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2000 DIGILAW 195 (CAL)

DAROGA THAKUR v. DAMODAR VALLEY CORPORATION

2000-04-19

BARIN GHOSH

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BARIN GHOSH, J. ( 1 ) THIS writ petition is by three petitioners seeking a mandate upon Damodar Valley corporation to absorb them in the post of driver against sanctioned posts in which they are working. ( 2 ) THE undisputed facts of the case may be summarised thus. The Damodar Valley corporation, (hereinafter referred to as the "corporation") is a statutory Corporation incorporated by and under the Damodar Valley corporation Act, 1948. Section 7 of the said act provides that the pay and other conditions of service of the officers and servants of the corporation shall as respects the Secretary and financial Advisor, be such as may be prescribed, and as respects the other officers and servants be such as may be determined by the regulations. Section 60 of the said Act empowered the Corporation to make regulations with the previous sanction of the central Government, by publishing such regulations in the form of notification in the gazette of India, for carrying out its functions under the Act. The said section as example specify, inter alia, that such regulations may be made to provide for provisions for making of appointments and promotions of its officers and servants, specifying other conditions of service of its officers and servants and regulating its proceedings and business. In exercise of power so vested the Corporation has made Damodar Valley Corporation (Conduct of Business) Regulations, 1951, Damodar valley Corporation Service (Conduct)regulations, 1955 and Damodar Valley corporation Service Regulations. In Damodar valley Corporation (Conduct of Business)regulations, 1951 it has been provided that the business of the Corporation shall be transacted at a meeting of the Corporation to be held ordinarily once a month or by circulation of relevant documents amongst the Chairman, members and the Financial Advisor or in such other manner as may be determined by the corporation from time to time. It has also provided the quorum of such meeting. The notice of such meeting, circulation of agenda, keeping of minutes, decision, proceedings etc. By Regulation 11 of the said Regulations the corporation has been empowered to authorize or to require its officers and servants to do anything necessary for the proper discharge of the functions and business of the Corporation. It has also provided the quorum of such meeting. The notice of such meeting, circulation of agenda, keeping of minutes, decision, proceedings etc. By Regulation 11 of the said Regulations the corporation has been empowered to authorize or to require its officers and servants to do anything necessary for the proper discharge of the functions and business of the Corporation. Regulation 12 of the said Regulations provides that the orders and other instruments made and executed in the name of the Corporation shall be authenticated by the signature of the secretary, Additional Secretary, Joint secretary, Deputy Secretary, Under Secretary or Assistant Secretary and all contracts and assurance of property made on behalf of the corporation shall be executed on behalf of the corporation by the Secretary, Additional secretary, Joint Secretary, Deputy Secretary or by such other officer as the Corporation may, in any particular case, authorise in this behalf. In the Damodar Valley Corporation Service (Conduct) Regulations, 1955 the word "employee" has been defined to mean any person appointed to any post in the corporation, whether borne on the regular or work-charged establishment and includes casual employees. In Damodar Valley corporation Service Regulations the word "employee" has been defined to mean an employee of the Corporation, other than a casual employee or a member of the work-charged establishment or an employee of the Damodar Valley Corporation Coal Mines not belonging to Class I referred to in regulation 7 or a person paid from contingencies. Regulation 6 of the said regulations provides that any matter not provided for in those regulations shall until requisite provisions in that behalf are made in those regulations, be dealt with and disposed of, as far as may be, in accordance with the rules and orders issued from time to time, by the Central Government in relation to similar matters. Regulation 9 of the said Regulations provides the method of recruitment. It says that recruitment to the services of the Corporation shall be made by direct recruitment or by promotion or by borrowing from Government. Regulation 7 of the said Regulations classifies the services in the Corporation in three groups. Regulation 10 of the said Regulations provides the appointments to the posts in 3rd Group may be made by the Head of the Office concerned and in other groups by the Corporation on the recommendation of a Selection Board. Regulation 7 of the said Regulations classifies the services in the Corporation in three groups. Regulation 10 of the said Regulations provides the appointments to the posts in 3rd Group may be made by the Head of the Office concerned and in other groups by the Corporation on the recommendation of a Selection Board. The petitioner No. 1 worked as casual driver for 141, 199. 