VANDNA SINGH Vs. STEEL AUTHORITY OF INDIA LTD.

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioner who is working as an Office Assistant at the Branch Sales Office, Gwalior, of the respondents, on daily wages from 10.1.1979, prays for issuance of a writ of mandamus or any other suitable writ, direction or order for regularisation and seniority on the post of Office Assistant and for the benefits of the post. Brief facts leading to this petition are thus: The petitioner was appointed purely on temporary basis against a temporary post of Office Assistant at the Branch Sales Office, Gwalior, of the respondents vide Annexure P/1 on daily wages at the rate of Rs. 13/ - per day. Petitioner's services were terminated vide order dated 23.8.1980. Petitioner raised a dispute. The appropriate Government referred the dispute for adjudication of the Labour Court No.1, Gwalior. In that, the Labour Court vide award dated 15.10.1984 declared the order of termination as non est, as petitioner's services were terminated without complying with the prerequisites of section 25 -F of the Industrial Disputes Act, 1947 (for short, the 'Act"). The respondents challenged this award before this Court in M.P. No. 491'1 of 1984, which was dismissed on 29.8.1989 vide order (AnnexureP/3). After the decision of this Court, the respondents allowed the petitioner to join her duties from 20.2.1990 and paid increased rate of wages at Rs. 26/ - per day with effect from June 1984. The petitioner made a demand that she is continuously working on the post and has acquired the status of a permanent employee under the Standard Standing Order applicable to all the undertakings in the State of Madhya Pradesh, which arc enumerated in Annexures of Madhya Pradesh Industrial Employment (Standing Orders) Rules, 1963, framed under the Madhya Pradesh Industrial Employment (Standing Order) Act, 1961, which govern the terms and conditions of the employees working at Branch Sales Office, Gwalior; therefore, the petitioner he absorbed on the regular post of Office Assistant and he paid at least the minimum pay scale of Rs. 1425 -2205 plus dearness allowance, house rent allowance and city allowance. As the demand was not met, petitioner served a notice for demand of justice (Annexure P/6) dated 24.3. 1990, and, having failed to get her due, approached this Court by the petition on 24.1.1991 for seeking the reliefs. 3. The respondents in their return contended that the Personal Department of respondent No.1 through its Section known as 'Office and Methods' (in brief O& M) assesses the need of every branch through out the country and fixes the requirement of permanent post in each cadre. In the cadre of Office Assistant/Senior Office Assistant, the number of posts sanctioned is specified from time to time, and in the cadre of Office Assistant at no relevant time, any permanent post was vacant which could he filled by petitioner; as petitioner was appointed against a temporary post purely on temporary basis, as is evident from the appointment order, petitioner is not entitled to claim regularisation or the status of a permanent employee, because there is no vacant post. In case the petitioner feels that she is entitled to regularisation on the permanent post of Office Assistant, petitioner has to approach the Labour Court by raising an appropriate dispute for seeking a declaration to that effect. It was also contended that an Office Assistant who holds a permanent post, has more work and responsibility to discharge than the petitioner who holds a temporary post of Office Assistant. The permanent Office Assistant docs not get pay on daily basis. The work of a temporary Office Assistant is invariably very much less than the work of a permanent Office Assistant. 4. Petitioner filed a rejoinder to the return stating that the petitioner is in employment since 10.1.1979, and the respondent No.1, a Government of India Undertaking, is practising an unfair Labour practice by continuing the petitioner as a temporary Office Assistant on daily wages for such a long time. It was also submitted that a number of other new hands have already been appointed as Office Assistants by the respondents on regular posts. To demonstrate that petitioner is discharging the same duties and function as is discharged by a regular Office Assistant, petitioner filed Annexures P/8 to P/10, of which P/8 is an Office order, allocating duties of receipt and despatch; P/9 and P/10 are the job allocation amongst the staff employed at the Branch Sales Office. In the job allocation order (Annexure P/9), dated 4.10.1990, petitioner was placed in group of administration and establishment matters, i.e., to work with Senior Assistant, which was revisable on