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CASE NO.: Appeal (civil)  337 of 2002

PETITIONER: Mahendra L. Jain & Ors.

RESPONDENT: Indore Development Authority & Ors.

DATE OF JUDGMENT: 22/11/2004

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

W I T H  

CIVIL APPEAL NOS.334 & 335 OF 2002

S.B. SINHA, J :

       These appeals arising out of a judgment and order dated 26.4.2000  passed in Writ Petition No.1188 of 1997 by the High Court of Madhya  Pradesh, Indore Bench,  involving similar questions of law and fact were  taken up for hearing together and are being disposed of by this common  judgment.

BACKGROUND FACTS : The Appellant Nos.1 and 2 are Degree holders in Civil Engineering  and Appellant Nos. 3 and 4 are Diploma holders in Civil Engineering.  They  having come to learn that certain vacancies exist in the Respondent- Authority, applied therefor although no advertisement in that behalf was  issued.   The  Respondent-Authority appointed the Appellants and posted  them to an overseas  project known as ’Indore Habitat Project’ which was  implemented through the agency of  ’Overseas Development Authority’  (hereinafter referred to as ’the ODA’), on daily wages @ Rs.63/- per day for  the Degree holders and Rs.52.50 per day for the Diploma holders.   On or  about 17.3.1997, however, they began receiving a salary of Rs.1500/- per  month. Allegedly, from their salary, provident fund was being deducted.  They were also being granted the benefit of leave.   

       A dispute arose as to whether all the Appellants were employed for  the purpose of the said project or the Appellants in Civil Appeal No.337 of  2002 were appointed in the year 1991 by the Authority for its own job.  An  industrial dispute was raised by the Appellants herein as their services were  not being regularized by the Respondent.  The said dispute was referred  for   adjudication of the Labour Court, Indore, by the State of Madhya Pradesh on  the following questions :

"(1)    Whether non-regularisation of the Sub-Engineers  (as per the listed enclosed) is valid and proper?  If  no, then to which relief they are entitled  and what  directions should be given to the employer?

(2)     Whether it is valid and proper for not giving equal  salary to these Sub Engineers like other Sub  Engineers in accordance with the equal work?  If  no, then to which relief they are entitled and what  directions should be given to the employer?"

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PROCEEDINGS BEFORE THE TRIBUNAL :

The parties filed their respective pleadings before the Labour Court  and also adduced their respective evidences.   The Labour Court on the basis  of the materials produced before it arrived at the following  findings :

1.      The Appellants were appointed by the Indore Development     Authority. 2.      All the employees have been working in the  establishment of  the Respondents for last 5-6 years.  3.       Their work was satisfactory.   4.      Work has been taken by the Respondent from all the Appellants  except four. 5.      Respondents  had also mentioned in their claim that there was a  proposal to hand over the colony of ODA Project to Indore  Municipal Corporation.    6.      The salary fixed by the Commissioner was earlier given to all  Engineers and later on  they were given the salary fixed by the  Collector. 7.      There is no difference in their work and the work of the  employees of Indore Development Authority.

Aggrieved by and dissatisfied with the said Award, the Respondent- Authority herein filed a writ petition before the Madhya Pradesh High Court,  Indore Bench, which was marked as Writ Petition No.1188 of 1997.  By  reason of the impugned judgment dated 26.4.2000, the said writ petition was  allowed.

HIGH COURT JUDGMENT :         The High Court accepted the contention of the Respondent-Authority   that the Appellants were not appointed against the sanctioned  posts and   their services were taken on account of the said ODA Project which was  implemented through the agency of the Respondent-Authority.  The ODA  Project is said to have been completed and only the maintenance thereof was  to be looked after by the Indore Municipal Corporation.  It was held that the  services of the Appellants cannot be directed to be regularized in services.  As regard the application of  the Madhya Pradesh Industrial Employment  (Standing Orders) Act, 1961 (for short, ’the 1961 Act’) and the Rules framed  thereunder known as ’M.P. Industrial Employment (Standing Order) Rules,  1963 (for short,  ’the 1963 Rules’), it was observed that although there was  no specific pleadings raised in this behalf  by the Respondents therein nor  any question having been referred to the Labour Court by the State  Government touching the said issue,  it committed an error in granting relief  to them  on the basis thereof  on its own motion.  Despite the same the High  Court went into the question of applicability of the said Act and held that the  1961 Act and the 1963 Rules had no application.  Before the High Court  various documents were produced by the Appellants herein to show  the   nature of their employment, but the same had not been taken on records by  the High Court.  As regard application of the doctrine of ’equal pay for equal  work’, it was held to be not applicable  as the Appellants  were not entitled  to ‘absorption’ or ‘classification’ in terms of the 1961 Act and the 1963  Rules.

SUBMISSIONS :         Dr. Rajiv Dhawan, learned Senior Counsel, appearing on behalf of the  Appellants in Civil Appeal No.337 of 2002 and Mr. M.N. Rao, learned  Senior Counsel, appearing on behalf of the Appellants in Civil Appeal  No.335 of 2002, took us through materials  on records and contended that  the Appellants herein became ‘permanent employees’ of the Respondents  having regard to the provisions contained in Section 2 of the 1961 Act   and  Order  2(i) and 2(vi) of the Standard Standing Orders as set out in the  Annexure appended to the 1963 Rules defining ‘permanent employees’ and  the ‘temporary employees’.

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       Placing reliance on several documents which have come into  existence at a subsequent stage, Dr. Dhawan would contend that vacancies in  fact had arisen after passing of the judgment of the High Court and, thus the  services of the Appellants should be  regularized thereagainst.  The  vacancies, according to the learned counsel, need not be permanent ones .  It  was urged that the expression ’clear vacancies’ has to be read in the context  of period for which the concerned workman was required to work, namely,  six months.  The learned counsel would argue that the job was required to be  performed for six months for which somebody else could have been  appointed so as to attract the provisions of the 1961 Act and the 1963 Rules.         Dr. Dhawan would furthermore contend that the findings of fact had  been arrived at by the Labour  Court that the Appellants of Civil Appeal  No.337 of 2002 were appointed by the Authority and not only their work  was being taken in the Project but also in other works,  and, thus, mere   posting of  the Appellants to the said Project would not disentitle them from  the benefit of the said Act.

       The learned counsel would urge that a seniority list was also drawn up  and an employment code was assigned to each one of the Appellants from  which fact the nature of their employment should be judged.

       The learned counsel would submit  that the sufficient materials were  brought on records to show that vacancies were available and as the  Appellants worked for a period of more than six months, they became  permanent employees in terms of  the Act.  It was further contended that as  the Respondents despite direction to produce documents including the offers  for appointment did not produce  the same, an adverse inference should have  been drawn against them by the High Court.  As regard the claim of ’equal  pay for equal work’, the learned counsel would urge  that the High Court has  failed to consider the same in its true perspective.         Mr. V.R. Reddy, learned Senior Counsel appearing on behalf of the  Respondents, on the other hand, would contend  that indisputably the  Appellants were engaged by the Respondent-Authority but such  appointments were made for the purpose of the Project financed by ODA.   The learned counsel would submit that in fact no appointment letter was  issued to the Appellants. Our attention was also drawn to the application  dated 22.10.1991 filed by one O.P. Mandloi before the Chairman of the  Indore Development Authority disclosing his educational qualifications and  enclosing therewith the mark-sheets and degrees obtained by him  in Civil  Engineering and also Secondary School Examination Certificate to show his  date of birth whereupon the Chief Executive Officer on the body of the said  application itself, made the following endorsement :

"He may be tried in daily wages and should be entrusted  with the work of progress collection of ODA work put  with (Illegible).

                                                 Sd/-                                                                 C.E.O.                                                                 23.10.91"

The learned counsel would submit that in the aforementioned premise  the question of regularization of the services of the Appellants does not  arise.  Drawing our attention also to the pleadings as also the reliefs claimed  for by the Appellants before the Labour Court, the learned counsel would  contend that no contention was raised therein by the Appellants  as regard  their entitlement of permanency in terms of the provisions of the 1961 Act  and the 1963 Rules. Furthermore,  from the reliefs claimed, it would appear  that the Appellants had, inter alia, prayed for continuance of their services  by the Indore Municipal Corporation which knocks off the  very basis of  their  claim.   It was urged that there does not exist any controversy that  ODA was to continue before 30.6.1997 and as such the Appellants could not  have been absorbed by the Respondent authority.

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STATUTORY PROVISIONS :         Section 2(2) of the 1961 Act reads as follows :

"Nothing in this Act shall apply to the employees in an  undertaking to whom the Fundamental and  Supplementary Rules, Civil Services (Classification,  Control and Appeal) Rules, Civil Services (Temporary  Service) Rules, Revised Leave Rules, Civil Service  Regulations or any other rules or regulations that may be  notified in this behalf by the State Government in the  official Gazette apply."  

       Clause 2 of the  Standard Standing Order reads as under :

"2.     Classification of employees. \026 Employees shall be  classified as (i) permanent , (ii) permanent seasonal,(iii)       Probationers, (iv) Badlies, (v) Apprentices, and (vi)  temporary.

(i)     A ’permanent’ employee is one who has  completed six months’ satisfactory service in a clear  vacancy in one or more posts whether as a probationer or  otherwise, or a person whose name has been entered in  the muster roll and who is given a ticket of permanent  employee;

\005            \005            \005            \005

(vi)    ’Temporary employee’ means an employee who  has been employed for work which is essentially of a  temporary character, or who is temporarily employed as  an additional employee in connection with the temporary  increase in the work of a permanent nature; provided that  in case such employee is required to work continuously  for more than six months he shall be deemed to be a  permanent employee, within the meaning of clause (i)  above."                                  

DETERMINATION :    The Respondent-Authority is a State within the meaning of Article 12  of the Constitution of India.  It is, therefore, constitutionally obliged to  strictly comply with the requirements of Articles 14 and 16 thereof before  making any appointment.  It is also not in dispute that the Respondent- Authority has been constituted under Madhya Pradesh Nagar Tatha Gram  Nibesh Adhiniyam, 1973 (Adhiniyam);  Section 47 whereof mandates that  all appointments to the posts of officers and servants included in the State  cadre mentioned in Section 76-B of the Development Authority Services  must be made by the State Government and the appointments to the posts of  officers and servants included in the local cadre in the said services by the  concerned Town and Country Development Authority.  The proviso  appended to Section 47 of the Adhiniyam further mandates that no post shall  be created in any authority without the prior sanction of the Sate  Government.   Section 76B provides for constitution of development  authorities service.           It is also not in dispute that the State Government in exercise of its  rule making power conferred upon it under Section 85 of the Adhiniyam has  made rules known as ’M.P.  Development Authority Services  (Officers and  Servants) Recruitment Rules, 1987.    The posts of Sub Engineers in which the Appellants were appointed, it  is nobody’s case, were sanctioned ones.  Concededly, the Respondent  Authority before making any appointment neither intimated the Employment  Exchange about the existing vacancies, if any, nor issued any advertisement

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in relation thereto.  Indisputably, the conditions precedent for appointment  of the officers and servants of the Authority, as contained in the Service  Rules had not been complied with.  The appointments of the Appellants  were, therefore,  void ab initio being opposed to  public policy as also  violative of Articles 14 and 16 of the Constitution of India.

The question, therefore, which arises for consideration is as to  whether they could lay a valid claim for  regularization of their services.   The answer thereto must be rendered in negative.  Regularisation cannot be  claimed as a matter of right.  An illegal appointment cannot be legalized by  taking recourse to regularization.  What can be regularized is an irregularity  and not an illegality.  The Constitutional Scheme which the country has  adopted does not contemplate any backdoor appointment.  A State before  offering public service to a person must comply with the constitutional  requirements of Articles 14 and 16 of the Constitution.  All actions of the  State must conform to the constitutional requirements.  A daily wager in  absence of a statutory provision in this behalf would not be entitled to  regularization.  [See State of U.P. & Others Vs. Ajay Kumar, (1997) 4 SCC  88, Jawaharlal Nehru Krishi Viswa Vidyalaya, Jabalpur, M.P. Vs. Bal  Kishan Soni and Others (1997) 5 SCC 86]

In Hindustan Shipyard Ltd. and Others vs. Dr. P. Sambasiva Rao and  Others [(1996) 7 SCC 499], a Division Bench of this Court observed :

"10.  The process of regularization involves regular  appointment which can be done only in accordance with  the prescribed procedure.  Having regard to the rules  which have been made by the appellant-Corporation,  regular appointment on the post of medical officer can  only be made after the duly constituted Selection  Committee has found the person suitable for such  appointment \005."    

