Gujarat Agricultural University Vs. Rathod Labhu
Bechar & Ors [2001] Insc 28 (18 January 2001)
A.P.Misra,
D.P.Mohapatro Misra, J.
Special Leave Petition (civil) 1490 of 1999 Appeal (civil)
692 of 2001
L.J
Delay
condoned in SLP © No. of 2001 (CC No. 2360).
Leave
granted in all the special leave petitions.
The
aforesaid appeals raise common questions hence are being disposed of by means
of this common judgment. These appeals arise out of industrial disputes through
references by the Government of Gujarat under Section 10 (1) (C) of the
Industrial Disputes Act, 1947. It raised the following questions:
Whether
the employees listed in the scheduled annexed be made permanent, as from the
day, when they complete 240 days service, and if in affirmative, whether they
are entitled to all the benefits at par with the permanent employees, and be
paid arrears.
Before
entering into the issues in this case it is necessary to give certain essential
facts in order to appreciate the controversies.
The
appellant is an educational institution fully aided by the State Government and
is engaged in the educational activities in agriculture and allied sciences and
humanity and is also prosecuting research in agriculture and other allied
science. It performs its duties and functions under the statutory provisions
and in doing so it engages daily rated labourers for various activities.
According
to the appellant these labourers are being paid their wages as per the minimum
wages fixed by the State Government from time to time under the Minimum Wages
Act.
They
were engaged due to exigencies of work, without considering relevant factors
about their educational qualification, age limit and other relevant
requirements for the purpose of regular appointment under the Recruitment
Rules. There are different agricultural research centres at different places
with different projects and these daily rated workers are unskilled,
semi-skilled, skilled and field labourers of different categories. Since the
University is grant- in-aid institution fully funded by the State Government it
requires prior permission/sanction of the State Government for appointment of
its employees. In fact, all the posts are sanctioned by the State Government
and thereafter they are filled by the University, as per the Recruitment Rules.
The present case pertains to daily wage workers who are plumbers, carpenters,
sweepers, pump operators, helpers and masons etc. According to the appellant,
no posts are sanctioned for them and hence they are working on daily rate
basis. Thus their appointments are on irregular basis and not in accordance
with the recruitment rules.
The
respondents raised, as aforesaid, an industrial dispute who are daily rated
employees, before the Industrial Tribunal, Rajkot. The Industrial Tribunal directed the appellant to regularise the
services of all such daily rated labourers who have completed 10 years of
service (with minimum of 2400 days) as on 1.1.1993 with pay and all allowances
along with other benefits of the permanent class IV employees. The appellant
being aggrieved filed the writ petition before the High Court challenging this
award.
Learned
Single Judge partly allowed the writ petition and set aside the award, however,
with a direction to the appellant to make the payment to the workmen at the
minimum of the pay scale and also to frame a scheme for the regularisation of
such daily rated labourers. The appellant not satisfied filed letters patent
appeals.
The
Special Leave Petition (C) No. 1490 of 1999, arises out of the Letters Patent
Appeal No. 1047 of 1997, which concern 23 respondents who were working as
carpenters, masons, plumbers etc. in the appellant-University. The appellant
has a huge campus covering the large area of about 16000 sq. mtrs. and 240
staff quarters of the employees at Junagadh and other places. Nine daily rated
workers were involved in Letter Patent Appeal No. 1051 of 1997 from which arises
Special leave Petition (C) No. 2528 of 1999.
Similarly,
there were three daily rated workers in Letter Patent Appeal No. 1095 of 1997
which gave rise to the Special Leave Petition (C) No. 2529 of 1999. SLP of 2001
(arising out of CC No. 2360 of 1999) arises out of LPA No. 808 of 1998 wherein
the respondents representing the daily rated workers of Junagadh Jilla Majdoor Sangh.
Learned
Single Judge relying on the decision of this Court in Daily Rated Casual Labour
Employed under P & T case of daily rated casual workers of the P & T
Department, directed the appellant to submit a scheme for conferring permanent
status to the respondents. At this stage, when the question of framing a
scheme, came to the fore, before the Single Judge, learned counsel for the
appellant submitted then that such a scheme of giving permanent status to these
workers could not be confined to these workmen as large number of such workmen
are involved, disputes about which are pending for adjudication in the various labour
courts. It was suggested, it would be fair and just, instead of making multiple
scheme in each such pending matters, be permitted to frame a comprehensive
scheme to cover all pending litigations. The appellant specifically denies any
such statement being given by the counsel for the appellant. The submission is,
this fact was challenged even before the bench of Letters Patent Appeal, but
the court did not advert to this question. However, the letters patent appeals
were dismissed with the following observations:
As a
result of foregoing discussion, all these three appeals are summarily
dismissed. The learned single Judge had directed the appellant to submit a
scheme for consideration of the Tribunal with regard to extending permanent
status to the workmen in question and the like workmen employed under it within
a period of two months from the date of receipt of writ of the judgment and
order, but, since the above direction was given way back in the month of April,
1997, we direct the appellant to submit a scheme for consideration of the
Tribunal with regard to extending permanent status to the workmen in question
and the like workmen employed under it within a period of one month from the
date of receipt of writ of this order, and the Tribunal shall thereafter make
an award within three months after inviting objections and suggestions from the
respective parties. There shall be no order as to costs.
Aggrieved
by this, the appellant filed the aforesaid appeals, in this Court.
Since
the appellant was fully funded by the State Government, the appellant was
permitted to implead the State of Gujarat in these appeals and notice was
issued to it on the 8th February, 1999 by this Court. It seems instead of
contesting various issues, during pendency of these appeals in this
interregnum, learned counsel for the appellant submitted a scheme framed by the
university for the absorption of these employees with the approval of the State
Government, which is also filed in this case. Learned counsel for the
respondents desired to file objections to this scheme, which this Court
permitted. The objections accordingly were filed by the respondents.
We
heard learned counsel for the parties at length and considered the objections
of the respondents with respect to the proposed scheme for the regularisation
of daily rated workers. The proposed scheme is reproduced below:
SCHEME
FOR REGULARISATION OF DAILY RATED LABOURS OF THE GUJARAT AGRICULTURAL
UNVIERSITY.
1.
Daily-wager workers, whether skilled, semi-skilled or unskilled, who have
completed 10 years or more of continuous service with a minimum of 240 days in
each calendar year as on 31.12.1999, shall be regularised as regular employees
with effect from 1.1.2000 and shall be put in the time scale of pay applicable
to the corresponding lowest grade in the University subject to the following
terms and conditions:
(a)
The daily rated employees shall be eligible and must possess the prescribed
qualifications for the post at the time of their appointment on daily rated
basis.
(b)
Daily-wager employees shall be regularised in a phased manner to the extent of
available regular sanctioned posts/vacancies on the date of regularisation and
on the basis of seniority-cum-suitability including physical fitness.
(C)
The work and conduct of such employees should have been of over all good
category and satisfactory and no disciplinary proceedings are pending against
them.
(d)
The regularisation will be against the posts/ vacancies of the relevant
categories only.
2.
Daily workers, whether skilled semi- skilled or unskilled, who have completed
10 years of continuous service with a minimum of 240 days in each calendar year
as on 31.12.1999 but could not be regularised shall be treated as monthly rated
employees w.e.f. 1.1.2000 in the fixed pay without allowances as per the
following formula:
Prepared
by University:
Daily
rate Fixed pay = prescribed by 26+ Rs.500 the Government fromtime to time for skilled,semi-skilled,
unskilled workers as the case may be They would be entitled to an annual
increment of Rs. 15/-, Rs. 20/- and Rs. 25/- respectively for unskilled,
semi-skilled and skilled workers till their services are regularised as per
para-1.
3.
Daily-wager whether skilled, semi-skilled or unskilled who have not completed
10 years of service with a minimum of 240 days in each calendar year shall be
paid daily wage at the rates prescribed by the Government of Gujarat from time
to time for daily wager employees falling in Class III and Class IV.
