Central Administrative Tribunal - Mumbai
Vilas Raghunath Pawar & 8 Ors vs M/O Finance on 1 July, 2022
1 OA Nos.701/2017 & 145/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION Nos.701/2017 & 145/2019
Dated this Friday the 1st of July, 2022
CORAM: Harvinder Kaur Oberoi, Member (J)
OA No.701/2017
1. Vilas Pawar S/o Shri Raghunath Pawar
Aged 41 years,
R/o Sr. No.20/1 Vijay Nagar Colony No.9,
Dighi Gaon, Pune City, Didi Camp,
Dist - Pune - 411 015
2. Chandrakant Borade S/o. Shri Haridas Borade
Aged 40 years
R/o. Karmveer Krida Mandal Nehru Chowk
Daund, Dist - Pune - 413 801.
3. Shri Santosh Dhide S/o Shri Ashok Dhide
Aged 40 years,
R/o 59, Navi Peth, Pune - 411 030.
4. Laxman Yerapale S/o Vitthal Yerapale
Aged 41 years,
Add C/o Balasao Dasrath Kadam,
Near Samaj Mandir, Serve No.195,
Kadam Chawl, Malwadi, Hadapsar,
Pune City, Pin - 411 028.
5. Kishore Dere S/o chandrakant Dere
Aged 52 years,
R/o 417, Kasba Peth, Phadke Haud,
Zambre Chavdi
Taluka-Haveli, Dist-Pune,
Pin - 411 011.
6. Shrikrishna Shirsat S/o Shri Bhagwan Shirsat
Aged 39 years,
R/o Sr. No.110, Ram Tekadi
Hadapsar, Dist-Pune,
Pin - 411 013.
7. Sopan Chivhe S/o Shri Sadhu Chivhe
Aged 32 years
R/o Narayan Peth, Post Bhivadi
Taluka-Purandhar, Dist-Pune,
Pune - 412 301.
2 OA Nos.701/2017 & 145/2019
8. Pramod Pol S/o Shri Waman Pol
Aged 45 years,
R/o 13, Tadiwala Road,
Behind Sajnabai Bhandari Vidhyalaya
Panmala, Pune - 411 001.
9. Jaipal Chalagala, Aged 32 years,
S/o Shri Devayya G. Chalagala
R/o Sr. No.71 Shrinath Nagar,
Colony No.2, B.T. Kawade Road,
Ghorpadi Gaon, Dist. Pune,
Pin - 411 001. ... Applicants
( By Advocate Shri Rajeev Kumar
VERSUS
1. Union of India through
Thro, Revenue Secretary,
Ministry of Finance,
North Block, New Delhi - 1.
2. The Chairman, CBDT, North Block,
Ministry of Finance,
New Delhi - 1.
3. The Principal Chief Commissioner of Income
Tax, Pune Region, Aayakar Bhawan,
12, Sadhu Vasawani Road,
Pune - 411 001.
4. Commissioner of Income Tax (Judicial)
Aayakar Bhawan, 12, Sadhu Vaswani Road,
Pune - 411 001. ... Respondents
(By Advocate Shri R.R. Shetty)
OA No.145/2019
1. Somnath Narayan Kamble
Aged 42,
Address: Type-II, Building No.05
Room No.03, Vishwas Nagar,
Labour Colony, Aurangabad - 431 001.
2. Parshuram Bhaurao More
Aged 42
3 OA Nos.701/2017 & 145/2019
Address: H.No.4-10-02, Opp Dwarkadas
Patel Wada, Near Nath Mandir,
Aurangpura, Aurangabad - 431 001.
3. Suresh Bhausaheb Jawale
Aged 44
Address Near Gram Panchayat Office,
Waluj, taluq - Gangapur
Distt-Aurangabad Pin - 431 133.
4. Shaikh Mujahid Moin,
Aged : 35 years,
Address:Plot No.5, Near Bilal Masjid,
Muzaffar Nagar, N-13, HUDCO
Aurangabad - 431 003.
5. Syed Sajed Maheboob
Aged : 34
Address : Noorjehaa Manzil,
Rajiv Nagar Dhanora Road,
Near Old Water Tank Beed,
Distt;Beed, Pin - 431 122
6. Kamlesh Rajendra Mudiraj
Aged : 34 Years,
Add : H.No.4/10/5 Nr. Shiraj Hotel
Jinsi, Aurangabad Pin - 431 001.
7. Ambadas Bhanudas Padul
Aged 37 years
Add : Post Pimpal Kuntha,
Taluqa Ladsawangi.
Distt Aurangabad Pin - 431 007.
8. Chandrashekhar Kishanrao Thorat
Aged 38 years,
Add : H.No.1-5-6-120
Pradyanagar, Laxmi Colony
Cantonment, Aurangabad - 431 002.
9. Manoj Prabhakar Kathar
Aged : 45 Years,
Address : H>No.4-2-22,
Anguribagh, Babrakawada
Aurangabad - Pin 431 001.
4 OA Nos.701/2017 & 145/2019
10. Mrs. Pritee Laxmikant Kate
Aged : 39 Years
Address : P.No.12, Kapila Housing Society,
Nr. Ramleela Maidan
N-7 CIDCO, Aurangabad - 431 003.
11. Girish Ganpatrao Pandit
Aged 33 Years
Add : C/o Girish Provision Bapunagar,
Nr Buddha Vihar, Sunday Market Rd.
