Mahendra L. Jain & Ors Vs.
Development Authority & Ors  Insc 705 (22 November 2004)
N. Santosh Hegde & S.B. Sinha W I T H CIVIL APPEAL NOS.334 & 335 OF 2002 S.B. SINHA, J :
These appeals arising out of a judgment and order dated 26.4.2000 passed in
Writ Petition No.1188 of 1997 by the High Court of Madhya Pradesh, Indore
Bench, involving similar questions of law and fact were taken up for hearing
together and are being disposed of by this common judgment.
BACKGROUND FACTS :
The Appellant Nos.1 and 2 are Degree holders in Civil Engineering and
Appellant Nos. 3 and 4 are Diploma holders in Civil Engineering. They having
come to learn that certain vacancies exist in the Respondent- Authority,
applied therefor although no advertisement in that behalf was issued. The
Respondent-Authority appointed the Appellants and posted them to an overseas
project known as 'Indore Habitat Project' which was implemented through the
agency of 'Overseas Development Authority' (hereinafter referred to as 'the ODA'),
on daily wages @ Rs.63/- per day for the Degree holders and Rs.52.50 per day
for the Diploma holders. On or about 17.3.1997, however, they began receiving a
salary of Rs.1500/- per month. Allegedly, from their salary, provident fund was
They were also being granted the benefit of leave.
A dispute arose as to whether all the Appellants were employed for the
purpose of the said project or the Appellants in Civil Appeal No.337 of 2002
were appointed in the year 1991 by the Authority for its own job. An industrial
dispute was raised by the Appellants herein as their services were not being
regularized by the Respondent. The said dispute was referred for adjudication
of the Labour Court, Indore, by the State of Madhya Pradesh on the following questions
"(1) Whether non-regularisation of the Sub-Engineers (as per the listed
enclosed) is valid and proper? If no, then to which relief they are entitled
and what directions should be given to the employer? (2) Whether it is valid
and proper for not giving equal salary to these Sub Engineers like other Sub
Engineers in accordance with the equal work? If no, then to which relief they
are entitled and what directions should be given to the employer?"
PROCEEDINGS BEFORE THE TRIBUNAL :
The parties filed their respective pleadings before the Labour Court and
also adduced their respective evidences. The Labour Court on the basis of the
materials produced before it arrived at the following findings :
1. The Appellants were appointed by the Indore Development Authority.
2. All the employees have been working in the establishment of the
Respondents for last 5-6 years.
3. Their work was satisfactory.
4. Work has been taken by the Respondent from all the Appellants except
5. Respondents had also mentioned in their claim that there was a proposal
to hand over the colony of ODA Project to Indore Municipal Corporation.
6. The salary fixed by the Commissioner was earlier given to all Engineers
and later on they were given the salary fixed by the Collector.
7. There is no difference in their work and the work of the employees of
Indore Development Authority.
Aggrieved by and dissatisfied with the said Award, the Respondent- Authority
herein filed a writ petition before the Madhya Pradesh High Court, Indore
Bench, which was marked as Writ Petition No.1188 of 1997. By reason of the
impugned judgment dated 26.4.2000, the said writ petition was allowed.
The High Court accepted the contention of the Respondent-Authority that the
Appellants were not appointed against the sanctioned posts and their services
were taken on account of the said ODA Project which was implemented through the
agency of the Respondent-Authority. The ODA Project is said to have been
completed and only the maintenance thereof was to be looked after by the Indore
Municipal Corporation. It was held that the services of the Appellants cannot
be directed to be regularized in services.
As regard the application of the Madhya Pradesh Industrial Employment
(Standing Orders) Act, 1961 (for short, 'the 1961 Act') and the Rules framed
thereunder known as 'M.P. Industrial Employment (Standing Order) Rules, 1963
(for short, 'the 1963 Rules'), it was observed that although there was no
specific pleadings raised in this behalf by the Respondents therein nor any
question having been referred to the Labour Court by the State Government
touching the said issue, it committed an error in granting relief to them on
the basis thereof on its own motion. Despite the same the High Court went into
the question of applicability of the said Act and held that the 1961 Act and
the 1963 Rules had no application. Before the High Court various documents were
produced by the Appellants herein to show the nature of their employment, but
the same had not been taken on records by the High Court. As regard application
of the doctrine of 'equal pay for equal work', it was held to be not applicable
as the Appellants were not entitled to `absorption' or `classification' in
terms of the 1961 Act and the 1963 Rules.
