IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 448 of 2005 Judgment reserved on 22.7.2008 Date of Decision: July 24, 2008 ________________________________________________________________ H.P.Housing & Urban Development Authority … Petitioner. Versus Nisha Sharma & ors. … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K.Ahuja, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. Shrawan Dogra, Advocate. For the Respondent(s) : Mr. Sunil Mohan Goel, Advocate. ________________________________________________________________ Deepak Gupta, J This petition is directed against the order of the learned H.P. State Administrative Tribunal dated 1.3.2005 passed in OA No. 1432 of 2003 whereby the petitioner- Board has been directed to pay daily wages to the applicants- employees by treating them as Tracer draftsmen in accordance with various notifications issued under the Minimum Wages Act from time to time. Briefly stated the facts of the case are that all the private respondents were engaged in the H.P.Nagar Vikas - 2 - Pradhikaran which was later merged into the petitioner- authority as Beldars. The case set up by the employees was that though they were engaged as Beldars , they in fact were working as Tracer draftsmen. They, therefore claim that they should be paid minimum wages fixed for a Tracer draftsman and not the wages payable to a daily wage Beldar/Mazdoor. The employees had initially filed OA No.1724/99 before the learned Tribunal which was directed to be treated as a representation. This representation was rejected and thereafter the present employees filed a fresh OA being OA No.1432 of 2003. It is undisputed that all the respondents fulfill the educational qualifications required for the post of a Tracer draftsman. They were, however, initially engaged on muster- rolls as Beldars. According to the respondents, though they were engaged as Beldars, they were actually working as Tracer draftsmen and are entitled to salary on this basis. The learned Tribunal has recorded a finding of fact that the employees actually worked as Tracer draftsmen and accordingly issued directions that they are entitled to daily wages as Tracer draftsmen and, therefore, directed that difference in wages be paid to them. - 3 - The main contention of Shri Shrawan Dogra, learned counsel appearing on behalf of the petitioner - authority is that the applicants/employees were engaged as Beldars. They continued to function as Beldars and, therefore, they were not entitled to the salary payable to Tracer draftsman. It has been vehemently contended that the respondents had not been engaged as per the service rules of the authority or its predecessor and, therefore, the employees are not entitled to the wages as granted to them. It is also contended that the learned Tribunal erred in equating the work being done by the employees with the duties of a tracer draftsman. According to Shri Dogra, the learned Tribunal was not competent to equate the work of a Beldar with that of a tracer draftsman and this could only be done by an expert body. In support of his contentions, Shri Shrawan Dogra has relied upon a number of authorities. In (1989) 4 SCC 459, Harbans Lal & others v. State of H.P. & others., the apex Court held that the principle of ‘equal pay for equal work’ is not one of the fundamental rights expressly guaranteed by the Constitution of India. It would be pertinent to mention that the apex Court also held that the claim for equal pay can be sustained only if the impugned discrimination is within the same establishment - 4 - owned by the same management. The apex Court had rejected the clam of the petitioners who were employees of the HP State Handicrafts Corporation that they should be paid equal wages equal to their counterparts in the State services. In our view, this judgment has no applicability to the facts of this case. In (1986) 7 SCC 577, Ashwani Kumar & others v. Sate of Bihar and others, the apex Court held that a person though appointed on casual basis needs to be appointed to the post or vacancy according to the rules. There can be no quarrel with this preposition of law. However, the question as to whether an employee not appointed in accordance with the rules can claim minimum wages as fixed under the Minimum Wages Act has not been decided in this case at all. In (1996) 11 SCC 77, The State of Haryana and others v. Jasmer Singh and others, the Apex Court considered the question as to how different posts are to be evaluated for deciding whether the employees are entitled to ‘equal pay for equal work’ or not. It was also held that the employees who were working as daily rated workmen cannot be equated at par with the regular service. This authority is also not applicable to the facts of the present case. - 5 - Similarly, the judgment of the apex Court in 2001 (8) 322, , Dwarika Prasad Tiwari v. M.P.State Road Transport Corporation and