Balo Rai v. State Of Bihar — 1996 DIGILAW 113 (PAT)

Judgment A. K. Ganguly, J. 1. These two matters involving identical questions have been heard together and as such are disposed of by this common judgment. 2. In C. W. J. C. No.7180 of 1992 about 122 coal un-loading workers of the Bihar State Electricity Board (hereinafter referred to as the said board) have come before this Court and in another writ-petition being C. W. J. C. No.8839 of 1992 similarly 124 coal unloading workers have moved this Court. In the first writ petition the petitioners have prayed for a writ of mandamus commanding the respondents to pay the salary and other wages at the scale which are applicable to the category of semi-skilled b workmen with effect from the date of regularisation of their services as Coal unloader. who are presently working in the Barauni thermal Power Station (hereinafter referred to as the B. T. P. S.) 3. In the second writ petition, namely, C. W. J. C. No.8839 of 1992 the prayer is for issuance of an appropriate writ of mandamus directing the respondents to place the petitioners in the category of semi-skilled b workmen or any other appropriate pay scale as per the recommendation of the Pay Revision Committee. 4. It is common ground that the petitioners in both the writ petitions have been regularised as workers of the said Board. The principal dispute is about the manner in which such workers are treated by the Board in the payment of their salary. 5. Various points have been raised on behalf of the parties but the local and principal point of controversy is whether or not the petitioners are entitled to be treated similarly as other regular workers of the said Board. If answer to this question is given in the affirmative, then the consequential benefits of pay scale which have been made available to other regular workers of the said Board ought to be made available to the petitioners. Therefore, the basic question is whether the rights of the petitioners under Article 14 of the Constitution has been breached by the acts and actions of the said Board. 6. Therefore, the basic question is whether the rights of the petitioners under Article 14 of the Constitution has been breached by the acts and actions of the said Board. 6. From the narration of past events relating to the service of the petitioners with the said Board, it appears that after a great deal of struggle on their part, the Board agreed to regularise them in service by an order dated 26th June, 1982 on the following terms and conditions: " (i) They shall be piece-rated workers and they shall be paid their wages at the rate of Rs.3.55 paise MI of coal unloaded. (ii) If their monthly earning falls short of Rs.500 they shall be paid Fall Back wages to make up the shortfall in their wages. The Fall Back Wages shall, however, be paid in proportion to their attendance. (iii) Mates/munshi shall be allowed 5 per cent additional wages as supervisory charges. (iv) They will have to unload coal upto 2200 M. T. per day within the free time allowed by the Railway subject to availability of wagons. (v) They shall be liable for making [payment of demurrage and wharfage charges for detention of Railway Wagons beyond the stipulated time, provided that the Wagons are detained in a situation arising out of natural calamity and situations beyond human control. (vi) They shall be responsible for stacking and watering the coal. (vii) They shall be allowed weekly off on staggering basis by the Controlling officer as per convenience of the work. (viii) They shall be entitled for the benefits/under the Workmens Compensation Act, 1923. (ix) They shall be entitled for the benefits of the contributory provident fund and gratuity as per Boards rules/scheme. (x) They shall be entitled for the benefits of Bonus as admissible to other workmen of the Board. (xi) They shall be entitled for the benefits of annual leave under the Factories Act, 1948. (xii) They shall be entitled for medical benefits as admissible to other workmen at Barauni Thermal Power Station. (xiii) They shall be liable for transfer to any establishment of the Board as per exigencies of work. (xiv) Their character and antecedent will be verified by District Authorities and if anything adverse found against them, their services shall be terminated without time notice. (xv) Their services are terminable on seven days notice from either side. (xiii) They shall be liable for transfer to any establishment of the Board as per exigencies of work. (xiv) Their character and antecedent will be verified by District Authorities and if anything adverse found against them, their services shall be terminated without time notice. (xv) Their services are terminable on seven days notice from either side. (xvi) They shall have to produce a certificate of medical fitness from the medical Officer of the Project. In the absence of Matriculation Certificate the medical Officer will ascertain their age after careful medical check up. " 7. The definition of "workmen" given in clause 2 (a) of the Bihar State electricity Board, Standing Orders is set out below: "workman means and includes a person defined as such in Sec.2 (i) of the Industrial Employment (Standing Orders) Act, 1946 . " 8. Section 2 (i) of the Industrial employment (Standing Orders) Act, 1946 is set out below: "wages and workman have the meanings, respectively assigned to them in CIs. (rr) and (s) of Sec.2 of the industrial Disputes Act, 1947 (14 of 1947 ). " 9. Section 2 (s) of the Industrial disputes Act, 1947, is set out below: ""workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, killed, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial Dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person - (i) who is subject to the Air Force act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957) ; or (ii) who is employed in the Police service or as an officer or other employee of a prison; or (Hi) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. " 10. " 10. Having regard to the said definition clause, the petitioners, who are coal unloaders, certainly are workmen of the said Board within the meaning of the said Standing Order. 