literate Daily Wage Employees Association & Ors. v. State of Karnataka & Ors. 1990 I CLR 534 the Supreme Court reiterated that Equal Pay for Equal Work and providing security for service by regularising casual employment within a reasonable period has been consistently accepted by the Supreme Court as a constitutional goal to our socialistic polity and daily rated casual workers must be regularised with parity in scales. The Supreme Court framed a scheme taking into consideration the availability of State resources so that daily rated casual workers could be regularised within a time bound period.
13. In Grih Kalyan Kendra Workers' Union v. Union of India & Ors. 1991 I CLR 844 the Supreme Court held that a Junior Clerk performing the work of Chief Clerk is entitled to the salary of Chief Clerk and observed :
"Equal Pay for Equal Work is not expressly declared by the Constitution as fundamental right but in view of the Directive Principles of the State Policy as contained in Article 39(d) of the Constitution "Equal Pay for Equal Work" has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution. Equal Pay for Equal Work and providing security for service by regularising casual employment within a reasonable period has been accepted by this Court as constitutional goal to our socialistic pattern. It has ceased to be a judge made law as it is the part of the constitutional philosophy which ensures a welfare socialistic pattern of a State providing equal opportunity to all and Equal Pay for Equal Work for similarly placed employees of the State. This Court has zealously enforced the fundamental right of Equal Pay for Equal Work in effectuating the constitutional goal of equality and social justice in a number of decision. See : Randhir Singh v. Union of India, Daily Rated Casual Labour Employed under P & T Department v. Union of India, Dhirendra Chamoli v. State of U. P., Surinder Singh v. Engineer-in-Chief CPWD, R. D. Gupta v. Lt. Governor, Delhi Administration, Bhagwan Dass v. State of Haryana, Jaipal v. State of Haryana, Dharwad District P. W. D. Literate Daily Wage Employees Association v. State of Karnataka. Therefore, the principle of Equal Pay for Equal Work even in an establishment which is an instrumentality of a State is applicable to its full vigour".
14. This Court in Indian Airlines v. The Presiding Officer, Labour Court & Ors. has held that the Labour Court can inquire into the existence of the right of the workman to claim a benefit in terms of money but while conducting this inquiry which is incidental in nature, the Labour Court cannot arrogate to itself the functions of the Industrial Tribunal and entertain a claim which is based on a right which is the subject matter of an industrial dispute by way of a reference under Section 10 of the Act.
15. Again this Court in The General Manager, Ajudhia Textile Mills & Ors. v. The Presiding Officer, Labour Court & Anr. 1990 I CLR 202 reiterated :
"The Labour Court has gone through the entire evidence produced by the Management and the workman and has come to the conclusion that the respondent was, in fact, doing the work of a Chief Clerk in the Excise Department. I have been taken through the evidence adduced before the Labour Court and I am satisfied that the conclusion and findings, as arrived by the Labour Court in this regard, are correct. The Supreme Court has now, in several decisions, laid down that the principle of Equal Pay for Equal Work is applicable even where the post or designation is not the same. What is important is whether there is similarly of job or work. The Labour Court has referred to the decision of the Supreme Court in Dhirendra Chamoli v. State of U. P. . In the recent decision of the Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corp. (Writ Petition No. 100 of 1988, decided on December 15, 1989), the Supreme Court has even gone to the extent that even if the person is not qualified to hold a particular post or is not appointed according to the rules, he is still entitled to the salary of a person regularly appointed on the principle of Equal Pay for Equal Work".
16. This being the legal position it is difficult to accept the contention of the learned counsel for the petitioner that the workmen should have first sought a reference under Section 10 of the Act or ought to have filed a writ petition under Article 226 or Article 32 of the Constitution of India to get their right established and only thereafter if the payment was not made they could move an application under Section 33-C(2) of the Act. We find no reason why the same relief claimed in proceedings under Section 33-C(2) of the Act cannot be granted. In the light of the law laid down by the Supreme Court the right of the daily rated casual employees to claim equal pay as their regularly employed counterparts stands well established as long as it is accepted that they do the same type of work. As observed by the Supreme Court the right to Equal Pay for Equal Work is an existing right guaranteed by the Constitution and once it is accepted that it is an existing right the Labour Court has the jurisdiction to grant the relief claimed by the workmen.
