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Rajasthan High Court · body

2014 DIGILAW 1139 (RAJ)

Ram Avtar Gurjar v. The Chief Manager (IR), SBBJ

2014-05-15

MOHAMMAD RAFIQ

body2014
JUDGMENT 1. - This writ petition has been filed by the petitioner Ram Avtar Gurjar,who has been working with the respondent as a Class-IV employee since 5.6.1999 seeking a direction to the respondent to regularise him in service and pay him regular salary of the post of Peon. 2. Facts of the case are that petitioner was appointed on the post of Class-IV on 5.7.1992 with the respondents. He worked with them upto 5.6.1999, when he was removed. Petitioner was initially paid Rs. 10 per day as daily wages, which was increased to Rs. 40/- in June, 1998. An industrial dispute was raised at the instance of the petitioner and referred to the Central Government Industrial Tribunal cum Labour Court, Jaipur for adjudication on the terms whether the petitioner was in continuous service as claimed, under Section 25-B of the I.D. Act in the Tonk Branch of State Bank of Bikaner & Jaipur Bank from 1992 to 1999. If yes, what relief, he is entitled to and from which date? The aforesaid reference was answered in affirmative in favour of petitioner-workman and it was held that he was in continuous service as defined under Section 25B of the ID Act in Tonk Branch at the relevant time and was entitled to be reinstated with effect from 5.6.1999 with 50% back wages and continuity of service. 3. Shri Ribhu Dutt, learned counsel for the petitioner has argued that petitioner having been granted benefit of continuity in service would thus be deemed to have worked with effect from the date of initial appointment on 5.6.1999. He is discharging the duties assigned to any other regularly employed Peon. He also delivers dak to other offices on behalf of the bank. The copy of the local delivery book has been produced on record. It is submitted that neither the petitioner has been paid regular salary on the post of Class IV, nor he has been regularised in service. Even the amount of remuneration paid to the petitioner is not only lesser than the notified minimum wages, but also far less than the wages of employees working in the MGNREGA. Learned counsel submits that even after reinstatement of the petitioner pursuant to the award dated 22.4.2004 passed by the Tribunal, the petitioner is still being paid @ Rs. Even the amount of remuneration paid to the petitioner is not only lesser than the notified minimum wages, but also far less than the wages of employees working in the MGNREGA. Learned counsel submits that even after reinstatement of the petitioner pursuant to the award dated 22.4.2004 passed by the Tribunal, the petitioner is still being paid @ Rs. 40 per day, whereas prescribed minimum daily wage as per Minimum Wages Act for skilled labour is four times more than that. Learned counsel argued that respondent has entered into Ninth Bipartite Settlement with Workmen Employees representation by various workmen organisation on 25.5.2010. That settlement was extended to part time employees with effect from 1.11.2007 vide Circular dated 17.7.2010. As per clause 2 of the said agreement, the wages for workers working upto 3 hours a week shall be minimum Rs. 1030 per month and those who work for more than 3 hours, but less than 6 hours shall be minimum Rs. 1440 per month and those recruited on or after 1.5.2010 in part time scale were to be paid at minimum of one third of scale wages. It is contended that petitioner is till date being paid Rs. 40 per day which comes to Rs. 800 per month. As per clause 3 of the agreement a scheme for conversion of part time employee on consolidated wages was initiated to ⅓rd scale wages. It is very depressing state of affairs that a part time employee who is working for 3-6 hours in a week is being paid more than Rs. 1400 per month and those who are working on regular basis for full working hours are being paid only Rs. 40 per day. It is contended that petitioner has been working for last 19 years against the post which is of regular and permanent nature. It is substantial that the respondents are in need of his services. There is no reason not to grant him regular salary and appoint him as a regular worker. 4. Learned counsel for the petitioner has relied on the judgement of Supreme Court in Union of India & Anr. v. Mahajabeen Akhtar AIR 2008 SC 435 wherein it was held that if a scale of pay in a higher category has been refixed keeping in view the educational qualifications and other relevant factors by an expert body, no exception thereto can be taken. v. Mahajabeen Akhtar AIR 2008 SC 435 wherein it was held that if a scale of pay in a higher category has been refixed keeping in view the educational qualifications and other relevant factors by an expert body, no exception thereto can be taken. But conversely it also means that if a scale of pay in a lower category or an equivalent category has been refixed in a manner which causes injury to another person situated in a higher or equivalent position then it will be considered as violation of Article 14 and exceptions thereto can be taken. 