       In A. Umarani vs. Registrar, Cooperative Societies and Ors. [JT 2004  (6) SC 110], a three-Judge Bench of this Court of which we were members   upon taking into consideration a large number of decisions held :

       "Although we do not intend to express any opinion  as to whether the cooperative society is a "State" within  the meaning of Article 12 of the Constitution of India but  it is beyond any cavil of doubt that the writ petition will  be maintainable when the action of the cooperative  society is violative of mandatory statutory provisions.  In  this case except the Nodal Centre functions and  supervision of the cooperative society, the State has no  administrative control over its day to day affairs.  The  State has not created any post nor they could do so on  their own.  The State has not borne any part of the  financial burden.  It was, therefore, impermissible for the  State to direct regularization of the services of the  employees of the cooperative societies.  Such an order  cannot be upheld also on the ground that the employees  allegedly served the cooperative societies for a long time.  

       Yet recently in Pankaj Gupta & Ors., etc. vs. state of Jammu &  Kshmir & Ors.   [JT 2004  (8) SC 531], a Division Bench of this Court  opined :

"No person illegally appointed or appointed without  following the procedure prescribed under the law, is  entitled to claim that he should be continued in service.  In this situation, we see no reason to interfere with the  impugned order.  The appointees have no right for  regularization in the service because of the erroneous  procedure adopted by the concerned authority in

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appointing such persons\005"

CASE LAW RELIED UPON BY THE APPELLANT :

 In   Dr. A.K. Jain and Others etc. vs. Union of India and Others  [1987 (Supp.) SCC 497], this Court did not lay down any law.   It was, in  fact, held that as the Petitioners therein were not  regularized in accordance  with  the prescribed  rules and regulations for regular appointments, their  services had to be terminated and as such there had been neither any  arbitrary nor illegal action on the part of the respondents nor any violation of  the Fundamental Rights guaranteed under Articles 14 and 16.  However,  having regard to the facts and circumstances of the said case, some  directions were issued presumably in terms of Article 142 of the  Constitution.   

In  Hindustan Shipyard Ltd. (supra) this Court also distinguished the  said decision.

In Niadar and Another vs. Delhi Administration and Another [(1992)  4 SCC 112], again no law has been laid down.  It appears that there existed a  scheme for regularization and some directions were issued in terms thereof.    The said decisions, thus, are of no assistance in this case.  

APPLICATION OF THE  ACT AND THE RULES :          The 1961 Act was enacted to provide for rules defining with sufficient  precision in certain matters the conditions of employment of employees in  undertakings in the State of Madhya Pradesh.  By reason of the provisions of  the said Act, application of Standard Standing Orders to undertakings has  been provided in terms whereof the matters to be provided in the Standard  Standing Orders have been specified.  Under sub-section (1) of Section 6,  the State Government  may, by notification, apply Standard Standing Orders  to such class of undertakings and from such date as may be specified therein.   Sub-section (2) of Section 6 reads as under :

"Where immediately before the commencement of this  Act standing order are in force in respect of any  undertaking, such standing orders shall, until standard  standing orders are applied to such undertaking under  sub-section (1) continue in force as if they were made  under this Act."   

       No notification has been brought to our notice that the Standard  Standing Orders had been made applicable to the Appellants.  It is  furthermore not  in dispute that Adhiniyam came into force in 1973.  The  statute, rules and regulations formed  by the State govern the terms and  conditions of service of the employees of the Respondent.  The terms of  conditions of service contained in the 1973 Act and the 1987 Rules are not  in derogation of the provisions contained in schedule appended to the 1961  Act.            The 1961 Act provides for classification of  employees in five  categories.  The 1973 Act, as noticed hereinbefore, clearly mandates that all  posts should be sanctioned by the State Government and all appointments to  the said cadre must be made by the State Government alone.  Even the  appointments to the local cadre must be made by the Authority.The said  provisions were not complied with.  It is accepted that no appointment letter  was issued in favour of the Appellants.  Had the appointments of the  Appellants been made in terms of the provisions of the Adhiniyam and  Rules framed thereunder, the Respondent-Authority was statutorily enjoined  to make an offer of appointment in writing which was to be accepted by the  Appellants herein.  Who made the appointments of the Appellants to the  Project or other works carried on by the Authority is not known.  Whether  the person making an appointment had the requisite jurisdiction or not is

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also not clear. We have noticed hereinbefore that in the case of   Om Prakash  Mondloi,  the CEO made an endorsement to the effect that he may be tried  in daily wages and should be entrusted with the work of progress collection  of ODA work.  The said order is not an ’offer of appointment’ by any sense  of term.   

