MANU/SC/0895/2002

Equivalent/Neutral Citation: AIR2003SC 33, 2003(1)ALLMR(SC )378, 2003 (1) AWC 273 (SC ), 95(2003)C LT287(SC ), [2002(95)FLR954], 2002
INSC 450, JT2002(8)SC 477, 2002LabIC 3558, (2002)IIILLJ1115SC , 2002(4)LLN1196(SC ), 2003(I)OLR200, 2002(8)SC ALE178, (2003)1SC C 250,
(2003)SC C (LS)65, [2002]Supp3SC R525, 2001(3)SC T902(SC ), 2001(2)SC T902(SC ), 2001(4)SC T902(SC ), 2002(4)SC T902(SC ),
2002(6)SLR542(SC ), 2002(2)UJ1535, (2003)1UPLBEC 239

IN THE SUPREME COURT OF INDIA

Appeal (civil) 7342 of 1993
Decided On: 29.10.2002
State of Orissa and Ors. Vs. Balaram Sahu and Ors.
Hon'ble Judges/Coram:
Doraiswamy Raju and H.K. Sema, JJ.
Counsels:
For Appearing parties: G.L. Sanghi, Sr. Adv., Jana Kalyan Das, Bharat Sangal, Sangeeta
Panicker, Rana Ranjit Kumar Singh, G. Biswas, S. Misra, J.R. Das, Ejaz Maqbool, Ujjwal
Kumar Jha, Kirti Renu Mishra, Y. Prabhakar Rao and J.P. Mishra, Advs,
Case Note:
Constitution of India - Article 14--Employment--Principle of 'equal pay for
equal work'--Contours--Equal pay to depend also on difference as to reliability
and responsibility--Functions may be same--But responsibilities do make real
and substantial difference--On facts, held that High Court not justified, in
absence of materials, to direct pay equal to that of regularly employed staff to
be given to N.M.R./daily wagers/casual workers to which they are not
entitled till their regularisation--However, till regularisation they would be
entitled to be paid only at rate of minimum wages prescribed or notified.
Though 'equal pay for equal work' is considered to be a concomitant of Article
14 of the Constitution as much as 'equal pay for unequal work' will also be a
negation of that right, equal pay would depend upon not only the nature or
the volume of work, but also on the qualitative difference as regards
reliability and responsibility as well and though the functions may be the
same, but the responsibilities do make a real and substantial difference.
The respondents-workers would be entitled to only, apart from the
regularisation ordered for which the appellants have had no serious
objections, the payment of minimum wage prescribed for such workers if it is
more than what they were being paid and the High Court was in serious error
in directing that the respondents should be paid the same salary and
allowances as were being paid to the regular employees holding similar posts.
The respondent-workers cannot be held to hold any posts to claim even any
comparison with the regular and permanent staff, for any or all purposes
including a claim for equal pay and allowances. The fact that no materials
were placed before the High Court as to the nature of duties of either
categories should have been viewed as a disentitling factor so far as the
workers are concerned and dissuaded the High Court from embarking upon an
inquiry in the abstract and with no factual basis and not to empower the
Court to assume and presume equality in the absence of proof to the contra or
of any unequal nature of the work performed by them. To claim a relief on the
basis of equality, it is for the claimants to substantiate a clear-cut basis of

