Case BriefsSupreme Court

Supreme Court: In the case where the respondents who were initially engaged on casual basis and after one or two years were granted the temporary status and thereafter were regularized, had sought for full service benefit for the period during which they were working, having temporary status, the Court held that the casual worker after obtaining temporary status is entitled to reckon 50% of his services till he is regularised   on   a   regular/temporary   post   for   the purposes of calculation of pension. It was further added that the casual worker before obtaining the temporary status is also entitled to reckon 50% of casual service for purpose of pension.

The respondents in the present case were working in the Railways and hence, the Court said that those casual workers who are appointed to any post either substantively or in officiating or in temporary capacity are entitled to reckon the entire period from date of taking charge to such post as per Rule 20 of the Railway Services (Pension) Rules, 1993. The Court held that the Delhi High Court erred in holding that the worker is entitled to reckon 100% of his services for the purpose of calculation of pension and noticed that the perusal of Rules indicate that only half of the period of service of a casual labour after attainment of temporary status on completion of 120 days continuous service if it is followed by absorption in service as a regular Railway employee, counts for pensionary benefits.

The Bench of Dr. A.K. Sikri and Ashok Bhushan, JJ further clarified that it   is   open   to   Pension   Sanctioning   Authority   to recommend   for   relaxation   in   deserving   case   to   the Railway   Board   for   dispensing   with   or   relaxing requirement   of   any   rule   with   regard   to   those   casual workers who have been subsequently absorbed against the post   and   do   not   fulfill   the   requirement   of   existing rule   for   grant   of   pension,   in   deserving   cases.   On   a request   made in writing,   the   Pension   Sanctioning Authority shall consider as to whether any particular case deserves to be considered for recommendation for relaxation under Rule 107 of  Rules, 1993. [Union of India v. Rakesh Kumar, 2017 SCC OnLine SC 274, decided on 24.03.2017]

Case BriefsSupreme Court

Supreme Court: Dealing with the question as to whether temporarily engaged employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), are entitled to minimum of the regular pay-scale, alongwith dearness allowance (as revised from time to time) on account of their performing the same duties, which are discharged by those engaged on regular basis, against sanctioned posts, the Court said that the principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right and is vested in every employee – whether engaged on regular or temporary basis.

The bench of J.S. Khehar and S.A. Bobde, JJ said that in a welfare state, an employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Such an action besides being demeaning, strikes at the very foundation of human dignity as any one, who is compelled to work at a lesser wage, does not do so voluntarily.

The Court, however, clarified the legal position for the application of the principle of ‘equal pay for equal work’. Some of the principles highlighted by the Court are as follows:

  • The ‘onus of proof’, of parity in the duties and responsibilities of the subject post with the reference post, under the principle of ‘equal pay for equal work’, lies on the person who claims it.
  • Mere fact that the subject post occupied by the claimant, is in a “different department” vis-a-vis the reference post, does not have any bearing on the determination of a claim, under the principle of ‘equal pay for equal work’. However, for equal pay, the concerned employees with whom equation is sought, should be performing work, which besides being functionallyequal, should be of the same quality and sensitivity.
  • Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay-scales. Such as – ‘selection grade’, in the same post. But this difference must emerge out of a legitimate foundation, such as – merit, or seniority, or some other relevant criteria.
  • The reference post, with which parity is claimed, under the principle of ‘equal pay for equal work’, has to be at the same hierarchy in the service, as the subject post.
  • A comparison between the subject post and the reference post, under the principle of ‘equal pay for equal work’, cannot be made, where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master.
  • Different pay-scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of ‘equal pay for equal work’ would not be applicable and also when, the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post.

In the present case, all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted by the State of Punjab, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. The Court hence, held that there can be no doubt, that the principle of ‘equal pay for equal work’ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. [State of Punjab v. Jagjit Singh, , 2016 SCC OnLine SC 1200, decided on 26.10.2016]