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Judgment
Dr. A.K.Mishra, J
Petitioner- Dhenkanal Mehentar Sangh has filed this writ petition to quash the order dated 11.04.2007 of the Presiding Officer, Labour Court,
Bhubaneswar (hereinafter referred to as “Labur Court) in I.D. Case No. 122 of 1995 in answering the reference that the workmen have no right
as such to be regularized in service and to claim equal pay with their regular counterpart.
1.1. The petitioner is an association of workmen who are sweepers and sweepresses doing the work of sanitation under Dhenkanal Municipality. The
workmen are NMR (Nominal Muster Roll) sweepers and sweepresses and DLR sweepers and sweepresses engaged by the Management of
Dhenkanal Municipality-Opp.Party No.1. The management has also engaged regular sweepers and sweepresses against the sanctionedÂ
posts. Both the regular workmen employees and NMR sweepers and sweepresses work the same job inter changeably but NMR sweepers
and sweepreses are not paid equally. A dispute arose, Government of Orissa, Labour and Employment Department vide Notification No. 14679/LE
dated 21.10.1991 made the following reference to the Labour Court:-
(1) Whether the NMR Sweepers and Sweepresses borne in the Nominal Muster Roll on daily wage of Dhenkanal Municipality are entitled to equal wage with their
regular counter parts?
If so, what should be details?
(2) Whether Sweepers and Sweepresses of Dhenkanal Municipality borne in the Nominal Muster Roll on daily wage are entitled to regularization in the
permanent posts of Sweepers and Sweepresses lying vacant? If so, what should be details?
Before the Labour Court, the workmen put forth their grievance that NMR and DLR sweepers are being paid a sum of Rs.650/-whereas their
counterpart in regular jobs are being paid a monthly salary of Rs.1800/- and as the sanctioned posts are lying vacant, they should be regularized and be
paid equally for having done similar work.
2.1. The management filed written statement stating that the workmen who are NMR sweepers and sweepresses are not entitled to get their pay
equal to their counterpart in the regular cadre as they do not carry responsibility, loyalty, sincerity and integrity like regular employees. The financial
position of the management is not sound for which the regular posts are lying vacant. The management has prepared a gradation list of sweepers and
sweepresses engaged by it after final discussion with all the workmen concerned and regular posts of sweepers and sweepresses would be filled up
from out of the said gradation list keeping in view the financial position.
2.2. Both workmen and management adduced oral and documentary evidence. Learned Labour Court framed issues in consonance with the
requirement of the reference. Learned Labour Court on analysis of evidence on record has recorded the following findings that:-
(i) There is absolutely no defference between the nature of work of permanent sweepers and sweepresses of the management and the NMR sweepers and
sweepresses of the said establishment who are workmen of this case.
(ii) There is wide discrepancy between salary/wages of permanent employees and their counterparts who are NMRs of this case(Para-8).
(iii) The regular sweepers and sweepresses do not posses any higher qualification and the works of both regular sweepers and sweepresses and DLR sweepers and
sweepresses are equal (Para.10).
(iv) Undoubtedly the workmen of this case are doing similar work as their counter parts and no specific qualification is required for being appointed as a sweeper and
sweepress although in itself it is a valid ground to move the Management to consider the case of DLR/NMR sweepers and sweepresses for equally pay with their
regular counterparts.
2.3. Learned Labour Court has taken note of one memorandum of settlement Ext.3 of which Clause-14 reads as follows:-
“14. 25 posts of sweepers and sweepress are lying vacant due to retirement on superannuation (21) and in service death (4). It was agreed upon to fill up the
existing 21 vacancies arising due to retirement on superannuation from among the NMR sweepers/sweepresses engaged in cleaning on seniority and suitability.
Before filling up the posts a gradation list of the NMRs. Would be prepared, duly published, inviting objections and approved. Vacancy due to in service death
would be filled up under Rehabilitation Assistance Scheme as per procedure. This will be without prejudice to I.D. Case No. 122 of 1995.â€
Then learned Labour Court observed that the Management had agreed to fill up 21 vacancies arising due to retirement on superannuationÂ
from among the NMRs. after preparation of Gradation list by observing all formalities.