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equivalence and a resultant hostile discrimination before becoming eligible to
claim rights on par with the other group vis-a-vis an alleged discrimination.
JUDGMENT
Doraiswamy Raju, J.
Civil Appeal No. 7342 of 1993:
1. The respondents in this appeal, who are N.M.R. workers, have filed Writ Petition in
the High Court of Orissa for payment of remuneration on the same scale and basis paid
to the regularly employed staff, claiming that they are discharging the same duties and
functions, invoking the principle of 'equal pay for equal work'. They also sought for
regularization of their services on the ground that they have been found working for
considerably long period of time to justify their regularization. The appellant-State
contested the claim by contending that the duties and responsibilities of the employees
in the regular establishment were more onerous than that of the duties of N.M.R.
workers, who are employed in various projects on daily basis and that their engagement
also depended on the availability of the work in the different projects and consequently,
they cannot claim any parity for equal pay. The Division Bench of the High Court by a
judgment dated 10.3.1992 upheld the claim for regularization by observing that the said
aspect of the matter was not seriously challenged. As for the claim for equal pay, the
High Court was of the view that there was no reason to deny them the equal scales of
pay and sustained their claim on par with those employed on regular basis with effect
from 2.1.1990, namely, the date of filing of the Writ Petition, with a further direction
that those who have served continuously for a period of five years by then should be
regularized. Aggrieved, the above appeal has been filed.
Civil Appeal No. 7343 of 1993:
2. The respondents in this appeal, who are N.M.R. workers in the Rengali Power Project,
also claim for similar relief as in the other appeal, noticed supra. Overruling the
objections of the appellants, while directing regularization of the workers, who have
completed five years of continuous service as on the date of the order, the High Court
also applying the principles laid down in the earlier cases, upheld in this case as well
the right to get equal pay though in the matter of actual payment taking into account
the negligible difference, a lump sum amount was directed to be made available to take
care of the claim of all the respondents. Aggrieved, this appeal has been filed.
Civil Appeal No. 751 of 1995:
3. The respondent in this appeal, who are N.M.R. workers employed in the various
projects of the Irrigation Department of the State Government, sought for relief of
regularization of their services and equal pay as that of the regularly employed staff. As
in the other cases, the claims were sustained necessitating this appeal also by the State.
Civil Appeal Nos. of 2002
(Arising out of S.L.P.[C] Nos. 16204-16205 of 1996):
4. Delay condoned.
5. Special leave granted.
6. The respondents in these appeals are also the N.M.R. workers in the projects of the
Irrigation Department and their claims for regularization as well as payment of salary on

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equal par with their counterparts in the regular establishment. This claim, applying the
ratio of the earlier orders, was also sustained, resulting in the filing of these appeals by
the State.
7. Heard Shri Jana Kalyan Das, Advocate, for the State of Orissa, and Shri G.L. Sanghi,
Senior Advocate, for the appellant-Rengali Power Project. Mr. Bharat Sangal, Mr. Ejaz
Maqbool, Mrs. Kirti Renu Mishra and Mr. Y. Prabhakar Rao, Advocates, were heard for
the respondents.
8 . The learned counsel for the appellants placed strong reliance upon the decision
reported in State of Haryana and Ors. v. Jasmer Singh and Ors.
MANU/SC/1808/1996 : (1997)IILL J667SC in support of their stand, whereas the
learned counsel for the respondents sought to place reliance upon the decisions
reported in Chief Conservator of Forests and Anr. v. Jagannath Maruti Kondhare
and Ors. MANU/SC/0750/1996 : (1996)ILL J1223SC andState of Haryana and Ors.
v. Piara Singh and Ors. MANU/SC/0417/1992 : (1993)IILL J937SC in support of their
stand to justify the relief granted by the High Court. Reliance was also placed upon
orders in SLP (C) No. 4727/93 dated 3.8.93; C.A. Nos. 2541-42/94 dated 18.4.94 and
C.A. Nos. 2628-29/94 dated 21.4.94. The learned counsel for the respondents also
sought to lay emphasis by claiming that what they were asking for is not for any parity
of treatment or equal pay in comparison with their counterparts in the different
organizations or in different departments but equal pay on par with the regularly
employed staff in their own units or establishments and as such there could be no
sufficient cause or justification to deny an equal treatment to the respondents. In
substance, learned counsel vehemently contended that the fact they were engaged as
N.M.R. workmen or as casuals on daily basis has no relevance or significance, as long
as they performed the same and identical job and work as that of the regularly
employed staff and consequently there was no justification to discriminate or deny
equal pay for them. It was also claimed that the decision in Chief Conservator of
Forests (supra) of a Bench consisting of three learned Judges of this Court has to be
preferred to the one rendered by a Bench of two learned Judges in Jasmer Singh's
case (supra).
9 . We have carefully considered the submissions of the learned counsel appearing on
either side. The decision in Jasmer Singh (supra) though by a Bench of two learned
Judges consisting of A.M. Ahmadi, C.J., and Sujata V. Manohar, J., is directly on point,
Sujata V. Manohar, J., speaking for the bench and after a careful analysis of a catena of
earlier decisions on the point, held as follows:-
"10. The respondents, therefore, in the present appeals who are employed on
daily wages cannot be treated as on a par with persons in regular service of the
State of Haryana holding similar posts. Daily rated workers are not required to
possess the qualifications prescribed for regular workers, nor do they have to
fulfill the requirement relating to age at the time of recruitment. They are not
selected in the manner in which regular employees are selected. In other
words, the requirements for selection are not as rigorous. There are also other
provisions relating to regular service such as the liability of a member of the
service to be transferred, and his being subject to the disciplinary jurisdiction
of the authorities as prescribed, which the daily-rated workmen are not
subjected to. They cannot, therefore, be equated with regular workmen for the
purposes for their wages. Nor can they claim the minimum of the regular pay
scale of the regularly employed.