quarterly basis. Annexure P/10 dated 8.10.1990 is another job allocation order, whereby petitioner was directed to assist S.C. Choudhury, Sr. O.S. along with other Sr. Assistant B.S. Dave. 5. In the return filed, the respondents did not dispute the duties assigned and the job allocated to petitioner from time to time; the respondents also did not place any material to show that the duties and work assigned to a temporary Office Assistant and a regular Office Assistant is not similar in nature. The respondents in para 4 of the additional return, filed in reply to rejoinder, stated that respondent No.1 had long ago switched over to almost complete com -puterisation. The result is that there are already very many surplus hands and the respondent does not have much work to offer. It would also be worthwhile to mention here that neither in the return nor in the additional return the respondents took the stand that petitioner's work was, at any point of time, not satisfactory. 6. At the time of hearing it was conceded that the Branch Sales Office at Gwalior is a registered establishment under the M.P. Shops and Establishments Act, 195X, and the terms and conditions of employment at the Branch Sales Office, of the employees, are governed by the Standard Standing Orders, framed under the Standing Orders Act. 7. Shri J.P. Gupta, learned counsel for the respondent", at the outset, contended that as the petitioner claims to have acquired the status of a permanent employee, it requires an investigation. Therefore, the petitioner is not entitled to invoke writ jurisdiction for seeking the relief of regularisation or of declaration of the status of a permanent employee, as the availability of vacant post is disputed. It was also contended by the learned counsel that for 'equal pay for equal work' the duties assigned to an employee under the same employer should be the same which is a disputed question; therefore also, the petitioner has to resort to appropriate proceedings before the Labour Court. Learned counsel further contended that earlier when petitioner's services were terminated, petitioner raised a dispute, wherein petitioner did not claim the relief of regularisation and/or of payment of the scale; therefore, petitioner now is not entitled to claim the relief which is barred by the principle of res Judicata/estop -pel or on the principle or relinquishment of the relief. 8. In our opinion, this petition involves two important question: (1) relating to the constitutional goal of' equality and social justice, enshrined in Articles 14, 16 and 39 (d) of the Constitution and the regularisation of the services of the petitioner, who works as temporary Office Assistant for years together, and (ii) pertaining to acquisition of the status of a permanent employee under Standard Standing Orders 2 (vi) which we will deal with presently one by one, as also the preliminary objections raised by Shri Gupta, learned counsel for the respondent". 9. The petitioner claims regularisation and asserts that the action of respondent No.1, which is an instrumentality of the State, carrying on industrial activity, is not fair but is arbitrary and violative of Articles 39 (d), 14 and 16 of the Constitution of India. Shri H.N. Upadhyaya, learned counsel for petitioner, placing reliance on a decision of the Apex Court in case of Daily Rated Casual Labour, contended that the action of the respondents in not regularising the petitioner and not paying the minimum pay scale amounts to exploitation of Labour. In our opinion, the contention has got a merit in the facts which are borne out and not disputed. It is clear that there is no difference in the nature of duties and work which is being performed by petitioner as temporary Office Assistant from that performed by a regular Office Assistant; therefore, there is no reason to deny the claim of 'equal pay for equal work.' The Apex Court has deprecated the practice. of non -regularisation of temporary employees or casual labourers for a long period in case of Daily Rated Cause! Labour., P&T Department (supra) and observed that managements and the Governmental agencies in particular should not allow workers to remain as casual Labourers or temporary employees for an unreasonably long period of time. Where there is any justification to keep persons as casual labourers or temporary employees for years? Is it for paying the lower wages? Then it amounts to exploitation of labour. 10. Apex Court has observed that to employ workers by giving them intermittent breaks amounts to unfair labour practice, so as to attract the 5th Schedule to the Industrial Disputes Act, which contains a list of unfair labour practices as defined in section 2 (ra). Item 10 reads as follows: