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Kishan Lal v. Nagar Nigam, Allahabad And Anotehr - WRIT - A No. 75689 of 2005  RD-AH 6130 (21 March 2006)
Court No. 7
Civil Misc. Writ Petition No. 75689 Of 2005
Nagar Nigam and another
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
This petition has been filed by the petitioner for a direction to the respondents to pay him minimum pay scale as is admissible to the regular employee working on the post of ''Dom' in Viddyut Shav Dah Grih, Allahabad. It has also been prayed that a direction may be issued to the respondents to regularize the services of the petitioner on the post of ''Dom' as six posts of ''Dom' are vacant in Nagar Nigam, Allahabad.
The case of the petitioner is that he is continuously working on the post of ''Dom' in Viddyut Shav Dah Grih, Allahabad on daily wages basis since 3.3.1994.
The counsel for the petitioner submits that the petitioner is working on the post of ''Dom' on daily wage basis for the last more than 12 years and that the respondents may be directed to regularize his services. He further submits that since the petitioner is discharging the duties of a regular employee, as such he is entitled for minimum pay scale admissible to a regular employee on the principle of ''equal pay for equal work.'
The counsel appearing for the respondents submits that a daily wage employee cannot claim parity regarding minimum pay scale at par with a regular employee unless his services are regularized.
In State of Punjab and others Vs. Sardara Singh (1998) 9 SCC 709, it has been held that High Court under Article 226 of the Constitution should not issue any direction for regularization of an employee and it is for the authorities to frame the scheme for regularization of daily wagers. State Govt. has also framed Group ''D' Employees Service Rules, 2001 and the case of the petitioners is to be considered under the aforesaid Rules if he is eligible otherwise.
In so far as the payment of minimum pay scale is concerned admittedly the petitioner is daily wager and is not working against any post. The concept of minimum wages and minimum pay scale is different. When an employee is engaged on daily wages he is paid minimum daily wages. As per notifications of the Central Government or the State Government minimum wages whichever is applicable as Minimum Pay Scale is attached to the post and is applicable to the regular employees. The educational qualifications, methods of recruitment as well as responsibilities and liabilities of regular employees are different from daily wage employees. The regular employees are also liable to be transferred while daily wage employees cannot be transferred. The apex court in a catena of decisions has recently held that in the absence of proper material the High Court cannot grant parity in pay to daily wage workers or casual workers with regularly appointed workers merely on presumption of equality of nomenclature or work. Reference may be given of the decision rendered by the apex court in State of Orissa Vs Balaram Sahu, (2003) 1 S.C.C. 250 in this regard. In a catena of decisions the apex court has directed that daily wagers be entitled to only minimum pay as notified by the State Government for daily wagers and not the minimum pay scale. There has been a significant shift in law, as the doctrine of equal pay for equal work cannot be applied mechanically merely because the daily wagers are discharging similar duties as their counter part regular employees are discharging. The shift in law is evident from the following cases:
1 State of Orissa Vs Balaram Sahu, (2003) 1 SCC 250
2 State of Punjab Vs Savender Kaur, 2004 (1) FLR 592
3 State of Haryana Vs Tilak Raj & others, 2003 AIR SCW
4 Federation of All India Customs and Central Excise
Stenographers (Recognized) & others Vs Union of India
& others, 1988 (3) SCC 91
5 Harbans Lal Vs State of Himachal Pradesh, 1989 (4)
6 Ghaziabad Development Authority Vs Vikram
Chaudhary, 1995 (5) SCC 210
7 State of U.P. Vs J.P.Chaurasia, 1989 (1) SCC 121
8 State of Haryana Vs Jasmer Singh, (1996) 11 SCC 77
In State of Orissa Vs Balaram Sahu, (2003) 1 SCC 250, it has been held that in the absence of proper material High Court cannot grant parity in pay to daily wage workers with regularly appointed workers merely on presumption of equality of nomenclature or work. In State of Punjab Vs Savinderjit Kaur, 2004 (101) FLR 592, it has been held that the doctrine of equal pay for equal work would not apply where it has not been established that duties and functions of two categories of employees are at par. In State of Haryana & another Vs Tilak Raj & others, 2003 A.I.R. S.C.W. 3382 = 2003 (4) A.W.C. 2597 (S.C.), it has been held that the claim by daily wagers in comparison with regular and permanent staff is not tenable since daily wager holds no post and scale of pay is attached to a definite post. In Federation of All India Customs and Central Excise Stenographers (Recognized) and others Vs. Union of India and others (1988 (3) S.C.C. 91), the apex 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. In Harbans Lal Vs. State of Himahcal Pradesh (1989 (4) S.C.C. 459), it is 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 accuracy required and the dexterity that the job requires may differ from job to job. In Ghaziabad Development Authority Vs Vikram Chaudhary (1995 (5) S.C.C. 210) it has been held that it must be left to be evaluated and determined by an expert body. In State of U.P. Vs J.P. Chaurasia (1989 (1) S.C.C. 121), it is pointed out that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. In the case of State of Haryana Vs Jasmer Singh, (1996) 11 S.C.C. 77, it has been held that the daily wage employees cannot be treated as on a par with persons in regular service holding similar posts.
