RAMESH Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Pankaj Srivastatva, Sri D.S. Srivastava, Sri Shahid Siddiqui and Indra Raj Singh, learned counsel for the petitioners and Sri Abhishek Srivastava, learned Additional Chief Standing Counsel assisted by Sri Vikram Bahadur, learned Standing Counsel for the State. The batch of writ petitions is being heard and decided together on the consent of the parties. Petitioners are daily wagers engaged by the Forest Department of the State in various districts. Primarily, petitioners seek a direction to the respondents to pay wages minimum of the pay scale as admissible to a regular employee, as per the Government Orders issued from time to time, and pursuant to the decision of the Supreme Court rendered in State of U.P. and others vs. Putti Lal, and State of Punjab and others vs. Jagjit Singh and others. For the sake of convenience, the writ petitions have been classified in two categories, (i) Category-A are those writ petitions that seek a direction to the competent authority to consider their claim for wages equivalent to minimum of the pay scale admissible to a regular employee; (ii) Category-B writ petitions assail the order rejecting the claim of the petitioners, therein, for regularization under the U.P. Regularization of Group ''D' Employees on Daily Wage Rules, 20013 as amended from time to time. An additional relief claiming wages equivalent to minimum of the pay-scale admissible to regular employee is also prayed. Petitioners claim to have been engaged as daily wage employees and have been performing duties commensurate to a regular employee, hence, claim regularization under 2001 Rules and wages equivalent to the minimum of pay-scale admissible to regular employee. It is contended that artificial breaks in service has to be ignored while computing the continuous length of service rendered by the petitioners. The respondent-State on the other hand is disputing the claim of the petitioners and submit that merely on being engaged on daily wage the daily wager is not entitled to wages equivalent to a regular Class-D and C employees. It would depend on the nature of work and responsibility assigned to the daily wager. The claim for regularisation was considered as per the Rules, the petitioners were not found eligible for the reasons assigned in the impugned order, which is based on the facts upon perusing the record of the daily wager. It is, further, urged that primary activities of the Forest Department includes-

(2.) The daily wage labourers are engaged on day-to-day basis as per the need and availability of budget in a particular scheme. Most of the works/activities are seasonal. These daily wagers are not selected or appointed against any regular post in accordance with the Service Rules applicable to the relevant posts/cadre. They are merely engaged for different forestry works temporarily. Therefore, daily wagers are entitled to wages in accordance with the notifications issued from time time by the Government under the Minimum Wages Act, 1948 and other allied Acts and orders. It is further urged that the daily wagers engaged by the Forest Department do not discharge duties or own responsibilities at par with regular employees. Some of the duties/ responsibilities include:-

(3.) The Court held that the daily wagers, therein, were entitled to wages on the principle of "equal pay for equal work" upon returning a finding of fact that the daily wagers were performing work similar to that of a regular employee. It, therefore, follows that the relief claimed by the petitioners for wages equivalent to minimum of the pay scale admissible to regular employee can be granted only in a case where the daily wager is able to establish - (i) through strict pleadings; (ii) proof that they were discharging similar duties and responsibilities as are assigned to regular employees. The concept of pay parity is distinct from regularisation and would not be applicable to issues of absorption/regularisation. In other words, in cases where a daily wager was not found suitable for absorption under the Rules cannot be denied pay parity provided the component of the work and responsibility of a daily wager was similar to that of a regular employee. In the backdrop of the legal proposition, upon examining the pleadings set forth by the petitioners and the stand taken by the respondents serious disputed question of fact arise in the writ petitions. The claim of the petitioners can be considered and decided upon crystallization of the relevant facts in the backdrop of strict pleadings and evidence, namely, length of service put in by the petitioners; as to whether petitioners were engaged against Group-D and C post; and whether are performing the same duties discharged by those engaged on regular basis against the sanctioned posts etc. The onus to prove the facts is upon the person claiming parity of pay. The claim of the petitioners in any case is to be considered, in the first instance, by the competent authority of the Forest Department. In the event of their claim for grant of parity of pay scale on the principle of ''equal pay for equal work' is rejected, the cause would arise to the aggrieved daily wager/workmen to take remedy under the Labour laws. The Labour Court is competent to take evidence, summon the record and return findings of fact and law. This Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution would decline, in the first instance, to enter into disputed questions of fact. The appropriate course would be to route the petitions through the Labour Court after the decision of the competent authority of the Forest Department. The batch of the writ petitions, accordingly, stand disposed of by passing the following orders: