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1996 Supreme(Ori) 224
IN THE HIGH COURT OF ORISSA
S.N. Phukan, A. Pasayat, JJ.
DHANANJAYA SAHOO AND ANOTHER AND MADHUSUDAN PANI - APPELLANT
Versus
MANAGING DIRECTOR, ORISSA CONSTRUCTION CORPORATION LTD. AND ANOTHER - RESPONDENT
O.J.C. Nos. 112 and 176 of 1994
Decided On : 18-12-1996
C.A.R. Dora and V. Narasingh, for the Appellant; L. Pangari, N.C. Patnaik, S. Jena, S. Das and S.S. Sukla, for the Respondent
The principle of equal pay for equal work is attracted only when two sets of employees are similarly situated and are discharging similar functions but yet are getting different scales of pay. The regularisation of services of temporary employees can be directed only if there are regular posts available.
Headnote:
EQUAL PAY FOR EQUAL WORK - REGULARISATION OF SERVICES - SECTION 25F AND 25H OF THE INDUSTRIAL DISPUTES ACT, 1947 - The court held that the principle of equal pay for equal work is attracted only when two sets of employees are similarly situated and are discharging similar functions but yet are getting different scales of pay. The court also held that the regularisation of services of temporary employees can be directed only if there are regular posts available. In the absence of regular posts, the court cannot direct the creation of posts and thereby increase the establishment costs of the employer.
Fact of the Case:
The petitioners, who were employed on a temporary basis by the Orissa Construction Corporation Ltd. (the Corporation), filed writ petitions seeking equal pay and allowances as their counterparts in the regular establishment and regularisation of their services. The Corporation opposed the petitions, stating that it was a contractor's establishment and had to keep its establishment cost low. It also stated that the petitioners were employed purely on a temporary basis and their services were terminated by following the provisions of Section 25F of the Industrial Disputes Act, 1947.
Finding of the Court:
The court found that the Corporation was a contractor's establishment and had to compete with other contractors/private builders in open tender. Therefore, it had to keep its establishment cost low and could not afford to have a large number of employees unless they had adequate work-load. The court also found that the project works undertaken by the Corporation were of seasonal nature and, therefore, there was no need to absorb all the employees permanently.
Issues: 1. Whether the petitioners were entitled to equal pay and allowances as their counterparts in the regular establishment. 2. Whether the petitioners were entitled to regularisation of their services.
Ratio Decidendi: 1. The court held that the principle of equal pay for equal work is attracted only when two sets of employees are similarly situated and are discharging similar functions but yet are getting different scales of pay. In the present case, the petitioners were not similarly situated as their counterparts in the regular establishment, as they were employed on a temporary basis and their work was of a seasonal nature. 2. The court held that the regularisation of services of temporary employees can be directed only if there are regular posts available. In the present case, there were no regular posts available, as the Corporation was a contractor's establishment and its work was of a seasonal nature.
Final Decision: The court dismissed the writ petitions and also vacated the interim orders. However, the court issued directions for giving the benefits of Section 25H of the Industrial Disputes Act, 1947, to the petitioners and other similarly situated persons.
JUDGMENT :
S.N. Phukan, C.J. - By this common judgment and order, we propose to dispose of the aforesaid two writ petitions as the facts and the points of law involved in both of them are the same.
2. Petitioner No. 1 in OJC 112/94 was appointed as a mate on NMR basis in the year 1981. He continued as such up to the year 1987. Thereafter, he was retrenched from service and was again appointed in the said post on 2-4-1991. Similarly, petitioner No. 2 worked as a Pump Operator under the opposite party-Corporation from 5-10-1981 to 8-6-1985 and then as Helper Grade- I from 22-7-1985 to 14-6-1987 on NMR basis. He was retrenched and was again appointed as Helper. According to the petitioners, though their counterparts in the regular establishment of the opposite party-Corporation were getting higher emoluments, they were denied the benefit. The petitioners have claimed equal pay and allowences as are available to their counterparts in the regular establishment. They have also made a prayer for regularisation of their services.
3. Petitioner in OJC 176/94 was working as Helper Grade-II from 4-10-1931 to 15-6-1986. He was retrenched and again re-appointed in the same capacity on 1-3-1991. His grievance is similar, so also the prayer for relief.
4. The claim of the petitioners is based on a decision of the apex Court in Managing Director, Orissa Construction Corpn. and Others Vs. Shyam Sundar Jena and Others by which the Division Bench decision of this Court was approved with modification. This Court had allowed the writ petition of the workmen in the following terms:
"We would accordingly direct that the petitioners shall be paid salary and allowances as are paid to their counterparts in regular establishment with effect from the date they were respectively employed. If in the meanwhile, the scale of pay has been revised, they would also be entitled to the same revised scale of pay. Having considered the contention raised in the counter-affidavit, we also adopt the direction given in the aforesaid decision of this Court. We direct the Corporation to take appropriate steps to regularise the services of such of the petitioners who are in continuous service of the Corporation for more than 5 years."
The above direction was upheld by the apex Court with the clarification that the expression "counter-parts in regular establishment" means; the project where the workman are/were working. The direction of this Court regarding ragularisation was modified to the extent that the workman who had put in five years of service would continue in, service of the management and their services would not be dispensed with. Further, the management would regularise them as and -when regular vacancies would be available. The workmen may be deputed to work in any of the projects under the control of the management where vacancies are available. It was further directed by the apex Court that the workmen who had served management for more than five years and whose services in the the meanwhile have bean terminated shall be taken back in service with continuity of service.
5. In the counter-afiidavit filed on behalf of the Orissa Construction Corporation Ltd., it has been stated that the Corporation is a contractor's establishment and it has to compete with other contractors/private builders in open tender. Therefore, it has to keep its establishment cost low and it cannot afford to have large number of employees unless they have adequate work-load. According to the opposite party-Corporation, the project works undertaken by the Corporation are of seasonal nature and, therefore, there is no need to absorb all the employees permanently. In view of the deteriorating financial condition, the Corporation in May/June, 1995 was constrained to terminate the services of about 200 temporary employees including 29. engineers. The Corporation had also requested the State Government to take back 68 engineering staff starting form the rank of Assistant Manager to Genera! Manager
