Gopal Sutradhar And Ors vs State Of Tripura And Ors

[1] Heard Mr. S. Lodh, learned counsel appearing for the petitioners as well as Mr. D. Bhattacharjee, learned G.A. appearing for the respondents No.1 to 3 and Mr. K. N. Bhattacharjee, learned senior counsel assisted by Ms. S. Chakraborty, learned counsel appearing for the respondents No.4 & 5, Tripura Jute Mils Ltd.

[2] Having regard to the facts adverted in the writ petitions and similarity of the reliefs sought, these writ petitions being W.P.(C) No.194 of 2018 [Sri Gopal Sutradhar vs. State of Tripura & Ors.], W.P.(C) No.195 of 2018 [Sri Babul Choudhury Das vs. State of Tripura & Ors.], W.P.(C) No.196 of 2018 [Sri Uttam Das vs. State of Tripura & Ors.], W.P.(C) No.197 of 2018 [Sri Babul Das vs. State of Tripura & Ors.], W.P.(C) No.198 of 2018 [Sri Khokan Sukla Das vs. State of Tripura & Ors.], W.P.(C) No.199 of 2018 [Sri Litan Som vs. State of Tripura & Ors.], W.P.(C) No.200 of 2018 [Sri Indrajit Sarkar vs. State of Tripura & Ors.], W.P.(C) No.201 of 2018 [Sri Maran Chandra Das vs. State of Tripura & Ors.], W.P.(C) No.202 of 2018 [Sri Parimal Malakar vs. State of Tripura & Ors.], W.P.(C) No.203 of 2018 [Sri Haradhan Kar vs. State of Tripura & Ors.], W.P.(C) No.204 of 2018 [Sri Kushal Singha vs. State of Tripura & Ors.], W.P.(C) No.205 of 2018 [Sri Amrit Lal Datta vs. State of Tripura & Ors.], W.P.(C) No.206 of 2018 [Sri Tapan Roy vs. State of Tripura & Ors.] and W.P.(C) No.207 of 2018 [Sri Tarini Sarkar vs. State of Tripura & Ors.] are consolidated for disposal by a common judgment.

[3] There is no dispute that the petitioners having been selected by a due process had undergone training to work in the Spinning Department of Tripura Jute Mils Ltd. as Badli Workers on contract basis. Since then, according to the petitioners, they have been working regularly in Tripura Jute Mils Ltd. but the wage/pay that they receive is unequal in terms of the wage that the 'similarly situated' employees of Tripura Jute Mils Ltd. receive. Despite several representations being made, no effort to redress the said deprivation has surfaced. Finally, the petitioners have separately filed these writ petitions seeking mandamus from this court directing the respondents to regularize their services and to pay them the salary/wage at par with Grade-I worker working in Tripura Jute Mils Ltd. along with other benefits. The petitioners have not denied that they were engaged at Badli Workers. They were pressing for their regularization and to pay their salary in the regular scale. Previously, they had asked for extending the benefit of EPF and other facilities enjoyed by regular employees. After long persuasion in the year 2002-2003, the benefit of EPF has extended to the petitioners and other Badli Workers. They have also admitted that by the memorandum dated 27.10.1999 [Annexure-2 to the writ petition] on completion of their training they were registered as Badli Workers on contract basis. The petitioners and other Badli Workers were asked to report to on-duty welfare officers. The remuneration of Badli Workers were fixed by the said memorandum dated 27.10.1999 at Rs.0.40/kg. and Rs.0.25/kg. for skg. Warp and skg. Weft yarn respectively. The system of payment of wages however changed subsequently and it was made Rs.250/- per day. On 12.05.2011 another agreement was entered between the respondent No.4, Tripura Jute Mills Ltd. and Badli Workers. It was stipulated in the said agreement that Badli Workers should work for 8 hours per day and also do the shifting duty as per the direction of the authority, and their salary would be equal to minimum wages as applicable to Mahatma Gandhi National Rural Employment Guarantee Act. Badli Workers were also given one day weekly paid holiday in terms of the resolution taken in the 189th Meeting of the Board of Directors. Even the national and festival holidays have been extended, to be enjoyed by Badli Workers [see the notification dated 04.05.2012 and the office order dated 22.09.2012, Annexures-4&5 respectively]. The petitioners have averred further that the wage of Badli Workers was enhanced to Rs.500/- per day in the year 2017, but they are not getting the benefit of casual leave, earned leave, medical leave and other benefits which can be enjoyed by the employees of Tripura Jute Mils Ltd. In Para-2.7 of the writ petitions, the petitioners have asserted that Badli Workers are discharging the identical duty of a regular worker. The regular workers discharging equal duties and respectively are getting Rs.30,000/- per month the Badli Workers on discharging the similar duties are getting Rs.15,000/- per month. Thus, they have urged this court to direct the respondents to afford them the commensurate wages on the principle of equal pay for equal work. Non-grant of such wage is unfair and explotive on the part of a state instrumentality. Finally, the petitioners have urged this court to direct the respondents to regularize the services of the petitioners and to pay them salary at par with Grade-I workers in Tripura Jute Mils Ltd. and further to grant other benefits viz. leave allowances etc.

