JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. The petitioners were muster roll employees in the erstwhile U.P. State Electricity Board (now U.P. Power Corporation Ltd.). Their services were terminated vide order dated 14.12.1978 passed by the Executive Engineer, Electricity Transmission (Erection Unit), U.P. Power Corporation Ltd., B-22/163, Vinayaka, Bhelupur, Varanasi. Industrial disputes were raised by them challenging termination of their services which were registered as Adjudication Case Nos. 64 of 1997 to 69 of 1997. The Labour Court after hearing the parties by common award dated 18.11.97 (published on the notice board on 29.4.98) granting relief of reinstatement with continuity of service and back wages only to Sri Devendra Kumar, Jagdish Yadav and Chandra Prakash w.e.f. 26.7.97, Sri Satendra Kumar and Rajesh Kumar w.e.f. 28.7.97 and Sri Ram Prakash w.e.f. 29.7.97.
3. Aggrieved by the impugned awards of the Labour Court in aforesaid adjudication cases, the respondents filed W.P. No. 26325 of 1998 and other connected writ petitions of which W.P. No. 26325 of 1998 was treated as the leading case which was dismissed vide judgment and order dated 14.3.2002. The respondents challenged the judgment before the Hon'ble Apex Court in Civil Appeal No. 1343 of 2003 U.P. State Electricity Board versus Rajesh Kumar which was also dismissed vide order dated 18th December, 2003.
4. It appears from the record that in the mean time Board Order No. 4822 dated 28th November, 1996 was issued by the respondents wherein it has been decided that those muster roll employees who have been employed prior to 4.5.1990 shall be regularized on the regular post after selection by the Electricity Service Commission. In pursuance of the aforesaid B.O. the petitioners represented to the employers but the matter remained unactioned which compelled them to file W.P. No. 8545 of 2004. The writ petition was disposed of vide judgment dated 1.3.2004 directing the respondents to consider and decide the claim of the petitioners within a period of 3 months from the date of submission of the order.
5. The petitioners thereafter made a representation in pursuance of the judgment dated 1.3.2004 which was rejected by the Chief Engineer U.P. Power Corporation by order dated 4.9.2004.
6. Aggrieved the petitioners filed the present writ petition for quashing of the impugned order dated 4.9.2004 passed by respondent No. 4, Chief Engineer U.P. Power Corporation Ltd. 4, Vikramaditya Marg, Lucknow. The petitioners have further prayed for a direction in the nature of mandamus commanding the respondents to regularize their services from either the date on which their juniors have been regularized in service or from the date on which the employees appointed along with the petitioners, have been regularized and to pay the entire arrears of corresponding salary due to them.
7. In the mean time the unit where the petitioners were working was closed down as such an amendment application has been filed along with Stay Application No. 190608 of 2005 for additional prayer for quashing of the order dated 12.9.2005 passed by respondent No. 3 by which the services of the petitioners have been retrenched pursuant to closure.
8. It is submitted by the Counsel for the petitioners Sri P.N. Saxena that the act of the respondents in not paying the salary to the petitioners at par to the permanent employees of the establishment is illegal and arbitrary as they are discharging the same nature of duties and responsibilities as is being discharged by a regular employee of the establishment. This act of the respondents therefore is in violation of principle of 'equal pay for equal work'.
9. It is next contended by Sri Saxena that the petitioners are being unnecessarily harassed by the respondents as minimum pay scale is not being paid to them to which they are entitled. He submits that services of a large number of employees who were either appointed along with the petitioners or after the petitioners, have been regularized and only the petitioners have been discriminated by the respondents and have not been given promotion which is in violation of Articles 14 and 16 of the Constitution of India.
10. It is lastly submitted by the Counsel for the petitioners that the petitioners are not the employees of the Unit but the employees of the Corporation, hence they are entitled to be regularized in service after absorption in other Units and that their retrenchment is against the principles of 'last come first go' and are entitled to the reliefs claimed in the writ petition which are as under:-
1) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 4.9.2004, passed by respondent No. 4 (Annexure-1 to the writ petition).
2) Issue a writ, order or direction in the nature of mandamus commanding the respondents to regularize the services of the petitioners from either the date on which juniors to the petitioners have been regularized or from the date, on which the employees appointed with the petitioners, have been regularized.
3) Issue a writ, order or direction in the nature of mandamus commanding the respondents to pay the entire arrears of salary, which due against the petitioners.
4) Issue any other writ, order or direction which this Court may deem fit and proper in the facts and circumstances of the case.