286, 305, 182, 125 and 180 days during the years 1989, 1990, 1991, 1992, 1993, 1994 and 1997 respectively. The petitioner No. 2 worked for 96, 285, 339, 150 and 120 days during the years 1991, 1992, 1993, 1994 and 1995 respectively. . The petitioner No. 3 worked for 138, 168, 147, 189, 276, 313, 312, 199, 110 and 90 days during the years 1986, 1987, 1988, 1990, 1991, 1992, 1993, 1994 and 1997 respectively. From a letter dated January 29, 1998 written by the Chief Engineer of the Corporation to the director of the Corporation it appears that there are 13 sanctioned posts of drivers for Bus/truck of which 7 have been filled in and 6 of such posts are lying vacant and that there are 15 sanctioned posts of driver for light vehicles of which 12 have been filled in and three are lying vacant. The corporation has stated that though there are unfilled sanctioned posts but it has taken a policy decision not to fill up the posts in order to achieve utmost economy in expenditure. In this connection the Corporation has relied upon a circular issued by its Chief Materials Manager, dated December 2, 1997. The said circular runs as follows: office Circular sub: Guidelines for hiring of all types of vehicles in DVC1. In order to achieve utmost economy in expenditure on provision of vehicles for carrying out official works of the corporation, it has become necessary to issue guidelines for hiring of vehicles by the competent authority in the absence of adequate fleet of departmental vehicles. The hiring of vehicle is generally sanctioned by the Corporation on the following grounds: (a) Arising of new requirement over and above existing authorization of vehicles. (b) Replacement for existing departmental vehicle when the same becomes Beyond economical Repair (BER) and drivers do not become surplus to the establishment. (c) To meet temporary requirement for a short duration when the departmental vehicles become due for major repair and not available for deployment. 2. (b) Replacement for existing departmental vehicle when the same becomes Beyond economical Repair (BER) and drivers do not become surplus to the establishment. (c) To meet temporary requirement for a short duration when the departmental vehicles become due for major repair and not available for deployment. 2. Arising of new requirement over and above existing authorisation of vehicles. Based on the task to be performed by the dvc Units, the matching vehicles to ensure mobility for effective performance is being studied and communicated to all concerned. Within the authorisation, the hiring of vehicle has been decentralised and its management is the responsibility of the chief of the Project/head of Department. This authorisation of vehicle is reviewed periodically by an order of the Corporation. The DVC Units will only approach corporation Headquarters (MM Wing) for approval of any additional requirements only as and when it is found necessary and justified in writing. 3. Replacement for existing departmental vehicle when the same becomes Beyond economical Repair (BER) and drivers do not become surplus to the establishment. The replacement of departmental vehicle when becomes BER is now centrally budgeted and acquired on the basis of its vintage seniority where the driver is held surplus and indent along with Survey Report reach the CPO. In this connection also refer to No. S/mm/vehicle/geni/pla/147 dated september 12, 1994. The Chief of project/hods are required to approach corporation headquarters for hiring vehicle in lieu only when the Driver do not become surplus as a result of surveying the vehicle as BER and subsequent disposal of the same. 4. To meet temporary requirement for a short duration when the departmental vehicle becomes due for major repair and not available for deployment. In accordance with the serial 6 of Delegation of administrative Powers for Office establishment vide No. EV/ DA-3/81-88-93/ 1507 dated July 13, 1993 HODs have been empowered to hire vehicles for a period not exceeding six months against authorised vehicle set out for repair or out of order and one year against vehicle authorised but departmental vehicles not delivered/ provided subject to award of contract for hiring shall be finalised in consultation with the Finance. Hiring of School Bus also may be considered under the above delegation. It is expected, the period of hiring in such cases should be based on the actual period likely to be taken to bring back such vehicles on road after repairs. Hiring of School Bus also may be considered under the above delegation. It is expected, the period of hiring in such cases should be based on the actual period likely to be taken to bring back such vehicles on road after repairs. 5. The application for sanction/approval of hiring of vehicle as per paras 2 and 3 above duly completed with the recommendation of the HODs required to be forwarded to Chief materials Manager as laid down vide this hos letter No. S/mm/vehicle/ Genl/ PLA/ 987 dated September 30, 1994. It has to be ensured that all the information asked for in the application form are correctly filled up and forwarded well in advance correctly to ensure quick response. Whereas the corporation sanction is meant to allot a vehicle on hire the responsibility for awarding extension to the already existing hired vehicle or calling for fresh tender entirely rest with the chief of the Project/hods. The hiring of vehicle is invariably finalised with the concurrence of concerned local/ field finance on ensuring budget provision. Request for ex post facto sanction of the Corporation is not appreciated. 