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2017 DIGILAW 602 (UTT)

Vinay Kumar Joshi v. State of Uttarakhand

2017-11-13

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : K.M. Joseph, J. Since these three Appeals raise common issues, we are disposing of the same by the following common judgment. 2. Special Appeal No. 53 of 2017 arises from Writ Petition (S/S) No. 78 of 2015. The prayer in the said writ petition was as follows: “(i) Issue a writ order or direction in the nature of mandamus directing the respondent corporation to consider the case of the petitioner for regularization by including their name in the forth coming exercise of regularization in view of the facts and position highlighted in the body of the petition along with all consequential benefits after calling entire records from the respondents.” 3. Special Appeal No. 43 of 2017 is filed against the judgment in Writ Petition (S/S) No. 1914 of 2013. Therein, the relief’s sought were as follows: “(I) Issue a writ, rule or direction in the nature of mandamus to the respondents to implement and enforcement of the all social welfare benefits under law including the equal pay for the drivers, conductors working through agency in the department at par to the regular drivers and conductors along with all arrears and further to direct them that keeping in view the requirement of regular work and availability of the post of the regular process for such type of engagement be started and also direct to the respondents to consider the creation of the post keeping in view the regular need and working of the drivers and conductors and also hold that under the guys of the alleged device of out sourcing to engage contractual drivers and conductors is against the public policy for providing employment to every one in terms of article 14 and 16 of the Constitution of India. (II) Issue a writ, order of direction in the nature of mandamus commanding respondent no. 1 and 2 to pass appropriate orders and directions to consider the grievances highlighted in the body of the writ petition and keeping in view the connivance of the corporation authorities with the respondent no. (II) Issue a writ, order of direction in the nature of mandamus commanding respondent no. 1 and 2 to pass appropriate orders and directions to consider the grievances highlighted in the body of the writ petition and keeping in view the connivance of the corporation authorities with the respondent no. 9 and 10 take appropriate decision to monitor the work of the Uttarakhand Transport Corporation and to re-consider the creation of the corporation for doing such type of wrongful doings by the corporation authorities and for the conversion of the state transport corporation as a department of state government in view of the social security and public security of the employee and the other passengers. (III) Issue writ rule or direction appropriate in nature to initiate appropriate proceedings against the erring officers and persons who are involved in such type of wrongful Acts and fixed the liability on the erring persons and further to compensate the contractual drivers and conductors appropriately who are being suffered due to the malicious and capricious act of the respondents and the amount of compensation so determine be order to be recovered from the erring officers and person.” 4. Special Appeal No. 44 of 2017 is filed against the judgment in Writ Petition (S/S) No. 1910 of 2014. Therein, the relief’s sought were as follows: (II) Issue a writ, rule or direction in the nature of Certiorari quashing the impugned order dated 15-10-2014 in league with order dated 12.11.2014 by which the private respondent was directed to supply the driver and conductors for carrying out the bus operation in the Uttarakhand Transport corporation which is perennial and permanent work and also to declare the act of the respondents void and arbitrary. (III) Issue a writ, rule or direction in the nature of mandamus directing to the respondents not to make any change and alteration in the working of the drivers and conductors who have been working since 2005 as drivers and conductors under the alleged intermediary till Nov, 2013 and thereafter w.e.f. December 2013 have been working under the direct administrative and financial control of the respondent corporation and are getting salary directly through Uttarakhand Transport Corporation till the disposal of their pending industrial dispute. (IV) Issue a writ, order of direction in the nature of mandamus directing to the respondent corporation to start process of regular appointment against the vacancies of drivers and conductors by considering the fact about regular and permanent need of drivers and conductors. (V) Issue writ rule or direction appropriate in nature to initiate appropriate proceedings against the erring officers and persons who are involved in such type of wrongful Acts and fixed the liability on the erring persons and further to compensate the contractual drivers and conductors appropriately who are being suffered due to the malicious and capricious act of the respondents and the amount of compensation so determine be order to be recovered from the erring officers and person.” 5. All these writ petitions were heard together and disposed of by the following common judgment: “1. In all these petitions, the petitioners are working as either Driver or Conductor in the Uttaranchal Road Transport Corporation (from hereinafter referred to as ‘Corporation’). The initial appointment of the petitioners in the Corporation was through outsourcing by private persons and individuals. 