11. The Counsel for the respondents submits that the petitioners were muster roll employees in the respondent Corporation. He further submits that the B.O. dated 28.11.96 had come much prior to raising of the industrial dispute by them. They were not working against any sanctioned post in the establishment and had not claimed any relief of regularization in the industrial dispute before the Labour Court subsequently.
12. I have given anxious thought to the rival contention of the Counsel for the parties .The admitted facts are that the B.O. dated 28.11.96 for regularization of muster roll employees was in existence from before the industrial dispute pertaining to retrenchment of their services was raised by the petitioners. It is apparent from the record that the relief of regularization was not claimed by them before the Labour Court, hence they had not been granted relief of regularization by the Labour Court. The aforesaid relief of regularization has not been claimed even in the writ petition before the High Court and in Civil Appeal before the Hon'ble Apex Court. Thus, this Court cannot grant any relief which had not been claimed before the Labour Court and in subsequent proceedings.
13. This Court can not direct regularization of the petitioners in the present writ petition in view of the decision of the Hon'ble Apex Court in State of Punjab and Ors. v. Sardar Singh 1998(9) SCC-709. Furthermore, the question whether the petitioners are discharging the same duties and responsibilities which is being discharged by a regular/permanent employee is a question of fact which can be adjudicated by the appropriate Labour Court on the basis of oral and documentary evidence.
14. In the case of State of Orrisa v. Balson Sahu the apex Court has held:
Where the workers were temporary, ad hoc or daily wager like MMRs they cannot be treated on par for purpose of pay scales with regularly employed permanent staff in the establishment so as to allow equal pay till they were regularized and for the period before their regularization they would be entitled to be paid only at the rate of minimum wages prescribed or notified.
In State of Punjab v. Savender Kaur 2004 (1) F.L.R. 592, the apex Court said:
Even the doctrine of equal pay for equal work would not apply where it has not been established that duties and functions of two categories of employees are at par
15. From the aforesaid decisions it is evident that for applicability of the principle of equal pay for equal work it is necessary to consider the rules of recruitment, nature of duties, responsibility of daily wagers and their counter part regular employees even where they are doing similar or identical work.
16. In the case of State of Orissa v. Balaram Sahu the Court held that in some cases factum of responsibility itself makes a substantial difference and therefore it is for the claimants to substantiate a clear-cut basis of equivalence. In the absence of proper material the High Court cannot grant parity in pay to daily wage workers or casual workers with regularly appointed workers merely on presumption of equality of the nature of work.
17. In the case of State of Haryana v. Jasmer Singh it has been held that the daily wage employees cannot be treated as on a par with persons in regular service holding similar posts and they cannot be equated with regular workmen for the purposes of wages. Nor can they claim minimum for the regular pay scale of the regular employee. It was held that High Court was not right in directing to pay the same salary and allowances as were being paid to regular employees holding similar posts.
18. In State of Haryana and Anr. v. Tilak Raj and Ors. 2003 A.I.R. S.C.W. 3382, it has also been held that the claim of daily wagers vis-a-vis regular and permanent staff is not tenable since daily wager holds no post whereas scale of pay is attached to a definite post. For the daily wagers the State has prescribed minimum wages and they are not entitled to minimum pay scale, as a daily wager holds no post. In paras 7 to 11, the Hon'ble Supreme Court referred to the entire relevant law on the point regarding principles of 'equal pay for equal work' holding that:-
7. The principle of "equal pay for equal work" is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. In Federation of All India Customs and Central Excise Stenographers (Recognized) and Ors. v. Union of India and Ors. , the apex Court explained the principle of "equal pay for equal work" by holding that differentiation in pay scales among Government servants holding the same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. It was further observed that judgment of administrative authorities concerning the responsibilities, which attach to the posts and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
8. In State of U.P. v. J.P. Chaurasia , it was pointed out that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. In Harbans Lal v. State of Himanhcal Pradesh it was held that a mere nomenclature designating a person as a carpenter or a craftsman was not enough to come to a conclusion that he was doing the work as another carpenter in regular service. A comparison cannot be made with counterparts in other establishments with different managements or even in the establishments in different locations though owned by the same management. The quality or work which is produced may be different, even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of "equal pay for equal work" requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job requires may differ from job to job. It must be left to be evaluated and determined by an expert body. Same was of the view expressed in Ghaziabad Development Authority v. Vikram Chaudhary .
9. At this juncture, it would be proper to take note of what was stated in Jasmer Singh's case (supra). In paragraphs 10 and 11, it was noted 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 service 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 fulfill 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 service 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.
