IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1404 of 1987 with SPECIAL CIVIL APPLICATION No 3631 of 1990 For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE B.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- GMDC EMPLOYEES UNION Versus GUJ. MINERAL DEVP.CORPORATION -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1404 of 1987 MR SB VAKIL for Petitioner MR KM PATEL for Respondent No. 1 MS DEVANI for Respondent No. 2 MR TR MISHRA for Respondent No. 3, 4 2. Special Civil ApplicationNo 3631 of 1990 MR KM PATEL for Petitioner MR SB VAKIL for Respondent No. 1 RULE SERVED for Respondent No. 2, 3, 4 -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE B.C.PATEL Date of decision: 20/06/2000 C.A.V. JUDGEMENT (Per Patel, J.) Special Civil Application No. 3631 of 1990 is filed by Gujarat Mineral Development Corporation (hereinafter referred to as the Corporation) under Article 226 of the Constitution of India praying for a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the award made by the Presiding Officer, Industrial Tribunal at Ahmedabad on 30.12.1989 in Reference (ITC) No.28 of 1984 (Annexure 'G'). By an amendment, it was further prayed to modify the award at Annexure 'G' in terms of the settlement (Annexure 'I' Colly) or to dispose of this petition in terms of the settlement at Annexure 'I'. 2. Special Civil Application No. 1404 of 1987 is preferred by Gujarat Mineral Development Corporation Employees Union (hereinafter referred to as the trade Union) against the Corporation interalia praying for a writ of mandamus or any other appropriate writ, direction or order directing the Corporation to pay House Rent Allowance as well as Project Allowance to all the daily-rated employees on the same basis as is being paid to the monthly rated employees. The petitioner trade Union has further prayed to declare the exclusion clause in the definition of term 'employee' in Rule 3(k) of the Service Rules as illegal, arbitrary, discriminatory, opposed to the public policy, ultra vires, illegal and in violation of section 23 of the Contract Act and non-est in the eye of law. The trade Union has also prayed to direct the respondent Corporation to absorb the daily rated employees and to pay them salary and allowance on the same basis as are being paid to the monthly rated employees. Another prayer made in the petition is for a direction to the Corporation to regularise the pay and allowance of the daily-rated employees on the basis as are being paid to the monthly rated employees from the initial entry/appointment of the daily rated employees in the service of the respondent Corporation and to pay them arrears of difference in salary and all other consequential benefits with 18% interest. 3. On behalf of the trade Union, it is contended that the daily rated employees employed by the Corporation are treated differently, and, therefore, for the enforcement of their constitutional rights guaranteed under Article 14 and 21 of the Constitution of India, the petition is filed. On behalf of the Corporation affidavits are filed in detail justifying its action. The Corporation has contended that it is following the procedure laid down under law and have committed no breach of any provision of law at any time, and as per the settlement entered into with other trade Unions having majority of workmen, the benefits available on account of settlement are being extended to all the workmen. There is a reference of the same in the award. During the pendency of the petition, there was a further settlement, and, therefore, in the petition, prayer is made to modify the award in terms of the settlement. It was further contended that under the Industrial law, the Forum was approached and after adjudicating the disputes ultimately award is drawn. In view of this, the petition filed by Union should be dismissed. 4. Mr. Vakil, learned advocate appearing for the petitioner, trade Union, contended that the settlement is not binding to the members of the Union. He further submitted that the members of the petitioner trade Union are working with the Corporation on daily wages since number of years at different projects undertaken by the Corporation. It is contended that the mines wherein the members of the trade Union are working are situated in tribal areas. The daily rated workmen are absolutely illiterate, uneducated and are from downtrodden and weaker sections of the Society. It is contended that as the workmen belong to Class-IV, it is bounden duty of the respondent Corporation to pay the same salary which is being paid to the regular Class IV workmen of the Corporation who are monthly rated. It is further contended by Mr. Vakil that the consistent practice followed by the Corporation shows that even the employees whose service conditions are governed by the Industrial Employment (Standing Orders) Act, 1986 are being paid allowances such as H.R.A. and Project Allowance. In paragraph 7 of the petition, it is further contended that the Standing Order set out the following six categories of workmen: 1. Permanent Workmen 2. Probationers 3. Temporary workmen 4. Casual workmen 5. Substitute or Badli workmen 6. Apprentice or Trainees 4.1 Workmen other than casual workmen are sub-classified as follows: 1. Monthly rated monthly paid workmen 2. Daily rated weekly paid workmen 3. Daily rated daily paid workmen 4. Piece-rated weekly paid workmen 5. Piece-rated monthly paid workmen 5. It is contended that the Standing Order covers the service conditions of monthly rated employees as well as daily rated employees. Service Rules framed in exercise of the powers conferred by the Articles of Association and thus the same is contractual in nature and character. It is contended that employees as defined are entitled to benefit under the service rules and they cannot be excluded. The said exclusion clause results into gross discrimination. 6. It is contended by Mr. Vakil that trade Union which is of majority of workmen contracting on behalf of the workmen cannot contract when a workman himself cannot have waived fundamental rights. This submission is based on the decision of the Apex Court in the case of BASHESHAR NATH vs. I.T. COMMR reported in AIR 1959 SC 149. It is contended by Mr. Vakil that if individually each workman would have agreed, even then the same would have been in breach of the fundamental right. It cannot be said that the same have been contracted in accordance with law. Mr. Vakil further submitted that looking to the fact that other workmen similarly situated are being paid house rent allowance and project allowance, there is no earthly reason as to why daily rated workman should not be extended the said benefit. 7. As against this, on behalf of the respondent Corporation, Mr. Patel learned advocate has pointed out from the affidavit of C.J. Pandya, Personnel Officer of the Corporation that the petitioner Union has already resorted to the machinery under the Industrial Disputes Act, 1947 (hereinafter referred to as the ID Act) by raising Industrial Disputes for payment of Project Allowance, H.R.A. medical scheme etc. The Charter of Demand dated 15.12.1985 raising 59 different demands including H.R.A., and Project Allowance, ultimately culminated in Failure Report by Conciliation Officer on 21.1.1987. It is submitted that the membership of the petitioner trade Union consists of only 10% of the workmen. 87% of the daily rated workmen of the Corporation and 90% of the monthly rated workmen are the members of Gujarat Rajya Khanij Karmachari Sangh (hereinafter referred to as the Sangh). The said Sangh submitted a charter of demand dated 24.12.1985 raising in all 48 demands including H.R.A., Medical scheme, leave encashment. One of the demands was for revision of wages. Settlement was arrived at with recognised Union in respect of monthly rated workmen and daily rated workmen. There are different settlements for different projects and Mines though the benefits extended are identical. There are in all 9 settlements which were valid upto 31.12.1989, in respect of daily rated workers outside the conciliation proceedings and the same are registered as required by section 2(p) of the ID Act read with relevant rules. 8. On behalf of the Corporation, it is pointed out that the daily rated workmen are unskilled "labourers" or "Miners" or "Helpers". It is further pointed out that out of 2301 daily rated workers only 81 were either skilled or semi-skilled workmen. Out of this 81, only 7 workers were doing work which is same or similar to that performed by the monthly rated employees. It is pointed out in the affidavit that as on the date of swearing the affidavit, there was not a single daily rated workmen in any of the project of the Corporation in the semi-skilled or skilled category or any other category doing work similar or same as performed by the monthly rated employees. It is pointed out that the daily rated helpers and miners are engaged in the work of excavating minerals. There is not a single monthly rated helper or miner carrying out similar work, that is of excavating mineral or digging the mines and hence there is no question of comparison. It is submitted that in this view of the matter, the contention raised by Mr. Vakil that there must be "equal-pay-for-equal-work" cannot be accepted. 9. It is further submitted that attempt to compare the work of daily rated labourers and miners with that of sweepers, peons and watchmen and the like is untenable. It is pointed out that persons working in the category such as Sweepers, watchmen and peons are on the regularly sanctioned post created by the Board of Directors and are drawing salary in the pay scale fixed from time to time. Duties and functions are quite different. There is vast difference so far as the quality and nature of work is concerned. Degree of liability in both the categories cannot be compared. So far as Class IV employees are concerned, working such as sweepers, peons and watchmen and the like categories are on sanctioned post, recruitment of which is through regular selection procedure. Persons selected have to apply and have to go through a test taken by the selection committee or appointing authority whereas the daily rated workers require no qualification. Persons working on the sanctioned post have minimum qualification and their services are transferable. So far as daily rated labourers are concerned, they are not subject to transfer. In the affidavit it is pointed out that there is age limit, minimum qualification and other requirements insofar as peons, watchmen and sweepers and like categories are concerned. For daily unskilled labourer, there is no such limit. 10. In the instant case, it is further pointed out that Mines are situated in very interior part of the State and tribal areas where people would not like to come for work whereas the daily labourers belong to the same area and they are not required to migrate for work. Persons coming from other areas are required to be offered attractions by way of HRA and Project allowance. 11. At pages 193 and 194, categories of employees are indicated with the pay scales. It is pointed out that the names of 7 daily rated workers who are working as pump operators, watchmen and sweeper are given at page 228 Annexure V. It is submitted that out of these 7 persons, 3 persons are working as Pump operators, three as Watchman and one as sweeper and all these seven persons are working at Lignite Project, Rajpardi. It is further pointed out that there are 7 projects of the Corporation; Out of 2301 daily rated workers, 2212 are unskilled, 71 are semi-skilled and 10 are skilled workers. It is further pointed out in the affidavit in paragraph 6 that the daily rated labourers or miners who are large in number, and their pay packet is not less than others. It is submitted that the total pay packet of a peon, a sweeper or a watchman is less than the daily rated workmen. Example is quoted to indicate this at page 413. It is further pointed out that daily rated labourers are not working for the whole day. They complete their work of minimum quota in 3 to 4 hours and go away for agricultural work or other work for earning. Working more than quota results in further pay. They are not required to work on full time basis. It is further pointed out that in view of the settlement, they are also getting incentives. They are not required to work for a specific period but as quantity of work is fixed, they are required to complete the quota of the work and therefore many times they become free and engage in other jobs and they are earning more than a watchman, a peon or a sweeper. Thus others, though are required to have minimum qualification and are selected after passing the test, do not always necessarily draw more than the daily rated workman. 12. It is contended by Mr. Patel that the daily rated workmen are not on sanctioned post and therefore they cannot claim benefit but at the most they are entitled to get minimum wages, and in that view of the matter also, there is no question of discrimination. 13. Mr. Vakil submitted that as pointed out by the Apex Court in the case of RANDHIR SINGH vs. UNION OF INDIA reported in AIR 1982 SC 879, equal pay for equal work should be properly applied to cases of unequal scales of pay based on no classification or irrational classification. The Apex Court has pointed out in paragraph 6 as under: "We concede that equation of posts and equation of pay are matters primarily for the Executive Government or expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments." 14. In the instant case, the daily rated workmen though working at seven different sites cannot be compared with other Class IV category employees where nature of work, quality of work, reliability of the work etc. are quite different. As indicated above, Class IV employees are to be appointed by inviting applications and have to pass through a test. Minimum qualification is essential and they are transferable. These aspects are important aspects to be kept in mind to decide whether the persons are similarly situated or not. Daily rated workmen in the instant case are not selected after a test and are not required to have minimum qualification. Their functions and duties are not comparable. There is no question of transfer. They are not required to work for a period for which others are required to work. 15. Mr. Vakil pressed into service another decision of the Supreme Court in the case of DHIRENDRA CHAMOLI vs. STATE OF U.P. reported in (1986) 1 SCC 637 in support of his contention that the principle of equal pay for equal work must be made applicable in the instant case also. In that case, the persons were engaged by Government in different Nehru Yuvak Kendras in the country performing the same duties as performed by regular Class IV employees against sanctioned posts. In the instant case, we find from the record that the duties performed by Class IV employees such as Peons drivers and sweepers are quite different than the duties performed by unskilled labourers or miners. Therefore, this case is of no assistance to Mr. Vakil. 16. Mr. Vakil drew our attention to a reported decision in the case of M/S. MACKINNON MACKENZIE & CO. LTD. vs. AUDREY D'COSTA reported in AIR 1987 SC 1281. In our opinion, the decision in question is of no assistance to Mr. Vakil. In that case, the case of Stenographer of either sex performing the same work or of similar nature were paid different salary due to settlement between the Company and the Union. The Court pointed out that the claim of equality should not be denied on trivial grounds. One has to look at the duties actually performed. In making comparison the authorities should look at the duties performed generally by men and women. That was a case of sex discrimination where men and women doing similar kind of work were paid differently. In paragraph 7 of the judgment, the Court pointed out that: " .... Where, however, both men and women work at inconvenient times, there is no requirement that all those who work e.g. at night shall be paid the same basic rate as all those who work normal day shifts. Thus a woman who works days cannot claim equality with a man on higher basic rate for working nights if in fact there are women working nights on that rate too, and the applicant herself would be entitled to that rate if she changed the shifts." 17. In the instant case, there is no question of similarity of work or timings and there is no question of sex discrimination, and, therefore, this decision is of no assistance to Mr. Vakil. 18. Mr. Vakil also placed reliance on the decision in the case of BHAGWAN DASS vs. STATE OF HARYANA reported in AIR 1987 SC 2049 and submitted that equal pay cannot be denied on the ground that the mode of recruitment was different. In the instant case, there is no question of mode of recruitment so far as daily rated labourers are concerned. In the aforesaid case, the Court has pointed out that if the persons are discharging similar work, then merely because mode of recruitment is different, it should not come in the way of getting equal pay. In the facts of this case, this decision is of no assistant to Mr. Vakil. 19. Mr. Vakil drew our attention to another decision of the Supreme Court in the case of DAILY R.C. LABOUR, P & T DEPTT., vs. UNION OF INDIA reported in AIR 1987 SC 2342 and submitted that there is hostile discrimination. In that case, casual labourers were rendering the same kind of services which were being rendered by regular employees doing the same type of work. In the facts of the present case, that is not the situation, and, therefore, this decision is of no assistant to Mr. Vakil. 20. Mr. Patel, learned advocate appearing for the Corporation submitted that the petitioner has not placed the relevant decision before the Court. Mr. Patel submitted that even if temporary daily rated employees were doing similar work, they were held not entitled to the same benefits which were being extended to the regular employees. The Apex Court, in the case of GHAZIABAD DEVELOPMENT AUTHORITY vs. VIKRAM CHAUDHARY reported in (1995) 5 SCC 210, in paragraph 8, has pointed out as under:- "Since they are temporary daily wage employees, so long as there is no regular posts available for appointment, the question of making pay on a par with the regular employees does not arise. But the appellant should necessarily and by implication, pay the minimum wages prescribed under the statute, if any, or the prevailing wages as available in the locality". 21. From the decision sited by Mr. Patel it appears that the daily wagers, in the absence of posts although performing duties like that of regular Class IV employees, are not entitled to regularisation. They are not entitled to parity in pay with regular employees. 22. The Apex Court in the case of STATE OF UP AND OTHERS vs. U.P. MADHYAMIK SHIKSHA PARISHAD SHRAMIK SANGH & ANR. reported in (1996) 7 SCC 34 pointed out that :- "Unless the posts are created they are not entitled to be fitted into any regular posts. The performance of the manual duty may be like the duty of regular Class IV employees. However, they are not entitled for the payment of equal wages so long as there are no posts created in that behalf. We can understand that if there are vacant posts available in Class IV and they are filled up by appointing them to these posts on daily wages performing the same duties of regular employees perhaps there may be justification for issuing directions for regularisation of their services according to rules and payment of salary to the post to which they are fitted. But in view of the fact that no posts are created or existing, we cannot uphold the direction issued by the High Court to pay equal wages or to regularise their services." 23. Mr. Patel, learned advocate submitted that in the instant case, in view of the fact that unskilled daily rated labourers not discharging similar duties as that of Class IV are not entitled to claim any benefit except the wages under the Minimum Wages Act. Mr. Patel submitted that they are paid much more than the Minimum Wages Act. 24. Mr. Patel submitted that the submission made by learned advocate Mr. Vakil with regard to equal pay for equal work is without any merit in the instant case. Relying on the decision of the Apex Court in the case of STATE OF HARYANA vs. KASMER SINGH reported in (1996) 11 SCC 77, Mr. Patel submitted that the Apex Court held in paragraph 10 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 services 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 fulfil 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 services 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". 25. Mr. Patel submitted that considering the aforesaid decision of the Apex Court and the facts of the present case, it is very clear that the Union cannot rely on the principle of equal pay for equal work. 26. In view of the principles laid down by the Apex Court in the case of STATE OF HARYANA vs. JASMER SINGH (supra), this Court is unable to agree with the submissions made by learned advocate Mr. Vakil insofar as it relates to the breach of the principle of equal pay for equal work in the facts of the present case or the breach committed by the Corporation insofar as the provisions contained in Article 14 of the Constitution of India are concerned. 27. As indicated earlier, it is very clear that majority of the workman working as daily rated labourers through their Sangh entered into various agreement to solve their labour disputes. They entered into agreements, and therefore, it cannot be said that any dispute survives now. 28. One has to remember that this is a matter governed by the provisions contained in the Industrial law and the ID