State
of Haryana & Anr Vs. Tilak Raj & Ors
[2003] Insc 292 (14
July 2003)
Doraiswamy
Raju & Arijit Pasayat.
(Arising
out of SLP(C) No. 19754/2002) ARIJIT PASAYAT, J.
Leave
granted.
The
State of Haryana is in appeal against the judgment
rendered by a Division Bench of the Punjab and Haryana High Court, whereby the respondents herein were directed to
be paid the minimum pay in the scale of pay applicable to the regular
employees.
Factual
position so far as relevant for determination of the controversy needs to be
noted in brief.
The
thirty five respondents were appointed at different points of time as helpers
on daily wages in the Haryana Roadways. They filed writ petition claiming that
they were entitled to regularization in view of service rendered for long
period and/or that they were to be paid the same salary as paid to regular
employees since the nature of work done by them was similar. In other words for
the second relief claimed principle of "equal pay for equal work" was
pressed into service. They asserted to be educationally qualified for the post.
The appellants disputed the claim of the respondents that they were
educationally qualified for appointment to the post of helper and also took the
stand that the principle of "equal pay for equal work" was factually
and legally not applicable to their case. The High Court allowed the writ
petition, inter alia, with the following observations:
"In
this view of the matter, the petitioners would be entitled to the relief, but
again not the regular pay scale which their regular counter parts are
receiving.
The
petitioners would be entitled to minimum of the pay scale with dearness
allowance alone." The High Court was of the view the since the claims were
not pressed till 2000 and the respondents filed the writ petition without
serving any notice of demand upon the employer, they would be entitled to get
the relief only w.e.f. 1.4.2000 i.e. two months later to the institution of the
writ petition.
Learned
counsel appearing for the appellant-State submitted that the directions given
by the High Court are contrary to the position of law enunciated by this Court
in several cases. Strong reliance was placed on State of Haryana and Ors. v. Jasmer Singh and Ors. (1996
(11) SCC 77). Per contra, learned counsel for the respondents- employees
submitted that there being no dispute to the fact that the concerned employees
have worked for a considerable length of time, the principle of "equal pay
for equal work" is clearly applicable and the High Court's direction is in
order.
The
principle of "equal pay for equal work" is not always easy to apply.
There are inherent difficulties in comparing and evaluating the work done by
different persons in different organisations, or even in the same organization.
In Federation of All India Customs and Central Excise
Stenographers (Recognised) and Ors. v. Union
of India and Ors. (1988 (3) SCC 91), this
Court explained the principle of "equal pay for equal work" by
holding that differentiation in pay scales among government servants holding
the same posts and performing similar work on the basis of difference in the
degree of responsibility, reliability and confidentiality would be a valid
differentiation. The same amount of physical work may entail different quality
of work, some more sensitive, some requiring more tact, some less - it varies
from nature and culture of employment. It was further observed that judgment of
administrative authorities concerning the responsibilities which attach to the
posts and the degree of reliability expected of an incumbent would be a value
judgment of the authorities concerned which, if arrived at bona fide,
reasonably and rationally, was not open to interference by the Court.
In
State of U.P. v. J.P. Chaurasia (1989 (1) SCC
121), it was pointed out that the principle of "equal pay for equal
work" has no mechanical application in every case of similar work. In Harbans
Lal v. State of Himachal Pradesh (1989(4) SCC 459) it was held that a mere
nomenclature designating a person as a carpenter or a craftsman was not enough
to come to a conclusion that he was doing the work as another carpenter in
regular service. A comparison cannot be made with counterparts in other
establishments with different managements or even in the establishments in
different locations though owned by the same management.
The
quality of work which is produced may be different, even the nature of work
assigned may be different. It is not just a comparison of physical activity.
The application of the principle of "equal pay for equal work"
requires consideration of various dimensions of a given job. The accuracy
required and the dexterity that the job requires may differ from job to job. It
must be left to be evaluated and determined by an expert body. Same was of the
view expressed in Ghaziabad Development Authority v. Vikram Chaudhary (1995 (5)
SCC 210).
At
this juncture, it would be proper to take note of what was stated in Jasmer
Singh's case (supra). In paragraphs 10 and 11, it was noted as under:
"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 fulfil
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." In Harbans Lal's case (supra) and Vikram Chaudhary's case (supra),
it was held that daily rated workmen were entitled to be paid minimum wages
admissible to such workmen as prescribed and not the minimum in the pay scale
applicable to similar employees in regular service unless the employer had
decided to make such minimum in the pay scale applicable to the daily rated
workmen.
In a
recent case this Court in State of Orissa and Ors. v. Balaram Sahu and Ors.
(2003 (1) SCC 250), speaking through one of us (Doraiswamy Raju, J) expressed
the view that the principles laid down in the well considered decision of Jasmer
Singh's case (supra) indicated the correct position of law. It was noted that
the entitlement of the workers concerned was to the extent of minimum wages
prescribed for such workers, if it is more than what was being paid to them.
A
scale of pay is attached to a definite post and in case of a daily wager, he
holds no 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.
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 a par with the other
group vis- à-vis an alleged discrimination. No material was placed before the
High Court as to the nature of the duties of either categories and it is not
possible to hold that the principle of "equal pay for equal work" is
an abstract one.
"Equal
pay for equal work" is a concept which requires for its applicability
complete and wholesale identity between a group of employees claiming identical
pay scales and the other group of employees who have already earned such pay
scales. The problem about equal pay cannot always be translated into a
mathematical formula.
Judged
in the background of aforesaid legal principles, the impugned judgment of the
High Court is clearly indefensible and the same is set aside. However, the
appellant-State has to ensure that minimum wages are prescribed for such
workers and the same is paid to them.
The
appeal is allowed to the extent indicated above. There will be no order as to
costs.
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