11. The High Court was, therefore, not right in directing that the respondents should be paid the same salary and allowances as are being paid to regular employees holding similar posts with effect from the dates when the respondents were employed. If a minimum wage is prescribed for such workers, the respondents would be entitled to it if it is more than what they are being paid.
10. In Harbans Lal's case (supra) and Vikram Chaudhary's case (supra), it was held that daily rated workmen were entitled to be paid minimum wages admissible to such workmen as prescribed and not the minimum in the pay scale applicable to similar employees in regular service unless the employer had decided to make such minimum in the pay scale applicable to the daily rated workmen.
11. In a recent case this Court in State of Orissa and Ors. v. Balaram Sahu and Ors. , speaking through one of us (Doraiswamy Raju, J.) expressed the view that the principles laid down in the well considered decision of Jasmer Singh's case (supra) indicated the correct position of law. It was noted that the entitlement of the workers concerned was to the extent of minimum wages prescribed for such workers, if it is more than what was being paid to them.
19. After reviewing the entire law the apex Court has held :-
13. "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.
20. It is now well settled that the principles of equal pay for equal work enumerated under Article 39(8) of the Constitution read with Article 14 of the Constitution is applicable in a particular case when there is sufficient material before the Court to come to a clear finding that the duties and responsibilities performed by the petitioners and their counter parts in regular employment are at par in all respects, i.e., Method of recruitment, educational qualifications, nature of duties discharged, quality of work, responsibility and aminicability to rules of service governing their conditions of service etc.
21. The claim for equal pay for equal work has to be adjudicated upon before any direction is issued by High Court under Article 226 of the Constitution. The High Court cannot take any judicial notice of the statements made by the petitioners in writ petition that they are performing same or similar nature of duties that is being performed by their counter parts in regular service. Taking judicial notice in such circumstances of certain facts stated in the petition would jeopardize the delivery of administration of justice being unfounded upon any material and based on surmises and conjectures. The onus to prove that he is discharging the same duties etc. as are being discharged by his counter part in regular employment is on the petitioner who claims parity for equal pay.
22. In the case before me no material has been placed about their duties by the petitioners and responsibilities except making a bald statement that they were performing similar duties and responsibilities as the regular employees were doing. This statement without any supporting evidence cannot be accepted.The petitioners are even not employed against any permanent post.
23. Considering all these aspects, this Court cannot under Article 226 of the Constitution give any direction for payment of minimum pay scale or equal pay on the principle of equal pay for equal work without proof of similar duties and responsibilities of regular employees. A daily wager has no right to post.
24. It is not feasible under Article 226 of the Constitution of India to decide question requiring findings of facts by adducing oral and documentary evidence. This Court in the circumstances can not issue any direction for payment of minimum pay scale to the petitioners on the ground that they are discharging the same work as that of a regular employee, on the basis of a bald claim made on affidavit before the Court. Moreover, minimum pay scale connotes that employee has been appointed against permanent post. Admittedly, the petitioners are muster roll employees and they are not permanent employee in the establishment of the respondents. In this view also no direction for payment of minimum pay scale to the petitioners can be issued. In the circumstances, no case of discrimination under Articles 14 and 16 of the Constitution of India is made out.
25. In so far as the last contention of the Counsel for the petitioners that the petitioners are entitled to be absorbed in other units of the establishment on closure of the unit where they were employed is concerned, it would be useful to refer to the definition of closure given in Section 2 (ee) of the U.P. Industrial Disputes Act, 1947 wherein closure has been defined as under:-
2 (ee). 'Closure' means the permanent closing down of a place of employment or part thereof.
26. Undisputedly the place of employment of the petitioners was the Unit in which they were working has been closed down, hence the petitioners can only be held to be entitled to the closure compensation as provided under the law. The admitted position is that the petitioners were not permanent employees of the respondents and they could not be absorbed against permanent post as held by the Labour Court as well as by this Court and the Hon'ble Apex Court.
