Allahabad High Court
Shadab Beg And 2 Others vs Chairman U.P. State Warehousingh ... on 9 November, 2017
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 28 Case :- WRIT - A No. - 5163 of 2017 Petitioner :- Shadab Beg And 2 Others Respondent :- Chairman U.P. State Warehousing Corporation & 2 Others Counsel for Petitioner :- Pankaj Srivastava Counsel for Respondent :- Mohit Singh,S.C.,Satyam Singh,Shiv Nath Singh Hon'ble Saumitra Dayal Singh,J.
This writ petition has been filed by the petitioners, seeking for the following relief:
"(i) issue a writ, order or direction in the nature of mandamus directing the respondents to pay Rs. 15,750/- per month in place of Rs. 7,952/- per month to the petitioners working on Group 'D' post (Casual Labour), and Rs. 17,393/- per month in place of Rs. 9,719/- per month to the petitioners working on Group 'C' post (Casual Clerk) in view of the law laid down by the Hon'ble Supreme Court in the matter of State of Punjab Vs. Jagjit Singh and others till their services are regularized in terms of judgement rendered in the Writ Petition No. 7621 (S/S) of 2008 (Ram Naresh and others Vs. State of U.P. and others);
(ii) issue a writ, order or direction in the nature of mandamus directing the respondent no. 2/3 to forthwith take decision in respect of payment of 'equal pay for equal work' in terms of the judgement of the Hon'ble Supreme Court dated 26.10.2016 in Civil Appeal No. 213 of 2013 (State of Punjab Vs. Jagjit Singh and others) which has also been agreed in principle in the joint meeting of the management and the employees' union held on 24.08.2016 (Annexure No. 7 to this writ petition);
(iii) issue a writ, order or direction in the nature of mandamus directing the respondents to forthwith release the payment of bonus for the financial years 2014-15 and 2015-16 to the petitioners and all other employees of the Corporation."
Briefly, the facts giving rise to the present petition are that the respondents - U.P. State Warehousing Corporation (hereinafter referred to as the corporation), is a corporation established under the Warehousing Corporation Act, 1962 (hereinafter referred as to 'the Act'). The petitioners claim to have been engaged and working in the respondent corporation as 'monthly fixed emoluments paid' employees. Petitioner no.1 Shadab Beg claims to have been engaged on 24.06.2001 as a casual employee; petitioner no.2 Sharif Ahmad claims to have been engaged on 31.05.2001 as a casual clerk and; petitioner no.3 Jitendra Kumar Shukla also claims to have been engaged on 26.04.2001 as a casual clerk. The petitioners claim they have been working on the aforesaid positions continuously and that though there are substantive vacancies on those posts in the corporation, the petitioners are neither being regularised nor are they being paid the minimum of wages.
In this background, the petitioners first raised a claim to be regularized. In that respect, they relied on certain resolutions passed by the board of directors of the corporation to regularize all casual employees. An approval was also sought from the state government (that has a shareholding in the corporation). However, such approval was not granted. Subsequently, contrary to the earlier resolution of the board of directors of the corporation, it's then Managing Director sought to fill up the vacancies through direct recruitment. This gave rise to a challenge in Writ Petition No. 7621 (S/S) No. 2008 which came to be allowed by the judgment of a learned single judge of this court dated 18.04.2011, with the following observations:
"I am of the considered view that once the Board of Directors took a decision to regularize the petitioners by following the earlier practice prevailing in the department, there was no need to seek approval of Government, even if it sought so, it was only empty formality, the denial of which has no adversely affect upon the decision of the Board. Therefore, I hereby quash the order dated 17th of May, 2009, issued by the State Government as well as the Advertisement No. 3 dated 13th of November, 2008 with liberty to the Board of Directors to implement its own decisions for regularization of the petitioners within a reasonable time."
Three Special Appeals were filed against the aforesaid judgment of the learned single judge. One by the state government, the other by the corporation and the third by those individuals who had been purportedly selected under the advertisement impugned in the writ petition. All three special appeals were dismissed by the judgment of the division bench dated 20.03.2013. However, at the same time, the division bench modified the judgment of the learned single judge to the following effect:
"64.In view of above, the impugned judgment and order passed by Hon'ble Single Judge requires no interference on merit but it requires some modification in terms of the finding recorded hereinafter:-
(I) Policy decision means a decision in rem, not in personem.
(II) Sub Section (4) of Section 20 may not be read in isolation but it should be read conjointly along with Sub Section(5) of Section 20 of the Act which provides that in the event of conflict with regard to the question of policy between the Central and State Warehousing Corporation, the matter shall be referred to the Central Government whose decision shall be final. A conjoint reading of Sub Section (4) and Sub Section (5) of Section 20 reveals that the policy decision should be pre-existing policy regulating an issue. In absence of any pre-existing policy decision, that too keeping in view Section 23 of the Act, the Board of Directors is empowered to take decision with regard to recruitment and appointment of its officers and staff, regulate service conditions.
