Gujarat High Court
Maheshbhai vs State on 30 August, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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SCA/13048/2011 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13048 of 2011
With
SPECIAL
CIVIL APPLICATION No. 13049 of 2011
To
SPECIAL
CIVIL APPLICATION No. 13072 of 2011
=========================================================
MAHESHBHAI
KHODABHAI VASAVA & 24 - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SPECIAL SECRETARY & 1 - Respondent(s)
=========================================================
Appearance
:
MR
DM DEVNANI for
Petitioner(s) : 1 - 25.
GOVERNMENT PLEADER for Respondent(s) :
1,
None for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/08/2011
ORAL
ORDER
Heard learned Advocate Mr. DM Devnani for petitioners and Mr. AL Sharma, learned AGP for respondent State Authority in this group of petitions.
Brief facts of present petitions, as per list of events filed by petitioners, are quoted as under:
"1. That the present petition is directed against illegal and arbitrary action of the Respondents by not paying the regular pay scales, dearness allowances and medical allowances to the petitioner.
2. All petitioner were working with respondents since long time. The services of the present petitioners were come to be orally terminated by the respondents on 21.3.2000 and 12.6.2000 respectively; therefore, some of the petitioners had filed various complaint before the Assistant Labour Commissioner, Bharuch against their illegal termination. Since no amicable settlement was arrived at between the parties, the disputes was referred to the Labour Court,Bharuch for final adjudication. The reference was several workmen was registered as Reference (LCB) No. 396/2002, 438/2000, 440/2002 to 446/2000, 448/2000 to 471/2000 and 473/2000. The details with regards to the name of the petitioners, reference numbers, date of joining and date of termination given by the learned Labour Judge in Schedule A of the award dated 31.7.2007. After hearing the advocates of the respective parties, the Labour Court no. 2 Bharuch, was pleased to dismissed the abovementioned reference vide award dated. 31.7.2007. The said award was published on 13.8.2007.
Being aggrieved and dissatisfied from the aforesaid award dated 31.7.2007 passed by the Labour Court, Bharuch in the aforesaid references and who has not approached to the labour court about their illegal termination also along with the present petitioners craves leave to this Hon'ble Court to preferred direct writ petition by way of Special Civil Application No.4732 of 2008 with 4733 of 2008 to 4761 of 2008 with 7350 of 2008 and 7621 of 2008, whereby this Hon'ble Court ((Coram : H.K. Rathod,J.) have been pleased to passed oral order on dated. 15.5.2008 and directed to the respondent authority which is read as under:
'it is directed to respondents to consider present petitioners for re-engagement as daily wager against work and vacancies whenever available with respondents and also against whatever nature of work is available with respondent and so long this petitioners are not re-engaged by respondent against vacancies and work, it is directed to respondent not to engage any new employees or fresh hands as daily wagers.'
4. In view of the aforesaid directions issued by this Hon'ble Court, the Respondent authority had re-engaged all petitioner w.e.f. 20.2.2009.
Since then all petitioners are working with the respondents till date. The said information gather under the Right to Information Act on dated. 8.6.2010.
5. The petitioners beg to submit that the respondents had re-engaged all petitioners as per the directions of this Hon'ble Court, but the respondents had given artificial breaks to the petitioners without any reason. The petitioners further state that by prejudice or victimization, the Respondent Authorities had issued one letter dated 18.9.2009 to the effect that the above mentioned petitioners who had been re-engaged in pursuance to the Court's order, will not have to worked more than 240 days in each calendar year and not to given work more than 240 days for avoiding future liabilities. Therefore, the respondents had given artificial breaks to the petitioners, which is illegal and arbitrary action of the respondents and also contrary to the law. Therefore, the restrain the respondents from their deliberate conduct for to given artificial breaks to the present petitioners, which is also not permissible under the law.
6. The petitioners are working with the respondents as directed by this Hon'ble Court and getting the wages on the basis of Minimum Wages Act. It is submitted to this Hon'ble Court that the circular dated 17.10.88 provides for the payment of minimum pay scale to the daily rated employees, whereas the paragraph no.2 provides for fixed salary plus dearness allowances and medical allowance as well as other benefits.