11. Learned Counsel for the petitioners further urged that as coal un-loaders the petitioners are doing far more hazardous work and their work is also more injurious to health compared to the work rendered by the semi-skilled b category of workers. Therefore, by giving them a fixed piece-rated wage at the rate of Rs.3.55 per metric tonne for coal un-loading and Fall Back Wages at rs.775 per month the respondents authorities have meted out to them an unreasonable treatment which is both un-just and un-fair and opposed to the principles of Article 14 of the constitution of India. In support of this contention, the petitioners have referred to the correspondence between the General manager-cum-Chief Engineer of the said Board to the Secretary of the said board dated 5th June, 1981 to the effect that "it had been agreed to regularise the services of the coal unloading mazdoors and they would be given the scale of pay of un-skilled Khalasi with effect from 1st June 1981". On the other hand the stand of the Board is that regularisation does not bring the petitioners on a part with other regular employees/ workers of the said Board. In support of this connection, learned Counsel for the board urged that the word regularisation which appears in the order dated 26th June, 1982 has to be understood in the context of the referred notes of discussion dated 18th may 1982. Therefore, the Boards right to pay them as piece-rated workers of the Board arose from the bipartite agreement dated 18th May, 1982. Fun ther case of the Board is that the said bipartite agreement was followed by a tripartite agreement dated 31st January, 1985. In connection with the same, the respondents also referred to another agreement which was entered in the year 1988 at a bipartite level when the said Board made a revised agreement for the enhancement of the piece rate wages of the petitioners. 12. In connection with the same, the respondents also referred to another agreement which was entered in the year 1988 at a bipartite level when the said Board made a revised agreement for the enhancement of the piece rate wages of the petitioners. 12. Therefore, the learned Counsel for the said Board submits that the consistent case of the Board is that the petitioners are piece-rated workers and their regularisation in the year 1982 was made only with a view that the petitioner have been ensured continuous job of coal un-loading in b. TP. S. and this does not entitle them to claim wages in the pay scale which is granted to other regular workers of the said Board. 13. Learned Counsel for the said board has also submitted that the writ court ought not to go into the questions raised in these two writ petitions inasmuch as they involve disputed questions of fact and for that reason the forum should be under the Industrial disputes Act and a petition under article 226 of the Constitution of India is not the appropriate remedy. In support of this fact it has been urged on behalf of the respondents that similar questions about the workers of Muzaffarptr thermal Power Station, Kami, are pending in reference before the industrial Tribunal under Sec.10 of the Industrial Disputes Act. The relevant notification dated 13-6.-1994, on which reliance was placed is set out below: "whether the workmen in Schedule k of Muzaffarpur Thermal Power Station kanti, who are engaged In perennial nature of works and govt. have prohibited to engage contract labour in such work, should be taken in service of Electricity board? If so, since when?" 14. The petitioners have, however, asserted that the factual position in this case is not disputed. Most of the facts are admitted and on the admitted set of facts, the petitioners are trying to project their case of discrimination in the hands of the said Board. The question which is pending in adjudication before the Tribunal in the case of workers of Muzaffarpur is substantially different from the question involved in this case. So it is submitted by the petitioners that this writ petition under article 226 of the Constitution of India is maintainable as a clear case of discrimination under Article 14 of the constitution has been made out by them. 15. So it is submitted by the petitioners that this writ petition under article 226 of the Constitution of India is maintainable as a clear case of discrimination under Article 14 of the constitution has been made out by them. 15. Considering the rival contentions, this Court is of the view that the factual aspect in these writ petitions are not much disputed. It is not disputed that the writ petitioners are regular workers of the said Board. It is also not disputed that they are paid on a piece-rated basis. It is not disputed that other workers of the Board are paid on a time-scale and a regular pay scale is allotted for them. So judging from this point of view, this Court finds that the dispute and the controversy raised in these writ petitions cannot be equated with the dispute with which the workers of Thermal Power Station, Kanti are involved. Those workers have not been even taken in the service of the Board. Here that is not the position. So the basic question in these writ petitions is whether or not the writ petitioners who are recognised as regular workers of the board, can be differently treated in the matter of payment of their wages. This is question which touches the equality clause under the Constitution. So this court is of the view that it is entitled to consider the same. In this