another, 2003 (1) SCC 250, State of Orissa and others v. Balaram Sahu and others, and 2003(6) SCC 123, State of Haryana and another v. Tilak Raj and others, are not applicable to the present case. In none of these cases the Apex Court dealt with the question as to whether an employee even if not appointed as per the rules is entitled to Minimum Wages fixed under the Minimum Wages Act, 1948. The employees are not claiming equal pay with those employees engaged on regular basis. They only claim that they were actually working as Tracer draftsmen and should be paid the minimum wages for such post. The employees are also not claiming that their post should be equated with some other posts. All that they are saying is that though they were engaged as Beldars, they were made to do the work of Tracer draftsmen and, therefore, must be paid the minimum wages of Tracer draftsman fixed by the concerned authority from time to time. The Minimum Wages Act, 1948 has been enacted by the Central Government with the object of providing and - 6 - fixing minimum wages. Section 3 empowers an appropriate government to fix the minimum wages. Scheduled employment is defined in Section 2(g) as follows:- “Scheduled employment” means an employment specified in the Schedule, or any process or branch of work forming part of such employment. Item No.6 of the Schedule covers employment under any local authority. Item 7 covers employment on the construction and the maintenance of roads or in buildings operations. Admittedly, the petitioner is a local authority engaged in building operations and therefore it is covered both under items No. 6 and 7. Minimum wages have been fixed under Section 5. Section 12 of the Act reads as follows:- 12. Payment of minimum rates of wages. (1) Where in respect of any scheduled employment a notification under Sec. 5 28[* * *] is in force, the employer shall pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed by such notification for that class of employees in that employment without any deductions except as may be authorized within such time and subject to such conditions as may be prescribed. (2) Nothing contained in this section shall effect the provisions of the Payment of Wages Act, 1936 (4 of 1936). - 7 - This section clearly provides that no employer shall pay to any employee wages at a rate less than the minimum wages fixed by a notification for that class of employees. In the present case, the employees have placed on record various notifications issued under the Minimum Wages Act from time to time. The only question which was to be decided was as to whether employees were actually working as Tracer draftsmen or not. In this regard, reference may be made to a communication addressed by the Deputy Controller (F&A) Himachal Pradesh Nagar Vikas Pradhikaran, to all the Branch Officers which reads as under:- “ Himachal Pradesh Nagar Vikas Pradhikaran, Kasumpti, Shimla 171009. Subject: Daily waged workers. There are a number of daily paid staff working in this Pradhikaran for quite some time. Some of them have been assigned the clerical /technical duties whereas, the same are being paid the wages of a beldar. Before further action in the matter is taken, the actual duties assigned to them may be intimated along with period of their employment to that post. This information may be supplied on the following proforma: Sr.No. Name of the worker(s) Qualification date of Date of deployment against (Educational/ birth the clerical/technical post. Technical). 1. 2. 3. 4. 5. __________________________________________________________________________________ Specified work Assigned to him/her. -.-.-.-..-.-.-.-.-.-..-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. Sd/- Deputy Controller (F& A). H.P. Nagar Vikas Pradhikaran, Kasumpti, Shimla 171 009 ALL THE BRANCH OFFICER(S) HIMACHAL PRADESH NAGAR VIKAS PRADHIKARAN. U.O. No. HOP. NVP-Admn.(n)-DAILY WAGED/1998-98-1618-40 Dated:1.3.99” - 8 - In response to this communication, the concerned Branch Officers informed the Deputy Controller that all the respondents were actually functioning as Tracer draftsmen. In fact vide office order dated 11.5.1999, the Chief Administrator of the H P Nagar Vikas Pradhikaran directed that the respondents be paid minimum wages of draftsman. This notification was withdrawn six days later without giving any reasons. From the material placed on record and the intra department communication between the officers of the employer, it is more than amply clear that the respondents were working as Tracer draftsmen. They could therefore not have been denied the minimum wages fixed for a tracer draftsman. In view of the above discussion, we find no infirmity in the order of the learned Tribunal. The writ petition is devoid of any merit and the same is accordingly dismissed with costs assessed at Rs.5000/-. ( Deepak Gupta ), J. July 24, 2008 ( V.K.Ahuja ),J. s. - 9 -