Khokadpura, Aurangabad - 431 001.
12. Mrs. Shilpa Vilas Muley
Aged 45 Years
Add : R.H. No.81, Shantivan, Hariram Nagar,
Beed Bypass, Satara Parisar,
Opp. Surya Pawns, Aurangabad - 431 009.
13. Pravin Devidas Mate
Aged 34 Years,
Add : Pratiksha Niwas Plot No.25
Santoshi Mata Nagar, Near Jadhav Kirana
Shop, Mukundwadi, CIDCO, N-2
Aurangabad - 431 006.
14. Mohmad Ashfaq
Aged - 37
Add: H.No.57, Dilrus Colony,
Aurangabad Pin - 431 001.
15. Santram Eknath Nikam
Aged : 40 Years,
Add : Sakegaon, Post - Pokhari
Tq. Vaijapur, Dist-Aurangabad
Pin - 431 115. ... Applicants
( By Advocate Shri Rajeev Kumar )
VERSUS
1. Union of India through
Thro, Revenue Secretary,
Ministry of Finance,
North Block, New Delhi - 1.
5 OA Nos.701/2017 & 145/2019
2. The Chairman, CBDT, North Block,
Ministry of Finance,
New Delhi - 1.
3. The Principal Chief Commissioner of Income
Tax, Pune Region, Aayakar Bhawan,
12, Sadhu Vasawani Road,
Pune - 411 001.
4. Commissioner of Income Tax
Kendriya Rajaswa Bhawan,
Gadkari Chowk, Old Agra Road,
Nashik - 422 002.
5. Principal Commissioner of Income Tax 1
Aayakar Bhawan
Near Holy Cross English High School,
Aurangabad - 431 002.
6. Principal Commissioner of Income Tax 2
Aayakar Bhawan,
Near Holy Cross English High School,
Aurnagbad - 431 002. ... Respondents
(By Advocate Shri R.R. Shetty)
ORDER
The applicants in these two Original Applications have approached this Tribunal with similar prayers. Since the facts of the case are similar and common issue is involved, they are being considered together under a common order with the consent of learned counsel for the parties.
2. The applicants in OA No.701/2017 have sought for the following reliefs:-
"8(A) That respondents be directed to consider to regularize the services of the applicants for all intents and purposes.6 OA Nos.701/2017 & 145/2019
(B) And restrain the respondents from resorting to outsourcing the work entrusted to being performed by the applicants, involving multi tasking duties through independent contractors at Par with Regular Group 'D' now Group 'C'.
(C) That respondents be directed to release the payment of wages and arrears of the payment of 1/30th of the pay in the relevant minimum Scale PB-1 of Gr D(now called Gr C) w.e.f. 01.01.2006 and with corresponding scale after 7th pay commission in terms of DOP&T OM dated 07.06.1988 and Para 3.5 of Instructions of CBDT vide F.No.30014/41/2015 V&L dated 16th Oct, 2015.
(D) Thatapplicants be held entitled to all consequential benefits, in the interest of justice. That the applicants be held entitled for payment of interest @18% on such delayed release of payments of salary and arrears till the date of payment.
(E) That this Hon'ble Tribunal may also pass/grant any other order/relief in favour of the applicants which it may deem fit in the light of the facts and circumstances of the case and in the interest of justice.
(F) That the cost of the application may be allowed in favour of the applicants.
(G) That filing of Joint Original Application may be allowed in the interest of justice.
3. The applicants in OA No.145/2019 have sought for the following reliefs:-
"(A) That respondents be directed to consider to regularize the services of the applicants for all intents and purposes. Reliance is placed upon judgment in OA No.2045 of 2014 of this Hon'ble Tribunal (Division Bench), Bombay (at Nagpur Camp Bench) on 14th Nov, 2018.
(B) That respondents be directed to release the payment of wages and arrears of the 7 OA Nos.701/2017 & 145/2019 payment of 1/30th of the pay in the relevant minimum Scale PB-1 of Gr D(now called Gr C) w.e.f. 01.01.2006 and with corresponding scale after 7th pay commission in terms of DOP&T OM dated 07.06.1988 and Para 3.5 of Instructions of CBDT vide F.No.30014/41/2015 V&L dated 16th Oct, 2015.
(C) and to direct the respondents to continue to pay on daily wage basis till regularisation of applicants is effected instead of outsourcing the work entrusted to being performed by the applicants, involving multi tasking duties through independent contractors which is also in consonance with department's own OM dated 10th Dec, 2018.
(Reliance is placed upon Hon'ble Supreme Court in case of Union of India Vs. Mahendra Singh which has dismissed the SLP of Union of India (Special leave to Appeal (C)... CC No.
(s)2587/2016 (Arising out of impugned final judgment and order dated 19/03/2015 in DBCWP No.5530/2013 passed by the High Court of Rajasthan at Jodhpur) (D) Declare that the sudden decision to outsource jobs on contract basis which were performed by "we daily wagers on a continuous basis for a substantial period of time", by respondents at Pune and Nasik is against the instruction dated 10th Dec, 2008 issued by department of revenue and is arbitrary and illegal. Reliance is placed upon Hon'ble Supreme Court in case of Union of India Vs. Jeevan Singh and others Petition
(s) for Special Leave to Appeal (C)..... of 2016 (CC No.12884/2016) is dismissed and affirmed the Hon'bel High Court of Jodhpur (Arising out of impugned final judgment and order dated 19/03/2015 in DBCWP No.1924/2011 passed by the High Court of Rajasthan at Jodhpur.) (E)That applicants be held entitled to all consequential benefits, in the interest of justice. That the applicants be held entitled for payment of interest @18% on such delayed release of payments of salary and arrears till the date of payment.