27. It is relevant to note here that earlier the State Government had framed Rules in exercise of powers under Article 309 of the Constitution for absorption of the retrenched employees of the State Government or the Public Corporation known as Uttar Pradesh Sarkar Sarvajanik Nigmo Ke Chhamishuda Karamchariyon Ka Sarkari Sewa Me Amelan Niyamwali, 1991. The aforesaid Rules were received by G.O. dated 8.4.2003.The relevant portion of the G.O. dated 8.4.2003 is as under:-
mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds NVuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003 lafo/kku ds vuqPNsn 309 ds ijUrqd Onkjk iznkRr 'kfDr dk iz;ksx djds jkT;iky mRrj izns'k ljdkj lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu fu;ekoyh]1991 dks fo[kafMr djusa dh n`f"V ls fuEufyf[kr fu;ekoyh cukrsa gSa %& 1& laf{kIr uke vkSj izkjEHk & (1& ;g fu;ekoyh mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003 dgh tk;sxh A 2& ;g rqjUr izo`Rr gksxh A 2& ifjHkk"kk,& tc rd fo"k; ;k lanHkZ esa dksbZ izfrdwy ckr u gks bl fu;ekoyh esa d& lafo/kku dk rkRi;Z Hkkjr ds lafo/kku ls gS [k& jkT;iky dk rkRi;Z mRrj izns'k ds jkT;iky ls gS A 3& fo[kaMu vkSj O;ko`fr & 1& mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dks ljdkjh lsok esa vkesyu fu;ekoyh]1991 ,rnOnkjk fo[kafMr dh tkrh gS] vkSj ,sls fo[kaMu ds QyLo#i & ,d& mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu fu;ekoyh]1991 ds v/khu izksnHkwr vkesyu ds fy; fopkj fd;s tkus okys fdlh NVuh'kqnk deZpkfj;ksa dk vf/kdkj] fdUrq ftudk mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003 ds izkjEHk gksus ds fnukad rd vkesyu u fd;k x;k gks] ,sls fnukad ls lekIr gqvk le>k tk;sxk A nks& ljdkjh lsok esa fdlh fof'k"V ljdkjh foHkkx ;k lkoZtfud fuxe ds Nvuh'kqnk deZpkfj;ksa ds fy, vkesyu ds lfUu;e fofgr djusa esa vkSj osru laj{k.k lfgr ikfj.kkfed izlqfo/kkvksa dks iznku djusa esa le; le; ij tkjh fd;s x;s ljdkj ds vkns'k] mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003 ds izkjEHk gksus ds fnukad ls fujkd`r gks tk;saxs A 2& ,sls fo[kaMu ds gksrs gq, Hkh & ,d& mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003 ds izkjEHk gksus ds fnukad ds iwoZ fdlh Nvuh'kqnk vkesyu deZpkjh dks iznku dh xbZ osru laj{k.k dh izlqfo/kk okil ugha yh tk;sxh A nks& mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkfj;ksa dk ljdkjh lsok esa vkesyu (fo[kaMu) fu;ekoyh] 2003 ds izkjEHk gksus ds fnukad ds iwoZ mRrj izns'k ljdkj ;k lkoZtfud fuxeksa ds Nvuh'kqnk deZpkjh] ftls ,sls fnukad rd vkesfyr u fd;k x;k gks] ,sls lewg x vkSj lewg ?k ds in] tks mRrj izns'k yksd lsok vk;ksx dh ifjf/k ds ckgj ds gksa] ij lh/kh HkrhZ ds fy,] mPprj vk;q lhek esa ml lhek rd f'kfFkyrk izkIr djusa dk gdnkj gksxk] ftruh mlus lEcfU/kr ljdkjh foHkkx ;k lkoZtfud fuxe esa gSfl;r ls iw.kZ fd;s x;s o"kksZ rd fujUrj lsok dh gks !Þ
28. At this stage, Sri P.N. Saxena, Counsel appearing for the petitioners submits that the petitioners may be considered for absorption or regularization in the establishment. Sri Rajendra Kumar Mishra, the Counsel appearing for the respondents submits that from perusal of para 14 of the counter affidavit it appears that the petitioners can not be directly absorbed in the department and they can be regularized only after they have to undergone selection process by the Electricity Service Commission.
29. For the reasoned stated above, suitability and eligibility have to be seen and no direction in this regard can be given to the petitioners for their regularization directly in the respondents corporation. As retrenchment has been challenged before this Court the petitioners have an efficacious and alternative remedy of raising an industrial dispute in this regard as held in Full Bench decision in (1991) 2 UPLBEC-898 Chandrma Singh v. Managing Director U.P. Co-operative Union, Lucknow and Ors. and by the Apex Court in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke , Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. 1995 (V) SC-75, Scooters India v. V. Vijai E.V. Eldred , 2005(6) SCC-728 Hindustan Steel Works Construction Ltd. and Anr. v. Hindustan Steel Works Construction Ltd. Employees Union and U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. (2005)107 FLR-729 which has been followed by this Court in C.M.W. P. No. 54299 of 2004, Shoorvir Singh v. Union of India and Ors.
30. The writ petition is dismissed on the ground of alternative remedy. No order as to costs.