MUNICIPAL COUNCIL Vs. S. SAJAPPAN

JUDGEMENT

(1.) 1. In this case, the respondent Nos. 1 and 2, who were originally engaged as daily rated Mazdoor claiming equal pay for equal work available to Group-C employee i.e. Lower Grade Clerk on the ground that they had been discharging functions of Lower Grade Clerk. Subsequently, the respondent No. 1 was regularised as Work Charged Mazdoor. The learned trial Court had allowed the writ petition and set aside the order passed by the Secretary, Municipal Council on the consideration of the case of the writ petitioners therein, pursuant to the order passed in the earlier writ petition and allowed them the pay of Lower Grade Clerk on the principle of "equal pay for equal work".

(2.) In this appeal against the said order, the learned Counsel for the petitioner points out that the order passed by the Secretary, Municipal Council was not effectively challenged, inasmuch as, no ground towards that end has since been pleaded in the petition neither any prayer with regard thereto has since been made. Secondly, he contends that this is a disputed question of fact as to whether the respondent Nos. 1 and 2 had been discharging the function of Lower Grade Clerk or not since specifically denied in the affidavit-in-opposition and specific averments have been made as to the nature of work performed by those persons as well as pointing it out from the relevant documents. Therefore, the question becomes a disputed question of fact, which exercise this Court cannot undertake. According to him, unless it is proved that the respondent Nos. 1 and 2 had been performing the duties and discharging the function of Lower Grade Clerk, they cannot claim equal pay for equal work simply on the basis of the proposal for overtime bill which was required to be approved and there was nothing to show that any such approval was given thereto, or on the basis of the allotment of work to staffs in Establishment Section, which only specifies as against respondent No. 2 that he would be responsible for all despatch work and to account for all kinds of postal stamps, which are too meagre a material to conclusively prove that the said respondent had been discharging the functions of lower grade clerk. The Court had proceeded to find that the said respondents had been able to prove that they were discharging the functions of lower grade Clerk by reason of Annexures 'C' and 'F' being those two documents mentioned above. Therefore, according to him, the finding is perverse and cannot be sustained. The third contention is that the post to which the respondent Nos. I and 2 are working are Group- 'D' posts which is a feeder post for the promotion to Group 'C' post of Lower Grade Clerk according to the Recruitment Rules. Therefore, a person, who is in the feeder post, cannot claim equal pay in respect of higher post or promotional post. The next contention is that the employment as Daily Rated Mazdoor does not entitle a person to the same status of a regular employee. Neither work- charged employee can claim the status of regular employee, unless he comes through regular recruitment process. The last but not the least, the point he had urged, that on the basis of the averments made in the opposition, simply on the basis of the said two documents without any prove or material to show that the principle of normal functioning of the said two respondents are that of the Lower Grade Clerk in order to enable them to claim equal pay on the principle of "equal pay for equal work". Therefore, the order impugned should be stayed.

(3.) The learned counsel for the respondent Nos.1 and 2 on the other hand, points out that Annexures-'C' and 'F' are sufficient proof to show the nature of work discharged by the said two respondents are discharging any function other than Lower Grade Clerk. Since those two respondents having discharging their initial burden, the onus for allocation of work lies on the respondents and in the absence of discharge of such onus, the judgment of the learned trial Judge cannot be stayed. He had also pointed out that since the said two respondents have been discharging the function of Lower Grade Clerk, they are entitle to equal pay for equal work. His next contention is that in the writ petition the order passed by the Secretary, Municipal Council has been specifically challenged though there may be some lacuna in the grounds or in the prayer thereto. But the Court has every right to mould the prayer in the exigency of the situation, particularly when the order of the Secretary has since been challenged and that the order passed by the Secretary on the face of it is perverse and cannot be sustained. Since it has not come to a definite conclusion that the respondents are not performing the job of Lower Grade Clerk or the nature of function discharged by them, therefore, the stay, as prayed for by the petitioners, should be refused.