4. The
seniority of the daily rates Class III and IV employees so regularised
vis-à-vis Class III and IV employees appointed on regular basis shall be
determined w.e.f. 1.1.2000. The inter se seniority of such daily rate Class III
& IV employees shall be determined in accordance with the date of joining
the post on daily rated basis. If the date of joining the post(s), on daily
rated basis by such daily rated employees was the same, then the elder employee
shall rank senior to an employee younger in age.
If the
date of joining of the directly recruited regular employees and the date of regularised
employees as per this scheme is the same, the direct recruit shall be senior.
So,
the larger issues inter se between the University and its workers, at this
stage, are no more contentious as the University has decided to grant permanent
status to the contesting and other workers in a phased manner for which the
aforesaid scheme has been finalised. Thus the question which focuses our
attention is, whether the scheme sub serves the workers aspirations and satisfy
the judicial scrutiny, on the facts and circumstances of this case. The fact
which emerges is, that reference for the adjudication of industrial dispute was
made in the year 1987. The Industrial Tribunal directed the appellant to regularise
the services of all such workers who have completed 10 years of service as on 1st January, 1993. The Single Judges records:
It is
also true that the facts of the present case have also similar shade as was in
the case of Chief Kondhara reported in 1996(1) LLJ 1223 to prime facie reach a
conclusion about the unfair labour practice in depriving the workmen of their
status of permanency and privileges attached thereto.
It
further records that the Tribunal has not adverted to some of the questions
which implicitly arises in any industrial dispute concerning grant of permanent
status. It records that no opportunity was given to the employer after reaching
this conclusion of giving workmen permanent status hence these issues require
investigation. Thus it set aside the finding of the Tribunal to make all
workmen permanent w.e.f. the date they complete 10 years on or before 1st
January, 1993 and directed it to decide this question afresh through a scheme.
But the direction to make payment to such workmen at the minimum pay scale of
similarly situated workmen on permanent basis remained unaffected. This
direction was confirmed by the Division Bench of the High Court.
Learned
senior counsel, Mr. Rajeev Dhawan appearing for the appellant submits, that the
scheme as proposed has been thoroughly scrutinised, examined taking into
consideration the interests of the workers within the permissible limit of the
availability of finance. He submits with vehemence, it would not be possible
for the University to grant permanency to all its employees working as daily
rated workers, who have completed 10 years of service, on the 1st January, 1993. The proposal for grant of
permanent status as per the scheme is that all such employees who have
completed 10 years or more of continuous service with minimum of 240 days in
each calendar year as on 31st December, 1999 should be regularised. This
extension of period from 1st
January, 1993 to 31st December, 1999 was made for two purposes. First,
to bring more workers in its arm for regularisation and secondly, to bring it
within the financial means available to the University. In fact, Single Judge
has set aside the grant of permanency from 1st January, 1993 and left it open to the appellant
to frame a scheme for their absorption. Mr. Dhawan also challenges the grant to
all such employees minimum pay scale who have completed 10 years of service,
based on the anvil of equal pay for equal work, A minimum regular pay scale is
only admissible to the regularised employees doing the same nature of work..
The submission is, such employees could only be entitled to the minimum wages
admissible to class IV employees of the State. Unless an incumbent is regularised
he would not be entitled for this minimum pay scale. He further submits, since
there are no equivalent posts in existence today, hence question of equal pay
on equivalent post does not arise, so also no question of applying the
principle of equal pay for equal work.
Reliance
was placed in the case of State of Haryana 633, to give credence to his this
submission of equal pay for equal work. He further relies on the following
observation of the Division Bench that present is not a case where such an
issue arises:
The
workmen are not claiming equal pay for equal work but they are claiming
permanent status as Class IV employees.
The
submission on behalf of the respondents is, the stand of the University that
there are no permanent posts for absorption of such workers, on the facts of
this case, where the appellant has been taking work from its workers year after
year for more than one decade, then non-creation of posts itself constitutes an
unfair labour practice. In fact by the time this industrial dispute was
referred, respondent- workers completed 5 years of their continuous service and
when arguments were concluded they completed 10 years of their continuous
service. Both, the Tribunal and the learned Single Judge found the existence of
permanent nature work requiring them to be regularised.
