State
of Orissa & Ors Vs. Balaram Sahu & Ors, Etc. Etc [2002] Insc 446 (29
October 2002)
Doraiswamy
Raju & H.K. Sema. D. Raju, J.
WITH
Civil Appeal No.7343 of 1993, Civil Appeal Nos. 7047-7048 of 2002 (Arising out
of S.L.P.[C] Nos.16204-16205 of 1996) and Civil Appeal No.751 of 1995
Civil
Appeal No.7342 of 1993 :
The
respondents in this appeal, who are N.M.R. workers, have filed Writ Petition in
the High Court of Orissa for payment of remuneration on the same scale and
basis paid to the regularly employed staff, claiming that they are discharging
the same duties and functions, invoking the principle of `equal pay for equal
work'. They also sought for regularization of their services on the ground that
they have been found working for considerably long period of time to justify
their regularization. The appellant-State contested the claim by contending
that the duties and responsibilities of the employees in the regular
establishment were more onerous than that of the duties of N.M.R. workers, who
are employed in various projects on daily basis and that their engagement also
depended on the availability of the work in the different projects and
consequently, they cannot claim any parity for equal pay. The Division Bench of
the High Court by a judgment dated 10.3.1992 upheld the claim for
regularization by observing that the said aspect of the matter was not
seriously challenged. As for the claim for equal pay, the High Court was of the
view that there was no reason to deny them the equal scales of pay and sustained
their claim on par with those employed on regular basis with effect from
2.1.1990, namely, the date of filing of the Writ Petition, with a further
direction that those who have served continuously for a period of five years by
then should be regularized. Aggrieved, the above appeal has been filed.
Civil
Appeal No.7343 of 1993:
The
respondents in this appeal, who are N.M.R. workers in the Rengali Power
Project, also claim for similar relief as in the other appeal, noticed supra.
Overruling
the objections of the appellants, while directing regularization of the
workers, who have completed five years of continuous service as on the date of
the order, the High Court also applying the principles laid down in the earlier
cases, upheld in this case as well the right to get equal pay though in the
matter of actual payment taking into account the negligible difference, a lump
sum amount was directed to be made available to take care of the claim of all
the respondents. Aggrieved, this appeal has been filed.
Civil
Appeal No.751 of 1995:
The
respondents in this appeal, who are N.M.R. workers employed in the various
projects of the Irrigation Department of the State Government, sought for
relief of regularization of their services and equal pay as that of the regularly
employed staff. As in the other cases, the claims were sustained necessitating
this appeal also by the State.
Civil
Appeal Nos. 7047-7048 of 2002 (Arising out of S.L.P.[C] Nos.16204-16205 of
1996):
Delay
condoned.
Special
leave granted.
The
respondents in these appeals are also the N.M.R. workers in the projects of the
Irrigation Department and their claims for regularization as well as payment of
salary on equal par with their counterparts in the regular establishment. This
claim, applying the ratio of the earlier orders, was also sustained, resulting
in the filing of these appeals by the State.
Heard Shri
Jana Kalyan Das, Advocate, for the State of Orissa, and Shri G.L. Sanghi, Senior Advocate, for the appellant-Rengali Power
Project. Mr. Bharat Sangal, Mr. Ejaz Maqbool, Mrs. Kirti Renu Mishra and Mr. Y.
Prabhakar Rao, Advocates, were heard for the respondents.
The
learned counsel for the appellants placed strong reliance upon the [(1996)11
SCC 77] in support of their stand, whereas the learned counsel for the
respondents sought to place reliance upon the decisions reported in Chief
[(1992)4 SCC 118] in support of their stand to justify the relief granted by
the High Court. Reliance was also placed upon orders in SLP (C) No.4727/93
dated 3.8.93; C.A. Nos. 2541-42/94 dated 18.4.94 and C.A. Nos.2628-29/94 dated
21.4.94. The learned counsel for the respondents also sought to lay emphasis by
claiming that what they were asking for is not for any parity of treatment or
equal pay in comparison with their counterparts in the different organizations
or in different departments but equal pay on par with the regularly employed
staff in their own units or establishments and as such there could be no
sufficient cause or justification to deny an equal treatment to the respondents.
In substance, learned counsel vehemently contended that the fact they were
engaged as N.M.R. workmen or as casuals on daily basis has no relevance or
significance, as long as they performed the same and identical job and work as
that of the regularly employed staff and consequently there was no
justification to discriminate or deny equal pay for them. It was also claimed
that the decision in Chief Conservator of Forests (supra) of a Bench consisting
of three learned Judges of this Court has to be preferred to the one rendered
by a Bench of two learned Judges in Jasmer Singh's case (supra).
