Gujarat High Court
Babubhai vs President/ on 14 March, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/2318/2005 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2318 of 2005
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BABUBHAI
BHAGABHAI WAGHELA - Petitioner(s)
Versus
PRESIDENT/
CHIEF OFFICER & 1 - Respondent(s)
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Appearance
:
MS
HINA DESAI for
Petitioner(s) : 1,
MR HR PRAJAPATI for Respondent(s) : 1,
MR
DHAVAL G NANAVATI for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 14/03/2011
ORAL
ORDER
Heard learned advocate Ms. Hina Desai on behalf of petitioner. In present petition, learned advocate Mr. HR Prajapati is appearing on behalf of respondent no. 1 and learned advocate Mr. DG Nanavati appearing on behalf of respondent no. 2. Today, matter has been called out twice, but either of advocate appearing for respondents not remained present before this Court. Even no sick note/leave note filed by them. Therefore, in the interest of justice, matter is taken up for hearing. In this matter, rule has been issued by this Court on 25/8/2005 and has been expedited by this Court.
According to case of petitioner before this Court, petitioner has joined service of respondent in the year 1984 as Safai Kamdar and his service was terminated in the year 1992. Thereafter, an industrial dispute was raised, which referred for adjudication to Labour Court being no. 1912/1992 and same was allowed by way of reinstatement granted in favour of petitioner with full back wages of interim period. Thereafter, SCA no. 4507/2000 was preferred by respondent but that petition was dismissed by this Court on 26/9/2001. However, petitioner was employed in the 1984, remained continuous in service, till date he has been considered to be daily wager and no regular salary has been paid to him which is available to petitioner as per 4th & 5th Pay Commission and has been applied to employees who have been joined service of respondent, those who are juniors to petitioner.
Learned advocate Ms. Heena Desai submitted that junior to petitioner are getting regular salary which has been recommended by 4th & 5th Pay Commission but that benefit is not made available to petitioner. Therefore, present petition is filed for claiming such benefits from respondent.
She has submitted that award passed by Labour Court in reference no. 1912/1992, where order of termination has been set aside by Labour Court, at that occasion, more than ten year's service was put up by petitioner before respondent. Before Labour Court, vide exh 14 petitioner was examined. Thereafter, Labour Court has granted reinstatement with continuity of service with full back wages of interim period. This award has been challenged by respondent before this Court in SCA no. 4507/2000. This Court has dismissed said petition on 26/9/2001. Thereafter, no further challenge is made by respondent to higher forum and award passed by Labour Court, Ahmedabad is remained as it is.
The affidavit in reply is filed by respondent before this Court, which is at page 73. The relevant averment made in para 2 to 5 are quoted as under:
"2. I say that the whenever the services of the petitioner were required by the Nagarpalika, he was engaged for the specific job and for the specific period on daily wages. That the petitioner has worked for 54 years, 1987, 236 and ½ days in the year 1988, 48 and ½ days in the year 1989. I say that thereafter from July 1989 to March 1991, the petitioner was not with the Nagarpalika. In March, 1991 he was engaged for 17 days only. Then from April 1991 to 11/2/1992, he worked for 216 days with the respondent. This shows that at no point of time, he completed 240 days in any year. Thereafter, before the Labour Court, the proceedings were initiated which had passed the ex parte Award dated 30/6/1997. That the writ petition being SCA No. 4507/2000 challenging the said award is also dismissed by this Hon'ble Court (Coram: Honuorable Mr. Justice P. B. Majmudar) by the order dated 26/9/2001. I say that as per the award of the Labour Court, the petitioner has been taken back in service as daily wager and the award passed against the respondent has been duly complied with.
(3)I say that the names of employees mentioned in para 4 of petition, they are regular employees whereas the petitioner is a daily wager and therefore, he is not entitled to claim parity with those regular employee. I say that when those employees were regularized, the petitioner was not in service of Nagarpalika i.e. from 1992 to 9/3/2003 and therefore, he cannot now claim parity or similar treatment with those regular employees. I say that the petitioner is being regularly paid in the wages declared by State Government under the Payment of Wages Act and there is no illegality in the same. I say that whatever the benefits the petitioner is entitled for under law is being paid to him.
(5)I say that recently in the case of State of U. P. & Ors Vs. Ajay Kumar reported in 1997 (4) SCC 88, the Hon'ble Supreme Court has held that it is now settled legal position that there should exist a post and either Administrative instructions for statutory rules must be in operation to appoint a person to the post. That daily wages appointment will obviously be in relation to contingent establishment in which there can not exist any post and it continues so long as the work exists. In view of this, the Apex Court held that the High Court was clearly in error in directing the appellant to regularise the service of the respondent to the post as and when the vacancy arises and to continue him until then."
