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Judgment
D.K. Seth, J.—The petitioner claims that he was engaged on daily wage basis. The matter was heard in the absence of Shri S.P. Mehrotra, learned Counsel for respondents on 681998, when a judgment was dictated in open Court. But before the said judgment could be transcribed, Mr. Mehrotra, learned Counsel for the respondents, appeared in Court and sought permission for arguing the case. Accordingly the said judgment was not signed and the matter was directed to be listed for hearing. The matter was heard on successive dates. Both the learned Counsel had argued their respective points and had submitted written arguments as well.
After having heard Mr. Faujdar Rai, learned Counsel for the petitioner and Mr. S.P. Mehrotra learned Counsel for respondent as above, it appears that the petitioner claims to have been engaged as daily wage labour some times in 1371977 and had worked upto 3111979. Subsequently he was reengaged in the permanent muster roll on daily wage basis and had been continuing since thereafter. Therefore, he has sought a relief of recognising him as a regular employee of the department and for payment of salary as admissible to the regular employees.
Mr. Faujdar Rai has contended that since the petitioner had been working continuously for 10 years right from 1978 and had been performing the same nature of duty as carried on by the regular employees in Class IV group, therefore, he should be regularised and he paid same scale of pay on the principle of equal pay for equal work. He had supplemented the pleading, with was absent in the writ petition, by means of rejoinderaffidavit, when absence of pleading was taken as a point in the counteraffidavit and pointed out by the learned Counsel for the respondent Mr. Mehrotra. Mr. Rai had pointed out that the petitioner had been performing the same duty as a regular Class IV employee. He had relied on the several decisions, which would be referred to at appropriate stage. Relying on these decision he points out that the exploitation of the petitioner compelling him to work on a wage of Rs. 25 per day on daily wage without conferring any security of service or other benefits is an unfair labour policy which should not have been followed by the State Government, a model employer as has been laid down through several decisions which he had cited at the Bar. He has also contended that the respondents cannot be permitted to continue such unfair labour practice only on the ground that it will create an excessive financial burden on the respondents. On these grounds he prays that the writ petition should be allowed. He further contends that identical 40 cases are pending and interim orders have been passed on those cases but to the misfortune of the petitioner no interim order has since been passed in the present petition, despite the situation being identical and, therefore, identical orders should be passed in this writ petition. He has also relied on the decision in the case of BirBajrang Kumar v. State of Bihar & Ors., 1987 UPLBEC 496 and contended that this matter should be decided along with other matters and, therefore the other matters should also be listed along with the present one. But the fact remains that the said prayer has been made only at the end of his argument i.e. today after having argued his case on successive dates earlier and after having submitted his written notes.
Mr. Mehrotra on the other hand contends that since the petitioner is a muster roll employee and is not performing duties and functions of a regular employee and is not carrying on the same responsibility, therefore, he cannot be treated at par with the regular employee. He had relied on various decisions, reference to which would be made at appropriate stage, in support of his contention. He had contended that there was no pleading in the writ petition as to how petitioners is performing the same nature of job of regular employee. Though it has been sought to be explained in the rejoinderaffidavit, according to Mr. Mehrotra, even in the rejoinderaffidavit specific particulars have not been detailed or pleaded as to what kind job and what kind or nature of responsibility the petitioner had been carrying on at part with those of regular employee. In the absence of such pleading the petitioner can never claim regularisation nor equal pay for equal work. According to him in the absence of such pleadings the Court cannot react properly. He further contends that there being no post and vacancy pleaded in the writ petition, it is not possible as to how he could be regularised since regularisation can be made only against posts and vacancies. He also contends that the petitioner does not perform the same job of a regular employee but he only assists the regular employees. At the same time, as rightly pointed out by Mr. Faujdar Rai, Mr. Mehrotra has also not specified as to what kind of job a regular employee would carry and how the petitioner assist the regular employees, e has also not specifically stated anything with regard thereto. He also contends that the Court cannot direct regularisation or absorption of an employee unless there are vacancies or posts already created. He further contends that the Court also cannot create any post. In the absence of material, no relief can be given to the petitioner.