6. The following important aspects should generally be covered while calling for tender either Open Tender or Limited tender Enquiry in case of Approved list of transport Contractors is maintained. a) Type/make of vehicle also whether (Petrol Driven or Diesel Driven ). b) Number of vehicle required for hiring. c) Period of hiring (Generally for a period upto one year, beyond which specific approval of Corporation be obtained ). d) The hiring charges should be obtained for the first 1500 kms. on the basis of 8/9 hrs. for a period of a month in case the sanctioned mileage is less than 1500 kms. the slab of first kilometerage be reduced accordingly. e) Hiring charges for extra run per km beyond first slab/ 1500 kms. should generally be less than pro-rata rate. f) Hiring charges per hour extra beyond 8/9 hours. g) Condition of vehicle, however, not older than 5 years. h) Vehicle should generally be registered as public Service Vehicle. i) Tenderer must have proof of having more than requisitioned vehicles at their possession (ownership document/ lease agreement), specially in case of hiring of vehicle at Calcutta, Durgapur, Malthon, panchet etc. where such tenderers are available. j) Kilometer as well as time should generally be maintained from parking place to parking place every day. i) Tenderer must have proof of having more than requisitioned vehicles at their possession (ownership document/ lease agreement), specially in case of hiring of vehicle at Calcutta, Durgapur, Malthon, panchet etc. where such tenderers are available. j) Kilometer as well as time should generally be maintained from parking place to parking place every day. Parking place for hiring purpose is the place where the vehicle reports for duty. k) For any failure in placement of vehicle the party has to arrange on alternative vehicle as a relief, failing which a penalty amount in rupees should be imposed on per day basis. 1) Payment should be done by DVC on production of monthly bills in triplicate along with log book statement etc. m) Deposit of Earnest Money (EMD) is considered on merit of the tender. 7. A specimen of the enquiry addressed to the tenderer, schedule to enquiry and other terms and conditions covering the hiring vehicle are enclosed for guidance. The enquiry be suitably modified to meet the local conditions. On the basis of finalisation of tender a suitabte agreement be drawn on the similar line between the hirer and the contractor. 8. This circular supersedes all previous OCs and O. Ms on hiring of vehicles. Some of these are: (a) No. S/mm/vehicle/genl/pt. A-220 dated November 12, 1986 (b) No. S/mm/vehicle/genl/pt. A-124 dated March 19, 1987 (c) No. S/mm/vehicle/genl/pt. A-170 dated July 5, 1988. (d) No. S/mm/vehicle/genl/pt. A-1131 dated October 24, 1989. (e) No. S/mm/vehicle/genl/pt. A-55 dated may 24, 1990 (f) No. S/mm/vehicle/genl/pt. A-339 dated April 9, 1991. ( 3 ) ALTHOUGH in the affidavit-in-opposition it has been stated that the petitioners were engaged temporarily to meet the urgent need but what were those needs have not been explained. The petitioners therefore, were work-charged employees. They were temporary casual employees. ( 4 ) SECTIONS 25-C to 25-E of the Industrial disputes Act, 1947 (hereinafter referred to as the "1947 Act") do not apply to an industrial establishment to which Chapter V-B of the 1947 Act applies. Chapter V-B of the 1947 Act applies to an industrial establishment in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. Chapter V-B of the 1947 Act applies to an industrial establishment in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. There is no dispute that during 12 months preceding 1986, 1987, 1988, 1989, 1990, 1991, 1992, 1993, 1994 and 1997 more than one hundred workmen were employed on an average per working day in the industrial establishment of the Corporation. Although Section 25-M being part of Chapter V-B of the 1947 Act does not apply to a casual workman but Section 25-N of the 1947 Act applies to such workman provided such a workman has been in continuous service for not less than one year under the employer. By Section 15-S of the 1947 Act the provisions of Section 25-B of the 1947 Act, so far as may be, has been applied also in relation to an industrial establishment to which the provisions of Chapter V-B apply. By reason of Section 25-B of the 1947 Act a workman shall be deemed to be in continuous service for a period of one year, if the workman, during a period of twelve calendar months preceeding the date with reference to which calculation is to be made, has actually worked under the employer for not less than two hundred and forty days without any interruption. Such a workman by reason of the mandate contained in Section 25-N of the 1947 Act cannot be retrenched by the employer until the workman has been given three months notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice and the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette has been obtained on application made in that behalf. Despite the petitioners No. 1,2 and 3 as admitted in the affidavit-in-opposition, having worked for a period of more than 240 days without any interruption during a period of 2 and 3 successive 12 calendar months, as stated above, they were not permitted to work continuously and accordingly were retrenched without complying with the mandate of Section 25-N of the 1947 Act. That action on the part of the Corporation is illegal inasmuch as contravention of Section 25-N is a criminal offence punishable with imprisonment for a term which may extend to one month, or with fine which may extend to thousand rupees or with both as provided for in Section 25-Q of the 1947 