Whether the government has got right to regulate the service conditions of the Corporation by taking a policy decision under the teeth of Section 23 of the Act is a question, which we leave open in case raised in appropriate case.
(III) Statutory corporations are autonomous bodies to some extent and the government lacks jurisdiction to interfere in their day to day functioning. Statutory corporations are juristic personality and they may sue and may be sued. Being legal entity, they have right to discharge their obligations in accordance with statutory provisions. The government lacks jurisdiction to interfere in their day to day functioning.
(IV) Under Section 23 of the Act, the appellant U.P. Warehousing Corporation has got right to make appointment of officers and employees. A decision to fill up the vacancies in accordance with rules is to be taken by the Corporation itself and the Government has not been conferred power under the Act to interfere in the matter.
Of course, the Corporation while taking a decision to make recruitment of officers and employees has to abide by law. Instead of sending the matter to the State Government for seeking approval for regularization, the Board of Directors should have taken a decision on its own within the four corners of Section 23. Appropriate Scheme or regulation should have been framed by the Board of Directors for regularization and continuance of almost 2000 respondent employees working since more than decade.
(V) Since out of 55 posts, 30 posts have been reserved leaving 25 posts for general category, the impugned advertisement suffers from the vice of arbitrariness in view of settled principle of law (supra).
In view of above, all the special appeals deserve to be and are dismissed on merit. The impugned judgment and order is affirmed with the modification that it shall be open for the Board of Directors of the appellant State Warehousing Corporation to take a fresh decision with regard to fate of the respondent employees and to fill up the vacancies by fresh advertisement keeping in view the observation made in the body of judgment."
It is then stated, against the aforesaid judgment of the division bench, Special Leave Petition was filed by the private individuals who were claiming benefit of direct recruitment process. That too was dismissed on 29.07.2013.
However, petitioners remained aggrieved because according to them, the corporation did not frame any regulations to regularise the casual employees of the corporation. Also, according to them, the direct recruitment was again sought to be made in the year 2013 wherein 50% posts were filled up through regularisation and the remaining 50% posts through direct recruitment. This issue is stated to be sub-judice in Writ Petition no. 69057 of 2013 (Maheshwari Prasad Rai Vs. State of U.P. and Others) which is pending before a division bench of this Court. However, it is undisputed that there is no interim order in that writ petition.
Thus the right to regularization claimed by the petitioners has been finally adjudicated by a division bench of this Court vide its judgment dated 20.03.2013, in Special Appeal No. 399 of 2011 (noted above). In short, it has been held that it is the sole prerogative of the corporation, to regularise its employees, without any interference by the state government. The method to be adopted to regularise the petitioner and other employees of the corporation has also been laid down in that judgement. As to the implementation of the method to regularise existing casual and other workers, the dispute if any is again engaging the attention of another division bench and such dispute has therefore rightly not been raised in this writ petition.
The petitioners are presently seeking higher wages by invoking the principle of equal pay for equal work viz a viz the regular employees of the respondent-corporation. Thus petitioner no. 1 claims parity with group 'D' employees of the corporation while petitioner nos. 2 and 3 claim parity with group 'C' employees of the corporation. In this regard, according to learned counsel for the petitioners pleadings have been laid out in paragraphs 20 to 26 of the writ petition that are quoted herein below:-
"20. That since the petitioners have been working against the substantive vacancies and performing the regular duties more than the regular employees and perform their duties more than 10 hours everyday and under these circumstances, they cannot be denied the regular pay-scale in view of the law laid down by the Hon'ble Supreme Court in the aforementioned in Civil Appeal No. 213 of 2013 (State of Punjab Vs. Jagjit Singh and others) vide its judgment dated 26.10.2016.
21. That the illegally recruited persons who are more than 15 years' junior to the petitioners are getting their salary in the regular pay-scale with all allowances and as such are getting more than three times than the petitioners more so when their entire recruitment itself is void ab initio.
22. That in view of the facts and circumstances stated above it is necessary in the interest of justice that the respondents be directed to pay to the petitioners the regular pay-scale with all allowances as admissible to Group 'C' and Group 'D' employees in the corporation in terms of the judgment dated 26.10.2016 passed by the Hon'ble Supreme Court in Civil appeal No. 213 of 2013 (State of Punjab Vs. Jagjit Singh and others) till the services of the petitioner are regularised in terms of the judgment and order passed in Writ Petition No. 7621 (S/S) of 2008 (Ram Naresh and Others Vs. State of U.P. and Others) which was affirmed by the Division Bench of this Hon'ble Court in Special Appeal No. 399 of 2011 (U.P. State Warehousing Corporation Vs. Sunil Kumar Srivastava) and affirmed by the Hon'ble Supreme Court on 29.07.2013 in Civil Appeal No. 12793 of 2013 (Vipin Kumar Srivastava and Others Vs. State of U.P. and Others).