(F) That this Hon'ble Tribunal may kindly consider to examine the initiation action for Contempts of Court against respondents as 8 OA Nos.701/2017 & 145/2019 Except respondent No.5, none of the respondents 1 to 6 have complied with the directions issued by this Hon'ble Tribunal in OA No.526 of 2018.
(G)That this Hon'ble Tribunal may also pass/grant any other order/relief in favour of the applicants which it may deem fit in the light of the facts and circumstances of the case and in the interest of justice. (H) That the cost of the application may be allowed in favour of the applicants. (I) That filing of Joint Original Application may be allowed in the interest of justice.
4. At the outset, learned counsel for the applicants submitted before the Court that he is not pressing the prayer clause 8(A) for regularization, in both these OAs.
5. The facts, as narrated in the OAs, are as follows:-
5.1 The applicants are daily wage employees/contract labourer in the office of Principal Chief Commissioner of Income Tax, Pune as daily wagers/contract Labour for more than ten years.
Some of the applicants have been in the service of the respondents as daily wage labour since 01.12.1997 getting minimum wages. The applicants submit that the respondents continued to employ them and have changed their status from that of a daily wage labour to contract labour w.e.f 01.03.2012. The respondents have resorted to making appointments through labour contract/outsourcing despite the fact there is a 9 OA Nos.701/2017 & 145/2019 regular need/requirement of chowkidars, sweeper, farash and waterman etc. The applicants, in the meantime, have become overage and cannot be regularly appointed and, therefore, it is unfair on the part of respondents to shift their services under the contractor where they are forced to suffer exploitation at the hands of the contractor. Thus, they have filed these OAs to restrain the respondents from outsourcing and to pay them the equal pay for equal work, i.e. 1/30th of the minimum pay scale in terms of the DOP&T OM dated 07.06.1988. 5.2 The applicants have submitted that they being Daily wagers have not been paid wages as required by the DOP&T OM dated 07.06.1988 (Annexure A-5), further that they are performing duties as Group D employee (now Gr C after 6 th Pay Commission) are required to perform i.e. called Multi Tasking Staff duties of Peon, Farash and Sweeper and the nature of their duties include Multi Tasking work, Physical Maintenance of records of the office, General cleanliness and upkeep of the office, carrying of file and other papers within the building, photocopying, sending of Fax, Bell attendance, watchmen duties, opening and closing of rooms, dusting of furniture, cleaning of buildings, fixture and any other work assigned by the superior authority. The applicants submit that they have made 10 OA Nos.701/2017 & 145/2019 representations dated 09.02.2016 and dated 19.07.2017 for implementation of payment of wages @ 1/30th of minimum scale of pay to the contract daily wage employees as per DoP&T vide OM dated 07.06.1988. It is submitted that the said DoP&T OM speaks about the nature of work entrusted to causal workers and that where the nature of their work is same as that of regular employees, then the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the scale of relevant pay scale. This OM does not differentiate with casual labour with temporary status or casual labour without temporary status. 5.3 The applicants submit that similarly placed persons filed OA in various Tribunals over the country. Those benches of CAT which have dealt the issues are Principal Bench, Chandigarh Bench, Ranchi Bench, Jodhpur Bench etc. Judgments have been delivered directing the respondents to implement the DoP&T OM dated 07.06.1988 and it has been implemented also by the respondents.
6. The applicants have thus relied upon the following judgments;-
(i) Surinder Singh Vs. Engineer-in-Chief, 1986 AIR (SC) 584
(ii) Union of India & Ors. Vs. Jeevan Singh Gehlot & Ors, SLP No...CC No.12884/2016 decided on 19.07.2016
(iii) State of Punjab & Ors. Vs. Jagjit Singh & Ors., (2017) 1 SCC (L&S) 1 11 OA Nos.701/2017 & 145/2019
7. The respondents have filed their reply and have stated therein that the applicants have been hired through contractors as can be seen from the agreement entered into by the applicants with the contractor and the remuneration is being paid to the applicants through the contractor on various dates. The applicants are not entitled to grant of temporary status, payment of wages of 1/30th of the pay in the relevant minimum scale and/or regularisation of services since they are not in service of the Government of India directly and/or engaged on 01.01.1993 in consonance with the requirement of the DOPT OM. The respondents submit that the applicants are presently employees of AVS Enterprises which is a business firm registered under "Mumbai Dukane Vs. Sanstha Adhinyam, 1948" dated 29.12.2011. Since the applicants are working for a private firm and there is no employer and employee relationship between them, hence, this Tribunal has no jurisdiction to entertain these Applications.
7.1 The respondents further submit that the representations made are not maintainable as the applicants are employees of AVS Enterprises and working in this department on behalf of AVS Enterprises, therefore, DoP&T's OM is not applicable to these cases of the applicants. The respondents further pray that these OAs deserve to be dismissed. 12 OA Nos.701/2017 & 145/2019
8. The respondents have relied on the following judgments:-
(i)State of M.P. & Anr. Vs. Pramod Bhartiya & others, AIR 1993 SC 286.