connection this Court is reminded of the decision of the Supreme Court in the case of randhir Singh V/s. Union of India and others reported in AIR 1982 SC 879 . In that case dealing with overwhelming importance of the equality clause in the constitution in the life of the citizen of this country, the Apex Court observed as follows: "article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Art.16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. These equality clauses of the constitution must mean something to everyone. To the vast majority of the people the equality clauses of the constitution would mean nothing if they are unconcerned with the work they do not they pay they get. These equality clauses of the constitution must mean something to everyone. To the vast majority of the people the equality clauses of the constitution would mean nothing if they are unconcerned with the work they do not they pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber- barons and smuggler kings or for dealing with tax-evaders is discriminatory. Whether a particular government policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take over of the empires of industrial tycoons is arbitrary and un-constitutional and other questions of the like nature, leave to millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is here, if at all that the equality clauses of the Constitution have any significance to them. " 16. Even though those observations were made by the Supreme Court in a judgment concerning the question of equal pay for equal work and this court is not strictly concerned with the said question in this case but the general observation about the applicability of article 14 of the Constitution in the context of determination of questions relating to wages of the teeming millions is also a question which is relevant here and as such this Court finds that the principal controversy raised in this case can be decided by this Court sitting under Article 226 of the Constitution. 17. Here the right of equal treatment guaranteed under the Constitution is sought to be enforced by the petitioners in these writ petitions. The dispute may have the labour of an industrial Dispute, but the right of equal treatment which the petitioners are seeking is not a right or an obligation created under the Industrial Disputes act but a right recognised under our national Charter. Therefore, the doors of this Court cannot be shut to these petitioners. The case of the petitioners here fall in the second category succinctly stated in the case of the Premier automobiles Limited (A. I. R.1975 S. C. page 2238 ). 18. Therefore, the doors of this Court cannot be shut to these petitioners. The case of the petitioners here fall in the second category succinctly stated in the case of the Premier automobiles Limited (A. I. R.1975 S. C. page 2238 ). 18. Learned Counsel for the respondents has, however, placed reliance on a decision of the Supreme court in the case of Bihar Rajya Vidyut parishad Field Kamgar Union V/s. The state of Bihar and others reported in (A. I. R.1987 S. C. page 1875 : 1987 pljr 64 (SC) in order to contend that this writ petition is not maintainable under Article 226 of the Constitution of india. In that case the writ petition was filed under Article 32 of the Constitution. The Supreme Court refused to entertain the said writ petition filed under Article 32 of the Constitution on various grounds. Firstly the ground which was agitated in the said writ petition rested on disputed questions of fact, namely, whether the workmen are doing the work of a temporary nature. The next question was that who was the employer of those workmen. The other question which was raised was whether the petitioners can be absorbed on a permanent basis. It was also alleged that the writ petitioner in that case was guilty of suppression of material facts. In the back-ground of these facts, the Hon ble Judges of the Supreme Court came to the conclusion at paragraph 3 of the said judgment, which is set out below: "it is apparent from the relative positions taken by the parties that there is considerable dispute in regard to material facts and that the dispute is of a nature which cannot be conveniently adjudicated in this writ petition. It is a dispute which, it seems to us, is more appropriate for adjudication under the Industrial Disputes act. We must, therefore, decline to interfere in this matter before us. " But in this case the factual matrix is on a different footing. Here it is common ground that the petitioners have been declared regular workers of the Board. 19 The question of their absorption in the services of the said Board is not in issue. It is also not in issue who is their employer because the Board has never disputed that there exists between the petitioners and the Board relationship of employer and employee. 19 The question of their absorption in the services of the said Board is not in issue. It is also not in issue who is their employer because the Board has never disputed that there exists between the petitioners and the Board relationship of employer and employee. Therefore, in the background of these admitted facts which are completely different from the facts in the case of Bihar rajya Vidyut Parishad Field Kamgar union (supra), this Court is of the view that the basic question here is whether the payment of the petitioners on piece-rated basis after acknowledging them as regular workers amounts to a treatment which is violative of equality clause of article 14 of the Constitution of India. Therefore, this Court is of the view that this question can be agitated before a writ Court under Article 226 of the Constitution of India. 