Respondents
objection to Item No.1 of the proposed aforesaid scheme which requires
completion of 10 years prior to 31st December, 1999 for regularisation is that it is dehors the interest of the
workers, specially when some of the workers are working from 1973 onwards. Thus
this cut off date for regularisation requires a re-look. With reference to Item
No.1(a), the objection is, that the University had failed to produce any
evidence to show any qualification for the posts on which they are to be
absorbed. The recruitment rules which have been placed for the first time
before this Court do lay down some qualifications but their experience of
working for such a long time itself should be sufficient for their eligibility.
With
reference to Item (1)(b) and 1(d) the objection is, there should not be any
phased regularisation, when work has been taken for such a long time. All such
qualified workers should be regularised from the date they completed 10 years
of their continuous service. With reference to Item No.1(c) the submission is,
there is no case whatsoever about any unsatisfactory work of any of these
respondent workmen nor any proceedings are pending against them. In other
words, there is no serious objection to it. Next, with reference to Item No.2
which provides, all daily workers who have completed 10 years of continuous
service with minimum of 240 days in each calendar year as on 31st December,
1999 but could not be regularised, w.e..f. 1st January, 2000 they would be entitled for a fixed
pay without allowance as prescribed by the Government from time to time for
skilled, semi-skilled and unskilled workers plus Rs.500/- p.m. They would also
be entitled to annual increment of Rs.15/-, Rs.20/- and Rs.25/- respectively
for the unskilled, semi-skilled and skilled workers till their services are regularised.
The objection is instead these workers should be paid minimum pay scale
(without increment) as admissible to regularised workman on such post from 1st January, 1993.
Similarly,
Item No.3 refers to such daily wagers, skilled, semi- skilled or unskilled who
have not completed 10 years of service with a minimum of 240 days in each
calendar year to be paid minimum wages at the rates as prescribed by the
Government of Gujarat from time to time for daily wagers falling in Class III
and Class IV. The objection is the same that they should also be paid minimum
pay scale. No serious submission with reference to Item No.4 has been made.
From
the aforesaid, it emerges that the learned Single Judge had concurred with the
finding of the Tribunal that contesting workmen have been working in the
appellant University regularly for a long number of years. The existence of
permanent nature of work was inferred on this account and also due to the
vastness of appellant establishment. The regularisation is claimed only in
respect of Class IV employees. The main objection, which was raised earlier and
is raised before us is that a person could only be regularised on any vacant
post and if there be one he should be qualified for the same as per
qualification, if any, prescribed. In fact, the Tribunal has held on the date
of the award, most of the workmen had completed 10 years of their service. It
is also well settled, if work is taken by the employer continuously from daily
wage workers for a long number of years without considering their regularisation
for its financially gain as against employees legitimately claim, has been held
by this Court repeatedly as an unfair labour practice. In fact, taking work,
from daily wage worker or ad hoc appointee is always viewed to be only for a
short period or as a stop gap arrangement, but we find new culture is growing
to continue with it for a long time, either for financial gain or for
controlling its workers more effectively with sword of damocles hanging over
their heads or to continue with favourved one in the cases of ad hoc employee withstaling
competent and legitimate climants. Thus we have no hesitation to denounce this
practice. If the work is of such a nature, which has to be taken continuously
and in any case when this pattern become apparent, when they continue to work
for year after year, only option to the employer is to regularise them.
Financial viability no doubt is one of the considerations but then such
enterprise or institution should not spread its arms longer than its means. The
consequent corollary is, where work is taken not for a short period or limited
for a season or where work is not of part time nature and if pattern shows work
is to be taken continuously year after year, there is no justification to keep
such persons hanging as daily rate workers. In such situation a legal
obligation is cast on an employer if there be vacant post to fill it up with such
workers in accordance with rules if any and where necessary by relaxing the
qualifications, where long experience could be equitable with such
qualifications. If no post exists then duty is cast to assess the quantum of
such work and create such equivalent post for their absorption.