(ii) Food Corporation of India Workers Union Vs. Food Corporation of India & Anr., 2002(1) SCC 399.
(iii) State of Haryana & Anr. Vs. Tilak Raj & Others, 2003 Supreme Court Cases (L&S) 828.
(iv) State of Maharashtra & Ors. Vs. Anita & Another, 2016(8) SCC 293.
(v) Bharat Heavy Electricals Ltd. Vs. Mahendra Prasad Jakhmola & Ors., 2020 (1) SC (L&S) 399
9. Heard learned counsel for the parties at length and perused the material available on record.
10. Learned counsel for the applicants, Shri Rajeev Kumar, at the very outset, places reliance on the DOP&T OM dated 07.06.1988. Referring to the subject of the said OM, he submits that this is the only OM issued by the Govt which does not differentiate between daily wagers and casual workers/contract labours and relies upon clause iv of the said OM which reads as under:-
"(iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/30th of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day."
He submits that it was pursuant to the judgment passed by the Hon'ble Apex Court in the case of Surinder Singh Vs UOI (supra) that the aforesaid OM was issued and that the same is still in vogue. Therefore, respondents are liable to pay wages as per 13 OA Nos.701/2017 & 145/2019 the said OM. He further submits that the nature of work being done by the applicants is similar to the regular Group D now known as Multi Tasking Officer and, therefore, the applicants are eligible for grant of pay @1/30th of the minimum pay scale. He submits that in para 4.2 of the OA, he has specifically pleaded the nature of duties and the same has not been replied to by the respondents in the counter, thus as per the law on pleadings, the positive assertion made by the applicants in para 4.2 ought to be accepted by the Tribunal and relief claimed with regard to equal pay be granted.
11. The counsel for the applicants further submits that the applicants have a vested right to continue as Daily Wagers/casual workers as they were working prior to 01.03.2012, when their status was changed. It is pertinent to mention that pursuant to the decision of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Uma Devi and others, 2006 (2) SCT 462, the Govt. of India Ministry of Personnel, DoPT issued instructions dated 11.12.2006 to take steps to regularise the services of such irregularly appointed persons who are duly qualified for the posts in terms of the statutory recruitment rules and who have worked for 10 years or more on duly sanctioned posts but not under the cover of orders of Courts or Tribunals. He submits that in 14 OA Nos.701/2017 & 145/2019 order to avoid the benefit of the Uma Devi Judgement to applicants, their status was changed to that of contractual from Daily Wager.
12. The counsel for the applicants further states that in the case of Jeevan Singh Gehlot & Ors. Vs. Union of India & 4 Ors., OA No.121/2010 decided on 22.01.2011, Jodhpur Bench of this Tribunal passed an order in favour of the applicants therein (who are identically placed with the applicants as they were employed in the Office of the Director General Of Income Tax, Jodhpur), thereby directing the respondent not to discontinue with the services of the applicants therein and not to replace them with other casual workers, was challenged by the respondents in the High Court of Jodhpur and the High Court also upheld the judgment of the Tribunal. Aggrieved of that, the respondents approached the Hon'ble Apex Court wherein the Apex Court also dismissed the SLP. Thus, according to the applicants, their case is covered on all fours by the judgement of the Hon'ble High Court of Jodhpur dated 19.03.2015 in DBCWP No. 1924/2011 and Union of India & Ors. Vs. Jeevan Singh Gehlot & Ors, SLP No... CC No.12884/2016 decided on 19.07.2016 and that they ought not replace them with other contractual/casual workers.
13. The applicants have placed heavy reliance on the Apex Court judgement in the case of State of 15 OA Nos.701/2017 & 145/2019 Punjab & Ors. Vs. Jagjit Singh & Ors.(supra), wherein it was held as under :-
43. We shall now venture to summarize the conclusions recorded by this Court, with reference to a claim of pay parity, raised by temporary employees (differently designated as work-charge, daily-wage, casual, ad- hoc, contractual, and the like), in the following two paragraphs.
44. We shall first outline the conclusions drawn in cases where a claim for pay parity, raised at the hands of the concerned temporary employees, was accepted by this Court, by applying the principle of 'equal pay for equal work', with reference to regular employees:-
(i) In the Dhirendra Chamoli19 case this Court examined a claim for pay parity raised by temporary employees, for wages equal to those being disbursed to regular employees.
The prayer was accepted. The action of not paying the same wage, despite the work being the same, was considered as violative of Article 14 of the Constitution. It was held, that the action amounted to exploitation - in a welfare state committed to a socialist pattern of society.
(ii) In the Surinder Singh case20 this Court held, that the right of equal wages claimed by temporary employees emerged, inter alia, from Article 39 of the Constitution. The principle of 'equal pay for equal work' was again applied, where the subject employee had been appointed on temporary basis, and the reference employee was borne on the permanent establishment. The temporary employee was held entitled to wages drawn by an employee on the regular establishment. In this judgment, this Court also took note of the fact, that the above proposition was affirmed by a Constitution Bench of this Court, in the D.S. Nakara case2.