23. That as per the judgment of the Hon'ble Supreme Court delivered in Civil appeal No. 213 of 2013 (State of Punjab Vs. Jagjit Singh and others) the petitioners fulfill the following parameters:
(a) There are total 170 Warehouse Depots of the U.P. State Warehousing Corporation in the entire State of U.P. and in all such Warehouse Depots 75% employees on Group 'D' posts are fixed wages/casual employees who do not get any Basic Pay, Grade Pay and D.A. Etc. whereas only 25% Group 'D' employees are permanent who get Basic Pay, Grade Pay and D.A. etc. and these 25% Group 'D' employees were in 2011 and now most of them have retired and the ratio has come down to less than 20%. The job in the Warehouse Depots is a 24 hours job because the primary function of the U.P. State Warehousing Corporation is of the storage of food grains as provided under Section 24 of the Warehouse Corporation Act, 1962. The food grains are received in the Warehouse Depots through Goods Trains normally and a Goods Train carrying food grains has more than 50 bogies and after a Goods Train reaches the good grains have to be downloaded within 24 hours and have to be transported and stored in the Warehouse Depots. The petitioners are involved in the storage of food grains which is a job not of 10.00 A.M. to 5.00 p.m. but any time they are summoned and they have to continue with the work till the entire food grains are transported and stored in the Warehouse Depot in accordance with the scientific parameters. It is a highly tough physical job of keeping the bags of food grains in the scientific manner in the Warehouse Depots. Since at present less than 20% Group 'D' staff is permanent and they are aged persons in the age group of 50 years old onwards, the entire physical exertion is on the shoulders of the petitioners who are younger in age. As a matter of practice the petitioners perform more than four times job than a regular/permanent employee but they get monthly fixed wages 50% less than regular/permanent staff details whereof are as follows:
Proposed Pay Wages being paid at present Sl. No. Name of the posts No. of Posts Basic Pay Grade Pay D.A. Total Wages Per month E.S.I. Corporation contribution (4.75%) Total 01. Casual Labour 813 5200 1800 8750 15750-00 7591 361 7952 02. Casual Clerk 586 5830 1900 9663 17393-00 9278 441 9719
(b) It is an undisputed question and settled by the learned Single Bench in Writ Petition No. 7621 (S/S) of 2008 Ram Naresh and others Vs. State of U.P. and others, which is affirmed by the Hon'ble Division Bench and the Hon'ble Supreme Court that the petitioners are working against substantive vacancies. It is tragic that against the substantive vacancies two types of payments are made. One set of employees are permanent who get minimum Rs. 15,750/- per month whereas the petitioners who do the maximum job but get Rs. 7,952/- and thus they get Rs. 7,798/- less per month. Both the permanent and casual employees get their salary/wages on one date. It is not the case that the petitioners get their wages/salary every day. This discrimination done by the respondents is in violation of Article 14,16 and 21 of the Constitution of India and is a deviation from Article 7 of the Constitution of India and the International Covenant on Economic, Social and Cultural Rights, 1966 of which our country is a signatory of the above Covenant having ratified the same on 10.04.1979. The Article 7 of the Constitution of India is reproduced below:
"Article 7 The State parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with;
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."
(c) The Corporation cannot escape its obligation in view of Article 14, 16, 21 and 141 of the Constitution of India to pay 'equal pay for equal work'.
(d) Since it has been adjudicated on 18.04.2011 in the Writ Petition No. 7621 (S/S) of 2008 Ram Naresh and others Vs. State of U.P. and others that the petitioners perform the entire duties and responsibilities as are being discharged by the regular employees holding the same post, therefore, till the process of regularization is not started and completed they are entitled to be paid 'equal pay for equal work' in view of the mandate of the Hon'ble Supreme Court in the matter of State of Punjab vs. Jagjit Singh and others.
(e) Due to extraordinary physical work which the petitioners perform, the U.P. State Warehousing Corporation which was running in losses before their joining is now running in profit for the last 15 years and it is the huge profit generating corporation of the State of U.P. and, therefore, the respondents cannot deprive the petitioner of 'equal pay for equal work' till their services are regularized.
24. That it has been settled by this Hon'ble Court in Writ Petition No. 7621 (S/S) No. 2008 Ram Naresh and others Vs. State of U.P. and others that the petitioners are performing the entire duties and responsibilities of regular employees and the Casual Labours and Casual Clerks constitute 75 % workforce of the U.P. State Warehousing corporation, therefore, they are entitled to b paid 'equal pay for equal work' i.e. the Basic Pay, Grade Pay, D.A. etc. instead of fixed wages on the posts in question.
25. That it is highly discriminatory on the part of the respondents after the declaration of the judgment in Writ Petition No. 7621 (S/S) No. 2008 Ram Naresh and others Vs. State of U.P. and others, five years back as the petitioners continue to get at present Rs. 7,952/- per month in place of Rs. 15,750/- per month and as such they are being paid Rs. 7,798/- less per month.
26. That on 18.03.2011 this Hon'ble Court declared that there are 75% employees on Group 'C' and Group 'D' posts in the Corporation who are on fixed wages and by the year 2016 the fixed wages have been reduced to 20% and as the 80% work is being done by casual clerks and casual labours they are entitled to be paid regular pay- scal till their services are regularised in view of the law laid down by the Hon'ble Supreme Court in the matter of State of Punjab Vs. Jagjit Singh and Others."
Relying on the aforesaid pleadings, which in effect have not been denied in the counter affidavit, learned counsel for the petitioners submits that the petitioners are performing the same duty as that of group D and group C employees of the corporation who have been regularly appointed and therefore, the petitioners are entitled to the same wages and emoluments.
Further, learned counsel for the petitioners has relied on a judgment of the Supreme Court in the case of State of Punjab Vs. Jagjit Singh passed in Civil Appeal No. 213 of 2013 decided on 26.10.2016. Specifically, he relies on paragraphs 54 and 55 of that judgment which is quoted herein below:-
"54. There is no room for any doubt, that the principle of ''equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of ''equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
55. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation."
Learned counsel for the petitioners also relies on the findings recorded by the learned single judge in the judgment dated 18.04.2011 passed in Civil Misc. Writ Petition No. 7621 (S/S) of 2008 Ram Naresh and others Vs. State of U.P. and others. Then, reliance has also been placed on the language used in the resolutions passed by the board of directors of the corporation including one annexed as part of Annexure-1 at pg 59 of the writ petition. He therefore submits, there is no dispute to the fact that the petitioners may be categorized as daily wage or casual employees and that they are performing same work and duties as those performed by regularly appointed employees of the corporation. They are, therefore, entitled to payment of same wages and emoluments.
Opposing the writ petition, Sri Shiv Nath Singh, learned counsel appearing for the respondent corporation first submits, the present dispute has no concern with the earlier litigation with regard to regularization. With respect to the selection process conducted by the corporation in the year 2013 learned counsel for the respondents submits, the said selection process was conducted by the corporation strictly in accordance with law inasmuch as such casual employees who had become eligible for regularization, have been regularized and the balance 50% were technical or skilled posts etc. on which regularization could not be offered in absence of suitable candidates being available. Therefore, according to him, there was no violation of regularization policy.
Second, the surviving dispute pertaining to the issue of regularization is as per the stand was taken by learned counsel for the petitioner, engaging the attention of the division bench in another writ petition. Therefore, that issue is not required to be considered in these proceedings, to any extent.
Then, in respect of the claim made by the petitioners for payment of 'equal pay for equal work'. Sri Shiv Nath Singh, learned counsel appearing for the respondent-corporation submits, in Civil Misc. Writ Petition No. 7621 (S/S) of 2008 Ram Naresh and others Vs. State of U.P. and others, this Court never adjudicated the issue raised by the present petitioners that they are performing same nature or extent of duties that are being performed by the regularly appointed employees of the corporation. According to him, the said issue is still an open question inasmuch as no finding has yet been returned on that issue in an earlier proceeding.
Also, according to him, the said issue, by very nature, is a highly disputed question of fact that cannot be adjudicated in writ proceedings. He, therefore, submits the only remedy available to the petitioners would have to either approach the Industrial Tribunal or Labour Court under the U.P. Industrial Disputes Act or Industrial Disputes Act as the case may be, or if the petitioners were to claim they are not workmen as defined under the aforesaid Acts, then they may approach the Tribunal under the U.P. Public Services Tribunal Act, 1976.
In any case, he submits, the relief of equal pay for equal pay may be granted only after the petitioners first discharge the burden to prove essential fact as to nature and extent of duties performed not only by the petitioners but also by persons with whom they claim parity. According to him, the pleadings made by the petitioners, in this regard are wanting/lacking in material part. Thus, according to him, since the petitioners have not discharged the burden, they cannot claim the right, notwithstanding the status of denial made in the counter affidavit filed by him.
Having considered the arguments advanced by learned counsel for the parties, it is to be first noted, while in the case of State of Punjab Vs. Jagjit Singh (supra), the Supreme Court did extend and apply the principle of equal pay for equal work to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like), at the same time in paragraph 54, the Supreme Court noted that the legal position with regard to such temporary employees has been summarised in paragraph 44 of that judgment. Paragraph 44 of the aforesaid judgment reads as under:-
"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 Chamoli 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 case 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 case.
(iii) In the Bhagwan Dass case 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 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 case 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 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 case, 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 case, 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. v. 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.
(ix) In the Uttar Pradesh Land Development Corporation case 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."
Thus, the Supreme Court traced the principle of equal pay for equal work to Article 14 of the Constitution of India. Then it was held the application of the principle would remain unaffected by factors whether the claimant was a temporary employee or had worked for a short while or had been selected through another process or had been appointed on contract.