Learned
Single Judge set aside the order of the Tribunal granting regularisation from
the date of the award and left it to the University to formulate an appropriate
scheme for their absorption. The Division Bench felt certain enquiry is
necessary before grant of permanent status to its employees, namely, to find
the extent of permanent nature of work required for creating corresponding
posts before absorption. The relevant portion of the Division Bench judgment is
quoted hereunder:
The
learned single judge observed that the Tribunal had not taken into
consideration certain relevant aspects notwithstanding that such question
implicitly arises in a case of industrial dispute concerning grant of permanent
status and emoluments and privileges attached there to by the workmen under the
Industrial Dispute Act, nor the Tribunal had considered after reaching the
conclusion about long duration of work and existence of permanent work the
extent to which permanent nature of work is available in each trade and
corresponding necessity of number of permanent workmen to discharge that work
before directing the employer to make all the workmen as permanent on
completion of 10 years of service as on 1.1.1993 nor thereafter if they were in
service prior to the date of making of reference, nor does it appear from the
award that in the first instance any opportunity was given to the employer
after reaching the conclusion about necessity for making the concerned workmen
permanent to discharge its managerial obligation for framing a scheme or making
such employees permanent and placing before the Tribunal. These issues require
investigation into further facts and depend upon evidence of variable nature
which can be led before the Tribunal.
What
emerges is, all the respondent workmen are eligible for absorption on the facts
of this case subject to any eligible qualification under the rule if any.
Though no recruitment rules were filed in the proceedings either before the
Tribunal or in the High Court but while proposing the scheme a copy of the
recruitment rules for various cadres have been placed before us on behalf of
the appellant University. This gives in column no.1 the serial no., in column
no.2 the name of the post, in column no.3 the pay scale, in column no.4 the age
limit and in column no.5 the qualification. Serial no.10 deals with Peon and
Class IV servants, serial no.13 deals with Operator-cum- Mechanic, serial no.14
deals with Chowkidar, serial no.25 deals with Plumber and serial no.33 deals with
Carpenter. This shows that recruitment rules did have these posts in its ambit
about which we are concerned, yet no posts were created.
This
proposed creation of post is churned out only after this long battle by the
workmen as against the appellant.
It was
not expected from the institutions like the present appellant, especially when
it is fully funded by the State Government that this process of absorption
should have taken such a long time and to have yielded to it only after this
long battle. This legal position is well known not only to the appellant but
the State who is funding it, then why to do it only after courts intervention.
It is true, creation of post does involve financial implication. Hence
financial health of a particular institution plays important role to which
courts also keep in mind. The Court does exercise its restrain where facts are
such where extent of creation of post creates financial disability. But at this
juncture we would like to express our note of caution, that this does not give
largess to an institution to engage larger number of daily wage workers for
long number of years without absorbing them or creating posts which constitutes
an unfair labour practice. If finances are short engagement of such daily wage
workers could only be for a short limited period and if continuous work is
required it could only do so by creating permanent post. If finances are not
available, take such work which is within financial mean. Why take advantage
out of it at the cost of workers.
One of
the questions which is also up for our consideration is, apart from the fact
who are to be regularised, what would be payable to these daily wage workers
who have completed more than 10 years of continuous service. Submission for the
respondents is, that such daily wage workers should be paid the same minimum
scale of pay as admissible to the regularised incumbent based on the principle
of equal pay for equal work. Daily rated casual labour employed under P&T
Department through Bhartiya Dak a case of daily rated casual labourers of the
P&T department doing work similar to that of the regular workers of the
department. This Court held:
...Even
though the Directive Principle contained in Articles 38 and 39(d) may not be
enforceable as such by virtue of Article 37 but it may be relied upon by the
petitioners to show that in the instant case they have been subjected to
hostile discrimination. The State cannot deny at least the minimum pay in the
pay scales of regularly employed workmen even though the Government may not be
compelled to extend all the benefits enjoyed by regularly recruited employees.
Such denial amounts to exploitation of labour. The Government cannot take
advantage of its dominant position, and compel any worker to work even as a
casual labourer on starvation wages. It may be that the casual labourer has
agreed to work on such low wages.
State
of Haryana and Ors. vs. Piara Singh and
Ors.1992 (4) SCC 118. This was a case of ad hoc/temporary government employees.