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 11. The High Court was, therefore, not right in directing that the respondents
should be paid the same salary and allowances as are being paid to regular
employees holding similar posts with effect from the dates when the
respondents were employed. If a minimum wage is prescribed for such
workers, the respondents would be entitled to it if it is more than what they are
being paid."
10. The decision in Chief Conservator of Forests (supra), on which strong reliance
has been placed for the respondents, was rendered by a Bench comprising A.M. Ahmadi,
C.J., and B.L. Hansaria and S.C. Sen, JJ. The question as to the scales of pay to be paid
to the N.M.R. workers and whether they should also be paid on equal par with the
regularly employed staff, by the application of the principle of 'equal pay for equal
work' does not appear to have been either in the center of controversy or consideration
in this decision. As could be seen from the reported decision, two questions, which fell
for consideration of the Bench, were as to whether the Forest Department of the State
Government is an 'Industry' within the meaning of Section 2(j) of the Industrial
Disputes Act, 1947 and for the purposes of the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971, and whether the State
Government had indulged in unfair labour practice visualized by Item 6 of Schedule-IV
of the Maharashtra Act, as alleged by the workers before the Industrial Court, in keeping
such workers continuously for years on casual basis. The Industrial Court, which
adjudicated the claims, granted relief to make the workmen permanent with all the
benefits of a permanent worker, which would include payment of wages, etc. at the rate
meant for a permanent worker. While adverting to the question as to whether the
finding relating to the adoption of 'Unfair labour practice' within the meaning of the
State Act and the relief granted on that basis called for any interference, this court came
to the conclusion that permanency was writ large on the face of both types of work, and
that permanent status was denied to the workers concerned therein with the object of
denying higher rates as would be payable for permanent workers, in violation of the
provisions of the State Act. Consequently, this Court declined to interfere. It is in this
context that the claim of the State that if the casual employees to the tune of 1.4 lakhs
have to be regularized all of a sudden, it would involve a heavy financial commitments,
keeping in view the scales of pay, which have to be paid on their becoming permanent;
that a passing reference was made with reference to the scales of pay to be paid and
that too only as and when they become permanent and not for the period when they
were mere casuals. The conspicuous omission either to refer to or deal with and
consider any question based on 'equal pay for equal work' to workers even as they
stood employed as N.M.R. workers or advert to or notice any one of the decisions
elaborately considered in the other decision reported in Jasmer Singh (supra) as to
the principles to be applied before doing so would inevitably go to show that the
questions of the nature exhaustively considered and decided in the latter decision
reported in Jasmer Singh (supra) were not at all the subject-matter for consideration
or decision in the Chief Conservator of Forests case (supra). This assumption is well
fortified by the conclusions arrived at in Paragraph 29, which read as follows:-
"We wish to say further that if Shri Bhandare's submission is taken to its logical
end, the justification for paying even minimum wages could wither away,
leaving any employer, not to speak of model employer like the State, to exploit
unemployed persons. To be fair to Shri Bhandare it may, however, be stated
that the learned counsel did not extend his submissions this far, but we find it
difficult to limit the submission of Shri Bhandare to payment of, say fair wages,
as distinguished from minimum wages. We have said so, because if a pay scale
has been provided for permanent workmen that has been done by the State

