- (1.) D. K. Seth, J. The petitioner claims that he was engaged on daily wage basis. The matter was heard in the absence of Shri S. P. Mehrotra, learned Counsel for respondents on 6-8-1998, when a judg ment was dictated in open Court. But before the said judgment could be transcribed, Mr. Mehrotra, learned Coun sel for the respondents, appeared in Court and sought permission for arguing the case. Accordingly the said judgment was not signed and the matter was directed to be listed for hearing. The matter was heard on successive dates. Both the learned Counsel had argued their respective points and had submitted written argu ments as well.
(2.) AFTER having heard Mr. Faujdar Rai, learned Counsel for the petitioner and Mr. S. P. Mehrotra learned Counsel for respondent as above, it appears that the petitioner claims to have been engaged as daily wage labour some times in 13-7-1977 and had worked upto 31-1-1979. Sub sequently he was re- engaged in the per manent muster roll on daily wage basis and had been continuing since thereafter. Therefore, he has sought a relief of recog nising him as a regular employee of the department and for payment of salary as admissible to the regular employees. Mr. Faujdar Rai has contended that since the petitioner had been working continuously for 10 years right from 1978 and had been performing the same nature of duty as carried on by the regular employees in Class IV group, therefore, he should be regularised and he paid same scale of pay on the principle of equal pay for equal work. He had supplemented the pleading, with was absent in the writ peti tion, by means of rejoinder-affidavit, when absence of pleading was taken as a point in the counter- affidavit and pointed out by the learned Counsel for the respondent Mr. Mehrotra. Mr. Rai had pointed out that the petitioner had been performing the same duty as a regular Class IV employee. He had relied on the several decisions, which would be referred to at appropriate stage. Relying on these decision he points out that the exploita tion of the petitioner compelling him to work on a wage of Rs. 25 per day on daily wage without conferring any security of service or other benefits is an unfair labour policy which should not have been fol lowed by the State Government, a model employer as has been laid down through several decisions which he had cited at the Bar. He has also contended that the respondents cannot be permitted to con tinue such unfair labour practice only on the ground that it will create an excessive financial burden on the respondents. On these grounds he prays that the writ peti tion should be allowed. He further con tends that identical 40 cases are pending and interim orders have been passed on those cases but to the misfortune of the petitioner no interim order has since been passed in the present petition, despite the situation being identical and, therefore, identical orders should be passed in this writ petition. He has also relied on the decision in the case of Birbajrang Kumar v. State of Bihar and Ors. , 1987 UPLBEC 496 and contended that this matter should be decided along with other matters and, therefore the other matters should also be listed along with the present one. But the fact remains that the said prayer has been made only at the end of his argument i. e. today after having argued his case on suc cessive dates earlier and after having sub mitted his written notes. Mr. Mehrotra on the other hand contends that since the petitioner is a muster roll employee and is not perform ing duties and functions of a regular employee and is not carrying on the same responsibility, therefore, he cannot be treated at par with the regular employee. He had relied on various decisions, refer ence to which would be made at ap propriate stage, in support of his conten tion. He had contended that there was no pleading in the writ petition as to how petitioners is performing the same nature of job of regular employee. Though it has been sought to be explained in the rejoinder-affidavit, according to Mr. Meh rotra, even in the rejoinder-affidavit specific particulars have not been detailed or pleaded as to what kind job and what kind or nature of responsibility the petitioner had been carrying on at part with those of regular employee. In the absence of such pleading the petitioner can never claim regularisation nor equal pay for equal work. According to him in the absence of such pleadings the Court cannot react properly. He further con tends that there being no post and vacancy pleaded in the writ petition, it is not pos sible as to how he could be regularised since regularisation can be made only against posts and vacancies. He also con tends that the petitioner does not perform the same job of a regular employee but he only assists the regular employees. At the same time, as rightly pointed out by Mr. Faujdar Rai, Mr. Mehrotra has also not specified as to what kind of job a regular employee would carry and how the petitioner assist the regular employees, e has also not specifically stated any thing with regard thereto. He also con tends that the Court cannot direct regularisation or absorption of an employee unless there are vacancies or posts already created. He further contends that the Court also cannot create any post. In the absence of material, no relief can be given to the petitioner.
(3.) THE fact remains that there are absence of pleadings in the writ petition. Pleadings are to be made to support the claim and bring on record sufficient material on which the Court can apply the law. THE law is to be applied on the basis of the fact of each case. THE pleadings con tain the facts of such case. Unless there are sufficient facts pleaded, the law cannot be attracted. THE application of principle of law is dependent on the basis of the facts pleaded. Admittedly there are absence of sufficient material in order to apply the principle of equal pay for equal work. Inas much as unless it is pleaded that the petitioner performs the same nature of duty as that of the regular employee, the mere assertion that the petitioner per forms the same kind of job which Class IV employees perform cannot be treated to be pleaded sufficient pleading. Unless it is pleaded what kind of job he is performing and what kind of job his counter part-regular employee is performing, it is not possible to accept such contention. THE Class IV may perform various kinds of jobs which is to be pleaded by the petitioner as to what kind of job he is performing. In the absence of such pleading it is not possible to decide the question finally as to how the principle of equal pay for equal work can be attracted. Similarly, in order to attract the principle of regularisation, certain plead ings are also to be pleaded to show that the petitioner is also performing the same kind of job which the regular employee is performing and is commensurate with posts available or vacancies existing. In the absence of any such pleading, the question of regularisation also becomes a difficult proposition.;