(iii) In the Bhagwan Dass case21 this Court recorded, that in a claim for equal wages, the duration for which an employee would remain (- or had remained) engaged, would not make any difference. So also, the manner of 16 OA Nos.701/2017 & 145/2019 selection and appointment would make no difference. And therefore, whether the selection was made on the basis of open competition or was limited to a cluster of villages, was considered inconsequential, insofar as the applicability of the principle is concerned. And likewise, whether the appointment was for a fixed limited duration (six months, or one year), or for an unlimited duration, was also considered inconsequential, insofar as the applicability of the principle of 'equal pay for equal work' is concerned. It was held, that the claim for equal wages would be sustainable, where an employee is required to discharge similar duties and responsibilities as regular employees, and the concerned employee possesses the qualifications prescribed for the post. In the above case, this Court rejected the contention advanced on behalf of the Government, that the plea of equal wages by the employees in question, was not sustainable because the concerned employees were engaged in a temporary scheme, and against posts which were sanctioned on a year to year basis.
(iv) In the Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch case22 this Court held, that under principle flowing from Article 38(2)of the Constitution, Government could not deny a temporary employee, at least the minimum wage being paid to an employee in the corresponding regular cadre, alongwith dearness allowance and additional dearness allowance, as well as, all the other benefits which were being extended to casual workers. It was also held, that the classification of workers (as unskilled, semi-skilled and skilled), doing the same work, into different categories, for payment of wages at different rates, was not tenable. It was also held, that such an act of an employer, would amount to exploitation. And further that, the same would be arbitrary and discriminatory, and therefore, violative of Articles 14 and 16 of the Constitution.
(v) In State of Punjab V. Devinder Singh this Court held, that daily- wagers were entitled to be placed in the minimum of the pay-scale of regular employees, working 17 OA Nos.701/2017 & 145/2019 against the same post. The above direction was issued after accepting, that the concerned employees, were doing the same work as regular incumbents holding the same post, by applying the principle of 'equal pay for equal work'.
(vi) In the Secretary, State of Karnataka case28, a Constitution Bench of this Court, set aside the judgment of the High Court, and directed that daily-wagers be paid salary equal to the lowest grade of salary and allowances being paid to regular employees. Importantly, in this case, this Court made a very important distinction between pay parity and regularization. It was held that the concept of equality would not be applicable to issues of absorption/regularization. But, the concept was held as applicable, and was indeed applied, to the issue of pay parity - if the work component was the same. The judgment rendered by the High Court, was modified by this Court, and the concerned daily-wage employees were directed to be paid wages, equal to the salary at the lowest grade of the concerned cadre.
(vii) In State of Haryana V. Charanjit Singh, a three-Judge bench of this Court held, that the decisions rendered by this Court in State of Haryana V. Jasmer Singh, State of Haryana V. Tilak Raj,the Orissa University of Agriculture & Technology case10, and Government of W.B. V. Tarun K. Roy, laid down the correct law. Thereupon, this Court declared, that if the concerned daily-wage employees could establish, that they were performing equal work of equal quality, and all other relevant factors were fulfilled, a direction by a Court to pay such employees equal wages (from the date of filing the writ petition), would be justified.
(viii) In State of U.P. Vs. Putti Lal, based on decisions in several cases (wherein the principle of 'equal pay for equal work' had been invoked), it was held, that a daily- wager discharging similar duties, as those engaged on regular basis, would be entitled to draw his wages at the minimum of the pay- scale (drawn by his counterpart, appointed on regular basis), but would not be entitled to any other allowances or increments. 18 OA Nos.701/2017 & 145/2019
(ix) In the Uttar Pradesh Land Development Corporation case33 this Court noticed, that the respondents were employed on contract basis, on a consolidated salary. But, because they were actually appointed to perform the work of the post of Assistant Engineer, this Court directed the employer to pay the respondents wages, in the minimum of the pay- scales ascribed for the post of Assistant Engineer.
45. We shall now attempt an analysis of the judgments, wherein this Court declined to grant the benefit of 'equal pay for equal work' to temporary employees, in a claim for pay parity with regular employees:-
(i) In the Harbans Lal case23, daily-rate employees were denied the claimed benefit, under the principle of 'equal pay for equal work', because they could not establish, that the duties and responsibilities of the post(s) held by them, were similar/equivalent to those of the reference posts, under the State Government.
(ii) In the Grih Kalyan Kendra Workers' Union case6, ad-hoc employees engaged in the Kendras, were denied pay parity with regular employees working under the New Delhi Municipal Committee, or the Delhi Administration, or the Union of India, because of the finding returned in the report submitted by a former Chief Justice of India, that duties and responsibilities discharged by employees holding the reference posts, were not comparable with the posts held by members of the petitioner union.
(iii) In State of Haryana V. Tilak Raj, this Court took a slightly different course, while determining a claim for pay parity, raised by daily- wagers (- the respondents). It was concluded, that daily-wagers held no post, and as such, could not be equated with regular employees who held regular posts. But herein also, no material was placed on record, to establish that the nature of duties performed by the daily-wagers, was comparable with those discharged by regular employees. Be that as it may, it was directed, that the State should prescribe 19 OA Nos.701/2017 & 145/2019 minimum wages for such workers, and they should be paid accordingly.
(iv) In State of Punjab V. Surjit Singh, this Court held, that for the applicability of the principle of 'equal pay for equal work', the respondents who were daily-wagers, had to establish through strict pleadings and proof, that they were discharging similar duties and responsibilities, as were assigned to regular employees. Since they had not done so, the matter was remanded back to the High Court, for a re- determination on the above position. It is therefore obvious, that this Court had accepted, that where duties, responsibilities and functions were shown to be similar, the principle of 'equal pay for equal work' would be applicable, even to temporary employees (otherwise the order of remand, would be meaningless, and an exercise in futility).
