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2012 DIGILAW 1703 (JHR)

Banaras Singh v. Damodar Valley Corporation

2012-12-10

APARESH KUMAR SINGH

body2012
ORDER Heard counsel for the parties. 2. Petitioners have sought a mandamus upon the respondents to fix the salary of the petitioners in regular scale of pay together with the dearness allowance as admissible to other regular employees of Damodar Valley Corporation, with effect from the year 1996 in the revised scale of pay of Rs. 3050-4590. Petitioners have also sought for payment of arrears of pay and allowances as revised with effect from 1996 together with interest for the delay in such payment. 3. The case of the petitioners is that they were engaged after proper advertisement, interview and selection in the year 1981 to perform the work of Guage Reader in the corporation for the period of five months every year during the monsoon period. These petitioners have since 1981 been regularly engaged / appointed each year till the year 1998 on the basis of regular scale of pay as per their appointment orders issued each year by the respondent corporation, some of which have also been annexed as annexure-1 series to the writ petition. The ground taken by these petitioners for being aggrieved is that subsequently from 1998 onwards, they have been engaged for the period of five months in monsoon every year, but not on regular scale of pay as done for the last 17 years, but on consolidated pay without the benefit of dearness allowances as also the medical reimbursement of the family and dependents of the employee. The submission made on behalf of the petitioners is that there are permanent vacancies in the respondent corporation each year for the said monsoon period of five months and these petitioners have been regularly engaged every year for the period of five months, although on the basis of appointment letters issued each year. Therefore, the benefit of regular scale of pay could not have been denied to them along with the revision made in respect of them by the corporation on the recommendation of pay revision committee from time to time. Counsel for the petitioners also submits that the petitioners' family and their dependents have been getting the benefit right from the year 1981 which have been illegally and arbitrarily withdrawn by the new terms of offer made in the appointment order issued from the year 1988 onwards. Counsel for the petitioners also submits that the petitioners' family and their dependents have been getting the benefit right from the year 1981 which have been illegally and arbitrarily withdrawn by the new terms of offer made in the appointment order issued from the year 1988 onwards. It is the case of the petitioners that the action of the respondent corporation and its instrumentalities is not only illegal but also wholly inhuman and harsh and the petitioners are pitted against the mighty corporation and are placed under unequal bargaining position in the matter of acceptance of their engagement each year on the varied and changed terms and conditions of engagement. Petitioners therefore pray that that the respondents be directed to grant them the same benefit of regular scale of pay from 1998 and onwards each subsequent year during the period of engagement of five months in the monsoon period under the corporation. Counsel for the petitioners submits further that the engagement of these petitioners are on identical lines with those employees or persons who are engaged under the Central Water Commission in similar nature of work in work charge establishment under Damodar Division of Central Water Commission and they are being granted regular scale of pay. 4. Respondent corporation have appeared and filed their counter affidavit. Mr. Gadodia, learned senior counsel appearing on behalf of the corporation, submits that essentially, issues raised in the present writ application is in the nature of industrial dispute which can be properly adjudicated before an appropriate Labour Court constituted under the provisions of Industrial Disputes Act as it also involves several issues of fact raised by the petitioners. It is further submitted that these petitioners were once empaneled in the year 1981, but they are engaged in work charge establishment each year as per requirement of the work during the monsoon for the period of five months and more or less, it terminates with the end of the work charge establishment each year. It is further submitted that in no way, these petitioners can claim to be in the regular establishment of the corporation so as to claim entitlement to the benefits at par with the regular employee. It is further submitted that in no way, these petitioners can claim to be in the regular establishment of the corporation so as to claim entitlement to the benefits at par with the regular employee. Moreover, since appointment letters are issued every year for the respective period of five months to each of these petitioners and others and the appointment itself is seasonal and afresh every year and does not continue as regular employment right from the first date of employment in the year 1981, petitioners cannot claim the benefits of regular establishment. It is further stated on their behalf that since each appointment letters are specific to the particular year and these petitioners were given the offer of consolidated pay in the year 1998 itself and have been further engaged in the subsequent years separately for each individual cases under the changed terms and conditions of engagement, they have come before this court only in the year 2005 for agitating their grievances. However, till date, persons like the present petitioners and others have been engaged annually as seasonal employee on the terms and conditions offered to them on consolidated basis. The change in policy of the respondents to give consolidated pay was on account of demands raised by such persons themselves and according to them, remuneration they used to receive in the regular scale of pay inclusive of dearness allowance was sometime less than they actually could have got in the manner of consolidated pay. It is therefore submitted that the grievances of the petitioners to claim regular scale of pay with effect from 1996 is wholly misconceived and cannot be granted in writ jurisdiction specially in view of the fact that these petitioners have never been engaged as regular employees in the corporation right from 1981 admittedly. Counsel for the respondents further submits that these engagements are contractual engagement and are not in the nature of statutory appointment or in the nature of regular employee. 