At the same time, the Supreme Court did recognize the rule that the claim for equal wages would be sustained where an employee is required to perform similar duties and responsibilities as regular employees and the concerned employee possess the qualifications prescribed for the post. Thus the petitioners were first required plead and prove that the qualification prescribed for appointment; nature and extent of duty to be performed; the number of hours required to be worked on the reference post (with which the petitioners claim equality of pay), is same as the subject posts on which the petitioners are presently working. These issues are purely factual.
Then, at the same time, in State of Punjab Vs. Jagjit Singh (supra), in paragraph 45, the Supreme Court took note of its earlier judgements where the claim of equal pay for equal work had been denied/not granted, in absence of the claimant establishing he was rendering duties and responsibilities similar to those of regular employees. It was also noticed that such facts had to be established through strict pleadings and proof.
Also, with respect to the judgement of the Supreme Court in the case of State of Haryana Vs Jasmer Singh, it recorded its analysis to the effect that the said judgement was distinguishable as in that case the relief of equal pay for equal work was denied amongst others because the claimants (in that case) (i) were not selected through the same process (ii) were not required to possess the same qualifications (iii) did not fulfill the age criteria (iv) were not subjected to disciplinary proceedings (v) were not transferable etc. The Supreme Court then noted that the judgement in the case of State of Haryana Vs Jasmer Singh (supra) had not considered the earlier judgement in the case of Bhagwan Dass. It then concluded, mode of recruitment, the applicability of disciplinary rules, temporary nature of engagement, non-transferable nature of the claimants, length of service cannot be grounds to deny equal pay for equal work. To that extent, the decision in the case of State of Haryana Vs Jasmer Singh was held to have been wrongly decided as it was found to have been decided contrary to earlier decisions, some by larger bench of that Court.
At the same time, a point of distinction was also noticed i.e. in the case of State of Punjab and Ors Vs Jagjit Singh, there was no dispute as to minimum qualification prescribed being different. However, that criteria was recognized as valid. Again, the Supreme Court did recognize that it is settled principle that the onus or burden to establish the existence of factors that may entitle a person to claim equal pay for equal work rests on the shoulders of the person who makes that claim.
In this regard, the pleadings made in paragraphs 20 to 26 of the writ petition are wholly inadequate. Besides stating the nature of work required to be performed at the warehouse of the corporation and the difference of wages paid to petitioners and regularly appointed employees as also the fact that there are vacancies existing, no fact has been pleaded such that may establish similarity of eligibility or the nature of work or the extent of duties and responsibilities required to be discharged by the petitioners are same or so similar to those required for regular Group D and Group C posts in the corporation as may warrant application of principle of equal pay for equal work. By making general statement that only 25% group D employees are permanent or that the petitioners are involved in the storage of foodgrains or that they perform physically strenuous job or they perform four times work more than regular/permanent employees it cannot be stated that those facts stood proved because there is no specific denial to the same in the counter affidavit.
For the claim to be taken as proved, the petitioners were burdened to plead the exact terms the nature and extent of duties performed and responsibilities discharged by them with reference to actual facts, both with respect to the posts they hold (subject posts) as also those of the regular employees of the corporation working on Group D & Group C posts (reference posts). By merely stating petitioners were performing four times more work, without anything more, it cannot be taken to have been pleaded or proven that the petitioners were performing same nature and extent of work and duties and discharging same responsibility. No detail of such duty having been given and no evidence having been adduced, it cannot be concluded that the petitioners were performing the same nature and extent of duties or were discharging the same duties. Thus neither the burden was discharged nor the onus ever shifted on the corporation to deny the claim or to lead evidence to establish that the petitioners do not perform work equal to that required to be performed on the reference posts with which they claim equality of pay.
Then as to eligibility qualification prescribed for recruitment against regular/reference posts and that prescribed for recruitment as 'monthly fixed emoluments paid' employees or that possessed by the petitioners, the writ petition is completely silent. No pleading whatsoever has been made in the writ petition in this regard. Thus the burden in that regard has not at, even been attempted to be discharged, to any extent. At the same time the very judgment of the Supreme Court in the case of State of Punjab and Ors Vs. Jagjit Singh did recognise difference of minimum eligibility qualification to be a valid criteria to deny equal pay inasmuch as the earlier judgment of that Court in the case of State of Haryana Vs. Jasmer Singh was distinguished on this criteria.