This Court held, those eligible and qualified and continuing in service
satisfactorily for a long period have right to be considered for regularisation.
Long
continuing in service gives rise to a presumption about the need for a regular
post. In such cases government should consider feasibility of regularisation
having regard to the particular circumstances with a positive approach and
empathy for the concerned person.
C.P.W.D.
and Ors. 1986 (1) SCC 639, this Court holds entitlement of equal pay for equal
work for the daily wage workers of C.P.W.D. to the wages equal to the regular
and permanent employees employed to do identical work. Mool Raj 316, was a case
of regularisation based on the claim for equal pay for equal work of daily
wages of Class III and Class IV employees in the Irrigation and Public Health
Wings of H.P. Some of them worked for more than 10 years. They were being paid
minimum wages prescribed by the State Government but were seeking regularisation
and parity of pay with regular employees. The State Government came out with a
scheme which was modified by this Court to the following effect. The relevant
portion of which is quoted hereunder:
Taking
into consideration the facts and circumstances of the case, we modify the said
scheme: xxx xxx (3) daily-wage/muster-roll workers, whether skilled or
unskilled who have not completed 10 years of service with a minimum of 240 days
in a calendar year on 31.12.1993., shall be paid daily wages at the rates
prescribed by the Government of Himachal Pradesh from time to time for daily
wage employees falling in Class III and Class IV till they are appointed as
work- charged employees in accordance with paragraph 2;
(4)
daily-wage/muster-roll workers shall be regularised in a phased manner on the
basis of seniority-cum-suitability including physical fitness. On regularisation
they shall be put in the minimum of the time-scale payable to the corresponding
lowest grade applicable to the Government and would be entitled to all other
benefits available to regular government servants of the corresponding grade.
Strong
reliance is placed on this decision on behalf of the University. Submission is,
heavy financial constrain would result in case all employees are to be regularised
or minimum pay scale is to be given to unabsorbed employees which would be
beyond the capacity of the appellant. The affidavit of G.A. Shah, Deputy
Secretary to the Government, Agricultural Department, on behalf of the State,
avers that the financial burden which would surface and to be fastened on the
State Government will be very heavy which would be more than 15 crores towards
the arrears only as per the award if it is implemented. The averment is, there
are 5100 daily rated labourers including seasonal labourers which in addition
will place heavy recurring financial burden on the State Government. However,
we do respect and give due consideration for any unbearable financial strains
but we are not impressed by this, specially on the facts of this case, when
work is being taken from them for a long number of years without giving them
the due benefit for their regularisation. As we have said, which we are keeping
in mind that financial constraint is also to be kept in mind when any scheme is
framed at a particular time. In Dharwad Distt. P.W.D. literate daily wage
employees Association this Court held:
Though
the scheme so finalised is not the ideal one but it is the obligation of the
court to individualise justice to suit a given situation in a set of facts that
are placed before it. Under the scheme of the Constitution the purse remains in
the hands of the executive. The legislature of the State controls the
Consolidated Fund out of which the expenditure to be incurred, in giving effect
to the scheme, will have to be met. The flow into the Consolidated Fund depends
upon the policy of taxation depending perhaps on the capacity of the payer.
Therefore, unduly burdening the State for implementing the constitutional
obligation forthwith would create problems which the State may not be able to
handle. Therefore, the directions have been made with judicious restraint.
To the
similar effect, namely, involvement of financial burden is also a relevant
consideration was held State of U.P. and Ors. 1998 (8) SCC 473, Hindustan Machine 741. and Ors. 1984 (3) SCC
1, it was observed by this Court:
At the
same time while fixing the pay scales, the paying capacity of the Government,
the total financial burden which has to be borne by the general public, the
disparity between the incomes of the Government employees and the incomes of
those who are not in Government service and the net amount available for
Government at the current taxation level.
In the
light of the aforesaid decisions we now proceed to examine the proposed scheme.
Under Clause 1 it is proposed that all daily wage workers, whether skilled,
semi-skilled or unskilled who have completed 10 years or more of continuous
service with a minimum of 240 days in each calendar year as on 31st December,
1999 is to be regularised and be put in the time scale of pay applicable to the
corresponding lowest grade in the university.