5. Shri M.D. Agarwal, learned counsel for the respondent has opposed the writ petition and argued that there is specific procedure for appointment of subordinate staff in bank according to which vacancies are to be published in newspapers and the appointments are required to be made on the basis of merit. The petitioner was working on contractual basis from time to time in Tonk Branch of the respondent-bank on specific amount. He was paid contractual amount for each work done by him. Petitioner worked upto 5.6.1999 in Tonk Branch of the respondent and for which work, wages were paid to him. He was never engaged by the respondent bank either as permanent or temporary employee and his name was not forwarded by any employment exchange. It is after the failure report, that the Government has made a reference to the Central Government Industrial Tribunal vide notification dated 17.10.2000. The Tribunal directed reinstatement of the petitioner with 50% back and continuity in service. The respondent bank there against filed a writ petition no.7421/2004 in which interim order was passed by this Court on 26.4.2005 by which the writ petition was admitted and the impugned order was stayed. The engagement of the petitioner was made for a specific work on payment of a specific amount for arranging stationery, empty cash boxes and filling water in coolers etc. The payment was made to the petitioner by vouchers. His appointment was thus not made by regular mode of recruitment on consideration of the applications from all eligible candidates. It is submitted that petitioner did not disclose to this Court that he has already filed an application under Section 15(2) of the Payment of Wages Act, 1936 before the Prescribed Authority. In the application, petitioner has claimed regular pay scale. The said application is still pending. It is submitted that petitioner did not disclose to this Court that he has already filed an application under Section 15(2) of the Payment of Wages Act, 1936 before the Prescribed Authority. In the application, petitioner has claimed regular pay scale. The said application is still pending. The writ petition be therefore dismissed as not maintainable as also for concealment of facts by the petitioner. 6. On hearing learned counsel for the parties and perusing the material on record, I find that the fact of initial appointment of the petitioner on 5.7.1992 has not been disputed by the respondents. The Tribunal by its award dated 22.4.2004 has held that petitioner was continued in service under Section 22B of the Industrial Disputed Act in Tonk Branch and he is required to be therefore reinstated in service with back wages and continuity of service. It is significant to note that the respondents thereafter reinstated the petitioner in their service and since then the petitioner has been continuing. No interim order has been passed by this Court in present writ petition, which would mean that petitioner is being continued by the respondents on their own. In this manner, he has completed 22 years of service with the respondents. Petitioner has asserted that he in the capacity of Peon is discharging the duties for full hours and yet he is being paid Rs. 40 per day which comes to Rs. 800 per month only. Such assertion has been made in para 8 of the writ petition. The respondents in reply to that para though disputed the same, but have given evasive reply. The respondents though stated that petitioner is not discharging duties full hours, but they have not stated that the petitioner is a part time employee. Looking to the length of time that the petitioner has served with the respondents, it is highly unreasonable on the part of the respondents not to consider his case for regularisation and pay him regular pay scale. Even as per the judgement of Supreme Court in judgement of the Supreme Court in Secretary, State of Karnataka & Ors. Looking to the length of time that the petitioner has served with the respondents, it is highly unreasonable on the part of the respondents not to consider his case for regularisation and pay him regular pay scale. Even as per the judgement of Supreme Court in judgement of the Supreme Court in Secretary, State of Karnataka & Ors. v. Uma Devi & Ors.- (2006) 4 SCC 1 , the petitioner having completed 22 years of service despite the nature of his appointment being irregular, in view of the vindication of right and the adjudication of the dispute by the Central Government Industrial Tribunal, has made out a case for direction to the respondents for his regularisation in service. 7. In the result, this petition succeeds and is accordingly allowed. The respondents are directed to consider the case of the petitioner for regularisation in service and pass appropriate order with regard thereto within three months from the date copy of this judgement is produced before them. The regularisation of the petitioner shall be made effective from 26.7.2011 i.e. the date of filing the writ petition. However, for the intervening period, he shall be entitled to only notional benefits and actual benefits and regular pay scale shall be paid from the date the actual order is passed. 8. Compliance of the judgement is made within a period of three months from the date copy of this judgement is produced before the respondents.Writ Petition allowed. *******