JUDGMENT
1. Heard : We do not find any merit in the appeals. But, at the same time, we do not see any requirement of a scheme for absorption on permanent basis of the casual employees. It is not in dispute before us that the appellants herein represent an industrial establishment for the purposes of Chapter V-B of the Industrial Disputes Act, 1947 and the writ petitioner-respondents qualify as industrial workers for the protection under various provisions of the said Chapter read with Chapter V-A of the Industrial Disputes Act. It is the case accepted by both parties before us that the writ petitioner-respondents have been in continuous employment of the appellants for more than 240 days in a calendar year and are qualified for the benefit of continuous service as contemplated under S. 25-B of the Industrial Disputes Act. They are accordingly protected from retrenchment under S. 25-N as well as S. 25-F read with Sections 25-G and 25-H thereof. The continuous service of the writ petitioner-respondents thus extends the protection against retrenchment by a statute which, it is conceded, is applicable to the appellants. They are also entitled to fair wages and the employers have no option but to pay the same wages to the writ petitioner respondents which are payable to the regular employees for the said purpose. If it is not so done and work is taken on less pay/wages to the writ petitioner-respondents, it will be in the teeth of Art. 23 of the Constitution of India. In People’s Union for Democratic Rights v. Union of India (1982-II-LLJ-454) the Supreme Court has pointed out :
1. that right to wages as a return to the work is protected under Art. 21 of the Constitution of India, and
2. any work taken on less than due wages for the work is an infringement of the fundamental right of life as enshrined under Art. 21 of the Constitution of India and is in the teeth of the prohibition applied to the forced labour under Art. 23 thereof.
This judgment is also an authority for the principle that if the employer is a State, it has a duty to pay to the employer fair wages and if the wages paid are less than the prescribed minimum wages, it is a forced labour. It is not in dispute that the HMT Ltd. the first appellant in all these appeals, is engaged in the manufacture and production of Machine Tools and is a Government undertaking. S. 2(g) of the Minimum Wages Act, 1948 has defined ‘Scheduled employment’ to mean an employment specified in the Schedule or any process or branch of work forming part of such employment and has given to the appropriate Government power to fix minimum rate of wages payable to employees by the employer. What is important, however, to notice here is that equal work must bring equal pay; otherwise it will cause discrimination. In State of U. P. v. J. P. Chaurasia, (1989-I-LLJ-309) to which learned counsel for the appellants has drawn our attention, it is laid down that in the matter of employment the Government of a Socialist State must protect the weaker Sections. It must be ensured that there is no exploitation of poor and ignorant. It is the duty of the State to see that the under-privileged or weaker Sections get their dues. Even if they have voluntarily accepted the employment on unequal terms, the State should not deny their basic-rights of equal treatment. It is against this background that the principle of ‘equal pay for equal work’ has to be construed in the first place. Second. This principle has no mechanical application in every case of similar work which has to be read into Art. 14 of the Constitution. Art. 14 permits reasonable classification founded on different basis. It is now well established that the classification can be based on some qualities or characteristics of persons, grouped together and not in others who are left out. Those qualities or characteristics must, of course have a reasonable relation to the object sought to be achieved. In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration. He or she also learns by experience as much as by other means. It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers. In an earlier judgment in Randhir Singh v. Union of India, (1982-I-LLJ-344) the Supreme Court has pointed out : (at pp 347-348)
“………. We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be beard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
………….
Constructing Arts. 14 and 16 in the light of the Preamble and Art. 39(d), we are of the view that the principle ‘Equal pay for Equal work’ is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.”