7. It is further required to be noted that similar situated daily wagers are being paid basic salary of Rs.2550/- plus dearness allowance plus medical allowance but the said benefits is not passed over to the petitioner and by denying the benefits to the petitioner, the respondents have violated the principals of equal pay for equal work. And by not giving the benefits of Circular dated 17.10.1988 in toto to the petitioner is nothing but hostile discrimination and denial of fundamental rights enshrined in Constitution of India.
Hence this petition. "
Prayers made by petitioners in para 18A, B, C and D are quoted as under:
"18A The Hon'ble Court may be pleased to issue writ of Certiorari and/or mandamu7s or any other appropriate writ, order or directions by directing the respondents to grant benefits of Minimum Pay Scale of Rs.2550.00 plus dearness allowance and medical allowances and be further direct to the respondent authorities not to give any artificial break to the present petitioners.
B. The Hon'ble Court may be pleased to issue writ of Certiorari and/or mandamu7s or any other appropriate writ, order or directions by directing the respondents to take into consideration the earlier services rendered by the petitioners prior to their individual termination.
C. The Hon'ble Court may be pleased to issue writ of Certiorari and/or mandamu7s or any other appropriate writ, order or directions by directing the respondents to follow the principals of equal pay for equal work as the same benefits is given to the other workmen.
D. This Hon'ble Court may be pleased to direct the respondents to comply with the directions of Circular dated 17.10.1988 in toto; and notification dated 3.8.2006."
Learned Advocate Mr. Devnani for petitioners relied upon order passed by this Court in identical facts and circumstances in Special Civil Application NO. 3200 of 2010 page 69 dated 12th March, 2010 and another order passed by this Court in Special Civil Application NO. 8617 of 2008 dated 27th June, 2008 page 83 annexure E wherein various decisions of Apex Court and Bombay High Court have been considered by this Court. Para 3 to 10 of order of this Court in SCA NO.8617 of 2008 dated 27.6.2008 are quoted as under:
3. Learned advocate Mr.Mulia appearing on behalf of petitioners submitted that present petitioners had earlier approached before this Court by way of filing SCA No.7491/2007 with SCA No.7710 to 8071/2007 wherein this Court has passed the order on 22.3.2007. After considering the entire facts, circumstances and law, this Court, ultimately, has passed the following order :
"9. In view of this back ground and detailed legal fight which ultimately resulted in nil, looking to the case of the petitioner, it is the duty of the State authority to consider case of petitioners, those who are without work since 15/20 years, for re-engagement. Petitioners are having award in their favour wherein the termination is set aside. Therefore, though relief of reinstatement or re-engagement has not been granted, since the termination has been set aside, it automatically includes reinstatement and/or re-engagement but specific direction has not been issued by the labour court and, therefore, they are not able to move any machinery for implementation of the award.
10. Therefore, considering the entire facts and circumstances of the case and the submissions made by the learned Advocates for the parties, it is directed to the respondents to consider case of petitioners for re-engagement of petitioners as daily wagers as and when work is available at above referred places and also consider that these are all tribal daily wagers not living in better condition in the society and therefore, it is directed to the respondents to examine grievance of petitioners raised in their notice dated 7.12.2006 with sympathetic approach purely on humanitarian ground and pass appropriate reasoned order in accordance with law within three months from the date of receipt of copy of this order and to communicate same to the petitioners immediately thereafter. Therefore, respondents are directed to consider case of petitioners with sympathetic approach purely on humanitarian approach and to see that the petitioners may be able to get work in the near future from the respondents and to pass appropriate reasoned order in accordance with law within three months from the date of receipt of copy this order and to communicate decision to the petitioners immediately thereafter. If the decision that may be taken by the respondents pursuant to these directions is adverse to the petitioners, then, it will be open for the petitioners to challenge the same before the appropriate forum in accordance with law.
