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Suresh Kumar & Others v. State Of U.P. & Others - SPECIAL APPEAL No. 1263 of 2005 [2005] RD-AH 5074 (27 October 2005)


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CJ's Court

Special Appeal No.1263 of 2005

Suresh Kumar and others


State of U.P. and others

Hon'ble Ajoy Nath Ray, CJ.

Hon'ble Ashok Bhushan, J.

This is an appeal by several daily wagers-writ petitioners employees of the State Government, who are not yet on the regular pay roll.

In their writ petitions, they prayed principally for two reliefs. First, they prayed for regularization and secondly, they prayed for a scale of pay equal to the minimum pay obtained by the government employees on the regular rolls.

On the 29th of July, 2003, an interim order was passed in aid of the writ petition granting by way of a temporary interim measure the latter of the two above reliefs, i.e. the writ petitioners were to be paid at the minimum regular governmental scale.

The same Hon'ble Single Judge, who passed that interim order, heard out the writ petition and has dismissed the same on 17.5.2005.

The last two paragraphs of the said judgment are as follows:-

"The State Government has not made any such scheme in the Public Works Department for regularising daily wages on temporary muster roll. These employees have first to be taken as daily wagers on permanent muster roll and then as work-charge employees and if there are vacancies, on regular side the State Government shall then consider them for regularization under the Rules of 2001.

The writ petitions are accordingly disposed of. If any benefit has been drawn by the petitioners in pursuance of interim orders, the same shall not be recovered from them".

On behalf of the appellants, Mr. Khare submitted that the bifurcation or even further grouping of daily wagers amongst those, who are in the muster roll or who are work-charge daily wagers is not warranted by any written rule. He referred to certain documents (see from page 71 of the brief before us) where from even the State Government, there appears to have come objections to this type of further classification amongst the daily wagers. He also assailed the judgment on the basis that his clients have rendered service as daily wagers for long periods ranging between 15-20 years and also that they have rendered specified categorised duties of work and that they are either (i) Mates, or (ii) Beldars, or (iii) Chowkidars.

The submission also was that there was no substantial opposition by the State Government as to the equality of work rendered by the writ petitioners with reference to the work rendered by their counterpart, who are either Mates, or Beldars, or Chowkidars, but are on the regular pay roll of the State Government.

Heavy reliance was placed by the appellants on a three Judges' decision in the case of Putti Lal, reported at (2002) 2 UPLBEC 1595.  Paragraph 5 of the said judgment is quoted below:-

"In several cause this Court applying the principle of equal pay for equal work has held that a daily wager, if he is discharging the similar duties as these in the regular employment of the Government, should at least be entitled to receive the minimum of the pay scale though he might not be entitled to any increment or any other allowance that is permissible to his counter part, in the Government. In our opinion that would be the correct position and was therefore, direct that these daily wagers would be entitled to draw at the minimum of the pay scale being received by their counter part in the Government and would not be entitled to any other allowances or increment so long as they continue on daily wager. The question of their regular absorption will obviously be dealt with in accordance with the statutory rule already referred to."

It was argued that not only was the above principle enunciated in Putti Lal's case (supra), but that it was applied and the matter was finally disposed of granting minimum governmental scale of pay to the employees in question. It was submitted that the case leans heavily in favour of the appellants and therefore, there should be a stay of operation of the impugned order although the said order has not directed recovery of the differential of pay between the minimum governmental scale and the minimum wages from the appellants or any one of them.

On behalf of the State Government, Mr. Ran Vijay Singh submitted that this case is not to be treated as an isolated case limited only to the interest of the appellants. According to his submission, the number of daily wagers in the State of Uttar Pradesh is just a little under half lac, roughly about 48 thousand as per his current understanding. The very large majority of these daily wagers, who have not yet got any benefit of any court order, do not receive the minimum governmental scale, but receive only such minimum wages as the appellants-writ petitioners have been receiving for all periods prior to 29.7.2003.

He submitted that there are several decisions of the Supreme Court of India, even if those are of Benches consisting two Hon'ble Judges, wherein repeatedly a different view has been expressed than in Putti Lal's case (supra) with regard to daily wagers rendering work somewhat similar to the work of Class-IV employees; the argument is that there is no equality amongst these two types, which can be translated by court's order into equality of pay.