Against that, affidavit in rejoinder is filed by petitioner at page 78. The relevant para 3 to 5 are quoted as under:
"3. I say that the deponent has deliberately and intentionally avoided following undisputable factual aspect of this case which is mentioned as under., (A) The petitioner employee has joined the services in 1984 and completed 240 days in each of his services.
(B) There are following other employees who are junior to the petitioner have joined the services in the similar matter as the petitioner was engaged by the respondent Nagarpalika.
(C) The services of the petitioner was terminated on 10/2/1992 while keeping his junior in service and in breach of section 25 of the I. D. Act.
(D) The Labour Curt in Reference No. 1912 of 1992 passed an award directing the respondent to reinstate the petitioner on original post with full back wages and cost.
(E) On the date of award all the 11 employees were similarly situated and award was remained enforceable with effect from 30/7/97 but same was not implemented by the respondent and committed an offence of breach of an award continuously upto 31/10/2003 (even respondents petition no. S.C.A. 4507 of 2000 challenging the award of Labour Court was dismissed by the Hon'ble High Court on 26/10/2001) (F) The award was never stayed by any authority.
(G) The other 11 similarly situated employees out of them there are employees who are junior to the petitioner were also asked to make an application for regular pay scale and salary as per the Pay Commission by the respondent Nagarpalika. But the petitioner was excluded though he is deem to be in service in view of the Labour Court's award on that particular time.
(H) The nature of work, terms of service, status of the petitioner, etc., were materially similar to the employee whose applications for pay scale and salary were obtained by the respondent and in that respect the resolution was passed.
(I) There is no question of sanctioned post arise in this case ever for granting pay scale and salary to any employee including the petitioner and since the petitioner is reinstated with all the benefits of continuity and full back wages, there is no ground exit/or pointed out for such unfair discrimination.
Looking to the above factual and undisputable aspect of this case none of the averment contention and submissions of the deponent are of any merits and deserves to be rejected.
4. I say that in this case there is no case of regularization beyond sanction post and the petitioner has got right to receive equal pay scale and salary since junior employees to him are given the benefits by the respondent at the same time. If the question of sanction post arises then same is equally applicable to other employees though they are junior to the petitioners and they are already provided pay scale and salary as per the recommendation of the pay commission.
5. I say that looking to the nature of relief, admitted facts and circumstances of this case, the judgment of Hon'ble full bench has no application since the award granting the relief by the Labour Court is confirmed by this Hon'ble Curt while dismissing the S.C.A. No. 4507/2000 preferred challenge the said award by the respondent, there is no question arises beyond the award which is final now."
In light of this pleadings and averment made in affidavit in reply as well as rejoinder and considering award passed by Labour Court dated 30/6/1997, against which, restoration application was made being no. 298/1997 exh 21 which application was also dismissed by Labour Court on 6/3/2004. Thereafter, no further challenge has been made by respondent to higher forum and an application for setting aside ex parte award, which has been rejected by Labourt Court has not been challenged to higher forum. The ex parte award which was challenged before this Court in SCA no. 4507/2000 has been dismissed on 26/9/2001 (Coram: Honourable Mr. Justice P. B. Majmudar). Considering fact that petitioner who was in service as Safai Kamdar since 1984 performing duty and same work has been carried out by him similar to other regular employees those who are working with respondent. The respondent Nagarpalika has not given benefit of 4th & 5th Pay Commission by paying regular salary to petitioner as Safai Kamdar who was in service since 1984 though award of reinstatement with continuity of service with full back wages has been confirmed by this Court as referred above. Against which, no challenge is made to higher forum by respondent. In such circumstances, not to pay regular salary which is available to other employees those who are working with petitioner is amounts to adopting unfair labour practice by respondent Nagarpalika. The Secretary of Urban Housing and Urban Development Department is also party to present proceeding as respondent no. 2 but no appearance is filed by respondent no. 2.
I have considered submission made by learned advocate Ms. Heena Desai. She submitted that work, which has been performed by petitioner as Safai Kamdar at par with other regular employees those who are working as Safai Kamdar with respondent. Therefore, petitioner is entitled benefit of Equal Pay for Equal Work, which has been denied by respondent being a Public Body to petitioner. Even till today, daily wage is paid to workman petitioner by respondent.
She also raised contention that in between when petitioner was not in service after termination, certain junior Safai Kamdar were made permanent after passing resolution in their favour, even at that occasion, case of petitioner was not considered by respondent for making him permanent in service. At that occasion, though award was passed in favour of workman petitioner, he was not reinstated immediately in service but subsequently he was reinstated in service on 14/10/2003. Therefore, during this period, certain junior Safai Kamdar were made permanent and now they are getting regular salary on the basis of 4th & 5th Pay Commission/Recommendation.
