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PETITIONER: SATYANARAYAN SHARMA AND ORS.

       Vs.

RESPONDENT: NATIONAL MINERAL DEVELOPMENT CORPORATIONLTD. AND ORS.

DATE OF JUDGMENT06/08/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 2054            1990 SCR  (3) 618  1990 SCC  (4) 163        JT 1990 (3)   374  1990 SCALE  (2)169

ACT:     Labour  and Services: Daily-rated workmen--Principle  of regularisation--When    arises--’Equal   pay    for    equal work’--Doctrine-Applicability of.

HEADNOTE:     The  petitioners, claiming to be daily-rated workmen  of the  respondent Corporation in a writ before the High  Court demanded regularisation of their services and equal pay  for equal work on the ground that they were discharging the same duties as the regular workers. Their claim was contested  by the  respondents  on the ground that there was no  work  for them for a long time and they had been continued on rolls on humanitarian grounds. The High Court rejected their claim.     In their counter affidavit to the special leave petition it was stated on behalf of the respondents that there was no vacancy in the establishment to absorb the petitioners, that they were surplus to the requirement of the project and that it  had proposed a scheme of voluntary retirement for  their benefit which some of them had accepted. Dismissing the special leave petition, the Court,     HELD:  1.  The principle of regularisation of  a  daily- rated workmen and payment to him of the pay equal to that of a regular workman arises only when he is doing the same work as  the regular workman and there being a vacancy  available for him, he is not absorbed against it or not even paid  the equal pay for the period during which the same work is taken from him. [620E-F]     2. In the instant case, there were no vacancies or  work available  in the establishment for absorption of the  peti- tioners.  The  question of directing  their  absorption  and regularisation, therefore, does not arise. However, they  be given  the  benefit of the voluntary retirement  scheme  and paid the specified amounts in addition to other dues. [619H; 620A; G]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Special  Leave  Petition

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(Civil) No. 123 17 of 1987. From the Judgment and Order dated 2.9.1987 of the Madhya 619 Pradesh High Court in Misc. Petition No. 3308 of 1985. M.K. Ramamurthy and A.K. Sanghi for the Petitioners. Vinod  Bobde, P.S. Nair and K.V. Sreekumar for the  Respond- ents. The following Order of the Court was delivered     This petition for special leave is against the  judgment dated 2.9.1987 of the High Court of Madhya Pradesh  dismiss- ing the petitioners’ writ petition (M.P. No. 3308 of  1985). The  petitioners  demand regularisation  of  their  services claiming  to be daily-rated workmen for a long time  in  the mines  of the Diamond Mining Project, Panna of the  National Mineral  Development Corporation Ltd. Their demands  are  of regularisation and "equal pay for equal work" on the  ground that  they  are discharging the same duties as  the  regular workers. The management has throughout denied the  petition- ers’  claim and alleged that, in fact, the petitioners  have been continued on rolls on humanitarian grounds for  several years,  even though there is no work for them; and as  such, there  is  no question of regularising the  petitioners  and giving them the pay of regular workers when in fact they are not doing any work for a long time.     The High Court rejected the petitioners’ claim and  came to the following conclusion: "The petitioners are not regular employees, they do not have any  specific job to do, they are surplus to the  establish- ment and merely kept on the roll on humanitarian ground. The respondents are also running in heavy losses during the last three years and it is not possible to absorb the petitioners immediately as regular workmen. In fact, the petitioners are being paid their daily wages in spite of their being no work available for them." Aggrieved by dismissal of the writ petition, the petitioners have  filed this petition for special leave to appeal  under Article 136 of the Constitution.     In response to notice of this petition, a  counter-affi- davit has been filed on behalf of respondent No. 2 reiterat- ing  the  stand  taken before the High Court.  It  has  been stated therein that there is no vacancy in the establishment to absorb the petitioners and the accumulated loss to 620 the   establishment   as  on  31st  March,   1988   is   Rs. 10,29,40,583.  A  copy of the balance sheet  has  also  been enclosed with the counter-affidavit. It has been stated that the  petitioners  being surplus to the  requirement  of  the Project,  they cannot be regularised and their retention  on the rolls is purely on humanitarian grounds so far.  Further facts  have been stated in support of their  contention.  It has  also  been stated that a  Voluntary  Retirement  Scheme offering  considerable amount to these  daily-rated  workmen has been framed, which is Annexure R-V to the counter  affi- davit.  This document shows-the amount of retrenchment  com- pensation  and  the  ex-gratia payment  offered  to  the  63 daily-rated  workmen under this Scheme. The  54  petitioners are included therein. It was stated at the hearing before us that  9  out of these 63 daily-rated  workers  mentioned  in Annexure R-V have accepted this Scheme of Voluntary  Retire- ment and respondent No. 2 is prepared to give benefit of the same even to those who may not have agitated their claim.     We  do  not find any ground to interfere with  the  High Court’s decision in view of the clear findings supported  by evidence  that there are no vacancies or work  available  in the establishment for absorption of the petitioners and that

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for  quite some time they have been continued on  rolls  and paid  in  spite of there being no work for  them.  On  these facts, the question of directing their absorption and  regu- larisation  does not arise. The principle of  regularisation of  a  daily-rated workman and payment ’to him  of  the  pay equal  to  that of a regular workman arises  only  when  the daily-rated  workman is doing the same work as  the  regular workman  and there being a vacancy available for him, he  is not  absorbed against it or not even paid the equal pay  for the period during which the same work is taken from him.  On the  clear findings in this case, this is not the  position. This petition must, therefore, fail.     In  spite of our above conclusion, keeping in  view  the offer  made  on behalf of respondent No. 2 in  the  counter- affidavit  together  with  Annexure R-V  thereto  which  was reiterated at the heating before us, we direct that all  the 63  daily-rated workmen including the 54 petitioners  herein mentioned  in  the  aforesaid Annexure R-V  to  the  counter affidavit  be given the benefit of the Voluntary  Retirement Scheme  framed  by  respondent No. 2 and they  be  paid  the specified  amounts  in  addition to their  all  other  dues. Subject  to  this direction, the special leave  petition  is dismissed. No costs. P.S.S.                                              Petition dismissed. 621