Since we are only at the first stage of hearing and we propose to call for affidavits even before we dispose of the stay matter, we are not entering into all the authorities, which were cited before us. But the mention must be made of the principal case of Tilak Raj and of the case of Jasmer Singh, reported respectively at (2003) 6 SCC 123 and (1996) 11 SCC 77.

There are clear dicta in these cases that the daily wagers are not to be treated as equal to regular Class-IV Government employees. That the equality does not run to the required extent and, therefore, it cannot run to equality of pay either.

A decision of our High Court given by a Division Bench in the case of Rajendra Prasad, reported at (2004) 1 UPLBEC 60 speaks in the same vein.

The respondents submitted that the criteria to be looked into for determining equality of work have been laid down in several Supreme Court decisions. Some were cited before us and we make mention only to the case of Tarun Roy, which is reported at (2004) SCC (L&S) 225. Portions of the judgment were placed before us from paragraph 14 and the subsequent paragraphs of the judgment.

We find that in Putti Lal's case (supra), the Court did not make a long detailed assessment to the effect that all or substantially all daily wagers of the State rendered services and worked substantially identically to Class-IV Government employees on the regular rolls drawing the minimum governmental pay.

The Supreme Court did apply the principle of equal pay for equal work, but as is well known, what the Supreme Court does is not binding, only the reason why the  Supreme Court does so is. The assessment of equality of work by considering all aspects of the case is to be performed on a detailed basis, which will inspire confidence everywhere.  It will not do in a matter of this nature simply to proceed on petition and affidavits and see whether allegations have been appropriately denied or not; and if not denied, to treat the allegations as admitted. This type of pure adversary procedure in a case of this nature would not be just or proper. The Court itself has to inquire if necessary by directing and goading the parties into filing affidavits and further affidavits.

Until the assessment of equality of work is made and made in favour of the daily wagers, the Court cannot grant a positive final order in favour of the daily wagers and raise substantially their pay. If such pay ultimately has to be raised on constitutional principles, then it has got to be done. But it has to be done on a complete assessment and with the full understanding that it will cause a heavy burden on the State exchequer; if they are prevented from taking Class-IV employees' work from daily wagers on the principle of forbiddal of unfair exploitation of labour, then and in that event, such extra heavy burden has to be borne by the State finance. However, the decision of putting such expense upon the State cannot proceed  on such simple basis as admissions or denials; all important and relevant aspects have to be adverted to by the parties and, only thereafter the Court has to enter into all these aspects.

If the matter stood on a point of law only and a point of pleadings tendered until now, there is no doubt that the scale on the side of the State would be heavier. This is simply because the full assessment of equality of work has not yet been made and the simple rule of law is that he who wants to obtain a Court's order in favour of him has to make out a case before he gets that order.

But in matters of passing of interim order, there is another principle at least of equal importance and that is the principle of balance of convenience. In one House of Lords case, the American Cyanamid, the Court went so far as to say that the principle of balance of convenience is the only principle for granting interim order.

We do not say so, but we mention that authority only for emphasising the extreme importance of balance of convenience in matters of grant of interim order.

The interim orders passed in this case will operate not as a precedent binding other daily wagers, but only in favour of these employees. It is not impossible that they will ultimately make out their case for doing the same job as regular Mates, or Beldar, or Chowkidars. They have been getting their extra salary for two years. If we do not pass any interim order, not only will their monthly pay fall, but it will so fall without the State having to place before the Court all the relevant materials as to the work taken from them, and the State is in custody of the full and comprehensive material.

In our opinion, the facts and circumstances of the case, call for passing of interim order not until disposal of the appeal, but only until we finally dispose of the stay application.

An opposition is invited from the State Government dealing with the aspect of assessment of equality of work; it should be borne in mind that materials not before the first Court, might even be pleased in this appeal; such affidavits will be treated also as part of the records to be looked into at the time of disposal of the appeal. Such opposition to be tendered within four weeks after re-opening after the Diwali Vacation; reply thereto within three weeks thereafter. The application will come up in the list after the affidavits are filed and exchanged.

Until disposal of the interim relief application, there will be a stay of operation of the impugned order only to this extent that the interim order passed by the writ Court on 29.7.2003 will continue to operate notwithstanding the writ having been disposed of.




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