[4] Mr. S. Lodh, learned counsel appearing for the petitioners has pleaded with sufficient emphasis that the non-grant of the equal wage is an affront on the constitutional imperative. In this regard, he has relied on a decision of the apex court in State of Punjab vs. Jagjit Singh, reported in AIR 2017 SC 5176 where the apex court was examining the case of pay of the temporary employees who were engaged against post which were available in the regular cadre/establishment but the persons holding the substantive post were discharging the same work. In the said perspective, the apex court held that there cannot be any amount of doubt that the principle of equal pay for equal work would be applicable to all the concerned temporary employees so as to vest in them the right to claim wages at par with minimum of the pay scale of regularly engaged government employees holding the same post. Finally, it was directed the temporary employees would be entitled to draw wages at the minimum of the pay scale at the lowest grade in the regular pay scale, extended to the regular employees who were discharging the same duty holding a regular post.

[5] Counsel for the respondents however did seriously combat the Jagjit's principle. They have contended that to meet certain situations, Badli Workers were registered to keep the production uninterrupted. The respondents No.1,2 & 3 by filing a separate reply has stated that Badli Workers are now getting Rs.15,000/- per month. For the very nature of their engagement, the petitioners cannot get further benefits beyond the agreement or what has been afforded to them.

[6] The respondents No.4 & 5 as represented by Mr. K.N. Bhattacharjee, learned senior counsel has however having admitted the fact adverted in the writ petitions has contended that there is no scheme or arrangement in the Tripura Jute Mils Ltd. to regularize Badli Workers. In the jute industry, particular, Badli Workers are engaged for uninterrupted production when there is an increase of the working hour or sudden absence of the regular workers for whatever reason or for any other purpose related to production and management. The very nature of their engagement presupposes that they will never be taken or inducted as the regular employees. Mr. Bhattacharje, learned senior counsel has finally submitted in view of the averments in the reply filed by the respondents No.4 & 5 [see Para-10] that Tripura Jute Mils Ltd. cannot regularize any Badli Workers without prior permission of the State Government. Ordinarily, Badli Workers are not entitled to get any other facilities like the regular employees. Even their claim is not supported by any provision of law nor by stipulation of the contract by which their services are regulated. According to Mr. Bhattacharjee, learned senior counsel the writ petitions are speculative.

