IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER W.P. (C) No. 736/1997 Reserved on: 7th August, 2012 Decided on: 17th August, 2012

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER W.P. (C) No. 736/1997 Reserved on: 7th August, 2012 Decided on: 17th August, 2012 NEW DELHI MUNICIPAL CORPORATION... Petitioner Through: Mr. Piyush Gaur for Mr. Arun Bhardwaj, Adv. versus NDMC GENERAL MAJDOOR UNION & ANR. Through: Mr. Varun Prasad, Adv.... Respondents Coram: HON'BLE MS. JUSTICE MUKTA GUPTA 1. By the present petition, the Petitioner seeks only one relief i.e. setting aside of the award dated 9th July, 1996 passed by the learned Industrial Tribunal to the extent it directs that the employees/workmen be paid minimum pay plus DA in the pay scale of regular employee without any increment in a comparable post with effect from the date of reference. 2. Learned counsel for the Petitioner contends that the learned Tribunal erred in applying the principle of equal pay for equal work in the facts and circumstances of the present case. The work done by permanent malis is different from the work done by workmen/ Respondents who are muster roll mazdoors. The work done by the regular malis is of skilled nature. All garden operation including maintenance and care of permanent feature of gardens such as lawns, shrubs, hedges and trees are to be handled by permanent malis. They know about the different types of plants and identification of plants and trees in different seasons. They are also concerned with the transplantation of plants which is in the nature of a technical work. On the other hand, the muster roll mazdoors do the work of unskilled nature which includes trenching, digging of holes, rough dressing, clearing of out-growth in leaves and byelanes etc., and in a way the muster

2 roll workers act as helpers to the regular malis. It is further contended that despite the fact that the Petitioner had laid detailed evidence and produced adequate material before the learned Tribunal demonstrating that the work done by members of Respondent No.1 was substantially different from the work being done by the regular/ permanent malis, the learned Tribunal has in its award not dealt with the said affidavits and evidence. Therefore, the impugned award fails to take into consideration relevant material and is thus liable to be set aside. 3. Per contra, learned counsel for Respondent No.1 contends that both the categories of workers have to perform same duties of malis and there is no difference between the work and duties being performed by the regular malis and casual malis. Reliance is placed on the statement of MW5 Shri V.P. Singh who has nowhere stated that there is a difference between the work and duties of the permanent malis and the muster roll malis. It is further contended that MW5 also admitted that working hours of muster roll workers and regular workers are the same and the muster roll workers are regularized against the permanent available posts on the basis of their seniority and as such it cannot be said that there is difference between two categories. Hence, the claim of the Respondents before the learned Tribunal is rightly decided in their favour and there is no illegality in the impugned award. Reliance is placed on Surinder Singh and another v. The Engineer in Chief, C.P.W.D. and others, A.T.R S.C. 76, Shri Naider and another v. Delhi Administration and Another (Writ Petition No /1983 decided by the Hon ble Supreme Court on 29th September, 1988), Vijay Pal Sharma and Ors. v. Delhi Administration and Others (I.A. No.2 in Writ Petition No.818 of 1989 decided by Hon ble Supreme Court on 12th March, 1990), Municipal Corporation of Delhi v. Gauri Shankar & others, 1999 V AD (DELHI) 905, MCD v. Om Prakash and others (WP(C) No.788/2003 dismissed by this Court on 17th January, 2005) and Municipal Corporation of Delhi v. Jagdish Kumar (WP(C) No.3842/2000 decided by this Court on 17th October, 2008). 4. I have heard learned counsel for the parties and perused the records. 5. Briefly the facts giving rise to the instant petition are that vide notification No. F.24(1811)/86-Lab-88 dated 2nd January, 1986 an industrial dispute was referred by Secretary (Labour), Delhi Admin(GNCT of Delhi) to the learned Industrial Tribunal under the terms of reference, Whether the workmen as shown in Annexure I, II and III are entitled to be employed on

3 permanent basis and, if so, from which date and what directions are necessary in this regard? Respondent No.1 in its capacity as the mazdoor union, representing its workmen filed the statement of claim dated 10th February, 1987 claiming parity with regular malis who are permanent employees of the Petitioner and also seeking regularization and pay and allowance from the date their Members were put on muster roll. The Petitioner filed written statement in defence contending difference in work. After framing of issues, detailed evidence was led by both the parties and after perusing the same, the learned Tribunal passed the impugned award dated 9th July, 1996 holding that although the workmen were not entitled to regularization however the doctrine of equal pay for equal work would be attracted in the present case. Hence, the Petitioner was directed to make payment to the workmen from the date of reference in accordance with the payment being made to the regular/ permanent malis. It was also directed that the Petitioner should prepare a scheme on a rationale basis for absorbing of the regular muster roll employees who are in the employment of management for more than 7 years and the said scheme be prepared within 6 months. 6. MW1 Shri Ishwar Chander, Assistant Director (Horticulture) NDMC in his affidavit has stated that the regular malis do the work of skilled nature of horticulture work. All garden operations including maintenance and care of permanent features of gardens as lawns, shrub, hedges and trees are to be handled by permanent Malis. They know about the names of plants, types of plants and identification of plants and seeds in different season and transplantation of plants etc. Generally technical works are done by regular permanent malis. He further stated that the muster roll workers are deployed for the development work in the NDMC area. They do the work of unskilled nature, i.e. trenching, digging of holes, rough dressing, cleaning of jungles, growth inlane, byelanes and road bern etc. In fact, they work as helpers to regular malis. Also, that the muster roll workers are regularized against the permanent available posts on the basis of their seniority and the seniority list is prepared by the department and approved by the administrator/ special officers, NDMC. These facts are reiterated by MW2 Shri N.S. Pradhan; MW3 Sahastra Pal, MW4 R.D. Pandey, MW5 B.P. Singh; MW6 B.L.Sharma and MW7 Shri Parsuram who in their statements before the learned Tribunal stated that the work done by the regular malis is different from that of the muster roll employee/ workmen who act only as helpers to the regular malis and that the muster roll workers are regularized against the permanent available post on the basis of seniority and the seniority list is

