Madras High Court

The Management vs The General Secretary on 7 August, 2023

                                                                         W.P.Nos.37991 to 38001 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 07.08.2023

                                                      CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                          W.P.Nos.37991 to 38001 of 2015
                                              and M.P.No. 1 of 2015

                     W.P.No.37991 of 2015 :-

                     The Management
                     Erode District Co-operative Milk
                           Producers Union Ltd (ED 296)
                     Vasavi College (Post) – 638 316,
                     Erode Taluk,
                     Erode District.                                              ...Petitioner


                                                         -Vs-

                     1. The General Secretary,
                        Salem mandala Anaithu,
                        Paniyalarkal Sangam,
                        44-A, Mariamman Kovil Street,
                        Hasthampathi,
                        Salem – 636 007.

                     2. The Presiding Officer,
                        The Labour Court,
                        Salem.                                                    ... Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India

praying to issue a Writ of Certiorari, calling for the records relating to the

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W.P.Nos.37991 to 38001 of 2015

impugned order dated 09.04.2015 passed by the second respondent in

I.D.No.48 of 2010 and quash the same.

In all W.Ps.

                                             For Petitioner      : Mr.R.Blaramesh

                                           For Respondents
                                              For R1       : Mr.R.Nalliyappan
                                                 R2        : Court
                                           For Respondents
                                                 3 to 6 in
                                        W.P.No.37996/2015 : Mr.A.R.Nixon


                                                    COMMON ORDER

All these writ petitions challenging the award dated

09.04.2015, passed by the second respondent in the industrial dispute

raised by the various Union on behalf of the workmen in I.D.Nos.48,

145, 138, 113, 50, 146, 209, 111, 49, 55, 112 of 2010, thereby directing

the petitioner to regularize the workmen service as Lab Technician from

the date of their initial appointment and to pay their arrears of salary and

other benefits.

2. The petitioner in all the writ petitions (herein after called as

"the management") is an establishment registered as a co-operative

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W.P.Nos.37991 to 38001 of 2015

society under the Tamilnadu Co-operative Societies Act, 1983. It's

functions are procuring and processing of milk and manufacturing of

milk products such as cream, butter, ghee, khoa, milk powder etc., and

marketing. The business nature of the petitioner/management is seasonal

with two distinct period in a year viz., flush season from November to

April and lean season from May to October. In the flush season, the

quantity of milk procured will be huge due to various natural factors. In

view of this increase in the quantity of milk, the volume of work in the

processing of milk and manufacturing of mild products will also

proportionately increase. This situation will require the services of the

employees and workers in the organization satisfactorily.

3. The workmen of the first respondent union were working as

causal labour and regularized with effect from 10.01.1990. Therefore,

they became Junior Factory Assistant as per the General Manager's

proceedings on various dates. Thereafter, they were re-designated as

Senior Factory Assistant and elevated to selection grade. However they

had not acquired any qualification of training to work as lab technician.

In fact, some of them were failed in their SSLC examination.

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W.P.Nos.37991 to 38001 of 2015

4. However, the first respondent union raised industrial dispute

under Section 2(K) of the Industrial Dispute Act, for the right of the

individuals who are seeking promotions to the various post as against

which they does not qualified for the post as prescribed by the bye-law of

the petitioner/ management. The management filed counter and their

specific stand is that in order to fill up the post by recruitment or

promotion, permission of the Commissioner should be obtained as

envisaged in Commissioner's circular dated 22.10.2007.

5. As per circular issued by the Commissioner of Milk

Production and Dairy Development, Chennai, dated 22.10.2007, all the

Managing Directors/General Managers of District Cooperative Milk

Producers' Unions instructed once again to scrupulously follow the

instructions as per the Commissioner's earlier circular dated 16.05.1996

and not to indulge in such pay fixation, pay revision, enhancement of

D.A and other allowances, promotions, infrastructure development,

creation of asset etc., without prior permission of the Commissioner.