20. Learned Counsel for the respondents has, however, urged that there does not exist any rule to the effect that the moment an employer engages a worker, he must be wages to such worker on the basis of the time pay scale alone. Learned Counsel for the board further submitted that the nature and availability of work for the coal unloading Mazdoors is of a casual and intermittent nature. As such availability of the work depends upon several factors, namely, availability of railway wagons from which the coal has to be un-loaded. In support of the said stand taken by the Board, reliance is placed on the communication made by the general Manager-cum-Chief Engineer to the Secretary of the said Board dated 20th July, 1981 to show the nature of work of the petitioners and also the report of the High Level Committee of the said Board. Learned Counsel for the said Board further stated that the mode of piece rated payment is also a mode of payment which is well known in the field of personnel management. As such the said Board has not acted unreasonably or arbitrarily by giving the petitioners piece-rated payment. 21. This court is, of course, not going into the disputed question of the nature of work which the petitioners are to perform. As such the said Board has not acted unreasonably or arbitrarily by giving the petitioners piece-rated payment. 21. This court is, of course, not going into the disputed question of the nature of work which the petitioners are to perform. Even if the Court assumes that having regard to the nature of work which the petitioners are to perform, there may be periods during which the petitioners may not be allotted any work or job, but the position cannot be denied that the petitioners are the regular workers of the said Board and the requirement of coal unloading is one of the perennial requirement of the said Board. The Board has not given any detail about the period during which the petitioners are to be kept idle and payment has to be made to them and that by itself does not and cannot justify the stand of the Board, namely, that the petitioners must be paid on the basis of the piece rate and not on the basis of a regular pay scale. 22. It is not un-known that there are many workers working under various Port Trust Authorities where the workers, at times, do not get any work and may have to sit idle but that does not prevent them from getting a regular pay scale and all other benefits attached to their services. 23. It is well known that as a result of being paid on piece-rated basis the petitioners are not getting the benefit of dearness allowance. "they are also not getting the normal post-retirement benefit. They are also not getting the benefit of annual increment and various other service benefits. But while regularising the services of the petitioners on certain terms and conditions, as piece-rated workers, some benefits, namely, benefits under the workmens Compensation Act, 1923, the benefit of C. P. F. and gratuity and also the benefit of bonus have been made available to them. But no reason except the nature of their work has been shown as the justification for not according the benefit of regular pay scale to the petitioners. 24. Learned Counsel for the petitioners has sought to rely on the report of the Pay Revision Committee in order to contend that an expert body like the Pay Revision Committee has also suggested that the salary and emoluments of the petitioners be suitably enhanced and the petitioners be treated as regular employees. 24. Learned Counsel for the petitioners has sought to rely on the report of the Pay Revision Committee in order to contend that an expert body like the Pay Revision Committee has also suggested that the salary and emoluments of the petitioners be suitably enhanced and the petitioners be treated as regular employees. In support of this contention learned Counsel for the petitioners has relied on the following observations in the report of the Pay commission (hereinafter called the said report ). "from the facts stated above, It is confirmed that the Coal unloaders and mates/munshis, whose name figure in the boards Order, are like regular employees of the Board who have been given all the benefits of the Labour Laws plus certain other facilities which the permanent employees of the Board are enjoying. It is also a fact that these Coal un-loaders are basically appointed on piece-rated basis and in case of shortfall in their wages, they have been guaranteed fall back wages. The basis on which the full back wages have been granted is the lowest minimum wage admissible to the employees of the Board. Since the BTPS is the direct employee of these Coal unloaders, it cannot be said that they do not enjoy the status of regular employees of the Board. Hence, their representations to place then in proper category and pay scale appears to be justified. In the view of the matter taken above, the Board may take necessary action to give them proper pay scales as, earlier, the Board had agreed to give them the pay scale of un-skilled workers which could not be implemented. Pending this the Board may consider to increase their piece-rated wages in- consultation with their representatives. In the matter of payment of fall back wages, we recommend that it should be raised to Rs.775 per month, which the Committee has recommended as minimum wage for the unskilled category. " 25. Learned Counsel for the respondent Board has, however, countered the said stand by saying that the fixation of pay of the petitioners, namely, the Coal On-loading Mazdoors was not included in terms of the reference of the said Committee. As such whatever observation the Commission has given is merely an observation and is not binding on the said Board. Learned Counsel for the respondent Board has, however, countered the said stand by saying that the fixation of pay of the petitioners, namely, the Coal On-loading Mazdoors was not included in terms of the