Regular Second Appeal No.3054 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: February 10, 2010 State of Punjab & others ...Appellants VERSUS Mangu Ram ...Respondent CORAM: HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.N.D.S.Mann, Addl.A.G.Punjab, for the appellants. Mr.S.K.Sharma, Advocate, for the respondent. ***** RANJIT SINGH, J. This case is of an unfortunate Mangu Ram, who is serving the State in the Maximum Security Jail Lines, Nabha since 1994 as a Cook. A poor person is made to work on daily wages for the last sixteen years. He is working in the Lunger of the jail and cooking food for inmates to earn food for self and his family. State, a model employer, would not tolerate his cry for minimum of pay. State would pay him daily wages and would plead to treat him as such on the ground that there is no post sanctioned. Respondent-plaintiff is Regular Second Appeal No.3054 of 2009 (O&M) : 2 : working for the last sixteen years without a post but is not held entitled to receive due reward for his labour. If this is not exploitation by the State, then what is it? Where can he go and what can he do? His poverty seems to be keeping him in `jail job'. Having spent sixteen years under exploitation, where can he really go now. As if this was not detesting enough, the State has dragged him to this court where he would be poorer by a few thousands, if not more in engaging legal assistance. To cap it all the State counsel scare the court with law laid down by the Hon'ble Supreme Court to say as if the respondent-plaintiff has been given fortune. The facts, in brief, are that Mangu Ram, having worked for sixteen years on a temporary post of Cook, filed a suit for mandatory injunction seeking direction to the defendants-State to pay minimum pay in the pay scale of Cooks plus dearness allowances and for permanent injunction restraining the defendants from withholding minimum of pay in the scale plus dearness allowance or in the alternative the minimum pay and allowances admissible to regular employees. The respondent-plaintiff says that he is in receipt of monthly salary of Rs.2180/-. He would plead that he is compelled to pull on his family expenses by raising loan from private sector at a very high rate of interest. This source has also dried now as nobody is ready to advance loan to him. Respondent accordingly pleaded that his family members are being put to starvation. His father had died as he could not provide medical care. He would refer to the instructions issued by the Government of Punjab dated 23.1.2001 where all the daily wagers and temporary employees in Regular Second Appeal No.3054 of 2009 (O&M) : 3 : any department of Punjab State, who had completed service of three years, were to be regularised. The respondent-plaintiff would plead that he had completed this period and was entitled to regularisation and so also to the pay and other allowances. He accordingly served a notice under Section 80 CPC and when he failed to get response filed this suit. The State, as could be expected from it though it is supposed to be a model employer, took a preliminary objection that no regular post of Langri/Cook in the District Jail, Nabha is available. Rather the respondent-plaintiff is blamed for coming to the court not with clean hands. The jurisdiction of the court was also challenged. On merits, it was pleaded that respondent-plaintiff is being paid from contingency funds as he has been appointed on daily wages. As per reply, he has been paid daily wages from 21.4.19094 to 30.9.2003. The averment that respondent-plaintiff is receiving a monthly salary of Rs.2180/- is denied. It is stated that the wages for the remaining period were not paid for want of sanction from the State Government. It is also stated that request for sanction of the post of Cook on daily wages at the rate fixed by Deputy Commissioner from 1998 to 28.2.2005 has been taken up and was pleaded that as and when the sanction would be received, the respondent-plaintiff shall be paid his due wages. The issuance of letter dated 23.1.2001 is admitted, but the claim of the respondent-plaintiff for regularisation is denied. The trial court tried the suit on the following issues:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the plaintiff is entitled to permanent injunction Regular Second Appeal No.3054 of 2009 (O&M) : 4 : as prayed for? OPP 3. Whether the plaintiff has not come to the court with clean hands? OPD 4. Whether the Hon'ble Court has no jurisdiction to decide the matter? OPD. 5. Relief. The suit of the respondent-plaintiff was decreed holding him entitled to daily wages in the minimum of regular pay scale against post of Langri/Cook from defendants w.e.f. 1.10.2003 till date. The State being a chivalrous litigant filed an appeal before the District Judge, Patiala. The Appellate Court found no ground to interfere in the judgment and decree under appeal and accordingly dismissed the same. The Ist Appellate Court further directed that decreed amount be paid within a period of two months to the respondent-plaintiff. The State has now filed this Regular Second Appeal. The only submission that has been made before me is that the respondent-plaintiff, being employed on daily wages, can not be allowed pay at any regular scale meant for regular employees. In support, the State counsel has drawn my attention to Avas Vikas Sansthan and another Vs. Avas Vikas Sansthan Engineers Assn. And others, 2007(1) SLR 312. The case before the Hon'ble Supreme Court relates to a registered society, registered under the Societies Registration Act. The objects of the society were to collect information regarding low cost technology for construction of houses. The Society was dissolved and went into liquidation. The employees in this case felt Regular Second Appeal No.3054 of 2009 (O&M) : 5 : that their services might be terminated and so they filed writ petition in the High Court pleading that the society is only an agent of State Government of Rajasthan and the services of the employees of the State Government/Rajasthan Housing Board could not be terminated. Further plea was that if any termination order was to be passed, it be quashed and they might be retained in service with the benefit of their past service. Incidental, issue arose before the Hon'ble Supreme Court in regard to rights of daily wagers for their re- employment like regular employees. It is observed that daily wagers would not have right to be re-employed and that the daily wage employees cannot, by any stretch of imagination, be put on par with