Dr. Rajiv Dhawan, learned Senior Counsel, appearing on behalf of the
Appellants in Civil Appeal No.337 of 2002 and Mr. M.N. Rao, learned Senior
Counsel, appearing on behalf of the Appellants in Civil Appeal No.335 of 2002,
took us through materials on records and contended that the Appellants herein
became `permanent employees' of the Respondents having regard to the provisions
contained in Section 2 of the 1961 Act and Order 2(i) and 2(vi) of the Standard
Standing Orders as set out in the Annexure appended to the 1963 Rules defining
`permanent employees' and the `temporary employees'.
Placing reliance on several documents which have come into existence at a
subsequent stage, Dr. Dhawan would contend that vacancies in fact had arisen
after passing of the judgment of the High Court and, thus the services of the
Appellants should be regularized thereagainst. The vacancies, according to the
learned counsel, need not be permanent ones . It was urged that the expression
'clear vacancies' has to be read in the context of period for which the
concerned workman was required to work, namely, six months. The learned counsel
would argue that the job was required to be performed for six months for which
somebody else could have been appointed so as to attract the provisions of the
1961 Act and the 1963 Rules.
Dr. Dhawan would furthermore contend that the findings of fact had been
arrived at by the Labour Court that the Appellants of Civil Appeal No.337 of
2002 were appointed by the Authority and not only their work was being taken in
the Project but also in other works, and, thus, mere posting of the Appellants
to the said Project would not disentitle them from the benefit of the said Act.
The learned counsel would urge that a seniority list was also drawn up and
an employment code was assigned to each one of the Appellants from which fact
the nature of their employment should be judged.
The learned counsel would submit that the sufficient materials were brought
on records to show that vacancies were available and as the Appellants worked
for a period of more than six months, they became permanent employees in terms
of the Act. It was further contended that as the Respondents despite direction
to produce documents including the offers for appointment did not produce the same,
an adverse inference should have been drawn against them by the High Court. As
regard the claim of 'equal pay for equal work', the learned counsel would urge
that the High Court has failed to consider the same in its true perspective.
Mr. V.R. Reddy, learned Senior Counsel appearing on behalf of the
Respondents, on the other hand, would contend that indisputably the Appellants
were engaged by the Respondent-Authority but such appointments were made for
the purpose of the Project financed by ODA.
The learned counsel would submit that in fact no appointment letter was
issued to the Appellants. Our attention was also drawn to the application dated
22.10.1991 filed by one O.P. Mandloi before the Chairman of the Indore
Development Authority disclosing his educational qualifications and enclosing
therewith the mark-sheets and degrees obtained by him in Civil Engineering and
also Secondary School Examination Certificate to show his date of birth
whereupon the Chief Executive Officer on the body of the said application
itself, made the following endorsement :
"He may be tried in daily wages and should be entrusted with the work
of progress collection of ODA work put with (Illegible).
23.10.91" The learned counsel would submit that in the aforementioned
premise the question of regularization of the services of the Appellants does
not arise. Drawing our attention also to the pleadings as also the reliefs
claimed for by the Appellants before the Labour Court, the learned counsel
would contend that no contention was raised therein by the Appellants as regard
their entitlement of permanency in terms of the provisions of the 1961 Act and
the 1963 Rules. Furthermore, from the reliefs claimed, it would appear that the
Appellants had, inter alia, prayed for continuance of their services by the
Indore Municipal Corporation which knocks off the very basis of their claim. It
was urged that there does not exist any controversy that ODA was to continue
before 30.6.1997 and as such the Appellants could not have been absorbed by the
STATUTORY PROVISIONS :
Section 2(2) of the 1961 Act reads as follows :
"Nothing in this Act shall apply to the employees in an undertaking to
whom the Fundamental and Supplementary Rules, Civil Services (Classification,
Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised
Leave Rules, Civil Service Regulations or any other rules or regulations that
may be notified in this behalf by the State Government in the official Gazette
apply." Clause 2 of the Standard Standing Order reads as under :
"2. Classification of employees. Employees shall be classified as (i)
permanent , (ii) permanent seasonal,(iii) Probationers, (iv) Badlies, (v)
Apprentices, and (vi) temporary.