Learned advocate Ms. Heena Desai has also relied upon one decision of Apex Court in case of U.P. Land Development Corporation and Anr Vs. Hohmed Khursheed Anwar and Anr reported in 2010 (6) SCALE 194. The relevant observation made in para 12 to 17 are quoted as under:
12.
The question whether the principle of `equal pay for equal work' can be read as part of the doctrine of equality has been considered by this Court in large number of cases. In Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139, this Court observed that the principle of `equal pay for equal work' as an abstract doctrine had nothing to do with Article 14. This view has not been followed in most of the subsequent judgments. In Randhir Singh v. Union of India (1982) 1 SCC 618, the Court distinguished the three earlier judgments including Kishori Mohanlal Bakshi v. Union of India (supra) and observed:
"Our attention was drawn to Binoy Kumar Mukerjee v. Union of India and Makhan Singh v. Union of India, where reference was made to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India describing the principle of "equal pay for equal work"
as an abstract doctrine which had nothing to do with Article 14. We shall presently point out how the principle, "equal pay for equal work", is not an abstract doctrine but one of substance. Kishori Mohanlal Bakshi v. Union of lndia is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of "equal pay for equal work" would be an abstract doctrine not attracting Article 14 if sought to be applied to them. 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 has 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 office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the 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 if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The Preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word "socialist" must mean something. Even if it does not mean `to each according to his need', it must at least mean "equal pay for equal work". "The principle of "equal pay for equal work" is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance" (vide International Labour Law by Istvan Szaszy, p. 265). The Preamble to the Constitution of the International Labour Organisation recognises the principle of `equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Article 39 (d), we are of the view that the principle "equal pay for equal work" is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer."
13. The ratio of the judgment in Randhir Singh's case was invoked and applied in Dhirendra Chamoli v. State of U.P. (1986) 1 SCC 637, Surinder Singh v. Engineer-in-Chief, CPWD (1986) 1 SCC 639 and other cases for extending the benefit of the principle of `equal pay for equal work' to different types of employees including daily wagers but the same was distinguished in Federation of All India Customs and Central Excise Stenographers (Recognized) v. Union of India (1988) 3 SCC 91, State of U.P. v. J.P. Chaurasia (1989) 1 SCC 121, Mewa Ram Kanojia v. All India Institute of Medical Sciences (1989) 2 SCC 235, Ghaziabad Development Authority v. Vikram Chaudhry (1995) 5 SCC 210, State of Haryana v. Jasmer Singh (1996) 11 SCC 77, Orissa University of Agriculture and Technology v. Manoj K. Mohanty (2003) 5 SCC 188, State of Haryana v. Tilak Raj (2003) 6 SCC 123, Government of West Bengal v. Tarun K. Roy (2004) 1 SCC 347, State of Haryana v. Charanjit (2006) 9 SCC 321, S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279, Official Liquidator v. Dayanand and others (2008) 10 SCC 1 and very recently in State of Punjab v. Surjit Singh (2009) 9 SCC 514.
14.In Jawaharlal Nehru Technological University v. T. Sumalatha (2003) 10 SCC 405, a two-Judge Bench set aside the direction given by the High Court to the appellant to absorb the respondents in accordance with the policy contained in G.O. No.212 dated 22.4.1994, but made some significant observations on the issue of payment of higher salary to them. The same are extracted below:
"Though the plea of regularisation in respect of any of the fifth respondents cannot be countenanced, the respondent employees should have a fair deal consistent with the guarantee enshrined in Articles 21 and 14 of the Constitution. They should not be made to work on a meagre salary for years together. It would be unfair and unreasonable to extract work from the employees who have been associated with the nodal centre almost from its inception by paying them remuneration which, by any objective standards, is grossly low. The Central Government itself has rightly realised the need to revise the consolidated salary and accordingly enhanced the grant on that account on two occasions. That revision was made more than six years back. It is high time that another revision is made. It is therefore imperative that the Ministry concerned of the Union of India should take expeditious steps to increase the salary of the investigators viz. Respondents 1 to 4 working in the nodal centre in Hyderabad. In the absence of details regarding the nature of work done by the said respondents and the equivalence of the job done by them to the other posts prevailing in the University or the Central Government institutions, we are not in a position to give any direction based on the principle of `equal pay for equal work'. However, we consider it just and expedient to direct Respondent 7 or 8, as the case may be, to take an expeditious decision to increase the consolidated salary that is being paid to Respondents 1 to 4 to a reasonable level commensurate with the work done by them and keeping in view the minimum salary that is being paid to the personnel doing a more or less similar job. As far as the fifth respondent is concerned, though we refrain from giving similar directions in view of the fact that the post is not specifically sanctioned under the Scheme, we would like to observe that the Central Government may consider increasing the quantum of office expenditure suitably so that the University will be able to disburse higher salary to the fifth respondent."