5. I have learned counsel for the parties at length and gone through the relevant materials on record. The contention raised on behalf of the petitioners can be looked into by applying one's mind to one of the appointment letters which are contained at annexure-1 series. 5. I have learned counsel for the parties at length and gone through the relevant materials on record. The contention raised on behalf of the petitioners can be looked into by applying one's mind to one of the appointment letters which are contained at annexure-1 series. Perusal of the appointment letter dated 14.08.1981 discloses that the engagement of one of these petitioners Banaras Singh was for the period 12.08.1981 to 31.10.1981 in the prescribed scale of pay and his services were to be terminated on completion of such work. It was indicated that in addition to the pay, D.A. and other allowances will be paid at the scale and rate as admissible to DVC employees under regular establishment. It is further indicated in the said appointment letter itself that his services can be terminated even before the due date and in such case, he will be entitled to such notice as may be required by law or pay in lieu thereof. It has further been indicated therein that the employee who has been in continuous service for not less than one year will be eligible for retrenchment benefits admissible subject to the conditions laid down in the Industrial Disputes Act. He will have to produce a fitness certificate from a Registered Medical Practitioner before reporting for duty. The appointment order of such nature is issued in respect of each of these petitioners every year right from 1981 till 1997. These terms of appointment letters were subsequently changed as would appear from one of the letters annexed as annexure-2. The said appointment offer dated 31.05.2002 discloses that the appointment offer was with consolidated pay per month at the rate of 4020/-plus special allowance of Rs. 300/-per month; services are required for the monsoon period and are likely to be terminated at any time without notice or assigning any reason. The employee concerned may accept the appointment offer when he is willing to do so. Perusal of the appointment orders issued on 31.05.1997, 10.06.1998 and 31.05.2002 disclose that these petitioners although have been engaged each year for five months, but have been appointed on seasonal basis for the particular period which ceases or are terminated on completion of the said period and there appears to be no continuity of service in the nature of regular employee under such State instrumentality. The nature of work appears to be seasonal in nature. 6. The nature of work appears to be seasonal in nature. 6. These employees if they had been in regular establishment right from the the 1981, shall have an engagement round the year without issuance of appointment offer each year in the nature as has been so existing in the present case. So far as the contention of the petitioners that their engagement is on identical lines with those who are engaged in Damodar Division of Central Water Commission is concerned, each public sector unit and its instrumentalities are independent and they are entitled to take any policy decision so far as the matter of recruitment, etc is concerned depending upon the exigency of the organization, staffing structuring, financial resources, etc. Therefore, the claim of parity by the petitioners with those engaged in the Central Water Commission is not sufficient to make out a case for discrimination as those employees are not in the said instrumentality i.e. Damodar Valley Corporation. Respondents seem to have changed their terms and conditions of offer to each individual employee after certain period of their engagement from 1997-98 onwards. Therefore, if these petitioners had any grievance with the change in the nature of their engagement from 1997-98 onwards on the basis of their claim for either treating them as regular employee or in regular pay scale as granted earlier, they were well within their right to approach the concerned industrial forum for adjudication of the dispute which prima facie appears to be in the nature of industrial dispute, but the petitioners however have come before this court in the year 2005 seeking claim for grant of regular salary / pay scale as those employee in the regular establishment with effect from 1996. 7. From the facts and circumstances discussed herein above, it appears that the engagement of these petitioners was seasonal in nature and they are not in regular establishment in Damodar Valley Corporation. Their engagement are on the basis of individual appointment letters issued every year since the year 1981, therefore their engagements or appointments are done afresh every time and continuity of service also cannot said to be existing on that basis. The appointment ceases at the end of the period of engagement. All these facts indicate that these petitioners cannot claim at par status with those who are regular employee. The appointment ceases at the end of the period of engagement. All these facts indicate that these petitioners cannot claim at par status with those who are regular employee. Corporations offer appointment each year and it is open to the petitioners to either accept or refuse the same. Petitioners have continued to accept the offer since the year 1997-98 and perhaps have been continuing till date. 8. In the facts and circumstances of this case, I do not find that the petitioners have made out a case of any infringement of their legal, statutory or any constitutional provision so as to warrant issuance of writ of mandamus upon the respondents to grant them regular scale of pay plus other allowances as claimed by them from 1996. Therefore, this writ petition is devoid of any merit and is accordingly dismissed. Petition dismissed.