(vi) It is, therefore apparent, that in all matters where this Court did not extend the benefit of 'equal pay for equal work' to temporary employees, it was because the employees could not establish, that they were rendering similar duties and responsibilities, as were being discharged by regular employees, holding corresponding posts.
xxxxx Thus, applicants claim that since in the present cases, they have been able to establish by way of their pleadings that their nature of work is identical to that of regular employees, they are entitled for 1/30th of the minimum pay scale as per the DOPT OM dated 07.06.1988 or equal pay for equal work as per the law laid down in the case of Jagjit Singh (supra).
14. Counsel for the respondents, Shri R. R. Shetty, has vehemently opposed the argument of 20 OA Nos.701/2017 & 145/2019 learned counsel for the applicant. He at the outset submitted that the applicants were employed as Casual /Daily wagers till 2012-2013. Their status was changed to that of contract employee thereafter. There was no dispute between the 2012 to 2017. Only in 2017 later the present OA came to be filed by applicants. Since applicants continued to work on contract basis from 2012 to 2017 without a demur, there is no occasion for the Tribunal to interfere now as the applicants had accepted their status and these OAs are hit by the principle of Acquiesce.
15. Further relying upon the law laid down by the Hon'ble Apex Court in the case of State of M.P. & Anr. Vs Pramod Bhartiya (supra), he submitted that mere assertion in the pleadings is not enough to prove the nature of the work being done by the applicants. The applicants were required to prove that they perform similar functions, duties and responsibilities. Referring to the above judgement of State of M.P. & Anr Vs Pramod Bhartiya (supra), wherein the Hon'ble Apex Court has said that "There is, however, a conspicuous absence of any clear allegation and/or material suggesting that functions and responsibilities of both the categories of lecturers is similar." It was submitted that since no evidence is lead before the Tribunal, there is no means for the Tribunal to come to the conclusion that 21 OA Nos.701/2017 & 145/2019 the applicants were performing similar nature of duties as regular employees. In this regard reliance was placed on the case of Food Corporation Workers Union (supra), the Court has held as under:-
"4. Having regard to the pleadings of the parties and the factual controversy involved, we are of the view that it would not be appropriate for this Court to record its conclusions on merits. In order to give effect to the principle of equal pay for equal work, which is no doubt a constitutional obligation implicit in Article 14, we have to enter into the factual arena and embark on an investigation of disputed facts such as the work load and the working pattern in various depots of the Food Corporation of India. The mere fact that the qualitative nature of work performed by DPS workers and the departmental workers is the same, is not conclusive. Other aspects highlighted in the counter-affidavit having a bearing on the volume and duration of work in the depots have to be gone into.
Incidentally, the justification and expediency of continuing the Direct Payment System which has been recognized by various settlements has to be looked into. A comparative study of the working pattern in various depots, the overall job requirements and the overall effect it will have on the body of workmen as a whole and the Management, are all matters that may be relevant to consider. It is not a case of mere application of a legal principle to the admitted or undeniable facts. But, it depends on concrete facts brought out in evidence. When the same issue is being agitated by the petitioner-union by raising an industrial dispute, it is all the more inappropriate for this Court to make an adjudication on merits in a writ petition filed under Article 32. The award of the National Industrial Tribunal on which reliance was placed virtually stands superseded by the settlement arrived at between the parties culminating in the disposal of the writ petition challenging the said award in terms of such settlement."22 OA Nos.701/2017 & 145/2019
16. Also in the case of State of Haryana & Another (supra), the Court has held as under:-
"6. The principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organisations, or even in the same organization. In Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors. (1988 (3) SCC 91), this Court explained the principle of "equal pay for equal work"
by holding that differentiation in pay scales among government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. It was further observed that judgment of administrative authorities concerning the responsibilities which attach to the posts and the degree of reliability expected of an incumbent would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
7. In State of U.P. v. J.P. Chaurasia (1989 (1) SCC 121), it was pointed out that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. In Harbans Lal V. State of Himachal Pradesh (1989(4) SCC 459) it was held that a mere nomenclature designating a person as a carpenter or a craftsman was not enough to come to a conclusion that he was doing the work as another carpenter in regular service. A comparison cannot be made with counterparts in other establishments with different managements or even in the establishments in different locations though owned by the same management. The quality of work which is produced may be different, even the nature of work assigned may be different. It is not just a comparison of physical 23 OA Nos.701/2017 & 145/2019 activity. The application 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 requires may differ from job to job. It must be left to be evaluated and determined by an expert body. Same was of the view expressed in Ghaziabad Development Authority v. Vikram Chaudhary (1995 (5) SCC 210).
17. The respondents' counsel further argued that there was no direct relationship of master and servant between the respondents and the applicants, as they were employees of the contractor and, therefore, the relief claimed by them from the respondents is not maintainable. He relied upon the case of Bharat Heavy Electricals Ltd. (supra), the Court has held as under:-
"The workmen have themselves admitted that there is no appointment letter, provident fund number or wage slip from BHEL insofar as they are concerned. Apart from this, it is also clear from the evidence led on behalf of BHEL, that no wages were ever been paid to them by BHEL as they were in the service of the contractor. Further, it was also specifically pointed out that the names of 29 workers were on the basis of a List provided by the contractor in a bid that was made consequent to a tender notice by BHEL.