However,
the said regularisation is subject to some conditions. Under Clause 1(a) such
employee is eligible only if he possess the prescribed qualifications for the
post at the time of their appointment. The strong objection has been raised to
this eligibility clause. The submission is, those working for a period of 10 or
more years without any complaint is by itself a sufficient requisite
qualification and any other rider on the facts of this case would prejudice
these workers. We find merit in this submission. We have perused the
qualifications referred in the aforesaid recruitment rules according to which,
qualification for Peon is that he should study upto 8th std., for
Operator-cum-Mechanic, should have Diploma in Mechanic having sufficient
knowledge of vehicle repairing experience in automobiles or tractors Dealers
workshop for two years, for Chowkidar, he must be literate and have good
physique. Literate is not defined. For Plumber to have I.T.I. Certificate.
We
feel that daily rate workers who have been working on the aforesaid posts for
such a long number of years without complaint on these posts is a ground by
itself for the relaxation of the aforesaid eligibility condition. It would not
be appropriate to disqualify them on this ground for their absorption, hence
Clause 1(a) need modification to this effect.
Development
Corporation 1990 (1) SCC 361, this Court observed:
The
main controversy centres round the question whether some petitioners are
possessed of the requisite qualifications to hold the posts so as to entitle
them to be confirmed in the respective posts held by them. The indisputable
facts are that the petitioners were appointed between the period 1983 and 1986
ever since, they have been working and have gained sufficient experience in the
actual discharge of duties attached to the posts held by them.
Practical
experience would always aid the person to effectively discharge the duties and
it is sure guide to assess the suitability. The initial minimum educational
qualification prescribed for the different posts is undoubtedly a factor to be
reckoned with, but it is so at the time of the initial entry into the service.
Once the appointments were made as daily rated workers and they were allowed to
work for a considerable length of time, it would be hard and harsh to deny them
the confirmation in the respective posts on the ground that they lack the
prescribed educational qualifications.
Thus
in view of their long experience on the fact of this case and for the concerned
posts the prescribed qualification, if any, should not come in the way of their
regularisation. Clause 1(b) provides for the regularisation of daily wagers in
a phased manner to the extent of available sanctioned post.
The
decision to absorb some of the employees at one point of time or in a phased
manner depends on facts and circumstances of each case. Where very large number
of workers are required to be absorbed, this Court accepted the formula, in the
past to absorb such employees under a Scheme in a phased manner. This is done
to work it out within its financial means. Every liberty and entitlement is
always subject to such financial limits. But in considering such absorption,
the financial means have to be stretched to the maximum but should not be a defence
with motive to disentitle the claim of the workmen. The grant of this phased
absorption thus is in itself a mechanism under this principle. But as we have
said this mechanism is not a tool to misuse for taking away any legitimate
right of any worker. The Court has to be cautious in exercising its discretion.
On the one hand it has to keep the interest of the workers alive and on the
other to see that employer does not become spineless for the lack of funds
eroding the very workers interest. In the present case admittedly in the first
phase in terms of Clause 1, one block of daily wage worker is to be regularised
for which the posts are being created. We want to make it clear, in creating
posts Government shall see maximum posts are created to absorb maximum such
workers who have completed ten years as on 31st December, 2000, as these
workers have more than eligible claim. Thereafter, even reassessment for
additional posts, about which we are referring should be done in the same
perspective. In other words there may still be number of workers who may still
not be covered for absorption under the first phase of Clause 1 due to initial
non-availability of posts though working for a long number of years. We are
saying so because Clause 1 (d) is silent, what number of posts Government is
being created initially for the first phase of absorption.