It may also not be forgotten that the judgement of the Supreme Court in the case of State of Punjab and Ors Vs Jagjit Singh involved the question whether temporarily engaged employees are entitled to the minimum of the regular pay scale etc. It then took note of entire gamut of law on the subject. Thereafter, in paragraph 42 of the judgement, while recording its consideration of the law, the Supreme Court observed under:
"42. All the judgments noticed in paragraphs 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of ''equal pay for equal work'. The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them, were against the same post for which a higher pay-scale was being allowed, in other Government departments. Or alternatively, their duties and responsibilities were the same, as of other posts with different designations, but they were placed on a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of ''equal pay for equal work' was invoked and considered, it would be just and appropriate, to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of ''equal pay for equal work'. Our consideration has led us to the following deductions:-
(i) The ''onus of proof', of parity in the duties and responsibilities of the subject post with the reference post, under the principle of ''equal pay for equal work', lies on the person who claims it. He who approaches the Court has to establish, that the subject post occupied by him, requires him to discharge equal work of equal value, as the reference post (see - the Orissa University of Agriculture & Technology case, Union Territory Administration, Chandigarh v. Manju Mathur, the Steel Authority of India Limited case, and the National Aluminum Company Limited case)
(ii) The mere fact that the subject post occupied by the claimant, is in a "different department" vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of ''equal pay for equal work'. Persons discharging identical duties, cannot be treated differently, in the matter of their pay, merely because they belong to different departments of Government (see - the Randhir Singh case, and the D.S. Nakara case).
(iii) The principle of ''equal pay for equal work', applies to cases of unequal scales of pay, based on no classification or irrational classification (see - the Randhir Singh case). For equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case, the Mewa Ram Kanojia case, the Grih Kalyan Kendra Workers' Union case and the S.C. Chandra case).
(iv) Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay, and cannot claim the benefit of the principle of ''equal pay for equal work' (see - the Randhir Singh case, State of Haryana v. Haryana Civil Secretariat Personal Staff Association, and the Hukum Chand Gupta case). Therefore, the principle would not be automatically invoked, merely because the subject and reference posts have the same nomenclature.
(v) In determining equality of functions and responsibilities, under the principle of ''equal pay for equal work', it is necessary to keep in mind, that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay-scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see - the Federation of All India Customs and Central Excise Stenographers (Recognized) case and the State Bank of India case). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of ''equal pay for equal work' (see - State of U.P. v. J.P. Chaurasia, and the Grih Kalyan Kendra Workers' Union case).
(vi) For placement in a regular pay-scale, the claimant has to be a regular appointee. The claimant should have been selected, on the basis of a regular process of recruitment. An employee appointed on a temporary basis, cannot claim to be placed in the regular pay-scale (see - the Orissa University of Agriculture & Technology case).
(vii) Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as - ''selection grade', in the same post. But this difference must emerge out of a legitimate foundation, such as "merit, or seniority, or some other relevant criteria (see - State of U.P. v. J.P. Chaurasia).
(viii) If the qualifications for recruitment to the subject post vis-a- vis the reference post are different, it may be difficult to conclude, that the duties and responsibilities of the posts are qualitatively similar or comparable (see - the Mewa Ram Kanojia case, and Government of W.B. v. Tarun K. Roy). In such a cause, the principle of ''equal pay for equal work', cannot be invoked.
(ix) The reference post, with which parity is claimed, under the principle of ''equal pay for equal work', has to be at the same hierarchy in the service, as the subject post. Pay-scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see - Union of India v. Pradip Kumar Dey7, and the Hukum Chand Gupta case).
(x) A comparison between the subject post and the reference post, under the principle of ''equal pay for equal work', cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see - the Harbans Lal case). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see - Official Liquidator v. Dayanand).
(xi) Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of ''equal pay for equal work' would not be applicable. And also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see - the State Bank of India case).
(xii) The priority given to different types of posts, under the prevailing policies of the Government, can also be a relevant factor for placing different posts under different pay-scales. Herein also, the principle of ''equal pay for equal work' would not be applicable (see - State of Haryana v. Haryana Civil Secretariat Personal Staff Association).
(xiii) The parity in pay, under the principle of ''equal pay for equal work', cannot be claimed, merely on the ground, that at an earlier point of time, the subject post and the reference post, were placed in the same pay- scale. The principle of ''equal pay for equal work' is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see - State of West Bengal v. West Bengal Minimum Wages Inspectors Association).
(xiv) For parity in pay-scales, under the principle of ''equal pay for equal work', equation in the nature of duties, is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see - Union Territory Administration, Chandigarh v. Manju Mathur).
(xv) There can be a valid classification in the matter of pay-scales, between employees even holding posts with the same nomenclature i.e., between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see - the Hukum Chand Gupta case), when the duties are qualitatively dissimilar.
(xvi) The principle of ''equal pay for equal work' would not be applicable, where a differential higher pay-scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see - the Hukum Chand Gupta case).
(xvii) Where there is no comparison between one set of employees of one organization, and another set of employees of a different organization, there can be no question of equation of pay-scales, under the principle of ''equal pay for equal work', even if two organizations have a common employer. Likewise, if the management and control of two organizations, is with different entities, which are independent of one another, the principle of ''equal pay for equal work' would not apply (see - the S.C. Chandra case, and the National Aluminum Company Limited case)."