(i) A 'permanent' employee is one who has completed six months' satisfactory
service in a clear vacancy in one or more posts whether as a probationer or
otherwise, or a person whose name has been entered in the muster roll and who
is given a ticket of permanent employee;
(vi) 'Temporary employee' means an employee who has been employed for
work which is essentially of a temporary character, or who is temporarily
employed as an additional employee in connection with the temporary increase in
the work of a permanent nature; provided that in case such employee is required
to work continuously for more than six months he shall be deemed to be a
permanent employee, within the meaning of clause (i) above." DETERMINATION
The Respondent-Authority is a State within the meaning of Article 12 of the
Constitution of India. It is, therefore, constitutionally obliged to strictly
comply with the requirements of Articles 14 and 16 thereof before making any
appointment. It is also not in dispute that the Respondent- Authority has been
constituted under Madhya Pradesh Nagar Tatha Gram Nibesh Adhiniyam, 1973
(Adhiniyam); Section 47 whereof mandates that all appointments to the posts of
officers and servants included in the State cadre mentioned in Section 76-B of
the Development Authority Services must be made by the State Government and the
appointments to the posts of officers and servants included in the local cadre
in the said services by the concerned Town and Country Development Authority.
The proviso appended to Section 47 of the Adhiniyam further mandates that no
post shall be created in any authority without the prior sanction of the Sate
Government. Section 76B provides for constitution of development authorities
It is also not in dispute that the State Government in exercise of its rule
making power conferred upon it under Section 85 of the Adhiniyam has made rules
known as 'M.P. Development Authority Services (Officers and Servants)
Recruitment Rules, 1987.
The posts of Sub Engineers in which the Appellants were appointed, it is
nobody's case, were sanctioned ones. Concededly, the Respondent Authority
before making any appointment neither intimated the Employment Exchange about
the existing vacancies, if any, nor issued any advertisement in relation
thereto. Indisputably, the conditions precedent for appointment of the officers
and servants of the Authority, as contained in the Service Rules had not been
complied with. The appointments of the Appellants were, therefore, void ab
initio being opposed to public policy as also violative of Articles 14 and 16
of the Constitution of India.
The question, therefore, which arises for consideration is as to whether
they could lay a valid claim for regularization of their services.
The answer thereto must be rendered in negative. Regularisation cannot be
claimed as a matter of right. An illegal appointment cannot be legalized by
taking recourse to regularization. What can be regularized is an irregularity
and not an illegality. The Constitutional Scheme which the country has adopted
does not contemplate any backdoor appointment. A State before offering public
service to a person must comply with the constitutional requirements of
Articles 14 and 16 of the Constitution. All actions of the State must conform
to the constitutional requirements. A daily wager in absence of a statutory
provision in this behalf would not be entitled to Kishan Soni and Others (1997)
5 SCC 86] In Hindustan Shipyard Ltd. and Others vs. Dr. P. Sambasiva Rao and
Others [(1996) 7 SCC 499], a Division Bench of this Court observed :
"10. The process of regularization involves regular appointment which
can be done only in accordance with the prescribed procedure. Having regard to
the rules which have been made by the appellant-Corporation, regular
appointment on the post of medical officer can only be made after the duly
constituted Selection Committee has found the person suitable for such
appointment ." In A. Umarani vs. Registrar, Cooperative Societies and Ors.