According
to the State counter if absorption is made from 1.1.1993 of all those who have
completed ten years of service as per Tribunal order, the payment towards
arrears would be to the tune of 15 crores. Since in the proposed scheme,
absorption is from 1st January, 2001, the State has already gained much more
than this arrears of more than 15 crores. In this light and in the absence of
details being placed before us, we are leaving the extent of creation of the
posts on the State Government. We hope and trust, the Government who is the
guardian of the people and is obliged under Article 38 of the Constitution, to
secure a social order for the promotions of welfare of the people, to eliminate
inequalities in status, will endeavour to give maximum posts even at the first
stage of absorption, and do the same in the same spirit for creating additional
posts after enquiry as we are indicating hereunder. It is necessary that the
State Government to set up an enquiry to find what further number of additional
posts are required for regularising such other daily rated workers, and after
assessing it, to create such additional posts for their absorption. This
exercise should be done by the State Government within a period of six months.
The submission on behalf of the respondent is that those who are not regularised
and are continuously working for 10 or more years with minimum of 240 days in
each calendar year, they should be paid minimum pay scale as admissible to an
incumbent regularised on similar post doing similar work instead of minimum
wages as prescribed by the Government.
The
dispute thus is, whether such workers to be paid minimum daily wage as
Government prescribes as per the scheme or pay them the minimum pay scale
admissible to such regularised worker without increment and other benefit. This
Court in one set of decisions have said to regularise them in one block and pay
them the same minimum pay scale as admissible Engineer-in-Chief, C.P.W.D. and
Ors. 1986 (1) SCC 639, U.P. Income Tax Department Contingent Paid Staff Welfare
Ors. 1998 (9) SCC 595, Chief Conservator of Forests and 293 and in other cases
to absorb in a phased manner under a scheme which depends on the facts of each
case. In Mool Raj approved a scheme under which the daily wage workers whether
skilled or unskilled who have not completed 10 years of service was to be paid
daily wage at the rates prescribed by the Government of H.P. from time to time
for daily wage employees falling under Class III and IV till they are appointed
regularly. Strong reliance is placed on behalf of the University on this case
and also, looking to the fact that it has no impressive source of its own,
being an Agricultural University, depending on the State fund, we hold they
should be paid minimum wages as prescribed by the Government from time to time
as proposed under the scheme.
We
approve both clauses 2 and 3 on the facts and circumstances of this case. In
fact, in seeking minimum pay scale to such daily rated workers as admissible to
a regular employee is based on the principle of equal pay for equal work. It is
pertinent to refer, in this case the observation of the High Court: Workmen are
not claiming equal pay for equal work but they are claiming permanent status as
Class IV employees as they are working and have gained more than sufficient
experience in their work.
Chaudhary
and Ors. 1995 (5) SCC 210, this was a case of temporary daily wage employees
claiming parity with regular employees. It was held, in the absence of
availability of regular post for appointment, such a claim is not sustainable.
However, it was held that they should be given minimum wages under the statute
if any, or the prevailing wages in the locality. To the same effect is Basudev Pati
State of Haryana and Ors. vs. Jasmer Singh and Ors. 1996 (11) SCC 77, this was
a case where Mali-cum-Chowkidars/Pump Operators claimed parity in employment
based on the anvil of equal pay for equal work who were daily wagers. It was
held, they are not entitled to such parity with regular workmen. They can get
only the minimum wages.
In the
present case after absorption of employees under Clause 1, we have already
directed, the State Government what they have to do in coordination with the
appellant University to assess and find additional regular posts required by
the university. In doing so, they shall keep in mind the continuous work which
the workers are doing for long number of years and after fixing the number it
should further create such additional posts as necessary and absorb them. This
exercise to be undertaken, as aforesaid, within six months. So for this reason
we would not like to disturb the proposed scheme except to the extent we have
observed above. We are sure no slackness would be exercised both by the
appellant and the State in completing this exercise within the said period.
Apart from what we have observed, we do not find any infirmity in the scheme.
Accordingly
we approve the aforesaid scheme framed by the University and as approved by the
State Government, subject to the modifications which we have recorded above.
In
terms of the said modified scheme, the judgment of the High Court stands
modified. As respondents/workmen have suffered for a long duration of time it
is appropriate that aforesaid scheme is implemented expeditiously at an early
date. The first phase of absorption to be completed within three months. The
appeals are accordingly disposed of in the aforesaid terms. Costs on the
parties.
Back