2.4. Having reached the above findings, learned Labour Court relying upon the decision of the Hon’ble Apex Court in the case ofS ecretary, State
of Karnataka Vrs. Uma Devi and others; reported in AIR 2006 SC 1806 ,has concluded that ad hoc or irregular appointees like NMR or DLR could
not claim regularization of service as a matter of right. Further it is concluded that it is highly improper for Judges to step into this sphere to fix pay
scale and blanket direction cannot be given to the management. As such, the reference was answered in negative.
Opposite party No.1 the Management has filed counter in this writ challenging its maintainability for want of necessary party, i.e. Government of
Orissa, Labour and Employment Department. There is no scope to make judicial review in a certiorari proceeding and the proceeding in I.D. Case
No. 122 of 1995 before Labour Court was not maintainable being hit under Section 73-C(c) of the Orissa Municipal Act, 1950. The petitioner
workmen having not completed ten years of service cannot claim regularization of service.
3.1. The petitioner filed a rejoinder stating that the amendment of Orissa Municipal Act, 1950 was given effect from 19.5.1997 and it could not operate
retrospectively to take away the rights already accrued to the workmen. The plea of non-joinder of necessary party is no more available as opposite
party nos.3 and 4 are Government of Orissa, Labour and Employment Department and Director, Municipal Administration respectively.
Mr. Pradipta Mohanty, learned counsel for the petitioner strenuously urged that in view of the finding that workmen sweepers and sweepresses are
not getting equal pay for equal work as of their regular counterpart and the management has agreed to make those NMR sweepers and sweepresses
to regularize them, there is no justification on the part of the learned Labour Court to answer the reference in negative. In support of his contention, he
relied upon a decision reported in (2017)1 SCC 148: State of Punjab and Others Vrs. Jagjit Singh and Others.
Mr. Subha Bikash Panda, learned counsel for opposite party no.1 would submit that NMR & DLR workers cannot claim regularization of service in
view of Hon’ble Supreme Court’s direction and the agreement between the management, and workmen as found in Ext.3 of the lower court
is not binding to that extent. He fairly submits that due to lapse of long time, he has no instruction as to the present status of the NMR and DLR
sweepers and sweepresses.
The case involves the right of sweepers and sweepresses. Their nature of work needs no narration. To know our jurisdiction on the scope of
certiorari writ, it is apt to refer (also in respect of NMR workers) the decision reported in (2019) 10 SCC 695: General Manager, Electrical Rengali
Hydro Electric Project, Orissa and Others Vrs. Giridhari Sahu and Others, in which the Hon’ble Apex Court has held as follows:-
“28.On the conspectus of the decisions and material, we would hold as follows: the jurisdiction to issue writ of certiorari is supervisory and not appellate. The
Court considering a writ application of certiorari will not don the cap of an appellate court. It will not reappreciate evidence. The writ of certiorari is intended to correct
jurisdictional excesses. A writ of prohibition would issue when a tribunal or authority has not yet concluded its proceedings. Once a decision is rendered by a body
amenable to certiorari jurisdiction, certiorari could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure to observe
the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly assuming jurisdiction. It may act in violation of principles of natural
justice. The body whose decision which comes under attack may decide a collateral fact which is also a jurisdictional fact and assume jurisdiction. Such a finding of
fact is not immune from being interfered with by a writ of certiorari. As far as the finding of fact which is one within the jurisdiction of the court, it is ordinarily a matter
“off bounds†for the writ court. This is for the reason that a body which has jurisdiction to decide the matter has the jurisdiction to decide it correctly or wrongly.
It would become a mere error and that too an error of fact. However, gross it may amount to, it does not amount to an error of law. An error of law which becomes
vulnerable to judicial scrutiny by way of certiorari must also be one which is apparent on the face of record. As held by this Court in Hari Vishnu Kamath Vrs. Ahmad
Ishaque, AIR 1955 SC 233, as to what constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of each case. A
finding of fact which is not supported by any evidence would be perverse and in fact would constitute an error of law enabling the writ court to interfere. It is also to
be noticed that if the overwhelming weight of the evidence does not support the finding, it would render the decision amenable to certiorari jurisdiction. This would
be the same as a finding which is wholly unwarranted by the evidence which is what this Court has laid down (see Parry & Co.Ltd. Vrs. P.C. Pal: 1970 SC 1334).â€
6.1. Keeping the above law in view, we do not feel it proper to reconsider the finding of fact (supra) recorded by the learned Labour Court. What is
found in the impugned order that learned Labour Court after recording the finding of fact as stated above drew the conclusion which is not
inconsonance with the finding of fact as far as payment of equal wage to equal work is concerned.