17. The Supreme Court as early as in 1964 in The Central Bank of India Ltd. v. P. S. Rajagopalan etc., has observed that the scope of section 33-C(2) is wider than Section 33-C(1) and observed :
"The legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted S. 33-A in the Act in 1950 and added S. 33-C in 1956. These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to S. 10(1) of the Act or without having to depend upon their Union to espouse their cause. Therefore, in construing S. 33-C we have to bear in mind two relevant considerations. The construction should not be so broad as to bring within the scope of S. 33-C cases which would fall under S. 10(1). Where industrial disputes arise between employees acting collectively and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under S. 10(1). These disputes cannot be brought within the purview of S. 33-C. Similarly, having regard to the fact that the policy of the Legislature in enacting S. 33-C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen. In other words, though in determining the scope of S. 33-C we must take care not to exclude cases which legitimately fall within its purview. We must also bear in mind that cases which fall under S. 10(1) of the Act for instance, cannot be brought within the scope of S. 33-C. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money, the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money, but if the said right is dispute, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answer this point in favor of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub-sec. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The clause "where any workman is entitled to receive from the employer any benefit" does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit". The appellant's construction would necessarily introduce the addition of the words "admittedly or admitted to be" in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-sec. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33-C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). As Maxwell has observed "where an Act confers a jurisdiction it impliedly also grants power of doing all such acts, or employing such means, as re essentially necessary to its execution". We must accordingly, hold that S. 33-C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers".
Similarly in R. B. Bansilal Abirchand Mills Co. Pvt. Ltd. v. The Labour Court, Nagpur & Ors. Supreme Court observed :
"In substance the point urged by the appellants was that if a claim is made on the basis of a lay off and the employer contends that there was no lay-off but closure, it is open to a Labour Court to entertain an application under S. 33-C(2). The more so it was stated, when the dispute was not between solitary workman on the one hand and the employer on the other but a whole body of workmen ranged against their employer who was faced with numerous applications before the Labour Court for computation of benefit in terms of money. As has been said already, the Labour Court must go into the matter and come to a decision as to whether there was really a closure or a lay-off. If it took the view that there was a lay-off without any closure of the business it would be acting with in its jurisdiction. If it awarded compensation in terms of the provisions of Chapter V-A. In our opinion the High Court's conclusion that :
"In fact the business of this Company was continuing. They in fact continued to employ several employees. Their notices say that some portions of the mills would continue to work" was unexceptionable. The notices which we have referred to can only lead to the above conclusion. The Labour Court's jurisdiction could not be ousted by a mere plea denying the workman's claim to the computation of the benefit in terms of money; the Labour Court had to go into the question and determine whether on the facts, it had jurisdiction to make the computation. It could not however give itself jurisdiction by a wrong decision on the jurisdictional plea".
18. The Supreme Court in Central Inland Water Transport Corporation Ltd. v. The Workmen & Anr. held that the benefit which is sought to be computed must be an existing right and observed :
"It is now well settled that a proceeding under Section 33-C(2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workman from his employer, or if the workman is entitled to any benefit which is capable of being computed in terms of money, the Labour Court proceedings to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit in view of its being previously adjudged, or otherwise, duly provided for. In Chief Mining Engineer East India Coal Co. Ltd. v. Rameswar, it was reiterated that proceedings under Section 33-C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by workmen is in such cases in the position of an executing Court. It was also reiterated that the right to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer".
19. In Central Bank of India & Ors. v. Siri Kumar Shaw, the Supreme Court held that the Labour Court had jurisdiction to interpret the terms of the bipartite agreement and grant such allowance to the workman as he was discharging additional duties and functions requiring greater skill or responsibilities over and above the routine duties and functions of the workman in same cadre and the fact that he was not a Special Assistant did not make any difference.