       It may be true that the Appellants had been later on put on a monthly  salary but there is nothing on record to show as to how the same was done.   They might have been subjected to the provisions of the employees  provident fund and might have been granted the benefit of leave or given  some employment code and  their names might have found place in the  seniority list amongst others, but thereby they cannot be said to have been  given a permanent ticket.  The so-called seniority list which is contained in  Annexure P-27, whereupon strong reliance has been placed by Dr. Dhawan  merely itself goes to show that it was prepared in respect of office muster  employees.  The said seniority list was not prepared in terms of the  classification of employees within the meaning of the 1961 Act and the rules  framed thereunder but was based on the date of joining probably for the  purpose of maintenance of records.  The 1973 Act or the rules framed  thereunder do not provide for appointments on ad hoc basis or on daily  wages.  The 1961 Act itself shows that the employees are to be classified in  six categories, namely, permanent, permanent seasonal, probationers,  badlies, apprentices and temporary.  The recruitments of the Appellants do  not fall in any of the said categories.  With a view to become eligible to be  considered as a permanent employee or a temporary employee, one must be  appointed in terms thereof.   Permanent employee has been divided in two  categories (i) who had been appointed against a clear vacancy in one or more  posts as probationers and otherwise; and (ii) whose name had been  registered at muster roll and who has been given a ticket of permanent  employee.  A ’ticket of permanent employee’ was, thus,  required to be  issued in terms of Order 3 of the Standard Standing Orders.  Grant of such  ticket was imperative before permanency could be so claimed.  The  Appellants have not produced any such ticket.

       It is not the case of the Appellants that they had been working as  Technical Supervisors and Clerks in respect of which service book may be  maintained instead of issuance of a ticket.  It is also not the case of the  Appellants that their names had appeared in the service book maintained for  the said purpose.

       The Standing Orders governing the terms and conditions of service  must be read subject to the constitutional limitations wherever applicable.   Constitution being the  suprema lax, shall prevail over all other statutes.  The  only provision as regard recruitment of the employees is contained in Order  4 which merely provides that the Manager shall within a period of six  months, lay down the procedure for recruitment of employees and notify it  on the notice board on which Standing Orders are exhibited and shall send  copy thereof to the Labour Commissioner.  The matter relating to  recruitment is governed by the 1973 Act and the 1987 Rules.  In absence of  any specific directions contained in the schedule appended to the Standing  Orders, the statute and the statutory rules applicable to the employees of the  Respondent shall prevail.

       In M.P. Vidyut Karamchari Sangh vs. M.P. Electricity Board  [(2004)  9 SCC 755],  a three-Judge Bench of this Court held that a regulation which  is not  inconsistent with the provisions of the 1961 Act and the Rules, can be  issued by a statutory authority.

       For the purpose of this matter, we would proceed on the basis that the  1961 Act is a special statute. vis-‘-vis the 1973 Act and the rules framed  thereunder.  But in absence of any conflict in the provisions of the said Act,  the conditions of service including those relating to recruitment as provided  for in the 1973 Act and the 1987 Rules would apply.  If by reason of the  latter, the appointment is invalid, the same cannot be validated by taking  recourse to regularization. For the purpose of regularization which would

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confer on the concerned employee a permanent status, there must exist a  post.  However, we may hasten to add that regularization itself does not  imply permanency.  We have used the term keeping in view the provisions  of 1963 Rules.

       We have noticed the provisions of the Act and the Rules. No case was  made out by the Appellants herein in their statements of claim that they  became permanent employees in terms thereof. There is also nothing on  records to show that such a claim was put forward even in the demand  raising the industrial dispute.  Presumably, the Appellants were aware of the  statutory limitations in this behalf.  Furthermore, the Labour Court having  derived its jurisdiction from the reference made by the State Government,  it  was bound to act within the four-corners thereof.  It could not enlarge the  scope of the reference nor could deviate therefrom.  A demand which was  not raised at the time of raising the dispute could not have been gone into by  the Labour Court being not the subject-matter thereof.          The questions which have been raised before us by Dr. Dhawan had  not been raised before the Labour Court.  The Labour Court in absence of  any pleadings or any proof as regard application of the 1961 Act and the  1963 Rules had proceeded on the basis that they would become permanent  employees in terms of Order 2(ii) and 2(vi) of the Annexure appended  thereto.  The Appellants did not adduce any evidence as regard nature of  their employment or the classification under which they were appointed.  They have also not been able to show that they had been issued any  permanent ticket.  Dr. Dhawan is not correct in his submission that a  separate ticket need not be issued and what was necessary was merely to  show that the Appellants had been recognized by the State as its employees  having been provided with  employment code.  We have seen that their  names had been appearing in the muster rolls maintained by the Respondent.   The Scheme of the employees provident fund or the leave rules would not  alter the nature and character of their appointments. The nature of their  employment  continues save and except a case where a statute interdicts  which in turn would be subject to the constitutional limitations. For the  purpose of obtaining a permanent status, constitutional and statutory  conditions precedent therefor must be fulfilled.