(emphasis supplied) Thus, in the very judgment that forms the bedrock of the argument advanced by learned counsel for the petitioners, the Supreme Court besides recognising & enumerating various valid criteria to be considered for grant of relief of equal pay, including the criteria of nature, extent & sensitivity of work as also eligibility qualification, also specifically held that the onus of proof in such matters rests on the claimant/employee and not the employer.
Also, the claimed efficiency of an individual is neither a measurable criterion nor it may be relevant to be considered with reference to a claim for equal pay for equal work. Higher efficiency may certainly create a favourable circumstance to retain a person on a post, even on temporary basis. It may also benefit his work appraisal and thus his future prospects but not his entitlement to wages with reference to a post at the minimum of scale. Thus in absence of it being first established that the petitioners are performing the same nature and extent of duties and responsibilities as regularly appointed persons and further in absence of it being established that they possess the eligibility qualification prescribed for the regular/reference posts, it is wholly immaterial and or irrelevant or at least wholly inadequate whether the petitioners are more efficient than same permanent employees.
Looked from this perspective, the petitioners have not discharged the burden to prove that they are performing duties that are same in nature, extent, responsibility and sensitivity with that required or prescribed on the reference posts - being Group C and Group D posts with which they claim equal pay. At the same time, it has also not been shown that the essential qualification for the two posts is the same or that the petitioners possess the eligibility qualification of the posts of Group D (for petitioner no. 1) and Group C (for petitioner nos. 2 & 3).
As to whether relief of equal pay for equal work may be granted in absence of material being available to the Court, the Supreme Court, in the case of Union of India v. Pradip Kumar Dey reported in (2000) 8 SCC 580 held such relief could not be granted even though in that case there existed internal departmental recommendations in favour of relief being granted. The recommendations were not relied upon by the Court because the same also did not bring out a comparative analysis of the reference post and the subject post. Also, the recommendation was not one made by the government. Also, the Court held, a mere recommendation would not create a right to receive equality of pay, as claimed. While it is true that in case before the Supreme Court the equality claimed was by employees i.e. Radio Operators working in civil side in the Central Water Commission with Radio Operators of CRPF and the Directorate of Police Wireless while in the instant case the equality claimed is within the same organisation, yet the test to be applied would remain the same.
The discussion made by the Supreme Court and the reasoning given to repel the claim of equal pay, which is also relevant to the present case is as below:
"8. In our considered view, the Division Bench of the High Court was not right and justified in straight away giving direction to grant pay scale to the respondent when there was no material placed before the Court for comparison in order to apply the principle of "equal pay for equal work" between the Radio Operators of CRPF and the Radio Operators working in civil side in the Central Water Commission and the Directorate of Police Wireless. In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in the absence of such material it was not possible to grant relief to the respondent. No doubt, the Directorate of CRPF made recommendations to the Pay Commission for giving higher pay scales on the basis of which claim is made by the respondent for grant of pay scale. The factual statements contained in the recommendation of a particular department alone cannot be considered per se proof of such things or they cannot by themselves vouch for the correctness of the same. The said recommendation could not be taken as a recommendation made by the Government. Even otherwise a mere recommendation did not confer any right on the respondent to make such a claim for writ of mandamus".
(emphasis supplied) Then in paragraph 14 of that judgement, as to the forum to agitate such demands, the Supreme Court reasoned, that is such cases, barring instances of hostile discrimination being established before them, Courts should normally leave these matters to the administrative wisdom of the employer. In this regard, it was held as below:
"14. In this background as to the position of law touching the controversy raised in this appeal, we have no hesitation in holding that the impugned judgment and order are unsustainable. The learned counsel for the appellants placed before us a chart showing difference in pay scales, facilities, other allowances, leave period, providing accommodation, etc. for the purpose of comparison between the pay scales and other facilities of the respondent and similar other employees working in the Directorate of Coordination Police Wireless and other central government agencies. The learned counsel for the respondent reiterated that the nature of duties and responsibilities of the respondent are not only similar when compared to other employees similarly placed, but on the other hand they are more hazardous. It is an indisputable fact that the pay scales now claimed by the respondent are those prescribed for the post of Assistant Sub-Inspector. As already noticed above, it is once again a promotional post for a Naik. Acceding to the claim made by the respondent would not merely result in change in the pay scales but may also lead to alteration of the pattern of hierarchy requiring reorientation and restructuring of the other posts above and below the post of respondent. Added to this, such consequences are likely to be felt in the various other central police establishments as well. All these which are likely to have a chain reaction, may require further consideration afresh by an expert body like the Pay Commission or the Government itself at an appropriate time in an appropriate manner. Courts should normally leave such matters for the wisdom of administration except the proven cases of hostile discrimination. But in the case on hand, having regard to the facts and circumstances of the case and the position of law stated above, the Division Bench of the High Court was not right in granting the relief itself, straight away to the respondent; that too, without examining the implications and impact of giving such directions on other cadres. However, we make it clear that the rejection of the claim of the respondent need not be taken as an issue closed once and for all. It is always open to the Government to consider the issue either by making reference to the Pay Commission or itself once again as to the grant of pay scales to the respondent. It is open to the respondent to make further and detailed representation."