20. A Division Bench of this Court in The Union Bank of India, Delhi & Anr. v. S. S. Dhaliwal & Anr. 1980 LIC 26, held that the computation claimed would involve deciding whether the right claimed exists or does not exist or should be conferred. If it is the latter the Labour Court must withhold its hand. As such determination can only be made in proceedings under Section 10(1) of the Act. Thus, we find no force in the contention of the learned counsel for the petitioner that the right of the workmen being disputed the Labour court could not have granted relief of equal pay in proceedings under Section 33-C(2) of the Act.
21. We are also not impressed with the argument put forward by the learned counsel for the petitioner that the nature of appointment of the daily rated workmen being different they are not entitled to equal pay as their regular counterparts. In Dhirendra Chamoli's case (Supra) the Supreme Court has observed that as long as it is accepted that the daily rated workers are performing the same duties as their regular counterparts in the same grade it makes no difference whether they are appointed in sanctioned posts or not. Whether the appointment is for a temporary period or that the same is temporary becomes irrelevant once it is shown that the nature of duties and functions discharged and work done is similar and doctrine of Equal Pay for Equal Work is attracted. In any event all these workmen are in unskilled category. They only require physical strength and capacity to work. Thus, the status of these casual employees is immaterial so long as they perform the same duties as their regular counter-parts. In the present case, most of the workmen before us have worked as daily rated casual workers for more than 12 to 15 years and the Corporation itself has given them equal pay as their regular counter-parts from a later date. It is, therefore, not open to the petitioner to now contend that the nature of appointment of the respondent being different they are not entitled to equal pay as their regular counter-parts.
22. The contention of the learned counsel for the petitioner that the Labour Court ought to have granted relief either from the date of Award or from the date of the application made by the workman under Section 33-C(2) of the Act is also without merit. Section 33-C(2) of the Act comes into play when any money or any benefit which is due from an employer. Thus, it may not be a claim for the future but also for the past. If Equal Pay for Equal Work is a guaranteed right to an employee then he must get it from the date he was appointed. To say that he could claim it from the date he applied for such payment or from the date of the award or the judgment would mean that the employer would have the right to exploit a workman and get services from him by paying Lesser amount till the workman becomes conscious of his right. No doubt, the Supreme Court in Delhi Municipal Karmachari Ekta Union's case, (Supra) granted relief to the daily rated casual workers from the date of the reference and in the case of Dharwad P. W. D. Employees Association (Supra) framed a Scheme taking into consideration availability of State resources. However, in the present case, the petitioner has not placed on record any material to show what would be the burden if the relief is granted, how many workmen will get the benefit or that the petitioner's resources are so limited that in case they are made to pay the same remuneration to the respondent-workmen as regular employees from the date these daily rated workers were appointed, the burden will be unbearable. In the cases before the Supreme Court the workmen had asked for regularisation of service. In the present case, the workmen have not asked for regularisation. In fact, we are informed that many have already been regularised. Once the claim is accepted it has to be granted from the date the workmen became entitled to it. We are of the view that the respondent-workmen must get the equal remuneration as their regular counter-parts from the date of their appointment.
23. We are also not impressed with the contention of the learned counsel for the petitioner that the Labour Court could not have granted other benefits and allowances like DA etc., to the workmen. Remuneration means the basic wage or salary and any additional emolument whatsoever payable either in case or in kind. The Supreme Court itself in Dhirendra Chamoli's case (Supra) and in Surinder Singh v. Engineer-in-chief, CPWD, has granted not only salary to the daily rated casual workers equal to their regular counter-parts but, also the allowances. In Dhirendra Chamoli's case the Supreme Court observed :
"The salary and allowances of Class IV employees shall be given to these persons employed in Nehru Yuvak Kendra with effect from the date when they were respectively employed".
In Surinder Singh's case (supra) the Supreme Court has observed :
"We allow both the writ petitions and direct the respondent as in Nehru Yuvak Kendra's case to pay to the petitioners and all other daily rated employees the same salary and allowances as are paid to regular and permanent employees with effect from the date they were respectively employed".
24. In the circumstances, the writ petitions are dismissed with costs. Counsel's fee Rs. 5,000/-. The petitioner-Corporation will implement the order of the Labour Court forthwith.