11. Rule in each of the petitions is made absolute in terms indicated herein above with no order as to costs."
4. Learned advocate Mr.Mulia also submitted that the direction which has been given by this Court in aforesaid decision, the State Government has issued order on 4.8.2007 directing to the Superintending Engineer, Ukai Circle-C, Ukai to re-engage all these petitioners in service as they were employed prior to 1988 and therefore, grant the benefit of first paragraph of the GR dated 17.10.1988 and pay them minimum wages as required Para.1 of the circular. On the basis of the aforesaid order passed by the State Government, the Superintending Engineer has issued office order No.36/07 (page-35) whereby direction has been issued as per the State Government's order re-engaging all the petitioners in service as they were appointed prior to 1988 and granted the benefits as per Para.1 of GR dated 17.10.1988. Annexure-C (page-37) is the order dated 7.12.2007 passed by the Superintending Engineer on the same terms in favour of the petitioners. The petitioners have produced the GR dated 17.10.1988 which is at Annexure-D (page-39). Para.1 of the said GR dated 17.10.1988 provides that a daily wager labourer, who has not completed continuous service of five years, entitled the minimum wages as a daily wager, whereas Para.2 of the said GR provides that according to the provisions of Section 25B, a daily wager labourer, who has completed more than 5 years service on 1.10.1988 and less than 10 years service, then, daily wager labourer is entitled minimum pay scale as per prevailing rules including dearness allowance, casual leave and other holidays including the medical benefit. Learned advocate Mr.Mulia for the petitioners also submitted that re-engagement order was passed by respondents on the basis of the facts that these petitioners were employed prior to 1988 but, respondents have not considered the earlier service rendered by petitioners prior to 1988. He also submitted that if earlier service rendered by the petitioners prior to 1988 if it is taken into account, then, almost all the petitioners have completed more than five years service on 1.10.1988 and therefore, they entitled the benefit as per Para.2 and not as per Para.1.
5. Learned advocate Mr.Mulia also raised contention that Labour &Employment Department issued a Notification on 3.8.2006 for amending the Industrial Employment Standing Orders Act,1946. Clause 1(g) and 10 of the said Industrial Employment Standing Orders Act,1946 reads as follows:
"1(g) A 'fixed term employment' workman is a workman who has engaged on the basis of contract of employment for a fixed period. However, his working hours, wages, allowances and other benefits shall not be less than that of a permanent workman. He shall also be eligible for all statutory benefits available to a permanent workman proportionately according to the period of service rendered by him even though his period of employment does not extend to the qualifying period of employment required in the statute."
10. Subject to the provisions of the Industrial Disputes Act,1947 (XIV of 1947), no temporary workman whether monthly rated or weekly rated or piece rates, and no probationer or badli or fixed term employment workman as a result of non-renewal of contract of employment or on its expiry, shall be entitled to any notice or pay in lieu thereof, if his service are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in paragraph 25, sub-paragraph (4)."
6. Learned advocate Mr.Mulia also submitted that the State Government has amended the Industrial Employment Standing Orders and any daily wager temporary workman or fixed term employee or contract of employment, their salary is to be fixed, shall not be less than that of permanent workman. He also submitted that if the Government is amending the standing orders giving same wages at par with permanent employee, then, present petitioners, who are working at par with permanent employee, have been denied the pay scale. He further submitted that duty performed by these petitioners are at par with permanent employee and the nature of work, responsibility and qualification are similar as permanent employee discharging in the State Government. He also submitted that therefore, the petitioners claimed the benefit on the principles of 'equal pay for equal work'.
7. Learned advocate Mr.Mulia has placed reliance on the decisions of Apex Court in case of Union of India & Ors. v. Dineshan K.K. reported in 2008 (1) Scale 74. Relevant observations of the said decision are in Para.9, 10, 11, 12, 13 and 14 which are quoted as under :
"9. The principle of 'equal pay for equal work' has been considered, explained and applied in a catena of decisions of this Court. The doctrine of 'equal pay for equal work' was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors. , a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India . Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of 'equal pay for equal work' has assumed status of a fundamental right.
10. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association . Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.