(emphasis supplied) Then again, as to limitations of the exercise of jurisdiction of High Court under Article 226 of the Constitution of India, to grapple with a controversy such as this, which on the face requires application of an equitable principle, yet it first requires a test to be applied to establish existence of essential facts before the claim may be allowed, the Supreme Court in Govt. of A.P. v. P. Hari Hara Prasad reported in (2002) 7 SCC 707 held as below:
"4. First we would consider the case in respect of employees of subordinate courts. The pay scales claimed by them on the basis of the government order of 1971 have been accepted by the High Court holding that posts in the two services are identical and the officials in the two different services perform same nature of duties. The two sets of employees are governed by different rules and, therefore, their pay scales and other conditions of service are to be governed by the respective rules applicable to them. Ordinarily, it is not permissible to go into the nature of duties of employees while exercising writ jurisdiction under Article 226 of the Constitution of India and on that basis direct grant of pay scales which are applicable to employees of a different service. The question of grant of parity of pay to the employees of the courts came up for consideration before a three-Judge Bench in State of Maharashtra v. Assn. of Court Stenos, P.A., P.S. [(2002) 2 SCC 141 : 2002 SCC (L&S) 218] Referring to the decision in Supreme Court Employees' Welfare Assn. v. Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569] it has been held therein that the judgment of the High Court in exercise of its jurisdiction under Article 226 issuing writ of mandamus directing a particular scale to be given to the court's Stenographers, Personal Assistants and Personal Secretaries attached to the Hon'ble Judges of the High Court cannot be sustained. It has further been held that it is no doubt true that the doctrine of "equal pay for equal work" is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary jurisdiction under Article 226 to examine the nature of work discharged by the staff attached to the Hon'ble Judges of the Court and direct grant of any particular pay scales to such employees. The position is almost same here."
(emphasis supplied) What may be true with regard to rule against comparison to be made between two sets of employees working in two different establishments would hold true with respect to comparison with regard to essential eligibility qualification, nature and extent of duties, responsibilities, and sensitivity etc. necessary to be made before relief of equal pay for equal work may be granted on an equitable principle as the difficulty in applying the rule arises not on account of two different departments but because of existence of two different sets of facts which the High Court in a writ jurisdiction is loathe to compare. Such comparison, cannot be made, that too for the first time by a writ court. Being essentially questions of fact, the petitioners would be best served if allowed to raise their claims before the corporation and/or before a Tribunal vested with jurisdiction to record findings of fact. During the course of the hearing, while advancing arguments in rejoinder, learned counsel for the petitioner prayed for to be granted minimal time to file a supplementary affidavit to bring on record facts and evidence with respect to the observations made above. The prayer has been rejected as the same has been made at a very late stage in the proceedings, almost at the fag end of the oral hearing. Then, in any case, as noted above, these being writ proceedings, the facts, even if allowed to be pleaded would necessarily invite decision on the same, which this Court, by nature of writ jurisdiction, is not inherently inclined to exercise in a case such as this where the petitioners have available to them, equally efficacious remedies that they have yet not availed.
Insofar as the resolution passed by the Board of Directors of the corporation is concerned, again the same is not with respect to the right of equal pay for equal work claimed by the petitioners. It cannot be relied upon by the petitioners to claim that as a fact it stands admitted to the corporation that the petitioners were performing the same work as the regularly appointed persons working on Group D & Group C posts. The said resolution only speaks of the method to be observed to regularise daily wage employees against existing vacancies and those that were to arise in future. The claim for regularisation having been held to be a separate dispute, independent of the dispute involved in the present proceedings, no further discussion is required on this issue.
In my opinion the writ petition cannot succeed and therefore it has to be dismissed, leaving it open to the petitioners to approach either the management of the corporation by way of individual representations, in light of the criteria laid down by the Supreme Court, to claim equal pay for equal work or alternatively, the petitioners may choose to directly approach the adjudicatory forum i.e. the Labour Court or the Industrial Tribunal or U.P. Public Service Tribunal, as they may be advised, in accordance with law.
Insofar as the claim appears to be old and the petitioners do appear to have been pursuing the matter, it is expected that in the event they choose to pursue the matter any further the same shall be dealt with and concluded, as expeditiously as possible, in accordance with law.
It is made clear, the Court has not considered the merits of the claim raised by the petitioners. Any observation made in this judgment is confined to and relevant only to the discussion as to whether a writ court may, in such a case, grant relief of equal pay for equal work. In case the petitioners raise their claim, as observed above, the same may be examined independently without being prejudiced in any way by any observation in this judgment as to the merits of such claim.
With the above observations, the instant writ petition is dismissed. No order as to costs.
Order Date :- 9.11.2017 Lbm/-