M.C.D. vs Its Workmen
2007 Latest Caselaw 1975 Del

JUDGMENT

Hima Kohli, J.

1. The present petition has been filed by the petitioner, Municipal Corporation of Delhi (MCD) praying inter alia for quashing/setting aside the award dated 14.10.2004 passed by the Industrial Tribunal (hereinafter referred to as 'the Tribunal') whereunder it was held that the respondent workmen were entitled to initial pay scale as admissible to their counterparts without any allowance, from the date of their appointment.

2. Briefly stated, facts of the case are that the respondent workmen joined the petitioner MCD in its Horticulture department as Malis/Beldars on muster roll basis and were being paid minimum wages as fixed and revised from time to time by Delhi Administration for casual unskilled workers. Their counterparts who were working on a regular basis were given a definite pay scale besides other allowances. The respondent workmen raised an industrial dispute claiming regularization on the post of Mali/Beldar from the dates of their initial appointments and claiming same wages for their muster roll period of service as were being given to the regular employees in the proper pay scale. The dispute was referred to the Tribunal for adjudication in the following terms of reference:

Whether S/Sh. Ram Niwas, Suraj Pal, Rajesh Kumar, Ram Kumar, Rajinder, Jai Bhagwan, Raj Pal, Pritam and Bijinder Singh are entitled to be regularized on the post of Mali/Beldar in proper scale from their initial dates of appointment instead of later dates and whether the said workman are also entitled to the same wages for their muster roll period of service as are given to the regular employees in the proper scale and if so what directions are necessary in this respect?

3. During the pendency of the proceedings, the respondent workmen were regularized as per the phased manner policy of the petitioner MCD. Therefore, the only question left to be adjudicated by the Tribunal was as to whether the respondent workmen were entitled to grant of equal pay from the date of their initial appointment as was being paid to their counterparts who were appointed on regular basis. After hearing the contentions of the parties, the Tribunal relied on various judgments of the Supreme Court on the issue of 'equal pay for equal work', and arrived at the conclusion that the respondent workmen were entitled to initial pay scale as admissible to their counterparts without any other allowance, from the date of their appointment.

4. Learned Counsel for the petitioner MCD stated that the impugned award is erroneous, inasmuch as the Tribunal has failed to appreciate that once the respondent workmen stand regularized in accordance with its phased manner regularization policy, they are not entitled to any other relief which is contrary to the policy. It was submitted that the judgments of this Court in the case of MCD v. POIT-II reported as 2000 II AD (Delhi) 442, and that of the Supreme Court in the case of State of Punjab and Ors. v. Devender Singh and Ors. reported as 1998 SCC (L & S) 1261, on which reliance was placed by the Tribunal, to arrive at the aforesaid conclusion, were distinguishable from the present case inasmuch as in both the aforesaid cases, minimum pay scale was granted because the concerned workmen could not be regularized against the phased manner policy and the said minimum pay scale was also granted only from the date of reference. It was lastly stated by her that the principle of 'equal pay for equal work' cannot be applied in abstract and is not absolute in nature so as to be applied in all cases uniformly.

5. I have heard the arguments advanced on behalf of the petitioner MCD and have perused the documents placed on record, including the impugned award. Despite service none has entered appearance on behalf of the respondent workmen, who have been proceeded exparte.

6. It is settled law that 'equal pay for equal work' is not a principle to be applied in abstract. Article 14 of the Constitution of India does not provide that only because the nature of work is the same, irrespective of other circumstances like source of recruitment etc, this doctrine has to be applied automatically. Article 14 does not provide for equality amongst unequals. Daily wagers cannot be treated at par with regular employees, being a class apart. If they were to be treated as equal to regular employees, there would have been no necessity of formulating any policy by the management to regularize daily wagers in phased manner. The recruitment rules, service conditions, responsibilities etc. of a regular employee cannot be equated with that of daily wagers. Daily wagers are normally engaged due to exigency of work after getting sanction for funds for them from time to time.