The fact remains that there are absence of pleadings in the writ petition. Pleadings are to be made to support the claim and bring on record sufficient material on which the Court can apply the law. The law is to be applied on the basis of the fact of each case. The pleadings contain the facts of such case. Unless there are sufficient facts pleaded, the law cannot be attracted. The application of principle of law is dependent on the basis of the facts pleaded. Admittedly there are absence of sufficient material in order to apply the principle of equal pay for equal work. Inasmuch as unless it is pleaded that the petitioner performs the same nature of duty as that of the regular employee, the mere assertion that the petitioner performs the same kind of job which Class IV employees perform cannot be treated to be pleaded sufficient pleading. Unless it is pleaded what kind of job he is performing and what kind of job his counter partregular employee is performing, it is not possible to accept such contention. The Class IV may perform various kinds of jobs which is to be pleaded by the petitioner as to what kind of job he is performing. In the absence of such pleading it is not possible to decide the question finally as to how the principle of equal pay for equal work can be attracted.
Similarly, in order to attract the principle of regularisation, certain pleadings are also to be pleaded to show that the petitioner is also performing the same kind of job which the regular employee is performing and is commensurate with posts available or vacancies existing. In the absence of any such pleading, the question of regularisation also becomes a difficult proposition.
In the case of Randhir Singh v. Union of India, 1982 (1) SCC 618 and Federation of All India Customs and Central Excise Stenographers v. Union of India, 1988 (30) SCC 91, the principle of equal pay for equal work was held to be a fundamental right. But in the case ofHarbans Lal v. State of H.R, 1989 (4) SCC 459, the case of Randhir Singh was distinguished and it was held that the principle of equal pay for equal work as not an enforceable independent fundamental right since there is in built restrictions in that principle as pointed in various decisions of the Apex Court.
The question of equal pay for equal work depends upon the nature of work done. It cannot be judged by mere volume of work. There may be qualitative difference as regards reliability and responsibility. The functions may be same but the responsibility makes a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration. The doctrine would arise where the employees are equal in every respect but they are denied equality in pay. In order to enforce this principle, the discriminatory treatment in violation of Articles 14 and 16 of the Constitution must be established and only when it is so established judicial interference would be justified. It is to be remenibered that the principle is not always easy to apply. There may be inherent difficulties in comparing and evaluating the work done by different person in different organisations or even in the same organisation. There may be difference in educational or technical qualifications which may have a bearing on the skills which the holders bringing to their job although the designation may be same. There may also be other consideration which have relevance to efficiency in service which may be justified in difference in pay scale on the basis of criteria such as experience and seniority or such various other factors. The evaluation of such job for purpose of pay scale should be left to the expert body, except in cases of mala fide in which case the Court may interfere. It is to be examined whether the person claiming equal pay for equal work performs similar duties, functions and responsibilities of those with whom equality is being claimed. The comparison of the nature of duties, responsibilities and functions are to be examined. In order to maintain a claim for equal pay on the allegation of equal work requires a clear material to support the basis that the work in both the cases are same. The burden of proving similarity in nature of work in on the aggrieved person. Once the burden is discharged, the onus shifts on the respondents to prove otherwise. It is for the person claiming equal pay for equal work to bring on record materials showing that there is a discrimination and by bringing such materials on record the initial burden is discharged. Until the petitioner discharge his initial burden the onus does not shift on the respondents. When such burden is shifted on the respondents it is for him to establish that there are dissimilarity in essence and substance. Unless the nature of functions and work are shown to be similar, the doctrine for equal pay for equal work is not attracted.
The above view finds support from the various decisions of the Apex Court. Reference may be had to the decisions in the cases of Bhagwan Dass v. State of Haryana, 1987(4) SCC 634 ; Federation of All India Customs & Central Excise Stenographer (supra) ; All India Sainik Schools Employees'' Association v. Sainik Schools Society, 1989 Supp. (1) SCC 205; Grih Kalyan Kendra Workers'' Union v. Union of India, 1991(1) SCC 619 ; State of M.P. v. Pramod Bhartiya, 1993(1) SCC 539 ; State of W.B. v. Madan Mohan Sen, 1993 Supp (3) SCC 243; State of W.B. v. HariNarayan Bhowal, 1994 (4) SCC 78 and State of Haryana v.Jasmer Singh, 1996 (11) SCC77.