Ms. Asha Jain's reliance upon the judgment in 'Steel Authority of India Ltd. And Others' [(2001) 7 SCC 1] is also misplaced. There is nothing on facts to show that the contract labour that is engaged, even de hors a prohibition notification, is in the facts of this case 'sham'.24 OA Nos.701/2017 & 145/2019
18. The Respondents another leg of argument was based on the principle of estoppel. It was argued that the applicants had accepted the appointment on contractual basis under the contractor with open eyes and as such they were estopped from raising claims beyond the terms of their contract. The respondents thus relied upon the case of State of Maharashtra & Ors. Vs. Anita & Anr (supra), the Court has held as under :-
"15. The above terms of the agreement further reiterate the stand of the State that the appointments were purely contractual and that the respondents shall not be entitled to claim any right or interest of permanent service in the government. The appointments of respondents were made initially for eleven months but were renewed twice and after serving the maximum contractual period, the services of the respondents came to an end and the Government initiated a fresh process of selection. Conditions of respondents' engagement is governed by the terms of agreement. After having accepted contractual appointment, the respondents are estopped from challenging the terms of their appointment. Furthermore, respondents are not precluded from applying for the said posts afresh subject to the satisfaction of other eligibility criteria.
19. Considering the above submissions and that applicants, at the outset, have given up their prayer for regularization, with respect to the claim for 1/30th of the minimum pay for the applicants, it would be necessary to have a close look at the DOPT OM of 25 OA Nos.701/2017 & 145/2019 07.06.1988, the same is reproduced hereunder:-
Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) OM No. 49014/2/86 Estt.(C ) dated 7th June ,1988. (XVI) Subject: Recruitment of casual workers and persons on daily wages -Review of policy. The policy regarding engagement of casual workers in Central Government offices has been reviewed by Government keeping in view the judgement of the Supreme Court delivered on the 17th January, 1986 in the Writ Petition filed by Shri Surinder Singh and others vs. Union of India and it has been decided to lay down the following guidelines in the matter of recruitment of casual workers on daily wage basis:-
i) Persons on daily wages should not recruited for work of regular nature.
ii) Recruitment of daily wagers may be made only for work which is casual or seasonal or intermittent nature or for work which is not of full time nature, for which regular posts cannot be created.
iii) The work presently being done by regular staff should be reassessed by the administrative Departments concerned for output and productivity so that the work being done by the casual workers could be entrusted to the regular employees. The Departments may also review the norms of staff for regular work and take steps to get them revised. If considered necessary.
iv) Where the nature of work entrusted to the casual workers and regular employees is the same, the casual workers may be paid at the rate of 1/3oth of the pay at the minimum of the relevant pay scale plus dearness allowance for work of 8 hours a day.
v) In cases where the work done by a casual worker is different from the work done by a regular employee, the casual worker may be paid only the minimum wages notified by the Ministry of Labour or the State 26 OA Nos.701/2017 & 145/2019 Government/Union Territory Administration, whichever is higher, as per the Minimum Wages Act, 1948. However, if a Department is already paying daily wages at a higher rate, the practice could be continued with the approval of its Financial Adviser.
vi) The casual workers may be given one paid weekly off after six days of continuous work.
vii) The payment to the casual workers may be restricted only to the days on which they actually perform duty under the Government with a paid weekly off as mentioned at (vi) above. They will, however, in addition, be paid for a National Holiday, if it falls on a working day for the casual workers.
viii) In cases where it is not possible to entrust all the items of work now being handled by the casual workers to the existing regular staff, additional regular posts may be created to the barest minimum necessary, with the concurrence of the Ministry of Finance.
ix) Where work of more than one type is to be performed throughout the year but each type of work does not justify a separate regular employee, a multifunctional post may be created for handling those items of work with the concurrence of the Ministry of Finance.
x) The regularisation of the services of the casual workers will continue to be governed by the instructions issued by this Department in this regard. While considering such regularisation, a casual worker may be given relaxation in the upper age limit only if at the time of initial recruitment as a casual worker, he had not crossed the upper age limit for the relevant post.
xi) If a Department wants to make any departure from the above guidelines, it should obtain the prior concurrence of the Ministry of Finance and the Department of Personnel and Training. All the administrative Ministries /Deptts. Should undertake a review of appointment of casual workers in the offices under their control on a time-bound basis so that at the end of the prescribed period, the following targets are achieved:-27 OA Nos.701/2017 & 145/2019
a) All eligible casual workers are adjusted against regular posts to the extent such regular posts are justified.
b) The rest of the casual workers not covered by (a) above and whose retention is considered absolutely necessary and is in accordance with the guidelines, are paid emoluments strictly in accordance with the guidelines .
c) The remaining casual workers not covered by
(a) and (b) above are discharged from service.
2. The following time limit for completing the review has been prescribed in respect of the various Ministries/Deptts:-
a) Ministry of Railways 2 Years
b) Department of Posts, Department of 1 Year Telecommunications and Department of Defence Production
c) All other Ministries / Deptts./Offices 6 months Each Ministry should furnish a quarterly statement indicating the progress of the review in respect of the Ministry (Proper) and all Attached / Subordinate offices under them to the Department of Personnel and Training in the proforma attached. The first quarterly return should be furnished to this Department by the 10th October. 1988.
3. By strict and meticulous observance of the guidelines by all Ministries/Deptts, it should be ensured that there is no more engagement of casual workers for attending to work of a regular nature, particularly after the review envisaged above is duly completed. Each Head of Office should also nominate an officer who would scrutinise the engagement of each and every casual worker and the job for which is being employed to determine whether the work is for casual nature or not.
4. Ministry of Finance etc. are requested to bring the contents of this Office Memorandum to the notice of all the appointing authorities under their respective administrative control for strict observance. Cases of negligence in the matter of implementing these guidelines should be viewed 28 OA Nos.701/2017 & 145/2019 very seriously and brought to the notice of the appropriate authorities for taking prompt and suitable action against the defaulters.
Sd./-
D.P. Bagchi Joint Secretary to the Government of India"
20. It can be seen that the DoPT OM is applicable to the daily wage employees working in the Government Departments not the contractual employees.
The applicants are the employees of the AVS Enterprises of Pune which is an independent entity and wages of the labors employed by them on contractual service are governed as per the direction of Ministry of Labour and Employment on time to time.
The applicants being employees of AVS Enterprises, providing services on behalf of AVS Enterprises, therefore, the above mentioned DoP&T's OM is not applicable to them.
21. The applicants have consciously accepted contractual positions, the terms of which expressly put them on notice about the tenuous nature of their employment and further, that such employment did not entitle them to regular wages but contractual wages.
Therefore, for them to seek such relief now, is impermissible. Doctrine of equal pay for equal work presupposes fulfillment of several conditions, such as that the employee must hold the prescribed qualification, under the rules, for the post concerned; she or he should have applied through the 29 OA Nos.701/2017 & 145/2019 regular channel for employment (i.e. the application should have been in response to an employment exchange notice, or public advertisement ensuring fair and wide participants amongst all qualified candidates); the post advertised should have been part of the regular or permanent cadre; the process of selection (i.e. test or interview) should have been in accordance with the rules prescribed for the purpose; and the appointment should have been to a regular vacancy in the cadre. In the present case, the contractual appointment of the applicants fulfilled none of those requirements; consequently, their claim for equal pay cannot be entertained.
22. Recently Hon'ble Apex Court while referring to the judgement of State of Punjab and Ors. Vs. Jagjit Singh in the case of State of Madhya Pradesh Vs. R.D. Sharma, Civil Appeal No.474-475 of 2022 (Arising out of SLP (Civil) Nos.547-548 of 2021) decided on 27.01.2022 has held as follows:-
"14.The High Court in the impugned orders passed in Writ Petition as well as in the Review Petition had thoroughly misdirected itself by applying the principle of "equal pay for equal work" placing reliance on the decision of this court in case of State of Punjab and Ors. Vs. Jagjit Singh and Ors. 2017 SCC 148, which had no appli- cation to the facts of the present case. It may be noted that this court has con- sistently held that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the 30 OA Nos.701/2017 & 145/2019 expert bodies like the Pay Commissions. This is because such job evaluation exer- cise may include various factors including the relevant data and scales for evaluat- ing performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equa- tion of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the court's interference was absolutely neces- sary to undo the injustice, the courts would not interfere with such complex is- sues. A beneficial reference of the obser- vations made in this regard in case of Secretary, Finance Department Vs. West Bengal Registration Service Associations and Ors. 1993 Supl. 1 SCC 153 be made. As held in State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association 2002 (06) SCC 72 "equal pay for equal work" is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government.
15. Pertinently the Administrative Tribunal after considering the relevant factual and legal aspects had rightly rejected the claim of the respondent no. 1 for granting the apex scale on the basis of "equal pay for equal work" in the O.A. filed by him. The said well considered, just and proper order of the Tribunal was wrongly set aside by the High Court on extraneous grounds applying the principle of "equal pay for equal work", while exercising the power of superintendence under Article 227 of the Constitution of India. It is well-settled legal position that the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. In the instant case, the Tribunal 31 OA Nos.701/2017 & 145/2019 had not committed any jurisdictional error, nor any failure of justice had occasioned, and hence the interference of the High Court in order passed by the Tribunal was absolutely unwarranted.
16. In that view of the matter, the impugned orders passed by the High Court being thoroughly misconceived in law and in facts, deserve to be quashed and set aside and the same are hereby set aside. The appeals are allowed accordingly."
23. The Hon'ble Apex Court has held that equation of posts is not the function of the judiciary, rather it is the function of the executive. The applicants being on contract, in fact makes the comparison with regular employees even more difficult as the regular employees have faced a regular selection process and have been appointed to the said post, whereas applicants/contractual employees have not faced any selection/screening even. It is always heart-rendering to refuse protection to a person who is facing uncertainty even exploitation, but there are other factors which have to be kept in mind. It is a rarity for a contract employee to approach the Court at the inception of his service, to challenge the less pay being received by him. If a legal action is brought at the initial stages, the Court can at least direct that the regular vacancies should be filled up within a short period and/or ensure some beneficial treatment towards such contractuals. Having accepted their fate 32 OA Nos.701/2017 & 145/2019 for so many years and not approaching the Courts earlier makes them ineligible for grant of relief.
24. In the light of the above discussions, I find no merit in these Original Applications, the same are dismissed. Related pending MA Nos.440/2021, 16/2019 & 441/2021 stand closed. No order as to costs.
(Harvinder Kaur Oberoi) Member (J) ma.