2. This Court has been informed that subsequent to the filing of the writ petition persons, who were outsourced like present petitioners in service, have abandoned the outsourcing arrangements and thereafter, during the pendency of the present writ petition, the Government itself vide its order dated 20.12.2016 (which is now a part of the record) has passed an order whereby the employees working through outsourcing agency are now to be treated as contractual employee with the Corporation w.e.f. 01.01.2014. To that extent the grievance raised by the petitioners stand addressed. 3. The learned counsel for the petitioners Mr. M.C. Pant, however, would argue that was not the issue. The other issue raised before this Court is also for equal pay for equal work and other facilities, which have been given to the regular employees in the Corporation. 4. The case of the petitioners before this Court is that even as an outsource employee of the Corporation, they are performing the same duties as the regular employees are doing. Hence, they were also entitled for equal pay for equal work. The learned counsels for the Corporation Mr. Ashish Joshi and Mr. Vinay Kumar have fairly agreed that this is an aspect which is liable to be considered by the Corporation. 5. Hence, they were also entitled for equal pay for equal work. The learned counsels for the Corporation Mr. Ashish Joshi and Mr. Vinay Kumar have fairly agreed that this is an aspect which is liable to be considered by the Corporation. 5. In view of the above, the writ petitions stand disposed with a direction that on the aspect for equal pay for equal work, the Managing Director of the Corporation shall take a decision by passing a speaking order as expeditiously as possible but definitely within a period of eight weeks from the date of production of a certified copy of this order. The Managing Director shall also consider this fact as to why equal pay for equal work should not be given to the similarly situated regular employees, in view of the settled position of law. In case, there are any factual discrepancies in the matter, Managing Director shall pass speaking order. It is further made clear that since this writ, petition is disposed of, on the developments which have taken place during the pendency of the writ petitions such as passing of Government order, it is made clear, in case, grievance of the petitioners remain unaddressed, they are always at liberty to approach before this Court.” 6. We heard Mr. Kishore Kumar, Advocate, holding brief of Mr. M.C. Pant, Advocate for the appellants, Mr. Narayan Dutt, Brief Holder for the State of Uttarakhand and also Mr. Ashish Joshi, learned counsel appearing for the Uttarakhand Road Transport Corporation. 7. As far as Special Appeal No. 43 of 2017 is concerned, apparently, the main matter appears to have been the right to get equal pay for equal work. Regarding complaint about outsourcing, it is submitted, the same no longer survives. Mr. Kishore Kumar, learned counsel for the appellants, would, in fact, contend that the matter should have been decided by the learned Single Judge himself having regard to what was laid down by the Hon’ble Apex Court in the matter of State of Punjab and others Vs. Jagjit Singh and others, reported in (2017) 1 SCC 148 . 8. We would think that, in fact, learned Single Judge has directed this matter to be looked into by the Managing Director. Jagjit Singh and others, reported in (2017) 1 SCC 148 . 8. We would think that, in fact, learned Single Judge has directed this matter to be looked into by the Managing Director. The question of applicability of the judgment cited by the learned counsel for the appellants depends upon the applicability of principles laid down by the Hon’ble Apex Court, which in turn must also depend upon the questions of fact being decided. Therefore, we would think that no further relief is warranted in Special Appeal No. 43 of 2017, and we are in agreement that the matter must be looked into by the Managing Director. We only make it clear that the Managing Director will also look into the law laid down by the Hon’ble Apex Court in the matter of State of Punjab and others Vs. Jagjit Singh and others, reported in (2017) 1 SCC 148 and any subsequent Supreme Court judgment. 9. As far as Special Appeal No. 53 of 2017 is concerned, as we have noticed, the relief sought in the writ petition was for regularization. The complaint of the appellants is that, in the judgment, there is no reference at all to these relief’s, even though, it was argued. In Special Appeal No. 44 of 2017 also, the prayer, which is actually pressed before us is prayer no. 4, which is again one seeking regularization. Therefore, the complaint of the appellants is actually that the relief relating to the regularization of the employees was actually pressed; but, in the impugned judgment, there is no reference to the same. 10. In the light of this, we would think that the proper thing would be to permit the appellants in Special Appeal No. 53 of 2017 and Special Appeal No. 44 of 2017 to seek review/recall of the judgment on the ground that though the case relating to the regularization was canvassed; but, it was not dealt with. 11. Accordingly, we affirm the judgment in the writ petition from which Special Appeal No. 43 of 2017 arises, subject to the observation which we have added and dispose of the Appeal. In regard to Special Appeal No. 53 of 2017 and Special Appeal No. 44 of 2017, we dispose of the Appeals leaving it open to the appellants to seek review/recall of the judgment. In regard to Special Appeal No. 53 of 2017 and Special Appeal No. 44 of 2017, we dispose of the Appeals leaving it open to the appellants to seek review/recall of the judgment. We also leave it open to the appellants to challenge the impugned judgment in these cases, if need arises.