Contract Workers Must Prove Their Work Matches With Regular Employees In Quality & Sensitivity For Equal Pay : Allahabad High Court

The Allahabad High Court has held that workmen engaged on a contractual basis may claim equal pay for equal work if they show that they were actually performing the work of regularly appointed employees of the post, but the burden of proving parity in duties and responsibilities lies on them.

It held that such workmen must establish through oral and documentary evidence that their work was equal not merely in function but also in quality and sensitivity, and that a common name for the post is not enough.

Setting aside an order of the Labour Commissioner granting equal pay to contract workers of Bharat Heavy Electricals Ltd. (BHEL), Jhansi, Justice Saurabh Shyam Shamshery held,

“It would not automatically invoke merely subject of post as same nomenclature, therefore, impugned order should refer whether requirement of law was factually fulfilled before coming to a conclusion that it was a case of equal pay for equal work.”

BHEL Contract Workers Union, representing workers engaged through different contractors, approached the Labour Commissioner, U.P. at Kanpur under the Contract Labour (Regulation and Abolition) Act, 1970 read with the U.P. Contract Labour (Regulation and Abolition) Regulations, 1975. It claimed that the workers had served for many years on work of a permanent nature which was equal to the work of similarly placed regular employees of BHEL.

By order dated 05.01.2005, the Labour Commissioner, relying on duty rosters, log books, gate passes, wage slips, experience certificates and a comparative chart, among other material, directed that 265 contract workers be paid salary and allowances at par with unskilled regular employees directly engaged by BHEL.

Counsel for BHEL relied on the Supreme Court's decision in State of Haryana and others vs. Charanjit Singh and others to argue that contract employees cannot enforce the doctrine of equal pay for equal work, as their service is governed by their contract. It was argued that the Labour Commissioner had not examined similarity of work, educational qualification, experience, training and responsibilities.

Counsel for the Workers Union submitted that the Labour Commissioner had examined log books, duty rosters and the comparative chart, and that his findings of fact could not be reappreciated in writ jurisdiction, relying on Syed Yakoob vs. KS Radha Krishnan and others and Indian Overseas Bank vs. IOB Staff Canteen Workers.

Referring to the parameters laid down by the Supreme Court in State of Punjab vs. Jagjeet Singh and others, the Court held that the onus of proving parity with the regular post rests on the workmen claiming it.

Examining the material, the Court found that the document relied on as a comparative chart was only a list of temporary workers giving their names, designations, departments, dates of joining, nature of work and the names of contractors and regular employees, without showing how the work was similar. It held that the experience certificates showed only daily-rated work such as office work and operating a xerox machine, while the duty charts, log books, attendance sheets and gate passes showed shifts worked and how a generator was run.

“There is nothing on record what actual work was done by contractual appointees and what actual work was done by the regular appointees.”

The Court held that the Labour Commissioner had reached his conclusion without testing the claim against any of the parameters, and observed,

“There is no consideration in impugned order and by only saying that “I have perused the documents and of the view” would not be sufficient since there must be specific consideration and reasons to come to a conclusion that it was a case of equal pay for equal work.”

On the scope of certiorari, the Court noted that under Syed Yakoob a finding based on no evidence is an error of law which can be corrected by a writ of certiorari. Since reasons were entirely absent from the impugned order, it held that a case for certiorari was made out.

Accordingly, the order of the Labour Commissioner was set aside and the matter was remitted for fresh consideration, with a direction to pass a fresh order within six months from the date a certified copy of the judgment is placed. The writ petition was disposed of.