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W.P.Nos.37991 to 38001 of 2015

6. The workmen were working as Helper in the quality control

section headed by Deputy General Manager (Quality Control). They

were engaged as manual labour viz., manufacturing process or any kind

of work incidental to connect with manufacturing process. However, the

second respondent viz., Labour Court, directed the petitioner

management to give post of Lab Technician from the date of their initial

engagement of appointment and pay arrears of salary. Therefore, the

petitioner management approached this Court with the present writ

petitions.

7. Heard the learned counsel appearing on both side and

perused the material placed before this Court.

8. The petitioner management filed respective workmen details

with regard to their initial appointment, date of their regularization and

date of promotions and date of retirement along with the educational

qualification as follows:-

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9. Accordingly, some of the workmen were promoted to the

post of Junior Executive, Milk Recorder, Technical Operator and Special

Grade Senior Mazdoor etc. Therefore, those who are having qualification

for the post of Lab Technician were already promoted to the post of Lab

Technician. Those who are not having required qualification are not

granted promotions. Some of the workmen are already retired and also

expired as stated supra. While pending the writ petitions filed by the

management in W.P.No.37996 of 2015, some of the workmen were

impleded themselves as respondents.

10. The learned counsel appearing for the petitioner relied upon

the judgment of the Hon'ble Supreme Court of India reported in 2023

SCC Online SC 28 in the case of Union of India and ors Vs. Rajib

Khan and ors., which held that nature of work may be more or less the

same but he scale of pay may vary based on academic qualification or

experience which justifies classification. Further inequality of men in

different groups excludes applicability of the principle of 'equal pay for

equal work' to them. The classification based upon the higher educational

qualification for grant of higher pay scale to a trained person or a person

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W.P.Nos.37991 to 38001 of 2015

possessing higher qualification. Therefore, educational qualification

cannot be a ground for denial of allowance is unsustainable.

11. The doctrine of 'equal pay for equal work' is not an abstract

doctrine and is capable of being enforced in a Court of law. But equal

pay must be for equal work of equal value. It has no mechanical

applicability in every case. Article 14 of the Constitution of India permits

reasonable classification based on qualities or characteristics of persons

recruited and grouped together, as against those who were left out. Or

course, the qualities or characteristic must have a reasonable relation to

the object sought to be achieved. In service matters, merits or experience

can be a proper basis for classification for the purpose of pay in order to

promote efficiency in administration. A higher pay scale to avoid

stagnation or resultant frustration for lack of promotional avenues is also

an acceptable reason for pay differentiation. A very fact that the person

has not gone through the process or recruitment itself, in certain cases,

make a difference. If the educational qualifications are different then also

the doctrine may have no application. Even through persons may do the

same work, their quality of work may differ. Where persons are selected

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W.P.Nos.37991 to 38001 of 2015

by a selection committee on the basis or merit with due regard to

seniority a higher pay scale granted to such persons who are evaluated by

competent authority cannot be challenged.

12. It is also relevant to extract the judgment reported in (2006)

4 SCC 1 in the case of State of Karnataka Vs. Umadevi, in which the

Hon'ble Supreme Court of India held as follows :-

“It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules.

No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with

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W.P.Nos.37991 to 38001 of 2015

a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal ages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are, therefore, overruled."

13. Though all the workmen were engaged as daily wages

worker, subsequently as stated supra, they were regularized to the post of

Junior Factory Assistants. Thereafter, they promoted to the post of Senior

Factory Assistant and elevated to selection grade. While pending writ

petition, they were promoted as Junior Executive/Milk recorder/

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Technical Operator/Special Grade Senior Mazdoor, taking upon their

educational qualification and other qualifications. Therefore, the claim of

the workmen to absorb them in the service of Lab Technician cannot be

considered, since they are not appointed as per the relevant recruitment

rules for the post of Lab Technician. Therefore, this Court finds infirmity