[JT 2004 (6) SC 110], a three-Judge Bench of this Court of which we were
members upon taking into consideration a large number of decisions held :
"Although we do not intend to express any opinion as to whether the
cooperative society is a "State" within the meaning of Article 12 of
the Constitution of India but it is beyond any cavil of doubt that the writ
petition will be maintainable when the action of the cooperative society is
violative of mandatory statutory provisions. In this case except the Nodal
Centre functions and supervision of the cooperative society, the State has no
administrative control over its day to day affairs. The State has not created
any post nor they could do so on their own. The State has not borne any part of
the financial burden. It was, therefore, impermissible for the State to direct
regularization of the services of the employees of the cooperative societies.
Such an order cannot be upheld also on the ground that the employees allegedly
served the cooperative societies for a long time.
Yet recently in Pankaj Gupta & Ors., etc. vs. state of Jammu &
Kshmir & Ors. [JT 2004 (8) SC 531], a Division Bench of this Court opined :
"No person illegally appointed or appointed without following the
procedure prescribed under the law, is entitled to claim that he should be
continued in service.
In this situation, we see no reason to interfere with the impugned order.
The appointees have no right for regularization in the service because of the
erroneous procedure adopted by the concerned authority in appointing such
persons" CASE LAW RELIED UPON BY THE APPELLANT :
In Dr. A.K. Jain and Others etc. vs. Union of India and Others [1987 (Supp.)
SCC 497], this Court did not lay down any law. It was, in fact, held that as
the Petitioners therein were not regularized in accordance with the prescribed
rules and regulations for regular appointments, their services had to be
terminated and as such there had been neither any arbitrary nor illegal action
on the part of the respondents nor any violation of the Fundamental Rights
guaranteed under Articles 14 and 16. However, having regard to the facts and
circumstances of the said case, some directions were issued presumably in terms
of Article 142 of the Constitution.
In Hindustan Shipyard Ltd. (supra) this Court also distinguished the said
In Niadar and Another vs. Delhi Administration and Another [(1992) 4 SCC
112], again no law has been laid down. It appears that there existed a scheme
for regularization and some directions were issued in terms thereof.
The said decisions, thus, are of no assistance in this case.
APPLICATION OF THE ACT AND THE RULES :
The 1961 Act was enacted to provide for rules defining with sufficient
precision in certain matters the conditions of employment of employees in
undertakings in the State of Madhya Pradesh. By reason of the provisions of the
said Act, application of Standard Standing Orders to undertakings has been
provided in terms whereof the matters to be provided in the Standard Standing
Orders have been specified. Under sub-section (1) of Section 6, the State
Government may, by notification, apply Standard Standing Orders to such class
of undertakings and from such date as may be specified therein.
Sub-section (2) of Section 6 reads as under :
"Where immediately before the commencement of this Act standing order
are in force in respect of any undertaking, such standing orders shall, until
standard standing orders are applied to such undertaking under sub-section (1)
continue in force as if they were made under this Act." No notification
has been brought to our notice that the Standard Standing Orders had been made
applicable to the Appellants. It is furthermore not in dispute that Adhiniyam
came into force in 1973. The statute, rules and regulations formed by the State
govern the terms and conditions of service of the employees of the Respondent.
The terms of conditions of service contained in the 1973 Act and the 1987 Rules
are not in derogation of the provisions contained in schedule appended to the
The 1961 Act provides for classification of employees in five categories.
The 1973 Act, as noticed hereinbefore, clearly mandates that all posts should
be sanctioned by the State Government and all appointments to the said cadre
must be made by the State Government alone. Even the appointments to the local
cadre must be made by the Authority.The said provisions were not complied with.
It is accepted that no appointment letter was issued in favour of the
Appellants. Had the appointments of the Appellants been made in terms of the
provisions of the Adhiniyam and Rules framed thereunder, the
Respondent-Authority was statutorily enjoined to make an offer of appointment
in writing which was to be accepted by the Appellants herein. Who made the
appointments of the Appellants to the Project or other works carried on by the
Authority is not known. Whether the person making an appointment had the
requisite jurisdiction or not is also not clear. We have noticed hereinbefore
that in the case of Om Prakash Mondloi, the CEO made an endorsement to the
effect that he may be tried in daily wages and should be entrusted with the
work of progress collection of ODA work. The said order is not an 'offer of
appointment' by any sense of term.