6.2. In Jagjit Singh’s case(supra) their Lordships of the Hon’ble Apex Court analyzing all most all decisions on this score held as follows:-
“49. We have given our thoughtful consideration to the observations recorded by this Court in UMADEVI (3) CASE 43, as were relied upon by the Full Bench(as
also, by the learned counsel representing the State of Punjab). It is not possible for us to concur with the inference drawn by the Full Bench for the reasons recorded
hereunder.
49.1. We are of the considered view, that in para 44 extracted above, the Constitution Bench clearly distinguished the issues of pay parity and regularization in
service. It was held, that on the issue of pay parity, the concept of “equality†would be applicable (as had indeed been applied by the Court, in various
decisions), but the principle of “equality†could not be invoked for absorbing temporary employees in government service, or for making temporary employees
regular/permanent. All the observations made in the above-extracted paragraphs, relate to the subject of regularization/ permanence, and not, to the principle of
“equal pay for equal work.†As we have already noticed above, the Constitution Bench unambiguously held that on the issue of pay parity, the High Court ought
to have directed that the daily-wage workers be paid wages equal to the salary, at the lowest grade of their cadre. This deficiency was made good by making such a
direction.â€
In the case at hand, on the conspectus of above law, as the NMR sweepers and sweepresses cannot claim principle of equality to invoke
regularization against permanent post, no error is found in the order of the learned Labour Court in answering reference No. 2.
Reference no.1, but stands in a different pedestal. As far as minimum wages on a par with regular employee is concerned, the Hon’ble Apex
Court in the aforesaid case of Jagit Singh’s case(supra) has held as follows:-
“57. There is no room for any doubt that the principle of “equal pay for equal work†has emerged from an interpretation of different provisions of the
Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is
binding on all the courts in India under Article 141 of the Constitution of India. The parameters of the principle have been summarized by us in para-42 hereinabove.
The principle of “equal pay for equal work†has also been extended to temporary employees (differently described as work-charge, daily wage, casual, ad hoc,
contractual, and the like). The legal position, relating to temporary employees has been summarized by us, in para-44 hereinabove. The above legal position which
has been repeatedly declared is being reiterated by us yet again.
In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than
another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation
of human dignity. Anyone, who is compelled to work at a lesser wage does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of
his self-respect and dignity, at the cost of his self-worth, and at the cost of his integrity. For he knows that his dependants would suffer immensely, if he does not
accept the lesser wage. Any act of paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a
domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.â€
The workmen sweepers and sweepresses under NMR and DLR as per the finding of fact recorded by the learned Labour Court, are doing similar
work as their counterpart and are not being paid equally with their regular counterpart. Once that finding of fact assumes primordial, denial of such
right to pay parity on the ground of blanket order, does not stand to reason. This error is apparent on the face of record and warrants interference in
exercise of jurisdiction of certiorari of this Court under Article 226 of the Constitution. The overwhelming weight of evidence from which the learned
Labour Court drew support to record finding render his decision with regard to payment of equal pay to equal work amenable to certiorari jurisdiction.
We are legally persuaded to see the right to pay parity is extended to the petitioner sweepers.
It is not brought to our notice as to the subsequent development made with regard to 26 nos. of NMRs. found place in the Gradation list vide
Annexure-4, published on 28.10.2996, which was prior to the amendment of Orissa Municipal Act, dated 19.5.1997. Both parties submitted that some
of them might have been regularized in the meantime.
10.1. Keeping all these facts in view, we have to conclude as follows:-
The order in answering the reference by learned Labour Court dated 11.4.2007 to the extent that workmen cannot claim equal pay with their regular
counterpart is not sustainable in the eye of law and such error is rectified in exercise of jurisdiction of certiorari under Article 226 of the Constitution.
We agree that the petitioner-workmen cannot claim as a matter of right to be regularized in service and to that extent the order of learned Labour
Court does not warrant any interference. The workmen as per the Gradation list Annexure-4 published on 28.10.1996 by the management who are
regularized in the meantime, they cannot claim any benefit further on the strength of this order. The workmen named in Annexure-4 who are not
regularized but are still under engagement or are already disengaged during pendency of this writ petition by the management, they are entitled to the
equal pay with their regular counterpart from the date of the publication of the Gradation list published on 28.10.1996(Annexure-4).
Accordingly, the writ petition is allowed in part.