ORDER
S.K. Dubey, J.
1. Aggrieved by the judgment dated January 17, 1992 passed on an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (for short the Act), in case No. 12/91 T.D.A. by the Labour Court, Sagar, directing the petitioners to make the payment of difference of pay of Rs. 36,604.95 from August 1, 1983, the State has preferred this petition under Article 227 of the Constitution of India.
2. Brief facts giving rise to this petition are these: The respondent No. 2 is in the employment from August 1, 1983 as Chowkidar in the Irrigation Department of Government of Madhya Pradesh as a casual and daily rated workman. As the respondent No. 2 was not being paid the pay of a Chowkidar, he filed an application on July 17, 1991 under Section 33-C(2) of the Act before the Labour Court at Sagar claiming therein the minimum rates of wages payable to a Chowkidar fixed by State Government. He also claimed the pay scale of a Chowkidar. The petitioners, in their written statement, contended that the Irrigation Department of Government of Madhya Pradesh, is not an industry as it carries on and discharges sovereign function, irrigation activity which is not on economic venture and, as such it does not fall within the definition of industry under Section 2(j) of the Act, nor the respondent No. 2 was a workman falling within the definition under Section 2(s) of the Act, It was also contended that the application under Section 33-C(2) is not maintainable as the respondent No. 2 by the said application claims to be classified as a Chowkidar and claims pay-scale of the Chowkidar. On merits also, the claim was resisted on the ground that the respondent No. 2 was in casual employment whose services were liable to be terminated at any time. It was also submitted that the respondent No. 2 could not claim the regular pay-scale unless he is duly selected for the post of Chowkidar or regularised on the said post.
3. The Labour Court after recording of evidence and after hearing directed payment of difference in rates of minimum wages as fixed by notification issued from time to time by the State Government under the Minimum Wages Act, 1948 (for short M. W. Act') payable to Chowkidar in view of State Amendment in Section 12 of the M.W.Act inserted by Minimum Wages (M.P. Amendment and Validation) Act, 1961.
4. Shri M.L. Choubey, Government Advocate and Shri J.L. Agnihotri, Advocate for the respondent No. 2 heard.
5. Learned counsel for the petitioner contended that the irrigation department of the State of M.P. discharges sovereign and social function without: carrying on any economic activity, therefore, it is not an industry. The respondent No. 2 was not in regular employment and was a casual employee who used to be employed on casual basis according to the exigencies and requirements of work, therefore, he was being paid the wages fixed from time to time by the Collector. The respondent No. 2 neither was entitled to claim the regular pay-scale on the principle of 'Equal pay for Equal Work', nor the Labour Court had the jurisdiction to direct payment of difference in rates of wages. If there was any dispute in respect of rates of wages, the respondent No. 2 ought to have made a claim under Section 20 of the M.W. Act. The question of discharging similar duties and functions of a Chowkidar could not be determined in an application under Section 33-C(2) of the Act nor a workman can be classified or regularised as such as this question can only be adjudicated by the Labour Court on a reference under Section 10(1) of the Act. Reliance was placed on a decision of the Supreme Court in case of P.N. Singh and Ors. v. Presiding Officer and Ors., (1988 - II - LLJ - 363).
6. The contention of the petitioners that the Irrigation Department is not an industry has no merit. In view of the settled position of law laid down in case of Bangalore Water Supply v. A. Rajappa (1978 -I- LLJ - 349) wherein, the appeal of State of Madhya Pradesh taking the plea that Chambel Hydel Project of Irrigation Department in not an industry was dismissed, therefrom it was not expected of the State to take such a plaint after the decision of the Supreme Court.