reference of the said Committee. As such whatever observation the Commission has given is merely an observation and is not binding on the said Board. The terms of Reference of the Pay Commission is set out below: "the Committee is requested to make its recommendation on the following points: (1) To determine the Pay structure of employees of the Board (Officers as well as workmen) with due record to the resources of the Board. While determining the pay structure, the way of adjustment of Interim Relief already paid may also be considered. (2) To determine the rate of D. A. , if any. (3) To determine the quantum and eligibility for payment of special pay, conveyance allowance, design allowance, short-hand allowance, emergency allowance, t. A. /fixed T. A. , City Compensatory allowance, House-rent allowance, schedule of house-rent recoveries and free supply of electricity, project allowance, headquarters allowance etc. for the employees of the Board. (4) To determine grant of medical allowance/facilities to the employees of the Board. (5) To give recommendation regarding time-bound promotion/removal of stagnation in respect of the employees of the Board. (6) To determine the age of superannuation of the Offices of the Board. (7) To decide grant of uniform/liveries, night shift allowance washing allowance and educational allowance to the employees of the Board. (8) To lay down the principle of pay fixation, date of implementation of pay revision and period of its operation. (9) Rationalisation of jobs/designation and classification of various categories of employees. (10) Review of leave encashment benefit. (11) Matter incidental thereto as determined by the Committee. " 26. This Court has already held that the petitioners are workmen within the definition of workmen in the Bihar state Electricity Board Standing Orders. Therefore, it cannot be said that the Pay revision Committees recommendation about the petitioners was on a matter which was not included in the terms of reference. 27. The other objection raised is that the recommendations of the Pay revision Committee is not binding on the said Board. Therefore, it cannot be said that the Pay revision Committees recommendation about the petitioners was on a matter which was not included in the terms of reference. 27. The other objection raised is that the recommendations of the Pay revision Committee is not binding on the said Board. In fact this stand taken on behalf of the Board by its learned Counsel before this Court, has been contradicted by the stand of the Board in its affidavit and in its order. In the counter-affidavit the Board has taken the stand that the fall back wages of the workers have been enhanced pursuant to the recommendation of the said committee. In paragraph 21 of the counter-affidavit affirmed on 10th september, 1992 in C. W. J. C. No.7180 of 1992, the Board has taken such a stand. Such a stand has been repeated in paragraph 8 of the rejoinder affidavit filed by the Board in answer to reply affidavit of the petitioners. The following stand is taken in C. W. J. C. No.7180 of 1992: "however, it is stated that the Board has not accepted the recommendation of the Pay Revision Committee as a whole either in respect of all the recommendations for all categories of employees of the board or the specific recommendation in respect of the coal un-loaders and the board, in fact, has only, after consideration of the recommendation of the Pay revision Committee, enhanced the fall back wages from Rs.625 to Rs.775 per month. " 28. The said stand is taken in c. W. J. C. No.8839 of 1992 also. In that writ-petition the Boards stand on the recommendation made by the said committee about the petitioners salary is reflected in its agenda note to item no.65 of 1991-92 submitted by the secretary. The relevant portions of the said note is set out below: "the P. R. C. examined the case of coal un-loaders and recommended that coal un-loaders should be given proper pay scales instead of piece rate. Pending the issue of framing regular pay scales, the RR. C. suggested to raise the amount of fall back wages from Rs.625 p. m. to rs.775 p. m. (RR. C. recommendation annexed c page 83 of the report ).4. The Finance Department of the board has also examined the issue and recommended that granting regular pay scales to the coal un-loaders might take time. C. suggested to raise the amount of fall back wages from Rs.625 p. m. to rs.775 p. m. (RR. C. recommendation annexed c page 83 of the report ).4. The Finance Department of the board has also examined the issue and recommended that granting regular pay scales to the coal un-loaders might take time. Therefore, the recommendation of the RR. C. to raise the fall back wages as per present minimum wage of Un-skilled category, i. e. enhancement of Rs.775 per month may be considered with immediate effect.5. In view of the above, it is proposed to enhance the fall back wages of the coal un-loaders of BTPS from Rs.625 p. m. to Rs.775 p. m. which shall be in proportion to their attendance. However, fall back wages of Rs.775 will be linked with the minimum daily out-put of 1000 m. T. per day. In case they fail to unload 1000 M. T. on any day a proportionate amount would be deducted from the wage bill of the coal unloaders at the rate of Rs.6 per M. T. for the quantity falling short of 1000 M. T. per day provided wagons are made available to them.6. This has the approval of the Member (F.)7. Approval of the Boajd is solicited in the proposal as contained in paragraph 5 above. " 29. The following position emerges from the recommendations of the said Committee: " (a) The terms of reference of the said committee included the right to make recommendation about the pay structure of the workmen. The petitioners are workmen of the Board and as such they are included within the