       The submission of Mr. M.N. Rao to the effect that the principle of  equity should be invoked in their case is stated to be rejected.  Such a plea  had expressly been rejected by this Court in A. Umarani (supra).   

PROJECT WORK :         This case involves 31 employees.  A distinction is sought to be made  by Dr. Dhawan that out of them 27 had been appointed to a project and not  in a project.    The distinction although appears to be attractive at the first  blush but does not stand a moment’s  scrutiny.  As noticed hereinbefore, the  High Court’s observation remained unchallenged, that the project was to be  financed by ODA.  The project was indisputably to be executed by the  Indore Development Authority; and for the implementation thereof, the  appointments had to be made by it.  If the Appellants were appointed for the  purpose of the  project, they would be deemed to have been appointed  therefor and only because such appointments had been made by the  Respondent would by itself not entitle them to claim permanency.  The life  of the project came to an end on 30.6.1997.  The maintenance job upon  completion thereof had been taken over by Indore Municipal Corporation.   The Appellants were aware of the said fact and, thus, raised an alternative  plea in their statements of claims.  The Labour Court could not have granted  any relief to them as prayed for, as Indore Municipal Corporation is a  separate juristic person having been created under a statute. Such a relief  would have been beyond the scope and purport of the reference made to the  Labour Court by the State Government.  Furthermore, the Indore Municipal  Corporation was not a party and, thus, no employee could be thrust upon it  without its consent.              In A Umarani (supra), this Court held that once the employees are

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employed for the purpose of the scheme, they do not acquire any vested  right to continue after the project is over [See paras 41 and 43]. [See also  Karnataka State Coop. Apex Bank Ltd. Vs. Y.S. Shetty and Others, (2000)  10 SCC 179 and M.D. U.P. Land Development Corporation and Another Vs.  Amar Singh and Others, (2003) 5 SCC 388]

       It is furthermore evident that the persons appointed as daily wagers  held no posts.  The appointments, thus, had been made for the purpose of the  project which, as indicated hereinbefore,   came to an end.  The plea of Dr.  Dhawan to the effect that the Appellants in Civil Appeal No. 337 of 2002  were asked to perform other duties also may not be of much significance  having regard to our foregoing findings.  However, it has been seen that  even services of one of them had been requisitioned only for the project  work.   The High Court, in our opinion, was right in arriving at the  conclusion that the Appellants were not entitled to be regularized in service.

ADVERSE INFERENCE :         Some documents were said to have been called for from the  Respondents which are said to have been not produced.  One of such  documents was offers of appointment.  The witness examined on behalf of  the Respondents, although at one stage stated that the appointment letters  had been issued to them, upon going through the records brought with him,  however, asserted that no such appointment letter was issued.  Had the  letters of appointment been issued, the Appellants themselves could have  produced the same.  They did not do so.  It is accepted at the Bar, when the  endorsement on the application filed by Om Prakash Mondloi was shown  that the appointment letters were not issued. We do not know the relevance  of other documents  called for for determining the issue.  If a document was  called for in absence of any pleadings, the same was not relevant.  In  absence of any pleadings, the Appellants could not have called for any  document to show that the provisions of the 1961 Act and 1963 Rules would  apply.  Before the High Court as also before us, the Appellants have  produced a large number of documents which were not filed before the  Labour Court.  Such additional documents had been kept out of  consideration by the High Court as also by us.  We have referred to the said   fact only for the purpose of showing that it would not be correct to contend  that the Appellants had no access to the said documents.  An adverse  inference need not necessarily be drawn only because it would be lawful to  do so.  The Labour Court did not draw any adverse inference.  Such a plea  was not even raised before the High Court.  