[7] Having appreciated the submissions of the learned counsel appearing for the parties, this court is of the view that the petitioners do not have any indefeasible right to claim regularization inasmuch as there is no scheme or arrangement by agreement for their regularization. Whether the petitioners would be regularized or not falls within the executive domain, this court cannot issue mandamus in this respect. However, this court finds substantial force in the submission structured on the principle of equal pay for equal work. It, however, demands that a due exercise be taken for relevant considerations whether or not the equal pay would afforded in respect of the persons discharging the identical duties and responsibilities to honour the constitutional imperative as provided by Articles 14,16 & 39(b). This exercise is so required in order to strive eradication of inequalities. The apex court in Randhir Singh vs. Union of India & Ors, reported in (1982) 1 SCC 618 had occasion to observe that persons holding identical post may not be treated differently in the matter of their pay merely because they belong to different departments. This principle has been reverberated in various subsequent decisions. In Griha Kalyan Kendra Workers Union vs. Union of India, reported in (1991) 1 SCC 619, the apex court desired Union of India to pay the wages to the contractual workers on par with the employees performing the similar duties in the regular establishment. In Daily Rated Casual Labour Employed under P&T Department through Bharatiya Dak Tar Mazdoor Manch vs. Union of India, reported in (1988) 1 SCC 122 while the apex court refused their regularization asked the Union of India to equate the wages to 75% of the minimum of the scale of semi skilled regular employee or the skilled employee in the respective category. In Jagjit Singh (supra), while considering the issue of regularization, the apex court referred the decision in State of Karnataka vs. Uma Devi (3), reported in (2006) 4 SCC 1 where the apex court held that the courts are not expected to issue any directive for absorption/regularization or permanent continuance of temporary contractual/casual/daily wage or ad hoc employees. Such directions if issued would be inconsistent with the constitutional scheme of public employment. Merely because a temporary employee or casual worker is continued for a time beyond the term or for a long period he would not be entitled to be absorbed or regularized in the service on the strength of such continuation, if the original appointment was not made by a due process of selection. Finally, Article 7 of International Covenant on Economic, Social and Cultural Rights, 1966 has been referred. Article 7 of the said Covenant lays down as follows:

"Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a)Remuneration which provides all workers, as a minimum, with :

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A Decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."

[8] India is signatory to the said Covenant and the same was ratified on 10.04.1979. In that perspective, the apex court has observed in Jagjit Singh (supra) that there is no escape from the obligation made out by the said Covenant. Taking that declaration [as underlined] in consideration the apex court has declared the law under Article 141 of the Constitution of India holding that the principle of equal pay for equal work constitutes a clear and unambiguous right and is vested in every employee whether engaged on regular or temporary basis. The scope of the principle of 'equal pay for equal work' has been expanded quite succinctly in Jagjit Singh (supra) as under:

"57. Having traversed the legal parameters with reference to the application of the principle of „equal pay for equal work‟, in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of „equal pay for equal work‟ summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of „equal pay for equal work‟ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.

In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same post."

[9] The main shaft of principle of equal pay for equal work is to discharge the similar duties and responsibilities in the equal working hour. Hence, the meaning of 'post' will receive interpretation to coax the said modus. Hence, in the context of these cases, the petitioners may file a representation to the respondents through the respondent No.5 for taking a policy decision in respect of their regularization within a reasonable time. On such representation being made by the petitioners, the respondents shall take the relevant consideration whether or not a scheme can be laid for absorption/regularization of the petitioners. But in terms of Jagjit Singh (supra) the petitioners' wages shall be fixed at the minimum of the pay scale in the lowest grade of the regular workers of the Spinning Department inasmuch as the respondents did not dispute the claim of the petitioners that they are discharging duties and responsibilities of the regular workers full time. Such wage shall be given from 01.01.2020. This direction is given having considered the assertion of Mr. Bhattacharjee, learned senior counsel appearing for the Tripura Jute Mils Ltd. that Tripura Jute Mils Ltd. is not in a good financial situation. It is made absolutely clear that the petitioners cannot be deprived from their rightful and due wage as declared by the apex court in Jagjit Singh (supra).

[10] Having observed thus, these writ petitions stand allowed to the extent as stated above.

No order as to costs.