1991 Supreme(Pat) 165

PATNA HIGH COURT
S.B.Sinha, J.
M.L.Gupta
Versus
Instrumentation Ltd.
Civil Writ Jurisdiction Case No. 648 of 1988 ;
Decided On : APRIL 17, 1991

Headnote:

Writ petition filed by employees of respondent company seeking issuance of writ of mandamus commanding upon respondents to consider their cases for regularization of their services in regular employment by giving retrospective effect that is from the date of their appointments in the Establishment and further directing them to pay equal pay for equal work. Held, writ petition partly allowed. 1. Respondent No.1 is an instrumentality of the State being owned and controlled by the Government of India, and, thus, is a state within the meaning of Article 12 of the Constitution. 2. A settlement arrived at in course of conciliation proceeding is binding upon all parties to the industrial dispute. 3. The petitioners have disputed their signatures on the demand raised on their behalf by All India Instrumentation Ltd. Projects employees Union dated 8-5-87 as contained in Annexure-F to the counter affidavit. However, the question as to whether the workmen have put their signatures on the said demand or not being a seriously disputed question of fact which requires parole evidence and thus cannot be and should not be decided by this Court in exercise of its writ jurisdiction. 4. The settlement as contained in Annexure-7 to the writ application is prima facie legal and, thus, binding on all the workmen. 5. A settlement admittedly entered into in view of the provisions contained in Sec.18 of the Industrial Dispute Act binds all wrokmen who are concerned and connected with the industrial dispute. However, if a settlement violates the fundamental right of a citizen, the same is liable to be struck down. 6. The doctrine of equal pay for equal work does not come within the purview of Article 14 of the Constitution of India as an abstract doctrine, but if any classification is unreasonable and /or if unequal pay is based on no classification, then Art.14 will at once be attracted and such classification should be set at nature and equal pay may by directed to be given for equal work. 7. The petitioners are at least entitled to the benefit of equal pay for equal work with effect from the date the persons junior to them had been put in similar scale of pay by reason of regularisation of their service. 8. In absence of any statutory provisions or a policy decision, the question of appointment on substantive capacity against par-manent vacancy in violation of Articles 14 and 16 of the Constitution must be held to be impermissible. 9. Any appointment which was made by a person having no authority to do so or the appointments which have not been made following the mandatory provisions of the recruitment Rules and Articles 14 and 16 of the Constitution, such appointments should be held to be a nullity. 10. This Court cannot issue any writ upon the respondents directing the respondents to absorb the petitioners permanently in their services.

Fact of the Case:

Writ petition filed by employees of respondent company seeking issuance of writ of mandamus commanding upon respondents to consider their cases for regularization of their services in regular employment by giving retrospective effect that is from the date of their appointments in the Establishment and further directing them to pay equal pay for equal work.

Finding of the Court:

Writ petition partly allowed.

Issues: 1. Whether respondent No.1 is a state within the meaning of Article 12 of the Constitution of India? 2. Whether this Court in exercise of its writ jurisdiction can quash the tripartite settlement? 3. Whether the alleged tripartite settlement (Annexure-7) is legal and valid? 4. Whether, even assuming that the said settlement is valid and genuine and, thus, binding upon the petitioners, they are entitled to invoke the doctrine of equal pay for equal work on the ground of violation of their fundamental lights as enshrined under Articles 14 and 21 read with Articlo 39 (d) of the Constitution of India? 5. Whether this Court in exercise of its power under Article 226 of the Constitution of India can grant the relief to the petitioner by issuing a writ of mandamus directing the respondents to regularise the services of the petitioners?

Ratio Decidendi: 1. Respondent No.1 is an instrumentality of the State being owned and controlled by the Government of India, and, thus, is a state within the meaning of Article 12 of the Constitution. 2. A settlement arrived at in course of conciliation proceeding is binding upon all parties to the industrial dispute. 3. The petitioners have disputed their signatures on the demand raised on their behalf by All India Instrumentation Ltd. Projects employees Union dated 8-5-87 as contained in Annexure-F to the counter affidavit. However, the question as to whether the workmen have put their signatures on the said demand or not being a seriously disputed question of fact which requires parole evidence and thus cannot be and should not be decided by this Court in exercise of its writ jurisdiction. 4. The settlement as contained in Annexure-7 to the writ application is prima facie legal and, thus, binding on all the workmen. 5. A settlement admittedly entered into in view of the provisions contained in Sec.18 of the Industrial Dispute Act binds all wrokmen who are concerned and connected with the industrial dispute. However, if a settlement violates the fundamental right of a citizen, the same is liable to be struck down. 6. The doctrine of equal pay for equal work does not come within the purview of Article 14 of the Constitution of India as an abstract doctrine, but if any classification is unreasonable and /or if unequal pay is based on no classification, then Art.14 will at once be attracted and such classification should be set at nature and equal pay may by directed to be given for equal work. 7. The petitioners are at least entitled to the benefit of equal pay for equal work with effect from the date the persons junior to them had been put in similar scale of pay by reason of regularisation of their service. 8. In absence of any statutory provisions or a policy decision, the question of appointment on substantive capacity against par-manent vacancy in violation of Articles 14 and 16 of the Constitution must be held to be impermissible. 9. Any appointment which was made by a person having no authority to do so or the appointments which have not been made following the mandatory provisions of the recruitment Rules and Articles 14 and 16 of the Constitution, such appointments should be held to be a nullity. 10. This Court cannot issue any writ upon the respondents directing the respondents to absorb the petitioners permanently in their services.

Final Decision: Writ petition partly allowed.