Court No. - 38
Case :- WRIT - A No. - 11197 of 2019 Petitioner :- Prayagraj District Unit Sanyukt Swasthya Outosurcing/Sanvida Karamchari Sangh And 8 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shantanu Khare,Ashok Khare, Sr. Advocate Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner no.1 is a registered society which claims to represent the outsourced employees in the Medical Department of the State. Petitioner nos.2 to 9 are members of petitioner no.1 and claim to be holding office in the district units. They have approached this Court with the grievance that members of the society are performing work which otherwise entrusted to regular employees of the department but they are being paid much lesser wages. It is also stated that engagement of petitioners through outsourcing agency would not be material inasmuch they are performing work in the establishment of the State.
Learned Standing Counsel raises an objection to the maintainability of the writ petition on the ground that there is no privity of contract between the petitioners and State, inasmuch as all the petitioners are engaged through the contractors.
The fact that employees whose cause is sought to be espoused in this petition have been engaged through contractors is not in issue. Record otherwise reveals that petitioners' employer are also not impleaded as party in the writ petition. Whether or not petitioners are performing works which are otherwise being performed by the regular employees, and/or the question as to whether petitioners are performing same work as are being performed by the regular employees of the state who are drawing much higher salary, would require determination of facts, which ordinarily this Court would not be inclined to entertain at the first instance.
Learned Senior Counsel for the petitioners places reliance upon a judgment of the Apex Court in State of Punjab and others vs. Jagjit Singh and others, (2017) 1 SCC 148. Following observations made in para 54 and 57 of the judgment have been relied upon and are extracted hereinafter:-
"54. There is no room for any doubt, that the principle of 'equal pay for equal work' has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of 'equal pay for equal work' has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of 'equal pay for equal work' would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post."
The principles which have been culled out by the Apex Court in para 54 and 57 of the judgment would be applicable only when factual determination is made whether the employees are performing same or similar work as is being performed by regular employees. It is also not clear as to who are the members of the association for whom this petition is instituted nor their authorization exists on record. It is otherwise not in issue that there is no privity of contract between the State and petitioners inasmuch as all the employees are engaged through contractors who are not impleaded as party before this Court. The writ petition, in such circumstances, is not liable to be entertained, particularly in view of the law laid down by the Apex Court in Steel Authority of India Ltd & others Vs. National Union Waterfront workers & others, (2001) 7 SCC 1.
Leaving it open for the petitioners to pursue their grievance before the industrial forum, this petition is consigned to records.
Order Date :- 30.7.2019 Ashok Kr.