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 Government keeping in view its legal obligations and must be one which had
been recommended by the State Pay Commission and accepted by the
Government. We cannot deny this relief of permanency to the respondents-
workmen only because in that case they would be required to be paid wages
meant for permanent workers. This right flows automatically from the relief of
regularization to which no objection can reasonably be taken, as already
pointed out. We would, however, observe that the relief made available to the
respondents is not one, which would be available ipso facto to all the casual
employees either of the Forest Department or any other Department of the
State. Claim of casual employees for permanency or for higher pay shall have
to be decided on the merit of their own cases." (Emphasis supplied)
11. The decision reported in Piara Singh (supra) is no authority for the proposition
that temporary, ad hoc or daily wages like N.M.Rs. should be treated on par for
purposes of pay-scales with the regularly employed permanent staff in the
establishment and merely envisaged a serious and sincere effort on the part of the State
to regularize such casual labourers or work-charged employees as far as and as early as
possible, subject to their fulfilling the qualifications, if any, prescribed for the post and
subject also to the availability of the work meaning thereby the post as well as scope
for providing employment. In paragraph 42 of the judgment, this Court, while setting
aside the directions of the High Court, observed as follows:
"With respect to direction No. 8 (equal pay for equal work) we find the
judgment singularly devoid of any discussion. The direction given is totally
vague. It does not make it clear who will get what pay and on what basis. The
said direction is liable to be set aside on this account and is, accordingly, set
aside."
Though 'equal pay for equal work' is considered to be a concomitant of Article 14 as
much as 'equal pay for unequal work' will also be a negation of that right, equal pay
would depend upon not only the nature or the volume of work, but also on the
qualitative difference as regards reliability and responsibilities do make a real and
substantial difference.
12. In State of T.N. and Anr. v. M.R. Alagappan and Ors. MANU/SC/0482/1997 :
(1997)IILL J711SC , this Court observed that substantial similarly in duties and
responsibilities and interchangeability of posts may not also necessarily attract the
principle of 'equal pay for equal work' when there are other distinguishing features like
educational qualifications for appointment, mode of recruitment, status, nature of
duties, functions, measure of responsibility and over all duties and responsibilities even
outside duty hours. The principles laid down in Jasmer Singh (supra) were also
applied and followed in the decision reported in Gujarat Agricultural University v.
Rathod Labhu Bechar and Ors. MANU/SC/0039/2001 : (2001)ILLJ710SC .
13. On a careful consideration of the materials placed on record, we are of the view
that the principles firmly laid down in the well considered decision of Jasmer Singh
(supra) squarely applied on all fours to the cases on hand and the respondents-workers
would be entitled to only, apart from the regularization ordered for which the appellants
have had no serious objections, the payment of minimum wage prescribed for such
workers if it is more than what they were being paid and that the High Court was in
serious error in directing that the respondents should be paid the same salary and
allowances as were being paid to the regular employees holding similar posts. The
respondent-workers cannot be held to hold any posts to claim even any comparison

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with the regular and permanent staff, for any or all purposes including a claim for equal
pay and allowances. The fact that no materials were placed before the High Court as to
the nature of duties of either categories should have been viewed as a disentitling factor
so far as the workers are concerned and dissuaded the High Court from embarking upon
an inquiry in the abstract and with no factual basis and not to empower the court to
assume and presume equality in the absence of proof to the contra or of any unequal
nature of the work performed by them. 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 par with the other group vis-
a-vis an alleged discrimination. In the light of the decision directly on this issue
rendered in Jasmer Singh (supra), we are unable to persuade ourselves to
countenance the claim for minimum basis salary given in some unreported decisions
brought to our notice which appear on the face of it to be certain directions given on
the peculiar facts and circumstances of the same without an objective consideration of
any principle of law. An order made to merely dispose of the case before court by
issuing certain directions on the facts and for the purposes of the said case, cannot
have the value or effect of any binding precedent and particularly in the teeth of the
decision in Jasmer Singh's case (supra).
14. For all the reasons stated above, the appeals are allowed and the orders of the High
Court are set aside insofar as the pay equal to that of the regular employed staff has
been ordered to be given to the N.M.R./daily wager/casual workers, as indicated above,
to which they will not be eligible or entitled, till they are regularized and taken as the
permanent members of the establishment. For the period prior to such permanent
status-regularization, they would be entitled to be paid only at the rate of the minimum
wages prescribed or notified, if it is more than what they were being paid as ordered by
this Court in Jasmer Singh's case (supra). There will be no order as to costs.
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