11. In State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors. , a three-Judge Bench of this Court, dealing with the same principle, opined that principle of equal pay is dependent 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. The functions may be the same but the responsibilities do make a difference. It was held that the judgment of administrative authorities, concerning the responsibilities which attach to the post, 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.
12. In State of Haryana & Anr. Vs. Tilak Raj & Ors. , it has been observed that the principle of 'equal pay for equal work' is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organizations or even in the same organisation. It has been reiterated that this is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. It has been emphasized that the problem about equal pay cannot be translated into a mathematical formula.
13. Yet again in a recent decision in State of Haryana & Ors. Vs. Charanjit Singh & Ors. , a Bench of three learned Judges, while affirming the view taken by this Court in the cases of State of Haryana & Ors. Vs. Jasmer Singh & Ors. , Tilak Raj (supra), Orissa University of Agriculture & Technlogy & Anr. Vs. Manoj K. Mohanty and Government of W.B. Vs. Tarun Roy & Ors. has reiterated that the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of equal pay for equal work has no mathematical application in every case, it has been held that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who are left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of equal pay for equal work, it has been held that since the said principle requires consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the Court should not interfere till it is satisfied that the necessary material on the basis whereof the claim is made is available on record with necessary proof and that there is equal work and equal quality and all other relevant factors are fulfilled.
14. Tested on the touchstone of the aforenoted broad guidelines and not cast-iron imperatives, we are of the opinion that in the present case, on the pleadings and the material placed on record by the parties in support of their respective stands, the High Court was justified in issuing the impugned directions."
8. Learned advocate Mr.Mulia has also placed reliance on the decisions of Apex Court in case of Director General of Works, CPWD v. Regional Labour Commissioner, (Central) & Ors. reported in 2008 (2) Scale 183. Head Note of the aforesaid decision is quoted as under :
"LABOUR LAWS -
WAGES - Daily wagers - Entitlement of daily wagers to same wages as paid to 'permanent employees" employed to do 'identical work' - High Court referred to an order of this Court in Surinder Singh vs. The Engineer in Chief CPWD [1986 (1) SCALE 831."
9. Learned advocate Mr.Mulia has placed reliance on the decisions of Apex Court in case of Haryana State Minor Irrigation Tubewells Corporation & Ors. vs. G.S.Uppal & Ors . reported in 2008 (7) Scale 44. Relevant observations of the said decision are in Para.23 and 24 which are quoted as under:
"23. A careful examination shows that the issue was not really about grant of pay scales to Corporation Engineers on par with PWD Engineers. When the pay revision took place, the revised pay scales that were given to the Engineers of the State Government were also given to the engineers of the Corporation with effect from 1.1.1986 thereby maintaining the parity. What was not extended to the Corporation employees, which is the subject matter of the grievance, is the further revision by way of 'removal of anomaly in pay scales' given to AEE/AE/SDO/SDE of the State Government with effect from 1.5.1989 vide circular dated 2.6.1989 of the Finance Commissioner. The real question would be whether what is given by way of anomaly removal in the case of Engineers of State Government, should automatically be extended to the corresponding categories of engineers of the Corporation. When, after a pay revision, an anomaly is found in the pay scale given to a class of Government servants and such anomaly is rectified, it is not a new pay revision but a correction of the original pay revision, or an amendment to the pay scale that has already been granted. Therefore, where the pay revision extended to the government servants has already been extended to the employees of the Corporation also, it follows that any correction of anomaly in the revised pay scale given to the government servants should also be made in the case of those who were earlier given parity by extending the pay scale which is the subject matter of the correction. It should be borne in mind that the question whether Corporation engineers were on par with PWD Engineers and should be given parity in pay scales was already decided when the pay scale revision granted to Government (PWD) engineers was extended to the corporation Engineers also with effect from 1.1.1986. That question did not again arise when the anomaly in the pay revision was rectified with reference to the Government engineers. When the anomaly in the pay scale of Government engineers was rectified, the rectification should apply to Corporation engineers also to maintain the parity.
24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us."