It may be true that the Appellants had been later on put on a monthly salary
but there is nothing on record to show as to how the same was done.
They might have been subjected to the provisions of the employees provident
fund and might have been granted the benefit of leave or given some employment
code and their names might have found place in the seniority list amongst
others, but thereby they cannot be said to have been given a permanent ticket.
The so-called seniority list which is contained in Annexure P-27, whereupon
strong reliance has been placed by Dr. Dhawan merely itself goes to show that
it was prepared in respect of office muster employees. The said seniority list
was not prepared in terms of the classification of employees within the meaning
of the 1961 Act and the rules framed thereunder but was based on the date of
joining probably for the purpose of maintenance of records. The 1973 Act or the
rules framed thereunder do not provide for appointments on ad hoc basis or on
daily wages. The 1961 Act itself shows that the employees are to be classified
in six categories, namely, permanent, permanent seasonal, probationers,
badlies, apprentices and temporary. The recruitments of the Appellants do not
fall in any of the said categories. With a view to become eligible to be
considered as a permanent employee or a temporary employee, one must be
appointed in terms thereof. Permanent employee has been divided in two
categories (i) who had been appointed against a clear vacancy in one or more
posts as probationers and otherwise; and (ii) whose name had been registered at
muster roll and who has been given a ticket of permanent employee. A 'ticket of
permanent employee' was, thus, required to be issued in terms of Order 3 of the
Standard Standing Orders. Grant of such ticket was imperative before permanency
could be so claimed. The Appellants have not produced any such ticket.
It is not the case of the Appellants that they had been working as Technical
Supervisors and Clerks in respect of which service book may be maintained
instead of issuance of a ticket. It is also not the case of the Appellants that
their names had appeared in the service book maintained for the said purpose.
The Standing Orders governing the terms and conditions of service must be
read subject to the constitutional limitations wherever applicable.
Constitution being the suprema lax, shall prevail over all other statutes.
The only provision as regard recruitment of the employees is contained in Order
4 which merely provides that the Manager shall within a period of six months,
lay down the procedure for recruitment of employees and notify it on the notice
board on which Standing Orders are exhibited and shall send copy thereof to the
Labour Commissioner. The matter relating to recruitment is governed by the 1973
Act and the 1987 Rules. In absence of any specific directions contained in the
schedule appended to the Standing Orders, the statute and the statutory rules
applicable to the employees of the Respondent shall prevail.
In M.P. Vidyut Karamchari Sangh vs. M.P. Electricity Board [(2004) 9 SCC
755], a three-Judge Bench of this Court held that a regulation which is not
inconsistent with the provisions of the 1961 Act and the Rules, can be issued
by a statutory authority.
For the purpose of this matter, we would proceed on the basis that the 1961
Act is a special statute. vis-`-vis the 1973 Act and the rules framed
thereunder. But in absence of any conflict in the provisions of the said Act,
the conditions of service including those relating to recruitment as provided
for in the 1973 Act and the 1987 Rules would apply. If by reason of the latter,
the appointment is invalid, the same cannot be validated by taking recourse to
regularization. For the purpose of regularization which would confer on the
concerned employee a permanent status, there must exist a post. However, we may
hasten to add that regularization itself does not imply permanency. We have
used the term keeping in view the provisions of 1963 Rules.
We have noticed the provisions of the Act and the Rules. No case was made
out by the Appellants herein in their statements of claim that they became
permanent employees in terms thereof. There is also nothing on records to show
that such a claim was put forward even in the demand raising the industrial
dispute. Presumably, the Appellants were aware of the statutory limitations in
this behalf. Furthermore, the Labour Court having derived its jurisdiction from
the reference made by the State Government, it was bound to act within the
four-corners thereof. It could not enlarge the scope of the reference nor could
deviate therefrom. A demand which was not raised at the time of raising the
dispute could not have been gone into by the Labour Court being not the
The questions which have been raised before us by Dr. Dhawan had not been
raised before the Labour Court. The Labour Court in absence of any pleadings or
any proof as regard application of the 1961 Act and the 1963 Rules had
proceeded on the basis that they would become permanent employees in terms of
Order 2(ii) and 2(vi) of the Annexure appended thereto. The Appellants did not
adduce any evidence as regard nature of their employment or the classification
under which they were appointed.