regular employees under any law prevalent as of date. These observations were made in the background of a finding returned by Division Bench of High Court of Rajasthan that daily wage employees can be treated on par with regular employees and thus, were given various reliefs. This was found to be wrong and erroneous under law by the Supreme Court. The ratio of law as would emerge from this judgment apparently has no applicability to the fact situation in this case. In the case before Hon'ble Supreme Court, the daily wagers were seeking equation with the regular employees of the society in the background of the relief claimed in the writ petition, which was allowed by the High Court. The observation by Supreme Court was made when daily wagers sought to be equated with regular employees for re-employment. There was no issue for grant of pay in the minimum scale to daily wage employees. Can this judgment be construed to say that a person can be made to work for sixteen years but still would not be allowed some Regular Second Appeal No.3054 of 2009 (O&M) : 6 : minimum wage, which is essential for him to subsist. The employees before the Supreme Court were employees of the society and not of Government. They were asking for being treated as employees of the State. Question here also is not whether a regular or daily wager can be equated with a regular employee. Issue is, if a person can ask for to be paid minimum of the scale on the basis of equal pay for equal work. In fact, a larger issue would arise in this case and it would relate to the right to life and liberty of an individual. Would not it amount to taking away the right of the respondent-plaintiff to life when he is not allowed wages of his labour which are essential to subsist. Choice for majority of people like the plaintiff is either to starve or take employment on whatever terms it is offered. Can the State avoid the mandate of the Constitution of equality or of life and liberty clauses? Right to life includes right to livelihood. In Olga Tellis and others Vs. Bombay Municipal Corporation and others, AIR 1986 Supreme Court 180, the Supreme Court has held:- “The sweep of the right of life conferred by Art.21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of Regular Second Appeal No.3054 of 2009 (O&M) : 7 : depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.” After all, the respondent-plaintiff is working for the State for the last sixteen years. Is he not entitled to seek right to live with dignity and ask for two decent square meals a day for him and his family members. Long ago, the Hon'ble Supreme Court deprecated this attitude on the part of the Central Government, when it was urged by the Government that they would pay only daily wages and not the same wages, though all did identical work. Let us note what was said in Dhirendra Chameli & Anr. v. State of U.P., (Civil Writ Petition No.4817 of 1983). The Court said that it is an all too familiar argument with the exploiting class and a welfare State committed to a socialist pattern of society cannot be permitted to advance such an argument. In Surinder Singh and another Vs. The Engineer in Chief, C.P.W.D., and others, AIR 1986 Supreme Court 584, the Court repelled the contention that doctrine of equal pay for equal work was a mere abstract doctrine and that it was not capable of Regular Second Appeal No.3054 of 2009 (O&M) : 8 : being enforced in a Court of law. It is observed:- “.......The Central Government like all organs of the State is committed to the Directive Principles of State Policy and Art.39 enshrines the principle of equal pay for equal work. In Randhir Singh V. Union of India, (1982) 3 SCR 298: (AIR 1982 SC 879), this court had occasion to explain the observations in *Kishori Mohan Lal Bakshi v. Union of India (supra) and to point out how the principle of equal pay for equal work is not an abstract doctrine and how it is a vital and vigorous doctrine accepted throughout the world, particularly by all socialist countries. For the benefit of those that do not seem to be aware of it, we may point out that the decision in Randhir Singh's case has been followed in any number of cases by this court and has been affirmed by a Constitution Bench of this court in D.S.Nakara v. Union of India, (1983) 2 SCR 165: (AIR 1983 SC 130). The Central Government, the State Governments and likewise, all public sector undertakings are expected to function like model and enlightened employers and arguments such as those which are advanced before us that the principle of equal pay for equal work is an abstract doctrine which cannot be enforced in a court of law should ill come from the mouths of the State and State Undertakings.” * AIR 1962 SC 1139 Appellant-State must ask itself a question whether one can reasonably subsist with Rs.2000/- per month, which is a sum being paid to the respondent. Respondent has not asked for Moon and which has been allowed to him. He has prayed for being paid the minimum in the pay scale which concededly would work out to be Rs.2600/-. If that is granted, it would obviously not mean that he is being equated with any regular employee. The respondent-plaintiff has not made any prayer for his regularisation. Is it fair to ask a person to work continuously for sixteen Regular Second Appeal No.3054 of 2009 (O&M) : 9 : years and still make a ground before the court that there is no post available. The need of the post is quite clear. The counsel for the respondent has rightly referred to the case of Vivek Singh Vs. Maharshi Dayanand University and others, 2006(4) S.C.T.820. It is held that daily wagers could also not be denied equal pay for equal work. This was the precise reason taken into consideration by the Division Bench of this court that daily wagers working against existing posts for a long time are entitled to salary in minimum of the regular pay of the post. It is held that the denial of minimum pay to such an employee would be highly arbitrary and discriminatory. The Court, while taking this view has relied upon some observations made in the judgment in the case of Secretary of Karnataka Vs. Umadevi, (2006) 4 SCC 1. The courts below have rightly held the respondent- plaintiff entitled to minimum of the scale with effect from the year 2003 and this view would get support from ratio of law laid down in above cases. The substantial question of law as canvassed is squarely answered above and would not call for any further adjudication. The Regular Second Appeal is, therefore, dismissed. February 10, 2010 ( RANJIT SINGH ) ramesh JUDGE