The above principle has almost retained its position and in several subsequent judgments reiterated, the last in the series of judgments of the Supreme Court being State of Madhya Pradesh v. Pramod Bhartiya, (1993-I-LLJ-490). Parliament has enacted a law called Equal Remuneration Act, 1976 with the intention to implement Art. 39(d) of the Constitution, in Pramod Bhartiya’s case (supra), it is pointed out, that the obligation created by ‘the Convention concerning equal remuneration for men and women workers for work of equal value, to which India is a signatory. It would be evident from that definition that the stress is upon the similarity of skill, effort and responsibility when performed under similar conditions. Further, the quality of work may vary from post to post. It may vary from institution to institution. This reality cannot be ignored or overlooked. It is not a matter of assumption but one of proof. The law thus, which has taken a firm root in the country is that ‘equal pay for equal work’ is a right flowing from the principle of equal protection of law and equality before law as in Art. 14 of the Constitution and the crucial test is whether they discharge similar duties, functions and responsibilities. The qualifications being same or skill they possess is similar etc., are not relevant beyond a point in deciding whether to accept an employee entitled to a pay equal to that paid by the employer to another employee, called by whatever name, for the same or similar work. We have adverted to this aspect of the matter, summarily but not dismissively and dealt with it because learned counsel for the appellants has urged before us that a casual worker cannot qualify for the benefit of continuous service of 240 days unless there is a written contract to the said effect. According to him in case of such a person there is no guarantee of a continuous employment and the contract of work is executed each day. The fallacy, however, is so clear and loud that the answer to it is to be found in S. 25-B of the Industrial Disputes Act. It is not the readiness of the worker and the freedom which the employer enjoys to give work or not to give work which decides the eligibility for the protections as envisaged under various provisions of the Industrial Disputes Act as in Chapter V-A and V-B thereof. It is the employer’s engaging the employee for 240 days or 180 days, as the case may be, in one calender year which shall decide the eligibility of continuous service and the benefits extended to such employees under the above mentioned provisions of the Industrial Disputes Act. It is indeed in the nature of the appointment, it is the relationship of employer and employee and engagement provided by the employer to the employee for the qualifying period that decides the eligibility of the employee for the protection under the said Act. There is an obvious misreading of the definition after amendment and exclusion provided under S. 2(oo)(bb) for suggesting that such benefit is not available to a casual worker. Learned counsel however, has himself brought to our notice a Bench decision of this Court in G. Yadi Reddy v. Management of Brooke Bond India Ud. 1994 Lab IC 186 (AP) which has taken the view as we have taken that a casual workman also is apprehended by the definition of ‘workman’ in Clause (s) of S.2 and that Clause (oo) of S.2 defines ‘retrenchment’ as termination by the employer of the services of a workman for any reason whatsoever, otherwise than as punishment by way of disciplinary action etc. The right to fair wages is one which has to be read independent of the period of appointment. Even a person engaging another for work for a day cannot say he shall pay as wages only that amount which he thinks fit for the work. Merely because he has the choice of taking work from another he cannot decide to pay wages which are less than the minimum wages and if for other reasons did not appear to satisfy the requirement of fair wages. How one shall find dealing with the case of prisoners sentenced to undergo imprisonment and asked to work by the Jail Authorities, in Gurdev Singh v. State of H. P. AIR 1992 HP 76 the Himachal Pradesh Court has taken the view that even if personal right is suspended, right to life is not suspended and right under Art. 23 is all the time protecting the prisoners as it protects any other, person. Law which has been made for protecting individuals and community from being exploited by others is expected to be followed not as a ritual but as a faith, if not by all employers, at least by the employers who satisfy the definition of a State under Art. 12 of the Constitution of India. The appellant is a State and as it is an undertaking of the Union of India. If it shall not implement faithfully the constitutional guarantees others will be more defiant and the protection that laws provide to workmen shall become illusory.
2. Keeping in view the above we are inclined to direct that the appellant No. 1 has a duty to pay to the writ petitioner-responsibilities such amount of wages/emoluments/salary, which it is paying to others who are engaged by it for work of same skill and responsibility as it has entrusted to the writ petitioner-respondents. Writ petitioner-respondents have brought to the notice of the Court the wage structure under which for the same kind of work others are paid a particular scale of pay. There is no reason, although an attempt is sought to be made by the appellants to dispute, since there is no material to the contrary not to accept the assertion of the writ petitioner-respondents in this case and to grant the relief to the extent that they must receive pay from the due date equal to the pay of those who are engaged for work of similar skill and responsibility.
3. To conclude, we are of the opinion that any direction to regularise the services as prayed for, or to frame a scheme for regularisation will not be necessary. It will also be not necessary in our view to examine whether the writ petitioner-respondents have been appointed by following any procedure of selection etc. or whether they have entered through a back door and whether they are entitled to absorption in a post to which they are not entitled to as asserted by the appellants. The above, however, in our opinion is a right accruing automatically to the writ petitioner-respondents by dint of the appointments provided to them by the appellants under the various enactments and the Constitution of India. Before we part with this judgment, we propose to record that it may appear reasonable if someone who has not committed a wrong urges that those who want to benefit themselves by a wrong should not be granted any relief. The Court shall not encourage any one to take advantage of a wrong done by him. The appellant No. 1 which itself and no one else is responsible for granting to the writ petitioner-respondents appointments, however, cannot turn back and say that it gave to them some irregular or wrong benefits by admitting them to the casual appointments in its establishment. No one can ask for a premium in his favour for his recalcitrance. If today the appellant No. 1 has found itself in such a predicament, it is its own doings and it must pay for it. We have not examined, for the above reasons, the case of the writ petitioner-respondents that they were given compassionate appointments for the loss of the bread-winners in harness. We have proceeded on the basis of the admitted facts to come to the above conclusion.
4. In the result, the appeals are disposed of to the extent indicated above and the order passed by the learned single Judge in the W.P. No. 3392/95 and batch dt. Septernber 4, 1995 is modified accordingly.