15. In Dayanand's case, the Court observed that the ratio of Randhir Singh's case has not been followed in later judgments and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience, confidentiality, functional need etc.
16. In Surjit Singh's case, the Court reviewed large number of judicial precedents and observed:
"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. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ. Where persons are selected by a Selection Committee on the basis of merit due regard to seniority a higher pay scale granted to such persons who are evaluated by the competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. 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 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. If the High Court is, on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may direct payment of equal pay from the date of the filing of the respective writ petition. In all these cases, we find that the High Court has blindly proceeded on the basis that the doctrine of equal pay for equal work applies without examining any relevant factors."
17. In the light of the above stated legal position, we shall now consider whether the direction given by the Division Bench of the High Court to the appellants to pay salary to the respondents in the regular pay scale prescribed for the post of Assistant Engineer is legally correct. Here it is apposite to note that the High Court granted relief to the respondents by presuming that two posts of Assistant Engineer were utilized for appointing them. This assumption is ex facie fallacious because the documents produced before the High Court and this Court show that the respondents were engaged for a fixed period on a consolidated salary. There is nothing in the language of orders dated 18.2.1991 from which it can be inferred that the respondents were appointed against the sanctioned posts of Assistant Engineer (Civil). The correspondence exchanged between the State Government and the Corporation after 18.2.1991 cannot be relied upon for recording a finding that the respondents were appointed against the sanctioned posts of Assistant Engineer. Therefore, the direction given by the High Court for payment of salary to the respondents in the regular pay scale prescribed for the post of Assistant Engineer cannot be sustained. But, at the same time, we are convinced that the appellants were not justified in continuing the respondents on a consolidated salary of Rs.2000/- per month despite the fact that at the time of their selection, two sanctioned posts of Assistant Engineer and one post of Junior Engineer were lying vacant and proposal for appointing the respondents without any nomenclature was made with the sole object of taking work of the particular post from them without paying salary in the regular pay-scale of any post. To say the least, the decision of the Corporation to effect economy by depriving the respondents' even minimum of the pay-scale was totally arbitrary and unjustified. The very fact that the respondents were engaged on a consolidated salary of Rs.2,000/- per month and the prescribed pay-scale of the post of Assistant Engineer in other branches was Rs.2200-4000/- and that of the Junior Engineer was Rs.1,600 - 2,660/- gives a clear indication that they were engaged to do the work of Assistant Engineer. The appellants had neither pleaded before the High Court nor it has been shown to this Court that the respondents were not qualified for the post of Assistant Engineer. It is also not the case of the appellants that the respondents suffered from any other disability which could impede their appointment on the post of Assistant Engineer. In the written statement filed before the High Court, the appellants did make a statement that the respondents were not discharging the duties of Assistant Engineer but no material was produced either before the High Court or before this Court to show any difference in the nature of duties being performed by the respondents and those which were required to be performed by an Assistant Engineer. It is, therefore, reasonable to take the view that the respondents had been arbitrarily deprived of their legitimate right to get minimum of the pay-scale prescribed for the post of Assistant Engineer. "
In view of above observations made by Apex Court and considering fact which are not much in dispute before this Court to the effect that workman was working as Safai Kamdar since 1984 and his termination order was set aside and he was declared continuous in service with full back wages which award is confirmed by this Court. The application to set aside ex parte award filed by respondent is also rejected which has not been challenged to higher forum. It is not denied by respondent before this Court in affidavit in reply that workman petitioner is not performing regular work as Safai Kamdar at par with other regular employees those who are working with respondent.
According to my opinion, workman is entitled regular salary on the basis of 4th & 5th Pay Commission/Recommendation from the date on which juniors were getting such regular salary on the basis of principles of Equal Pay for Equal Work from date on which juniors were getting and to pay difference of salary for entire period within a period of three months from date of receiving copy of present order. It is made clear by this Court that this Court is not granting permanent status to petitioner as regular employee of respondent but this Court has granted aforesaid relief in favour of petitioner on the principles of Equal Pay for Equal Work. On that basis, petitioner is entitled regular salary as directed by this Court.
Accordingly, Rule is made absolute to aforesaid extent. No order as to costs.
(H.K.RATHOD, J) asma Top