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2012 DIGILAW 450 (JHR)

Tej Narayan Singh v. Jharkhand State Tourism Development Corporation Limited

2012-03-27

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
ORDER Heard learned counsel for the parties. 2. The present two petitioners preferred two writ petitions, C.W.J.C No. 1277 of 1998(R) and CWJC No. 1303 of 1999(R), before this Court wherein directions were issued to the respondent-Jharkhand State Tourism Development Corporation Ltd to regularize the services of the writ petitioners. The order passed by the learned Single Judge was the subject matter before in L.P.A. No. 15 of 2000 and L.P.A. No. 308 of 2001, which were disposed of by the Division Bench of this Court by issuing following directions: “We, therefore, modify it to the extent that the Corporation must take immediate step, in the facts and circumstances of the case, to evolve a scheme for regularization of the services of these respondents on the post for which they were eligible, along with others, who were entitled to apply for, as and when such requirement arise, and consider their claim on merit and in accordance with Rules along with all eligible candidates, as early as possible.” 3. The writ petitioners were appointed as back as in the year 1983, by now 29 years ago, as daily wagers on Class IV posts and since last 29 years they are working on the same post as well as daily wagers. When the directions issued by the Division Bench of this Court has not been complied with, the petitioners submitted this Contempt Petition. 4. In reply to the Contempt Petition, it has been submitted by contemnors that originally the Corporation had seven posts and thereafter it created 29 posts and those 29 posts are mentioned in Annexure-A, dated 11th October, 2006 annexed to the show cause filed by the Corporation and thereafter 7 more posts were created. In view of above, there are total 7+29+7 = 43, number of posts are there. 5. According to learned counsel for the Corporation, in the year 2011, as per the Government policies, it was decided to run the Corporation by 'Private Public Partnership' and by outsourcing its units for running by private parties and, therefore, now the Jharkhand State Tourism Development Corporation's tourist complexes are managed and run by private parties, which also includes providing the man power in managing the tourist complexes in the State of Jharkhand. The minutes of the 34th meeting of the Board of Directors of the Jharkhand State Tourism Development Corporation Ltd held on 1st April, 2011 has been annexed as Annexure-G to the supplementary show cause filed by the Corporation. However, it is not clear whether the 43 posts referred above are still continuing or some of the posts have been abolished because of providing man power by private partner of the Corporation. From Annexure-A to the show cause, by which 29 posts were created, it appears that there were two posts of Sweeper and two posts of Office Peon. Besides that there were 08 posts of Drivers having HMV and LMV, which also falls in Class IV posts, but the working of Office Peon, Sweeper and Driver are entirely different. The number of Office Peon is two only, which may be from 1983 or from the constitution of Corporation. These two petitioners are working on Class IV posts as daily wagers since 1983 and the petitioners are still in service is an admitted fact. This Court directed the respondents to evolve a scheme for regularization of the services of these respondents on the posts for which they are eligible. We do not find that any effort was made by the contemnor for evolving a scheme for regularization of services of the petitioners on the posts of which they are entitled, as it was direction of this Court. Not only direction was issued for evolving a scheme for regularization of these two petitioners but Court thereafter also ordered that it may evolve a scheme for others also who are entitled to apply for, as and when such requirement arises. The reply filed by the Corporation requires to be considered in light of Article 23 of the Constitution of India, which is as under: 23.Prohibition of traffic in human beings and forced labour-- (1)Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 6. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 6. Article 23 of the Constitution of India prohibits traffic in human beings as begar as well as other similar forms of forced labour. The forced labour is required to be given in widest possible meaning so as to bring all the forms of works which force any person to work in a condition where he has to do work without there being adequate wages and other attached benefits so as to live in dignified way which may include to maintain such not only employee but also employee's family as well as social security and very many other benefits. If social security and other benefits are not provided in employment and employers are taking the work from that person then prima facie it can be a proof of forced labour. Such labour may work for the employer under such conditions because of the force and circumstance that he has no option and has compulsion to do the work under inhuman treatment and without there being any social security and the facility of leave, medical facility and other normal benefits attached to the normal course of services. 