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Himachal Pradesh High Court · body

2004 DIGILAW 359 (HP)

PREM CHAND v. STATE OF H. P.

2004-12-30

BAKHSHISH KAUR, D.S.AMIST

body2004
JUDGEMENT Mrs. Justice Bakhshish Kaur, Chairman: The original application under Section 19 of the Administrative Tribunals Act 1985 is for payment of wages for rate fixed by the government vide order dated 15.5.1990 Annexure A-1 and Annexure A-2 dated 23.8.1991. The applicant claims same wages as are given to the regular hand. 2. The applicant was engaged as Mali in the year 1983. Since then he is continuously working without any break. He used to get ten rupees daily in the year 1986 which was increased to Rs.12/- and then to Rs.15/- in the year 1991. He was getting Rs.22/- w.e.f. April, 1991. Presently he is getting only Rs. 22/-. The government of Himachal Pradesh vide notification dated 15.5.1991, Annexure A-1 has fixed daily wages of daily rated workers which includes Chowkidar, Sweeper, Mali etc. were fixed at the rate of Rs. 34.50 Paise. It was further increased to Rs. 37.75 Paise vide notification annexure A-2 dated 23.8.1991. Therefore, he is claiming wages at the rate of Rs. 34.50 paise w.e.f. 1.5.1990 to 1.5.1991 and Rs.37.50 Paise w.e.f. 1.5.1991 as per notification annexure A-1 and A-2 respectively because there is no difference between the work performed by him and work performed by the Mali on regular basis. 3. The respondents while resisting the OA has raised preliminary objection that the applicant is not performing as Mali. He is performing as a daily rated Mazdoor, therefore, rate fixed by the government vide annexure A-1 and A-2 are not applicable to the applicant. He is drawing Rs.22/- per day as he is un-skilled labourer and wages are being paid under the Minimum wages Act. The applicant being daily rated workman is not holding the civil post. There is no post of regular Mali against which the services of the applicant can be regularized. Therefore, OA is liable to be dismissed. 4. We have heard Sh. S.K. Khanna, learned counsel for the applicant and Mrs. Abhilasha Kumari, learned Additional Advocate General for the respondents. 5. The consistent stand taken by the applicant is that-he was engaged as Labourer on daily wage basis in nurseries in Kandaghat Social Forestry Range Vidhan, Kot and Bani w.e.f. 1985 and since then he is continuously working without any break. At that time he used to get Rs.12- which was enhanced to Rs.15/- then Rs.22/- w.e.f. April, 1991. The respondents have admitted that he is working since 1985. At that time he used to get Rs.12- which was enhanced to Rs.15/- then Rs.22/- w.e.f. April, 1991. The respondents have admitted that he is working since 1985. If he is a daily rated Mazdoor working in the Forest Plantation Nursery, the respondents should have discontinue his services as not required any more as he was not working as Mali. In fact he is continuously performing the duties of a Mali since 1985 which shows that he has been working as such. As per notification annexure A-1 the rate of daily wages employees were revised w.e.f. 1.5.1990. On of the categories mentioned at Sr. No.9 is that Mali, Chowkidar, Sweeper and others class-iv employees. Their wages were revised to Rs.34.50. Similarly it was further revised vide annexure A-2 as referred to above. Since the applicant is performing the same and similar job which is being performed by other class-IV employees and they are being paid enhanced wages from time to time, then the applicant cannot be discriminated. 6. In Tirath Raj and others vs. H.P. State Electricity Board and others, ILR 1987 HP 485 after referring a number of decisions of the Honble Supreme Court the Division Bench of Honble High Court of H.P., has said that such type of discriminatory treatment is made out to the daily wages employees of H.P. State Electricity Board. This criteria is not good in the matter of payment of wages and daily rated cannot be discriminated. 7. This criteria is not good in the matter of payment of wages and daily rated cannot be discriminated. 7. The Apex Court after examining the number of decision reported as "Randhir Singh v. Union of India, Air 1982 SC 879", "D.S. Nakara and others vs. Union of India, AIR 1983 SC 130", "P Savita and others vs. Union of India and others, AIR 1985 SC 1124", "Daily Rated Casual Labour employed under P and T Department, through Bhartiya Dak Tar Mazdoor Manch vs. Union of India and others, AIR 1987 SC 2342", "Delhi Municipal Karmchari Ekta Union (Regd.) vs. P.L. Singh and others, AIR 1988 SC 519" "Jaipal and others vs. State of Haryana and others, AIR 1988 SC 1504" the court held: "The aforesaid comprehensive survey of the case law on the subject discloses that within a period of a quarter of a century the doctrine of equal pay for equal work has passed through a conscious process of reformation