Act. It is well settled principle of law that if an action is barred by negative words as provided for in Section 25-N of the 1947 Act and if such an action entails criminal liability, such an action is altogether illegal. ( 5 ) THE respondent authority has sought to justify such action on a business need propounded by a business decision taken on the basis of a rule made in terms of the provisions of the 1948 Act. From the business decision, on which reliance has been placed, it would be evidenced that the real business decision was to control wastage of the funds of the Corporation while hiring private cars and to keep and maintain a proper control on such hire. The business decision was not to guide the corporation to retrench any of its employees and that too in contravention of the provisions contained in Section 25-N of the 1947 Act. ( 6 ) THERE cannot be any dispute that a legislature competent to legislate on a subject can, by a subsequent legislation change the course of a previous legislation or incorporate amendments may not be directly, but indirectly, in such previous legislation, but then its delegate cannot do the same, unless specific power is granted to the delegate. Assuming while enacting the 1948 Act by which the corporation was incorporated, the legislature delegated its power to the delegated, while making regulations to provide for provisions for making appointments and promotions to its officers and servants as well other conditions of service of its officers and servants or while making regulations to provide for provisions to regulate the proceedings and business of the corporation, to change the course of the mandate contained in 1947 Act or to incorporate amendments thereto in relation to the employees of the Corporation, but the delegated while making the aforementioned regulations did not consciously do so. Being conscious that the corporation has casual employees brought such employees consciously within the conduct regulations but did not bring them within the service regulations. Being conscious that the corporation has casual employees brought such employees consciously within the conduct regulations but did not bring them within the service regulations. Consciously, therefore, it was decided casual employees would be governed by the 1947 Act. ( 7 ) THERE is, therefore, no legal retrenchment of the petitioners. They are still in employment of the Corporation. They shall continue to remain in such employment until steps are taken under Section 25-N of the 1947 act. However, having regard to the fact that the petitioners have not rendered services since after the dates mentioned above but still they have survived and continuing to survive, on the principle of no work no pay they shall not be paid any remuneration until today and they shall be paid remuneration at the same rate of pay at which they were paid last from tomorrow until they are retrenched under section 25-N of the 1947 Act. ( 8 ) THE retrenchment of the petitioners effected by the Corporation it is claimed, is an industrial dispute and accordingly the same ought to have had been referred to the appropriate forum under the 1947 Act for proper adjudication. In the normal circumstances I would have given such a direction but having regard to the facts admitted in the affidavit-in-opposition, there is infact no dispute that the petitioners right to continue to serve the Corporation has been illegally interfered 'with by the Corporation and accordingly that right is required to be protected and has been protected by this order passed in exercise of powers under Article 226 of the Constitution of India. ( 9 ) THE petitioners have claimed for permanent absorption. Merely because the petitioners have continuously worked for a period of one year, they did not ipso facto become entitled to permanent absorption. No such right has been granted to them by any statute or any agreement if there be any such the same has not been produced before me. I therefore, cannot give any direction to the corporation to make the petitioners its permanent employees. ( 10 ) HOWEVER, having noted the fact that at the rate at which the petitioners were being remunerated and the rate at which permanent employees of the Corporation discharging same duties and functions were remunerated, are quite dissimilar, the same tends to show that the corporation is exploiting the petitioners. ( 10 ) HOWEVER, having noted the fact that at the rate at which the petitioners were being remunerated and the rate at which permanent employees of the Corporation discharging same duties and functions were remunerated, are quite dissimilar, the same tends to show that the corporation is exploiting the petitioners. The corporation being a statutory Corporation, it is expected that it would do no such thing by which a citizen of this democratic country is exploited. ( 11 ) I, therefore, request the Corporation to look into the matter and to decide whether the petitioners are being exploited for not being paid at the same or similar rate at which the permanent employees discharging same or similar duties and functions are being paid. I expect that this request shall be honoured as quickly as possible but not later than three months from the date of communication of this order. ( 12 ) THE writ petition is allowed to the extent as above without any order as to costs. ( 13 ) LET urgent xerox certified copies of this judgment, if applied for, be delivered to the learned advocate for the parties. ( 14 ) STAY prayed for is refused.