We
have carefully considered the submissions of the learned counsel appearing on
either side. The decision in Jasmer Singh (supra) though by a Bench of two learned
Judges consisting of A.M.Ahmadi,CJ., and Sujata V. Manohar, J., is directly on
point, Sujata V. Manohar, J., speaking for the bench and after a careful
analysis of a catena of earlier decisions on the point, held as follows :-
"10. The respondents, therefore, in the present appeals who are employed
on daily wages cannot be treated as on a par with persons in regular service of
the State of Haryana holding similar posts. Daily- rated
workers are not required to possess the qualifications prescribed for regular
workers, nor do they have to fulfill the requirement relating to age at the
time of recruitment. They are not selected in the manner in which regular
employees are selected. In other words, the requirements for selection are not
as rigorous. There are also other provisions relating to regular service such
as the liability of a member of the service to be transferred, and his being
subject to the disciplinary jurisdiction of the authorities as prescribed,
which the daily-rated workmen are not subjected to. They cannot, therefore, be
equated with regular workmen for the purposes for their wages.
Nor
can they claim the minimum of the regular pay scale of the regularly employed.
11.
The High Court was, therefore, not right in directing that the respondents
should be paid the same salary and allowances as are being paid to regular
employees holding similar posts with effect from the dates when the respondents
were employed.
If a
minimum wage is prescribed for such workers, the respondents would be entitled
to it if it is more than what they are being paid." The decision in Chief
Conservator of Forests (supra), on which strong reliance has been placed for
the respondents, was rendered by a Bench comprising A.M. Ahmadi, C.J., and B.L.
Hansaria and S.C. Sen, JJ. The question as to the scales of pay to be paid to
the N.M.R. workers and whether they should also be paid on equal par with the
regularly employed staff, by the application of the principle of 'equal pay for
equal work' does not appear to have been either in the centre of controversy or
consideration in this decision. As could be seen from the reported decision,
two questions, which fell for consideration of the Bench, were as to whether
the Forest Department of the State Government is an 'Industry' within the
meaning of Section 2(j) of the Industrial Disputes Act, 1947 and for the
purposes of the Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971, and whether the State Government had
indulged in unfair labour practice visualized by Item 6 of Schedule-IV of the Maharashtra
Act, as alleged by the workers before the Industrial Court, in keeping such
workers continuously for years on casual basis. The Industrial Court, which adjudicated the claims,
granted relief to make the workmen permanent with all the benefits of a
permanent worker, which would include payment of wages, etc. at the rate meant
for a permanent worker. While adverting to the question as to whether the
finding relating to the adoption of 'unfair labour practice' within the meaning
of the State Act and the relief granted on that basis called for any
interference, this court came to the conclusion that permanency was writ large
on the face of both types of work, and that permanent status was denied to the
workers concerned therein with the object of denying higher rates as would be
payable for permanent workers, in violation of the provisions of the State Act.
Consequently, this Court declined to interfere. It is in this context that the
claim of the State that if the casual employees to the tune of 1.4 lakhs have
to be regularized all of a sudden, it would involve a heavy financial
commitments, keeping in view the scales of pay, which have to be paid on their
becoming permanent; that a passing reference was made with reference to the
scales of pay to be paid and that too only as and when they become permanent
and not for the period when they were mere casuals. The conspicuous omission
either to refer to or deal with and consider any question based on `equal pay
for equal work' to workers even as they stood employed as N.M.R. workers or
advert to or notice any one of the decisions elaborately considered in the
other decision reported in Jasmer Singh (supra) as to the principles to be
applied before doing so would inevitably go to show that the questions of the
nature exhaustively considered and decided in the latter decision reported in Jasmer
Singh (supra) were not at all the subject- matter for consideration or decision
in the Chief Conservator of Forests case (supra),. This assumption is well
fortified by the conclusions arrived at in Paragraph 29, which read as follows
:- "We wish to say further that if Shri Bhandare's submission is taken to
its logical end, the justification for paying even minimum wages could wither
away, leaving any employer, not to speak of model employer like the State, to
exploit unemployed persons. To be fair to Shri Bhandare it may, however, be
stated that the learned counsel did not extend his submissions this far, but we
find it difficult to limit the submission of Shri Bhandare to payment of, say
fair wages, as distinguished from minimum wages. We have said so, because if a
pay scale has been provided for permanent workmen that has been done by the
State Government keeping in view its legal obligations and must be one which
had been recommended by the State Pay Commission and accepted by the
Government. We cannot deny this relief of permanency to the respondents-workmen
only because in that case they would be required to be paid wages meant for
permanent workers. This right flows automatically from the relief of
regularization to which no objection can reasonably be taken, as already
pointed out. We would, however, observe that the relief made available to the
respondents is not one, which would be available ipso facto to all the casual
employees either of the Forest Department or any other Department of the State.