terms of reference. (b) Recommendations were in fact made by the said Committee about granting the petitioners proper pay scale as the Board agreed to give them the pay scales of unskilled workers. The other recommendation of the said Committee is to raise the fall back wages to Rs.775. (c) The said Board acted on and implemented a part of the recommendation of the said committee by increasing the fall back wages. (d) In respect of the other part of such recommendations, namely, granting the petitioners a proper pay scale, the boards stand in 1991 is that granting regular pay scale to the coal un- loaders might take time. (e) Therefore, the Board was not on principle opposed to grant of a regular pay scale to the petitioners. " 30. (d) In respect of the other part of such recommendations, namely, granting the petitioners a proper pay scale, the boards stand in 1991 is that granting regular pay scale to the coal un- loaders might take time. (e) Therefore, the Board was not on principle opposed to grant of a regular pay scale to the petitioners. " 30. No stand of the Board contrary to the one taken in the aforesaid agenda note dated 26th October, 1991 was disclosed before this Court. The learned counsel for the Board, however, placed reliance on various treaties of Personnel administration in order to show that the system of wage payment by way of piece rate is also an accepted mode of payment. This Court, however, appreciates the industry and the forensic skill of the learned Counsel appearing for the Board who drew the attention of this Court to various materials on the subject justifying payment of piece-rated charges to the employees. But this court is unable to appreciate the relevance of those materials in the factual context of this case where the board agreed in the past to give the petitioners the. pay scale of un-skilled workers and the stand in 1991 is that it accepted on principle the introduction of pay scale to the workers but defers its implementation for the time being. Here we are not concerned with any private employer but we are concerned with the employment given by the said board which is an Authority within the meaning of Article 12 of the constitution and is an instrumentality of the state. It has the Constitutional obligation of being a model employer. Its action must be in harmony with the concept of a Welfare State which is wedded to the Constitutional goal of securing a just and human conditions of work. Therefore, it cannot follow the concept of management of private employers where, profit earning may be the sole motivation. 31. In the instant case under the present system of piece-rated payment a coal un-loader who has to toil incessantly for unloading coal, is exposed to various health hazards and burning himself out fast in order to unload 1000 m. T. of coal per day. Denying such an employee a comprehensive post retirement benefit or anything by way of dearness allowance is indulging in exploitation of human labour. The said. Denying such an employee a comprehensive post retirement benefit or anything by way of dearness allowance is indulging in exploitation of human labour. The said. Board as an Authority within the meaning of Article 12 of the Constitution of india cannot indulge in such practice which is both un-just and un-fair on the touchstone of Articles 14 and 21 of the Constitution. 32. From the facts stated above, it is clear that the petitioners are workers of the Board. So in the matter of payment of their salary, the Board cannot treat them in a manner which deprives them substantially of certain benefits which are available to other workers. In the connection the judgment of the supreme Court in the case of M/s. Hindustan Hosiery Industries V/s. P. H. Lala and another reported in 1974 L. L. J. page 340 is pertinent. The relevant observation of P. K. Goswami, J. , (as His lordship then was at page 348 is set out below: "the wages of the piece-rated workmen had to be increased in line with the increased wages of the time-rated workmen with the object of avoiding discrimination and heart burning among workers and maintenance of industrial peace among them. " It is, therefore, clear that un-equal treatment to piece-rated workers can give rise to a plea of discrimination. 33 The respondents authorities are trying to defeat this plea of the petitioners on the basis of certain agreements entered into by the Union on behalf of the petitioners. Referring to various agreements, as noted above, it is stated by the learned Counsel for the Board that the said agreement being bi-partite and tripartite in nature, the petitioners have no right to make any complaint about their wage structure since the matter is covered by an agreement. Assuming that the agreements referred to by the respondents are still continuing, but the pendency of such agreement cannot prevent the petitioners from raising a plea of unfair treatment and discrimination in violation of Article 14 of the constitution. It may be, as long as the agreement is subsisting between the parties, the petitioners may not be able to raise any industrial dispute. But that does not and cannot prevent the petitioners from approaching the Court and complain of an unfair and un-equal treatment. 34. It may be, as long as the agreement is subsisting between the parties, the petitioners may not be able to raise any industrial dispute. But that does not and cannot prevent the petitioners from approaching the Court and complain of an unfair and un-equal treatment. 34. In fact, the complaint made by the petitioners is of an un- equal treatment which is made to them in violation of their fundamental right under article 14 of the Constitution of India. It is well settled that no agreement between the parties can prevent the petitioners from enforcing their right given to them under the National charter. In the instant case the petitioners are complaining of infraction of their fundamental right under article 14 of the Constitution of India. It is well settled by the Constitution bench Judgment of the Supreme Court in the case of Olga Tellis V/s. Bombay municipal Corporation and others reported in AIR 1966 Supreme court page 180 that there can be no estoppel against the Constitution. Since the provisions of the Constitution are obviously considered in public interest and are intended to serve a public purpose, the principles of estoppel can have no application to representations made regarding the assertion or enforcement of fundamental rights. It has also been held in- the said judgment that there is no worker of fundamental right in the sense that nothing can barter away the freedoms" conferred upon the citizens by the Constitution. The said Constitution Bench of the supreme Court has gone to the extent of saying that even if there is a concession made by a person in a proceeding whether under a mistake of law or otherwise that cannot create an estoppel against him in that or in any subsequent proceeding. 35. In this case the tri-partite agreement entered into in 1985 was superseded by the subsequent bi-partite agreement of 1988. Then came the said report of the Pay Revision Committee, 1990. As such it is open to the petitioners to contend on the basis of the said report and the subsequent order dated 26th October, 1991 that they are not getting a fair treatment in the hands of the Board inasmuch as regular pay scale is not made available to them. 36. The horizon of Articles 14 and 21 has been widened by various judgments of the Apex Court. 36. The horizon of Articles 14 and 21 has been widened by various judgments of the Apex Court. Any action of the State which is unfair and un-just falls foul of the guarantee of Article 14. Principles of natural justice is also considered a facet of the guarantee under article 14. The right of the petitioner to get a proper pay scale can no longer be denied having regard to the ever expanding sweep of Article 21, the matter of pay scale of workers has to the "tested on the anvil of social justice which is the live fibre of our society today". It has ceased to be a matter of contract between an employer and an employee as has been observed by the Hon ble Mr. Justice kuldip Singh in his judgment in the case of the Workmen V/s. the Management of Raptakos Brett and Co. Limited and others reported in AIR 1992 SC page 504. Therefore, the agreement between the parties cannot be a bar to the filing of this writ petition. 37. Recently in the case of L. I. C. of India V/s. Consumer Educations and research Centre reported in J. T.1995 (4)S. C. page 366 the Hon ble Mr. Justice k. Ramaswamy held that social justice is also a fundamental right. The said observation has been made in paragraph 17 at page 379 of the said judgment and the relevant extract wherefrom are set out below: "interpreting Article 19 (e) vis-a-vis article 25 (2) of the University Declaration of the Human Right and Article 7 of the international Convention of Economic, Social arid Cultural Rights, one of us (K. Ramaswamy, J.) in C. E. S. C. Ltd. V/s. Subhash chandra Bose, (1992) 1 S. C. C.441 at p.462 in para 30, held that the right to social justice is a fundamental right, right to livelihood springs from the right to life guaranteed under Article 21, The health and strength of a worker is an integral facet of right to life. Right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a common man. Right to life and dignity of person and status without means are cosmetic rights. Socio-economic rights are, therefore, basic aspirations for meaningful right to life. Right to social security and protection of the family are integral part of the right to life. Right to life and dignity of person and status without means are cosmetic rights. Socio-economic rights are, therefore, basic aspirations for meaningful right to life. Right to social security and protection of the family are integral part of the right to life. Right to social and economic justice is a fundamental right". In paragraph 32, it was further held that "right to medical care and health for protection against sickness are fundamental rights to the worker. " On this aspect, there was no disagreement by the majority members. In consumer Education and Research Centre v. Union of India, JT 1995 (1) SC 637, it was unanimously held by a bench of three judges that right to health to a worker is an integral facet of meaningful right to life and have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes, his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence of bread-winner to himself and his dependents, should not be at the cost of the health and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workmen. Right to human dignity, development of personality, social protection are fundamental rights to the workmen. Medical facilities to protect the health of the workers are fundamental rights of workmen. It was, therefore, held that "the right to health, medical aid and to protect the health and the vigour of a worker while in service or post retirement is a fundamental right under Article 21 read with Articles 39 (c), 41, 43, 48-A of the constitution of India and fundamental human right to make the life of workmen meaningful and purposeful with dignity of persons". In Regional Director, ESI corporation V/s. Francis De Costa, 1993 Supp (4) SCC at 105, the same view was stated. Security against sickness and disablement is fundamental right under Article 25 of the universal Declaration of Human Rights and Article 7 (b) of the International convention of Economic, Social and Cultural rights and under Articles 39 (e), 38 and 21 of the Constitution of India. " 38. Learned Counsel appearing for the said Board has further urged that the writ court is not an appropriate forum for fixation of pay scale of an employee. " 38. Learned Counsel appearing for the said Board has further urged that the writ court is not an appropriate forum for fixation of pay scale of an employee. The pay scale must be fixed by the employer and if there is any dispute arising out of that, the same has to be adjudicated by the forum provided under the Industrial Disputes act and not before the Writ Court. In support of this contention, reliance was placed on two judgments, one of which is the Full Bench judgment of this court delivered in the case of bishundeo Choudhary and others V/s. State of bihar and others reported in 1995 (1)P. L. J. R. page 123. The controversy which came up for consideration before the Full Bench in the aforesaid case of bishundeo Choudhary (supra) was about the regularisation of employees working under the scheme non-Formal education", a programme of the state Government for the eradication of illiteracy. The Court was concerned with the right of the employees under the said programme for regularisation and also with the question of equal pay for equal work. . The learned Judges of the Full Bench on a detailed consideration of the facts of the case came to the conclusion that the scheme was purely a temporary one for the removal of illiteracy and the persons getting employment under such scheme cannot claim for regularisation. The Court also came to the conclusion that the persons employed under such scheme cannot invoke the principles of equal pay for equal work with the employees appointed as Adult Education Programme supervisor, who belong to a regular cadre. 39. This Court is of the view that the present case of the coal un-loading mazdoors stands on a completely different footing inasmuch as their regularisation has been accepted and they have been treated as regular workers of the said Board and in their favour the Pay Revision Committee has already made recommendation for granting regular scale of pay to the petitioners. 40. The other case which has been cited is one in the case of Rajasthan state Road Transport Corporation and another V/s. Krishna Kant and Others reported in (1995) 5 S. C. C. page 75. 40. The other case which has been cited is one in the case of Rajasthan state Road Transport Corporation and another V/s. Krishna Kant and Others reported in (1995) 5 S. C. C. page 75. Reliance was placed in paragraph 35 of the said judgment where, following the principles laid down in the judgment of premier Automobiles (supra), the Hon ble Supreme Court summarised certain principles where the Court should interfere in the matter relating to Industrial Dispute. 41. As has already been pointed out here, we are not concerned with in industrial dispute. The claim of the petitioners to be given a regular pay scale is no longer in the realm of dispute. The Board authorities, way back in 1981 in its letter dated 5th June, 1981 has recommended grant of the scale of the un-skilled Kalasi to the coal un-loading Mazdoors. The committee of the said Pay Commission set up by the said Board recommends grant of a regular pay scale. The order dated 26th October, 1991 also accepts on principles that a regular pay scale should be granted to the petitioners but the grant of such pay scale is a matter of time. As such the entitlement of the petitioners to get a regular pay scale has been accepted by the authorities of the said Board. 42. Even after such acceptance the same is not given to the petitioners though they do a very onerous and hazardous nature of job by loading and, un-loading coal. This act on the part of the respondents Board authorities is an un-fair act in so far as the case of the petitioners is concerned. As a State and as a model employer the authorities of the Board has an inherent duty to act fairly towards its employees. As has been observed in the case of L. I. C. (supra) "to act fairly is a part of fair procedure envisaged under Articles 14 and 21 of the Constitution of India" (vide paragraph 27 ). The petitioners here are complaining of the aforesaid breach of duty on the part of the authorities of the Board to act fairly towards their right which means that the petitioners here are complaining of infraction of their rights under Article 14 of the Constitution of India. Therefore, this writ petition is maintainable. 43. The petitioners here are complaining of the aforesaid breach of duty on the part of the authorities of the Board to act fairly towards their right which means that the petitioners here are complaining of infraction of their rights under Article 14 of the Constitution of India. Therefore, this writ petition is maintainable. 43. For the reasons aforesaid, this court is of the view that both the writ petitions ought to succeed to the extent indicated below: " (i) The authorities of the Board are directed to grant a regular pay scale to the petitioner as semi-skilled b category workmen within a period of two months from the date of receipt/production of a copy of this judgment. (ii) Such scale should be given to the petitioners with effect from the date of filing of these writ petitions before this court. C. W. J. C. No.7180 of 1992 was filed on 31-7-1992 and C. W. J. C. No.8839 of 1992 was filed on 7-9-1992. Therefore, to all the petitioners the scale be made available from October, 1992. (iii) The arrears of pay which will arise as a result of Introduction of the regular pay scale of the semi-skilled b category workmen are to be made available to the petitioners within a period of six months from the date of introduction of such pay scale as aforesaid. " 44. In the result both these writ petitions are allowed to the extent indicated above. There will be no order as to costs. Petitions Allowed.