10. Learned advocate Mr.Mulia has placed reliance on the decisions of Bombay High Court in case of Mahindra & Mahindra Ltd. Nagpur v. Avinash D. Kamble and Anr. reported in 2008 II CLR 265. Relevant observations of the said decision are in Para.22 and 45 which are quoted as under :
"22. It has to be noticed that by making the right type of noise about the globalization, liberalization, etc. the bureaucracy and a segment of employees are trying to create an impression as if labour and industrial law has undergone a sea-change because of globalization or liberalization. Such arguments are pushed through enterprising members of the legal fraternity to secure a shift in the law through judicial pronouncements, possibly under the mistaken belief that judiciary would bite the bait, forgetting that changes in law of this magnitude are brought by appropriate legislative instruments or subordinate legislation and not through speeches of Ministers or bureaucrats before Chambers of Commerce. No such change is seen to have been brought about by legislation in the law applicable in the present case. Even while talking of globalization or liberalization, these drummers of liberalization never take the trouble of pointing out as to which treaty obligation of India is sought to be invoked in order to justify a shift in the applicable law. To our mind, neither the United Nations nor the International Labour Organization have abdicated their concern in the well-being of the world citizen, for protecting the world citizen from exploitation. When the executive or legislature, who are the voice of people, are unwilling to usher changes in law, which would expose vulnerable segments of population, like labourers to exploitation by money power, it would improper to expect the judiciary, which has always aligned itself with the weak, the poor, the deprived, to align itself against the poor man. If the Legislature or the executive should so desire, they would undoubtedly bring in changes in law to bring it in tune with the assumed expectations of liberalization. There is no need to be more executive minded than the executive. Therefore, judgment in Umadevi's case cannot be read to have brought about any revolutionary change in law. It only corrected aberrations which had crept in due misapplication of judicial precedent.
45. We have carefully considered the rival contentions. There can be no doubt that ordinarily an employee claiming parity in pay with another employee would have to establish similarity in the work and responsibilities. However, as rightly contended by Shri Thakur, learned counsel for the workmen, it is not the case of the employer that temporaries are doing any different or lesser work or work of lesser responsibilities as compared to permanent employees. He submitted that while even temporaries are subjected to increased targets or output whenever there is a settlement between the union and the employer, the temporaries do not get the benefit of any wage revision. They merely bear the additional burden. Therefore, the learned Single Judge had rightly held that the workmen were entitled to parity in pay as well. We may also observe that the employer has not shown as to how the directions of the learned Single Judge are not correct by pointing out any actual difference in the work and responsibilities performed by temporaries vis-a-vis permanent employees of the same class. Therefore, even on this count, the conclusions drawn by the learned Single Judge cannot be faulted."
I have considered the aforesaid decisions which have been relied upon by learned advocate Mr. Devnani and the order passed by the State Government giving re-engagement to the concerned petitioners and paying the benefits as per Para.1 of the GR dated 17.10.1988. However, considering the facts which have been emerging from the petition, if the State Government has considered earlier services as they were employed prior to 1988 then, the Government has to consider the earlier service rendered by them prior to 1988 while granting the benefit under GR dated 17.10.1988. Therefore, it is directed to the respondents to consider the case of petitioners in light of the aforesaid background and considering various decisions of Apex Court and Bombay High Court as referred above and also factual aspect that they were employed prior to 1988, rendered number of years of service prior to 1988 and also consider their case for regular pay scale as per Para.2 of the GR dated 17.10.1988 for giving the benefit of minimum pay scale of Rs.2550/- plus dearness allowance, casual leave including the medical allowance within a period of two months from the date of receiving the copy of the said order and pass appropriate orders in accordance with law and communicate the decision to the petitioners.
Learned Advocate Mr. Devnani for petitioners raised contention that after re-engagement has been made in favour of petitioners, respondents are adopting practice of giving artificial break in service to see that petitioners may not be able to complete 240 days continuous service and can claim other service benefits. If that be so, it is directed to respondents to consider these facts that if services of present petitioners are required continuously, then, not to grant any artificial break in their service without any justification or valid reason.
In view of the aforesaid observations and directions, present petition is disposed of. Direct service is permitted.
(H.K.RATHOD,J.) Vyas Top