Now let us examine how far the above principle could be attracted in the facts and circumstances of the present case.
Admittedly, the petitioner is working as daily wage muster roll employee for the last 10 years. Mr. Faujdar Rai, contends that it is a continuous work. This fact has not been seriously disputed by Mr. Mehrotra that the petitioner is working continuously. Though Mr. Mehrotra contends that he was a muster roll employee performing the job which a muster roll employee is required to do and not that of a regular employee.
In the present case my attention has not been drawn to any material by Mr. Rai to arrive at a conclusion that there were similarities in the nature of duties, functions and responsibilities in the two categories of employees. The petitioner has not been able to establish through any material even prima facie to show that the works performed by two categories of employees are not dissimilar. The petitioner having not been able to make out a case to establish his contention for equal pay for equal work in the facts and circumstances of the case as is evident from the material on record, namely, pleadings and the Annexures annexed, the petitioner has not been able to discharge the initial burden so as to call upon the respondents to prove the dissimilarity. It was incumbent upon the petitioner to establish such fact which he has been unable to do.
In the absence of pleadings it is not possible on the part of the Court to arrive at a definite conclusion with regard to points so raised. However, such disputed question of fact can very well be raised before the forum which is competent to decided such disputed question of fact on adequate material.
In that view of the matter, I do not propose to decide the issue at this stage on the basis of scant material available before this Court and I propose to keep all the points open. If he is so advised, the petitioner may reagitate the same before the appropriate forum at appropriate stage.
So far as the decision in the case of Bir Bajrag Kumar (supra) is concerned there is no bar in deciding the case finally after the same is being heard even though other identical matter are no connected or taken up for hearing together. The decision in the said case has not elaborated as to what is the content of the order of dismissal. In the absence of any specific details it is not possible to rely upon the said decision as an absolute proposition that during the pendency of identical case no case can be decided on merit giving reasons and deciding the issue having regard to the principle of law and the decisions cited.
So far as the question of interim order is concerned, the writ petition having been filed in 1994 and no interim having been passed so long and when both the learned Counsels insisted that the matter be disposed of finally and since the matter has been argued at length, it is not necessary at this stage to consider the question of grant of interim order on the analogy that such interim order has been granted in identical cases which are pending. In my view the decision in the case of Bir Bajrang Kumar (supra) also does not create any bar to decide the issue on merit while deciding the case finally even though several other identical matters are still pending. The pending of a case does not create a precedent so as to keep the matter pending. If such proposition is accepted, in that event, if two identical matters are pending one cannot be decided unless the other is decided or both are decided together. It was for the party to make a prayer as to whether one case should be connected with other case and it was for the Court to decide as to whether the same should be connected together and decided. No prater for connecting with other case was made. On the other hand, both the learned Counsels had insisted that the matter be decided on merits.
Mr. Faujdar Rai, learned Counsel had relied on a decision in the case of Union of India \\. Subir Mukharji, AIR 1988 Supreme Court 2247, in order to contend that if a work is perennial in nature and the workman has been working uninterruptedly for 10 years in that event such person should be considered for regularisation and should be entitled to regular payment. In the said decision what was considered was the question of contract labour. In the said case there was no dispute that the workmen were carrying the work of perennial nature continuously for 10 years and in that view of the matter, the Apex Court did not interfere with the order passed by the Central Administrative Tribunal which directed the Railway Establishment to absorb those employees as regular employee on facts that they were performing the same work which were being performed by the Group D employees in the matter of handling of materials. In the present case there was no sufficient material, as indicated above, on which this Court can pass similar order of absorption.