Recently a Division Bench of this Court in an Special Appeal No. (334) of 2004 arising out of the order and judgment in Writ Petition No. 37747 of 2002 quashed the order and judgment of the learned Single Judge in so far as it treated the daily wage employees of the Public Service Commission at par with the regularly appointed employees and held: -
"We do not agree with certain other directions given in the said judgment. For instance, the learned Single Judge after giving the direction that the petitioners should be considered for regularization has thereafter in the same sentence given a direction that the petitioners are also entitled to regular wages in the regular pay scale from 17.2.2001. Thus, we find that there is a contradiction in the same sentence of the learned Single Judge. In our opinion the learned Single Judge could not validly direct that the petitioners be regularized. He could only direct that the petitioners should be considered for regularization. Having directed that the petitioners should be considered for regularization, we fail to understand how he came in the same sentence say that the petitioners are entitled to regular pay scale. This direction for payment of regular wages and regular pay scale in the impugned judgment cannot be sustained and is hereby set aside.
We are further of the opinion that direction nos. 4 and 5 at the end of the judgment of the learned Single Judge also cannot be sustained. The learned Single Judge has directed in direction no. 4 in the impugned judgment that the petitioners whose services are not regularized shall be allowed to continue in minimum of the pay scale. This direction is clearly illegal as has been held by the Supreme Court and this Court in a series of decisions, which have been referred to in the Division Bench decision of this Court in State of U.P. Vs. U.P. Madhyamik Shikshak Parishad, 2004 ALJ 232. That decision was followed in State of U.P. Vs Rajendra Prasad 2004 (1) UPLBEC 60 etc. The aforesaid decisions have relied on several Supreme Court decisions which have held that an employee who is not a regular employee cannot be given the minimum of the pay scale. The minimum of the pay scale can only be given to the employees who have been regularized. For the same reason the direction no. 5 contained in the impugned judgment of the learned Single Judge that the petitioners should be given minimum of pay scale is also illegal. In fact none of the petitioner can be given minimum of the pay scale, and only those who are subsequently regularized can be given the minimum of the pay scale as and when they are regularized. Those who are not regularized will not be given the minimum of pay scale at all in view of the aforesaid decisions.
For the reasons given above, this special appeal is partly allowed. No order as to costs.
S/d M. Katju, J.
S/d R.S.Tripathi, J.
In State of Punjab Vs Savinderjit Kaur, 2004 (101) F.L.R. 592, a three judge bench of the apex court held: -
"even the doctrine of equal pay for equal work would not apply where it has not been established that duties and functions of two categories of employees are at par"
In this writ petition it is not the argument of the petitioner that he is not being paid minimum wages, which are admissible to daily rated employees notified by the appropriate Government. Only parity is claimed in the pay scale, which can only be paid to an employee holding permanent post. In case the petitioner is discharging the duties of a regular employee he may approach to the Labour Court for adjudication of the disputed question of fact.
The judgments of the apex court as well as of Division Bench of this Court are binding upon this Bench. Thus, the petitioner is not entitled to the pay scale at par with the regular employees.
The petitioner has an efficacious and alternative remedy against his grievance before the Labour Court. It is the consistent view of Hon'ble Supreme Court that wherever an alternate remedy is available it should not be bye-passed and the petitioner has to approach this Court after availing alternate remedy. Reference in this regard may be made to Hindustan Steel Works Construction Ltd. and another Vs. Hindustan Steels Works Construction Ltd., Employees Union- (2005) 6 SCC 725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another, (2005) 107 F.LR.729.
For the reasons stated above, the petition is dismissed on the ground of alternative remedy. No order as to costs.
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