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SONE LAL & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Sone Lal & Others v. State Of U.P. & Others - WRIT - A No. 38830 of 1998 [2006] RD-AH 2180 (27 January 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

 Heard counsel for the parties and perused the record.

          The petitioners were engaged on daily wage basis in Kanpur Prani Udyan, Azad Nagar Kanpur (hereinafter referred to as ''Prani Udyan). They  claim that although they have put in more than two decades of continuous service yet their services have not yet been regularized.  It is further claimed by them that they are discharging the same duties which is discharged by their regularly appointed counterparts in the Prani Udyan but are paid a meagre amount of Rs. 1275/- per month as against Rs. 3300/- per month  paid to the regular employees.  They claim parity in wages on the principle of ''equal pay for equal work' in these writ petitions.

  Counsel for the petitioners has placed reliance upon two awards dated 30.3.1995 passed by Presiding Officer, Labour Court (III), Kanpur in Adjudication  case no. 173 of 1991 -Kanpur Prani Udyan Vs. Sri Jaipal Singh  and dated 24.10.1990  passed by Presiding Officer, Industrial Tribunal (III), Kanpur in Adjudication  case no. 211 of 1989 -Kanpur Prani Udyan Vs. Kanpur Prani Udyan Kanpur Karmachari Sangh Union wherein the Labour Court/Industrial Tribunal held that the concerned employees were  entitled to same salary as their counterparts in the regular employment on the principle of ''equal pay for equal work'.  The said awards were upheld by the Hon'ble Apex Court.

Standing counsel submits that in  the case in the case of Daily Rated Casual Labour Employed under P&T Department through Bhartiya Dak Tar Mazdoor Manch (-(1988)1 SCC-122), there was classification of casual labourers into three categories- (i) those who had not completed 720 days of service; (ii) those who had completed 720 days of service and not completed 1200 days of service and (iii) those who had completed more than 1200 days of service for the purpose of payment of different rates of wages. Hon'ble the Supreme Court, on the facts and in the circumstances of that case held that the classification of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corresponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable. The wage structure of the country is such that a worker is always paid less than what he produces. Therefore, Hon'ble the Supreme Court directed the respondents to prepare a scheme on rational basis for absorbing as far as possible the casual labourers who had been continuously working for more than one year in the Posts and Telegraphs Department.

From a bare perusal of the aforesaid decision, it is evident that there was a demand of casual daily rated employees in the Posts and Telegraphs Department. This fact was admitted to the Department and the judgment in the case was confined to the peculiar facts and circumstances of that case as such, the aforesaid judgment does not apply to the facts and circumstances of the case at hand and is clearly distinguishable.

The case of State of Haryana and others V. Charanjit Singh and others (2005(8) SCALE-482) was a case where doctrine for ''equal pay for equal work' to daily wagers appointed as ledger clerks, ledger keepers, pump operators etc., was applied. The Hon'ble Supreme Court admonished the High Court for blindly proceeding on basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors.  Hon'ble Supreme Court considered whether direction of High Court to pay the minimum wage in the scale payable to a class IV employee was required to be interfered with or not and held that:

" Undoubtedly, the doctrine of ''equal pay for equal work' is not an abstract doctrine and is capable of being enforced in a Court of law. But equal pay must be for equal work or equal value. The principle of ''equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on quality or characteristics of persons recruited and grouped together as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to object sought to be achieved.  In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person had not gone through the process of recruitment may itself, in certain cases make a difference. If the educational qualifications are different then also the doctrine may have no application. Even though persons may do the same work, their quality work may differ. Where persons are selected by a Selection Committee on the basis of merit with due regard to seniority a higher pay scale granted to such persons who are evaluated by competent authority cannot be challenged. A classification based on difference in educational qualifications justifies a difference in pay scales. A mere nomenclature designating a person as say a carpenter or craftsman is not enough to come to a conclusion that he is doing the same work as another carpenter or craftsman in regular service.  The quality of work which is produced may be different and 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 may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility.  Functions may be the same but the responsibilities made a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ Court can lightly interfere. Normally a party claiming ''equal pay for equal work' should be required to raise a dispute in this regard. In any event the party who claims ''equal pay for equal work' has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a Court, the Court must first see that there are necessary averments and there is a proof. If the High Court, is on basis of material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled, it may direct payment of equal pay from the date of the filing of the respective Writ Petition.  In all these case, we find that the High Court had blindly proceeded on the basis that the doctrine of ''equal pay for equal work' applies without examining any relevant factors."

There is no quarrel about the law that persons discharging the same duties are entitled to ''equal pay for equal work' but it has to be seen that whether a particular employee discharges the same duties and shoulders the same responsibilities as is being discharged and shouldered by the counterpart with whom he seeks parity. The fact whether the petitioner has put in continuous service for 240 or more days in a calendar year or not and whether he has been discriminated or is otherwise entitled for regularization of his services requires findings of fact, which can only be adjudicated after appreciation of documentary and oral evidence to be adduced by the parties which is not feasible in writ jurisdiction under Article 226 of the Constitution.

Standing Counsel further submits that the petitioners have an efficacious and alternative remedy against the aforesaid grievance before the Labour Court or Industrial Tribunal, as the case may be, under Section 33-C (2) of the U.P. Industrial Disputes Act, 1947. The counsel for the petitioners does not dispute this fact.

The petitioners have an alternate and efficacious remedy before the Labour Court/Industrial Tribunal, as held in Chandrama Singh V. Managing Director U.P.Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898.

It is the consistent view of Hon'ble the Supreme Court in Hindustan Steel Works Construction Ltd., and another Vs. Hindustan Steel Works Construction Ltd., Employees Union-(2005)6 SCC-725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another (2005)107 FLR-729 that in case alternate and efficacious remedy is available it should not be bye-passed and writ petition should not be normally entertained by the High Court under Article 226 of the Constitution of India and the petitioner has to approach this Court after availing alternate remedy.

          For the reasons stated above, the writ petitions are not maintainable and are liable to be dismissed.  

The writ petitions are dismissed on the ground of availability of alternative remedy.   No order as to costs.


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