Claim of casual employees for permanency or for higher pay shall have to be
decided on the merits of their own cases." (Emphasis supplied) The
decision reported in Piara Singh (supra) is no authority for the proposition
that temporary, ad hoc or daily wages like N.M.Rs. should be treated on par for
purposes of pay-scales with the regularly employed permanent staff in the establishment
and merely envisaged a serious and sincere effort on the part of the State to
regularize such casual labourers or work-charged employees as far as and as
early as possible, subject to their fulfilling the qualifications, if any,
prescribed for the post and subject also to the availability of the work
meaning thereby the post as well as scope for providing employment. In
paragraph 42 of the judgment, this Court, while setting aside the directions of
the High Court, observed as follows:
"With
respect to direction No.8 (equal pay for equal work) we find the judgment
singularly devoid of any discussion. The direction given is totally vague. It
does not make it clear who will get what pay and on what basis. The said
direction is liable to be set aside on this account and is, accordingly, set
aside." Though 'equal pay for equal work' is considered to be a
concomitant of Article 14 as much as 'equal pay for unequal work' will also be
a negation of that right, equal pay would depend upon not only the nature or
the volume of work, but also on the qualitative difference as regards
reliability and responsibility as well and though the functions may be the
same, but the responsibilities do make a real and substantial difference.
this
Court observed that substantial similarity in duties and responsibilities and
interchangeability of posts may not also necessarily attract the principle of
`equal pay for equal work' when there are other distinguishing features like
educational qualifications for appointment, mode of recruitment, status, nature
of duties, functions, measure of responsibility and over all duties and
responsibilities even outside duty hours. The principles laid down in Jasmer
Singh (supra) were also applied and followed in the decision reported in Gujarat
Agricultural University On a careful consideration of the materials placed on
record, we are of the view that the principles firmly laid down in the well
considered decision of Jasmer Singh (supra) squarely applied on all fours to
the cases on hand and the respondents-workers would be entitled to only, apart
from the regularization ordered for which the appellants have had no serious
objections, the payment of minimum wage prescribed for such workers if it is
more than what they were being paid and that the High Court was in serious
error in directing that the respondents should be paid the same salary and
allowances as were being paid to the regular employees holding similar posts.
The respondent-workers cannot be held to hold any posts to claim even any
comparison with the regular and permanent staff, for any or all purposes
including a claim for equal pay and allowances. The fact that no materials were
placed before the High Court as to the nature of duties of either categories
should have been viewed as a disentitling factor so far as the workers are
concerned and dissuaded the High Court from embarking upon an inquiry in the
abstract and with no factual basis and not to empower the court to assume and
presume equality in the absence of proof to the contra or of any unequal nature
of the work performed by them. To claim a relief on the basis of equality, it
is for the claimants to substantiate a clear-cut basis of equivalence and a
resultant hostile discrimination before becoming eligible to claim rights on
par with the other group vis--vis an alleged discrimination. In the light of
the decision directly on this issue rendered in Jasmer Singh (supra), we are
unable to persuade ourselves to countenance the claim for minimum basic salary
given in some unreported decisions brought to our notice which appear on the
face of it to be certain directions given on the peculiar facts and
circumstances of the same without an objective consideration of any principle
of law. An order made to merely dispose of the case before court by issuing
certain directions on the facts and for the purposes of the said case, cannot
have the value or effect of any binding precedent and particularly in the teeth
of the decision in Jasmer Singh's case (supra).
For
all the reasons stated above, the appeals are allowed and the orders of the
High Court are set aside insofar as the pay equal to that of the regular
employed staff has been ordered to be given to the N.M.R./daily wager/casual
workers, as indicated above, to which they will not be eligible or entitled,
till they are regularized and taken as the permanent members of the
establishment. For the period prior to such permanent status/regularization,
they would be entitled to be paid only at the rate of the minimum wages
prescribed or notified, if it is more than what they were being paid as ordered
by this Court in Jasmer Singh's case (supra). There will be no order as to
costs.
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