Mr. Faujdar Rai had also relied upon a decision in the case of Sichai Mazdoor Sangh v. State of U.P. 1996 (1) UPLBEC 9, which deal with the case of part time tube well operators. In the said case reliance was placed in the case of Suresh Chandra Tewari v. State of U.P., passed in Writ Petition No. 3558 (S/S) of 1992 decided by the Lucknow Bench. In the said cases it was held as follows:
"As a matter of fact the, other condition that the parttime tubewell operators have to be available at the tube wells during duty hours and for the rest of the time, within the command area, nullified the fact of alleged freedom given to them to take up any other job or profession. The tube wells are to be operate even beyond the said duty hours from 9.30 a.m. to 12 in the noon the own showing and affidavit filed on behalf of the opposite parties. The parttime tube well operators are also required to be available all the time within the command area. The inference that they will be called upon to operate tube wells any time and for any length of time is plain as two plus two makes four. In my view, the alleged freedom of taking up any job or profession is a mere farce and a device adopted to deprive the petitioners of their lawful emoluments by calling them parttime tube well operators and now as tube well assistants".
Thus, it appears that in the said case on the ground that the parttime tube well operator were required to be available all time within the command area and that they were called upon to perform the tube well at any time and for any length of time and, therefore, even though they were described as parttime tubewell operator but they were not permitted to move out of the command area in order to perform any other job and this was one of the reason which weighed to hold that they are performing the same kind of job of regular tubewell operator. Therefore, the said decision cannot throw any light in respect of the present case where as observed earlier sufficient material was not available.
The decision in the case of State of Haryana & Ors. v. Piyara Singh & Ors., 1992 (2) UPLBEC 1353, cited by Mr. Faujdar Rai also support the contention of Mr. S.P. Mehrotra to the extent that in order to direct regularisation the Court has to take practical and pragmatic view since such direction not only tells upon the public exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. However, the said decision provides formulation of a scheme for regularisation where ad hoc temporary employees are being engaged. It was further held that if he casual labourer is continued for a fairly long spell, say two or three years, a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation adopting a positive approach. Therefore, having regard to the decision in the said case having regard to the facts of the present case, it is not possible for this Court to direct absorption or regularisation of the petitioner. Though it is open to the respondents to formulate such a scheme for regularisation, if they are so advised having regard to the principle laid down in the various decisions cited by Mr. Faujdar Rai particularly the one in the case of State of UP. & Ors. v. Putti Lal, 1998 (1)UPLBEC313.
The said case had dealt with daily wage/muster roll as Class III and Class IV engaged in the forest department. However, in the said case there was no dispute that they were recruited in a proper manner but then having regard to facts and circumstances of the said case a direction was issued to form a committee to consider the question of framing scheme for regularisation/absorption of the petitioners therein and other similarly placed employees working in the Forest Department. The said decision has also not laid down that in such a case muster roll employee should be treated as regular employee and should be regularised or absorbed.
On the other hand, in the case of Ghaziabad Development Authority and others v. Vikram Chaudhary & Ors., 1995 (5) SCC 210, cited by Mr. S.P. Mehrotra, the Apex Court has laid down that a daily wage labour cannot claim same pay of a regular employee though he is entitled to minimum wages.
Mr. Mehrotra has also relied upon a decision in the case of Ashwani Kumar & Ors. v. State of Bihar & Ors., AIR 1997 SC 1628, in order to content that unless established rules are followed, no person can be regularised de hors the recruitment rules.
Admittedly, in the present case, Section 79 (c) of the Electricity Supply Act, 1948 prescribes formulation of specific rules for recruitment and when there are specific rules for recruitment no person can be recruited without following the procedure laid down in the recruitment rules. But the other question is not germane so far as the present issue is concerned. Since admittedly, the petitioner is
one of the muster roll employee, he is not entitled to the same pay scale of a regular employee so long he remains a muster roll so employee and until he is regularised. As it has been observed earlier, that there being absence of material to arrive at a conclusive conclusion as to whether he is performing the same nature of job and is entitled for regularisation, it is not possible for this Court to decide the question at this stage.
In the case of State of Haryana v. Jasmer Singh & Ors. (supra) it was held that unless a person is recruited through regular process of selection and possesses requisite qualification, he cannot claim equal pay as that of a regular employee.
Having regard to the facts and circumstances of the case and the arguments made at the bar by the learned Counsel, in my view, it appears that the question as I have kept open may be decided in appropriate proceeding. But so far as the claim of the petitioner in the present writ petition is concerned cannot be sustained. The writ petition therefore fails and is accordingly dismissed with the aforesaid observation. However, there will be no order as to costs. Petition dismissed.