7. In State of Haryana v. Jasmer Singh reported as , the Supreme Court observed as under:

10. The respondents, therefore, in the present appeals who are employed on daily wages cannot be treated as on a par with persons in regular service of the State of Haryana holding similar posts. Daily-rated workers are not required to possess the qualifications prescribed for regular workers, nor do they have to fulfilll the requirement relating to age at the time of recruitment. They are not selected in the manner in which regular employees are selected. In other words the requirements for selection are not as rigorous. There are also other provisions relating to regular service such as the liability of a member of the service to be transferred, and his being subject to the disciplinary jurisdiction of the authorities as prescribed, which the daily-rated workmen are not subjected to. They cannot, therefore, be equated with regular workmen for the purposes for their wages. Nor can they claim the minimum of the regular pay scale of the regularly employed.

8. When a daily wager accepts employment, he is presumed to be aware of the nature of his employment and the consequences thereof. It is therefore not permissible for the respondent workmen to claim parity with regular employees and accordingly claim wages and allowances equal to that of the regular employees.

9. In similar facts and circumstances, a Single Judge of this Court, in the case of Delhi Development Authority v. Presiding Officer, Industrial Tribunal 1 and Ors. being WP(C) No. 4440/1999, decided on 20th December, 2006, relying on the judgments of Jasmer Singh (supra) and Secretary, State of Karnataka v. Umadevi and Ors. reported as , held as under:

5. It is undisputed that the respondents were engaged as daily wage employees on ad hoc basis to meet the exigencies of service. They were regularized by the petitioner under a scheme as and when the posts arose. They could not claim regularization from the date of their inception and the order of the Tribunal per se is perverse. The Tribunal observations of 'equal pay for equal work' are also contrary to law. Daily wagers/ad hoc employees cannot be equated with regular employees. 'Equal pay for equal work' is not the principle to be applied in abstract. Daily wagers cannot claim more than what has been sanctioned to engage a daily wager, who joins on the basis of sanction of funds. He knows that he is being engaged at a particular pay, for a particular period. He cannot claim more than what has been sanctioned to engage him....

10. It has been held in a catena of judgments that 'equal pay for equal work' is not a fundamental right vested in an employee, and the function of fixation of wages as also examining similarity in nature of duties being performed by two set of employees, should generally be best left to the executive. Reference may be made to the judgment rendered by the Supreme Court in the case of State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association reported as , wherein it was held as under:

10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter.

11. The observations made by the Supreme Court in a judgment rendered recently by it in the case of S.C. Chandra and Ors. v. State of Jharkhand and Ors. reported as 2007 AIR SCW 5480 are also noteworthy in this regard:

26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).

27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and Ors.

28. Similarly, in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association , the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and Ors. v. Pradip Kumar Dey .

12. There is force in the argument of the counsel for the petitioner MCD that reliance placed by the Tribunal on the judgments rendered in the case of MCD (supra) and State of Punjab (supra) as also on that of Delhi Municipal Karamchari Ekta Union v. P.L. Singh and Ors. reported as 1988 SCC (L & S) 468 is misplaced. In the case of Delhi Municipal Karamchari Ekta Union (supra) there was no scheme for absorption/ regularization of the casual/ daily wage workers, and in the case of State of Punjab (supra), the workmen were not regularised by the management, unlike in the present case. Insofar as the decision of this Court in MCD (supra) is concerned, it is to be noted that the said judgment was rendered in view of its own peculiar facts and circumstances. The Court clarified therein that the direction for payment of minimum of the regular pay scale of regularly employed workmen was issued in view of the peculiar facts of the said case without in any way diluting the principle that normally the daily wagers are not to be allowed same pay as given to regular employees. Thus, no parallel can be drawn between the aforesaid cases and the present case where the respondent workmen were duly regularized on the basis of the phased manner policy adopted and implemented by the petitioner MCD.

13. From the aforesaid discussion, it is evident that the Tribunal erred in holding that the respondent workmen who were initially appointed only as daily wagers, were entitled to the initial pay scale as admissible to their counterparts who were regular employees, right from the dates of their initial appointments. The impugned award dated 14.10.2004 is not sustainable and therefore set aside. The writ petition is allowed. No orders as to costs.