Karnataka High Court

The Nubsnlw (Fnto) vs The Telecom District Engineer on 16 January, 2021

Author: M.Nagaprasanna

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF JANUARY, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No.37027/2018 (S - REG)

BETWEEN

THE NUBSNLW (FNTO)
EMPLOYEES UNION,
BSNL, MANDYA - 571 401.
DULY REP BY ITS SECRETARY,
MR. CHIKKEGOWDA
S/O. VENKATEGOWDA.
                                              ... PETITIONER

(BY SRI J.SATHISH KUMAR, ADVOCATE (VIDEO CONFERENCING))

AND

THE TELECOM DISTRICT ENGINEER
BSNL, MANDYA - 571 401.
                                             ... RESPONDENT

(BY SRI Y.HARIPRASAD., ADVOCATE (PHYSICAL HEARING))

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT
RESPONDENT TO PAY THE WAGES ON PAR WITH THE REGULAR
EMPLOYEES FROM THE DATE OF ORDER PASSED BY THE HON'BLE
CGIT DATED 21.11.2001 VIDE ANNEX-A AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
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                               ORDER

The petitioner in this writ petition has sought for a

direction by issuance of a writ in the nature of mandamus to

pay wages on par with the regular in Group 'D' employees,

working in the BSNL, Mandya.

2. Heard Sri Tulasi Kumar, learned counsel appearing for

Sri J. Satish Kumar, learned counsel for petitioner,

Sri Y. Hariprasad, learned counsel for respondent and perused

the material on record.

3. Brief facts of the case leading to the filing of the writ

petition are that:-

The members of the Union - petitioner were at the

relevant point of time working as Group 'D' employees in BSNL

at the Office of the Telecom District Engineer, Mandya and

were terminated from service on 16.11.1992.

4. The said termination was called in question by the

employees before the Central Government Industrial Tribunal

cum Labour Court (hereinafter referred to as 'the Tribunal' for

short), who by an award dated 21.11.2001, set aside the

orders of the termination and directed reinstatement of the

employees and gave a further direction that they should be

considered for regularization of the services.

5. The award was challenged by the respondent - BSNL,

Mandya, before this Court in W.P.No.17570/2002 and this

Court by an order dated 15.06.2006, while affirming the

award of the Tribunal, modified the same only insofar as it

pertains to the direction of regularization and payment of back

wages. The operative portion of the order reads as follows:

"6. For the reasons stated above, the following:

ORDER

I. Writ petition is partly allowed.

II. The impugned award directing the petitioner to regularize the service of nine workmen of respondent Union is modified as directing the petitioner to reinstate the nine workmen of the

respondent union. Ordered accordingly."

This order of the Co-ordinate Bench was taken in special

leave to appeal before the Apex Court in SLP No.10252/2007,

wherein, the BSNL withdrew the SLP. Therefore, the findings

of the Tribunal as modified by this Court has become final.

6. The petitioner - Union has now filed this writ petition

after they were reinstated pursuant to the dismissal of the SLP

No.10252/2007 dated 23.08.2013, by the Apex Court, seeking

equal pay for equal work that they are rendering in the BSNL

on par with the regular Group 'D' employees.

7. Learned counsel for petitioner, Sri Tulasi Kumar,

would vehemently contend that the regular Group 'D'

employees in the respondent - BSNL are being paid non-

executive level - I in the pay scale of Rs.7,760/- - 13,320/-

and the petitioners are being paid Rs.10,000/- as consolidated

pay every month from the date they were reinstated in the

year 2015.

8. On the other hand, learned counsel for the respondent

- BSNL would vehemently refute every contention made by the

learned counsel for the petitioner and would also contend that

if the workmen are not appointed in accordance with law, they

have no right to claim a particular pay scale that is paid to the

regular Group 'D' employees of the BSNL and would seek the

writ petition be dismissed.

9. The findings of the Tribunal assume significance for

consideration of the claim of the petitioner. The Tribunal while

adjudicating the dispute in C.R.No.59/1994, considering the

deposition of the witness has recorded a finding in its award

dated 21.11.2001, which read as follows:

"18. With this it is clear that some of the workmen who were engaged on daily wages were regularized and there is discrimination in respect of these workmen. It is in the cross

examination of MW1 that they have regularized the services of the workmen who were in the muster roll before 1984. The department has not adduced any clear evidence to say that these workmen were not worked continuously for 240 days in a year. MW1 says in his evidence that they were regular employees to do the nature of work that has been done by these workmen but due to exigencies the services of these workmen were utilized. What is that exigency is not stated by MW1. From the evidence of MW1 it is clear that these workmen were worked continuously and the nature of work was a continuous one."

(emphasis supplied)

This finding of the Tribunal is not disturbed by this Court

while allowing the writ petition in part, which was only insofar

as the direction for regularization and back wages is concerned

and the SLP filed against the said order, is turned down by the

Apex Court. The Tribunal has recorded a finding that the

petitioner - Union is performing same duties as that of the

regular Group 'D' employees and the said finding has become

final. Once it is seen that the members of the petitioner are

performing the same duties as is done by the regular Group

'D' employees, pay cannot vary with that of the Group 'D'

employees. More so, in the light of the law laid down by the

Apex Court in the case of STATE OF PUNJAB AND OTHERS

VS. JAGJIT SINGH AND OTHERS reported in AIR 2016 SC

5176, wherein it 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 summarised 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 summarised by us, in para 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us yet again.

60. 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 employees concerned (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"

summarised by us in para 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 temporary employees concerned 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 summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post.

61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding that all the temporary employees concerned, 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."

Therefore, in the light of the evidence placed before the

Tribunal and the fact that this Court has not disturbed the

findings of the Tribunal and in the light of the law laid down by

the Apex Court in the case of JAGJIT SINGH (supra), the writ

petition deserves to succeed.

10. Therefore, the following:

ORDER

a. The writ petition is allowed in part.

b. The members of the petitioner is held entitled

to the salary that is paid to the regular Group

'D' employees i.e., (non-executive level - I)

from the date they were reinstated with effect