7. At this juncture, it would be relevant to mention here that there is Act .e., “The Contract Labour (Regularization and Abolition) Act, 1970, allows contract labour service obligations upon the contractors. We are not examining the aim and object of the said Act of 1970, which may also deny large number of benefits and social security to persons given appointment by the contractor but here the issue is grave because of the reason that in the entire State of Jharkhand, the highest body for development of tourism is 'Jharkhand State Tourism Development Corporation Ltd' and sanctioned posts of peons are only two in number, who are serving and may serve the total 41 (43-2) number of staff of the corporation. These two posts of peon are occupied by regular appointed persons and this fact is also true that only two posts of peon are not sufficient and therefore, they adopted this mode of engaging two persons on daily wages basis and it will be worthwhile to mention here that these two writ petitioners, who are daily wagers and are peon, are discharging the duties of Manager cum Accounts Clerk in the Corporation, as per learned counsel for the petitioner. These facts clearly reveals that the laws which have been enacted to protect the rights of the labour/poor persons and particularly in the matter of employment and their security, how the laws can be abused by the employers. 8. To examine the issue further, it will be appropriate to direct the respondent-corporation to give relevant facts point-wise: (i) When the Corporation was established? (ii) How many Tourist Complexes are under Jharkhand State Tourism Development Corporation Ltd.? (iii) Before entering into 'Private Public Partnership' by outsourcing the corporation was running these complexes with the help of how many persons – yearwise? (iv) After entering into 'Private Public Partnership' by outsourcing how many working strength has been reduced so that by adopting the mode of 'Private Pubic Partnership' the burden of the corporation has been reduced and has been shifted upon party who has been given and assigned the work of outsourcing? (v) How many Class IV employees are there and how many class IV employees are working on daily wages as well as working on contract basis and what are their salaries/wages from time to time? (vi) In addition to above particulars, the Corporation may also state on oath clearly that whether the corporation is taking service of these two petitioners on Class IV posts or Class III posts? (vii) Whether they ever moved the Government for sanctioning of the posts for such daily wagers/contract employees or the persons working through contractor for regularization of their services including regularization of services of these two writ petitioners after direction of this Court dated 14th May, 2003 issued in L.P.A. No. 15 of 2000 and L.P.A No. 308 of 2001 so as to we find out whether the respondent-corporation in true spirit have even tried to obey the directions of this Court? 9. 9. We make it clear that this Court had already circulated the directions issued by Hon'ble Supreme Court whereby the Hon'ble Supreme Court held that sitting over the matter or remaining silent on an issue decided by the Court also amounts to willful disobedience of the Court's order. Therefore, all queries be answered by the respondents within a period of four weeks. It is also made clear that the respondents may now also take steps, if they want to take steps for evolving the scheme for regularization of such employees. 10. Learned counsel for the respondent-corporation submitted that Uma Devi's case will not be applicable in this case particularly paragraph 53 because of the reason that petitioners were not working on the sanctioned posts and, therefore, their case cannot be considered for regularization. 11. First of all, we may make it clear that in contempt petition, we are not going to decide this issue. Secondly, the directions have already been issued in the case of petitioners by order dated 14th May, 2003 passed in two L.P.As- L.P.A. No. 15 of 2000 and L.P.A. No. 308 of 2001 preferred by the Corporation itself and the order passed in those L.P.As have attained finality in the year 2003 and nine years have passed to that direction and furthermore we have already taken note of Article 23 of the Constitution of India and we are of the considered opinion that when it is a begar taken by the Corporation, big body of the Government, then it is a big issue and we have to find out whether the respondent-corporation in fact in its true spirit intended to obey the directions of this Court or not. Therefore, we have asked the answers of above queries. 12. Put up this case after four weeks.