4 prepared by the Department and approved by the administrator/ special officer, NDMC. 7. In State of Haryana Vs. Jasmer Singh & Ors. AIR 1997 SC 1788 their Lordships observed: 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 fulfil 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 dailyrated 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. 8. Further in Government of West Bengal Vs. Tarun K. Roy & Ors. (2004) 1 SCC 347 the Hon ble Supreme Court held: 14. Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently. 9. In State of Orissa & Ors. Vs. Balaram Sahu & Ors., etc. (2003) 1 SCC 250 their Lordships held: 11. The decision reported in Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403] is no authority for the proposition that temporary, ad hoc or daily wages like NMRs should be treated on a par for purposes of pay scales with the regularly employed permanent staff in the establishment and merely envisaged a serious and sincere effort on the part of the State to regularize such casual labourers or work-charged employees as far as and as early as possible, subject to their fulfilling the qualifications,

5 if any, prescribed for the post and subject also to the availability of the work meaning thereby the post as well as scope for providing employment. In para 42 of the judgment, this Court, while setting aside the directions of the High Court, observed as follows: (SCC p. 151, para 42) 42. With respect to Direction 8 (equal pay for equal work) we find the judgment singularly devoid of any discussion. The direction given is totally vague. It does not make it clear who will get what pay and on what basis. The said direction is liable to be set aside on this account and is, accordingly, set aside. Though equal pay for equal work is considered to be a concomitant of Article 14 as much as equal pay for unequal work will also be a negation of that right, equal pay would depend upon not only the nature or the volume of work, but also on the qualitative difference as regards reliability and responsibility as well and though the functions may be the same, but the responsibilities do make a real and substantial difference. 12. In State of T.N. v. M.R. Alagappan [(1997) 4 SCC 401 : 1997 SCC (L&S) 1080] this Court observed that substantial similarity in duties and responsibilities and interchangeability of posts may not also necessarily attract the principle of equal pay for equal work when there are other distinguishing features like educational qualifications for appointment, mode of recruitment, status, nature of duties, functions, measure of responsibility and overall duties and responsibilities even outside duty hours. The principles laid down in Jasmer Singh [(1996) 11 SCC 77 : 1997 SCC (L&S) 210] were also applied and followed in the decision reported in Gujarat Agricultural University v. Rathod Labhu Bechar [(2001) 3 SCC 574 : 2001 SCC (L&S) 613]. 10. Learned counsel for the Respondent has heavily relied on the statement of MW5 Shri B.P. Singh before the learned Tribunal to state that both the regular malis and muster roll employees perform same duties of malis and there is no difference between their work and duties. It is further contended that since the working hours of both types of employees are same, the learned Tribunal was right in granting equal pay scale to both the classes of malis. This contention does not find favour with me. A perusal of affidavit and cross-examination of MW5 does not show that he has stated that there is no difference between regular malis and muster roll employees. He has clearly stated about the difference in the works done by the two categories of malis. Further merely because the working hours are the same, pay parity cannot be granted. It is settled law that equal pay for equal work is not a principle to be applied in an abstract. Article 14 of the

6 Constitution does not provide that only because the nature of work is the same, irrespective of other circumstances such as source of recruitment, educational qualification, mode of appointment, experience etc., the doctrine of equality has to be applied automatically. Article 14 envisages equality amongst equals and not equality amongst unequals. 11. As can be observed from the perusal of the statements of MW1 to MW7 before the learned Tribunal that there exists a stark difference in the nature and kind of work performed by the regular malis and the muster roll malis. Whereas, the work performed by the regular malis is of skilled and technical nature involving maintenance and care of permanent features of gardens as lawns, shrubs, hedges etc., they know about the names of plants, seeds and transplantation of plant etc., the casual/ muster roll malis act as helpers to regular malis and carry out activities of unskilled nature such as digging of holes, trenching, fencing, cleaning of jungles, growth inlanes, byelanes etc. Although MW1, MW2, MW3, MW5, MW6 and MW7 have stated that the working hours of the two categories of employees is the same, that in itself is not sufficient to entitle the two otherwise distinct categories of malis to equal pay in light of the aforementioned judgment of the Hon ble Supreme Court. Also, in the light of the judgment of the Hon ble Supreme Court in State of Orissa Vs. Balaram Sahu (supra) it can be seen that since the responsibilities on the two classes of workmen are variable, they are not entitled to equal pay for equal work as equal pay also depends on the kinds of responsibilities. In the instant case there exist differences in the responsibility and kind of work performed by two classes of workmen thus the workmen cannot be granted pay parity. 12. In light of the above discussion the award dated 7th July, 1996 passed by the learned Tribunal is set aside to the extent it directs the Petitioner to pay the workmen of minimum of pay scale plus dearness allowance in the pay scale of regular employees without any increment in a comparable post with effect from the date of reference. 13. Petition is disposed of. Sd/- (MUKTA GUPTA) JUDGE

7 AUGUST 17, 2012