and refinement as a result of the gradually forwarded looking posture of the apex Court. What was regarded once as a mere golden thread running through the Preamble and the Directive Principles of State of policy and probably believed to be a sheer rhetoric or demagogic slogan and not a right enforceable as such has now been woven into the fabric of, Fundamental Rights guaranted by Articles 14 and 16 and hence a constitutional goal attainable by resort to the constitutional remedies provided by Articles 32 and 226, the former being a Fundamental Right in its own turn. The right can be invoked and enforced through the judicial process in cases of unequal pay or scales of pay based on no classification or irrational classification, though those drawing the different wages or different scales of pay do the same or broadly similar work." 8. In Daily Rated Casual Labour employed under P and T Department through Bhartiya Dak Tar Mazdoor Manch vs. Union of India and others case supra an argument of somewhat similar nature in reply to a claim for equal pay for work was repelled in the following manner: "We are of the view that such denial amounts to exploitation of labour. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual labourer on starving wages. It may be that the casual labourer has agreed to work on such low wages. That he has done because he has no other choice, ft is poverty that has driven him to that state. The Government should be a model employer. We are of the view that on facts and in the circumstances of this case the classification of employees for purpose of paying less than the minimum pay payable to employees in the corresponding regular cards particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable." 9. Mr. D.IC Khanna, learned counsel for the applicant has also drawn out intention to "Rakesh Kumar and another vs. State of Himachal Pradesh and others 1994 (1) Shimla Law Cases 391 wherein daily wages employee performing the same and similar work ought to be paid equal wages on the principle of equal pay for equal work. Mr- Khanna has also referred to decision tendered in OA-1157/92 Sanjeev Gupta vs. HPSEB whereat the applicant was allowed the wages on enhanced rates to which he was entitled issued from time to time while deciding the OA reference was also made to CWP No. 693/94 Rajiv Guleria vs. HP. State Electricity Board and others. In the writ objections was taken that wages cannot be paid to the petitioner because his name was not sponsored by Employment Exchange and he is not against the regular sanctioned post This fine of argument was not accepted and the observations made by tie Hon’ble Judges, for facility of reference is reproduced as under: “These conditions, in our opinion, have no rational nexus with the subject matter of the dispute. The wages are given only because the petitioner has been employed. That he was employed by any other method than seeking name through the Employment Exchange is not his fault Then, it is very difficult to say that persons legally employed by other means than through the Employment Exchange are not to be treated equally with persons employed through Employment Exchanges. Article 14 of the Constitution, no doubt, permits classification but classification cannot be arbitrary and unjustified, ft must have rational nexus with tie object sought to be achieved." 10. Article 14 of the Constitution, no doubt, permits classification but classification cannot be arbitrary and unjustified, ft must have rational nexus with tie object sought to be achieved." 10. As already observed that the applicant is performing the duties of Mali since 1985 thus denial of wages which are being paid to 8ie others performing the same nature duty would amount to exploitation of labourer. The application has agreed to work on such low wages and continued as such since 1985 then it is poverty that has driven him to that state, otherwise he would not work on such low wages and for that fact government being model employer should take into consideration all these facts instead of denying him, the benefit of equal pay for equal work. Moreover in view of the notification off notification annexure A-1 and A-2 have been issued by the government The applicant is entitled to the enhanced rates. Above being the position, Original Application is allowed Respondents are directed to work out the difference between the wages paid to the applicant and to be paid to the applicant enhanced rates which he is entitled on the basis of the notification annexure A-1 and A-2 issued from time to time and pay the balance amount within two months from the date of receipt of the copy of order. In case the respondent fail to pay the amount within above stipulated period, the applicant will be entitled to recover the same alongwith interest @ 6% pa from the date it become due till its realization.