They have also not been able to show that they had been issued any permanent
ticket. Dr. Dhawan is not correct in his submission that a separate ticket need
not be issued and what was necessary was merely to show that the Appellants had
been recognized by the State as its employees having been provided with
employment code. We have seen that their names had been appearing in the muster
rolls maintained by the Respondent.
The Scheme of the employees provident fund or the leave rules would not
alter the nature and character of their appointments. The nature of their
employment continues save and except a case where a statute interdicts which in
turn would be subject to the constitutional limitations. For the purpose of
obtaining a permanent status, constitutional and statutory conditions precedent
therefor must be fulfilled.
The submission of Mr. M.N. Rao to the effect that the principle of equity
should be invoked in their case is stated to be rejected. Such a plea had
expressly been rejected by this Court in A. Umarani (supra).
PROJECT WORK :
This case involves 31 employees. A distinction is sought to be made by Dr.
Dhawan that out of them 27 had been appointed to a project and not in a
project. The distinction although appears to be attractive at the first blush
but does not stand a moment's scrutiny. As noticed hereinbefore, the High
Court's observation remained unchallenged, that the project was to be financed
by ODA. The project was indisputably to be executed by the Indore Development
Authority; and for the implementation thereof, the appointments had to be made
by it. If the Appellants were appointed for the purpose of the project, they
would be deemed to have been appointed therefor and only because such
appointments had been made by the Respondent would by itself not entitle them
to claim permanency. The life of the project came to an end on 30.6.1997. The
maintenance job upon completion thereof had been taken over by Indore Municipal
The Appellants were aware of the said fact and, thus, raised an alternative
plea in their statements of claims. The Labour Court could not have granted any
relief to them as prayed for, as Indore Municipal Corporation is a separate
juristic person having been created under a statute. Such a relief would have
been beyond the scope and purport of the reference made to the Labour Court by
the State Government. Furthermore, the Indore Municipal Corporation was not a
party and, thus, no employee could be thrust upon it without its consent.
In A Umarani (supra), this Court held that once the employees are employed
for the purpose of the scheme, they do not acquire any vested right to continue
after the project is over [See paras 41 and 43]. [See also Amar Singh and
Others, (2003) 5 SCC 388] It is furthermore evident that the persons appointed
as daily wagers held no posts. The appointments, thus, had been made for the
purpose of the project which, as indicated hereinbefore, came to an end. The
plea of Dr.
Dhawan to the effect that the Appellants in Civil Appeal No. 337 of 2002
were asked to perform other duties also may not be of much significance having
regard to our foregoing findings. However, it has been seen that even services
of one of them had been requisitioned only for the project work. The High
Court, in our opinion, was right in arriving at the conclusion that the
Appellants were not entitled to be regularized in service.
ADVERSE INFERENCE :
Some documents were said to have been called for from the Respondents which
are said to have been not produced. One of such documents was offers of
appointment. The witness examined on behalf of the Respondents, although at one
stage stated that the appointment letters had been issued to them, upon going
through the records brought with him, however, asserted that no such
appointment letter was issued. Had the letters of appointment been issued, the
Appellants themselves could have produced the same. They did not do so. It is
accepted at the Bar, when the endorsement on the application filed by Om
Prakash Mondloi was shown that the appointment letters were not issued. We do
not know the relevance of other documents called for for determining the issue.
If a document was called for in absence of any pleadings, the same was not
relevant. In absence of any pleadings, the Appellants could not have called for
any document to show that the provisions of the 1961 Act and 1963 Rules would
apply. Before the High Court as also before us, the Appellants have produced a
large number of documents which were not filed before the Labour Court. Such
additional documents had been kept out of consideration by the High Court as
also by us. We have referred to the said fact only for the purpose of showing
that it would not be correct to contend that the Appellants had no access to
the said documents. An adverse inference need not necessarily be drawn only
because it would be lawful to do so. The Labour Court did not draw any adverse
inference. Such a plea was not even raised before the High Court.