7. Admittedly, the respondent No. 2 is employed since August 1, 1983 on the post of Chowkidar in Irrigation Department at Banda Division No. 2, district Sagar. The petitioner did not adduce any evidence to demonstrate that his services were not continuous or there was a break in the service. It is now well settled that if an employee is employed for a long period 8-10 years, it cannot be contended that there was no regular work for such an employee. As the present claim is not for regularisation, therefore, it is not necessary for this Court to express any opinion on that, the claim of the respondent No. 2 for payment of pay of a Chowkidar is based on principle of 'equal pay for equal work'. The claim is also based on the notifications fixing the minimum rates of pay issued by the Government of Madhya Pradesh under M.W.Act, therefore, the State cannot deny the payment of the minimum pay in the pay-scale of regularly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees. Such denial amounts to exploitation of the labourer. The Government cannot take advantage of its dominant position, and compel any worker to work even as a casual worker on starving wages. It is another matter that the respondent No. 2 as casual labourer has agreed to work on such low wages, that he has done because he has no other choice. It is poverty that has driven him to that state. The Government is expected to act as a model employer. Therefore, the classification of employees into regularly recruited employees and casual employees rendering the same kind of service which is being rendered by a regular employee doing the same type of work, the Government cannot deny the minimum pay-scale of the regularly employed Chowkidar or at least minimum wages fixed from time to time by the issuance of notification under the M.W.Act, and that is what has been ruled by the Supreme Court in case of Daily rated casual employees under P&T; department through Bhartiya Dak Tar Mazdoor Manch v. Union of India AIR 1987 SC 2342.
8. The contention that the respondent No. 2 ought to have made a claim under Section 20 of the M.W.Act is devoid of any substance. The claim under Section 20, relates to rates of wages for the payment of work done. The power under Section 20(3) of the M.W.Act given to the authority dealing with an application under Section 29(1) to direct payment of the actual amount found due to only an incidental power for working out of effectively the directions under Section 20(1) fixing various rates under the Act, that is, if there is no dispute as to rates between the employer and the employee and the only question is whether a particular payment on the agreed rate is due or not, then section 20(1) of the Act would not be attracted at all, the appropriate remedy would only be either under Section 15(1) of the Payment of Wages Act, 1936 or under Section 33-C(2) of the Act. See the decisions of Supreme Court in case of Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and Ors. AIR 1969 SC 1335 and Manganese Ore (India) Ltd. v. Chandilal Saha AIR 1991 SC 524.
9. In the case in hand, there is no dispute regarding the rates of wages payable to a Chowkidar fixed by the State Government by notification issued under the M.W.Act, which have been denied to the respondent No. 2 on extraneous considerations in these circumstances, the remedy under Section 20 of the Act was not available to the respondent No. 2 and, therefore, the Labour Court rightly exercises its jurisdiction under Section 33-C(2) of the Act.
10. The decision in case of P.K. Singh (supra) relied by the learned Government Advocate has no application as in that case there was a claim of classification and payment of pay-scale of Grade-B to the fitters of Grade-C on the ground that the fitter of Grade-C was performing the duties which are similar of the duties of Grade-B fitters, it was held, that unless a Grade-C fitter is duly promoted after getting through the prescribed tests, such a workman cannot complain that he being paid less salary and allowance due to 'C' Grade fitter, since he does not possess an existing right to claim it and, therefore, the Supreme Court observed that such a question could only be adjudicated on a reference made under Section 10(1) of the Act for holding that he should be deemed to be a member of cadre of Grade-B fitters then only he would be able to claim the salary and allowance payable to a B-Grade fitter. Therefore, the case is distinguishable on facts and is of no help to the petitioners.
11. However, this Court is of the opinion that the claim of difference in rates of wages computed in terms of money and benefit awarded by the Labour Court since the date of appointment was not proper. The respondent No. 2 in fact approached the Labour Court by the application dated July 10, 1991 under Section 33-C(2) of the Act, true there is no limitation prescribed under Section 33-C(2) of the Act, but, that would not be a ground to direct the payment of stale claim without any reasonable explanation. Moreover, the claim was based on the principle of 'Equal Pay for Equal Work' but, the Labour Court directed the payment of the minimum rates of wages fixed by the State Government from time to time payable to a Chowkidar, therefore, this Court is of the opinion that the order of the Labour Court deserves to be modified to the extent that the respondent No. 2 would be entitled to the benefit of difference in rates of wages fixed by the State Government by notification payable to Chowkidar from the date of the filing of the application only.
12. Before parting with this petition, an observation is necessary, the State is a model employer, the respondent No. 2 is working continuously since August 1, 1983 as casual workman, on daily wages, that shows that the work is of permanent nature, therefore, it is expected from the petitioners that they shall take steps to consider the case of the petitioner for regularization, certainly, if he fulfils all the eligibilities and qualifications.
13. In the result the petition shall stand disposed of in the manner aforesaid. However, in the circumstances of the case, the petitioner shall pay the costs of this petition to respondent No. 2 which are fixed as Rs. 750.