       Recently in M.P. Electricity Board vs. Hariram etc. [2004 AIR SCW  5476], this Court observed :

""\005In such a factual background, in our opinion, the  Industrial Court or the High Court could not have drawn  an adverse inference for the non-production of the  Muster Rolls for the year 1990 to 1992 in the absence of  specific pleading by the respondents-applicants that at  least during that period they had worked for 240 days  continuously in a given year. The application calling for  the production of the documents was for the years 1987  to 1992.  As stated above, between the period 1987 to  1990, as a matter of fact, till end of the year 1990 the  respondents have not been able to establish the case of  continuous work for 240 days.  Considering these facts in  our view drawing of an adverse inference for the non- production of the  Muster Rolls for the years 1991-92, is  wholly erroneous on the part of the Industrial Court and  the High Court.  We cannot but bear in mind the fact that  the initial burden of establishing the factum of their  continuous work for 240 days in a year rests with the  applicants-respondents.

       The above burden having not been discharged and

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the Labour Court having held so, in our opinion, the  Industrial Court and the High Court erred in basing an  order of re-instatement solely on an adverse inference        drawn erroneously.  At this stage it may be useful to refer  to a judgment of this Court in the case of Muncipal  Corporation, Faridabad vs. Siri Niwas (JT 2004 (7) SC  248) wherein this Court disagreed with the High Court’s  view of drawing an adverse inference in regard to the  non-production of certain relevant documents.  This is  what this Court had to say in that regard..                     A Court of Law even in a case where provisions of  the Indian Evidence Act apply, may presume or  may not presume that if a party despite possession  of the best evidence had not produced the same,  it  would have gone against his contentions.  The  matter, however, would be different where despite  direction by a court the evidence is withheld.   Presumption as to adverse inference for  non- production of evidence is always optional and one  of the factors which is required to be taken into  consideration in the background of facts involved  in the lis. The presumption, thus, is not obligatory  because notwithstanding the intentional non- production, other circumstances may exist upon  which such intentional non-production may be  found to be justifiable on some reasonable  grounds.  In the instant case, the Industrial  Tribunal did not draw any adverse inference  against the Appellant.  It was within its jurisdiction  to do so particularly having regard to the nature of  the evidence adduced by the Respondent.""

       In any event, in this case, we have proceeded on the basis that the  assertions of the Appellants as regard nature of their employment, their  continuance in the job for a long time are correct and as such the question as  to whether any adverse inference should be drawn for alleged production of  documents called for would take a back seat.

EQUAL PAY FOR EQUAL WORK :         The Appellants having been employed on daily wages did not hold  any post.  No post was sanctioned by the State Government.  They were not  appointed in terms of the provisions of the statute. They were not, therefore,  entitled to take the recourse of the doctrine of  ’equal pay for equal work’ as  adumbrated in Articles 14 and 39(d) of the Constitution of India.  The  burden was on the Appellants to establish that they had a right to invoke the  said doctrine in terms of Article 14 of the Constitution of India.  For the  purpose of invoking the said doctrine, the nature of the work and  responsibility attached to the post are some of the factors which were bound  to be taken into consideration.  Furthermore, when their services had not  been regularized and they had continued on a consolidated pay on ad hoc  basis having not undergone the process of regular appointments, no direction  to give regular pay scale could have been issued by the Labour Court.  [See   Orissa University of Agriculture & Technology and Another vs. Manoj K.  Mohanty \026 (2003) 5 SCC 188].,

       In State of Haryana and Another vs. Tilak Raj and Others [(2003) 6  SCC 123], it was held :

"A scale of pay is attached to a definite post and in case  of a daily-wager, he hold no posts.  The respondent  workers cannot be held to hold any posts to claim even  comparison with the regular and permanent staff for any  or all purposes including a claim for equal pay and

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allowances. To claim a relief on the basis of equality, it is  for the claimants to substantiate a clear-cut basis of  equivalence and a resultant hostile discrimination before  becoming eligible to claim rights on a par with the other  group vis-‘-vis an alleged discrimination.  No material  was placed before the High Court as to the nature of the  duties of either categories and it is not possible to hold  that the principle of  "equal pay for equal work" is an  abstract one."

                The said decision has been noticed  in A. Umarani (supfa)      

CONCLUSION

       For the reasons aforementioned, we do not find any merit in these  appeals, which are dismissed accordingly.  There shall, however,  be no  order as to costs.