Recently in M.P. Electricity Board vs. Hariram etc. [2004 AIR SCW 5476],
this Court observed :
""In such a factual background, in our opinion, the Industrial
Court or the High Court could not have drawn an adverse inference for the
non-production of the Muster Rolls for the year 1990 to 1992 in the absence of
specific pleading by the respondents-applicants that at least during that
period they had worked for 240 days continuously in a given year. The
application calling for the production of the documents was for the years 1987
to 1992. As stated above, between the period 1987 to 1990, as a matter of fact,
till end of the year 1990 the respondents have not been able to establish the
case of continuous work for 240 days. Considering these facts in our view
drawing of an adverse inference for the non- production of the Muster Rolls for
the years 1991-92, is wholly erroneous on the part of the Industrial Court and
the High Court. We cannot but bear in mind the fact that the initial burden of
establishing the factum of their continuous work for 240 days in a year rests
with the applicants-respondents.
The above burden having not been discharged and the Labour Court having held
so, in our opinion, the Industrial Court and the High Court erred in basing an
order of re-instatement solely on an adverse inference drawn erroneously. At
this stage it may be useful to refer to a judgment of this Court in the case of
Muncipal Corporation, Faridabad vs. Siri Niwas (JT 2004 (7) SC 248) wherein
this Court disagreed with the High Court's view of drawing an adverse inference
in regard to the non-production of certain relevant documents. This is what
this Court had to say in that regard..
A Court of Law even in a case where provisions of the Indian Evidence Act
apply, may presume or may not presume that if a party despite possession of the
best evidence had not produced the same, it would have gone against his
contentions. The matter, however, would be different where despite direction by
a court the evidence is withheld.
Presumption as to adverse inference for non- production of evidence is
always optional and one of the factors which is required to be taken into
consideration in the background of facts involved in the lis. The presumption,
thus, is not obligatory because notwithstanding the intentional non-
production, other circumstances may exist upon which such intentional
non-production may be found to be justifiable on some reasonable grounds. In
the instant case, the Industrial Tribunal did not draw any adverse inference
against the Appellant. It was within its jurisdiction to do so particularly
having regard to the nature of the evidence adduced by the Respondent.""
In any event, in this case, we have proceeded on the basis that the assertions
of the Appellants as regard nature of their employment, their continuance in
the job for a long time are correct and as such the question as to whether any
adverse inference should be drawn for alleged production of documents called
for would take a back seat.
EQUAL PAY FOR EQUAL WORK :
The Appellants having been employed on daily wages did not hold any post. No
post was sanctioned by the State Government. They were not appointed in terms
of the provisions of the statute. They were not, therefore, entitled to take
the recourse of the doctrine of 'equal pay for equal work' as adumbrated in
Articles 14 and 39(d) of the Constitution of India. The burden was on the
Appellants to establish that they had a right to invoke the said doctrine in
terms of Article 14 of the Constitution of India. For the purpose of invoking
the said doctrine, the nature of the work and responsibility attached to the
post are some of the factors which were bound to be taken into consideration.
Furthermore, when their services had not been regularized and they had
continued on a consolidated pay on ad hoc basis having not undergone the
process of regular appointments, no direction to give regular pay scale could
have been issued by the Labour Court. [See Orissa University of Agriculture
& Technology and Another vs. Manoj K.
Mohanty (2003) 5 SCC 188]., In State of Haryana and Another vs. Tilak Raj
and Others [(2003) 6 SCC 123], it was held :
"A scale of pay is attached to a definite post and in case of a
daily-wager, he hold no posts. The respondent workers cannot be held to hold
any posts to claim even 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-`-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." The
said decision has been noticed in A. Umarani (supfa) CONCLUSION For the reasons
aforementioned, we do not find any merit in these appeals, which are dismissed
accordingly. There shall, however, be no order as to costs.